The competence of the court to restore a suit dismissed for default of the advocate, and the maintainability of the petition under Order 9 Rule 9 of CPC.

The petitioner in this revision petition impugns the order dated 12 10. 82 passed by Munsiff No. 2, Dhubri in Misc (J) Case No. 27/1982 connected with Title Suit No. 412/1979 by which order the Title Suit No. 412/79 was earlier dismissed by an order dated 19. 5. 82 by the same Court.

2. I he case of the petitioner is that the opposite parties had instituted the aforesaid Title Suit No. 412/74 against the petitioner for declaration of title and recovery of possession of a plot of land measuring 1 bigha kathas and 19 lechas of Dag No. 280 under Khatian No. 128 of Gouripur Small Town.

3. The petitioner contested the suit by filing written statement denying various averments made in the plaint and on the basis of pleadings made by the parties issues were framed. However, when the stage came for recording evidence, on one ground or the other the respondent had sought fir adjourn­ment. On 9. 5. 82 also the respondent had sought for adjournment on the ground that the respondent was suffer in » from severe illness and at the same time the Advocate engaged by the petitioner was out of station. The learned Court was not however inclined to grant the prayer for adjournment on the ground that on several occasions adjournments had been granted and as such the Court found it fit to dismiss the suit for default of the respondent and the lawyer engaged on behalf of the respondent.

4. The respondent made an application under Order 9 Rule 9, CPC for restoration of the suit. After hearing both the parties the Court of Munsiff no. 2, Dhubri was pleased to restore the suit by an order dated 12. 10. 82. Against the said order of restoration this revision petition has been preferred by the petitioner.

5. Mr. A. C. Sarma appearing for the petitioner submits that the order of restoration is bad inasmuch as the petition under Order 9 Rule 9, CPC is not maintainable as the suit was dismissed by reasoned order and as such if the respondents were aggrieved a regular appeal ought to have been filed under Order 41, CPC. His further submission is that the suit was dismissed with costs and as such the dismissal o the suit is not within the purview of Order 9 Rule 8, CPC and in view of this petition under Order 9 Rule 9, CPC is not maintainable and therefore the Court below erred in law in restoring the suit earlier dismissed with costs. He further states that the respondents were not at all diligent in perusing the suit and at the same time the absence of an Advocate on a particular date can be no ground for adjournment and as such the suit having been dismissed with costs on merit there is no question of restoration thereafter. In this view of the matter the learned counsel submits that the respondents could have filed a rash a suit or in the alter­native, a regular appeal could have been filed and having failed to do so, to file a petition under Order 9 Rule 9, CPC is not competent. On the other hand, Mr. M. K. Bhattacharjee appearing fur the respondents submits that the suit was in fact dismissed for default of Advocate and as such it would be against the interest of justice that the suit should have been dismissed for default of Advocate on a particular date inasmuch as a party to the suit should not be made to suffer because of the default of the Advocate on a particular date. The further submission of the learned counsel is that the petition under Order 9 Rule 9, CPC is clearly maintainable inasmuch as the dismissal of the suit was on the ground of default of party and also o Advocate. It is also further submitted that the suit was restored with costs which is contemplated under the provisions of Order 9 Rule 9 of CPC and as such there is no infirmity in the impugned order dated 12.10.82. He has further submitted that although the suit was dismissed by giving reasons such reasons were in respect of default of the party and the Advocate and nothing else.

6. I have no manner of hesitation to state that the dismissal of the suit was because of default of Advoca

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