This application for restoration has been filed by the applicant an ex parte order passed by this court on 29.5.56 in a proceeding relating to the sanction of matmi in the name of the opposite party. 2. We have heard the learned counsel for the parties and have examined the record of the case. It appears that on 29.5.56, when the matmi case was called out for hearing, neither the applicant nor his advocate Shri Ramchandra Shastri, and Shri Kanahiyalal vakil thikana were present. The opposite party and his counsel were present. The argument in the case were heard and after examining the record of the case, a decision was given sanctioning matmi in favour of the opposite party and the objections of the applicant were rejected. On 20.8.56, the applicant filed this application praying to set aside the ex parte order given in the aforesaid proceeding. In his application as well as in the affidavit the applicant stated that he had entrusted the case to his advocate, Shri Kamchandra Shastri and Shri Kanahiyalal Revenue Agent who reached the court at 8 a.m. thinking that the practice of the court was to take up the cases after 8 a. m. and further that the applicants lawyer got late in getting a conveyance. This affidavit has been given by one Gopinath. The learned counsel for the applicant urged that as the absence of the lawyer was not willful, but due to some misapprehension of the fact the court might be pleased to consider it a sufficient cause for their non-attendance and the impugned ex parte order be set aside on this ground. The learned counsel for the applicant relied on 1955 RLW. page 551 in which it was held that if a counsel attended the court late calculating that the case would come late and such an expectation of the learned counsel was on good reasoning his absence at a time when the case was called out was a sufficient cause for restoration of the appeal or suit which was decided ex parte. He also cited A. I. R. 1955 N.U.C. (Madhya Bharat) page 306 in which it was held that if the plaintiff was prevented from appearing owing to non-availability of a conveyance in time, there was sufficient cause within the meaning of order 9, rule 9.
He also cited A. I. R. 1955 N.U.C. (Madhya Bharat) page 306 in which it was held that if the plaintiff was prevented from appearing owing to non-availability of a conveyance in time, there was sufficient cause within the meaning of order 9, rule 9. RLW 1956, page 331 was cited in support of the view that where a counsel failed to put in appearance on the date of hearing for some reason and the suit has been dismissed for his default, it may be restored if there was sufficient cause for his non-appearance. All the above cited rulings lay down the well known principle of law contained in order 9, rule 9 of the Civil Procedure Code, viz. that if the court is satisfied that there was sufficient cause for the non-appearance of the counsel or the party an order for restoration should be given. In the case before us, it is clear that when the applicant had engaged the counsel, and entrusted the case to him, it was really not necessary that the party himself should appear. It was then the bounded duty of the counsel to appear on the date or dates fixed for hearing in the case. Shri Ramchandra Shatri and Shri Kanahiyalal Revenue Agent who were admittedly representing the applicant have neither been examined nor have they given any affidavit to the effect that they were held up and could not appear in the court in time when the case was called out for hearing either because a conveyance was not available for them or that they expected on good reason that their case would not be called out early. We have seen the cause list of the date and according to the practice obtaining in the Board of Revenue, all cases fixed for hearing are notified on the notice board a day previous to the date of hearing.
We have seen the cause list of the date and according to the practice obtaining in the Board of Revenue, all cases fixed for hearing are notified on the notice board a day previous to the date of hearing. This case was fixed at No. 1 and the counsel for the applicant was expected to know in advance that the case being numbered on the top of the cause list was to be heard first It is simply puerile to say that the cases in the Board of Revenue were not taken up before 9 a.m. during the morning hours, when the scheduled hours of working started from 7 or 7-30 a. m. There is thus no ground to support the contention of the learned counsel for the applicant that he had an apprehension that the case would not be taken up first. This being so, we are satisfied that there is no sufficient cause within the meaning of order 9, rule 9 C.P.C. As regards the contention of the learned counsel for the applicant that the counsel did not turn up in time for want of a conveyance, we find nothing on the record to accept this argument. As already stated above, neither the counsel nor the revenue agent who were supposed to appear in this case have either given any affidavit or examined themselves on this point. The affidavit filed by Gopinath also does not say as to how he got the information that the counsel could not appear because a conveyance could not be arranged for them. The rulings cited by the learned counsel for the applicant are, therefore, not applicable to the facts of this case. In the alternative it was argued by the learned counsel for the applicant that the court might be pleased to exercise its inherent powers under sec. 151 of the Civil Procedure Code to allow this application for restoration.
The rulings cited by the learned counsel for the applicant are, therefore, not applicable to the facts of this case. In the alternative it was argued by the learned counsel for the applicant that the court might be pleased to exercise its inherent powers under sec. 151 of the Civil Procedure Code to allow this application for restoration. RLW 1956, page 331 cited by him is an authority on the point that an application to restore a suit or an appeal dismissed for default inasmuch as it has been specifically provided for in order 9, rule 9 or order 41, rule 19 of the Civil Procedure Code fails to be governed by the provisions of that rule, i.e. the plaintiff must advance sufficient cause for his absence at the crucial time as a condition precedent to the restoration of the suit or the appeal and that there is no inherent power in the court under sec. 151, C P.C. where the existence of sufficient cause is not shown, to restore a suit or appeal dismissed for default. In this view of the matter we are clearly of the opinion that this application for restoration cannot be allowed and must fail.