CORPORATION OF CALCUTTA Vs. RCBANERJI

JUDGEMENT

(1.) Rule 36, Ch. 10, of the Original Side Rules provides as follows: 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.

(2.) Formerly this was construed as meaning that, if a suit had not appeared in the Prospective List within six months from the date of institution, it might, subject to the discretion of the Judge in Chambers, be dismissed for default. The result was that such a suit was always thereafter in jeopardy, unless the plaintiff prosecuted it expeditiously.

(3.) But in Haribux Shroff V/s. Dwijendramohan Ghosh , the Chief Justice decided, and C.C. Ghose, J., agreed, that this construction was as they expressed it, "impossible," and that the rule means that if at the time when the suit is placed before the Judge in Chambers" it is not in the Prospective List, and has not previously appeared in the Prospective List, it may be so dismissed. The result of this decision, if read literally, makes the rule practically useless. Any plaintiff can avoid its provisions by the simple expedient of putting his case in the Prospective List, taking it out again, and then proceeding at his leisure unhampered by any interference from the Court. Rule 7 provides that his attorney may, by requisition in writing to the Registrar, have his suit entered in the Prospective List on the ground that it is ready to be heard. Rule 8 provides for its removal from the list."