Bose, J—On 4-1-1945 the trial Court directed the plaintiff to make discovery of his account books on 291-1945. On the next hearing, 29-1-1945, the defendant complained that no discovery had been made. The Court then fixed the case for 9-4-1945. Since no discovery was made even on that date the defendant asked that the suit be dismissed for want of prosecution under Order 11, Rule 21, Civil P.C. This was done for the following reasons set out in the order-sheet:

The plaintiff was very negligent. He should have, if he had no account books, filed an affidavit to that effect. Now the defendant (sic) cannot give evidence that 'the plaintiff has no account books.

(The word 'defendant' in the order-sheet is clearly a slip for 'plaintiff.') It seems that the plaintiff entered the witness-box and wanted to depose on oath that he had no account books. The Court would not allow him to do this because, in its view, he had not complied with the provisions of the Code of Civil Procedure and had not filed an affidavit as the Code requires. The order was then signed.

2. Later in the day, after the order had been signed (the time of the signing of the order is given as 12-12 P.M.) the plaintif