Bose, J.@mdashThis is an appeal against an order refusing restoration of a suit dismissed for default of appearance. The decree of dismissal of the
suit was passed on the 27th May, 1957. On 10th June, 1957 the plaintiff took out a Chamber Summons for restoration of the suit and it was made
returnable on the next day, i.e. 11th June. 1957, by Special leave granted by the learned Master at the time he signed the Summons on 10th June,
1957. On the returnable date the Chamber application was by consent of parties adjourned till 24th June, 1957 and it was agreed that the affidavit
in opposition would be made by the 18th June, 1957 and the affidavit in reply by the 22nd June, 1957. This fact of adjournment and the dates of
the affidavits were endorsed on the back of the Summons and the endorsement was signed by the attorneys for the parties and was counter-signed
by the Assistant Registrar who was at the time the Court Officer in the Court of Mr. Justice G.K. Mitter before whom the summons had been
made returnable. On the 24th June, 1957 the application was again adjourned by consent till 1st July, 1957 and it was agreed that the affidavit in
reply which was not made ready by that time would be made ready in the meantime. This fact of adjournment is also endorsed on the back of the
summons and the endorsement bears the signature of the attorneys and the counter-signature of the Assistant Registrar of the Court. On 1st July,
1957 the matter was further adjourned by consent of parties till 3rd July. 1957 and similar endorsement was made on the back of the summons
with signatures and countersignature as before.
2. On 3rd July, 1957 the matter was mentioned to the learned Judge sitting in Chambers and it was adjourned till 8th July, 1957. On the last
mentioned date the Court again adjourned the matter till Wednesday next and directed the matter to be listed. The fact of the two adjournments
granted by the Court is also endorsed on the back of the Summons and signed and countersigned by the attorneys and the Assistant Registrar
respectively. It appears that the application was finally disposed of on 22nd July. 1957 by G. K. Mitter, J. who refused to set aside the decree of
dismissal. The learned Judge was of the view that the procedure adopted in making the application for restoration was not the proper procedure
and the plaintiff should have taken out a Notice of Motion instead of a Chamber Summons. The learned Judge however adjourned the matter to
Court and indicated the view that he would be prepared to grant an indulgence to the applicant, if permissible, by treating the application as one by
way of Notice of Motion instead of a Chamber Summons and allowed the matter to be argued before him at length. The learned Judge upon
hearing the matter came to the conclusion that the application was barred by limitation and the merits also did not justify any order for restoration
of the suit.
3. Before us the learned counsel for the appellant has challenged these findings of the learned Judge. I propose to take up first the question of
limitation.
4. Mr. Subrata Roy Chowdhury has argued that the application for restoration must be regarded as having been made to court on the day when
the Chamber Summons was taken out inasmuch as the learned Master by affixing his signature to the Summons and by granting special leave fixing
a returnable date of the Summons shorter than the normal period had taken cognisance of the application. In my view when the Master discharges
his functions under Rule 3 or Rule 5 of Chap. VI of the rules of this Court he cannot be said to be doing any judicial Act. Rule 3 prescribes that the
learned Master or the Registrar will merely put his signature on the Summons. It is a purely ministerial act. Rule 5 only empowers the Registrar or
Master to abridge the period of the returnable date of the Summons. It is only this limited power which is conferred on the Registrar or Master by
this Rule.
5. In the case reported in ILR 20 Cal. 899 which has been followed in subsequent cases of this Court it has been held by a Bench of three learned
Judges of this Court that merely taking out a Chamber Summons to which Master has affixed his signature does not amount to making an
application to the Court. I see no reason to take a different view. The additional fact present in this case, namely, the giving of the Special leave by
the learned Master for a shorter returnable date of the Summons does not make any difference. Moreover, the learned Master had no jurisdiction
to sign or grant special leave in respect of a Summons which was for setting aside a decree of dismissal and which Summons, as has been pointed
out hereafter, did not lie at all.
6. It has been further contended by Mr. Roy Chowdhury that even if it be held that mere taking out a Chamber Summons signed by the Master
and the granting of Special leave would not amount to making an application to Court, yet fact is that the Assistant Registrar of the Court had
signed the endorsements of adjournment made on the back of the Summons by the Attorneys for the parties and the time for making the affidavits
was also mentioned in two of the endorsements which indicate that the Court had taken congnisance of the application and so it must be held that
the application had been made to Court on the 11th June, 1957 which was within 30 days from the date of dismissal of the suit. Reliance is placed
on the Resolution of the Full Court passed in February, 1944 under which the practice of noting the adjournments and countersignature of the
Assistant Registrar on the back of the Chamber Summons was extended to the cases in which Counsel appeared for the parties.
