A plaintiff seeking to restore a suit dismissed for default must establish sufficient cause for the non-appearance, and the court should consider the plaintiff's overall conduct in the suit, including prior attendance and diligence, when making this determination.

A. K. Sinha, J.

1. This Miscellaneous (First Appeal) and the Civil Revision both are directed against the order dated 25-5-1983, passed in Misc. Case No.51 of 1982 by the learned lld Subordinate Judge, Patna, refusing to restore money Suit No.4 of 1981 which was dismissed for default on 27-7-1982.

2. The present miscellaneous appeal and the civil revisional application both are by the plaintiff.

3. The aforesaid Money Suit (4 of 1981) having been dismissed for default on 27-7-1982, the plaintiff/appellant-petitioner, on 7-8-1982, filed an application under Order IX Rule 9 of the Code of Civil Procedure (hereinafter to be referred as the code) read with Sec.151 of the Code. This was registered as Misc. Case No.51 of 1982.

4. The court below, on 25-5-1983 dismissed the miscellaneous case and refused to restore the suit.

5. By way of abundant precaution, as the application by the plaintiff/ appellant was also labelled under Sec.16 of the Code, the present civil revisional application has also been filed. However, the learned counsel for the appellant/petitioner states that he does not press the civil revisional application. Accordingly, the civil revisional application is dismissed as not pressed. It will be petinent to note here that the learned counsel for respondent No.1 conceded that as the impugned order is under Order IX, Rule 9 of the Code the present miscellaneous appeal was very much maintainable. Thus the present miscellaneous appeal is being disposed of as follows:

6. The learned counsel for the appellant submitted that a mere look at the order-sheet maintained in the suit would show that the plaintiff had always been present on all dates prior to 27-7-1982 and had never been negligent/careless ; rather the order sheet in the suit would show that the plaintiff had although been diligent. The learned counsel for the appellant further submitted that the issues having been settled on 20-7-1982, 27 7-19s2 was fixed (by the court) on 20-7-1982 as the very first date of hearing on which the suit was dismissed for default for non-appearance of the plaintiff. The learned counsel submitted that the non-appearance of the plaintiff/appellant on 27--7-1982 the very first date fixed for hearing) was a bona fide one under a mistaken notion that on 20-7-1982 the date fixed for first hearing was 20-8-1982. The learned counsel submitted that the plaintiff having been so careful and diligent although right from the filing of the suit up to the date of settlement of issues, there could be no reason for having any latches or negligence or carelessness on the part of the plaintiff to absent himself on the very first day of hearing ; in that view of the matter the learned counsel for the appellant submitted that there being no gross negligence or gross carelessness on the part of the plaintiff, the court below has committed illegality in refusing to restore the suit. The learned counsel for the appellant submitted that a mere perusal of the order-sheet maintained in the suit was enough to show that the plaintiffs failure to appear in the suit on 27-7-1982 (the very first date fixed for hearing) was not due to any desire to cause delay and the non-appearance on one day and on the very first day of hearing was really, on the facts of the present case, a bona fide one.

7. Respondent Nos.1 and 2 have engaged separate counsel and both the learned counsel have addressed the court separately. According to the common submission advanced on behalf of the respondents, the plaintiff having failed to establish sufficiency of cause for non-appearance on 27-7-1982 (the first date fixed for hearing) and the oral e -. idence adduced by the plaintiff, in support of its cause, being insufficient in the eye of law to prove the cause shown by the plaintiff ; the court below very correctly refused to restore the suit. The learned counsel for the respondents submitted that the court below having considered the evidences (oral and documentary) adduced by