( 1 ) THIS is an application by the plaintiff (here inafter referred to as appplicant) under Section 151 Civil Procedure Code for the restoration of the suit which was dismissed in default vide order dated 25. 9. 1991 by this Court. It is supported by an affidavit.

( 2 ) THE case of the plaintiff is that counsel for the plaintiff, Mr. Amit S. Chandha could not appear before the Court as he was busy in some other court. Consequently, the case was called out and dismissed in default in his absence.

( 3 ) DEFENDANT No. 2 (hereinafter referred to as opposite party for the sake of the convenience) has resisted the case of the applicant, inter alia, on the follwoing grounds: that the present application is false and frivolous. It is liable to be dismissed. The application is not maintainable inasmuchas the counsel for the applicant expressed his inability to file replication or to admit or deny the documents put forward by defendant No. 2 on 14. 8. 1992 and 23. 9. 1991 on the ground that he had no instructions, and therefore wanted to withdraw from the suit. The application is not supported by an affidavit sworn by the counsel for the applicant. A clerk of the counsel is not competent enough to swear an affidavit on behalf of a counsel. The reply is supported by an affidavit sworn by Brg-Anil Sahni, defendant No. 2.

( 4 ) I have heard the learned counsel for the applicant, Mrs. Swaran Mahajan and Mr. Ishwar Sahai, learned counsel for the opposite party at sufficient lenght and have very carefully examined the facts of the case and have given my anxious thoughts thereto.

( 5 ) IT is a well established principle of law that an application under Order 9 Rule 9 of the Civil Procedure Code must show a sufficient ground for setting aside the dismissal of the suit, which was dismissed in default of the plaintiff under Order 9 Rule 8 of the CPC.

( 6 ) A perusal of the record reveals that the applicant sought time to file a replication vide order dated 13. 12. 1990 and two weeks time was granted to file the same and the case was adjourned to 4. 3. 1991. Counsel for the plaintiff on 4. 3. 1991 again sought time to file the replication. A final opportunity to file the same was granted on payment of Rs. 1,000. 00 as costs and the case was adjourned to 2nd May, 1991. On 2. 5. 1991 the counsel for the plaintiff again sought an adjournment to file the replication. The court granted eight weeks time to do so. The case was adjourned to 14. 8. 1991 for admission and denial of the documents and the same was listed before the Deputy Registrar on that date. Counsel for the applicant appeared before the Deputy Registrar on 14. 8. 1991 and made a statement before him that he had not received any instructions from the plaintiff and he was likely to withdraw from the case and he had sent a notice to the plainttiff in connection therewith. The Deputy Registrar thereupon adjourned the case to 23. 9. 1991. Mr. Amit S. Chadha who was representing the applicant again made a statement before the Deputy Registrar on 23. 9. 1991 that as per the information conveyed to him by the wife of the plaintiff, the plaintiff was sttuck up in Canada and as such he has not been able to contact him or to give instructions. He thereupon expressed his inability to proceed with the suit for want of instructions. It was in the above circumstances, that the case was ordered to be listed before the Court on 25. 9. 1991.

( 7 ) IT is fully manifest from a brief resume of the facts of the present case given above that Mr. Amit S. Chadha gave vent to his inability to proceed with the present suit for want of instructions from the applicant vide order dated 23. 9. 1991. It was in the above circumstances, that the Deputy Registrar passed an order with the direction that the present case be listed before the Court on 25. 9. 1991. None appeared for and on behalf of the applicant before the Court on 25. 9. 1991 though the Court waited for the applicant and his counsel to appe