Salil Kumar Hazra, J.
1. This is an application by the defendant Arun Kumar Mustaphy to set aside the ex parte decree dated May 20. 1975. The decree was for Rs. 1,140/-with interest and cost passed by this Court in a suit for money lent and advanced by the plaintiff Smt. Mira Devi Chowhan to the defendant.
2. The case of the plaintiff is that on August 28, 1971, the defendant borrowed from the plaintiff Rs. 1,000/- for the purpose of his business and agreed to repay the same within 90 days from the date of the loan. As a security for due repayment of the loan, a hundi was executed in favour of the plaintiff. The hundi was drawn by the defendant Arun Kumar Mustaphy for Leather Export Union. Arun Kumar Mustaphy himself accepted the hundi. Further case of the plaintiff is that the defendant Arun Kumar Mustaphy held himself out as the sole proprietor of the business carried under the name and style of Leather Export Union. The defendant Arun Kumar Mustaphy filed his written statement. His defence, inter alia, is that he did not execute the Hundi in his personal capacity and he is not personally liable as his father is the sole proprietor of the firm 'Leather Export Union.'
3. This suit appeared in the peremptory list for hearing before this court on May 16. 1975, marked as liquidated claim. Thereafter the suit again appeared in the peremptory list on May 19, 1975 as liquidated claim. The Suit appeared on May 20, 1975, in the peremptory list again as liquidated claim. Nobody appeared for the defendant on any of the days when the suit appeared in the peremptory list. On May 20, 1975. the suit was called on for hearing. As no one appeared for the defendant on any of the days and the counsel for the plaintiff submitted that there is no real defence to the suit, I heard the suit. The plaintiff proved his claim and ex parte decree was passed on that day.
4. This notice of motion has been taken out on behalf of the defendant on June 5. 1975. by his Supreme Court Advocate Mr. R.L. Tarafdar for setting aside the said ex parte decree. The petitioner Arun Kumar Mustaphy, states in his petition affirmed on May 27. 1975, that he never held out to be a sole proprietor of the business- 'Leather Export Union'. He is a mere agent of his father Amulya Gati Mustaphy who is the sole proprietor of the business. So he did not borrow any sum of money from the plaintiff for his own business nor incur any liability to repay the money to the plaintiff. In the petition, there is no denial that its defendant did not execute the hundi. There is also no denial that he did not accept the same.
5. The case of the petitioner as stated in his petition is further as follows:
On May 19, 1975, the Supreme Court Advocate for the petitioner Mr, R.L. Tarafdar after coming to court came to know on perusal of the daily cause list that the suit suddenly appeared on that day in the peremptory list under liquidated claim. Then he wrote a post-card to the petitioner informing him about the appearance of the suit in the daily cause list and 'he was under the impression that until several part-heard suits at the top of the list were heard, the above suit will not be taken up for hearing'. On May 20, 1975. Mr. Tarafdar came to Court to find out the condition of the list of cases and found that the suit appeared in the list in the same position as in the previous day and 'did not think it necessary to mention the above suit for adjournment on the ground that he could not contact his client until that day.' Then it is stated that Mr. Tarafdar 'was under the wrong impression that the above suit and other suits appearing above the same would not be taken up for hearing until the hearing of the part-heard suits concluded.' The case of the petitioner is that on May 24, 1975 he was surprised to receive a letter written by the plaintiff informing him that the suit was decreed ex parte on May 20. 1975 in the absence of the petitioner and his Advocate. It is further stated by the petitioner that daily cause list of May 20, 1975 will reveal that besides the part-heard suits aforesaid there were other several suits above the instant suit which have been decreed ex parte. Then the petitioner states 'Mr. R.L. Tarafdar expresses his regret for his wrong expectation about the hearing of the said suit'. On the above grounds the petitioner prays to set aside the ex parte decree.
