JUDGMENT
1. This is a defendant's appeal arising out of a suit for profits. Several points have been pressed before us. The first is that the restoration of the suit, after it had been dismissed for default owing to non-appearance of all the plaintiffs, was improper. The learned advocate for the appellant argues that it is open to him to raise this point now in second appeal in view of the provision of Section 105, Civil P.C. There is some difference of opinion as regards the interpretation of that section in the High Courts in India. Our attention has also been drawn to the remarks of Lindsay, J. in the Full Bench case Ram Sarup v. Gaya Prasad A.I.R. 1925 All. 610(at p. 180 of 48 All.) dissenting from the view expressed in the Division Bench case Nand Ram v. Bhopal Singh [1912] 34 All. 592. On the other hand, there is the case of Tasadduq Husain v. Hayatunnissa [1903] 25 All. 280, directly against the appellant. It seems to us unnecessary to decide in this case whether the words "affecting the decision of the case" in Section 105, Sub-Clause (1), necessarily mean the decision on its merits.
2. In the present case the suit had been instituted by Mohammad Zafaryab Khan and his nephew and two daughters. Mohammad Zafaryab Khan's mukhtariam looked after the case on his behalf as well as the other plaintiffs, and there were numerous hearings of the case. On 1st August 1923, the mukhtariam was absent from the Court room and the suit was dismissed for default on non-appearance of both the parties. An application signed by the two male plaintiffs, was filed for restoration of the case and the setting aside of the dismissal. The application was not actually signed by the daughters of Zafaryab Khan. The learned Assistant Collector was satisfied that there was good cause for non-appearance, and set aside the dismissal and restored the entire suit in favour of all the plaintiffs. It is contended before us that the Court had no jurisdiction to restore the suit of the plaintiffs other than those who had applied. The case fell under Order 9, Rule 4, which does not expressly state that the dismissal should be set aside in favour of the plaintiff who applies. Moreover, Rule 10 of the same order makes it clear that one out of several plaintiffs may appear on behalf of all and the non-appearance of the other plaintiffs may be excused. Having regard to all the circumstances, we are unable to hold that the Court acted beyond jurisdiction in restoring the whole suit: see Maharaj Din v. Balbhaddar Prasad A.I.R. 19f25 Oudh 403. The restoration was a matter of discretion for the Court, and we cannot now say in second appeal that discretion was wrongly exercised.
3. The Court below has pointed out that the total amount recoverable, including the rent for the year and 'the past arreare, were almost twice as much as the amount actually collected in those years. The defendant lambardar did not produce any evidence to show that he had taken any steps to make collections with proper energy. On these facts it has been inferred that the negligence has been established. We cannot say that the finding is wrong.
4. The last point urged is that the defendant should have been allowed a set off of the rents due from one of the plaintiffs to the defendant. No set-off can be allowed under the Tenancy Act Section 193(g).
5. The appeal is accordingly dismissed with costs.