P.B. Mukharji, J.
1. This is an application to set aside an ex parte order of dismissal made on 24-2-1955. The application is made by the plaintiff. The suit appeared on the peremptory list for hearing on 24-2-1955. No one appeared on behalf of the plaintiff. It is now said in para 16 of the petition used in support of the notice of motion and in explanation of the non-appearance that the learned counsel engaged on behalf of the plaintiff was busy in another Court actually cross-examining a witness at the time when this suit was called on for hearing. The defendant's Counsel was present on that date, and it is alleged that he prayed for the dismissal of the suit. The suit was dismissed with costs to the defendant and certified for two Counsel.
2. It is unfortunate that only one counsel was engaged for the plaintiff in this case although the claim in this suit is for about Rs. 30,000/-. An Attorney who briefs one counsel for the hearing of a suit placed on the interlocutory Court which is not able to reach suits every day due to interlocutory applications, takes thereby a big risk in these matters, and it is necessary for this Court to express its opinion that on that ground alone of his counsel being busy elsewhere, it cannot always accommodate Attorneys specially when it is a matter which is certified as fit for the employment of two Counsel.
3. The merits of the case do justify in my view the setting aside of the order of dismissal on certain terms and conditions as to costs. For the fault of the Counsel, I do not think it will be in consonance with justice in this case that the plaintiff's claim should be defeated. At the same time, failure to arrange for his counsel to appear or failure to make arrangement for more than one counsel which has led to unnecessary costs being incurred by the defendant, must be compensated,
4. Mr. K. C. Mukherjee appearing for the defendant has drawn my attention to the Calcutta Amendment of Order 9, 11. 9 Civil P. C., which says in Sub-rule (3) thereof:
'No order shall be made under this rule unless notice of the application (with copy thereof or concise statement as the case may be) has been served on the 'Opposite party'.
Now in tin's case only the notice of motion was served on the respondent at first and not a cppy of the petition in support thereof. In other words, the copy of the petition in support of the notice of motion was not served at the same time as the notice of motion was served on the respondent. It was, therefore, urged by Mr. Mukherjee appearing for the defendant that this application must be dismissed.
5. Mr. Amiya Nath Bose appearing for the plaintiff contends in defence, first, that this Rule in terms does not apply. Secondly, he contends that sub-clause (2) of the Calcutta Amendment indicates that the applicant while presenting the application to the Court presents as many copies thereof on plain paper as there are opposite parties. From that provision he deduces that it is the obligation of the Court to serve the copies of what are called 'applications' under Order 9, Rule 9. This argument does not help Mr. Bose's client because, although no copy was served by the Court in this case on the respondent, yet Mr. Bose's client did not fulfil the primary obligation of supplying copies to the Court for such service.
Thirdly, Mr. Bose contends that under the Rule on the Original Side of this Court only notice of motion need be served at first and copies later on usual charges. To that the answer is that while it is true that ordinarily notice of motion need alone be served without the grounds at first, nevertheless where there is statutory provision adjoining service along with the notice of the application copies of the application itself, then I think the Rules cannot be allowed to override such statutory mandate.
6. Then it was contended by Mr. Bose that Order 9 R. 9 cannot prevail over the Rules of this Court. I have no hesitation in rejecting this argument also on the ground that there is no conflict on this particular point between Order 9 Rule 9 and the Rules of this Court, because I am of opinion that in this case the notice of motion could easily have been served with a copy of the petition in support thereof.
7. While Mr. Brose's arguments are not of very great assistance to help his client the plaintiff in this case, there are certain other considerations which in my judgment, should prevail. The first of such considerations is that what is required to be served is 'a copy of the application.' Now, an 'application' may be treated as the notice of motion itself. There is no provision for a notice of motion in ordinary Civil Courts to which this provision is normally attracted.
Under the Civil Rules and Orders an application in the Civil Court is made by presentation of a petition containing the prayer at the end thereof. No notice of motion as understood and provided for by the Rules of Original Side of this High Court, requires to be taken out in such cases although provision is there for notice of such application to be given to the opposite parties. On the Original Side of this Court an application is made on a notice of motion. The notice of motion is itself the application. What is stated at the foot of the notice of motion is only the 'grdunds' which are used in support of that application which is normally a petition or an affidavit but that petition or affidavit is not the application itself as it is in the case of other Civil Courts.
