Sreemutty Toolsy Money Dassee vs Sreemutty Prosad Money Dassee

Sale, J.—This is an application for restoration of a case under the provisions of secs. 156, 157, 102 and 103 of the Civil Procedure Code. A decree was made on the 13th January 1898, dismissing the suit under the following circumstances :--The case was called on for hearing on the 12th January. The parties were then represented by counsel. The case not having been disposed of within the usual Court-hours of business, was, in the ordinary course, adjourned to the following day. On the following day Mr. Palit appeared for the Defendant, but the Plaintiff did not appear. The learned counsel who represented the Plaintiff on the previous day was in Court, but stated that he had no further instructions to appear. Now the question is whether, when a suit has been dismissed under circumstances of that character, an application to restore it may be entertained under the provisions of the Code to which I have referred. There are, it appears to me, very serious difficulties in the way of making the order of restoration sought to be allowed. In the first place I should be disposed to think, having regard to the language used in secs. 156 and 157, that those sections do not apply to an adjournment made, not at the instance of the parties, but necessitated by the rules of the Court which regulate the disposal of its own business. Sec. 156 refers to an adjournment made by the Court if sufficient cause be shown, that is to say, as I take it, if sufficient cause be shown by a party applying for an adjournment. But even supposing that secs. 156 and 157 are applicable to the case, I am clearly of opinion that the Plaintiff has failed to show that she was prevented by sufficient cause from appearing when the suit was dismissed. Assuming these sections to apply, the Court has only power to restore the case provided sufficient cause be shown. Now what is the cause which is put forward in the present case? It is said that the husband of the Plaintiff was and had been for some time previously suffering from fever and headache, but that cause did not prevent proper instructions from being given on the previous day and did not prevent the Plaintiff from appearing on that day. It is not shown that any fresh circumstances had operated to prevent her from appearing on the subsequent day. If I thought it right to act on my recollection, I should say that the abstention on the part of the Plaintiff from being present in Court on the hearing of the suit on the subsequent day was deliberate, and in consequence of advice given to the Plaintiff there has, it appears, been a change of the Plaintiff''s legal advisers, and it is apparently now sought to have an opportunity of taking another course in the case. Whether that be so or not, I am quite clear that that does not amount to "sufficient cause" within the meaning of sec. 103. Under the circumstances it appears to me that the application should be dismissed with costs.