GOVIND DAS BHATTAR Vs. PRAN KUMAR DAS

JUDGEMENT

(1.) THIS is an appeal against an order refusing restoration of a suit dismissed for default of appearance. The decree of dismissal of the suit was passed on the 27th May, 1957. On 10th June, 1957 the plaintiff took out a Chamber Summons for restoration of the suit and it was made returnable on the next day, i. e. 11th June, 1957, by Special leave granted by the learned Master at the time he signed the Summons on 10th June, 1957. On the returnable date the Chamber application was by consent of parties adjourned till 24th June, 1957 and it was agreed that the affidavit in opposition would be made by the 18th June, 1957 and the affidavit in reply by the 22nd June, 1957. This fact of adjournment and the dates of the affidavits were endorsed on the back of the Summons and the endorsement was signed by the attorneys for the parties and was counter-signed by the Assistant Registrar who was at the time the Court Officer in the Court of Mr. Justice G. K. Mitter before whom the summons had been made returnable. On the 24th June, 1957 the application was again adjourned by consent till 1st July, 1957 and it was agreed that the affidavit in reply which was not made ready by that time would be made ready in the meantime. This fact of adjournment is also endorsed on the back of the summons and the endorsement bears the signature of the attorneys and the counter-signature of the Assistant Registrar of the Court. On 1st July, 1957 the matter was further adjourned by consent of parties till 3rd July, 1957 and similar endorsement was made on the back of the summons with signatures and countersignature as before.

(2.) ON 3rd July, 1957 the matter was mentioned to the learned Judge sitting in Chambers and it was adjourned till 8th July, 1957. On the last mentioned date the Court again adjourned the matter till Wednesday next and directed the matter to be listed. The fact of the two adjournments granted by the Court is also endorsed on the back of the Summons and signed and countersigned by the attorneys and the Assistant Registrar respectively. It appears that the application was finally disposed of on 22nd July, 1957 by G. K. Mitter, J. who refused to set aside the decree of dismissal. The learned Judge was of the view that the procedure adopted in making the application for restoration was not the proper procedure and the plaintiff should have taken but a Notice of Motion instead of a Chamber Summons. The learned Judge however adjourned the matter to Court and indicated the view that he would be prepared to grant an indulgence to the applicant, if permissible, by treating the application as one by way of Notice of Motion instead of a Chamber Summons and allowed the matter to be argued before him at length. The learned Judge upon hearing the matter came to the conclusion that the application was barred by limitation and the merits also did not justify any order for restoration of the suit. Before us the learned counsel for the appellant has challenged these findings of the learned Judge. I propose to take up first the question of limitation.

(3.) MR. Subrata Roy Chowdhury has argued that the application for restoration must be regarded as having been made to court on the day when the Chamber Summons was taken out inasmuch as the learned Master by affixing his signature to the Summons and by granting special leave fixing a returnable date of the Summons shorter than the normal period had taken cognizance of the application. In my view when the Master discharges his functions under Rule 3 or Rule 5 of Chap. VI of the rules of this Court he cannot be said to be doing any judicial Act. Rule 3 prescribes that the learned Master or the Registrar will merely put his signature on the Summons. It is a purely ministerial act. Rule 5 only empowers the Registrar or Master to abridge the period of the returnable date of the Summons. It is only this limited power which is conferred on the Registrar or Master by this Rule.