JUDGMNET This appeal is against the order dated 8.1.1997, passed by the District Judge, Morena, whereby application under Order 9 Rule 9 C.P.C., filed by the appellants has been rejected. Briefly stated the facts are that the appellants filed the suit for declaration and permanent injunction against the respondents. The claim was denied. On 12.9.1994 the appellants did not appear. As a result, the suit was dismissed. An application for restoration of the suit was filed on the ground that appellant/plaintiff No.1 Vishwanath, who was prosecuting the case out of the plaintiffs, suddenly fell sick from 10.9.94 to 19.9.94 and therefore, he could not inform his counsel. The other plaintiffs had gone out of station on account of urgent work. This application was opposed by the otherside. The court-below has rejected the application holding that it has not been proved that appellant No. 1 Vishwanath was sick and the other plaintiffs namely Denanath and Dharmendra Kumar had gone out of station. The Court below held that no sufficient cause has been shown for absence by the plaintiffs. As such, the application was rejected. Shri K.K. Lahoti, learned counsel for the appellants contended that one of the reasons of the rejection is that Dr. K.K. Gupta, who examined the plaintiff Vishwanath has not been produced to substantiate the sickness. Learned counsel for the appellants, therefore, prayed that he should be given opportunity to produce Dr. K.K. Gupta and examine him, in view of the facts and circumstances of the case, as the provisions are not penal. Shri Ravi Tomar, Learned counsel for the respondents, on the other hand, contended that even the list does not survive. The property in question has been sold to brother-in-law of Vishwanath. Shri Lahoti is not in a position to make any statement to that effect as this point is being raised here in appeal. Be that as it may, in the opinion of this Court, ends of justice would serve, if the matter is remitted back to the Court below to consider the application afresh after giving opportunity to the plaintiffs/appellants to produce and examine Dr.K.K. Gupta. It will be open to the respondents to show that the list does not survive. The respondents shall also be given opportunity to lead such other evidence, if they so desire. In view of what has been stated above, the appeal is allowed. It will be open to the respondents to show that the list does not survive. The respondents shall also be given opportunity to lead such other evidence, if they so desire. In view of what has been stated above, the appeal is allowed. The order passed by the Court below dated 8.1.1997 is set aside and instead the opportunity is granted to the appellants to produce/examine Dr. K.K. Gupta subject to payment of cost of Rs. 500/-. The cost be paid to Shri Ravi Tomer, counsel for respondents or deposited in Court.