The question of whether negligence on the part of a lawyer would amount to a sufficient cause for absence is not a question of law but a pure question of fact which would vary according to the facts and circumstances of each case.

G. K. MISRA, J.

( 1 ) PLAINTIFF is the petitioner. On 4-9-61 Title Suit No. 17 of 1960 was posted for hearing in the Court of Munsif, Rayagada. Petitioner's case is that she had taken steps for summoning her witnesses for that day. She had engaged two pleaders-Sri v. K. Rao and Sri N. K. Das. The latter had been to Cuttack prior to 4-9-1961 on some urgent personal work. Sri V. K. Rao had to suddenly go to Jeypore in a professional work on 3-9-1961. A petition for adjournment was filed by the registered clerk of Sri V. K. Rao on 4-9-1961 for accommodation for one day only, that is, till 5-9-1961, to enable Sri Rao to come back to Rayagada to conduct the suit. On 4-9-1961 the pleader's clerk filed the petition without affixing court-fee as the stamp vendor was absent by the time. After filing the petition, the clerk went to the house of the Stamp Vendor to fetch court-fee. In the meantime the suit was called and dismissed. The petitioner filed an application under Order 9, Rule 9, C. P. C. for setting aside the order dismissing the suit. The main sufficient cause alleged was unavoidable absence of the pleader in his own professional work at jeypore.

( 2 ) THE opposite party opposed the application for restoration of the suit. There was assertion in the counter that the absence of Sri Rao, Plea-der, did not amount to sufficient cause and that the plaintiff and his pleaders should not have been absent on the date of hearing.

( 3 ) THE learned Courts below held that there was no sufficient cause for the absence of the pleader (Sri Rao ). They dismissed the application under Order 9, rule 9, C. P. C. The Civil Revision has been filed against the appellate judgment dated 29-6-1962 of the learned District Judge, Koraput-Jeypore.

( 4 ) THE judgment of the learned District Judge contains 5 paragraphs. Paragraphs 1 to 4 are mere narration of facts without any discussion. Paragraph 5 is the only substantive paragraph on the basis of which the application under Order 9, Rule 9 was dismissed. It is necessary to quote the whole of paragraph 5. It runs as follows.

"on a consideration of these circumstances it really transpires that the plaintiff absented herself from the Court on the relevant date. It also transpires from the order sheet that no other witness for plaintiff was either present and that she had taken steps for summoning her witnesses as late on 28-8-1961 just 7 days prior to the date of hearing. The absence of the lawyer on his professional business without making any arrangement for the instant case can also be no ground for giving any latitude to a party. In the circumstances, I do not find any ground to interfere in the present case which will tantamount to give premium to the negligence of the plaintiff and her lawyer. "

( 5 ) A finding of fact is hardly assailable in Civil Revision. Mr. P. V. B. Rao, however, contends that the judgment of the learned District Judge suffers from the infirmity that it does not consider the real point in issue, and that the broad principle laid by the learned Judge that laches on the part of a pleader without making an alternative arrangement, can never amount to sufficient cause, is too wide and is opposed to common course of human conduct in relation to the facts of a particular case.

( 6 ) THE contention of Mr. Rao deserves close scrutiny and serious consideration. Whether negligence on the part of a lawyer would amount to a sufficient cause for absence is not a question of law. It is a pure question of fact which would vary according to the facts and circumstances of each case. In a Full Bench decision reported in U. Aung Gyi v. Govt. of Burma, AIR 1940 Rang 162, their Lordships observed that advocates who were engaged in cases which were fixed for hearing at a given time and place cannot be allowed to treat the Court before which the hearing is to take place with contumely or indifference, and then apply casually for reinstatement of a suit dismissed in their absence merely because t