Skip to content


Nanalal M. Varma and Co. (Gunnies) P. Ltd. Vs. Gordhandas Jerambhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 173 of 1962
Judge
Reported inAIR1965Cal547
ActsCode of Civil Procedure (CPC) , 1908 - Sections 104 and 151 - Order 9, Rules 3 and 4 - Order 43, Rule 1; ;Limitation Act - Schedule - Article 163
AppellantNanalal M. Varma and Co. (Gunnies) P. Ltd.
RespondentGordhandas Jerambhai and ors.
Appellant AdvocateS. Tibrewal, Adv.
Respondent AdvocateA.C. Bhabra and ;S.K. Gupta, Advs. for No. 1 and ;Gupta, Adv. for No. 2
DispositionAppeal dismissed
Cases ReferredDebendra v. Satyabala
Excerpt:
- .....9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. rule ft applies to cases under rule 8, that is, cases when the defendant appears and the plaintiff does not appear and the suit is accordingly dismissed for default. the code distinguishes between cases where neither partyappears and cases where the plaintiff is absent and the defendant appears. these are two classes of cases contemplated by rules 3 and 8 respectively, and the applications for restoration are made under rules 4 and 9. it is worthy of note that whereas an appeal is allowed against an order refusing to set aside a dismissal of a suit under rule 9, no appeal is allowed against an order refusing to set aside a dismissal of a suit under rule 4........' 9. there may be.....
Judgment:

Sankar Prasad Mitra, J.

1. This is an appeal from an Order of Mallick, J. dated the 22nd February, 1962, dismissing the appellant's application, inter alia for having the order of striking out of the suit which appeared in the special list on the 30th August, 1961, set aside. The suit was instituted on July 30, 1958, inter alia, for an injunction restraining the defendant No. 1 from proceeding with an arbitration case before the Bengal Chamber of Commerce and Industry on the basis that the contracts between the parties were void and illegal. We are told that the Bengal Chamber was informed of the suit and thereafter no steps were taken in the arbitration proceedings. On November 17, 1958. both the defendants filed their respective written statements. Messrs, D. C. Dutt and Co. were acting as solicitors for the plaintiff. On April 10, 1963, this firm was dissolved owing to the death of one of the partners. On the 19th April, 1961, a new warrant of attorney was filed on behalf of the plaintiff, which is the appellant herein, by Mr. T. Goswami, a solicitor of this court. On May, 1, 1961, Goswami received certain papers of the suit from Mr. A.K. Dutt of D.C. Dutt and Co. On July 24, 1961, a notice was issued by this court to T. Goswami that the suit would be set down in a list before G.K. Mitter, J. in Chambers on the 2nd August, 1961, and would be 'dismissed for default unless good cause is shown to the contrary, or will be otherwise dealt with as the Judge may think proper.' This is the usual notice which is served on the parties or their attorneys when a suit is about to be placed in what is known as the 'Special List'.

2. On the 2nd August, 1961, the suit appeared in the Special List before G.K. Mitter, J. It is stated in paragraph 5 of the petition (herein page 4 of the Paper Book that:

'on submissions being made by the said Mr. T Goswami on behalf or your petitioner, on the ground of non-delivery of all relevant cause papers and documents in this suit. His Lordship Mr. Justice G.K. Mitter was pleased to adjourn this suit till the next special list toenable the said Mr. T. Goswami to take steps in the meantime.'

In the affidavit-in-opposition, however (paragraph 11 at page 14 of the Paper Book), on behalf of the respondent No. I it is alleged that Mr. Goswami submitted to G.K. Mitter, J., that he had recently filed his warrant of attorney and had not received all the cause papers, and thereupon His Lordship was pleased to adjourn the suit till the next special list.

3. On the same day, namely, the 2nd August, 1961, T. Goswami took out a Master's summons against the defendants for discovery of documents which was served on the solicitors for the defendants on August 4, 1961, On the 8th August 1961, the Master by an order directed the defendants to file their affidavits of documents within a fortnight. The plaintiff was also directed on an application of the defendant No. 1 to file its affidavit of documents within the same time. The plaintiff's affidavit of documents was made ready and sent to the solicitors for the defendant No. 1 on the 23rd August, 1961, for their consent signature.

