HARIBUX SHROFF Vs. DWIJENDRA MOHAN GHOSH

JUDGEMENT

(1.) In this case the suit was brought on 14 January 1924, and in the same year, appearance was entered and one of the defendants was dismissed from the suit. Nothing much seems to have happened until January 1926, when another defendant was substituted and, in December of that year, an order for discovery was made. In February 1927 the defendants obtained leave to deposit a sum of money in satisfaction of their liability in Court and. on 5 April 1928 the case came before the learned Judge on the original side under Rule 36, Ch. 10 of the Rules of the High Court. On that occasion, the suit was not dismissed for default, but it was ordered to be put on the Warning List after the Easter vacation and it duly went into the Prospective List. On 24 May 1928, it was on the Peremptory List and came on for hearing and by consent, an order was made referring the matter in suit to the arbitration of an arbitrator. On 18 July, it appears that the order was served upon the arbitrator. On 31 July 1928 there was a petition for extension of time and, as the defendants refused consent to the extension of time no further proceedings seem to have been taken until 27th February 1930 when it appears that a notice was issued from the office of the Court purporting to be a notice under Rule 36, Chap. 10 of the Rules. The matter came before the learned Judge and it appears that a point was taken that the case was not, in these circumstances, within Rule 36 at all it being a case which had appeared on the Prospective List and actually had been the subject-matter of hearing before a learned Judge, who had directed the reference. My learned brother, Lort-Williams, J., was referred to two judgments of a Division Bench on appeal from the original Side-judgments which were binding upon him-and I observe that in one of those judgments, in the case of Bangsidhar Goenka V/s. Harmukhrai Ram Ballav Suit No. 889 of 1928, Decided on 12 April 1929 I said this: I entirely demur to the suggestion that if a suit has taken more than six months to reach the Prospective List "C" and long afterwards, when it is in the list, notice under Rule 36 is served, the notice is a good notice. The rule means that suits and proceedings, which have not appeared in the Prospective List within six months from the date of institution are liable to be dismissed in that position for default on notice to the parties or their attorneys.

(2.) The learned Judge says that the rule means that: even where steps have been taken in the case quite recently, it may nevertheless be placed on the list, leaving it to the discretion of the Judge to decide whether in his opinion, it is a case which ought to be dismissed or one in which good cause has been shown to the contrary.

(3.) Accordingly, although this case has not only been in the Prospective List, but has been actually heard and an order made at the trial of the suit the learned Judge has said that, in his opinion it is. within the true meaning of the rule. I can only say that in my , opinion the learned Judge's interpretation of the rule is with great respect to him, impossible. The rule says that: 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.