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1950 Supreme(Cal) 190
HIGH COURT OF CALCUTTA
HARRIES,BANERJEE, JJ.
Gur Bux Singh
Versus
Sohanlal Malhotra
A.F.O.O. No. 35 of 1950
Decided On : 27-11-1950
A.K. Hazra, for Appellant; P.K. Ghosh, for Respondent.
A learned Judge acting under any of the Rules 35, 35A and 35B exercises a discretion and the point we have got to consider in this case is as to whether the learned Judge exercised his discretion properly.
Headnote:
DISMISSAL OF SUIT - WANT OF PROSECUTION - JURISDICTION OF COURT - RULES OF COURT - DISCRETION OF JUDGE - APPEAL - CIVIL PROCEDURE CODE, 1908, S. 4 - LETTERS PATENT OF 1867, CL. 37 - RULES OF THE ORIGINAL SIDE OF THE HIGH COURT OF CALCUTTA, CH. 3, RR. 1, 2, 3, 35, 35A, 35B.
Fact of the Case:
Plaintiff filed a suit for dissolution of partnership and accounts in 1945. A receiver was appointed in November 1945. The written statement was filed in August 1945. The suit appeared in the Prospective List and Peremptory List of suits for hearing from time to time. It last appeared in the Peremptory List on August 12, 1947, and then went out of the list. The plaintiff showed cause for the delay in prosecution, stating that he had asked his attorney not to place the suit in the list for hearing due to settlement talks with the defendant. The learned Judge dismissed the suit for want of prosecution.
Finding of the Court:
The Court held that the High Court was not "closed" on the date when the order of dismissal was made, as the Chief Justice had directed that the Courts would remain open except for the purpose of limitation. The Court also held that the plaintiff's story of settlement was not believable and that the suit was deliberately kept out of the list by the plaintiff. The Court further held that the learned Judge had jurisdiction to dismiss the suit under Rule 35A of the Rules of the Original Side of the High Court of Calcutta, as the suit had not re-appeared in any list within three months from the date of its removal from the Peremptory List. The Court also held that the learned Judge had properly exercised his discretion in dismissing the suit.
Issues: 1. Whether the High Court was "closed" on the date of the order of dismissal, rendering the order a nullity. 2. Whether the plaintiff's story of settlement was believable. 3. Whether the learned Judge had jurisdiction to dismiss the suit under Rule 35A of the Rules of the Original Side of the High Court of Calcutta. 4. Whether the learned Judge had properly exercised his discretion in dismissing the suit.
Ratio Decidendi: 1. The Court held that the High Court was not "closed" on the date of the order of dismissal, as the Chief Justice had directed that the Courts would remain open except for the purpose of limitation. 2. The Court held that the plaintiff's story of settlement was not believable and that the suit was deliberately kept out of the list by the plaintiff. 3. The Court held that the learned Judge had jurisdiction to dismiss the suit under Rule 35A of the Rules of the Original Side of the High Court of Calcutta, as the suit had not re-appeared in any list within three months from the date of its removal from the Peremptory List. 4. The Court held that the learned Judge had properly exercised his discretion in dismissing the suit.
Final Decision: The appeal was dismissed with costs.
BANERJEE, J. : - This is an appeal from an order dated September 21, 1949 made by S. R. Das Gupta, J., dismissing a suit for want of prosecution. The suit was commenced on or about June 27, 1945 and was for dissolution of partnership and accounts.
2. After the institution of the suit the plaintiff made an application for the appointment of a receiver and on November 23, 1945 a receiver was appointed. The written statement was filed on or about August 13, 1945. The defendant denies that there was any partnership.
3. The suit appeared in the Prospective List and in the Peremptory List of suits for hearing from time to time. It appeared for the last time on August 12, 1947 in the Peremptory List of suits for hearing and then it went out of the list. It was placed on the Special List under Ch. 10 of the Rules of our Court for disposal. The plaintiff showed cause and in showing cause used an affidavit affirmed by him on September 20, 1949. In the affidavit the plaintiff said that he as well as the defendant came from the Punjab and :
"in order to accommodate the defendant who was in difficulties since August 19, 1947 and who lives in the Punjab and by reason of the fact that talks of settlement were going on between the defendant and myself I asked my attorney not to place the suit in the list for hearing so long." He further said that there was every chance of the suit being settled and accordingly he asked his attorney not to incur costs by placing the suit on the list. There was no affidavit in opposition used on this occasion. The learned Judge dismissed the suit for want of prosecution. It is from this dismissal that this appeal has been preferred.
4. Counsel for the appellant has argued first that the learned Judge acted illegally and without jurisdiction in striking out the suit on September 21, 1949. He said that the Government of India had declared September 19, 20, and 21 as public holidays under the Negotiable Instruments Act; therefore the High Court should be deemed to have been closed on September 20 and accordingly the order passed by S. R. Das Gupta, J., was a nullity. There is no doubt that those days were declared to be holidays by the Central Government. But that does not necessarily mean that our High Court was closed on those days. Counsel in aid of his argument referred to two cases - one a decision of the Oudh Court and another a decision of the Madras Court. But neither of these decisions relates to any Chartered High Court. They were appeals from Mofussil Civil Courts and govern Ordinary Civil Courts and not Chartered High Courts. So far as we are concerned the Rules of our Court govern us. Those Rules are to be found in Ch. 3 of our Rules which is headed; "Holidays of Courts, Vacations Holidays". The relevant Rules are these :
"1. A Court for the exercise of the Original Jurisdiction of the High Court on its several sides may be held before one or more Judges of the High Court.
2. The vacations to be observed in the several Courts and offices of the High Court on its Original Side shall be three in every year, viz., the Easter, the Long and the Christmas vacations, and shall begin and end on such days as the Chief Justice may direct.
* * * * *
3. Unless otherwise specially ordered by the Chief Justice, the Courts and offices shall be open on every day of the year except on Sundays and the following holidays and vacations :
Mohuram
Sri Panchami
Fateha Doaz Daham
Dole Jatra
Chaitr Mahabishuba Sankranti
Dasahara
Birthday of His Majesty the King-Emperor
Janmashtomi
Eed-ul-Fitr
Eed-uz-Zoha.
And during the Easter, Long and Christmas Vacations (provision being made for urgent business)."
5. These Rules have been framed by our Court under the authority conferred by Cl. 37 of the Letters Patent of 1867 and the provisions of the Code of Civil Procedure. It is perfectly immaterial whether any particular day is declared a public holiday or not; the High Court remains open unless it is ordered by the Chief Justice that