4. Pursuant to the directions of G.K. Mitter, J. the suit again appeared in the Special List before Mallick, J. on the 30th August, 1961. It is said in paragraph 17 of the petition that the suit was struck out by His Lordship as no one on behalf of any of the parties appeared. The order as drawn up reads:

''This suit be and the same is hereby dismissed for want of prosecution.'

5. The appellant's Solicitor T. Goswami was not obviously aware of this order. He wrote to the Attorney for the defendant No. 1 on the 4th September, 1961, for return of the affidavit of documents after consenting to the filing thereof. He again wrote to the defendants' Attorneys on the 8th September, 1961, enquiring about the defendants' affidavits of document. On the 9th September, 1961, T. Goswami put in a requisition for a certificate of non-filing of the affidavit of documents by the defendants. On September 29, 1961, T. Goswami took out Master Summons against the defendants for filing of affidavit of documents, returnable on the 4th October, 1961. On this day, namely October 4, 1961, the application was adjourned till the 28th November 1961. It appears that four other adjournments were obtained between November 28, 1961 and January 10, 1962. In the meantime on the 14th December, 1961, the most crucial date for our purposes the order of Mallick. J. made on the 30th August 1961 was drawn up and filed.

6. On the 16th January, 1962, the plaintiff's application for filing of the affidavits of documents by the defendants was mentioned by Mr. T. Goswami before Sinha. J. for leave to amend the summons to serve on the defendant No. 2 personally in view of the death of his Solicitor. Mr. P.K. Sen, learned counsel for the defendant No. 1 informed the Court that the suit had already been dismissed by Mallick, J.T. Goswami asked for time till the 24th January, 1962 to make enquiries and the application was adjourned till that date.

7. On January 24, 1962, the present application was made by the plaintiff for condonation of delay, for setting aside the order striking out the suit on the 30th August 1961, for restoration of the suit and liberty to continue the suit. The application was heard by Mallick, J., on the 22nd February, 1962, and by His Lordship's Order made on that date the application was dismissed. Against this order of the 22nd February, 1962, the present appeal has been preferred. The appellant is faced with a number of difficulties. It will first deal with the question of maintainability of this appeal. Mr. Tibrewal, learned counsel for the appellant ultimately told us that the application which the appellant made on January 24, 1962, for condonation of delay and for setting aside the order striking out the suit, was an application under Section 151 of the Code of Civil Procedure. Now, in Keshardeo v. Radhakishen : [1953]4SCR136 it is clearly laid down that under the Code of Civil Procedure, certain specific orders mentioned in Section 104 and Order 43, Rule 1 only are appealable and no appeal lies from any other orders, vide Section 105. An order made, the Supreme Court says, under Section 151 is not included in the category of appealable orders and, as such, an order under Section 151 simpliciter is not appealable. On this ground alone this appeal has to be dismissed.

8. At one stage, however, of the argument of learned counsel for the appellant our attention was drawn to Rule 4 of Order 9 of the Code. This Rule, inter aha, provides that where a suit is dismissed under Rule 3, the plaintiff may subject to the law of limitation bring a fresh suit; or he may apply for an order to set the dismissal aside. Rule 3 of Order 9 prescribes that where neither party appears when the suit is called on for hearing the court may make an order that the suit be dismissed. In the instant case Rule 3 does not strictly apply. It is true that neither party appeared when Mallick, J., made the order of dismissal of the suit; but the suit was not called on for hearing. The suit was in the special list under Chapter X Rule 35 of the Original Side Rules and the only point to be considered by the learned Judge was whether or not it should be dismissed for want of prosecution. From this point of view it cannot be said that Rule 3 of Order 9 is attracted to this case. Even assuming that it does apply and an application under Rule 4 of Order 9 was maintainable, the appellant's problem is not solved. In Pitambar v. Baidyanath, 27 Cal LJ 117; (AIR 1918 Cal 164(1)) it has been held that no appeal lies against an order refusing to set aside a dismissal of a suit under Rule 1 of Order 9 of the Code of Civil Procedure. The reason given by Mookerjee. J. (Beachcroft J. concurring) is as follows;

'Order 43, Rule 1 Clause (c) shows that an appeal lies against an order under Rule 9 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. Rule ft applies to cases under Rule 8, that is, cases when the defendant appears and the plaintiff does not appear and the suit is accordingly dismissed for default. The Code distinguishes between cases where neither partyappears and cases where the plaintiff is absent and the defendant appears. These are two classes of cases contemplated by Rules 3 and 8 respectively, and the applications for restoration are made under Rules 4 and 9. It is worthy of note that whereas an appeal is allowed against an order refusing to set aside a dismissal of a suit under Rule 9, no appeal is allowed against an order refusing to set aside a dismissal of a suit under Rule 4........'