7. The Resolution is as follows:-
Resolved that in order to avoid delay if any application on Summons in which counsel are appearing for parties, is to be adjourned, such
adjournment is to be noted on the Summons by the Court officer as in the case of applications by attorney. If the application is not brought up on
the adjourned date or a further adjournment obtained, the Summons will be deemed to have lapsed and no action will be taken on the same. The
Court officers are to bring to the notice of the Judges cases of undue delay.
8. The learned Judge interpreted this resolution to mean that the court officer only plays the role of an observer for the purpose of checking that
there was no undue delay in disposal of the Chamber Summons in which counsel had been briefed. The observations that the learned Judge made
were as follows:-
But this resolution does not mean that the court officer was empowered to grant any adjournment or that any adjournment of the summons in the
manner indicated amounted to the court having dealt with the matter or the parties having moved the court for the purpose. The capacity of the
court officer in cases like these is merely that of an observer. He does not take any initiative himself. He does not suggest that adjournments should
be had. Whatever is done is done by the attorneys for the parties and the court officer merely puts his signature on the summons at the foot of the
endorsement made by attorneys by way of check of the adjournments had. Really the parties agree among themselves as to the day to be
''appointed'' by them for the consideration of the matter within the meaning of the expression used in rule 9 of Chap. VI.
9. Now it is clear that the object of this Resolution was to stop cases of undue delay in chamber applications being brought up before the court and
with that end in view the resolution required that the adjournments should be noted on the summons by the Court Officer. In other words whenever
adjournment of a Chamber Summons is sought, such fact has to be brought to the notice of the Court Officer and the latter must note such
adjournment on the back of the summons. There is hardly any room for doubt that this practice was introduced to avoid wastage of the court''s
time by such matters being mentioned before the presiding judge. The provision in the Resolution that if the application is not brought up on the
adjourned date and if further adjournment is not ""obtained"" the summons would lapse indicates that by the notings made by the Court Officer the
summons is kept alive and the application remains pending. The word ""obtained"" used in the expression ""further adjournment obtained"" means the
adjournment obtained from the Court by the act of noting of the Court Officer.
10. By virtue of this Full Court resolution the power of allowing adjournment of Chamber Summons has been delegated to the Court Officer. If
there is in any case undue delay in moving a Chamber application the Court Officer can certainly bring it to the notice of the Court and refuse to
make further notings on the summons. The word ""appointed"" in rule 9 of Chapter VI, means the day appointed by the noting made by the Court
Officer or by the Court when the matter is mentioned before the Court. In my view when according to the practice laid down by the resolution of
the Full Court notings about adjournments are made by the Court Officer on the back of the summons the application is to be deemed to have
been made before the Court on the date when the first noting is made. The first noting in the present case having been made on 11th June, 1957
the application cannot be said to have been barred by limitation.
11. The next point argued by Mr. Roy Chowdhury is that the learned Judge was wrong in holding that the merits of the case did not justify an
order for restoration. This contention does not appear to be without any force. The plaintiff''s case was that his counsel was engaged in the Appeal
Court. This fact is not specifically denied in the opposition of the defendant. I cannot see why this ground does not constitute a sufficient cause for
non-appearance. It appears that the learned Judge did not accept all the statements of facts alleged in the affidavit of Tarapada Sen affirmed on the
6th June, 1957 and he preferred to accept some of the statements in the affidavit of Pran Kumar Das but the learned Judge does not appear to
have rejected the case of the plaintiff as made in the affidavit of Tarapada Sen that the plaintiff''s advocate was engaged in some other court and
was absent from his court at the crucial moment and this led to the dismissal of the suit for default of appearance. So I do not think that the
application can be thrown out on the ground that it is lacking in merits.
12. Mr. Subrata Roy Chowdhury has also contended that the application for restoration of a suit dismissed for default can be made by taking out a
Chamber Summons and it is not obligatory to take out a Notice of Motion for the said purpose. The learned Counsel has placed reliance on items
12, 13 and 18 of Rule 11 of Chapter VI of the Rules of the Original Side of this Court, in support of his argument that this application can be by
way of Chamber Summons. I am unable to accede to this contention.
