1. This is an appeal from an order dated September 21, 1949 made by S. R. Das Gupta J., dismissing a suit for want of-prosecution. The suit was commenced on or about June 27, 1945 and was for dissolution of partnership and accounts.
2. After the institution of the suit the plaintiff made an application for the appointment of a receiver and on November 23, 1945 a receiver was appointed. The written statement was filed on or about August 13, 1945. The defendant denies that there was any partnership.
3. The suit appeared in the Prospective List and in the Peremptory List of suits for hearing from time to time. It appeared for the last time on August 12, 1947 in the Peremptory List of suits for hearing and then it went out of the list. It was placed on the Special List under Ch. 10 of the Rules of our Court for disposal. The plaintiff showed cause and in showing cause used an affidavit affirmed by him on September 20, 1949. In the affidavit the plaintiff said that he as well as the defendant came from the Punjab and:
'in order to accommodate the defendant who was in difficulties since August 19, 1947 and who lives in the Punjab and by reason of the fact that talks of settlement were going on between the defendant and myself I asked my attorney not to place the suit in the list for hearing so long.'
He further said that there was every chance of the suit being settled and accordingly he asked his attorney not to incur costs by placing the suit on the list. There was no affidavit in opposition used on this occasion. The learned Judge dismissed the suit for want of prosecution. It is from this dismissal that this appeal has been preferred.
4. Counsel for the appellant has argued first that the learned Judge acted illegally and without jurisdiction in striking out the suit on September 21, 1949. He said that the Government of India had declared September 19, 20, and 21 as public holidays under the Negotiable Instruments Act; therefore the High Court should be deemed to have been closed on September 20 and accordingly the order passed by S. R. Das Gupta J. was a nullity. There is no doubt that those days were declared to be holidays by the Central Government. But that does not necessarily mean that our High Court was closed on those days. Counsel in aid of his argument referred to two cases - one a decision of the high Court and another a decision of the Madras Court. But neither of these decisions relates to any Chartered High Court. They were appeals from Mofussil Civil Courts and govern Ordinary Civil Courts and not Chartered High Courts. So far as we are concerned the Rules of our Court govern us. Those Rules are to be found in Ch. 3 of our Rules which is headed; 'Holidays of Courts, Vacations, Holidays'. The relevant Rules are these:
'1. A Court for the exercise of the Original Jurisdiction of the High Court on its several sides may be held before one or more Judges of the High Court.
2. The vacations to be observed in the several Courts and offices of the High Court on its Original Side shall be three in every year, viz., the Easter, the Long and the Christmas vacations, and shall begin and end on such days 'as the Chief Justice may direct.'
* * * * *3. Unless otherwise specially ordered by the Chief Justice, the Courts and offices shall be open on every day of the year except on Sundays and the following holidays and vacations:
Fateha Doaz Daham
Chaitr Mahabishuba Sankranti
Birthday of His Majesty the King-
And during the Easter, Long and Christmas Vacations (provision being made for urgent business).'
5. These Rules have been framed by our Court under the authority conferred by Clause 37 of the Letters Patent of 1867 and the provisions of the Code of Civil Procedure. It is perfectly immaterial whether any particular day is declared a public holiday or not; the High Court remains open unless it is ordered by the Chief Justice that the Court should be closed; of course, the specified days being excepted.
6. In this case it is my distinct recollection that when the Central Government declared the three days as public holidays under the Negotiable Instruments Act, my Lord said that save and except for the purpose of limitation the Courts would remain open, that is to say, that the three days would be excluded for the purpose of computing the period of limitation for filing suits and applications and accordingly the Courts were kept open and matters were heard.
7. Whether a Court is or is not 'closed' within the meaning of Section 4 of the Limitation Act of 1908 is in each case a question of fact and must depend on the practice which prevalis in the particular Court. For example, the Original Side of the High Court of Bombay is not 'closed' during the summer vacation within the meaning of that section so far as certain classes of business are concerned, such as the reception of plaints. Accordingly a suit on the Original Side of the Bombay High Court should be filed in the vacation if the period of limitation for instituting it expires during the vacation. See 'DHARAMSI MORARJI CHEMICAL CO. LTD. v. OCHHAVLAL HARGOVANDAS SHAH', 51 Bom 848..
8. It is entirely then a matter of practice and I have already stated what our practice is, that is to say, the practice prevailing in our Court. That our Court has the power to make the Rules has been recognised by a Bench decision of this Court, 'UDOY CHAND v. KHETSIDAS TILOKCHAND', 51 Cal 905; and it would profit nothing to reiterate the reasons given by the learned Chief Justice (Sanderson C. J.) in his judgment in that case. Therefore, in my view this Court was not 'closed' on the date when S. R. Das Gupta J. made hiss order. The first ground of Counsel, therefore, fails.
