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TMI Blog1964 (5) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... atements. Messrs, D. C. Dutt and Co. were acting as solicitors for the plaintiff. On April 10, 1963, this firm was dissolved owing to the death of one of the partners. On the 19th April, 1961, a new warrant of attorney was filed on behalf of the plaintiff, which is the appellant herein, by Mr. T. Goswami, a solicitor of this court. On May, 1, 1961, Goswami received certain papers of the suit from Mr. A.K. Dutt of D.C. Dutt and Co. On July 24, 1961, a notice was issued by this court to T. Goswami that the suit would be set down in a list before G.K. Mitter, J. in Chambers on the 2nd August, 1961, and would be 'dismissed for default unless good cause is shown to the contrary, or will be otherwise dealt with as the Judge may think proper.' This is the usual notice which is served on the parties or their attorneys when a suit is about to be placed in what is known as the 'Special List'. 2. On the 2nd August, 1961, the suit appeared in the Special List before G.K. Mitter, J. It is stated in paragraph 5 of the petition (herein page 4 of the Paper Book that: on submissions being made by the said Mr. T Goswami on behalf or your petitioner, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day, namely October 4, 1961, the application was adjourned till the 28th November 1961. It appears that four other adjournments were obtained between November 28, 1961 and January 10, 1962. In the meantime on the 14th December, 1961, the most crucial date for our purposes the order of Mallick. J. made on the 30th August 1961 was drawn up and filed. 6. On the 16th January, 1962, the plaintiff's application for filing of the affidavits of documents by the defendants was mentioned by Mr. T. Goswami before Sinha. J. for leave to amend the summons to serve on the defendant No. 2 personally in view of the death of his Solicitor. Mr. P.K. Sen, learned counsel for the defendant No. 1 informed the Court that the suit had already been dismissed by Mallick, J.T. Goswami asked for time till the 24th January, 1962 to make enquiries and the application was adjourned till that date. 7. On January 24, 1962, the present application was made by the plaintiff for condonation of delay, for setting aside the order striking out the suit on the 30th August 1961, for restoration of the suit and liberty to continue the suit. The application was heard by Mallick, J., on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Rule 1 of Order 9 of the Code of Civil Procedure. The reason given by Mookerjee. J. (Beach croft J. concurring) is as follows; Order 43, Rule 1 Clause (c) shows that an appeal lies against an order under Rule 9 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. Rule ft applies to cases under Rule 8, that is, cases when the defendant appears and the plaintiff does not appear and the suit is accordingly dismissed for default. The Code distinguishes between cases where neither party appears and cases where the plaintiff is absent and the defendant appears. These are two classes of cases contemplated by Rules 3 and 8 respectively, and the applications for restoration are made under Rules 4 and 9. It is worthy of note that whereas an appeal is allowed against an order refusing to set aside a dismissal of a suit under Rule 9, no appeal is allowed against an order refusing to set aside a dismissal of a suit under Rule 4........ 9. There may be another reason why the appeal does not lie. Under Rule 9 of Order 9 the plaintiff is precluded from bringing a fresh suit in respect of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, that when once the order has been completed it should not be liable to review by the Judge who made it. 13. On the same page A. L. Smith L. J. observes: This is not an application to re-hear a matter before the order has been drawn up and perfected. Nor is it an application to vary an order which has been drawn up not in accordance with the order pronounced by the Judge. Nor is it an application that the Judge should make an order supplemental to the order drawn up; but it is an application that he should rehear the order made and perfected, and make another in its place. In my opinion, the Judge had no jurisdiction to do this, though in the three former cases he might have done so. 14. The same view was taken in our court by Buckland J., in an application to vacate an order dismissing a suit for default under Chapter X Rule 36 (now Rule 35) of the Original Side Rules. His Lordship was of the view that the principle that where an order had been perfected the Judge had no power to re-consider the matter applied equally well to an order of dismissal for default under this Rule. The jurisdiction comes to an end once the order is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led. It is for the officer to decide whether he requires the presence of the parties and the production to him of their briefs and other documents to enable him to settle the draft. If the officer feels that no assistance is required for settlement of the draft he need not give any notice at all. 18. In this case when the suit appearing in the special list was struck out by the order of Mallick, J., none of the parties was present. It was a simple order and its settlement did not, in our opinion, require the presence of the parties. It cannot therefore be said that the settlement was bad or invalid in the absence of notice to the appellant's solicitor. 19. Mr. Tibrewal has also argued that the order has not been drawn up in accordance with the pronouncement of the Court. Mullick, J., on the 30th August, 1961, ordered that the suit be struck out. But the order as drawn up (pages 70 and 71 of the paper book) reads: This suit be and the same is hereby dismissed for want of prosecution. 20. It is well known that when neither the plaintiff nor the defendant appears the suit is usually ordered to be struck out. But when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Rule 35 of Chapter X. Having regard to the averments in paragraph 19 of the petition with which the appellant has come to this Court, to my mind, it is not open to the appellant to contend that Article 163 did not apply to its case. In Shree Chand Daga v. Sohanlal Daga AIR1943Cal257 our appellate Court has held that Article 163 is framed to meet all cases where steps are to be taken to set aside dismissal of suits in default. This judgment was followed by P.B. Mukharji, J., in Debendra v. Satyabala AIR1950Cal217 . His Lordship holds that where a suit on the original side of the High Court is dismissed for default of appearance of the plaintiff an application to set aside such dismissal must be made within the period of limitation prescribed by Article 163 of the Limitation Act. 22. On the facts of this case we have to hold, therefore, that Article 163 was attracted to the application of the 24th January, 1962 and as such, it was barred by limitation. 23. Mr. Tibrewal has also argued that when the suit appeared for the second time in the special list on the 30th August, 1961, a fresh notice should have been given to the appellant's solicitor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Tibrewal., consented to the adjournment particularly after the 14th December, 1961, and should have told the appellant's attorney that the suit was no longer alive 26. I do not say that the conduct of the solicitors for the defendant No. 1 was at all commendable but the fact remains that no duty was cast on them to inform the appellant's solicitor that the suit was dead. 27. I intend now to make a few comments on the merits of this appeal. It is clear from the facts set out in this judgment that practically no steps were taken in this suit after the filing of the written statements by the two defendants on the 17th November, 1958 The suit appeared in the special list on the 2nd August, 1961. It was represented to G.K. Mitter, J., that the new solicitor of the appellant was not in possession of all the relevant cause papers and documents. The suit was adjourned to the next special list. Immediately thereafter the appellant's solicitor started taking certain steps. He knew that the suit would again appear in the special list but on the 30th August he did not appear before Mallick, J., although his name was on the list. The learned trial ..... 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