Sen, J.:— This and the connected two applications for revision arise out of three suits instituted by Misir Raj Bahadur Singh minor with Mt. Maharaj Kunwar as his next friend in the Court of the parganna officer of Tehsil Karhal for recovery of profits from the defendant who is a lambardar. The case was adjourned from time to time. On 25th September 1928 the parties were not ready with their evidence. On 2nd November 1928, the plaintiff had no evidence ready in Court. An order was passed on that date distinctly intimating to the plaintiff that he was to be ready with his evidence on 9th November 1928 and if he failed to do so, no further indulgence would be allowed. On 9th November 1928, there was no appearance on behalf of the plaintiff and this suit and the connected two suits Nos. 16 and 22 of 1928 were dismissed for default of appearance under O. 9, R. 9 of the CPC.
2. On 10th December 1928, an application was presented in each of the three suits for setting aside the order, dated 9th November 1928 and restoring these suits. Notice of these applications was duly served upon the defendant.
3. He filed his objections on 16th March 1929. On 4th April 1929, the suits were restored with the following order “Restored on payment of Rs. 20 as costs. Same order in Cases Nos. 17 and 22.”
4. It has been contended on behalf of the defendant who has filed this revision under Section 115 of the CPC that the order directing the restoration of the suits was one passed without jurisdiction. The Assistant Collector was competent to entertain the application dated 8th December 1928. But he was bound by the provisions of O. 9, R. 9 of the CPC, an in the event of the plaintiff satisfying the Court that he was precluded from appearing for a sufficient cause, the Court could set aside the order, dismissing the suit for default, and could reinstate the suit. In the present case, the application for restoration was supported by an affidavit which states that the minor plaintiff was ill and that his next friend is a pardanashin lady. The affidavit does not go beyond this. But it is stated in the application that on account of the illness of Raj Bahadur Singh, Mt. Maharaj Kunwar the mother could not make any arrangement through anybody for the due prosecution of the suits. Neither in the application nor in the affidavit there is mention of the date when the illness began. The fact whether any doctor was in attendance or not is not disclosed. Further there is no mention in the affidavit that because of the illness of the son, the mother found herself in such state of embarrassment as not to be abl to send a person to the headquarters to instruct her legal practitioner, engage in the case. We are of opinion that to materials before the Court were insufficient to justify the setting aside of to order of dismissal. The learned Assistant Collector ought to have determine the crucial issue whether or not that was any sufficient cause for the non-appearance of the plaintiff on the date fixed.
5. He ought to have applied a judicial mind to the materials before ??? and arrived at a clear and determination finding. He has not considered the objections of the defendant at all. When a Court sets aside an order of dismiss without considering the evidence prduced by the parties and without an reference to the pleading involved in to case, the order in question is vitiated be a material irregularity. We are of opinion that the order dated 4th April ??? cannot and ought not to stand. We accordingly allow this application for revision, set aside the order, dated 4th April 1929 and restore that of 9th November 1928. It has been strongly ??? upon us that the plaintiff in this case is a minor and that her guardian is pardanashin lady, and persons so situated, are entitled to some indulgence. We regret we cannot extend our sympathy to persons who had received a definite and distinct order from the court to be ready with their evidence on the November 1928. If there was a seasonable cause for the non-appearance if the plaintiff through a properly constituted agent there ought to have been distinct materials before the Court to prove it. The plaintiff had the opportunity of proving this and has eminently died in his effort. We make no order as to costs.
K.N/R.K
6. Order accordingly.