JUDGMENT Kaushal Kishore, Member. - In this reference dated February 7, 1979, the learned Additional Commissioner, Faizabad Division, Faizabad, has recommended that the order of the learned trial court dated April 12, 1978 may be set aside and the case be remanded for deciding the restoration application dated April 5, 1976 on merits. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The facts of the case in brief are that before the trail court, the case under S. 229-B/209 of the U.P.Z.A. and L.R. Act was dismissed in default on March 11, 1976 even before the written statement could be field, a restoration application from the plaintiff Smt. Uttamdie was filed on April 5, 1976 alongwith affidavit, arguments were heard on August 18, 1977 and there was no counter-affidavit from the other side, the application was fixed for orders on August 23, 1977 an affidavit was filed on August 22, 1977 by the opposite party and on August 23, 1977 for the absence of the applicant, the restoration application was dismissed in default, on August 31, 1977 another application by the plaintiff was filed for recalling the order dated August 23, 1977 but this was also rejected on April 12, 1978, on the ground of the applicant being a habitual pretender of illness. 4. The learned counsel for the applicant has argued that the recommendation by the learned additional Commissioner is in his favour, and that the order dated August 23, 1977 was passed without jurisdiction. The learned counsel for the opposite party has argued that the trial court has held that the ground of illness of the applicant on August 23, 1977 was false and that the order dated April 12, 1978 could only be under Section 151 C.P.C. and no revision petition lies against such order. 5. I find a basic defect of jurisdiction in this case in passing the order dated August 23, 1977. This order of dismissal of the application for the absence of the applicant could only be either under Order IX Rule 3 or 8 C.P.C. Rule 3 applies when both the parties are absent and rule 8 applies when the plaintiff alone absents. This order of dismissal of the application for the absence of the applicant could only be either under Order IX Rule 3 or 8 C.P.C. Rule 3 applies when both the parties are absent and rule 8 applies when the plaintiff alone absents. In both the cases, such absence must be on the date when the suit is called on for hearing, Admittedly, as also seen from the order dated August 18, 1977, the case was fixed for the orders on August 23, 1977. It was no date for hearing. There was no occasion to file the affidavit on August 22, 1977 after the argument had been heard on August 18, 1977. The learned trial court could not deem August 23, 1977 a date for hearing merely on the basis of affidavit filed on August 22, 1977 unless the two parties had been duly informed that August 23, 1977 was fixed for hearing the parties. Even for fixing a hearing, sufficient notice would have been necessary. This application having been dismissed obviously under Order IX Rule 8 C.P.C., was without jurisdiction because August 23, 1977 was not a date for hearing. 6. A court has to guard itself against committing a mistake of dismissing a case in default on a date which is fixed for orders after concluding hearing, merely because it feels that the plaintiff-applicant should have attended. There is no legal requirement of such attendance. Order IX Rule 8 C.P.C. also does not apply in such a case. Therefore, the order dated August 23, 1977 amounted to exercise of jurisdiction not vested in the court and this order must be set aside. 7. I may further observe that even in the affidavit dated August 22, 1977 there is just denial by the opposite party of the old age and illness of the plaintiff. The plaintiff according to the plaint is about about 60 years old. The counter-affidavit does not give any age of the plaintiff. There is no improbability in occasional illness of a widow of 60 years living in a village. In view of this weak counter-affidavit, there is not likelihood of the application dated April 5, 1976 being rejected on merits and it will be a dilatory exercise even to remand this application for decision by the trial court. There is no improbability in occasional illness of a widow of 60 years living in a village. In view of this weak counter-affidavit, there is not likelihood of the application dated April 5, 1976 being rejected on merits and it will be a dilatory exercise even to remand this application for decision by the trial court. As regards the argument that no revision petition lies when an application was rejected under Section 151 C.P.C. as on April 12, 1978, it may be observed that since the basic conception of the learned trial court while passing the order dated August 23, 1977 was wrong it could not be expected to have decided rightly another application arising out on such order. the learned trial court did not appreciate want of jurisdiction in its order date August 23, 1977 and so while passing the order date April 12, 1978 against it failed in the exercise of jurisdiction vested in it. Besides, the applicant's age 60 years was never considered while holding her a habitual pretender to illness. In the circumstances, I see no need to remand the application dated April 5, 1976 and this application also should be allowed. 8. Accordingly, the revision petition is allowed, the orders of the learned trial court dated April 12, 1978 and August 23, 1977 are hereby set side, the application dated April 5, 1976 is allowed and the case is remanded for further hearing and decision in accordance with law. 9. The next date before the learned trial court is fixed for trail court is fixed for November 15, 1983.