6. This petition has been made under Order 9, Rule 13 of the Code of Civil procedure. The relevant portion of Order 9. Rule 13. of the Code for setting aside decree ex parte against the defendant is as follows:
'In any case in which a decree is passed ex parte against the defendant he can apply to the court by which the decree was passed for an order to set it aside, and if he satisfies the court ......... or that he was prevented by any sufficient cause from, appearing when the suit was called on for hearing, the court shall make an order setting aside the decree against him upon such terms. .....'
7. The word 'appearing' in this rule means appearance by the defendant or by his Advocate or lawyer for conducting the case. In the instant case on the date the suit was called on for hearing, namely, on May 20, 1975. neither the defendant nor his Supreme Court Advocate appeared. The defendant is represented by his Supreme Court Advocate Mr. R.L. Tarafdar to conduct the suit. He did not appear nor his clerk nor anybody on his behalf appeared on any day when the suit appeared in the peremptory list.
8. Now. the question Is whether the defendant was prevented by any sufficient cause from appearing when, the suit was called on for hearing. What is a sufficient cause is a question of fact and has to be determined under the facts and circumstances of each case.
9. On the facts stated in the petition before me, the question arises whether non-appearance of the Supreme Court Advocate for the petitioner by reason of his thinking that the suit will not be heard is a sufficient cause. Is it such a cause for which the petitioner can say that his lawyer was prevented from appearing in court? The Supreme Court Advocate for the petitioner saw the daily list and knew that the suit was appearing in the peremptory list for hearing. But he did not appear in court on any of the days when the suit appeared in the list. The petitioner says that he thought that the suit will not be heard and, therefore, he did not appear in court on the day when the decree was passed. Is this thinking of the Supreme Court Advocate for the petitioner a sufficient cause for which the petitioner can say that he was prevented from appearing in court?
10. I asked the learned Supreme Court Advocate for the petitioner to satisfy that this is a sufficient cause for which I can set aside the ex parte decree. Mr. R.L. Tarafdar, the learned Supreme Court Advocate for the petitioner placed before me three decisions and I shall now deal with them.
11. First, he placed before me a decision of this Court in the case of Suresh Chandra Baneriee v. United Bank of India, : AIR1961Cal534 . In that case what happened was that a preliminary decree was passed in a mortgage suit on contest. No payment was made by the mortgagor defendant within the time allowed under the preliminary decree. Thereafter, the mortgagee decree-holder applied for a final decree, but no notice was served on the defendant mortgagor or his lawyer that the decree-holder will apply for final decree. Preliminary decree was made final ex parte. The judgment-debtors applied for setting aside the final decree. P.N. Mookerjee. J., delivering the judgment of the court in that case observed:--
'............ the defendant is entitled to have the final mortgage decree, made ex parte or in his absence, as aforesaid set aside by showing ihat he was prevented from appearing at the hearing of the plaintiff's application for the same because of his want of knowledge thereof in circumstances which would make it sufficient cause for such non-appearance within the meaning of Order IX, Rule 13 of the Code of Civil Procedure which would in the light and upon the authority of the said decisions obviously apply to the case.'
Thus, in 65 Cal WN 535 although the plaintiff was the holder of preliminary decree but he did not give notice to the defendant mortgagor that final decree would be passed. In view of the law on the matter as stated by the learned Judges the defendant was entitled to the service of notice in some form before the preliminary decree was made final. Therefore, the defendant mortgagor in that case could very well say that he was prevented from appearing at the hearing of the application for final decree because he did not receive the notice which he was entitled to get from the plaintiff. In my . view the facts of the instant case before me are entirely different. Here, the suit appeared in the list for hearing for several days. The Supreme Court Advocate for defendant saw the list and knew that the suit appeared in the peremptory list, yet he did not appear in court when the suit was called for hearing. There is no question of preventing him from appearing in court by the plaintiff without serving any notice as was the case in 65 Cal WN 535.
