Bapna, J. - (1.) THIS is a revision against an order of the City Munsif, Udaipur, dated the 12th of September, 1949.
(2.) THE petitioner, Bhanwarlal Vaid sued the opposite party, Bhanwarlal Agarwal, for possession of certain property under section 9 of the Specific Relief Act. THE suit was dismissed for default of appearance of the plaintiff on the 28th of June, 1949. On the 4th of July 1949, the plaintiff submitted a petition for restoration of the suit on the ground that a few days before the date of hearing, the plaintiff had gone to Tonk in connection with some important business, expecting to return before the date of hearing, but three or four days before the said date, he was down with Malaria and remained ill for five or six days, and could not present himself on the date of hearing. No counter-affidavit was produced or evidence led to show that the reasons given by the plaintiff were incorrect, but the petition was contested by the defendant. THE learned Munsif dismissed the petition on the following grounds: - (1) That there was no independent evidence in support of the allegation of illness of the plaintiff, and that his own affidavit could not be relied upon as he was an interested person; (2) that the plaintiff had to prove not only that he was ill, but that the illness was sufficient to prevent him from attending the Court; (3) that he did not prosecute his case with sufficient effort as the said date was fixed for evidence, and he had neither filed a list of witnesses nor summoned them. The plaintiff filed a revision in the High Court Bench at Udaipur, which has come here by transfer. The learned counsel for the petitioner has argued that the lower court has acted illegally and with material irregularity in the exercise of its discretion in so far as (i) the court failed to take into consideration the affidavit of the plaintiff when no counter-affidavit or any evidence in rebuttal had been produced, and that the evidence by affidavit was a mode prescribed by law; (ii) the lower court failed to take into consideration section 120 of the Evidence Act, which made a party to the suit a competent witness and the mere fact that he was a party did not make his evidence inadmissible or unreliable. The learned counsel for the opposite party contended that no case for revision had been made out, and in any case the petitioner had another remedy by way of a regular suit open to him and that on the merits, the plaintiff should also have shown why his lawyer did not attend on the date of hearing. The revision has been filed against the correctness of the order dismissing the petition for restoration of suit and not against the decision of the suit under section 9 of the Specific Relief Act. It is conceded that the said order of the Munsif is not open to appeal. There is no other remedy to have the suit restored. The first preliminary objection, therefore, fails. As to the second objection, the law in this respect has been laid down in the two recent decisions of their Lordships of the Privy Council in A. I. R. 1949 P. C. 156 (1) (AT. '8. Venkatgiri Ayyange vs. The Hindu Religious Endowments Board, Madras.) and A. I. R. 1949 P. C. 239 (2) (Joy Chand Lal Babu vs. Ramlaksha Chaudhury ). In the former case it was observed that "the section empowers the High Court to satisfy itself upon three matters: (a) That the order of the subordinate court is within its jurisdiction; (b) That the case is one in which the court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate court upon questions of fact or law. " In the present case the lower Court has held the affidavit of the plaintiff of no value merely because he was a party interested in the case. As observed by their Lordships of the Calcutta High Court in I. L. R. 49 Calcutta 345 (3) (Jogendra Krishna Ray vs. Kurpal Harshi & Co.) at page 348, "there is no inflexible rule that if a party, plaintiff or defendant, gives his testimony, he must be disbelieved, because, he is a party to the suit. Such a rule, if adopted, would nullify the provisions of section 120 of the Indian Evidence Act which provides that in all civil proceedings, the parties to the suit shall be competent witnesses. When a plaintiff has deposed in support of his case, his testimony must be scrutinized in the same manner as that of any other witness and the Court is free to attach to the evidence that amount of credence which it appears to deserve, from his demeanour, deportment under cross-examination, motives to speak or hide the truth, means of knowledge, power of memory, and other tests, by which the value of a statement of witness can be ascertained, if not with absolute certainty, yet with such a reasonable amount of conviction as ought to justify a man of ordinary prudence in acting upon those statements. " As regards there being no independent corroborative evidence, that is only a fact which has to be taken into consideration in appreciating the evidence of the plaintiff. It was contended by the learned counsel for the opposite party that the plaintiff did not enter witness box and offer himself for cross-examination. The provisions of Order XIX, Rule 2, of the Code of Civil Procedure provide that evidence may be given by affidavit upon any application, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent. The affidavit made by the plaintiff was evidence on his behalf, and it lay upon the defendant; to request the court to direct the attendance of the plaintiff if he wished to cross-examine. There is no suggestion that any application was made by the defendant for this purpose. The lower Court, therefore, erred in not considering the affidavit of the plaintiff in arriving at the conclusion that it did and the Court acted in breach of the provisions of law and thereby acted illegally in exercise of its jurisdiction. There is nothing on the record to suggest that the contents of the affidavit made by the plaintiff are wrong, and it must be held that the facts mentioned in the affidavit were correct, namely, that he had gone to Tonk on some important business with the hope that he would return in time, but became ill with malaria, and was unable to attend the Court. The observation of the lower court that although it may be assumed that he was ill. yet it did not afford sufficient cause for his non-attendance is entirely wrong and perverted. If a person is down with malaria, it is obvious that he is to remain in bed, and if he moves about, it is only at great danger to his health, which no person of ordinary prudence would like to take. The last reason given by the lower court that the plaintiff did not prosecute his case with effort is a matter which could only be considered in awarding the terms on which the suit is to be restored. It was contended by the learned counsel for the opposite party that while the plaintiff may have been ill, and even if it be assumed that there was sufficient cause for his non-appearance, the plaintiff should further show why his lawyer did not attend on that date, or why the plaintiff did not engage another counsel to attend on the date of hearing. This argument is contrary to the language of the Code. What the plaintiff is required to satisfy the court is his inability to attend. If a party has engaged a counsel and if by chance both the party and the counsel are absent, the sufficiency of the cause for non-appearance of the lawyer may in some cases be availed of by the party when he has left his case entirely in the charge of the lawyer, but the converse is not true that the insufficiency of the cause for non-appearance of the lawyer disentitles the party from seeking restoration even if he shows that there was sufficient cause for his non-attendance The petition is, therefore, accepted, the order of the trial court dated the 12th of September, 1949 rejecting the petition for restoration of the suit of the plaintiff is set aside, and the suit is restored on payment of Rs. 10/- as restoration costs to the defendant. The respondent will bear the costs of this revision. .;