Karamat Husain and Tudball, JJ.
1. This is an appeal from an order refusing to re-instate a suit dismissed for default of appearance by the plaintiffs under Order IX, Rule 8. The suit is one in respect to a trust by certain trustees against a co-trustee who is charged with the management of the property.
2. The lower court rejected the application for rehearing on the ground that sufficient cause had not been shown. The facts briefly are as follows. The suit was partly heard. One of the plaintiffs had been examined and the suit adjourned to enable the other plaintiff to appear for examination. Two of the leading pleaders were appearing for them. One of these gentlemen and also the pleader for the opposite party are members of the Municipal Board of Cawnpore and on the date fixed were late in attending court owing to a meeting of the Board. The other pleader for the plaintiff represented this to the Court early in the day and the Judge consented to taking the case at 12 o'clock. The pleader, however, misunderstood what the Judge said and thought that the case would be taken up at 2 o'clock. He informed the plaintiffs accordingly, and the same information was conveyed to their other pleader on his arrival. As a result, when the case was called at 12 o'clock, both pleaders were engaged in other eases in other courts. The case was called repeatedly and the court waited for 20 minutes. One of the plaintiffs was waiting in his pleader's room. It is inconceivable that he did not hear the case called. Finally at 12-20 p.m., when no one appeared, the Court dismissed the suit under Order IX, Rule 8.
3. On their application for restoration the plaintiffs pleaded that they had not heard the calling of the case and placed before the court the misunderstanding into which their pleader had fallen. As a matter of fact it is admitted that the calling was heard, but too late, to enable the plaintiffs to appear in person. They arrived just after the case had been dismissed.
4. It is highly probable that, like most litigants in these provinces, they were unwilling to enter the court without their pleaders both of whom were at that time unable to leave the cases in which they were engaged.
5. The lower court has held that there was not sufficient cause for non-appearance and has rejected the application for restoration. In the course of his order the learned Judge made comments the plaintiffs' case so far as it had been placed before him.
6. On appeal, we are asked to hold that there was sufficient cause. While we think that it might be difficult to hold that there was. sufficient cause in view of the fact that the case was actually called and repeatedly called for 20 minutes in the manner in which cases are called in Mofussil courts both within the court room and outside the court room, so that persons in attendance in the court compound were sure to hear, we are of opinion that the case is one of those in which the court may exercise its inherent powers of passing orders necessary for the ends of justice. Nothing in the Code of Civil Procedure can limit or otherwise affect such powers under which, in our opinion, a court can restore such a case as this on grounds other than sufficient cause for non-appearance. Order IX, Rule 9, makes it compulsory on a court to set aside a dismissal under Order IX, Rule 8, where the plaintiff satisfies the court that there was sufficient cause for non-appearance. It, however, cannot take away the court's power to restore the case for any other valid reason.
7. In the present case, it was no doubt foolish of the appellants not to have gone into court and asked for more time to enable them to secure the attendance of their pleaders, but at the time it is clear that they were pressing their suit and had attended court for that purpose, and the court might well have acceded to their request, passing a suitable order as to costs.
8. We, therefore, allow this appeal and set aside the order of dismissal of the suit, which the lower court will restore to its file and proceed to take up again at the point to which it had arrived when the order of dismissal was passed. The appellants will, however, whatever the result of their suit, bear their own costs of the application under Order IX, Rule 9, and of this appeal. In no case will these be recoverable from the respondent. The costs of the latter in this matter will abide the result of the suit.