John Beaumont, Kt., C.J.
1. This is an appeal against an order made by Mr. Justice Kania on March 9, 1937, refusing to restore the applicant's chamber summons to the list. The facts leading up to the application are that on December 23, 1936, the applicant took out a chamber summons to set aside an allocator issued by the Taxing Master, and that summons was duly adjourned into Court, It appeared on the daily list for hearing on February 4, 5, 8, 9 and 10. It was not reached on any of those days. The applicant says that he attended Court on those five days until the Board was discharged about 4 o'clock in the afternoon. On February 11, the summons was again in the list, and there were some ten matters in front of it; three were ex parte summary suits, three contested, and one ex parte motion, and three other matters, and the applicant being a layman, might not unreasonably have supposed that those matters would take some time, and that his case was no more likely to be reached promptly on February 11 than it had been on the five previous days. He in fact did not attend the Court on the 11th until 1-15 p.m., when he found that his summons had been called on and dismissed for want of appearance at 12-30 p.m. He thereupon gave a written notice to the other side that he would ask the Court at 4-30 to restore the summons to the list. The respondents, the Central Bank of India, Ltd., appeared on that; application, and took the technical objection that there ought to be a notice of motion. Strictly speaking, no doubt they were entitled to a formal notice, and to have the facts placed on affidavit. It is obvious from the evidence subsequently filed on the motion that the Bank, for reasons of Its own, desired to take every advantage of the lapse on the part of the applicant in this matter, but that is a matter with which the Court had nothing to do. The learned Judge adopted, I think, a somewhat harsh attitude on February 11. Seeing that this application had been made on written notice to the other side, I think he should have adjourned the matter and directed the applicant to serve a proper notice of motion and then dealt' with the merits on the motion, instead of which he merely dismissed the application, and the order directed that the applicant should pay Rs. 175 costs. That order could only be justified on the ground that the application was a motion which had failed. The applicant then, having been ordered to pay the costs of a motion which failed, not unnaturally tried another means of approaching the Court and on February 12 took out a chamber summons to have his summons restored to the list. It came on for hearing on March 1, and the learned Judge dismissed it with costs on the ground that the application should have been by motion. There is no appeal from that order, and I assume it to be right, though I must not be taken to accept the view that a summons cannot be restored to the list without a motion. I think however that the learned Judge might, in the circumstances of the case, having regard to the fact that the applicant had probably been misled by the terms of the order dismissing his former application, have treated the summons as a motion, and dealt with the matter on the merits. However he did not do so. He dismissed the summons with costs. Thereupon the applicant issued a notice of motion on March 2, on which the order was made which is now under appeal. The learned Judge took the view that there was no sufficient cause under Order IX, Rule 9, and no sufficient reason for being asked to exercise the inherent jurisdiction of the Court for restoring the summons to the list. He adverts nowhere in his judgment to the fact that the applicant had been required to attend the Court on the five previous days when his application was not reached. Now, to any one responsible, as I happen to be, for the business of this Court it must be apparent that it is a serious defect in the procedure of the Court that a litigant should be brought to the Court on five consecutive days on the plea that his case will be heard, but in fact it is not reached. Unfortunately that is a defect which it is impossible to remove. Judges who are making up their lists for the next day can only form the most vague and indefinite estimate as to how long the cases they propose to put in the list are likely to last. If they make up a list which they think likely to last for a day and no longer, so as to avoid summoning people unnecessarily, it will frequently happen that cases will break down and the list be disposed of by the) middle of the day, and the Judge will be left for the rest of the day with no work to do. This is a matter which has engaged a great deal ofi public attention lately in England, and the view has been expressed in some quarters that it is better that the time of a High Court Judge should be occasionally wasted than that the time of the litigating public and their advisers and witnesses should be incessantly wasted. But in England they are in the fortunate position of being abreast with work, and in this Court, where, having regard to the arrears which exist, the Judges are always exceedingly conscientious in providing themselves