( 1 ) THIS is an application for restoration of a suit which was heard in part' on 5-4-1955 and disposed of on the day following.

( 2 ) THE suit was one for recovery of money lent and advanced, for interest and costs. On 6-4-1955, the suit was taken up; the plaintiff was examined-in-chief and was being cross-examined by counsel for the defendant when the Court rose for the day and the matter had to be adjourned till the next day. After the disposal of some interlocutory matters the suit was called on again on the 6th April at about 11 a. m. or shortly thereafter. Mr. De, learned counsel for the plaintiff, made a statement to Court to the effect that the plaintiff was not present to be cross-examined further. There is some dispute as to the further statement made by him. It is stated in the affidavit in opposition of Kishori Mohan Pal, the defendant, that Mr. De had stated that he did not want to proceed with the suit whereas in his affidavit-in-reply the plaintiff deposes to the effect that Mr. De had stated that the suit could not possibly go on. This latter statement is described as being based on information received by the plaintiff from his solicitor and believed to be true. 1 myself have no definite recollection as to the exact words used by learned counsel except that he hadmentioned the absence of the plaintiff and that I had passed an order dismissing the suit with costs.

( 3 ) THE plaintiff's case for restoration of the suit is that 'he had gone, to the office, of the Court Liquidator of the Calcutta National Bank Ltd. , to arrange, for production of the original cheque No. CA147005, dated 28-5-1947 drawn by the plaintiff in favour of the defendant Kishori Mohan Pal. The said Court Liquidator was served with a subpoena by the plaintiff's solicitor' on 5-4-1955, i. e. , the date when the suit was called on for hearing, to produce the said cheque and the relevant ledger book. The Court Liquidator caused to be produced on that date a certified copy of the relevant entries in the ledger of the Calcutta National Bank Ltd. , but could not produce the original cheque because the same could not be traced. The petitioner states that after the rising of the Court on 5-4-1955, he had gone to the office of the Court Liquidator to arrange for production of the said document and had been requested by the clerk in charge of the Court Liquidator to come again on the morning of the 6th April when the cheque was promised to be found, out. Accordingly the petitioner had attended at the office of the Court Liquidator on the 6th 'april at about 10-15 a. m. in order to ascertain whether the original cheque had been traced; but unfortunately the clerk in charge happened to be absent at that time. Eventually the said clerk abed up at about 10-45 a. m. and the petitioner requested him to search the records and find out the cheque and left the office of the bank. , to come to Court. It is the petitioner's case that he reached the Court premises at about 11-5-a. m. and learned, to his dismay, that in his absence the suit had been called on and dismissed with costs.

( 4 ) THE matter was' thereafter mentioned to me for being restored to the list but I declined to do so except on a formal application. A notice of motion was accordingly taken out on 26-4-1955, On 2-5-1955 this was called on when directions were given for the filing of affidavits. On behalf of the defendant an objection was ' taken at the time - I do not remember whether by the solicitor or by counsel -- that no copy of the application, as required by the provisions of Order 9 Rule 9, C. P. C. had been served on the respondent and that the affidavit in opposition would be filed subject to such objection. Thereafter the matter stood adjourned from time to time, affidavits being filed in the meanwhile;

( 5 ) THE points which were taken against the application are, first, that on 6-4-1955 there was no failure on the part of the plaintiff to appear and as such Orde