9. There may be another reason why the appeal does not lie. Under Rule 9 of Order 9 the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. Under Rule 4 of Order 9, however, the plaintiff may bring a fresh suit subject to the law of limitation.

10. The position, therefore, is that this appeal against the order of Mallick, J., made on February 22, 1962, is not maintainable. It was open to the appellant to prefer an appeal against the order to strike out the suit passed by Mallick J. on August 30, 1961. An order dismissing a suit for want of prosecution under Chapter X, Rule 36 (now Rule 35) is a 'Judgment' within the meaning of Clause 15 of the Letters Patent and is appealable: Udoychand v. Khetsidas : AIR1924Cal1025 . But no such appeal has been preferred.

11. The next point is that the order of the 30th August, 1961, was drawn up and filed on the 14th December, 1961, and the appellant's application for setting aside the order was made on the 24th January, 1962. In these circumstances, the learned Trial Judge had no power to reconsider the matter. In England before the Judicature Acts the courts of common law had no jurisdiction to set aside an order which had been made. The Court of Chancery did exercise a certain limited power in this direction. All the courts had power to make a necessary correction if the order as drawn up did not express the intention of the court; the Court of Chancery, however, went some what further than that, and in a proper case recalled any decree or order before it was passed and entered; but after it had been drawn up and perfected no court or Judge had any power to interfere with it: Hession v. Jones, (1914) 2 KB 421. One of the leading cases OK this point is In re Suffield and Watts Ex parte Brown reported in (1888) 20 QBD 693 at p. 698. Fry L. J. observes at page 697:

'In re St. Nazaire Co. (1879) 12 Ch. D. 88 shows that, when an order or judgment of the High Court has once been perfected, the court has no jurisdiction to alter it. So long as the order has not been perfected the Judge has a power of re-considering the matter, but, when once the order has been completed, the jurisdiction of the Judge over it has come to an end.'

12. Similar is the observation of Lindley L. J. in Preston Banking Co. v. William Allsup and Sons (1895) 1 Ch. 141 at p. 144 which runs thus:

'In my opinion, it is of the utmost importance, in order that there may be some finality in litigation, that when once the order has beencompleted it should not be liable to review by the Judge who made it.'

13. On the same page A. L. Smith L. J. observes:

'This is not an application to re-hear a matter before the order has been drawn up and perfected. Nor is it an application to vary an order which has been drawn up not in accordance with the order pronounced by the Judge. Nor is it an application that the Judge should make an order supplemental to the order drawn up; but it is an application that he should rehear the order made and perfected, and make another in its place. In my opinion, the Judge had no jurisdiction to do this, though in the three former cases he might have done so.'

14. The same view was taken in our court by Buckland J., in an application to vacate an order dismissing a suit for default under Chapter X Rule 36 (now Rule 35) of the Original Side Rules. His Lordship was of the view that the principle that where an order had been perfected the Judge had no power to re-consider the matter applied equally well to an order of dismissal for default under this Rule. The jurisdiction comes to an end once the order is completed: vide Sarupchand v. Madhoram : AIR1925Cal83 .

15. There is a provision in our Original Side Rules for speaking to the Minutes of a decree or order. It is Rule 32 of Chapter XVI and runs thus:

'Where any party is dissatisfied with any decree or order as settled by the officer, and intends to mention the matter to the court, the officer, if informed of such intention, shall not proceed to complete the decree or order without allowing such party sufficient time to apply to the court. The application must be made by Motion, on notice to the party who appeared at the hearing.'

15a. This rule is in consonance with the principle that where an order has not been perfected the Judge has power to reconsider it. The Judge has also the power to vary an order which has been drawn up; but not completed or filed: In the Matter of Steel Construction Co. Ltd., 39 Cal WN 1259. But once the order has been settled, passed and entered by the Registrar it can be varied only when it contains an adjudication on a matter on which the court never adjudicated thus bringing it into accordance with the order actually pronounced: Mulchand v. G.R. Martindale : AIR1928Cal756 .

