Sanjay K. Agrawal, J.

1. This appeal is directed against the order dated 10-7-2006 passed by First Additional District Judge, Mahasamund, C.G. in M.J.C. No. 18 of 2003 by which appellant's/ plaintiff's application under Order 9, Rule 9 read with Section 151 of the Code of Civil Procedure (in short CPC) for setting aside of the dismissal of the suit has been rejected by the trial Court.

The facts necessary for adjudication of this appeal are as under:

1.1 The appellant's/plaintiff's suit for declaration and permanent injunction restraining respondent/defendant from recovering the amount was fixed for final hearing on 28-2-2013. On the said date, suit was dismissed for want of prosecution as appellant/plaintiff and her counsel, both were absent. Appellant's/plaintiff's application for restoration of the suit filed under Order 9, Rule 9 read with S. 151, C.P.C. was also rejected by the trial Court holding that no sufficient cause has been shown by the appellant/plaintiff, when the case was called up for hearing.

1.2 Appellant/plaintiff filed an application under Order 9, Rule 9 read with S. 151, C.P.C. on 3-3-2003 pleading inter alia that the case was fixed on 28-2-2003 for final arguments. On the said date, counsel instructed her not to come personally and also her counsel could not appear, as he fell sick. Therefore, neither she nor her counsel-Mr. Shailendra Tiwari could appear, when the case was called up for hearing leading to dismissal of the suit. It was further pleaded that she being the widow, aged about 65 years could not get information with regard to sickness/illness of her counsel and her son Indrajeet Singh though present in the Court, premises could not came to know about his counsel's illness. In the later part of the day, her son Indrajeet Singh contacted on phone to his counsel-Mr. Shailendra Tiwari has not come to know that his suit had already been dismissed. The said application was supported by an affidavit of the appellant/plaintiff herself and prayer was made for restoration of the suit in its original number.

1.3 Respondent/defendant-Nagar Palika Parishad filed its reply opposing the application for restoration and pleaded that for non-appearance on 28-2-2003, dismissal of the suit is justified, as the appellant/plaintiff has not shown sufficient cause for non-appearance, when the suit was called up for hearing on 28-2-2003.

2. Mr. Anand Kumar Gupta, learned counsel appearing for the appellant/plaintiff would submit that on 28-2-2003 case was fixed for final hearing and on instruction of her counsel, she has sent her son Shri Indrajeet Singh to the Court as her personal presence was not required, but on the said date her counsel Shri Shailendra Tiwari stationed at Bagbahara became sick could not come to the Court. He would further submit that the appellant/plaintiff is a widow, aged about 65 years and filed the application within 4 days of the dismissal of the suit; the trial Court ought to have adopted liberal approach in considering her application for restoration and rejection of her application is bad in law.

3. On the other hand, Mr. Pawan Kesharwani, learned counsel for the respondent/ defendant opposed the appeal and supported the order impugned.

4. I Have heard learned counsel for the parties and considered the rival submission made therein and perused the record of the Claims Tribunal.

5. Order 9, Rule 9, C.P.C. provides as under:

Rule 9. Decree against plaintiff by default bars fresh suit.--(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

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