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HIGH COURT OF CALCUTTA
SABYASACHI MUKHERJI
THE ADMINISTRATOR GENERAL OF WEST BENGAL - Appellant
Versus
KUMAR PURNENDU NATH TAGORE - Respondent
Suit 683 Of 1951
Decided On : OCTOBER 07, 1969
ORDER 47 - REVIEW - SUFFICIENT REASON - NON-PROSECUTION OF SUIT - DEATH OF SOLICITOR - DISCOVERY OF NEW MATTER - COURT'S DISCRETION - LIMITATION - FORM OF APPLICATION.
Fact of the Case:
The suit was filed in 1951 and was dismissed for non-prosecution in 20th December, 1968. The plaintiff filed an application for review of the order of dismissal on the ground that the plaintiff's solicitor had died in 1966 and the plaintiff was not aware of the order of Mallick J. dated 3rd August, 1961, which directed that the suit should go out of the list.
Finding of the Court:
The court held that the plaintiff had not been able to prove strictly that the plaintiff after due diligence could not have brought to the notice of the Court that fact. The court also held that the order of Mallick J. , dated 3rd of August, 1961 is not very clear and specific. The court further held that there is evidence to justify to come to the conclusion that there is sufficient reason for exercising my power under Order 47, Rule 1 of the Code of Civil Procedure, in the interest of justice.
Issues: 1. Whether the suit can be restored under Order 9 of the Code of Civil Procedure? 2. Whether the court can exercise powers under Order 47 of the Code of Civil Procedure and review its order of dismissal? 3. Whether there is sufficient reason to review or recall the order of dismissal made on the 20th of December, 1968?
Ratio Decidendi: 1. Order 9 of the Code of Civil Procedure deals with the dismissal of the suit in case the parties do not appear when the suits are "called on for hearing" and in case of the applications for restoration, the scope of enquiry is limited to finding out whether there is "sufficient cause for non-appearance" when the suit is called on for hearing. 2. The court has no authority to vary the decision and/ or recall the order as such after the order has been drawn up and perfected. 3. Review can be permitted only in three cases, that is to say, where important and new materials were overlooked, by misfortune not due to laches of the party or where there are mistakes or errors apparent on the face of the record, or for any other sufficient reason. 4. The expression "analogous" means bearing same correspondence or resemblance, similar in certain circumstances. An analogous reason therefore does not mean the same reason but similar reason. A reason therefore which is similar in nature but does not strictly come within the first two reasons mentioned in Rule 1, Order 47 is also covered by the expression "sufficient reason."
Final Decision: The court recalled the order of dismissal dated 20th December, 1968 and directed the suit to appear at the top of the prospective list.
( 1 ) ON 20th of December, 1968 this suit appeared in my list of suits in the Special List under Chapter X of the Rules of the Original Side of this Court. This suit was filed on 2nd of February, 1951. Counsel appeared on that date and made oral submissions before me that I should adjourn the suit till the next date for taking up suits in the Special List as his client was not in a position to place the facts relating to the non-prosecution of the suit. As there was no affidavit I was not inclined to accept the oral submissions made on behalf of the plaintiff in this suit and as no cause was shown why the suit had not been prosecuted so long. I directed that the suit be dismissed. On the 20th of January, 1969 this application was noted as made and a notice of motion was taken out for recalling and setting aside the said order made on the 20th of December, 1968 and further praying for review of the said order dated 20th December 1968 and for directions for the hearing of the above suit.
( 2 ) IT appears that the suit was filed on the 2nd of February 1951 by the petitioner as administrator to the estate of Raja Profulla Nath Tagore, since deceased, against one Kumar Purnendu Nath Tagore, for an account of all realisations made by the defendant in respect of "tagore Villa" from the Military Authorities as well as other tenants between the death of Raja Profulla Nath Tagore and the institution of this suit, for further accounts and for certain other incidental reliefs. It appears that Messrs. Mukharji and Lahiri, a firm of Solicitors, having office at 10. Old Post Office Street, Calcutta was the Attorney on record of the plaintiff. Mr. A. B. Lahiri, since deceased, was the sole proprietor of the said firm. It has been stated in the petition that except Mr. Lahiri there was no other Solicitor in the said firm. It has been further stated that the said Mr. Lahiri looked after all the legal matters of the estate of Raja Profulla Nath Tagore and was entrusted with the suits and proceedings in connection thereof. The petitioner states in the petition that Mr. Lahiri died on or about 4th of February, 1966.
( 3 ) THIS petition which was noted as being made on the 20th of January, 1969 is verified by one Balaknath Paramanik, who has described himself as Head assistant in the employment of the Administrator General of West Bengal. In paragraph 4 of the petition it has been stated that the petitioner caused enquiries to be made to find out if any other Solicitor was looking after the business of Messrs. Mukherjee and Lahiri in paragraphs 4 to 10 the petitioner has stated about certain enquiries being made and how the petitioner tried to contact the family of late A. B. Lahiri Unfortunately there is no particulars as to the dates when these enquiries were made. Certain correspondence are annexed to the petition. The first letter which I find is a letter dated 30th of April, 1968, written to Mrs. A. B. Lahiri by the Administrator General of West Bengal It has been stated that certain cause papers in respect of the estate of Raja P. N. Tagore were lying with late Mr. Lahiri and Mrs. Lahiri was requested to hand over those papers. The next letter is dated 19th of December, 1968 written to the son of late Mr. Lahiri. It appears that on or about 18th December, 1968 the petitioner received the notice from this Court that the above suit had been set down in my list of 20th December, 1968. The petitioner states that the said letter was addressed to Messrs. Mukherjee and Lahiri and most presumably have been served on the petitioner because the office of Messrs. Mukherjee and Lahiri was found to be closed. The matter appeared in my list, as mentioned hereinbefore on the 20th of December, 1968 and the petitioner was not in a position to instruct the present Solicitor about the steps taken in respect of the suit. In the petition the petitioner has stated about how certain enquiries and searches of the records were made. The pet
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