This is a petition of revision under 8. 115, Oivil P. C., against an order of the District Judge, L. A. D. dated 14-7-1951 setting aside the order of the Munsiff at Gauhati dated 25-11-1950 in Misc. case No. 226 of 1950 of the Munsiff's Court, [2] The facts relating to the petition may be shortly stated as follows: [3] The plaintiff Annada Kumar Sen brought a suit for eviction against Eadhanath Barthakur v with respect to a house situated in the town of Gauhati. The suit was instituted on 11-5 1950 and it was decreed ex parte on 25-8-1950. The defendant did not appear and filed no written/ statement. On 7-10 1950 the defendant made an appli­cation for setting aside the ex parte decree on the ground of his illness and on this petition Misc. Case NO. 226 of 1950 was started, which was fixed for hearing on 25 11-1950. On that date the defendant was not ready; nor did he apply for an adjournment; but his lawyer only filed his 'Hazira' - or a list of attendance showing that the lawyer was, ready by himself. The plaintiff was ready. -The learned Munsiff dismissed the miscellaneous proceeding and passed the following order: "Heard the learned advocates. The petitioner baa taken no steps except his lawyer's list of attendance. The plaintiff is ready. It is difficult to drag on the .case in such circumstance. Hence the prayer for revival is rejected." [4] The learned District Judge allowed the appeal solely on an assumption that the lawyer for the petitioner i. e. the defendant was not heard by the learned Munsiff on the day the proceeding was struck off. The learned District Judge observ­ed in his-judgment: "But it does not appear that the learned Munsiff had asked the appellant'* pleader to submit what he had to say in the case on behalf of the appellant. In all fairness the appellant's pleader should have been heard and given an opportunity of submitting the case on behalf of his client, I mean, the appellant. The Older-sheet does not show that this was done." [5] It is apparent from the order passed by the learned Munsiff dated 25 11-1950 which I have quoted above that the learned District Judge wholly misdirected himself in saying that the lawyer for the defendant petitioner was not heard by the learned Munsiff. The Older-sheet does not show that this was done." [5] It is apparent from the order passed by the learned Munsiff dated 25 11-1950 which I have quoted above that the learned District Judge wholly misdirected himself in saying that the lawyer for the defendant petitioner was not heard by the learned Munsiff. The order-sheet makes it clear that the lawyers for both the parties were heard because the Munsiff says "Heard the learn, ed advocates",-which is in plural There was nothing before the District Judge to show that the lawyer for the petitioner was not heard by the learned Munsiff. In the absence of anything to the contrary it must be presumed that the state­ment in the learned Munsiff's order was correct. The learned District Judge was therefore in error in saying that the lawyer for the petitioner was not heard by the learned Munsiff. Further, I cannot accept the view expressed by the learned District Judge that the lawyer for the petitioner could have by himself submitted any explanation' for the non-appearance of the defendant at the time the ex parte decree was passed. It was therefore immaterial whether the learned pleader was present by himself or not on the date, the miscellaneous proceeding for setting aside the ex parte decree was fixed for hearing. The learn­ed pleader for the petitioner made no application for adjournment on the ground of the petitioner's illness or for production of any evidence, - nor was there anything to show either before the Munsiff or before the District Judge that the petitioner was actually ill on that date. [6] Mr. Lahiri for the petitioner, has pressed the petition before me on three grounds: (i) Thai the learned District Judge had no jurisdiction to entertain the appeal against the order of the Munsiff directing striking off of the miscellaneous proceeding. (ii) That the learned District Judge did not come to a finding that there was any justifia­ble reason for the restoration of the miscellaneous proceeding and in the absence of such a finding, his order was decisively bad. (iii) That the learn­ed District Judge misdirected himself on the ques­tion of fact in holding that the lawyer for the petitioner was given no chance to argue before the Munsiff and as such, - he acted with material irregularity in allowing the appeal. (iii) That the learn­ed District Judge misdirected himself on the ques­tion of fact in holding that the lawyer for the petitioner was given no chance to argue before the Munsiff and as such, - he acted with material irregularity in allowing the appeal. [7] With regard to his first contention I am in­clined to agree with the Calcutta view as expres­sed in Kumud Kumar v. Hari Mohan, 21 cal. L. J. 3. 628 that an appeal would be competent against an order of rejection of a petition under O. 9, R. 13, Civil P. C. no matter whether on merits or for default. I, however, accept his other two contentions and hold that the learned Dis­trict Judge did not come to any finding that there were sufficient reasons justifying the restoration of the miscellaneous proceeding and that he mis­led himself in holding that the lawyer for the petitioner w»s given no chance for arguing the ease on behalf of his client before the Munsiff. In either of these views, the learned District Judge in allowing the appeal acted in the exercise of his jurisdiction with material irregularity which brings the case within the purview of S.115. C. P. C. [8] Mr. Barua appearing for the opposite party submitted that there was an affidavit before the District Judge to show that the petitioner was actually ill but on a perusal of the affidavit it is clear that this affidavit was made for some other purpose and-it did not try to show that the peti­tioner was ill either at the time of passing of the ex parte decree or on 25 11-1950 when the miscellaneous proceeding was dismissed. [9] The learned District Judge therefore had no material before him to hold that the petitio­ner was ill on the date the miscellaneous proceed­ing was struck off and as a matter of fact, the District Judge made no attempt to come to such a finding. I have already discussed the error on the part of the District Judge in holding that the peti­tioner's lawyer had no chance of arguing his case. [10] In the above circumstances, the petition is allowed, and the order of the District Judge dated 14-7-51 is get aside and that of the learned Munsiff restored. The Rule is made absolute with costs: hearing fee is fixed at Rs. 34. Revision allowed.