KAMALESWAR DAS AND ORS. Vs. GOPINATH DEB GOSWAMI AND ANR.

JUDGEMENT

(1.) THIS petition of revision arises out of an order for restoration of a suit which had been dismissed in default.

(2.) THE suit was for recovery of a sum of Rs. 8690 by sale of the mortgaged property it was instituted in 1944. The issues were framed in May 1945. The case came up for hearing on 17 -4 -1947. On that date, the counsel for the plaintiff put in an application for adjournment on the ground of illness of the plaintiff. The application for adjournment was rejected and the suit was dismissed for default by the learned Additional Subordinate Judge, A.V.D. The learned Judge observed in the order that the application for adjournment was supported by a medical certificate and that on this basis Anr. suit of the plaintiff had been adjourned on 11 -4 -1947. He, however, rejected the petition for adjournment on the ground that if he was ill even after 11 -4 -1947, he should have applied to have his evidence taken on commission. As he had not taken appropriate steps for the prosecution of the suit, he was held disentitled to the indulgence claimed. The counsel for the plaintiff who has applied for adjournment retired from the case. The Court then dismissed it for default.

(3.) THE learned Counsel for the petitioners concedes that the suit was dismissed for plaintiff's default. The plaintiff had the right to apply for restoration of the suit under Order 9, Rule 9, Civil P.C., and the trial Court had jurisdiction to restore the suit if sufficient cause for non -appearance was shown. He challenges the order on the strength of Baij Nath v. Kedar Nath : A.I.R. 1938 Cal. 74 which holds that