Absence during trial without sufficient cause leads to dismissal of restoration petitions under Order 9 Rule 9 of the Civil Procedure Code.

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Petitioners who filed a suit nearly 14 years ago, and which was dismissed for default, seek for its restoration by filing this revision petition impeaching the correctness of the judgment passed by the appellate court, upholding the dismissal of the application moved by them under Order 9 Rule 9 of the CPC. Suit was one for perpetual prohibitory injunction, fixation of boundary and recovery of possession. When it came up for trial in the special list, petitioners were absent, and consequently, the suit was dismissed for default. Application moved by the plaintiffs under Order IX Rule 9 of CPC to set aside the order of dismissal was dismissed by the trial court and the appeal preferred against that order was also unsuccessful. Propriety and correctness of the judgment passed by the appellate court in C.M.A.No.81/1999 is challenged in the present revision.

CRP.1019/00 2

2. I heard the learned counsel on both sides. From the submissions made and also perusing the judgment of the appellate court, it is seen that when the suit was listed for trial on a previous occasion, the plaintiffs applied for removal of the case from list canvassing a plea that their title deed required correction as on measurement of the property by the Commissioner it is found to be having excess area than what was stated in the plaint. The learned Munsiff accepted the request and the case was removed from the list. One year later, when the suit again came up for trial in the list, the plaintiffs were absent and the suit was dismissed for default. The restoration application moved by the plaintiffs was dismissed as the cause shown for the absence of the plaintiffs on the date of hearing was found unacceptable. The case of the plaintiffs was that the 1^st petitioner was prosecuting the case on behalf of all the plaintiffs and as he was laid up, he could not attend the court on the date of hearing fixed for trial. No material was produced to substantiate the cause shown for the absence of the 1^st petitioner. It is submitted by CRP.1019/00 3 the learned counsel for the respondents that no evidence was also adduced in the proceedings initiated for restoration of the suit after setting aside the dismissal. In such circumstances, I find the judgment rendered by the appellate court holding that the plaintiffs have not made out a case leave alone sufficient cause to explain their absence on the date of hearing of the suit cannot at all be found fault with. That being so, I find the revision is devoid of any merit and it is liable to be dismissed, and I do so. Revision is dismissed.

S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J.

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C.R.P.NO.1019 OF 2000 ()

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10^th June, 2009