with a very full day's list for the next day, it must often happen that people will be summoned to the Court unnecessarily, as happened in this case to Mr. Shamdasani, and I have no doubt, to other people whose cases were also in the list. But, when a man has been summoned to Court on five consecutive days, has spent his time in Court, and his case has not been reached, if he comes rather late on the sixth day (having possibly other business to attend to), it seems to me prima facie unreasonable on the part of the Court to say that his dereliction on the sixth day is to be met with the utmost rigour of the law, and he is not to have his case heard at all. The excuse which the applicant makes for being late on the 11th is that he was in Court until the Board was discharged on the 10th, when a part-heard case was proceeding, he asked counsel in that case how long it was likely to last, and counsel stated that it was good till 2 o'clock the next day. Everybody engaged in the business of the Courts knows how unreliable the estimate of counsel is as to the length of time his case will last. Counsel may think his case will last four or five hours, but a sudden access of reasonableness on the part of his client or his opponent may suddenly induce a settlement, and the case comes to an end at once. In point of fact this part-heard case did come to an end on the 10th, and therefore it was not in the list on the 11th. But there were, as I have said, ten cases in the list on the 11th in front of the applicant's case, and even if he had looked at the list, I do not think it would have been unreasonable for him to assume that he would be safe until 1-15. Of course he was undoubtedly guilty of a certain amount of carelessness in not looking at the list, and in not attending the Court at 11 o'clock, but in all these cases in which applications are made to restore matters summarily dismissed there is nearly always some degree of carelessness or negligence on the part of the applicant. It is not often that you can say that failure to appear in Court at the requisite time was due to a pure Act of God. In the present case I think there was a certain element of negligence, but I think that the negligence was, on the whole, exceedingly slight, because the applicant had taken some steps to ascertain how late he could be on the next day, and he had the precedent of the five previous days to go upon. In my opinion the learned Judge in this case exercised his discretion on a wrong basis. I entirely agree with what was said by Sir Norman Macleod in Bilasrai Laxminarayan v. Cursondas Damodar das I.L.R. (1919) Bom. 82 : 21 Bom. L. R. 952 that in cases of discretion it is very undesirable to act on precedents, as every Judge has to deal with the cases which come before him on the particular facts of each case. But it is, I think, a good working rule, which again, was laid down by Sir Norman Macleod in Sorabji v. Ramjilal : AIR1924Bom392 that if a person whose suit has been dismissed summarily appears on the same day, and produces some not unreasonable excuse for his absence, prima facie the (Court ought to exercise its discretion in his favour. Of course the applicant has no absolute right to ask the Court to waive its rules in his favour, but it is a good working rule that if he applies at once, and thereby shows that his failure to appear was not due to a desire to cause delay, but was bona fide, he ought generally to be given the right to have his case restored on payment of costs thrown away. It is, after all, a very serious matter to dismiss a man's suit or summons, or whatever it may be, without hearing it, and that course ought not to be adopted unless the Court is really satisfied that justice so requires. In this case, in my view, the judgment of the learned Judge could only be justified if we were prepared to lay down the principle that wherever there has been any negligence or any carelessness on the part' of the applicant in failing to attend the Court when his case was called on, then he ought not to be subsequently entitled to have his case restored to the list. I do not think that is the rule which has been acted upoln in the past, or ought to be acted upon. Whether the negligence is of a kind which should be excused or not must depend on the facts of the particular case. But I can hardly imagine a case in which the negligence was less gross than in this case, where the applicant was a layman appearing in person, and he did take steps, which might well appear to a layman sufficient, to ascertain how long the existing case was going on, and how late he could safely be. I am emphatically of opinion that the learned Judge ought to have restored the summons to the list, and that order ought to be made now by this Court.
1. I am of a contrary opinion. I think that the history of the earlier applications made by the present applicant to get his chamber summons restored is irrelevant to the matter now before us, and I do not propose to discuss them at all. There had been no appeals against the orders made on those earlier applications, and in my judgment they ought not to affect one's mind in any way in dealing with the present question.
