1. This is an application forsetting aside of the order dated 12th April, 1972, dismissing this suit for default of appearance of the plaintiff.
2. In support of this application reliance was placed on an affidavit affirmed by the Solicitor's clerk who has said in his affidavit that on the 11th April, 1972, he went through the peremptory list of 12th April, kept in Board-maker's department and failed to 'notice' this suit and then on the 12th he again went through the peremptory list but failed to 'mark' this suit in that list with the result he did not inform his master that this suit was going to be heard on that day.
3. The petitioner has said in the petition that he was regularly attending the solicitor's office on and from the 17th November, 1971, and the learned counsel who was briefed in this matter on the 27th November, 1971, came to know from the solicitor on the 17th April, that this suit was dismissed on the 12th April, 1972.
4. Mr. Dutt, appearing for the petitioner, by placing strong reliance on the judgment of the Patna High Court in the case of Ram Narain v. Ramdhan Singh, AIR 1924 Pat 274, contended that the defendant would not suffer any prejudice if this order of dismissal of this suit is set aside and I should restore this suit. He also relied on a judgment of the Delhi High Court in the case of Charanji Lal v. Sushil Chander Bharal, : AIR1970Delhi26 . In this case at pp. 27-28 it is said as follows:
'When a case on the daily cause list is reached in due course the counsel or the party, as the case may be, is expected to bepresent so that its bearing proceeds in accordance with law. The fact that one or more of earlier cases are adjourned by the Court, does not by itself serve as a justification in law for the absence of the counsel in the subsequent cases when they are called for hearing in due course. In the event of the counsel being absent, the Court is to exercise its judicial discretion on the facts and circumstances of each case whether to proceed with it or to wait for the counsel and if so, for how long. There is no hard and fast rule of general application and every case poses its own peculiar problem to be solved by the Court in its judicial discretion, making due allowances for normal human failings, but fully ensuring the proper functioning of the Court without undue interruptions and without unduly consuming the time of the Court in only waiting for the parties. This Court, I must point out, is always reluctant to dismiss cases in default too readily and this course is adopted only as a last resort.'
5. In my opinion no exception can be taken to the quoted observations. Now, the Court reopened on the 10th April, 1972, after the Easter Vacation and from that day and on each and every day my list collapsed and I went back home regularly roughly at about 12-30. On April 10, 1972, my list collapsed but I did not dismiss any suit. On the 11th April, the list again collapsed and I dismissed only two suits because the solicitor said that his instruction was not to proceed with those two suits. On the 12th April, when I sat my Court room was practically empty and the entire list was called on once and all matters were passed over. Then I went back to my Chamber and waited for some time. Then being informed that some lawyers have attended I returned to Court and the entire list was again called on twice and all matters were passed over twice. And then, from the third call T started passing ex parte decrees and dismissing suits for default of appearance. And this is one of those suits which was dismissed for default.
6. There is no justification in holding that the case made by the Solicitor's clerk is a case of mistake as contended by Mr. Dutt. This clerk said that he did not 'notice' this suit in the Board-maker's list on the 11th instant but he said that on the 12th instant he did not 'mark' that suit in the list. Every one, with a little experience on the Original Side of this High Court, knows that the solicitor's clerk 'marks the suit' in the peremptory list with a red pencil. The Solicitor did not say that because of this non-markine of this suit he did not notice that this suit was appearing in the list.
7. Now I will assume that this clerk by saying that he did not 'mark' this suit in the peremptory list on the 12th instant intended to say that he did not see the suit in the list on that day. He did not see it onthe llth and he did see it on the 12th and therefore it must be held that he was grossly negligent in discharging his duties.
8. The Counsel briefed in the suit is the same Counsel who is appearing in support of this application. He says that he did not remember that he was briefed in the suit and the solicitor did not remind him about it. I do not find any justification in his statement that the solicitor owed a duty to remind him specially when the suit appeared in the warning list in November 1971 and thereafter he was briefed.
9. Now as said earlier the petitioner's case is that he was attending the solicitor's office regularly. If this case is true then I fail to understand how the Counsel briefed in this suit could forget that he was briefed in this matter. Further every one knows that when a suit appears in the warning list consultations are held with the Counsel and the clients are usually present there with the solicitor. Hence the statement of the counsel that the solicitor did not remind him that he was briefed in this matter conclusively shows that no consultation was held with him and the case of the petitioner that he was regularly attending the office of the solicitor cannot be accepted and is not acceptable to me.
10. It is nowhere stated in the petition as to what the solicitor was doing for all these days after the suit appeared in the warning list excepting to brief the Counsel. Everyone knew that from the 10th April I was rising earlier and yet neither the solicitor nor his clerk and similarly neither the counsel nor his clerk attended my Court all these days. I gave sufficient opportunity to everyone from 10th April, to be ready with their suits but no attempt was made by any one including the petitioner, his solicitor, the clerk of the solicitor, the counsel and his clerk. I waited in my Chamber and still they did not come to my Court. In other words they did not take any notice as to what was, happening in my Court. This is a case of not a bona fide mistake but a gross negligence on the part of all these people and no one can say that a gross negligence is a sufficient ground for restoration of a suit.
11. The defendant's solicitor appeared in this application and says he has noobjection if the suit is restored but that is not a ground for restoration of this suit. The petitioner must satisfy the Court that there is a sufficient cause for restoration of this suit under Order IX, Rule 4 on which strong reliance was placed by Mr. Dutt. On ground, not to speak of a sufficient ground; has been made out to my satisfaction for restoration of this suit and hence the application is dismissed without costs.