The sufficiency of cause for non-appearance and the exercise of inherent powers under sec. 151 must be clearly decided in restoration cases under Or. 9, r. 9.

JUDGMENT

Roxburgh, J. - This Rule has been obtained by the Defendant No. 1 in a suit before the Special Subordinate Judge, Assam Valley Districts, and is against an order passed by him restoring a case against the Defendants which was dismissed for default under Or. 9, r. 8 of the CPC on the 9th January, 1943. In restoring the case, the learned Judge remarked,-

So far as I have seen, the Plaintiffs had no sufficient cause that prevented them from appearing in Court on the 9th January, 1943, but the statement in para 8 of the w. s. of the Defendant No. 1 is 'that the Plaintiffs are therefore entitled to recover only this Defendant's share of liability under the mortgage, and not the whole amount as claimed.

2. He then further discusses some points in the written statement of Defendant No. 1, and mentions that the claim of Rs. 70,000 was based on a mortgage bond executed by Defendant No. 1 and two others whose heirs were co-Defendants with Defendant No. 1. He remarks that the execution of the mortgage deed was not denied by Defendant No. 1, and the receipt of the consideration therein was also not denied, and notes that the right to sue on the mortgage deed on the face of it concerned the Plaintiff No. 1 at least, on the death of his father, and the question of the right of the remaining three Plaintiffs to sue was to be decided on the merits. He then concludes,

In view of the said statements of the Defendant No. 1 in the para 8 of his w. s. and for the ends of justice I grant the revival petition. The dismissal order is set aside and the suit is restored to the file.

3. In the order of dismissal passed on the 9th January, 1943, it was stated:

There was an issue as regards the Plaintiffs' right to sue as to whom (sic) has the right to realise the mortgage dues accrued. The Plaintiffs have not charged that burden in this respect. The defence denies the claim of the suit which in therefore dismissed with costs.

4. Dr. Basak. appearing on behalf of the Petitioner, contends on the authority of three cases of this Court, Haridas Mukherjee v. Bejoy Krishna Das 34 C. W. N. 222 (1929), K.B. Dutt v. Shamsuddin Shah Shaheb 34 C. W. N. 419 (1930) and Serajul Haque v. Kashim Ali Khairati 39 C. W. N. 894 (1935), (all cases under Or. 9, r. 13 of the Code of Civil Procedure) that the Court in exercising powers under Or. 9, r. 9 of the CPC cannot restore a case if it does not find that the Plaintiff has, within the terms of that rule, shown that "there was sufficient cause for his non-appearance when the suit was called on for hearing." It is to be noticed that the learned Judge has not clearly and specifically found that the Plaintiffs in the present case had not sufficient cause. In one sentence, the learned Judge has remarked that so far as he has seen, there was no such cause and then he continues to deal with the merits of the case itself and the matter of the Defendant's written statement. The learned Judge appears to have allowed the Plaintiffs' prayer on somewhat rather general and vague grounds, including the view that the cause shown was possibly inadequate and without clearly finding whether this was so or not. On the other hand, it is not very clear as to what the learned Judge intended by his discussion of the written statement of the Defendant No. 1. Under Or. 9, r. 8 of the Code of Civil Procedure, the Court shall, if there is an admission by the Defendant of the Plaintiff's claim make a decree upon such admission. We do not think that in the present case, the learned Judge really intended to take the written statement as amounting to an admission of the kind which should have properly compelled him to pass a decree, but the matter is certainly somewhat obscure, and it may be that it was the learned Judge's view that there was such an admission, and if that be the case, his procedure in restoring the case was obviously incorrect. If he clearly found that the Plaintiffs had no sufficient cause for non-appearance, he should have rejected