Judgment : This miscellaneous first appeal is filed under Order 43, Rule 1(c) of the Civil Procedure Code, 1908 against the judgment and order dated 27-5-2009 passed in Misc. No. 593 of 2003 on the file of XXVII Additional City Civil Judge, Bangalore, dismissing the petition filed under Order 9, Rule 9 of the CPC for setting aside the dismissal order dated 9-7-2003 passed in O.S.No.8426 of 1998. 2. With the consent of the learned Counsel for the appellant as well as learned Counsel for the respondents, this matter was heard on merits. The Trial Court records were also called and I have perused the same. 3. Parties will be referred to with reference to the status in the Court below. 4. The averments made in the petition filed under Order 9, Rule 9 of the Code of Civil Procedure is as under: The petitioner submits that she is the absolute owner in possession of the immovable property bearing No. 4/42, situated in Survey No. 113 of Lingarajapura Village, now called as Lingarajapura, VST and Sons Garden, St. Thomas Town Post, Bangalore. The petitioner and her family members have been residing in the suit schedule property since long back as absolute owners. Originally this entire land in Survey No. 113 belonged to one late Sri Tiru Venkata Swamy Mudaliar and his family and they have gifted the aforesaid land to the petitioner’s ancestors. It is submitted that Survey No.114 of Lingarajapura consists of 6 acres 17 guntas of land and out of which respondent 1Bangalore Development Authority has acquired the land measuring 2 acres 3/4th guntas in the year 1980 for formation of layout and after the acquisition, respondent 1 has sold portion of the acquired land measuring 1 acre 21/2 guntas to respondent 3. Respondent 3 has fully occupied the land measuring 1 acre 21/2 guntas of land surrounded by stone slab compound wall and also constructed godown in their land. It is further stated that during the month of October 1998, the officials of the respondents have abruptly come to the petitioner’s property and demanded to deliver the possession of the same to them. Therefore, with no other alternative, the petitioner filed original suit in O.S.No.8426 of 1998 against the respondents for the relief of permanent injunction. The status quo order was ordered by the Court below on 2-11-1998 and it was extended from time to time. Therefore, with no other alternative, the petitioner filed original suit in O.S.No.8426 of 1998 against the respondents for the relief of permanent injunction. The status quo order was ordered by the Court below on 2-11-1998 and it was extended from time to time. That on 30-1-2003, original suit was set down for plaintiff’s evidence and on that day, the matter was again adjourned to 9-7-2003 for plaintiff’s evidence. That on 30-1-2003, instead of noting the next date of hearing as 9-7-2003, the petitioner and her Counsel have wrongly noted down the date of hearing as 19-7-2003. It is stated that the petitioner and her Counsel noted the wrong date of hearing as 19-7-2003 and they went to the Court hall to appear in the case. On verifying the cause list, they did, not find their case number and thereafter, they have verified the ‘A’ diary in order to ascertain the date of hearing. After such verification the petitioner and her Counsel have come to know that they have noted down wrong date as 19-7-2003 instead of 9-7-2003 and on 9-7-2003 the case was called out, since none appeared on behalf of the petitioner, the Trial Court was pleased to dismiss the suit for non-prosecution. Therefore, the petitioner has filed a petition under Order 9, Rule 9 before the Court below to set aside the order of dismissal for non-prosecution. 5. The respondents 1 and 2 have filed the objection statement as under: The averments made in the affidavit were all denied. Respondents 2 and 3 state that the suit property was duly notified and acquired for the formation of layout. Even the petitioner herself had admitted the acquisition. When the petitioner was not at all in possession, the question of interference nor handing over possession to respondents 1 and 2 by the petitioner does not arise. The petitioner with an intention to grab the BDA property has filed the original suit in O.S.No.8426 of 1998. The petitioner was not at all diligent in prosecuting the case nor she has assisted the Court for an early disposal of the suit. 6. Respondent 3 has filed a memo stating that this respondent has no objection to allow the miscellaneous petition. The petitioner was not at all diligent in prosecuting the case nor she has assisted the Court for an early disposal of the suit. 6. Respondent 3 has filed a memo stating that this respondent has no objection to allow the miscellaneous petition. However, he prays to direct the petitioner to co-operate with the Court proceedings for speedy disposal of the original suit, since in the original suit a simple issue whether the schedule property forms a part of the property purchased by respondent 3 or not is to be decided. 