16. It is clear, therefore, that the learned trial Judge in the instant case had no jurisdiction to interfere with the order he had made on the 30th August, 1961, which was drawn up and filed on the 14th December, 1961, on an application made on the 24th January, 1962.

17. Mr. Tibrewal, learned counsel for the appellant has urged that the completion of the order dated the 30th August, 1961, on December 14, 1961, is void and invalid as the order was settled without giving notice to the Appellant's Attorney. Our attention was invited to Rule 29 of Chapter XVI of the Rules of the Original Side. The relevant portion of the Rule is as follows:

'Where the draft of any decree or order requires to be settled in the presence of the parties, the Registrar or Master shall, by notice in writing, appoint a time for settling the same; and the parties must attend such appointment, and produce to the Officer their briefs and such other documents as may be necessary to enable him to settle the draft....'' This rule, it is obvious, gives a discretion to the officer concerned. Notice is not given whenever an order or decree is settled. It is for the officer to decide whether he requires the presence of the parties and the production to him of their briefs and other documents to enable him to settle the draft. If the officer feels that no assistance is required for settlement of the draft he need not give any notice at all.

18. In this case when the suit appearing in the special list was struck out by the order of Mallick, J., none of the parties was present. It was a simple order and its settlement did not, in our opinion, require the presence of the parties. It cannot therefore be said that the settlement was bad or invalid in the absence of notice to the appellant's solicitor.

19. Mr. Tibrewal has also argued that the order has not been drawn up in accordance with the pronouncement of the Court. Mullick, J., on the 30th August, 1961, ordered that the suit be struck out. But the order as drawn up (pages 70 and 71 of the paper book) reads:

'This suit be and the same is hereby dismissed for want of prosecution.'

20. It is well known that when neither the plaintiff nor the defendant appears the suit is usually ordered to be struck out. But when the defendant appears and the plaintiff does not appear the suit is dismissed. There is no difference from this point of view between 'striking out' and 'dismissal'. True, the words 'want of prosecution', have been used in the order as settled, They have been taken, it seems, from the marginal note of Rule 35 of Chapter X which speaks of 'disposal of suits for want of prosecution'. There appears to be no doubt that the order as settled accurately expresses the intention of the Court and, as such, there is no substance in this contention of learned counsel for the appellant. Indeed the appellant was under no illusion as to the effect of this order. In Clauses (b) and (c) of the prayers in the petition the appellant has, respectively asked for an order that the order of striking out of the suit dated the 30th August, 1961, be set aside; and that the suit be restored and the petitioner be given liberty to continue the suit.

21. Then there is another point to be noted by us. This point was not taken before Mallick, J., but we cannot ignore it in view of the provisions of Section 3 of the Indian Limitation Act. In paragraph 19 of the petition it is stated that as notice of the suit being placed in the special list was not served on the appellant's solicitor the suit escaped his notice on the 30th August, 1961, and, as such, nobody appeared before Mallick, J., to invite his Lordship's attention to the fact that all necessary steps in the suit were taken between the 2nd of August andthe 30th of August, 1961, with the best of care and diligence. The application that was made on the 24th January, 1962, was, therefore, an application for an order to set aside a dismissal for default of appearance. The appropriate article of the Limitation Act which applies to such a case is Article 163 and the period of limitation is 30 days from the date of dismissal. The date of dismissal in the present case was the 30th August, 1961, and the application to set aside the dismissal was made on the 24th January, 1962. The application was, in the premises, hopelessly barred by limitation. Even Section 5 of the Limitation Act does not protect the appellant. An application either under Order 9 Rule 4 or under Section 151 does not come within its scope. Mr. Tibrewal submitted to us that it was doubtful whether Article 163 could be applied to a case of dismissal under Rule 35 of Chapter X. Having regard to the averments in paragraph 19 of the petition with which the appellant has come to this Court, to my mind, it is not open to the appellant to contend that Article 163 did not apply to its case. In Shree Chand Daga v. Sohanlal Daga : AIR1943Cal257 our appellate Court has held that Article 163 is framed to meet all cases where steps are to be taken to set aside dismissal of suits in default. This judgment was followed by P.B. Mukharji, J., in Debendra v. Satyabala : AIR1950Cal217 . His Lordship holds that where a suit on the original side of the High Court is dismissed for default of appearance of the plaintiff an application to set aside such dismissal must be made within the period of limitation prescribed by Article 163 of the Limitation Act.

