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3. Facts in brief leading to the filing of this appeal are as stated below and parties are referred to as per their rank in the trial court namely appellants as defendants and respondent as plaintiff.

4. Plaintiff filed a suit in O.S.No.176/2002 seeking declaration and injunction in respect of suit schedule property and for possession of the suit schedule property. Said suit was contested and same came to be decreed by judgment and decree dated 14.09.2009. Being aggrieved by the said judgment and decree, defendants filed an appeal in R.A.No.16/2011 on the file of the Senior Civil Judge and JMFC, Kudligi. Said appeal came to be dismissed for default on account of the absence of the advocate by order dated 09.03.2012. A petition came to be filed under Order IX Rule 4 of the CPC seeking restoration of the said appeal which was objected to by the plaintiff by filing detailed statement of objections. The lower appellate court after considering the arguments advanced by learned advocates formulated the following two points for its consideration:

SMT.KAMALA AND OTHERS (2000 (2) KCCR SN 40) can be looked up.

10. In the instant case, appeal R.A.No.16/2011 came to be dismissed for default on 09.03.2012. Undisputedly, appellants i.e., the defendants did not file an application for restoration of the appeal or readmission of the appeal by filing an application under Order XLI Rule 19 CPC. For reasons best known, they choose the course of invoking jurisdiction under Order IX Rule 4 r/w Section 151 CPC. It is no doubt true that quoting of a wrong provision of law would not be a ground to dismiss the application. Even assuming or construing that application filed under Order IX Rule 4 CPC is to be construed as an application filed under Order XLI Rule 19 CPC, then it has to be examined as to whether such an application was filed in time.

a) defendant did not show sufficient cause;

b) no medical records were produced,

c) there was delay of more than 8 months in filing the application for restoration and no application for condonation of delay had been filed;

d) delay in filing the application was not explained with sufficient cause even in the application filed for restoration under Order IX Rule 4 CPC,

e) even the application filed was not under Order XLI Rule 19 but it was filed under Order IX Rule 4 CPC.

20. I do not find any infirmity in the finding recorded by the trial court and there is no ground made out to interfere with the order passed by the trial court. It does not suffer from any material irregularity either on facts or in law calling for interference. Hence, Point No.1 formulated hereinabove is answered in the affirmative. POINT NO.2: