Illness of a party is considered a sufficient cause for restoring a suit dismissed in default under Order 9, Rule 9, Code of Civil Procedure.

Choudhuri, J—This is a revision petition filed by the Applicants against the order of the District Judge, Raipur, dated 4-7-1951 in Miscellaneous Civil Appeal No. 12 of 1950.

2. One Pandbo brought a suit in the lower Court for ejectment of the Defendants from certain fields of 'mouza' Kalenda in Mahasamund tahsil on the basis of an unregistered lease-deed dated 17-12-1940. The suit was fixed for evidence on 24-6-1948. It was adjourned to 14-9-1943 for evidence and for arguments on the question of the admissibility of the unregistered lease-deed. On this date, another adjournment was prayed for by the counsel of the Plaintiff on the ground that the Plaintiff could not attend due to illness. The case was then fixed for 13-10-1948 on which date Shri Nimonkar appeared for the Plaintiff and requested for a further adjournment. The suit was dismissed in default of the Plaintiff under Order 9, Rule 8, Code of Civil Procedure as Shri Nimonkar stated that he had no further instructions when the adjournment was refused.

3. An application to set aside the dismissal was filed by Pandbo under Order 9, Rule 9, Code of Civil Procedure. He stated that he could not attend the Court on 18-10-1948 on account of his illness. The application was opposed by the Defendants. The trial Court after recording the evidence dismissed the application. An appeal filed by Pandbo against this order to the District Judge, Raipur, also failed as the lower appellate Court held that Pandbo s failure to attend on the date of hearing was not due to illness. During the pendency of the appeal, Pandbo died. The present Applicants are his legal representatives.

4. The learned Counsel for the Applicants urged that the evidence adduced by Pandbo of his illness has not been rebutted and should be accepted as a good cause for his inability to attend the Court on the date of hearing. It was also pointed out that the evidence of Ujar (N.A.W. 1) and Shriram (N.A.W. 2) who say that Pandbo came to Mahasamund on 'Dasera' day, is unreliable. If it were true that Pandbo was at Mahasamund on that day, he would have surely attended the Court as he would not act in a dilatory manner against his own interest when he was prosecuting the suit since December 1947. As against this, it was argued on behalf of the non-Applicants that both the Courts below have passed an order on concurrent finding of fact and as there was no material irregularity in the exercise of discretion, no interference is called for.

5. Order 9, Rule 9, Code of Civil Procedure lays down that if the Plaintiff, whose suit has been dismissed for default, satisfies the Court that there was 'sufficient' cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs. In deciding that a suit dismissed in default should be restored under Order 9, Rule 9, what has really to be considered is whether the party was really trying to appear on the date fixed for the case; and if he honestly intended to be present not being guilty of anything in the way of misconduct or gross negligence, then he should not be deprived of his chance of being heard. Under this rule, illness of party is considered as a sufficient cause. Each case has to be decided on its own facts but the exercise of discretion should not be far from equitable considerations arising from those facts.

6. Here it would be clear from the order sheets of the trial Court that Pandbo was throughout diligent in prosecuting the suit. The case was fixed for evidence on 16-3-1948. Pandbo was present with his counsel. The Defendants were represented by Shri De. The witnesses of the Plaintiff as well as of the Defendants were present, but the case could not be taken up as the presiding Judge was busy in recording evidence in another case. Hence it was adjourned to 24-6-1948 for no default of the Plaintiff. On the adjourned date, the Judge again did not record the evidence although the