J.V.Gupta, J.

1. This petition is directed against the order of the Additional District Judge, Gurgaon dated 12th January, 1979, whereby order of the trial Court dismissing the application under Order 9 Rule 13 as not maintainable was affirmed. The relevant facts which are not in dispute are as under.

2. The plaintiff Khem Chand filed a suit for possession on 16th October, 1971. After the plaintiff closed his evidence on 3rd September, 1975, the case was fixed for defendants evidence for 17th October, 1975. On that date, the witnesses of the defendant were not present and the case was adjourned to 4th December, 1975, subject to payment of costs of Rs. 15. On 4th December, 1975, the following order was passed by the Court :-

"Present : Shri Gobind Lal, Advocate for the plaintiff. Counsel for the defendant is present. No. D.W. present. It has been stated by the counsel for the defendant that the D.W.s have not been produced today because the plaintiff had told him that he will be out of station today. Under these circumstances, I grant one more, but last, opportunity as already directed on the last date of hearing. For evidence of the defendants to come up on 16th December, 1