Order 9, Rule 9, C.P.C. is applicable to cases where the plaintiff is present in court initially but does not prosecute the suit when the adjournment application is rejected, provided that the plaintiff had sufficient cause for non-appearance.

ORDER :- Plaintiff is the petitioner. On 9-3-1962 issues were settled and the suit was adjourned for trial to 23-4-1962. On that day the plaintiff and defendant 1 filed haziras; as the Court was engaged in another part-heard suit, this suit was adjourned to 9-7-1962 for trial. On that day defendant I was ready and filed hazira; out the plaintiff applied for time. The prayer for adjournment was rejected and the parties were directed to get ready at once. Later, on the same day, the following order was passed :

"The plaintiff neither responds to calls nor takes any steps. The defendant 1 is ready. Hence the suit is dismissed for plaintiffs default in presence of defendant 1."

On 11-7-1962 the plaintiff filed an application under Order 9, Rule 9, C.P.C. for setting aside the order dated 3-7-1962. He alleged therein that one of his material witnesses was suffering from fever and the other missed the bus, and so he could not get ready on 9-7-1962. The learned Munsif disbelieved the story and held that there was no sufficient cause for non-appearance. The learned Subordinate Judge came to a different conclusion that the plaintiff had sufficient cause for his non-appearance. Both the Courts below, however, dismissed the plaintiffs application for restoration holding that to this case, where the plaintiff was present in Court in, the first instance but did not prosecute the suit when the adjournment application rejected, Order 9, Rule 9, C.P.C. has no application. The learned lower appellate Court placed reliance on Kulamoni Barik v. Lokenath Mohapatra, ILR (1949) 1 Cut 446 : (AIR 1949 Orissa 35) and Mayurbhanj Oil and Oil Products Ltd. v. Munilal Ramdayai, ILR (1960) Cut 591, in support at its judgment. Against the appellate order dismissing the application for restoration this Civil Revision has been filed.

2. From the aforesaid statement of facts it is manifest that the suit was dismissed not at the first hearing but on the date of adjourned hearing. Order 5, Rule 5 prescribes that the Court shall determine at the time of issuing the summons, whether it shall be for the settle merit of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. Under Order 5, Rule 8 where the summons is for final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case. Order 8, Rule 1 states that the defendant may, and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement in his defence. This rule thus expressly refers to the first hearing. The heading of Order 9 is "Appearance of Parties and Consequence of Non-appearance". Thus it is clear that "first hearing is clearly for the, settlement of issue or for final hearing. It means the day on which the Court goes into pleadings in order to understand the contention of the parties. If it is only for settlement of issues, the Court cannot pass an ex parte decree on that day under O. 15, Rule 3(1) Proviso which lays down that where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith the court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons had been issued for the settlement of issues only or for the final disposal of the suit: Provided that, where the summons has been issued for the settlement of issue