Therefore service of the notice of motion is on the Original Side of this Court service of the application itself within the meaning of the Calcutta Amendment of Order 9, Rule 9 of the Code. This notice of motion is not in. general terms only an intimation that an application will be made but has to set out in the body thereof the very specific orders which are sought on the application. In fact the notice of motion is itself a summary of the relief wanted on the application. It must be emphasised that the requirements of the Calcutta Amendment of Order 9, Rule 9 are also satisfied by a 'concise statement' and a service of a full copy of the whole application is not necessary. I have no hesitation in holding that a notice of motion on the Original Side of this High Court is such a concise statement of the application within the meaning of the Calcutta Amendment of Order 9, Rule 9, Civil P. C.
8. Apart from that reason, the second reason is that Sub-rule 3 of the Calcutta Amendment only prohibits an order being made under that Rule unless notice of the application with a copy thereof had been served on the opposite party. What therefore the Court is prevented is from making an order, unless the condition there of service of the copy of the application is satisfied. It does not mean that the application itself must be dismissed. It only means that the Court will not make an order until a copy pf the application has been served on the respondent.
In this connection, one might recall the provisions in 'pari materia' such as are contained in Section 214, Succession Act where it is stated that no decree shall he made by a Court unless certain conditions are satisfied and the Court in such cases does not dismiss the proceedings but does not make the decree until the condition is satisfied. Mr. Mukherji, appearing for the defendant argues that in those cases the suit is pending and therefore the suit or proceeding is kept pending while, the condition is required to he satisfied but here he contends that the application is already there and as the application has not satisfied the condition laid down by Sub-rule 3 of the Calcutta Amendment, it should be dismissed straightway.
I am unable to accept this argument for many reasons but the first and foremost reason is that here also the Court adjourns the application and keeps it pending and does not make any order thereon until its copy has been served on the respondent. The second reason is that this is a penal provision which must be strictly construed. Therefore, if the statutory mandate is that no order shall be made, then it will be strictly followed and it means only that the Court will not make an order until the condition is satisfied.
It will not read more into it and dismiss the pending application. It comports with the object of the Calcutta Amendment which is that an order of dismissal should not be set aside without giving full opportunity to the respondent who has acquired a right or benefit by such order of dismissal and such full opportunity can only be given by not merely insisting on the notice of such application but also by insisting service on him of a copy or summary of the application itself.
In this case the point of Mr. Mukherji is of course worse than technical because he has not only received since the copies of the petition in support of the notice of motion but his client has actually answered it on affidavit and which affidavit he is using and relying on. . The condition therefore laid down in the Calcutta Amendment of Order 9, Rule 9 today remains satisfied before me and I feel that this Court can and should make an order.
9. But the order setting aside the order of dismissal in this case must be on certain terms and conditions. The applicant must pay the costs of this application and all costs thrown away when the suit was dismissed for default on 24-2-1955 for his non-appearance. Payment of such costs, I feel, should be made a condition precedent in this case. For the time being, I assess such costs to be Rs. 1500/- because the defendant had come with all his witnesses and had engaged his counsel who appeared in Court and the defendant incurred heavy costs.
This assessed cost includes both the costs of this application as' well as the costs of the suit thrown away and I direct that this be paid by the applicant's Solicitor to the respondent's Solicitor by 19-4-1955. The respondent's Solicitor will hold this sum without lien and subject to further orders' of Court. I will however make this assessment of costs at Rs. 1500/- subject to taxation. The respondent's Solicitor will have his bill pf costs for the application and for the costs of the suit thrown away taxed and the applicant's Solicitor will also pay for the costs of such taxation.
There will be mutual undertaking as betweenSolicitors so that if the taxed costs are more thanRs. 1500/- the applicant's solicitor will make goodthe extra amount, and if they be less the respondent's solicitor will refund the exceeds. In casethis condition is satisfied, I set aside the 'ex parte'order of dismissal of 24-2-1955 and direct the suitto appear at the top of the prospective list from25-4-1955 with liberty to the parties to mentionto have a date fixed for its disposal. In defaultof making this payment, this application will standdismissed with costs.