Default dismissal under civil procedure rules justified restoration where absence was not shown to be deliberate.

A dismissal following the plaintiff's failure to proceed after an adjournment was treated as a default dismissal under Order IX, Rule 8 CPC, not as a dismissal under Order XVII, Rule 3. The plaintiff's pleader had stated that he had no instructions to proceed, so he could not be treated as continuing representation for the purpose of Order XVII. Restoration was justified because the affidavit showed efforts to produce witnesses and absence without deliberate default, and that version was not contradicted by any counter-affidavit. The refusal to restore the suit was set aside.

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Issues: Whether the dismissal of the suit was under Order XVII, Rule 3 or Order IX, Rule 8 of the Code of Civil Procedure, 1908, and whether sufficient cause was shown for restoration of the suit.

Analysis: The adjournment sought by the plaintiff was not an adjournment granted to enable the plaintiff to perform any act necessary for the further progress of the suit, and the plaintiff had not failed to do any act for which time had been granted. The plaintiff's pleader, having stated that he had no instructions to proceed, could not be treated as continuing to represent the plaintiff for the purpose of the explanation to Order XVII, Rule 2. The dismissal therefore fell within Order IX, Rule 8 and not Order XVII, Rule 3. The affidavit filed in support of restoration, showing efforts to produce witnesses and absence without deliberate default, was not controverted by any counter-affidavit, and it was not open to disbelieve that version in the absence of rebuttal.

Conclusion: The order dismissing the suit was treated as one for default under Order IX, Rule 8, and sufficient cause for restoration was held to exist; the refusal to restore the suit was set aside.

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