1. This is an application on behalf of the plaintiffs asking that a suit which was dismissed on 5th April 1937 by Lort-Williams J. be restored and heard on the merits. The case raises one or two interesting points and the circumstances are somewhat out of the ordinary. The plaintiffs in the suit at a late stage applied for the issue of a commission. The learned Judge who heard the application was willing to order a commission on terms, but he made it clear that this was not to delay the hearing of the suit. In other words, the plaintiffs took the risk of the commission's evidence not having been Completed when the suit came to be heard. When the suit was called on, the position was that the commission had not been executed, and it is said that the plaintiffs were not responsible for this but were the victims of circumstance, because the preparation of the necessary documents in the Court office was delayed owing to the fact that work had been suspended during certain public holidays.
2. Learned Counsel for the plaintiffs, when the suit was called on, applied for an adjournment, in order that he might be in a position to tender the commission evidence after the commission had been executed. Lort-Williams J. refused this application. Thereupon counsel stated that he was not in a position to proceed. This suit was accordingly dismissed. It is contended that in these circumstances the dismissal was a dismissal by decree and not a dismissal by order. The importance of this is that unless the suit was dismissed by order under Order 9, Rule 8, the Court cannot restore it under Order 9, Rule 9 (1). Rule 8 only applies where the defendant appears and the plaintiff does not appear when the suit is called on for hearing. If these words are read in their strict con-notation, it is clear the conditions of Rule 8 were not fulfilled, because the plaintiff's counsel was present and asked for an adjournment. It has however been held in many oases, for example in Satish Chandra Mukerjee v. Ahara Prosad Mukerjee (1907) 84 Cal 403, that if the plaintiff's counsel confines himself to asking for an adjournment and, when it is refused, retires from the case and states that he has no further instructions, Rule 8 applies, and that the plaintiff will not be held to have appeared. In my opinion that exact language used by counsel is not of great importance and one must look at all the circumstances to see in any particular case whether counsel retired from the case so as not to prejudice his client by appearing, or whether he, for reasons which commended them-selves to him, abandoned his claim in the suit. If it were necessary for me to decide this question, I should be inclined to say that in the present case counsel realized that the absence of the commission evidence was an insuperable obstacle in his way, and therefore considered that no good purpose would be served by carrying matters any further.
3. Apart from this however, it appears to me that on the merits the application must fail because in my opinion in an application for restoration under Order 9, Rule 9, the plaintiff must show some fact which was either not known to the Court when it dismissed the suit, or at least at that stage lacked satisfactory proof. Now, in the case before me, all the facts were before Lort-Williams J. when he refused the application for adjournment. Nothing new has come to light which can, in the words of Order 9, Rule 9, possibly be called sufficient cause for the non-appearance of the plaintiffs'. What I am really asked to do is to say that if I had been trying the ease I would have exercised my discretion in a different way, and would have granted the adjournment which the plaintiffs prayed. Obviously these considerations are not such as fall within the purview of Order 9, Rule 9 in terms of which I am asked to restore the suit. This being so the plaintiffs' application fails and it must be dismissed with costs.