ORDER N.K. Mody , J. 1. Being aggrieved by the judgment and decree dated 13-8-2003 passed by 1st ADJ, Mandsour in civil suit No. 9-B/2000 whereby the suit filed by the appellant on 19-9-2000 for realization of Rs. 1,65,388=50 was dismissed, the present appeal has been filed. 2. The short facts of the case are that the appellant filed a suit for realization of a sum of Rs. 1, 65, 388=50 against the respondent. The suit was contested by the respondent by filing written statement. On the basis of the pleadings of the parties, learned Court below framed the issues and fixed the case for evidence. Application was filed on behalf of the appellant whereby time was prayed to adduce evidence on the ground that power of attorney holder of appellant who has to give his statement is not well. The application was rejected on the ground that there is no justification in filing the application at the end of the day. Thereafter, the arguments were heard and judgment and decree passed whereby the suit of the appellant has been dismissed. 3. Learned counsel for the appellant submits that there was no justification in dismissing the application. It is submitted that appellant was to adduce the statement of power of attorney holder who was very much present in the Court but was not well, therefore, application was moved for adjournment. 4. Learned counsel for respondent submits that the case was listed for evidence for several times and since three adjournments were already given, therefore, learned Court below has rightly closed the evidence and closed the case for judgment. Learned counsel submits that a proviso has been added under Order 17 Rule 1 of the Civil Procedure Code whereby powers of the Court has been restricted up to three times to a party during hearing of the suit. It is submitted that amendment has come in force in Civil Procedure Code in the year 1999, therefore, the learned Court has rightly closed the evidence and dismissed the suit. 5. Learned counsel for the appellant submits that on the relevant date when the application was filed the respondent was not present before the Court, therefore, the respondent cannot raise any objection in that regard. 5. Learned counsel for the appellant submits that on the relevant date when the application was filed the respondent was not present before the Court, therefore, the respondent cannot raise any objection in that regard. It is further submitted that the application was filed on the genuine ground that the power of attorney holder of the appellant who was present in the Court was not well. It is further submitted no reason has been assigned by the Court that what happened on the earlier date. It is submitted that proviso of Order 17 Rule 1 of the Civil Procedure Code which has been inserted by amendment is not mandatory but is directory. It is further submitted that under Order 8 Rule 1 of the Civil Procedure Code written statement has to be filed within a period of 30 days and by amended proviso no time can be granted by the Court beyond 30 days from the date of service of summons. Learned counsel submits that the proviso to Order 8 Rule 1 of the Civil Procedure Code is directory and not mandatory. 6. After perusal of the record, it appears that in the present case the application for adjournment was filed on the ground that the power of attorney holder of the appellant who has to examine himself is not well. It is also clear that the request of appellant appears to be genuine. Therefore, learned Court below committed error in rejecting the application on technical ground. 7. In view of above the appeal is allowed. The judgment and decree passed on 13-8-2003 is hereby set-aside, subject to payment of cost of Rs. 1,500/- with a direction to the parties to remain present before the Court below on 5-9-2005. Since the case is remanded, therefore, the registry is directed to issue the certificate for refund of Court-fee under section 13 of the Court Fees Act which has been paid by the appellant before this Court. No order as to costs.