1. This is an application to vacate an order made on the 14th December last dismissing a suit for default under Chap. X, Rule 36 of the rules of this Court in its original jurisdiction.
2. Before dealing with the facts I will refer briefly to the point taken on behalf of the defendants that I have no jurisdiction to entertain the application on the ground that, though a Judge ordinarily may re-hear and vacate an order made by him before it is drawn up and filed so as to become effective, he cannot do so with reference to an order of dismissal. The general principle is well established.
3. I have been referred to In re Suffield and Watts (1888) 20 Q.B.D. 693, in which Lord Justice Fry enunciated the principle that when an order has not been perfected the Judge has power of re-considering the matter, but once completed his jurisdiction has come to an end. I myself have already had occasion to consider the principle and apply it, and I am informed that many of my learned brethren in unreported cases have done the same. I thought there was no doubt about it, until learned Counsel contended that though the rule generally might be as stated, yet it did not apply where the suit had been dismissed. In support of this he has referred me to certain authorities, but from them it does not appear whether or not in all the order had been perfected.
4. He, therefore, places greater reliance on Script Phonography Co., Ltd. v. Gregg 59 L.J. Ch. 416. But the point which I have to consider did not arise. Mr. Justice North held that though an order had not been drawn up and served upon the Plaintiff it became operative as from the date when it was made with reference to the next step which the Plaintiff ought to have taken and which be did not take. This involves consideration of the matter from a very different standpoint. Certainly it does not, as I read the case, mean that a Judge is precluded from rehearing and vacating an order made by himself so long as it has not been drawn up or served because the order happens to be one of dismissal. In my opinion the point has no substance.
5. Another point has been taken by Mr. Sarcar, which I think I should mention, though he does not now wish to rely upon it He has drawn my attention to the second schedule of the Code of Civil Procedure, Section 3, Sub-section (2). which provides that where a matter is referred to arbitration the Court shall not, save in the manner and to the extent provided in the schedule, deal with such matter in the same suit. That would appear to pre-elude cases which have been referred to arbitration being dealt with when they appear on the special list. It does not necessarily follow that when they so appear the order for arbitration cannot be superseded (and that probably would be the correct course) whereupon such order as seems right and proper could be made in the suit itself. But rather than have the matter dealt with upon this basis as that would mean further delay, Mr. Sarcar is willing that I should deal with the whole matter.
6. He has also submitted that inasmuch as the case did in fact appear on the protective list within six months of its institution the rule under which it was dismissed cannot apply. If necessary, I should obtain a certificate from the Registrar as to this, for the parties are not in a position folly to inform me.
7. Coming to the merits it appears that the delay was occasioned 'while the matter was before the arbitrator. Facts such as those which are set out) in the petition were stated at the time when the case appeared in the protective list; but they were not proved by affidavit, and consequently I was unable to pay any attention to such statements. During the period between the 17th November, 1922, and the ultimate dismissal it appears that practically nothing was done. The parties agreed in April, 1923, for the time for the making of the award to be extended. The defendant says that ha was ready to agree to that course, but that it was for the plaintiff to make the necessary application which the plaintiff failed to do. Then the arbitrator left for his native village which further delayed matters and the Plaintiff alleges that it was agreed that the arbitration should be proceeded with after he returned. There is nothing in-support of this; no documentary evidence; and the defendants deny that any such agreement was made.
8. There can be no doubt that the delay was considerable, also that parties whose duty it was to take steps to make the arbitration effective did not take them; and I should be very reluctant to make any order in favour of the plaintiff were this a suit for damages only. But it is stated -and it is not denied-that as regards Rs. 4,578-1-6 the suit is actually for the price of goods sold and delivered. If that is so, I feel that it may result in injustice not to allow the suit to proceed where the defendant has actually had goods but has not paid the price. But, nevertheless, it ought to be made clear to parties, who wish to take advantage of the second schedule to the Code of Civil Procedure and accordingly agree to refer suits to arbitration rather than have them tried by this Court, that they may not thereby make opportunities to delay the solution of their differences. Means and processes are at their disposal if the arbitrators do not proceed with diligence, and it is not sufficient excuse to say that the matter has been referred to arbitration and the fault is that of the arbitrator. But for reasons stated I vacate this order and I direct that the suit be heard. The suit will appear on the warning list on Monday, the 4th February. Costs: costs-in the cause.