22. On the facts of this case we have to hold, therefore, that Article 163 was attracted to the application of the 24th January, 1962 and as such, it was barred by limitation.

23. Mr. Tibrewal has also argued that when the suit appeared for the second time in the special list on the 30th August, 1961, a fresh notice should have been given to the appellant's solicitor. Now, Rule 35 of Chapter X runs thus:

'Suits and proceedings which have not appeared in the Prospective List or in the warning list or peremptory list within six months from the date of the institution, may be placed before a Judge in chambers, on notice to the parties or their attorneys, to be dismissed for default, unless good cause is shown to the contrary, or be otherwise dealt with as the Judge may think proper.'

24. It is true that notice has lo be given before the matter is placed in the special list. Such a notice dated the 24th July, 1961, was duly served on the appellant's solicitor (page 63 of the paper book) and the suit appeared in the special list before G.K. Mitter, J. on the 2nd August, 1961. On this day G.K. Mitter, J., upon hearing the appellant's solicitor, directed that the suit would appear in the next special list. In these circumstances, we find nothing in the Rule to indicate that a second notice should have been served on the solicitor concerned. He was present in Court when G.K. Mitter, J., made the order and had notice ofthe fact that in the next special list his suit will appear. This contention of Mr. Tibrewal, therefore, is overruled.

25. Learned counsel for the appellant commented strongly on the conduct of the solicitors for the respondent No. 1, Messrs. Leslie and Khettry. He said that the appellant's solicitor took out a Master's summons for peremptory order against the defendants for filing their affidavits of documents on the 29th September, 1961. The summons was served on Messrs. Leslie and Khettry on the 30th September, 1061. The returnable date of the Summons was the 4th October, 1961, when it was adjourned till November 28, 1961. Adjournments were obtained also on the 28th November and the 12th December. The respondent's solicitors quietly caused the order of the 30th August to be drawn up and filed on the 14th December, 1961; but the application for peremptory order against the defendant, remained pending and three other adjournments were obtained on the 20th December 1961, and the 3rd and 10th January, 1962. It was only on the 16th January, 1962, that Mr. P.K. Sen, learned counsel for the defendant No. 1 informed the court that the suit had been dismissed on the 30th August, 1961. The solicitors for the defendant No. 1 should not have, according to Mr. Tibrewal., consented to the adjournment particularly after the 14th December, 1961, and should have told the appellant's attorney that the suit was no longer alive

26. I do not say that the conduct of the solicitors for the defendant No. 1 was at all commendable but the fact remains that no duty was cast on them to inform the appellant's solicitor that the suit was dead.

27. I intend now to make a few comments on the merits of this appeal. It is clear from the facts set out in this judgment that practically no steps were taken in this suit after the filing of the written statements by the two defendants on the 17th November, 1958 The suit appeared in the special list on the 2nd August, 1961. It was represented to G.K. Mitter, J., that the new solicitor of the appellant was not in possession of all the relevant cause papers and documents. The suit was adjourned to the next special list. Immediately thereafter the appellant's solicitor started taking certain steps. He knew that the suit would again appear in the special list but on the 30th August he did not appear before Mallick, J., although his name was on the list. The learned trial Judge has expressed the view that this is clear negligence on the part of the plaintiff's attorney and we have no hesitation in concurring with it. Not only did the plaintiff's solicitor fail to attend on the 30th August, 1961; he did not also make any effort to ascertain what had happened to the suit which was directed by G.K. Mitter, J., to be placed in the subsequent special list. He came to know about the dismissal in the Court of Sinha, J., on the 16th January 1962, when Mr. P.K. Sen, the counsel for the other side had conveyed the information. On these facts the learned trial judge, apart from other considerations, was, in our opinion, justified in refusing to set aside the order of dismissal. We should also point out that the appellant is not going to be irretrievably prejudiced by reason of the order of August 30, 1961. All that would happen, is that the arbitration of the Bengal Chamber of Commerce would now be taken up and it is up to the appellant to satisfy the arbitrators that the respondents have no claim against it.

28. For reasons aforesaid, this appeal is dismissed.

29. Each party will bear and pay its own costs.

Bose, C. J.

30. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //