ORDER

1. After arguing at length, learned counsel for the petitioners in the light of decisions of a coordinate Bench of this Court in the case of Rais Khan and another vs. Pradeep and others, (2016) 1 MPRN 239 and Shivkumar Sharma and others vs. Sukhdev Lal and others, (2016) 1 MPRN 347, prays for withdrawal of this misc. petition in respect of order dated 4.9.2024 whereby trial Court has dismissed petitioners' application under section 45 of the Evidence Act, with liberty to file fresh application after evidence of the parties.

2. Prayer being reasonable is accepted and petitioners are permitted to withdraw this misc. petition in respect of order dated 4.9.2024 with the aforesaid liberty.

3. So far as the order dated 28.8.2024 is concerned, petitioners/plaintiffs are challenging the said order passed by 4th Civil Judge Senior Division, District Burhanpur in RCSA No.15/2021 whereby trial Court has closed right of evidence of the plaintiffs and fixed the case for evidence of the defendants.

4. Learned counsel for the petitioners submits that after chief examination of plaintiff 1 - Atul, the case was fixed for his rest of the chief examination and cross-examination, but on the date fixed before trial Court, the plaintiff fell ill and the application was filed for seeking adjournment under Order 17 rule 1 CPC supported by medical certificate of Doctor, but trial Court has, by taking harsh view in the matter, dismissed the application and closed right of the plaintiffs. He submits that looking to the fact that the suit was filed only in the year 2021 and the plaintiff 1-Atul's chief examination was already started, who could not appear due to medical urgency, one more opportunity ought to have been granted. With these submissions he prays for allowing the misc. petition.

5. Learned counsel appearing for the respondents 1-8 & 15-19 supports the impugned order dated 28.8.2024 and prays for dismissal of the misc. petition with the further submissions that despite giving so many opportunities the plaintiff 1-Atul did not appear for his remaining chief examination as well as cross-examination, therefore, trial Court has not committed any illegality in passing the impugned order. With these submissions he prays for dismissal of the misc. petition.

6. Heard learned counsel for the parties and perused the record.

7. In the present case, undisputedly upon listing of the case for plaintiffs' evidence, plaintiff 1-Atul's chief examination was commenced and the case was fixed for his remaining chief examination as well as cross examination on him.

8. In the impugned order itself, it is mentioned that an application under Order 17 rule 1 CPC was filed for adjournment of the case, on the premise of illness of plaintiff 1- Atul supported by photocopy of concerning Doctor of Pune (Maharashtra), which has been discarded by trial Court on the ground that the certificate has been issued by Pediatrician whereas the plaintiff suffered Heart problem and that the case is pending since 2021.

9. In view of the observation made by trial Court and further in view of the fact that the plaintiff 1 -Atul could not appear due to his illness, in my considered opinion, trial Court by allowing the application under Order 17 rule 1 CPC ought to have afforded one more opportunity to the plaintiffs to adduce evidence.

10. Resultantly, by setting aside the impugned order dated 28.8.2024, instant misc. petition stands allowed with the direction to the petitioner(s)/plaintiff(s) to remain present before trial Court for examination on the next fixed date.

11. With the aforesaid, this misc. petition is allowed and disposed off.

12. Misc. application(s), pending if any, shall stand closed.