1. The plaintiffs apply that I should direct the repayment of 2/3rd a of the institution fees to the plaintiffs under item No. (3) of the Schedule annexed to the Bombay Government Notification No. 1123/7 dated March 26, 1954, issued under Section 31(2) of the Court-fees Act, 1870.
2. The plaintiffs filed the suit as a long cause and thereafter served the writ of summons on the defendants. The defendants did not file any written statement as called for. Ultimately the suit was set down on my board as an undefended long cause. The suit reached hearing on June 18, 1957, when both the parties being absent the suit was dismissed. On that day, the plaintiffs being absent, no application was made for repayment of any part of the institution fees. A few days later, however, an application was made before me on behalf of the plaintiffs for repayment of 2/3rds of the institution fees under the said item No. (3). Such applications for repayment or refund of such part of the institution fees as are allowable under the law are, so far as I am aware, usually made at the time when the suit is disposed of. As the plaintiffs made the said application, not on the date when the suit was disposed of, but a few days thereafter and as I felt some doubt whether the plaintiffs were entitled to the order applied for, I directed that the plaintiffs should renew the said application after giving notice to. the State of Bombay. The plaintiffs gave such notice and the State of Bombay now appears before me and contests the plaintiffs' said application.
3. The relevant portions of the said notification dated March 26, 1954, are as follows:.the institution fee as specified in column 2 of the Schedule hereto annexed shall be repaid to the plaintiff by the High Court of Bombay in the suits disposed of by it under the circumstances specified in column 1 of the said schedule.
3. Suit which is got dismissed by a plaintiff for want of prosecution before settlement of issues or recording of any evidence...two-thirds.
4. Mr. Kantawala, the learned Counsel for the plaintiffs, contended that this ease falls within the provisions of the said item No. 3. He contended that this suit was got dismissed by the plaintiffs and that the same was for want of prosecution before settlement of issues or recording of any evidence. I may state that as the suit appeared as an undefended long cause and neither party appeared, there was no question of settlement of any issues or recording of any evidence. So far as the said latter requirement of item No. 3 is concerned, I think it is indisputable in the circumstances of this case that the dismissal of the suit was 'for want of prosecution before settlement of issues or recording of any evidence'. As regards the former requirement of the said item No. (3) Mr. Kantawala made a statement from the Bar on instructions that after this suit was filed and the writ of summons was served on the defendants, the plaintiffs decided not to prosecute this suit any further unless the defendants appeared to defend the suit. He stated that it was because of this decision arrived at by the plaintiffs that the plaintiffs deliberately remained absent on June 18, 1957, when the suft reached hearing before me although the suit was undefended and had been set down on my board on that date as an undefended long cause. He further stated that it was because of the plaintiffs' said decision that no counsel was briefed to appear before me on that date to apply for a dismissal, but that K. M. Diwanji, solicitor, partner of Messrs Ambubhai and Diwanji, the attorneys of the plaintiffs, remained present in Court on June 18, 1957, when the suit was called out before me, but merely, to watch what happened. Mr. Kantawala contended that under the circumstances, the, suit must be held by me to have also been 'got dismissed by the plaintiffs'.
5. Mr. Thakore, the learned Counsel for the State of Bombay in resisting the application, has contended that under the said item No. 3 repayment is ordered only if the dismissal of the suit is in consequence of an application for dismissal made by the plaintiffs, although such an application may be either at the time when the suit actually reaches hearing or even before the suit reaches hearing by having the suit placed on board for dismissal by a precipae. He further contended that the application under the said item No. 3 must be made only at the time the suit reaches hearing and is dismissed and not on a subsequent occasion. He lastly contended that in any event there is in this case no evidence before me to show that the suit was got dismissed by the plaintiffs in the manner mentioned by Mr. Kantawala.
