A court has the power to restore a case dismissed for default if it is satisfied that the default was not willful or negligent and that the party seeking restoration has a good case on the merits.

( 1 ) -THIS application under section 115 CPC is directed against an order passed by the learned Munsif, 2nd court on 15. 9. 94 in J. Misc. Case 10 of 1993 restoring J. Misc. Case 12 of 1991.

( 2 ) THE opposite party filed the J. Misc. case 12 of 1991 claiming pre-emption under section 8 of the West Bengal Land Reforms Act. The said Misc. case was fixed for final hearing on 18. 3. 93. On that date, the Misc. case was dismissed for default by order No. 18 dated 18. 3. 93 which reads as under:"both parties file hajira. Today is fixed for P. H. Learned lawyer for the plaintiff stated before me in open court that he has no instruction from his client except it. Plaintiff is absent on repeated calls. So the case is liable to be dismissed. It is now 11-00 a. m. Hence, it is ordered that the misc. case be and the same is dismissed for default. "

( 3 ) THE opposite party filed on 20. 3. 93 an application supported by affidavit under Order 9 Rule 9 CPC praying for setting aside of the aforesaid order of dismissal of the application for pre-emption and for the restoration thereof and the said application was registered as J. Misc. Case No. 10 of 1993.

( 4 ) THE opposite party's case made out in the application may be stated as follows. The pre-emptor after filing hazira before the court was ready for hearing of the misc. case. He was waiting for the call but the court did not make any call in connexion with the hearing of the case upto 4 p. m. and when he approached his moharaj to know the next date of the case, he came to learn that the said misc. case was already dismissed. He then brought it to the notice of his advocate who pleaded his ignorance about such dismissal. His advocate through whom he filed the hazira in court had full instructions from him and did not make any submission before the court that he had no instructions as recorded in the order of dismissal. Such submission regarding want of instructions might have been made by some other lawyer and not by the lawyer who was at the material point time conducting the case on behalf of the pre-emptor. The pre-emptor was waiting outside the court room for call on that particular day from 10-30 a. m. to 4 p. m. Had it been called, the pre-emptor would have called his advocate and got ready for hearing. The misc. case was dismissed not for any latches or negligence on the part of the pre-emptor opposite party.

( 5 ) THE pre-emptee petitioner opposed this application for setting aside the dismissal order on filing a written objection contending, inter alia, that the allegations are directed against the court which are totally false and baseless and as such the application is not liable to be restored. It has been contended, inter alia, that the pre-emptor's advocate was Hrisikesh Giri who is the President of Pleaders' Bar Association and his law clerk was Sital Chandra Samanta. Although the Pre-emptor, O. P's hazira was there, he was not found present in court by the present petitioner till 11-30 a. m. on 18. 3. 93. After 11-30 a. m, this petitioner left for his home knowing that the Misc. case was dismissed. The case was repeatedly called on from 10. 30 a. m. through court peon but in spite of such calls the pre-emptor was not present nor did he respond to the call whereupon the court through its peon sent for the pre-emptor's advocate who appeared and in open court submitted that he had no instructions from the pre-emptor and it was under these circumstances that the order of dismissal was passed. The pre-emptor has not come with clean hands and the application is liable to be rejected with costs.

( 6 ) BOTH parties examined themselves as witnesses for and against their respective cases. The pre-emptor asserted that on the date fixed for hearing he filed his hazira and was present. He claims that he was waiting outside the court room and did not hear any call. After the court hours, he came to know that his case had been dismissed for default. According to hi