The High Court does not have jurisdiction to interfere with an order of the trial court restoring a suit under Order IX, Rule 9, Civil Procedure Code, even if the trial court erred in finding that there was sufficient cause for the non-appearance of the plaintiffs.

This civil revision is direct­ed against an order passed by the learned Munsiff, Gauhati, restoring to file the plain­tiffs' suit which was earlier dismissed for de­fault of the plaintiffs.

2. The plaintiffs are one Ganpat Rai Seraugi, Ratanlal Seraugi and a minor Bhagchand Seraugi represented by his father Chandmal Seraugi. The plaintiffs were absent on the date fixed for hearing and the suit was dismissed for their default. Thereafter they filed an application under Order IX, Rule 9 of the Civil Procedure Code for restoration of the suit and in spite of objection by the defendant the suit was restored. Hence this revision.

3. The learned Munsiff found that the ground of illness of plaintiff No. 1 was not established and that plaintiff No. 2 was a student and prosecuting his studies in Jai­pur (Rajasthan). It was alleged by the plaintiffs that the plaintiff No. 3 being a minor was represented by the next friend who was away in Rajasthan and hence there was sufficient cause for his not appearing in court on the date of hearing. The learned Munsiff did not consider Chandmal Seraugi's absence in Rajasthan to be sufficient cause for his non-appearance. All the same the Court having found that the interest of the minor has suffered for the negligence of his next friend, it was held to be a sufficient ground for restoration of the suit. Since the minor's interest is interlinked with the others, the whole suit was restored.

4. Mr. Das, the learned counsel for the petitioner submits that the Court having held that there was no sufficient ground for restoring the suit in regard to plaintiffs 1 and 2, had no jurisdiction under Order IX, Rule 9 to restore the entire suit on the ground that the interest of the minor has suffered for negligence of his next friend. The learned Advocate-General, Assam, sub­mitted that this application under Sec. 115, Civil Procedure Code is not maintainable as there is no error of jurisdiction when the learned Munsiff held that there was suffi­cient ground for restoration of the suit. Mr. Das, on the other hand, submitted that since according to the learned Munsiff there was no sufficient cause and the particular cause given by him is not 'sufficient cause' within the meaning of Order IX, Rule 9, the learned Munsiff had no jurisdiction to res­tore the suit. In support of this submis­sion, Mr. Das relied upon several decisions of the High Court. He drew my attention to the decision in Vaithilinge Naidu v. Devanai Ammal, AIR 1949 Mad 46 and relied on the following passage:

"If the non-appearance of the next friend is bona fide or in other words for rea­sons which would be held to constitute suffi­cient cause if he were conducting his own suit there is no controversy that Order 9, Rule 9 can be invoked on behalf of the minor plaintiff.

If the non-appearance of the next friend is the result or collusion between him and the defendant or if lie next friend as­sumes, for whatever reason, an attitude of hostility against the minor plaintiff and con­sequently refrains from appearing there may be "sufficient cause" for the restoration of the suit. (Paras 12 and 13)

"Where a next friend is negligent or deliberately obstructive and the suit is dis­missed for his non-appearance there is, in our opinion, no sufficient cause for such non-appearance within the meaning of Order 9, Rule 9 and therefore no ground for restoration", (Para 14)

5. The learned Advocate-General, on the other hand, relied upon Venkatara-mayya v. Prakasa Rao, AIR 1957 Andh Pra 293, which is in agreement with the earliest Calcutta decision on the question in Kesho Pershad v. Hirday Narain, (1880) 6 Cal LR 69, and reads the following passage:

'In our opinion, where the Court is satisfied that the guardian has in not making his appearance neglected his duty to his ward as well as to the Court, it is incum­bent upon the Court to protect the interests of the minor from, the consequence of such negligence. The suit must be restored or the ex parte decree set aside

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