JUDGMENT

Simpson, A J C - This is an application for revision under Section 115 of the Code of Civil Procedure. The applicant was plaintiff in a suit in the Court of the Munsif. On the 27th September, 1923, the order sheet shows that plaintiff's pleader and defendant No. 5 were present while the other defendants were absent. The guardian whom the plaintiff had proposed for defendant No. 2 who is a minor had been served but was not present. The plaintiff was directed to propose another guardian of defendant No. 2 to be appointed and 27th of October was fixed for issues. In the meantime on the 28th September B. Sri Ram, Vakil, was appointed guardian of defendant No. 2 and notice was issued to him and to the minor. On the 27th of October the plaintiff's pleader and defendant No. 5 were present as before and so also was defendant No. 4, the father of defendant No. 2 who had originally been proposed by the plaintiff as guardian of defendant No. 2. He applied to be appointed guardian and plaintiff's pleader did not object. As the notice to the minor had not been returned the case was adjourned to the 3rd of November, 1923. On the 3rd of November the plaintiff and his pleader were both absent. Defendants Nos. 1, 5 and 11 were present. They denied the plaintiff's claim. The plaintiff's suit was accordingly dismissed under Order 9, Rule 8. The plaintiff then applied to have his suit restored. He stated that he did not get information of the date fixed. He said that he lives at Lucknow and that his pleader gave him no information of the hearing because he was under the impression that the date fixed was not the 3rd of November but 26th of November. This application was dismissed and surely very properly. It is for the party and his pleader, if they are duly notified for a day, to appear on that day and, if they make a mistake as to the date fixed, they must take the consequences. The applicant then appealed to the District Judge and his appeal was dismissed. He now comes here in revision and he takes the point which he did not take in either of the Courts below, which is, that his suit ought not to have been dismissed on a date which was fixed merely in order to have the notice on the minor returned served. But in fact the 27th October had been fixed for issues. Consequently, the next date fixed, the 3rd November, was also for issues.

2. It is also argued that in no case can the plaintiff's case be dismissed unless the suit is ready for hearing. If there is any such matter as service still pending, there can be no dismissal of the case under Order 9, Rule 1. No ruling is cited by the learned Counsel and I know no proposition of law to support that view. There seems no necessity to use the revisional powers of the Court in this case.

3. The application is, therefore, rejected.