JUDGMENT
1. This is an application for revision of an order of the District Judge of Gorakhpur dismissing an appeal against an order of the Additional Munsif of Deoria disallowing an application for restoration of a case which had boon dismissed. It appears that the plaintiff was required by the Court to produce some hooks of account. He failed to comply with the order of the Court and on March the 23rd, 1914, the date ultimately fixed for the production of the accounts, he was absent. The Munsif recorded an order which concluded as follows: “As the plaintiff is absent, order–the suit is dismissed with costs. The defendant shall get his costs from, the plaintiff” It seems to us that there can be no doubt that the Munsif was acting under Order XVII, Rule 2, read with Order IX, Rule 8, Civil Procedure Code, and that he dismissed the suit because the plaintiff did not appear when the suit was called on for hearing and not because the plaintiff had failed to produce his books. The plaintiff applied for restoration of the case under Order IX, Rule 9, Civil Procedure Code. The Munsif dismissed the application, because in his opinion the suit had been dismissed under Order XI, Rule 21, therefore, no application for restoration was maintainable, and also because the plaintiff, had failed to satisfy him that he had sufficient cause for his non-appearance. The plaintiff then appealed to the District Judge, who dismissed the appeal saying: “The application was rightly rejected because the suit had been dismissed under the provisions of Order XI, Rule 21, of the Code of Civil Procedure.” It seems to us that both the District Judge and the Munsif were under a misconception when they said that the suit had been dismissed under Order XI, Rule 21. It is not a case of a party having failed to comply with an order for discovery or inspection of documents, for such an order could only refer to documents the existence of which was referred to in the pleadings or affidavits. The result is that through a misconception the District Judge has failed to consider whether the plaintiff was entitled to present an application for restoration of the case. It is clear that the learned Judge was of opinion that if the plaintiff objected to the order dismissing his suit, he should have appealed under Order XLIII, Rule 1(f). In short, the District Judge has, through a misconception, failed to exercise his jurisdiction. He ought to have heard the appeal on the merits. We allow this application, set aside the order of the District Judge and direct that the record be returned to him in order that he may dispose of the plaintiff’s appeal according to law. Costs of this application will be costs in the cause.
