The court has inherent powers to restore a miscellaneous case dismissed for default, where there is a fraud practiced upon the court or where there is a gross mistake committed.

B.N.Jha, J.

1. One Rambilash Koeri, pre-decessor-in-interest of the opposite party, being unsuccessful at the trial, filed Title Appeal No. 101 of 1962 in the court of the District Judge, Shahabad on April 7. 1962, After the appeal became ready. September 3, 1962, was fixed for hearing of the appeal. As the learned District Judge was engaged in some other case, the appeal was adiourned to November 15. 1962 for hearing. In the meantime, the appeal was transferred to the court of Subordinate Judge. 1st court. Arrah. for favour of disposal. From November 15, 1962, the appeal was adiourned several times. On August 3, 1966, which was the date fixed for the hearing of the appeal, a petition for time was filed by the advocate of the appellant on the around that the advocate who was to argue the appeal fell ill on August 2, 1966 and he was not in a position to attend the court on August 3, 1966, the date fixed for the hearing of the appeal. From the order sheet it appears that no order on the petition for time filed on behalf of the advocate was passed. The appeal was called out but nobody turned up to argue the appeal. The lawyer for the respondent was present. Hence the court dismissed the appeal for default.

2. On August 6. 1966. Rambilash Koeri filed an application, being miscellaneous case No. 52 of 1966. for restoration of the appeal on various grounds alleged in the restoration application. Though the petition is labelled under Order 9 Rule 9 of the Code of Civil Procedure (hereinafter referred to as the Code) but in fact the application was under Order 41 Rule 19 of the Code. After several dates, the case was called out on December 2, 1967. From the ordersheet it appears that the case was called out but nobody appeared on repeated calls and the case was. therefore, dismissed for default. On December 4, 1967. Rambilash Koeri filed an application for restoration of the miscellaneous case, being miscellaneous case No. 129 of 1967. This application was verified by the applicant Rambilash Koeri and was signed by his lawyer. It was alleged in the application that the applicant, was present on December 2, 1967 from 11 A. M. till 4.30 P. M, and he had not gone out. The petitioners advocate and his clerk visited the court room several times but found the court busy in some other case. The petitioners advocate and his clerk requested the bench clerk. Shri Umar Mian, at about 1 P. M, to set the case heard. The bench clerk asked them to come at 3 P. M. Both of them came to court at 3 P. M, as desired by the bench clerk and waited there for about half an hour but the case could not be taken up.

In the cause list, however, which was hung at about 4.30 P. M. the petitioners advocates clerk noticed that the case had been shown as dismissed for default. The petitioner, thereafter, went to the court who was sitting at that time and complained that the case had not been called out and although he was waiting there from 11 A. M. till then vet the case had been dismissed for default. The other allegation was that the case was not shown on the cause list of December 2, 1967, or on the earlier date i.e. on November 10. 1967. Subsequently thereafter, Rambilash Koeri died and his heirs who are opposite party here were substituted in his place.

3. At the hearing of the application two witnesses (i) the clerk of the advocate and (ii) the widow of Rambilash Koeri were examined in support of the allegations made in the restoration, application. The learned Subordinate Judge found the allegations made in the restoration application to be correct. Before him it was however, canvassed that the application for restoration was not maintainable in law and reliance was placed on a Full Bench decision of this Court in Doma Choudhary V/s. Ram Naresh Lal AIR 1959 Pat 121. But having considered the evidence and the circumstances of the case, the learned Subordinate Judge felt that the court should exercise its inherent powers in the ends of justice in this c