The court's discretion under Order 9 Rule 4 CPC to restore a suit dismissed for default must be exercised judicially, taking into account all relevant circumstances, including the plaintiff's efforts to prosecute the suit and the defendants' interest in the matter.

This is plaintiffs application which challenges validity of the order passed on 21-12-1981 by the trial Court by which the said Court refused to set aside the order passed on 11-12-1980 dismissing the suit for default.

2. However, the threshold objection to the maintainability of the petition raised by the learned counsel for the O.P. No. 1 has to be considered first before dealing with the merits of the petitioners grievance. Mr. B. C. Sarma, appearing for O.P. No. 1, contends that this revision application is not maintainable inasmuch as the impugned order must be deemed to be an order passed under O.9, R.9 CPC against which an appeal lies. His submission is that although the plaintiff petitioner had filed the application against the order dismissing the suit under O.9 R.4 CPC treating the said order as one passed under R.3 thereof the said order on the facts of the case could only be an order contemplated under R.8. Because, submits learned counsel, on 11-4-1980 when the suit was dismissed for default, the defendant/O.P. 1 was present in the Court and therefore R.3 of O.9 could not be attracted.

3. It is true that in the order dt. 11-12-1980 it was merely mentioned that when the suit was called on for hearing the plaintiff was found absent and the order on its face does not manifest that "neither party" appeared when the suit was called on for hearing as contemplated under O.9 R.3. However, Mr. B. C. Sarma, learned counsel for the plaintiff/petitioner made a three-fold submission to rebut the contention. His first submission is that the impugned order dt. 21-12-1981 ex facie shows that the Court itself accepted the position that on 11-12-1980 the order dismissing the suit was passed under R.3 of O.9 CPC as it is mentioned in the order the arguments were heard under R.4 thereof. His next submission is that although the application for setting aside the order passed on 11-12-1980 was manifestly made under R.4 of O.9 and the O.Ps. had opportunity to contest the application, none did. Indeed, submits learned counsel, O. P. No. 1 appeared in the Misc. Case No. 9/81 in which the plaintiffs application was heard but, as per order passed therein on 4-11-1981, he filed no objection and accordingly the Court fixed 21-12-1981 for ex parte hearing of the Misc. case. It is further submitted that even in this Court at para 5 of the petition the plaintiff/petitioner made a categorical statement that defendants did not appear to contest the suit on 11-12-1980. Yet, O. P. No. 1 who is opposing the revision application has not contested this position and indeed he has filed no counter at all to rebut any statements and submissions made by the petitioner in the revision petition. The last submission of Mr. Sarma is that the order dated 11-12-1980 could not be an order under R.8 of O.9 because the presence of the defendant on that date to contest the suit is not recorded therein.

4. I have no doubt that the preliminary objection must fail because there is much substance in the submissions made by Mr. Sarma. I am clearly of the opinion that merely because only plaintiffs absence was recorded in the order passed on 11-12-1980 it did not cease to be an order under R.3 of O.9. It is only when a Court is cognizant of defendants presence on the date fixed for peremptory hearing of the suit despite the absence of the plaintiff that R.8 is attracted. Neither in the order passed on 11-12-1980 in the main suit, nor in the subsequent order passed on 21-12-1981 in the Misc. case, it is manifested that the Court was cognizant of the fact that the defendant was present in the Court to contest the suit when the suit was called on for hearing on 11-12-1980. For the first time in this Court, Mr. B. C. Sarma has, in the course of his arguments, referred to the hazira filed on 11-12-1980 in the suit by the defendant/O.P. No. 1 to support his contention. By merely filing hazira in my opinion, the requirement of R.8 is not satisfied.

Because, the hazira does