B.K. Mullick, J.The suit was instituted on the 31st March 1921 and the Commissioners report was received on the 18th July 1922. Thereafter adjournments were taken by both sides and the 21st August was fixed for hearing. On that date the parties were not ready and the 15th October was put down for "peremptory hearing." The parties again applied for time and the 4th December was fixed for final disposal. On that day the plaintiffs applied for time but were refused. The defendants of whom there were 21, were also not ready and as their Pleader Babu Paras Nath, who had been instructed from the beginning and who should have conducted the case, was not present, they engaged a hew Pleader named Babu Shyarnaldas Chakravarty who applied for time. The Court was willing to give three days in order to enable him to prepare the case, but this offer was not accepted by the Pleader and he retired. Thereupon the Court began the examination of the plaintiffs witnesses. At 2 P.M. after two witnesses had been examined Babu Paras Nath appeared and applied for an adjournment. The Court was willing to give one day if the defendants paid Rs. 10 as adjournment costs to the plaintiffs. Babu Paras Nath declined the offer and retired from the case. The examination of the witnesses then proceeded and was concluded the same day. Judgment was reserved and on the 7th December the case was finally disposed, of and an ex parte decree was made against the defendants.

2. An application was then made to the Subordinate Judge for restoration but without success.

3. There was then an appeal to the Additional District Judge of Monghyr, but he also found that sufficient cause has not been shown for restoring the case.

4. The present application is made in revision.

5. It is quite clear that Section 115 of the C.P.C. does not give us any power to interfere. The Court below has exercised its discretion and no question of jurisdiction arises.

6. But it is contended that we have wide powers u/s 107 of the Government of India Act and that there has been a denial of the right of fair trial. Here also the petitioners must fail, for it is not even suggested that the application for setting aside the ex parte decree has not been properly tried. The Court determined according to law the question of fact whether sufficient cause had been made out by the defendants and it is not clear how there can have been any denial of the right of fair trial. The following cases were cited on one side or the other, but it does not appear that any of them deals with a decision under Order IX, Rule 13 of the C.P.C. Siva Prosad Ravi v. Tricarnlas Coverji Bhoja 27 Ind. Cas. 917 : 42 c. 926, Parmeshwar Singh v. Kailaspati 35 Ind. Cas. 801 : 1 P.L.J. 336 : 17 Cri.L.J. 269 : 1 P.L.W. 95 : (1917) Pat. 1, Ganga Prasad v. Naidu Ram 37 Ind Cas. 129 : 1 P.L.J. 465 : 20 C.W.N.. 1080 : 3 P.L.W. 55, Kumar Chandra Kishore Roy Chowdhury v. Basal Ali Chowdhury 44 Ind. Cas. 763 : 22 C.W.N. 627 : 27 C.L.J. 418, Brundaban Chander Choubey v. Gour Chandra Ray 56 Ind. Cas. 155 : 1 P.L.T. 467 : (1920)Pat. 56 , Mani Lal and Others Vs. Durga Prasad and Others, and Sarju Bala Debi v. Mohini Mohan Ghosa 82 Ind. Cas. 1008 : 28 C.W.N. 991 : 40 C.L.J. 191 : A.I.R.(1925) (C.) 204. The general principle is contained in the Full Bench case of Parmeshwar Singh v. Kailaspati 35 Ind. Cas. 801 : 1 P.L.J. 336 : 17 Cri.L.J. 269 : 1 P.L.W. 95 : (1917) Pat. 1, and unless a case of a denial of the right of fair trial can be made out this Court will not interfere. I think, therefore, that we are powerless to interfere u/s 107 of the Government of India Act.

8. But apart from this legal difficulty the application of the petitioners has no merits.

9. Now, the first ground urged for the failure of the defendants to conduct their case is that one of them named Sukar Singh had been put into Jail. Now, it appears that Sukar Singh was sentenced to a term of rigorous imprisonment for four years about 12 or 13 days before the 4th December. As his trial must have taken some time, it is not explained why the contingency of his being sentenced was not provided against. Nor is it explained why the other defendants could not prosecute their cases without his assistance. If it is said that he had been looking after the case previously, then some explanation should have been given as to what steps the other defendants took after lie was put into Jail to arrange, for the conduct of the case. No evidence is forthcoming on this point. Moreover the defendants are in possession of separate holdings of which the plaintiff is seeking to take possession. They do not constitute a joint family and most of them have filed separate written statements. The defendant Siri Singh was present in Court, on the 4th December and it is not shown why he could not have instructed the Pleader. The allegation that the defendants were helpless without Sukar Singh has been found by both Courts below to be unfounded and no fresh materials have been placed before us in support of it.

10. The next ground is that Babu Paras Nath was not in Monghyr when the case was taken up on the 4th December. There is no explanation as to when he left Monghyr and why he was absent on the 4th December. If the defendants were really intending to go on with the case, they would have given evidence to show that they came to Monghyr in proper time and that in spite of due diligences it was impossible to instruct another Pleader. I agree, therefore, that the evidence does not show that the defendants made any effort to be ready. As for the Pleaders engaged in the case, I can understand that Babu Shyamaldas should not have been willing to undertake the case with a three days adjournment, but Babu Paras Nath did arrive at 2 P.M. and his conduct seems altogether unintelligible if the defendants were really anxious that he should proceed with it. It is not understood why he gave no explanation for his late arrival and why he refused the one days adjournment that the Court offered. Although the case had been pending for over 18 months, no summonses had been issued to any witnesses for the defence and it would, therefore, appear that the defendants were able to bring the witnesses whenever they liked. Why did they not bring a single witness with them on the date of hearing Again the Court below finds that there was sufficient time to send a man by train to Ramchanderpore and to fetch the witnesses by the 5th or the morning of the 6th December. Why did the defendants not do this Why again did they not instruct Babu Paras Nath to go on with the cross-examination of the plaintiffs witnesses, in that case the defence witnesses would, it seems, have had quite enough time to arrive before the cross-examination was closed.

11. Then it is said that the defendants required time to file certain documents. The case was pending 18 months and obviously it is quite impossible to accept this as a ground for adjournment. The case turned principally upon the Commissioners report and this had been filed in July.

12. The defendants appear to make a grievance of the fact that Babu Paras Nath was not allowed even the three days time which was offered to Babu Shyamaldas. The explanation of this is quite clear. Babu Shyamaldas was new to the case and, therefore, required time to read the brief, but that did not apply to Babu Paras Nath who had been in it from the beginning. Moreover the examination of the plaintiffs witnesses having commenced, the Subordinate Judge was right in not interrupting it for long.

13. Why the defendants failed to make any contest after the case had been pending so long, it is of course impossible to explain with any certainty and it may be that, as is suggested, both parties had agreed that they would not have the case heard on the 4th December. It is quite impossible, however, to carry on public business if such arrangements are to prevail and to allow the impression to grow that the High Court will always come to the aid of a defaulting suitor.

14. It is finally said that about 200 bighas of land are involved and that the defendants will lose their holdings. It seems that they are raiyats without any right of occupancy who claim under a proprietor from whom the plaintiffs have got a title by transfer The defendants are interested in separate plots and there is no reason why some of them at least could not have carried on the case if they had a good defence. The view of the Courts below seems to have been that the defendants were throughout adopting an obstructive attitude and the failure on the 4th December was merely a part of their general policy. That may be so. But whatever the real reason, sufficient cause has not been shown for restoring the case.

15. I would dismiss the application with its: hearing fee two gold mohurs.

(sec) J.

16. I agree.