12. Mr. Tarafdar next cited the judgment of Tek Chand. J., in the case of Fazal Ilahi v. Muhammad Ismail Khan, (AIR 1929 Lah 69). In the Lahore case, the pleader of the plaintiff by mistake noted a date in his diary as the date of hearing of the suit which was not the correct date. This mistake did not occur to him when the suit was called for hearing and the suit was dismissed in default. An application was made to set aside the dismissal and the pleader concerned appeared as witness and stated on oath that he had by mistake noted in his diary a wrong date and owing to the mistake he or his client did not appear at the hearing. The learned Subordinate Judge who heard the matter was of opinion that mistake, of a counsel can under no circumstances be sufficient cause for restoring the guit dismissed for default and he rejected the application. On appeal. Tek Chand. J., did not accept the view of the learned Subordinate Judge and held;
'I am of opinion that in this case the mistake of the plaintiff was a bona fide one and it constitutes sufficient cause for restoring the case.'
In my view, the facts of the Lahore case are entirely different, because in the instant case the Supreme Court Advocate for the petitioner knew that the suit was in the peremptory list, but still he did not appear thinking that it will not be called.
13. The last case cited by Mr. Tarafdar is a decision of this Court in Karali Charan Sarrna v. Apurba Krishna Bajpayi. 34 Cal WN 1119 = (AIR 1931 Cal 298). In that case appeal was presented some days too late. The question arose whether on the facts of that case sufficient cause has been shown by the petitioner for extension of time under Section 5 of the Limitation Act 1908 for admission of the appeal. The matter came up before a Bench consisting of Graham and Mitter, JJ. Graham. J., was of the view (page 1122 of Cal WN) = (at P. 299 of AIR) that to accede to an application made in the circumstances of the case would result in encouraging litigants in the mistaken idea that there is no obligation upon them to show a reasonable degree of deligence in filing the appeal and that it is open to them to postpone taking action to the last possible moment. Mitter, J., took a contrary view. In his opinion there is sufficient cause for extending the time and condoning the delay. In his judgment at p. 1123 (of Cal WN) = (at p. 300 of AIR). Mitter J., referred to the English case of Burgoine v. Taylor, (1878) 9 Ch D 1. In that English cese Sir George Jessel, M. R. made certain observations. These observations are relied on before me by Mr. Tarafdar in the course of his argument So. I am quoting the same here:
'We think that the order asked for by the defendant ought to be made. Solicitors cannot, any more than other men, conduct their business without sometimes making slips; and where a solicitor watches the list, and happens to miss the case, in consequence of which it is taken in his absence, it is in accordance with justice and with the course of practice to restore to action to the paper, on the terms of the party in default paying the costs of the day, which include all costs thrown away by reason of the trial becoming abortive.'
It may be noted that due to the difference of the view of Graham and Mitter JJ. the matter was referred to Suhrawardy. J. and the learned Judge extended the time under Section 5 of the Limitation Act for filing the appeal and agreed with Mitter, J. In my view extension of time under Section 5 of the Limitation Act was granted under entirely different circumstance to the appellant in that case. The observation of Sir George Jessel, M.R. In that English decision deserves the highest respect; but my difficulty in following the same in the instant case is that I have before me entirely different facts. In the English case Burgoine vs. Taylor, (1878) 9 Ch D 1 the defendant was not represented at the trial of an action, because his solicitor was ignorant of the fact that, in pursuance of an order of the Lord Chancellor, the action had, with others, been transferred from one Judge of the Chancery Division to another, and had therefore only watched the list before the former Judge. As defendant did not appear judgment was given for the plaintiff, in the motion to set aside that judgment, the defendant's solicitor filed an affidavit where he said 'The order for such transfer was unknown and unnoticed by me. the duty of watching the lists of causes for trial having been instructed to the clerk in my office who should attend to such matters, and the order for which transfer being unobserved by the clerk the list of causes in Vice-Chancellor Malins Courts was alone watched, and this cause appears therein to stand fifty-seven below the causes for trial on the 18th inst. NO steps were taken for instructing counsel to appear for the Defendant'.
14. The observation of Sir George Jessel M.R. was made under the said context. Even in the observation of Sir George, Jessel, M.R. it appears: 'where a solicitor watches a case and happens to miss the same'. But. here the Supreme Court Advocate did not miss the case in the list, but he did notice it and yet he did not appear, because he thought that the suit will not be called.