7. Learned Counsel for the appellant submits that on 30-1-2003, the original suit was set down for plaintiff’s evidence and it was adjourned to 9-7-2003. On 30-1-2003, the Counsel who appeared in that Court has noted down the incorrect date and on 9-7-2003, there was no representation on behalf of the plaintiff and on 19-7-2003, the Counsel who appeared for the plaintiff came to know that the suit was dismissed on 9-7-2003, since there was no representation. Immediately, they obtained the certified copy of the order dated 9-7-2003 and filed Miscellaneous Petition No.593 of 2003. He further submits that the plaintiff/petitioner’s evidence was recorded in the Court below. Advocate’s diary was also produced and it was marked as Ex.P.2. The Trial Court accepted Ex.P.2 and observed that there was a wrong entry but the Trial Court mainly dismissed the miscellaneous petition on the ground that it is a suit for permanent injunction and it is a recurring cause of action. 8. It is the contention of the learned Counsel for respondents 1 and 2 that the plaintiff/petitioner was not diligent in prosecuting the original suit. Since the property in question has been acquired by the Bangalore Development Authority, the suit itself is not maintainable. 9. The Trial Court has raised a point that whether the petitioner had made out sufficient cause for setting aside the dismissal order and to restore the suit in O.S.No.8426 of 1998 on its original file? The Trial Court answered to this point in the affirmative. The Trial Court mainly dismissed the suit on the ground that the suit filed by the plaintiff/petitioner was for permanent injunction only. The Trial Court answered to this point in the affirmative. The Trial Court mainly dismissed the suit on the ground that the suit filed by the plaintiff/petitioner was for permanent injunction only. The Trial Court has further observed that if for any reasons there was threat of interference by the opposite side the plaintiff could have got recurring cause of action by filing fresh suit, but instead of doing the same he has ventured to file the miscellaneous petition for setting aside the dismissal order and to restore the suit. The suit is of the year 1998 and Court below deserves that in the year 2009, no purpose will be served by allowing the petition. 10. The touchstone that has to be considered while setting aside the order of dismissal for non-prosecution is that whether the Court is satisfied that there was sufficient cause for the non-appearance of the parties, when the suit was called for hearing. In the instant case, it is the case of the petitioner/plaintiff that a wrong date was noted down in his diary and therefore he could not be present on the date of hearing. He has explained in his evidence about the same and the same was accepted by the Court below. 11. It is the contention of the learned Counsel for the appellant that a portion of Survey No. 113 has been acquired and the suit schedule property is not the subject-matter of the acquisition. Whereas, it is the case of respondent 3 that it is the property in question that has been acquired. These facts have to be adjudicated after recording the evidence. 12. The Court below dismissed the application filed under Order 9, Rule 9 of the Code of Civil Procedure on the ground that there is repetition of cause of action and without considering the fact that the plaintiff/petitioner has established sufficient cause for nonappearance on the date of hearing. As stated earlier the main criteria for setting aside the ex parte decree is that the Court is to be satisfied that there was sufficient cause for non-appearance of the party, when the suit was called for hearing. In the instant case, the plaintiff/petitioner has established that there was sufficient cause for nonappearance on the date of hearing. As stated earlier the main criteria for setting aside the ex parte decree is that the Court is to be satisfied that there was sufficient cause for non-appearance of the party, when the suit was called for hearing. In the instant case, the plaintiff/petitioner has established that there was sufficient cause for nonappearance on the date of hearing. In that view of the matter, that the Court below dismissing the application filed by the plaintiff/petitioner on the ground that there is recurring cause of action and the suit is only for relief of injunction is not sustainable in law and the same is liable to set aside. 13. In the result, I pass the following: Order (i) This miscellaneous first appeal is allowed. (ii) The order dated 27-5-2009 passed in Misc.No.593 of 2003 is hereby set aside. Consequently, the dismissal order for non-prosecution in O.S.No.8426/1998 is also set aside. The original suit in O.S.No.8426 of 1998 is restored to its original position. (iii) The Trial Court is directed to dispose of the matter within two months. The Trial Court shall submit a monthly report about the progress of the case. (iv) Parties are directed to appear on 29-1-2010 before the Trial Court. (v) The plaintiff/petitioner shall co-operate with the proceedings of the O.S.No.8426 of 1998 for speedy disposal.