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HIGH COURT OF CALCUTTA
H. K. Bose, Sankar Prasad Mitra
NANALAL M. VARMA AND CO. (GUNNIES) P. LTD. - Appellant
Versus
GORDHANDAS JERAMBHAI - Respondent
A. F. O. O. 173 Of 1962
Decided On : MAY 22, 1964
APPEAL - MAINTAINABILITY - ORDER STRIKING OUT SUIT - APPEALABILITY - LIMITATION - ARTICLE 163 - APPLICABILITY - NOTICE - FRESH NOTICE FOR SECOND APPEARANCE IN SPECIAL LIST - NECESSITY - CONDUCT OF SOLICITORS - DUTY TO INFORM OPPOSITE PARTY ABOUT DISMISSAL OF SUIT - MERITS OF APPEAL - NEGLIGENCE OF PLAINTIFF'S ATTORNEY - JUSTIFICATION FOR REFUSING TO SET ASIDE DISMISSAL ORDER - PREJUDICE TO APPELLANT - ARBITRATION PROCEEDINGS.
Fact of the Case:
Plaintiff filed a suit for injunction restraining the defendant from proceeding with an arbitration case before the Bengal Chamber of Commerce and Industry. The suit was dismissed for want of prosecution on August 30, 1961, when neither party appeared before the court. The plaintiff's application to set aside the dismissal order was dismissed by the trial court on February 22, 1962. The plaintiff appealed against the dismissal order.
Finding of the Court:
1. The appeal was not maintainable as it was not an appealable order under Section 104 and Order 43, Rule 1 of the Code of Civil Procedure. 2. Even if the appeal was maintainable under Rule 4 of Order 9 of the Code of Civil Procedure, it was barred by limitation as the application to set aside the dismissal order was made more than 30 days from the date of dismissal. 3. There was no requirement for a fresh notice to be served on the appellant's solicitor for the second appearance of the suit in the special list. 4. The solicitors for the defendant were not under any duty to inform the appellant's solicitor about the dismissal of the suit. 5. The plaintiff's attorney was negligent in not attending the hearing on August 30, 1961, and in not making any effort to ascertain the status of the suit thereafter. 6. The appellant would not suffer irreparable prejudice as the arbitration proceedings would still take place, and it was up to the appellant to convince the arbitrators that the respondents had no claim against it.
Issues: 1. Whether the appeal was maintainable. 2. Whether the application to set aside the dismissal order was barred by limitation. 3. Whether a fresh notice was required for the second appearance of the suit in the special list. 4. Whether the solicitors for the defendant had a duty to inform the appellant's solicitor about the dismissal of the suit. 5. Whether the plaintiff's attorney was negligent in not attending the hearing and not following up on the status of the suit. 6. Whether the appellant would suffer irreparable prejudice due to the dismissal order.
Ratio Decidendi: 1. An order striking out a suit for want of prosecution is not an appealable order under Section 104 and Order 43, Rule 1 of the Code of Civil Procedure. 2. An application to set aside a dismissal order under Rule 4 of Order 9 of the Code of Civil Procedure is barred by limitation if it is made more than 30 days from the date of dismissal, as per Article 163 of the Limitation Act. 3. There is no requirement for a fresh notice to be served on the appellant's solicitor for the second appearance of the suit in the special list, as the appellant's solicitor was present when the order for the second appearance was made and had notice of it. 4. The solicitors for the defendant were not under any duty to inform the appellant's solicitor about the dismissal of the suit, as they had no such obligation under the law or the rules of the court. 5. The plaintiff's attorney was negligent in not attending the hearing on August 30, 1961, and in not making any effort to ascertain the status of the suit thereafter, as it was his responsibility to keep track of the case and take necessary steps to protect his client's interests. 6. The appellant would not suffer irreparable prejudice due to the dismissal order, as the arbitration proceedings would still take place, and it was up to the appellant to convince the arbitrators that the respondents had no claim against it.
Final Decision: The appeal was dismissed, and each party was ordered to bear its own costs.
( 1 ) THIS is an appeal from an Order of Mallick, J. dated the 22nd February, 1962, dismissing the appellant's application, inter alia for having the order of striking out of the suit which appeared in the special list on the 30th August, 1961, set aside. The suit was instituted on July 30, 1958, inter alia, for an injunction restraining the defendant No. 1 from proceeding with an arbitration case before the Bengal Chamber of Commerce and Industry on the basis that the contracts between the parties were void and illegal. We are told that the Bengal Chamber was informed of the suit and thereafter no steps were taken in the arbitration proceedings. On November 17, 1958. both the defendants filed their respective written statements. Messrs, D. C. Dutt and Co. were acting as solicitors for the plaintiff. On April 10, 1963, this firm was dissolved owing to the death of one of the partners. On the 19th April, 1961, a new warrant of attorney was filed on behalf of the plaintiff, which is the appellant herein, by Mr. T. Goswami, a solicitor of this court. On May, 1, 1961, Goswami received certain papers of the suit from Mr. A. K. Dutt of D. C. Dutt and Co. On July 24, 1961, a notice was issued by this court to T. Goswami that the suit would be set down in a list before G. K. Mitter, J. in Chambers on the 2nd August, 1961, and would be 'dismissed for default unless good cause is shown to the contrary, or will be otherwise dealt with as the Judge may think proper. ' This is the usual notice which is served on the parties or their attorneys when a suit is about to be placed in what is known as the 'special List'.
( 2 ) ON the 2nd August, 1961, the suit appeared in the Special List before G. K. Mitter, J. It is stated in paragraph 5 of the petition (herein page 4 of the Paper Book that:"on submissions being made by the said Mr. T Goswami on behalf or your petitioner, on the ground of non-delivery of all relevant cause papers and documents in this suit. His Lordship Mr. Justice G. K. Mitter was pleased to adjourn this suit till the next special list to enable the said Mr. T. Goswami to take steps in the meantime. "in the affidavit-in-opposition, however (paragraph 11 at page 14 of the Paper Book), on behalf of the respondent No. I it is alleged that Mr. Goswami submitted to G. K. Mitter, J. , that he had recently filed his warrant of attorney and had not received all the cause papers, and thereupon His Lordship was pleased to adjourn the suit till the next special list.
( 3 ) ON the same day, namely, the 2nd August, 1961, T. Goswami took out a Master's summons against the defendants for discovery of documents which was served on the solicitors for the defendants on August 4, 1961, On the 8th August 1961, the Master by an order directed the defendants to file their affidavits of documents within a fortnight. The plaintiff was also directed on an application of the defendant No. 1 to file its affidavit of documents within the same time. The plaintiff's affidavit of documents was made ready and sent to the solicitors for the defendant No. 1 on the 23rd August, 1961, for their consent signature.
( 4 ) PURSUANT to the directions of G. K. Mitter, J. the suit again appeared in the Special List before Mallick, J. on the 30th August, 1961. It is said in paragraph 17 of the petition that the suit was struck out by His Lordship as no one on behalf of any of the parties appeared. The order as drawn up reads: ''this suit be and the same is hereby dismissed for want of prosecution. "
( 5 ) THE appellant's Solicitor T. Goswami was not obviously aware of this order. He wrote to the Attorney for the defendant No. 1 on the 4th September, 1961, for return of the affidavit of documents after consenting to the filing thereof. He again wrote to the defendants' Attorneys on the 8th September, 1961, enquiring about the defendants' affidavits of document. On the 9th September, 1961, T. Goswami put in a requisition for a certificate of n
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