U P METAL MILLS Vs. SAGAR MAL

JUDGEMENT

(1.) This is an application under Section 115 of the Code of Code of Civil Procedure against an order of the court below restoring a suit. The facts are these. On 17-1-1950, the case was adjourned at the instance of the Plaintiff on the ground that his evidence was not in attendance. On the adjourned date, namely, 21-2-1950, the Plaintiff was found absent and his counsel stated that he had no instructions. The Defendants and their counsel were present. The court, therefore, "dismissed the suit for default of the Plaintiff" with costs to the Defendants. The Plaintiff applied for restoration of the suit under the provisions of Order 9, Rule 9 of the Code. The plea taken by the other side was to the effect that the judgment of 21-2-1950 was a decision on merits and that no application for restoration lay. The court below observed that the order dated 17-1-1950 was passed in the presence of the parties and their counsel and a note of that order must be imputed to the Plaintiff, but the Plaintiff could possibly have been misled by a wrong entry in the Suits Clerk's register which indicated that the suit was listed for final hearing of 21-1-1950, information of which was given to him by his counsel, and that although the Plaintiff may be said to have been negligent in not having presented himself on 21-2-1950 and in not noting the date fixed in the case, the principles of justice and equity required; that the suit ought to be restored and heard.

(2.) The only point which has been urged before me in revision is that the case fell under Order 17 Rule 3 of the Code and not under Order 17, Rule 2 and consequently Order 9 Rule 9 did not apply. Order 17 Rule 2 as amended by this Court stands as follows:

(3.) Order 17, Rule 3 of the Code as amended by this Court reads as follows: