1. This is an application for revision by the defendant in a suit which was dismissed by the lower Court for non-appearance of the plaintiff but subsequently restored on an application purporting to be one under Order 9, Civil P.C. It appears that the case was fixed for final disposal on 2nd March 1932, when it was called but the plaintiff was found to be absent. His pleader appeared and represented that he could not lead evidence in the absence of the plaintiff himself. He however offered to argue the questions of law arising in the case. The learned Munsif recorded the evidence of one witness of the defendant but dismissed the plaintiff's suit 'for default of the plaintiff.' On 1st April 1932, the plaintiff presented an application at 4-30 p. m., for restoration of the suit. In support of the application an affidavit was filed showing the circumstances in which the plaintiff was absent on 2nd March 1932. It was alleged that he had gone to fetch his witnesses and was delayed by circumstances which are detailed in the affidavit.
2. The learned Munsif has expressed no opinion as regards the truth or otherwise of the allegations made in the affidavit. The major part of his order setting aside the order of dismissal is devoted to the question whether the plaintiff's application for restoration should be considered time-barred, having been presented after 4 p. m. He held for reasons, which it is not necessary to detail that the application for restoration when presented to the Court at 4-30 p. m., should be considered to have been made within 30 days after the date of dismissal of the suit. The only other question which he considered was whether the plaintiff should be deemed to have made default in appearance inspite of the presence of his pleader. The learned Munsif held that in view of the plaintiff's pleader having expressed Ms inability to proceed with the suit except so far as to argue the questions of law arising in the case, the case was one in which no appearance could be considered to have been made on behalf of the plaintiff. Accordingly he set aside the order of dismissal.
3. In revision it is contended on behalf of the defendant that the learned Munsif had no jurisdiction to restore the suit under Order 9, Rule 9, Civil P.C, inasmuch as the plaintiff's pleader was present in Court on 2nd March 1932 and offered to argue the questions of law arising in the case. Reference is made to Order 17, Rule 2, explanation, and to the case of Manmohan Das v. Krishna Kant Malaviya : AIR1933All41 in which the plaintiff's pleader had appeared to make an application for adjournment which was disallowed and stated that he had no further instruction. Thereupon the Court dismissed the suit. It was held by a Bench of this Court that in view of the explanation to Order 17, Rule 2, the case could not be considered to be one in which no appearance had been made on behalf of the plaintiff and that the suit could not be deemed to have been dismissed in default of appearance. It was pointed out that the proper procedure for the Court was to dispose of the suit before it on the merits. The learned Judges held accordingly that no application for restoration of the suit could properly be made under Order 9, Rule 9, Civil P.C. It was observed that the proper remedy for the plaintiff was either to appeal from the decree passed by the Court or to apply for review under Order 47, Civil P.C.
4. We think that the contentions put forward by the learned advocate for the defendant-applicant are sound. At the same time we are of opinion that the order of 2nd March 1932 dismissing the plaintiff's suit in default of appearance was not justified. Indeed, this is the main criticism on which the argument of the learned advocate is based. He argues, and in our opinion rightly, that the proper procedure for the Munsif was not to dismiss the suit for the supposed non-appearance of the plaintiff but to proceed to record findings, on issues arising in the case, on such materials as he had before; him on 2nd March 1932. He erroneously treated the case to be one in which no appearance had been put in on behalf of the plaintiff. Subsequently when an application for restoration was made he treated the case on the same footing and restored it under Order 9, Rule 9. We are of opinion that if the erroneous order passed by the Munsif on 30th April 1932 restoring the case is to be set aside by this Court in the exercise of its revisional power, it is but logical that the order of 2nd March 1932, dismissing the plaintiff's suit for supposed non-appearance of the plaintiff should also be set aside. We think that in passing both the aforesaid orders. the Munsif acted illegally in the exercise of his jurisdiction and that the same should be set aside. The result will be that the suit shall be re-opened and proceeded with according to law. It will, of course, be open to the Munsif either to decide it on the materials as they existed on 2nd March 1932, or to allow the parties to adduce more evidence in the case.
5. For the reasons and in the circumstances mentioned above, we set-aside the order of' dismissal dated 2nd March 1932 and the order of restoration of 30th April 1932 and remand the case to the lower Court with the direction that it may dispose of according to law. The applicant shall have his costs from the opposite party.