2. I apprehend that whether this matter is to be dealt with as falling under Order IX, Rule 9, of the Civil Procedure Code or Section 151 and the inherent jurisdiction of the Court, it is in every case a matter for the discretion of the Judge. In those circumstances I further apprehend that the matter with which this Court has to deal is whether, in the words of the Privy Council in Rehmat-un-Nissa v.Price (1917) 20 Bom. L. R. 714. the learned Judge can be said to have acted capriciously or in disregard of any legal principle in the exercise of his discretion. If he cannot be said either to have acted capriciously or in disregard of any legal principle, then I take it that whether the members of this Court sitting alone would have come to the same conclusion or not on the material facts, this Court ought not to interfere.
3. The learned Judge in the course of his judgment has, I think, set out all the material facts, and, in my opinion, has set out as well some facts which are not material, and which should therefore be disregarded. For instance, he begins by pointing out that the chamber summons was on board on February 4, 5, 8, 9 and 10, and that the plaintiff at intervals attended the Court though the matter was not reached. Now, with respect, I think that that is wholly irrelevant to the matter now before us. It is, I agree, most inconvenient that the work of this Court requires a large number of cases to be placed on board day by day. The reason for that is well-known by the litigating public. I apprehend that it is extremely well known to Mr. Sham-dasani, who, in addition to being a member of the litigating public, is a very familiar figure in these Courts, and probably knows almost as well as any counsel practising, the dangers of not attending in Court when his case is on board. It is, I agree, unfortunate that so many cases have to be put in the list, but that being the rule, the public are perfectly aware that they must: attend on every day in which their cases are in the list until the board is discharged, and Judges do their best to relieve them of the obligation to attend by discharging the board as soon as it becomes apparent that they will have sufficient work. That being the position, the fact that Mr. Sharndasani attended, as he was bound to do, appears to me to be irrelevant as to his failure to attend on February 11.
4. The learned Judge goes on to state in his judgment that Mr. Shamdasani made inquiries on the afternoon of the 10th as to whether his case would be likely to be reached the next day, and according to Mr. Shamdasani he inquired of counsel, and was told that the case then proceeding was good until 2 p. m. the following day. As I have already said, Mr. Shamdasani probably knows as well as counsel how dangerous it is to rely on counsel's estimate. I should like to point out that my experience sitting on the Original Side is that counsel here rely far too much upon estimates of how long cases are to last, with the result that frequently on the Original Side where two counsel are briefed in a case, if a case early in the list breaks down, neither of them are present, and the Court is put to grave inconvenience. That is one of the consequences of relying upon statements made as to how long one case going on one day is likely to last the following day. Nevertheless, Mr. Shamdasani made an inquiry, and was told that the case was likely to last till 2 p. m. the following day. In my opinion the fact that he made that inquiry, the fact that he ascertained from the provisional Board that there were a large number of matters on the following day to be placed in front of his particular case, did not absolve him from the ordinary precaution of ascertaining either that evening when the proper board was put up, or the following morning, whether in fact the part-heard case was proceeding, and whether it was safe for him not to attend at 11 o'clock on the following day. It is plain from what he said that he was relying, not on the other cases in front of his own, but on counsel's statement that the part-heard case would be likely to last. The learned Judge in his judgment, after drawing attention to these matters, emphasises the fact that Mr. Shamdasani made no inquiries as to the state of the Board the same evening, nor did he do so the following morning. It is true that Mr. Shamdasani has informed us that he had to attend on the evening of the 10th the Maza-gaon Police Court. But it is known that lists are put up outside this Court even when it is shut, and they are open to inspection, and on his way home it would have been perfectly possible for Mr. Shamdasani to see the list, and I have not the slightest doubt that if he had seen that the part-heard case was not in the following day, he would have come at 11 a. m. He neither did that, nor did he make any inquiries on the following morning, and he arrived at 1-15 p. m.
