JUDGMENT :- This is an application made by a notice of motion. The notice of motion is taken out by the attorney for the plaintiff and is dated 19th August 1949. By special leave the notice of motion was made returnable for 22nd August 1949. The notice of motion asks for the following reliefs :

"1. Order Betting aside the order of dismissal dated 5th May 1949.

2. Restoration of the suit tot hearing.

3. If necessary, extension of time for making this application."

2. On the day when special leave was asked from the Court to make the notice of motion returnable on 22nd August 1949 the application was not noted as made on that date when the application came on the list on 22nd August 1949 the plaintiff did not have the application noted as made even on that date. On 22nd August 1949 directions were obtained from this Court for filing affidavits. Time was taken to file affidavit in opposition by Tuesday week i.e., 30th August 1949 and to file affidavit in reply by the following Monday, i.e., 5th September 1949 and the application remained adjourned for hearing till 6th September 1949 when adjournment was asked for and granted till the following Tuesday i.e. 13th September 1949. Even on 6th September when the motion was on the list the applicant did not have the motion noted as made on that date. When the motion appeared on the list on 13th September, it was again adjourned at the instance of the parties till the following Friday, 16th September 1949. The application was heard on 16th September 1949. I have stated in detail the career of this motion because an important point of limitation has been raised in defence to this application.

3. The facts giving rise to this application may be stated briefly.

4. This is a liquidated claim and the suit was instituted by the plaintiff on 1st December 1946. Plaintiff claimed in the suit the recovery of the sum of Rs. 2,570-1-6 alleged to be due on a hatchita. The hatchita was executed by the father of defendant 1 Kartick Chandra Nayak Saha as early as 9th January 1938. The drawer of the promissory note died in June 1946. The plaintiff filed the suit against the widow and the other minor sons of the deceased drawer. The suit appeared in the prospective list from 11th March 1948 and continued in the Prospective List for over a year till 30th April 1949, Under Chap. 10, R. 7 of the Original Side Rules of this Court a suit is placed on the prospective list when it is ready to be heard, which, in my opinion, means when inspection, discovery and translation of documents have all been completed.

5. On 4th May 1949, the suit appeared in the warning list of liquidated claims of Sinha, J. On 5th May 1949, the suit appeared in my daily list of liquidated claims for disposal. It was called on twice. On the first call no one appeared for the plaintiff when it was passed over. On the second call also, nobody appeared for the plaintiff. On both these occasions defendant 1 and his counsel were present. On the second call when no one appeared Mr. S. Sinha learned advocate for defendant 1 asked for the dismissal of the suit. The suit was accordingly dismissed and I consider the provision of O. 9, R. 8, Civil P.C., to be mandatory.

6. On behalf of the plaintiff, this application is not made to set aside that order of dismissal which was made on 5th May 1949. In support of the notice of motion the only ground used is an affidavit of one Kanai Lal Chatterjee affirmed on 19th August 1949. The said Kanailal Chatterjee is a court clerk of the attorney for the plaintiff. The case made in his said affidavit may be summarised as follows :

(I) He did not know that the suit had been dismissed for default on 5th May 1949. The Court closed for the summer holidays after 11th May 1949 and re-opened on 15th June 1949.

(ii) Between 4th May 1949 when he saw the suit appearing on the warning list of Sinha, J. and until 14th May 1949 when the Court closed for the summer holidays apparently no interest was taken in this suit. It is sta

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