ORDER 15.9.2003 — Heard. 2. This Civil Revision is disposed of at the stage of admission after service of notice on the opposite party, but she has not appeared. 3. Petitioner is the defendant in Title Suit No.27 of 1999 of the Court of Civil Judge (Senior Division), Bolangir and opposite party is the plaintiff in that suit. That suit having been posted for hearing, was dismissed for default of the plain¬tiff. Opposite-party/plaintiff filed M.J.C. No. 62 of 2001 under Order 9, Rule 9, C.P.C. to restore the suit on the grounds that she was ill from 16th to 18th November, 2001 and her Advocate had noted a wrong date in his diary and her Advocate could not take step (file an adjournment petition) in the suit because of his pre-occupation in some other Court. That application was resisted by the petitioner stating that the facts pleaded by the opposite party are all false, besides being self-contradictory and there¬fore the suit should not be restored. 4. In course of hearing of the M.J.C., opposite party examined herself as P.W. No.1 and the Doctor of the Government Ayurvedic Hospital as P.W. No.2 and the Medical Certificate granted by him as Ext. 1. Petitioner did not adduce any evidence. Learned Civil Judge, on perusal of such evidence, believed the plea of illness and found Ext. 1 to be genuine and accordingly passed the impugned order in restoring the suit. That order is under challenge in this Civil Revision. 5. Mr. B. N. Rath, learned counsel for the petitioner argues that this Civil Revision is maintainable because if the impugned order would have been made in favour of the revision-petitioner then that would have finally disposed of the aforesaid suit and that satisfies to one of the requirement of law as provided in the proviso to Section 115 (1) C.P.C. He further states that the provision in Order 43, Rule 1, C.P.C. does not provide for an appeal against the impugned order, therefore, the condition as stipulated in Sub-Section (2) of Section 115, C.P.C. is satisfied. He further agues that the impugned order comes within the meaning of the term “case decided’ and petitioner alleges about exercise of jurisdiction by the Court below illeg¬ally and with material irregularity. He further agues that the impugned order comes within the meaning of the term “case decided’ and petitioner alleges about exercise of jurisdiction by the Court below illeg¬ally and with material irregularity. On being asked, he states that he has checked up the Civil Revisions disposed of by this Court in batches and in no case ratio has been laid by this Court contrary to the position of law which he argues on the maintaina¬bility of the Civil Revision. 6. Section 104 read with Order 43, Rule 1, CPC provides the provision for appeal against certain type of the orders. In that context, Clause (c) in Rule 1 of Order 43, provides that - “An Order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismis¬sal of a suit.” Thus, it appears that an order passed in allowing an appli¬cation under Order 9, Rule 9, C.P.C. is not an appealable Order. Since the proceeding under Order 9, is an off suit arising in a suit, therefore, effect of that order if passed, in favour of the revision-petitioner would result in final disposal of the suit. Thus such an order comes within the jurisdiction of this Court to be considered on merit under Section 115, CPC are satisfied. As rightly argued by Mr. Rath the other conditions are satisfied in this case. Therefore, the Civil Revision is found maintainable. Such a Civil Revision shall not be maintainable against an order rejecting application under Order 9, Rule 9, C.P.C. because in that event, if the impugned order would be passed in favour of the revision-petitioner, then that would not result in disposal of the suit, rather that would result in restoration of the suit. 7. Mr. Rath, learned counsel for the petitioner argues with vehemence that plea of illness could not have been believed when P.W. No.2 as a Government Ayurbedic Doctor granted the cer¬tificate Ext. 1 as against the restriction imposed by the State Government. Before dealing with that contention it be noted that, it is clearly readable from the impugned order that the evidence relating to illness of the opposite party was consistently stated by both the witnesses and corroborated by Ext. 1. That factual finding has not been proved on record to be illegal or suffering from perversity. Before dealing with that contention it be noted that, it is clearly readable from the impugned order that the evidence relating to illness of the opposite party was consistently stated by both the witnesses and corroborated by Ext. 1. That factual finding has not been proved on record to be illegal or suffering from perversity. Coming to the contention raised by the petition¬er, no fault can be found with the petitioner for getting herself treated by P.W. No.2 and obtaining a certificate from him in proof of that treatment. In that respect if P.W. No.2 has miscon¬ducted himself or acted in violation of any direction of the employer, then it is for the petitioner to take appropriate action against the P.W.2 in the appropriate forum. Therefore, on the ground as advanced by the petitioner, credibility of Ext.1 cannot be doubted nor evidence of P.W. No.2 is liable to be ignored. 8. Mr. Rath also argues that petitioner advanced two inconsistent pleas, one relating to wrong entry in the diary of the Advocate and the other relating to pre-occupation of the learned Advocate in some other Court for his inability to file an application for adjournment. In that respect there is no detailed evidence to form an opinion. be that as it may, if at all there is a contradiction in such pleas, than that may at best indicate about the negligence on the part of Advocate for the plaintiff/opp.party. It has been stated by this Court in so many occasions that a party should not suffer for the negligence/laches of the Advocate. See the case of Hemant Kumar Kar v. Srimant Kumar Nanda,* (2002) 23 OCR-220. Therefore, this Court does not find much force in that contention of the peti¬tioner to interfere with the order of restoration of the suit. 9. On perusal of the impugned order, this Court does not find that Court below has failed to exercise the jurisdiction so vested in him or has illegally exercised the jurisdiction while deciding the application under Order 9, Rule 9, C.P.C. However, this Court finds that dismissal of the suit and the subsequent conduct of restoration has resulted suffering of some harassment and expenditure by the petitioner. That aspect was not properly considered nor any cost was saddled with the plaintiff/opposite party while the impugned order of restoration was passed. That aspect was not properly considered nor any cost was saddled with the plaintiff/opposite party while the impugned order of restoration was passed. Under such circumstances, this Court modifies the impugned order of restoration making it enforceable subject to payment of cost of Rs. 300/- (Rupees three hundred) by the opposite party/plaintiff to the petitioner/defendant within a period of three weeks from the date of communicating this order to the opposite party. Since the opposite party has not appeared in this Court, therefore, the Court below is directed to intimate this order to the plaintiff either personally or through her Advocate so that cost shall be paid in time. 10. The Civil Revision though found maintainable but stands disposed of in the above manner by modifying the order of restoration and directing payment of cost as the condition prece¬dent for restoration of the suit. As observed above, learned Civil Judge shall intimate to the plaintiff regarding her liabil¬ity to pay the cost within the stipulated period. Civ. Revision disposed of.