Judgement ORDER:- This is an application u/s 115 of the Code of Civil Procedure (hereinafter referred to as the "Code"). The petitioners were the defendants and the opposite party was the plaintiff. The suit was for eviction of the defendants and filed as far back as in 1963. It is unfortunate that the matter has not yet been disposed of by the trial Court. 2. The facts which are relevant for the the purpose of this application are that the opposite party Mustt. Rukia Khatoon is a "pardanashin" lady and she appointed her husband as her "attorney" to look after her suit. Accordingly the plaintiffs husband was looking after the present suit and taking all necessary steps therein. The age of her husband at all relevant period was about 75 years. 3. It appears that the plaintiff as an abundant caution filed an application on 14-9-1974 for postponing the date of hearing of her suit which was set down for hearing on 16-9-74 on the ground that her husband and the attorney of the case was ill. Along with the application a medical certificate was annexed which reads as under: "Certified that Md. Brijish Quader has been treated here for "Chr. Asthatic Bronchitis". He has been advised rest for 10 days with effect from 13-9-74 to 22-9-74". This application was made before the then learned Assistant District Judge trying the suit on 14-9-1974. But, for reasons best known to the learned Assistant District Judge, he did not dispose of the matter on that day and there is no material on record to show as to why it could not be disposed of on 14-9-1974 for which the application was to be placed on 16-9-1974, that is, on the date of hearing of the suit in question. In any view of the matter, it appears from the record that on 16-9-1974 the then learned Asstt. District Judge, Nowgong considered the said application in presence of the parties and on perusal of the medical certificate, the learned Judge found that there was nothing to indicate from the medical certificate filed on behalf of the plaintiff that her husband was still ill on 16-9-1974 and rejected the application praying for an adjournment of the suit. I have quoted earlier the medical certificate and the same is eloquent enough to indicate that the doctor advised Brijish Quader to take complete rest upto 22-9-1974. I have quoted earlier the medical certificate and the same is eloquent enough to indicate that the doctor advised Brijish Quader to take complete rest upto 22-9-1974. I fail to appreciate as to how the then Assistant District Judge could read something which was evidently not there in the said medical certificate. On that date the then Assistant District Judge rejected the application for the postponement of the hearing on the grounds, namely, that the medical certificate did not show that the plaintiffs attorney was ill on 16-9-1974; (2) that the plaintiff was absent and (3) that it is an old suit of 1963. 4. Thereafter the plaintiff filed an application under O.9, R.9 of the Code before the learned Assistant District Judge, Nowgong. The application came up for hearing and evidence was also led in the proceedings on behalf of the plaintiff which was numbered as Misc. (J) 30 of 1974. It may be stated here that the present petitioners-defendants did not adduce any evidence in the said proceedings. On perusal of the evidence on record Shri H.N. Hazarika, Assistant District Judge arrived at the conclusion that it was a fit case in which he should exercise his jurisdiction under O.9, R.9 of the Code and accordingly the learned Judge set aside the order of dismissal and appointed a day for proceeding with the suit. It may be stated here that a cost of Rs. 40/- was awarded against the plaintiff. 5. The learned counsel appearing on behalf of the petitioners-Defendants submits that the application purported to be under O.9, R.9 of the Code is in fact not an application under the said Order inasmuch as the order of dismissal of the suit was not made under O.9, R.8. His second contention is that the impugned order dated 22-11-75 is hit by the principles of res judicata as contained under Section 11 of the Code Civil Procedure. 6. Heard the argument and perused the order. I am of the definite view that the order is even handed and fair and there is nothing to interfere with such a rational order. In regard to point No. 1 it appears from the order dated 16-9-74 that one of the grounds for dismissal of the suit was the absence of the plaintiff and as such, it did attract the provisions of O.9, R.8. In regard to point No. 1 it appears from the order dated 16-9-74 that one of the grounds for dismissal of the suit was the absence of the plaintiff and as such, it did attract the provisions of O.9, R.8. Apart from that this was a case in which the husband was appointed as an attorney and he was looking after the suit on behalf of the plaintiff and to all intents and purposes the attorney was the plaintiff and in a case of this nature the Court has jurisdiction to consider such dismissal as a dismissal under Order 9, Rule 8. But, however, I am of the definite view that the order dated 16-9-74 was order dismissing the suit on account of the absence of the plaintiff. As such, I hold that the learned Assistant District Judge had the jurisdiction vested in him by law to pass the order under O.9, R.9 of the Code. 7. In regard to the second submission it should not detain me long to dispose. The provision contained in O.9, R.9 of the Code is primarily and exclusively meant for setting aside an order of dismissal of a suit. Under O.9, R.9 the plaintiff is to satisfy the Court that there was sufficient cause for his or her non-appearance when the suit was called on for hearing. The Court gets the jurisdiction to consider an application under O.9, R.9 only if an order has been passed under O.9, R.8 of the Code. I fail to see as to how the provisions contained in Section 11 of the Code can have any application in a case of this nature. No cogent reason or authority has been submitted by the learned Counsel appearing on behalf of the petitioners in support of the contention. I hold that no order made by a Court under O.9, R.8 of the Code can be "res judicata" and stand in the way of a Court competent to pass an order under O.9, R.9 of the Code. The submission of the Counsel is misconceived. 8. Therefore, I hold that the trial court passed the impugned order acting within his jurisdiction. The order is just, even handed and well reasoned. 9. I reject the application with cost of Rs. 100/-. 10. Send down the records for an early disposal of the long pending suit at the earliest convenience of the learned trial Court. 8. Therefore, I hold that the trial court passed the impugned order acting within his jurisdiction. The order is just, even handed and well reasoned. 9. I reject the application with cost of Rs. 100/-. 10. Send down the records for an early disposal of the long pending suit at the earliest convenience of the learned trial Court. Application rejected.