1. This is an application on the part of the defendants to set aside an ex parte decree passed by Mr. Justice Rangnekar on March 11, 1932.
2. The suit had been filed as a summary suit, and the defendants had obtained leave to defend in 1929, and the suit had gone into the long causes list. It appeared on the daily board of Mr. Justice Rangnekar on March 7, 1932, being sixth on the list. It continued to appear on the daily board of Mr. JusticeRangnekar for some days, It was again sixth on the list of Mr. JusticeRangnekar's board on March 11. That learned Judge, as was known, was shortly to sit. in the Criminal Sessions, and, as is also well known, in such circumstances, a learned Judge may not then be prepared to take up any case which is likely to last a long time. It might, therefore, have been anticipated by solicitors and counsel engaged in any of the cases then appearing on the board that any one of those eases, particularly if short, was likely to be called on and disposed of. This in fact happened, and the present case was in fact called on before Mr. Justice Rangnekar at about 1 p.m. Two counsel had been engaged for the defendants, Mr. Engineer and Mr. K.A. Somjee. Both of them were actually engaged at the time in other Courts, and did not appear. Mr. M.P. Amin, who was engaged as counsel with Mr. Somjee in another case in which Mr. Somjee was actually cross-examining a witness, appeared before Mr. Justice Rangnekar, and applied for an adjournment. The application was resisted by Mr. Billimoria, counsel for the plaintiff, although Mr. Billimoria expressed his willingness to an adjournment until 3 p. m. The learned Judge, however, expressed his unwillingness to take up this case if he was at 8 p. m. engaged in another case then partheard; and upon that Mr. Billimoria refused to consent to an adjournment to any other day. Thereupon the learned Judge refused the adjournment. Mr. Amin withdrew from the case, and the ex parte decree was passed. At 3 p. m. on the same day, Mr. Somjee applied to the learned Judge for restoration of the 6uit, but he informed Mr. Somjee that the defendant should make an application in the regular manner by notice of motion.
3. In the joint affidavit of Easabhai Najmuddin Chinwalla and two others dated March 17, 1982, it is alleged that it was physically impossible for either of the counsel briefed for the defendants to appear when this case was called on, that neither of them could have reasonably anticipated that it would be called on in the course of the day, that the defendants were prevented by sufficient cause from appearing when the case was called on, and that the ex parte decree should be set aside. Mr. Engineer has referred me to three authorities, Bilasirai v. Cursondas : (1919)21BOMLR952 , Lalta Prasad v. Ram Karan I.L.R. (1912) All. 426 and Sorabji v. Ramjilal : AIR1924Bom392 , and he has asked me to restore the case by virtue of the powers conferred upon the Court by Order IX, Rule 13-alternatively, under the inherent powers of the Court.
4. Mr. Billmoria has submitted that no sufficient cause has been made out to bring this case under Order IX, Rule 13, though he does not dispute the inherent power of the Court to set aside an ex parte decree if the Court thinks this proper. He has drawn my attention to Esmail Ebrahim v. Haji Jan Mahomed I.L.R. (1908) Bom. 475 : 10 Bom. L.R. 1172 I am clearly of opinion that when the defendants are present in Court, as they admittedly were, when this case was called on, the mere fact that their counsel were not present by reason of their being then engaged in other Courts in the same building is not a sufficient cause within the meaning of Order IX, Rule 13. I must, however, consider the matter in reference to the inherent jurisdiction of the Court.
5. I desire, however, first to point out, as appears from the judgment in Esmail Ebrahim v. Haji Jan Mahomed, to which Mr. Billimoria referred me, that there is an unwritten Rule of the bar that where two counsel have been briefed, one or other counsel must return his brief in good time if there is a chance of neither being able to attend when the case is called on, I regret to say that this unwritten rule of the bar does not appear to be observed, as one would expect, in Bombay in all cases, and the present case appears to me to be an unfortunate illustration of the non-observance of that unwritten rule. It is to be observed as appears from the affidavit that one of the counsel actually returned his brief when this case was unexpectedly called on, and this is not the first time that I have known such a thing happen. It is of course for the bar to regulate its own practice, and I express the hope that the unwritten rule, which, I believe, was observed strictly in the past, will again be observed in the future. Whether one counsel or two counsel are briefed in a case, if that case appears in the daily board for the next day, counsel ought, in my opinion, not to assume that it may not be called on. The unexpected may happen. All the cases in front of it may be adjourned or may be settled and the particular case in which those counsel are briefed may come on even if it happens to be last in the list. If only one counsel is briefed, he should in my judgment make up his mind the night before whether he will be in a position to attend if the unexpected happens, and the case is called on. If he is not sure of his being able to do so, he ought, in my opinion, to return his brief. If two counsel are engaged, then, in my opinion, they ought to arrange between themselves that one or other of them at any rate will be in a position to attend if the case is called on.
6. Mr. Billimoria has resisted the present application except upon the terms that the defendants should be ordered to bring into Court as a condition precedent to the restoration of this case a sum of over Rs. 7,000 in respect of the hundis sued upon. I do not think that I ought to impose any such condition if I restore this case. It is deplorable that the defendants have been placed in the position in which they find themselves by the unfortunate error of judgment on the part of counsel in thinking that the case would not be reached. I feel that I ought not to penalise the defendants owing to that error of judgment on the part of their counsel; and although sufficient cause has not, in my opinion, been made out to bring the case within Order IX, Rule 18, yet there is an inherent power vested in me to prevent injustice being done. I think justice would not be done if I do not restore this case. The terms upon which I should restore it are, as is admitted by Mr. Engineer, discretionary.
7. I restore this case on the following terms, that these defendants should pay the costs of the hearing to obtain the ex parte decree, the costs of drawing-up that decree, and the costs of this application. I issue directions to the Taxing Master to tax those costs at the earliest possible moment in order that the plaintiff may not be prejudiced by any longer delay than is absolutely necessary in the trial of this suit. I direct the Taxing Master to take up the taxation of the bill before the sealing of the order and at the earliest possible moment. I understand that with such directions the Taxing Master will be able to tax the costs in the course of a few days.
8. It is alleged by the plaintiff in his affidavit that the defendants are in a bad financial position. That is denied by the defendants. But it may be true, If it is true, I think that their financial position may also have been altered for the worse since the ex parte decree was obtained, That being a possibility, in order to protect the plaintiff, I think it also proper to direct that the defendants should furnish security for the costs of the plaintiff to the satisfaction of the Prothonotary in the sum of Rs. 1,500. I make the payment of the taxed costs and the furnishing of the security a condition precedent to the restoration of the case to the list. Subject to the payment of the taxed costs and to the giving of the security, I direct this suit to be on some board, subject to a part heard, on April 14, next.
9. If the costs are not paid, and the security not furnished, this motion will stand dismissed with costs.