Item 12 is as follows:
Application for time to plead, for leave to amend, for discovery and production of documents and generally all applications relating to the conduct
of any suit or matter.
13. It is argued that an application for restoration is one relating to the conduct of the suit. In my view this is not a correct reading of the words
and generally all applications relating to the conduct of any suit or matter"" as appearing in item 12 of Rule 11. The expression ""conduct of any suit
has been explained in Item 12 itself by reference to certain specified matters which relate to the conduct of the suit e.g. applications asking for time
to plead, for leave to amend, for discovery and inspection. So only matters of like nature which relate to the conduct of a pending suit that are
covered by the expression ""conduct of any suit."" An application for restoration of a suit which has come to an end by reason of a decree of
dismissal is not one relating to the conduct of the suit. It is an application for reviving a suit which is dead or has ceased to exist and is no longer on
the file. There cannot be any conducting of a dead suit.
14. Similarly Item 13 of Rule 11 of Chapter VI of the Rules has no application.
Item 13 reads thus:-
All proceedings in execution or otherwise under a decree or order.
15. An application for restoration of a suit or for setting aside the decree of dismissal cannot by any stretch, of imagination be regarded as a
proceeding taken under a decree or order. The very object of such an application is to challenge the decree or order or to get rid of the decree or
order of dismissal.
16. The next item relied on is Item No. 18 of Rule 11 of Chapter VI which is as follows:
Such other matters as are not expressly required to be disposed of in court and which the Judge thinks fit to be heard in Chambers and such other
applications as are directed to be made in Chambers.
17. There is nothing to show that any Judge had directed or thought fit that this matter would or should be heard in Chambers before the Chamber
Summons was taken out in, the present case.
18. It appears to me that in view of the opening words of Rule 11 of Chapter VI and Rule 3 of Chapter XX of the Rules of the Original Side of
this Court it should be held that the present application ought to have been made by taking out a Notice of Motion. In Rule 3 of Chapter XX it is
provided that except where otherwise provided by statute or prescribed by these rules all applications which in accordance with these rules cannot
be made in Chambers, shall be made on motion. This residuary provision applies to this case and in my opinion the proper procedure of making an
application for restoration of a suit dismissed for default of appearance is by way of Notice of Motion.
19. It has been argued by Mr. Roy Chowdhury that even if it is held that the proper procedure is an application by notice of motion, the learned
Judge by adjourning the matter to court and by treating the application as one made by Notice of Motion had condoned the defect and regularised
the application and so the application cannot be thrown out for the initial defect in procedure that was there when the Chamber Summons was
taken out.
20. Now the Rules which empower the Judge sitting in chambers to adjourn any application to court are Rules 2 and 10 of Chapter VI of the rules
of the Original Side of this Court. But these rules, in my view, have reference to initially proper or regular applications which can be validly made in
chambers and not to applications which cannot according to the rules be made in chambers at all. The present application being one which could
not be properly made in chambers, the further question that arises is whether the learned Judge could treat it as an application by way of notice of
motion. It is to be noted that the learned Judge himself was in doubt whether he could so treat it.
21. The words ""if permissible"" used by him in his judgment indicate this doubt. It appears to me that the Court should not lightly brush aside the
rules framed by this Court or allow the parties to contravene the rules with impunity. But adherence to the rules and practice of the court should be
insisted upon. It is true that the Court on certain occasions has allowed restoration of suits dismissed for default of appearance upon the oral
application of parties and sometimes on a mere affidavit of the party in default but such cases are to be treated as special or exceptional cases
where the Court has shown special indulgence. But where the parties have to make or are directed to make applications for restoration in the
ordinary way they must follow the normal procedure.
22. Now although the normal procedure for an application for restoration of a suit dismissed for default is by taking out a notice of motion and not
a Chamber Summons, I am inclined to think that dismissal of the application on this technical ground alone will result in hardship and injustice to the
plaintiff.
23. I would, therefore, allow this appeal and set aside the order of the learned trial Judge but on the term and condition that the appellant-plaintiff
will pay to the Respondent the costs of this appeal and the costs of the application before G.K. Mitter, J. and also all costs of the day when the suit
was dismissed for default as a condition precedent within three weeks from date. Such costs are assessed at Rs. 1,750/- subject to taxation and
subject to the usual mutual undertaking to refund or pay the excess. Upon such payment the suit will be restored and liberty to mention for placing
the suit in the list for trial. In default of payment, the appeal will stand dismissed with costs.