5. Now it is said that the fact that he had made inquiries justified him in assuming that his case was not likely to be reached. I cannot accede to that proposition. I do not think it is possible to lay down any principle to guide a Judge in the exercise of his discretion in matters of this character. I do not think the learned Judge's judgment comes to this, that if there is any degree of negligence on the part of a person who applies to restore his case, that application ought to be refused. In my opinion the learned Judge has based his judgment upon his view that Mr. Shamdasani has not put forward any reason which ought to commend itself to any reasonable person for his failure to attend the Court on the following morning, and inasmuch as it is well-known to be the duty of persons whose cases are in the list to make inquiries whether they are in the list on the following day, I cannot accede to the proposition that if a man fails to ascertain for himself whether his case is in the list or not, that does not entitle a Judge to say, ' Well, I am not satisfied that justice requires that in those circumstances I should restore his case.'
6. If the matter is regarded as one falling under the provisions of Order IX, Rule 9, and I think that by reason of Section 141 of the Code it may be so treated, then the case of Manilal Dhunji v. Gulam Husein Vazeer I.L.R. (1888) Bom. 12 is a precedent practically on all fours with the present case. I do not myself think that precedents are of much use in cases of this character, but it is useful to advert to this case for this purpose, namely to show that on similar facts a learned Judge was of opinion in the exercise of his discretion that the case should not be restored, and when one finds one learned Judge on similar facts coming to this conclusion, and another learned Judge, Mr. Justice Kania in the case before us, taking a similar view on a similar set of facts, I ask myself whether it is open to this Court sitting in appeal to say that those learned Judges acted capriciously or in disregard of some legal principle and to interfere with the exercise of the discretion ?
7. The case of Oriental Finance Corp. v. Mercantile Credit &c.; Corp. (1866) 2 B. H. C. R. 267 has been referred to in the course of the argument. That was a case where it was the duty of a solicitor's clerk to examine every evening the board for the next day, and to inform his master what cases in which he was engaged as an attorney were on the board for hearing. On November 17 his clerk neglected that duty, and did not inform his master that the case was for hearing, and the case was dealt with in the absence of any counsel appearing on behalf of the plaintiffs. An application was made to restore, and the ground put forward was that the solicitor had intended to appear by counsel for the plaintiffs, but was prevented from doing so by a bona fide mistake on his part in thinking that there were not any of these cases on the Board of November 18. In that case it appears to me that there was a mistake on the part of the attorney based upon the negligence of his clerk to inform him. I do not think there was any negligence on the part of the solicitor. It seems to me that having a clerk whose duty it was in the ordinary course of routine to inform him whether his cases were in the list or not, there was no obligation on the part of the solicitor night after night to ask his clerk. I think he was entitled to assume that the clerk would do his duty, and that being so, I think that there was a mistake on the part of the attorney due, not to his own negligence, but to that of a clerk upon whom he was entitled to rely, which justified the Court in restoring the case.
8. After all the question whether a case should be restored or not must depend upon the facts of each case. It seems to me impossible to lay down any principle. Indeed that is precisely what Sir Amberson Marten said in delivering judgment in the case of Currimbhai v. Moos. (1928) 31 Bom. L. R. 468 It is true that that was not an appeal, but was an application in revision against a refusal of the Judge of the Small Causes Court to set aside an ex parte decree and to have the suit re-heard on the merits, but the observations of Sir Amberson Marten appear to me to be very pertinent. Sir Amberson Marten commented upon the opinions: expressed by Sir Norman Macleod in Chhota-lal v. Ambalal : AIR1925Bom423 and Sorabji v. Ramjilal : AIR1924Bom392 and said that if those two cases were supposed to lay down the law and practice contended for by the applicant, then with all deference to those decisions he was unable to agree, and he pointed out that if such a rigid rule as was there laid down was to prevail, it might mean that a defendant could successfully prevent his suit ever being heard ; and Sir Amberson went on to say that the alleged rule or practice involved reading something into the Code which not only is not there, but is contrary to what the Code actually says. Sir Amberson wound up his judgment by pointing out that it is a matter of discretion on the facts of each case as it arises, and he said that in that case the Court was not prepared to say that the learned Judge had exercised his discretion without regard to law or in any improper way which would give the appellate Court the right to revise it. He was careful to point out that it was altogether another matter whether he or the learned Judge sitting with him would necessarily have arrived at the same conclusion if they had been sitting as Judges of first instance. I respectfully agree with these observations. Having regard to the fact that the learned Judge set out all the material matters, gave his reasons, and came to a conclusion on those facts based on those reasons, speaking for myself I think it is impossible to say that he acted capriciously or in disregard of any legal principle, and in my opinion this appeal should be dismissed with costs.
