JUDGMENT

1. This is an appeal under Section 45, U. P. Encumbered, Estates Act, by Baijnath who made a claim under Section 10 in proceedings under that Act. The claim was dismissed in his absence. It had been denied by the respondents who were the applicants in the case. The appellant applied under order 9, Rule 9, Civil P.C. for restoration and this application was dismissed on the ground that he had not shown sufficient cause for his non-appearance. The case was fixed for 7th September 1938, and it is not denied by the appellant that he was aware of the date. His explanation was that when the case was called out he was attending to an application for execution filed by him in the adjoining court room of the Munsif. He heard after he left that Court that the case in the Court of the Additional Special Judge had been called and that his claim had been dismissed. Baijnath supported his application for restoration by an affidavit and on the other side there was a statement by the Karinda of the respondents denying that Baijnath had attended the Court of the Munsif on the day in question.

2. The Additional Special Judge found that the appellant's explanation was false. He stated in his order that' the case was called Out several times before it was dismissed at 1-30 P.M. and as the Court of the Munsif adjoins his Court the appellant should have heard his case called out; had he actually been present Moreover, tie fact that he took no immediate action and. filed his application for restoration about a month after the dismissal of the claim clearly indicated that he did not attend the Munsif's Court on 7th September as he alleged. The learned Counsel for the appellant concedes that there is little to be said for his client. No evidence apart from the affidavit was produced to support the allegation that the appellant had attended the Munsif's Court on the day in question, and had he done so there can be little doubt that evidence would have been available on the point. Learned Counsel has argued that the appellant had no reason to absent himself, but we cannot infer from this that there was sufficient cause for his absence.

3. Learned Counsel has referred to a ruling of a single Judge of the Allahabad High in Ram Shankar v. Ram Narain, A.I.R. 1928 All. 15 1928 All. 301 to the effect that no orders of dismissal in default should be passed till the end of the day when the Court rises, because there can be no default until the Court rises for the day. With all respect we are not prepared to subscribe to this view. Litigants are ordinarily required to attend the Court at 10 A.M. and we know, no reason why they should not be penalized for failure to do so without sufficient Cause. To allow them to attend at any time in the day before the Court rises, that is, usually at 3-30 or 4 P.M., might make it impossible to carry On the work of the Court properly by putting it in the power of litigants to obstruct it.

4. The circumstance that the litigant attends later in the day and at the same time applies for an order to set aside the dismissal is no doubt a strong point in his favour when the Court is considering whether there was sufficient cause for his non-appearance earlier, and the Court is equally justified in holding that a long delay in making the application after knowledge of the dismissal tends to throw doubt on the explanation put forward. In a recent case which came before a single Judge of this Court Bardri Prasad v. Ambika Pershad ('41) 28 A.I.R. Oudh. 91 an application by an auction purchaser was dismissed for default as early in the day as 10-18 A.M. The applicant applied for restoration within half an hour of dismissal, giving reasons for his inability to attend earlier. His explanation was accepted and the order of dismissal set aside. The facts in the present case are quite different from the facts in Bardri Prasad v. Ambika Pershad, A.I.R. Oudh. 91 and also from the facts in Ram Shankar v. Ram Narain, AIR1928All301 because w