15. Mr. Gour Roy Choudhury, the learned counsel for the plaintiff invited my attention to the decision of the Court of Appeal in the case of Charu Chandra Ghose v. Chandi Charan Ray Chowdhury, 19 Cal WN 25 = (AIR 1915 Cal 539). In that appeal one of the questions was whether there was sufficient cause for non-appearance within the meaning of Order 9 Rule 9 of the Code of Civil Procedure. At page 27 of the judgment reference was made to the case of Ismail Ibrahim v. Jan Mahomed. (1908) 10 Bom. LR 904; and the court of appeal observed;
'In this case it was laid down that where a party has not been taken unawares and where he was under no compulsion to leave the Court, nor could assign any weighty cause for his absence, he took the risk of the case being called on in his absence and could not be said to have established sufficient cause for his absence within the meaning of the Code.'
16. Mr. Roy Chowdhury relied very much on the above observation and submitted that if Mr. Tarafdar knowing that the suit was in the peremptory list did not appear, it must be said that he took a risk in that matter and, therefore, there is no sufficient cause for his non-appearance. I think there is great force in the submission of Mr. Roy Choudhury on this point under the facts of this case also.
17. Mr. Roy Chowdhury then cited a decision of SC Deb. J. In : AIR1973Cal54 ; Phul Chand Ranilia y. Ballabhadas Agarwal. The judgment in that case supports the contention of Mr. Rov Chowdhury, because, the learned Judge in that case refused to set aside an order dismissing a suit for default of appearance of the plaintiff on the ground that the solicitor's clerk failed to notice the suit in the list and did not inform his master that the suit was going to be heard on that day. With regard to this decision I must say that the matter came up on appeal and the appeal Bench consisted of A.N. Sen. J. and myself and we took a contrary view and held that there was sufficient cause for restoring the suit when there was bona fide mistake of the clerk of the attorney who failed to notice that the suit appeared in the peremptory list and as such did not inform his master about it. In that case, the solicitor who relied upon his clerk did not know that the suit appeared in the list. Therefore, the facts of that case are also distinguishable from the facts of the instant case.
18. Under the facts and circumstances of the instant case I cannot constrain myself in holding that the petitioner has made out a sufficient cause for his non-appearance. This is not a case of mistake of the learned Supreme Court Advocate. But this is a case of mis-judgment by the Supreme Court Advocate for the petitioner as to the length of time that particular cases in the list will take on that day. It is his mere thinking that the matter will not be called on for hearing, He did not make any attempt to ascertain the duration of the cases which appeared prior to the instant suit in the list. He did not ascertain whether the list will be called and the short matters in the list will be taken up first. The suits in the list were called on several times. Yet. nobody appeared for the petitioner. There was nothing to prevent the learned Supreme Court Advocate from appearing in court, when the suit was called on for hearing.
19. So. In my view, the petitioner has not been able to satisfy the court that he was prevented by sufficient cause from appearing when the suit was called on for hearing.
20. However, I am very much sympathetic for the petitioner and I would have liked to set aside the ex parte decree and restore the hearing of the suit if I could do so. So I asked Mr. Roy Chowdhury. the learned counsel for the plaintiff whether he would agree to the ex parte decree being set aside if I order that the petitioner would deposit with the solicitor for the plaintiff a sum of Rupees 1,140/- for which the decree was passed to be held by him free from lien subject to the further orders of the court. I must record here that Mr. Roy Chowdhury on instructions from his client stated that he would agree to the restoration of the suit provided the decretal amount is deposited with his solicitor. Then I asked Mr. Tarafdar whether his client would agree to deposit the sum of Rs. 1,140/- with the solicitor for the plaintiff. I indicated to him that even if I accept his view that there is sufficient cause for non-appearance I would not have set aside the ex parte decree and restore the suit for hearing without a conditional order that the petitioner must deposit the decretal amount with the solicitor for the plaintiff. But Mr. Tarafdar under instructions from the petitioner who was present in court said that his client would not agree to deposit the amount. In view of the above matter. I have no other alternative but to dismiss the petition with costs.