JUDGMENT

Ghulam Hasan, J - This is a revision application under Section 25, Small Cause Courts Act, against the order of the learned Munsif of Kheri, acting as a Small Cause Court, dismissing the plaintiff-applicant's application to restore the suit dismissed for default. The plaintiff-applicant filed a suit on 3rd April 1939 for recovery of money on the basis of two bonds dated 27th August 1935, for Rs. 39 and Rs. 78. The suit was set down for final disposal on 10th May 1939, when the plaintiff and the defendant were both present in person, but the case had to be adjourned as the presiding Judge (Mr. Zutshi) was on leave on that date. It was adjourned to 16th May 1939, when the defendant filed a written statement admitting the receipt of Rs. 70 and alleging payment in respect of the remainder in the shape of sugar-cane crop. The plaintiff's counsel asked for time for evidence and the defendant's counsel raised no objection to the adjournment being granted. The case was then ordered to be put up for final disposal on 29th May 1939. On this date the plaintiff was absent but the defendant was present in person. The order sheet shows that the case was called several times but none responded to the call on behalf of the plaintiff. Mr. Zutshi, who made the order, recorded the fact that it was past 11.30 A.M. and as the defendant denied the claim, he dismissed the suit in default.

2. The plaintiff filed an application for restoration on 30th May 1939, in which he stated that he missed the local train in the morning and travelled by the next train which reached Kheri after 12 o'clock in the day. The application states that on attending the Court the applicant was informed that his case had been called and had been dismissed for default. The plaintiff alleged that his absence was due to a pure accident and he asked that the suit be restored. The application was accompanied by an affidavit of the plaintiff himself. Notice of this application was issued to the defendant for 15th July 1939, when both parties were present in person. It appears, however, that the presiding Judge, Mr. Zutshi, has been transferred and his successor had not arrived. The case was therefore ordered to be put up on 5th August 1939. On this latter date, the applicant and the defendant were both represented by counsel. The order sheet does not show that either the plaintiff or the defendant was present on this date. Mr. Zutshi's successor, Mr. Bishambhar Nath Chaudhri, took up the case and recorded the order that the opposite party's counsel opposed the application. He framed an issue whether there was a sufficient ground for the non-appearance of the applicant. He further said that the parties did not produce oral evidence. He heard arguments on that date and on 14th August 1939, passed the order dismissing the application with costs. A perusal of the order passed by (the lower Court shows that the only ground which influenced the mind of the Court in refusing to restore the suit was that in his opinion the affidavit filed by the plaintiff was no evidence of the facts alleged therein unless the plaintiff or any other witness had been produced in support of those facts and the defendant had had an opportunity to test the veracity of the witness by cross-examination.

3. It has been contended before me by learned Counsel for the plaintiff-applicant that the view taken by the lower Court was wrong when the denial by the opposite party was a mere verbal denial without any counter affidavit or evidence produced on his behalf. It is also urged that the case was called in the early part of the day, that his client did turn up in Court in the afternoon when he came to know that the suit had been dismissed in default and he took the earliest opportunity of filing an application the following day for restoration of his suit. Upon these facts it is urged before me that there was a sufficient cause for the restoration of the suit. In any case learned Counsel invokes the inher