Kalyan Rai Surana, J.

Heard Ms. B. Chowdhury, the learned counsel appearing for the appellant as well as Mr. P. Medhi, the learned counsel appearing for the respondents.

2. By this appeal under Order XLIII Rule 1(c) CPC, the appellant has challenged the order dated 19.05.2017, passed by the learned Civil Judge No. 3, Kamrup (Metropolitan), Guwahati in Misc.(J) Case No. 289/2016, arising out of Money Suit No. 257/2015, thereby rejecting the prayer made by the appellant under Order IX Rule 9 CPC for restoration of the proceedings of Money Suit No. 257/2015 to file.

3. The learned counsel for the appellant has submitted that the appellant had filed a summary suit for recovery of a sum of Rs. 50,00,000/- (Rupees Fifty lakh only) from the respondents. The appellant had taken steps for service of notice on the respondents in the suit and accordingly, the respondents had entered appearance in the suit on 11.12.2015. It is submitted that the appellant-plaintiff had remained unrepresented before the learned trial Court on 11.12.2015, 07.01.2016, 10.02.2016, 02.03.2016 and on 02.05.2016 and therefore, on 02.05.2016, the suit was dismissed for non-prosecution. It is submitted that on 02.05.2016, the date on which the suit was dismissed for non-prosecution, the learned counsel for the appellant had remained absent as she was out of station. By referring to the Cause-list of this Court dated 02.05.2016, it is submitted that the counsel was on leave from 25.04.2016 to 15.05.2016. It is further submitted that there was an error in noting of the case in the diary which led to the non-appearance of the counsel before the learned trial Court. In support of the submissions made by the learned counsel for the appellant has relied on the cases of (1) Lalta Prasad and Anr. Vs. Ram Karan, Manu/UP /0045/1912 and (2) Aman Alli Saheb Vs. K. Venkata Rama Suryanarayana Subba Raju, Manu/AP/00454/1984.

4. The respondents herein had filed their written objection in respect of the said application filed under Order IX Rule 9 read with Section 151 CPC. The learned trial Court, by impugned order dated 19.05.2017 had concluded that as the appellant had remained absent without steps on 11.12.2015, 07.01.2016, 10.02.2016, 02.03.2016 i.e. prior to 02.05.2016, the appellant had failed to assign cause for his previous absence. Moreover, the learned trial Court had held that the statement about the absence on 02.05.2016 was contradictory to the statement that there was a wrong entry in the diary and for these two reasons, the application under Order IX Rule 9 CPC was rejected. Hence, it is submitted by the learned counsel for the appellant that as the appellant had not been able to show good cause for non-appearance of the counsel on the date when the suit was dismissed for non-prosecution, this was a fit case for interference with the order impugned in this appeal.

5. Per contra, the learned counsel for the respondents has opposed this appeal and it is submitted that as per the orders passed by the learned trial Court, upon appearance made by the respondents in the suit on 11.12.2015, direction was passed by the learned trial Court to the appellant to serve summons for judgment as per the provision of Order XXXVII Rule 4 CPC. Therefore, on the failure of the appellant to take appropriate steps in terms of the said order dated 11.12.2015, coupled with the fact that the counsel had remained absent on call for the suit on five dates mentioned hereinbefore, the order of dismissal of the suit as well as the order passed on an application under Order IX Rule 9 CPC cannot be faulted with.

6. Having heard the learned counsel for both sides, two things is required to be dealt with. First question arises in view of the decision of this Court in the case of Nazrul Islam Borbhuiya Vs. Yakub Ciddikie, (2006) 3 GauLT 828. In the said case, examining the scope of Order IX Rule 9 CPC, this Court, by following the ratio laid down in the case of Rahimuddin Sheikh and Ors. Vs. Sar