( 1 ) THIS is an appeal from an order of the IInd Civil Judge, Kanpur, dated 28-5-57 refusing to restore the suit dismissed for non-appearance of the plaintiff.

( 2 ) THE plaintiff firm filed a suit through its partner Sri Padampat Singhania tor recovery of Rs. 4,11,367/14/9 against the defendants on 18-5-53. The defendants filed written statements denying the claim and pleading a bar of limitation. Issues were struck on 1-2-54. Thereafter, several adjournments of the date fixed for hearing were made by the court, both suo motu and at the instance of the parties. Four such latter adjournments had been obtained by the defendants and three by the plaintiffs.

( 3 ) ON 8-12-55 the case was transferred to the file of the IInd Civil Judge, Kanpur, who eventually fixed 23-5-56 for final hearing of the suit. On 22-5-56 an application was filed by one p. C. Jain on behalf of the plaintiff for adjournment On the ground that the Plaintiffs senior counsel, Sri Rammath Seth, had gone to England and that his presence was necessary for the proper prosecution of the case. The defendants counsel Sri Devendra Swarup made the following endorsement on the said application: "no objection on personal ground of Mr. Seth. " the application for adjournment was rejected by the Civil Judge on 23-5-56 on the finding that p. C. Jain was neither a party nor counsel nor an authorised agent of the plaintiff and, as such, the application could not be taken to have been properly presented. A second application was then moved by Sri Gopinath Dikshit, counsel of the plaintiff, accompanied by an affidavit. The court ordered the application to be put up for disposal on 24-5-56, observing that the defendants wanted time to meet the allegations of the plaintiff. It was also ordered that parties should come prepared with their evidence. On 24-5-56 Sri Gopinath Dikshit, counsel of the plaintiff informed the court that he had no instructions to press the application for adjournment. Thereupon the court rejected the application, holding that the affidavit filed in support of the application had not been properly sworn and that the counsel representing the plaintiff had stated that he had no instructions. The suit was accordingly dismissed for default of the plaintiff.

( 4 ) THE plaintiff then moved an application for the restoration of the suit and filed an affidavit in support thereof, alleging that Sri Ramnath Seth, Advocate for the plaintiff, who was the counsel in charge of the case, had gone to England and that it was not possible for the plaintiff to properly prosecute the case in his absence. It was further alleged that on 24-5-56 P. C. Jain left the court to call the witnesses but by the time he returned the suit had been dismissed for default. It was stated that the plaintiff had been doing his best to produce evidence in the case but was prevented by unforeseen circumstances from doing so. The defendants opposed the application for restoration on the ground that the plaintiff had been guilty of negligence and that sufficient cause had not been shown for the restoration of the suit. It was further alleged in their reply by the defendants that no cause had been shown for the absence of Sri Padampat Singhania on the 23rd and the 24th May 1956. The defendants, however, did not file any counter-affidavit controverting the allegations made on behalf of the plaintiff in the affidavit. The Civil Judge rejected the application for restoration of the suit on 28-5-57 as said above. The Civil Judge held that the plaintiff had not been prosecuting the suit diligently and that the plaintiffs pairokar P. C. Jain had deliberately omitted to give instructions to Sri Dikshit to Conduct the case on 24-5-56 and got the suit dismissed for default in order that the plaintiff may gain time and have the suit restored later. The court, however, rejected the contention of the defendants that the order of dismissal of the suit was one under Order 17, Rule 3, Civil P. C. It wa