1. If the application out of which this appeal arises had been made to me sitting singly on the Original Side, I have not the least hesitation in saying that it wouldhave succeeded. But the question is, whether as a member of this Court I should interfere in an order made by my brother Kania, for whom I have great respect.
2. The learned Judge treated the application as being made under the inherent jurisdiction of the Court. But whether the application was made under the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code, or it was made under Order IX, Rule 9, the position remains exactly the same, and this is conceded by Sir Jamshedji Kanga on behalf of the respondents : for it has been held by this Court that Order IX, Rule 9, does not take away the inherent power of the Court to restore a summons or a suit, if there is just and reasonable causel for restoring it, even if no sufficient cause is shown, within the meaning of this rule, for the plaintiff's non-appearance. The whole question then is, whether there is a reasonable and just cause for restoring this chamber summons. What are the facts The facts are that the applicant was a litigant in person. He attended the Court for five successive days, when his matter appeared on Board. On the fifth day, before leaving the Court when the Board was discharged, he made enquiries of counsel, who were engaged in a heavy case which was then going on, as to the probable duration of the case, and he was informed that the same was good till 2 p. m. the next day. To a lay litigant, no one would appear to be a better Judge of the probable duration of the case, which was then proceeding, than counsel engaged in the case. He then made further enquiries, as the result of which he learnt that several other matters were put before his own chamber summons on the Board for the following day. Having made these enquiries, he attended to some work which he had in the Police Court, where he was detained up to 5-30 p. m. He left that Court at 5-3G and reached home at 6-30. The next day he attended the Court at 1-15 and found that his summons had been called on at 12-30 p.m. and dismissed for default of appearance.
3. These are the facts, and I think it is difficult to hold, on these facts, that the applicant was guilty of any misconduct or gross negligence, and that in my opinion is the only question for our consideration in this case. The appellant undoubtedly was dilatory in attending the Court on the day in question, but in my opinion he did not in the circumstances of the case deserve the drastic punishment meted out to him. In my opinion this was a case in which my brother Kania should have restored the summons to the board and punished the appellant by making an order of costs against him.
4. The basis of the inherent jurisdiction is that there should be no miscarriage of justice. The Code of Civil Procedure is not exhaustive, and it is for that purpose that the Legislature, by Section 151, indicated that the Court has an inherent power to act ex debito justitite in order that real and substantial justice may be done. As the Privy Council have pointed out in the case of Sabitri Thakurain v.Savi where circumstances require it, the Court will act ex debito justitice to do that real and substantial justice for the administration of which alone it exists.
5. I have heard a somewhat impassioned argument of Sir Jamshedji Kanga, but I find it difficult to persuade myself that in this case there is no miscarriage of justice. Rules of procedure are meant to secure the ends of justice and not to override them.
6. In this view, I do not think it desirable to refer to the cases relied upon on behalf of the respondent. In my opinion, precedents in cases like this are not of much use. Each such case must be dealt with on its own facts,
7. I would, therefore, allow the appeal.
John Beaumont, Kt., C.J.
8. (On the question of costs.) Normally where a party applies to get his matter restored to the list when it has been struck out for want of appearance, he has to pay the costs, for he is asking for an indulgence, and the Court generally orders him to pay the costs thrown away, and normally Mr. Shamdasani would be required to pay the costs of this application, although he would get the costs of the appeal. We, however, take into account the fact that he has already paid the costs of one motion and one summons, which he had to pay on account of the attitude adopted by the respondents. In the circumstances we think the appellant is entitled to the costs of the appeal, but there will be no order as to the costs of the motion. If the costs of the motion have been paid by Mr. Shamdasani, they will be re-paid to him. Respondents to get the costs thrown away on February 11.