6 The material part of the said item No. 3 is 'Suit which is got dismissed by a plaintiff for want of prosecution'. The dismissal of a suit for want of prosecution can be divided into two classes, namely, when such dismissal was intentionally brought about by a plaintiff, the plaintiff having intended it to result and having planned for it. It is in contradistinction to a dismissal for non-prosecution which was not intended by the plaintiff, but which resulted by a mere accident or even by the negligence of the plaintiff, even if in the case of such negligence the plaintiff may or could have known that such dismissal would result but may not have intended or desired that such result should follow. It is to exclude such unintentional dismissal-may it be the result of accident or negligence-that item No. 3 is worded as it is, as otherwise the phraseology would have been 'if the suit is dismissed for want of prosecution'. It is, therefore, clear that when the dismissal for want of prosecution is the result of an accident or the plaintiff's negligence, that is, in other words, it was not deliberately intended by the plaintiff to be brought about, that the said item No. 3 would not apply. Item No. 3 can possibly apply only when such dismissal was deliberately intended by the plaintiff and was brought about by the plaintiff. But within that class of intentional dismissals, there again can be two subdivisions. These sub-divisions are created by the use of the word 'got'. The dismissal for want of prosecution which the plaintiff deliberately intends to bring about may be achieved by the plaintiff by his active conduct in that direction or by his merely remaining passive. If the facts in this case are as stated by Mr. Kantawala, this case falls within the latter category; and it is only this category which is in dispute before me. Mr. Thakore's contention amounts to this; that item No. 3 would apply only when the plaintiff by his active conduct procures such dismissal. The methods suggested by Mr. Thakore, namely, applying for dismissal by appearing at, the hearing and by precipae for having the suit set down on board for dismissal are merely instances falling within a definable class of dismissals for non-prosecution intended by the plaintiffs and achieved by active conduct, but in my opinion, the other sub-division of intentional dismissals achieved by the plaintiffs only passively are not excluded from item No. 3 on its true construction. The use of the word 'got' indicates that the intended result of the dismissal for want of prosecution is to be procured or obtained by the plaintiff, but there is no reason to interpret that word 'got' as meaning that such getting or obtaining or procuring is to be done by theplaintiff by some active act and not merely by passive conduct. If the plaintiff can bring about that intended dismissal for want of prosecution passively without incurring the costs of briefing counsel for making the necessary application or by instructing his solicitors to write the necessary precipae, I do not see how the same would not be covered within the plain grammatical construction of the language used in the said item No. 3. The plain language of that item No. 3 does not justify restricting that item to cases where the suit is got dismissed by the plaintiffs by an active act. I, therefore, hold that item No. 3 applies to all intentional dismissals for want of prosecution whether such intention of the plaintiff is achieved by the plaintiff by some active act or by his mere passive conduct of not appearing when the suit reaches hearing.
7. Coming next to the second contention of Mr. Thakore that the necessary application must be made only at the time when the suit reaches hearing and is dismissed, it should be noted that the language of the said notification dated March 26, 1954, or any provision of the Court-fees Act itself does not specify the time when the necessary application in that behalf should be made. Indeed the: language of Section 31 of the Court-fees Act as also of the said notification dated March 26, 1954, indicates that the specified portion of the Court-fees shall be repaid to the plaintiff by the Court and does not indicate that even an application by the plaintiff in that behalf is necessary. No provision of law, whether contained in the Court-fees Act or elsewhere, has been brought to my notice which requires that such an application for repayment should be made by the plaintiff. But even assuming that such an application is necessary on the part of the plaintiff, there is certainly no provision, so far as I can find, in the Court-fees Act, much less in the said notification, which requires that the application for repayment should be made by the plaintiff only at the time when the suit reaches hearing and is dismissed as contended for by Mr. Thakore. Under the circumstances, I reject the said contention of Mr. Thakore and hold that this application for repayment, although made some days after the suit actually reached hearing and was dismissed, is not incompetent.
8. That leaves the third contention urged by Mr. Thakore, namely, that in any event there is in this case no evidence before me to show that the suit was got dismissed by the plaintiffs in the manner mentioned by Mr, Kantawala so as to bring the case within the said item No. 3. This undoubtedly is true. These facts have been stated by Mr. Kantawala only across the Bar, I may mention that I have no reason to doubt the truth of the statement so made. But I am confident that in law, I am not entitled to proceed only on such a statement made across the Bar. I indicated this to Mr. Kantawala, who at once stated that he was prepared to lead the necessary oral evidence before me or to have the necessary facts stated on an affidavit of even the said Diwanji, the solicitor of the plaintiffs. In such cases where an application for repayment of a part of the institution fees is made, not at the time when the suit reaches hearing and is dismissed, but subsequently, I think that ordinarily'it would not be necessary to record any oral evidence, but a satisfactory affidavit setting out all the necessary material facts would be sufficient. It may become necessary in exceptional cases that the contents of the affidavit may call for the taking of oral evidence to satisfy the Court that the dismissal of a suit for want of prosecution was 'got' or brought about or procured by the plaintiffs deliberately and intentionally.
9. In this case, therefore, before I can dispose of the plaintiffs' application, the plaintiffs should file the necessary affidavit and I will dispose of this application only after such affidavit is filed. The plaintiffs to file that affidavit within two days from to-day.
July 19, 1957.
10. On reading the affidavit of Kisonlal Mahipatram Diwanji dated July 17, 1957, I am satisfied that this suit was got dismissed by the plaintiffs on June 18, 1957, for want of prosecution, I, therefore, order that two-thirds of the institution fee be repaid to the plaintiffs.