S.P.Srivastava, J. - (1.) FEELING aggrieved by an order passed by the Judge Small Cause Court dated 23-5- 94 whereunder the application filed by the plaintiff-respondent under Order IX rule 9 of the Code of Civil Procedure, seeking setting aside of the dismissal of the suit no. 25 of 1985 for default on 17-5-90 had been allowed with a direction requiring the defendent to pay a cost of Rs. 215/-. One of the defendents has filed the present revision under section 25 of the Provincial Small Causes Court Act praying for the setting aside of the .order passed by the trial court dated 23-3-94.
(2.) I have heard Sri Murali Dhar, learned Senior Counsel has appeared for the revisionist. It appears from the record that S.C. suit no. 25 of 1985 had been filed claiming a decree of ejectment of the defendants from the premises in dispute and for recovery of arrears of rent and damages for- use and occupation pendente-lite and future. This suit was dismissed for default of the plaintiff on 17-5-90. On 22-5-90 an application setting aside of the dismissal of the suit was filed by the plaintiff asserting that his son-in-law had all of a sudden fallen ill and he was moved to a nurshing home for surgery. It was further asserted that the plaintiff had to look after his son-in-law in the nurshing home through out the day and night. It was claimed that in the circumstances the plaintiff was not in a position to contact his counsel. In the counter-affidavit while replying to the allegations made in para 3 of the affidavit of the plaintiff containing the aforesaid assertion made in paragraph 3 of the affidavit tiled in support of the application under order IX rule 9 of the Code of Civil Procedure, the revisionist did not specifically deny the claim of the petitioner that his son-in-law had all of a sudden fallen ill and was moved to a nurshing home for surgery and the plaintiff had to look after his son-in- law in the nurshing home through the day and night but what was said was that the allegations made by the plaintiff in this regard were vague. The plaintiff filed a rejoinder affidavit which was accepted oh record, wherein it was specifically asserted that the son is law was very seriously ill on 17-3-90 and the plaintiff was very busy in attending him. Although a supplementary counter-affidavit was filed by the revisionist, the assertions made in paragraph 4 of the rejoiners affidavit were not specifically denied, It it not disputed that the accommodation in dispute is a part of building no. 9, Elgin Road, Allahabad and the portion other than that which is occupied by the revisionist is being occupied by the landlord. In paragraph 4 of the supplementary counter affidavit, the revisionist made an assertion to the effect that "It is a manufactured and false statement that the plaintiff's son-in-law had any ailment which could hold back the plaintiff from attending to the case and the prescription filed in proof thereof pertain to 15-4-90, 16-4-90, 17-4-90 and 23-5-90 are fabrieated, concocted and inadmissible and do not either indicate any serious ailment or anything else which could detain the plaintiff on 17-5-90 and engage him in any hustle and bustle in connection with that ailment". The supplementary affidavit consisted of nine paragraphs. Paragraph 1 to 9 were sworn to be true and correal to the best of the depondent's knowledge and belief. The assertions made in paragraph 4 of the rejoinder affidavit had been sworn by the plaintiff on personal knowledge. The trial Judge on an appraisal of various affidavits and the materials placed on record came to the conclusion that he was satisfied that the plaintiff was prevented from attending the court on the relevant date due to serious illness of his son-in-law. On the aforesaid conclusion the trial Judge allowed the application filed under order IX rule 9 of the Code of Civil Procedure.
(3.) SRI Murali Dhar, learned counsel for the applicant has asserted that the illness of the son-in-law could not be deemed to consititute sufficient cause for the non-appearance of the plaintiff The contention is that in this view of the matter the application for setting aside the dismissal of the suit in default deserved to be rejected out right. So far as the above submission is concerned, it may be noticed that as observed by this Court in its decision rendered by a Division Bench in the case of Lalta Prasad v. Ram Karen, 1912 ALJ 666, nothing in the Code of Civil Procedure can limit or otherwise affect such powers under which a court can restore a case on grounds other than sufficient cause for non appearance The provisions contained in order IX rule 9, Code of Civil procedure makes St compulsory on a court to set aside a dismissal order under order IX rule i$ of the Code of Civil Procedure where the plaintiff satisfies the court that there was sufficient cause for non-appearance. It was emphasised that the provisions contained in order IK rule 9 of the Code of Civil Procedure cannot take away the courts power to restore the case for any other valid reason.;