ORDER :

1. This appeal has been preferred by the plaintiff under Order 43 Rule 1(c) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) questioning the legality and propriety of the order dated 01.12.2022 passed by the 2nd Additional District Judge, Ambikapur, District Surguja in Miscellaneous Civil Case No.43/2019, whereby the application filed by the plaintiff under Order 9 Rule 9 CPC seeking restoration of his suit, has been rejected. The parties shall be referred as per their descriptions before the Court below.

2. Briefly stated the facts of the case are that a suit was instituted by the plaintiff on 05.02.2016 registered as Civil Suit No.13-A/2016, by submitting inter alia that the land bearing Khasra No.259 was recorded as forest land and the father of the defendant No.4 namely Vishwanath Soni was in possession over 7 & ½ decimal of it while constructing a house and, remaining of its portion was utilized by him for the agricultural purposes. It is pleaded further that a survey was made by the Revenue Authorities, wherein it was found that the father of the said defendant was in possession over two acres of said Khasra No.259 along with other persons and subsequently, the said property was re-numbered as Khasra No.259/17 and that for its allotment, a notification dated 11.08.2016 was issued while inviting objection in this regard. Further contention of the plaintiff was that he purchased the land in question bearing Khasra No.259/17 from the defendant No.4 by paying sale consideration of Rs.80,000/- and was in possession thereof since then and as the defendants No.1 to 3 have issued a notice for his eviction, therefore, he has been constrained to institute a suit in the instant nature claiming issuance of permanent injunction against the said defendants from interference of his peaceful possession.

3. The aforesaid claim was registered on 05.02.2016 and, thereafter, a notice was directed to be issued to the defendants while fixing the case on 08.03.2016. It appears further that the matter was listed from time to time and vide order dated 06.12.2017, it was directed to be listed on 19.01.2018 for plaintiff’s evidence and on the said date, the suit was dismissed for non prosecution as neither the plaintiff nor his counsel was appeared.

4. For restoration of the suit to its original number, an application was made by the plaintiff under Order 9 Rule 9 of CPC by submitting inter alia, that he was suffering from jaundice at the relevant point of time and was taking treatment from local doctors at Ambikapur and could recover from his illness on 30.01.2018. It is contended further that owing to the said disease, his movement was restricted completely, due to which, neither he could appear before the Court nor could have intimated to his counsel and in support of his contention, a medical certificate to this effect was placed on record.

5. In reply to the aforesaid application, it was pleaded by defendants that a false medical certificate has been prepared while creating a fictitious cause of his illness and since he was negligent in prosecuting the suit, therefore, the application deserves to be rejected.

6. The trial Court after considering the said application observed in its order impugned that the plaintiff in order to establish his alleged disease has failed to produce any medical certificate, therefore, it cannot be said that due to the said cause, he failed to appear before the Court on 19.01.2018 and, accordingly refused to restore the suit to its original number. This is the order which has been impugned by way of preferring this appeal.

7. Learned counsel appearing for the appellant/plaintiff submits that the finding of the Court below holding that the medical certificate in support of his treatment and/or illness for his non-appearance on 19.01.2018 has not been placed on record, is apparently contrary to the materials available on record. It is contended by him that the medical certificate ha