9. The second point taken by him was that there was a talk of settlement. I have already stated in substance what the plaintiff has said in his affidavit. The plaintiff does not condescend to give any particulars of the settlement, e.g., when the talk began or when if ended or what were, the terms of compromise. He has not produced a scrap of paper to show that any term was discussed. There is no corroborative evidence to support the statement of the plaintiff made in his affidavit which is an extremely bald statement. In the absence of particulars and of evidence corroborating the statement we are unable to place any reliance on this part of the plaintiff's affidavit. We do not belive, as we think the-learned Judge did not believe, the story of settlement set up in the affidavit.
10. The settlement being ruled out, the position is this, the plaintiff asked his attorney not to place the suit in the list for hearing. He asked his attorney not to incur further costs. There-lore he deliberately kept the suit out of the list. What the position is I shall discuss later in the judgment.
11. The third point taken by Counsel is that the plaintiff is a refugee from the Punjab. There is no suggestion of this point in the plaintiff's affidavit. Counsel has taken it; but I fail to understand what it means, and what connection it has with the case. The plaintiff in his plaint has said that he resides at No. 170 Harrison Road in Calcutta. He has also stated that the defendant resides at 171 A, Harrison Road in Calcutta. It is further alleged in the plaint that on or about May 20, 1945 it was agreed by and between the plaintiff and the defendant in Calcutta at 170 Harrison Road that the parties will carry on business in Calcutta in general merchandise, in particular fancy goods. The parties are residing in Calcutta and they agreed to carry on business in Calcutta. What does it matter then if at some time they lived in the Punjab and came from the Punjab. There is no substance in this contention and it must fail.
12. The substantial point in the case is that the suit appeared once in the Peremptory List. Had the learned Judge jurisdiction to dismiss the suit?
13. Rule 35 Ch. 10 of the Rules of the Original Side was amended by an order of our Court. The amended rules came into force with effect from June 15, 1949. Before amendment the Rule was in these terms:
'Suits and proceedings, which have not appeared in the Prospective List within six months from the date of 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.'
14. During the time this Rule was in force there was much abuse of it. Suits were placed in the Prospective List or the Warning List or the Peremptory List for hearing and then removed and the suits were lost sight of. They were not brought on for hearing for years and this led to accumulations of old suits. Our Court then amended the Rule and the amended Rules are as follows:
'35. 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 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.'
'35A. Suits and proceedings which have been removed from the Prospective List or the Warning List, or from any Peremptory List and which have not re-appeared in any of the said lists on the expiry of three months from the date of such removal or if removed by an order of the Court or the Judge on the expiry of the period specified Toy the Court or the Judge while directing the removal thereof from any of the said lists, 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.'
'35B. The attorney for any of the defendants or any defendant acting in person may submit a requisition in writing to the Registrar to have a suit or proceeding placed on the Special List when the same is liable to be dealt with under Rule 35 or 35A of this Chapter.'
15. Rule 35A gives ample jurisdiction to the Court to dismiss a suit if it is removed from any of the lists and is not brought for hearing within the time specified in that Rule.
16. In this case exactly that,' position has happened. It went out of the list on August 12, 1947 and then was not heard of any more and the learned Judge dismissed the suit for want of prosecution under Rule 35A on September 21, 1949. I have already said that the suit was kept deliberately out of the list by the plaintiff. Though he said that by reason of the talks of settlement he kept it out of the list, we have disbelieved that story and the net result is that by reason of a deliberate act of the plaintiff, the suit did not re-appear in any list.
17. The law was as I have already stated before the Constitution. Article 372 of the Constitution continues it in force, as the Rules have not been altered repealed or amended by any competent authority. Therefore, at the time S. R. Das Gupta J. dismissed the suit he has jurisdiction to dismiss it
18. A learned Judge acting under any of the Rules 35, 35A and 35B exercises a discretion and the point we have got to consider in this case is as to whether the learned Judge exercised his discretion properly. We think that he did. He took into consideration all the facts of the. case and though We repeatedly asked Counsel to tell us in which way the learned Judge had exercised his jurisdiction not properly he wag unable to give any answer. All that he said was that the claim being a large one it would be an act of injustice if the suit was not restored. But We do not think any difference can be made between a suit involving a small claim or a large claim. The law is the same for all suits and in this case the suit not having been brought on the list for more than a year, the learned Judge properly exercised his discretion and we cannot interfere. I may say that if the suit had come before me in the first, instance I would have made the same order as the learned Judge has made.
19. I do not think any injustice has been done in this case and that the suit has been rightly dismissed.
20. The appeal is therefore dismissed with costs.
21. I agree.