S.C Sons (P) Ltd. v. Sm. Brahma Devi Sharma And Others

Bimal Chandra Basak, J.:— This appeal arises out of an order dt. 1st of Oct. 1985 whereby a learned single Judge of the Original Side of this Court allowed the application made by the respondent-plaintiffs for setting aside and recalling the order dt. 26th of July 1985 passed by the learned Judge. The facts of this case, so far as relevant for the purpose of the Appeal herein, are as follows:

Facts.

2. On or about 13th of March, 1962 the predecessor-in-title of the plaintiff-respondents herein instituted the suit against the defendant-appellants, inter alia, praying for a decree for specific performance of an agreement for sale dt. 8th July 1961 as modified by subsequent agreement and for other reliefs. The defendant-appellants filed the written statement. Ultimately the suit appeared in the daily list of the learned trial Judge on the 26th of July, 1985 when the appellant-defendants appeared but the plaintiffs-respondents did not appear and accordingly the suit was dismissed for default. On the 19th of Aug., 1985 the plaintiffs-respondents affirmed an application for recalling and/or setting aside the order dt. 26th of July, 1985 and for placing the suit in the peremptory list, for hearing. From an endorsement made in the original petition it appears that this application was “noted as made” on 20th of Aug., 1985 i.e it was moved before the Court on that day though the Notice of Motion as required to be taken out under the Original Side Rules in such cases, was taken out on 3rd of Sept., 1985 and it was made returnable on 9th of Sept., 1985 on which date directions were given for filing of affidavits. An affidavit-in-opposition was filed by the defendant-appellants but no affidavit-in-reply was filed. As already staled, ultimately this matter was heard on merits and by an order dt. 1st of Oct., 1985. upon payment of 30 GMS. as cost, the earlier order was recalled and the suit was directed to appear in the list of 18th of Dec, 1985. It was further recorded that a cheque for Rs. 510/- was handed over to Mr. Swapan Kumar Dutt, Advocate-on-record for the defendants. Admittedly, subsequently the said sum was returned to the plaintiffs-respondents. Thereafter this Memorandum of Appeal was filed with the leave of the Court without the certified copy subject to the question of limitation and maintainability and there was an order in terms of prayer (c) till the disposal of the application, that is, the order appealed from was stayed till the disposal of the appeal.

Arguments — Preliminary point regarding maintainability of the Appeal.

3. On behalf of the plaintiffs-respondents a preliminary point is taken. It was submitted that the order appealed from was an order passed under O. 9. R. 9 of the CPC and that it is not an appealable order in view of O. 43 of the CPC. It was further submitted that it was also not a “judgment” within the meaning of Cl. 15 of the Letters Patent and accordingly it is not appealable. In this context, reliance was placed on Hirdhamun Jha v. Jinghoor Jha (1880) ILR 5 Cal 711. Maharaj Kishore Khanna v. Kiran Shashi Dasi*. AIR 1922 Cal 407, Tulsiram Bhagwandas v. Sitaram Srigopal, AIR 1959 Cal 389 (paragraphs 20, 21 and 22), the majority judgment in Shah Babulal Khimji v. Jayaben D. Kania AIR 1981 SC 1786 and the Full Bench decision in Mathura Sundari Dassi v. Haran Chandra Shah, AIR 1916 Cal 361.

Arguments — On behalf of the appellants.

4. On behalf of the appellants it was admitted that O. 43, C.P.C does not state that the order restoring the suit which has been dismissed for default was appealable but it was submitted that as in this appeal the question of jurisdiction of the Court in making the impugned order and the question of limitation are involved, this is a “judgment” within the meaning of Cl. 15 of the Letters Patent. In this context reliance was placed on a passage from the judgment of A.N Sen. J. in the case of Shah Babulal Khimji v. Jayaben D. Kania. reported in AIR 1981 SC 1786 at p. 1829.

5. On the merits of the appeal it was submitted on behalf of the appellant that the said order of restoration should not have been made on the following grounds. Firstly, the Court in passing the order did not have the jurisdiction to recall the order as the order was already drawn up completed, signed and filed. In this context reliance was placed on Sarupchand Hakumchand v. Madhoram Raghumall, 28 Cal WN 755 at p. 756: (AIR 1925 Cal 83 at p. 84). Debendra Nath Datt v. Satvabala Dassi, 54 Cal WN 110 (at Pp. 120 and 121): (AIR 1950 Cal 217 at Pp. 222-23), Nanalal M. Verma & Co. (Gunnies) P. Ltd. v. Gordhandas Jerambhai, AIR 1965 Cal 547 at p. 560 (paras 12 to 14). Administrator General of West Bengal v. Kumar Purnendu Nath Tagore, AIR 1970 Cal 231, Tulsiram Bhagwandas v. Sitaram Srigopal, AIR 1959 Cal 389 (Head Notes B and G at page 390). Steel & Allied Products Ltd.… v. Gerbrueder Bholar & Co.…. AIR 1973 Cal 89 at p. 91 (Head Note E. para 11). Reliance was also placed on an unreported judgment of a Division Bench of this Court in the case of Gunavanta Rai Ojha v. Kesablal Ojha delivered on 2nd of Dec, 1974. Accordingly it was submitted that the order restoring the suit in the present appeal having been drawn up, completed signed and filed, the Court became functus officio and could not recall its order as has been done in the instant case, even if it is held that the application is made within the period of limitation provided by Limitation Act, 1963 viz., Art. 122 thereof. It was further submitted that the Court has no inherent jurisdiction to recall the order.

6. The next submission was on the question of limitation. It was submitted that the application made by the plaintiff-respondents was in any event barred by limitation. Reference was made in this connection to S. 3(2)(c) of the Limitation Act, 1963 (hereinafter referred to as the Limitation Act) which provides as follows:—

“An application by Notice of Motion in an article is made when the application is presented to the appropriate officer of that Court.”

It is submitted that in view of the same in this matter such an application for restoration could be made only by a Notice of Motion. The Notice of Motion in support of the application for re-calling the order was taken out on 3rd of Sept. 1985 and it was made returnable on 9th Sept. 1985. It was submitted that the Notice of Motion being taken out on 3rd of Sept. 1985 the application would be deemed to have been made at the earliest on that date and not on any day earlier to the same. So far as the question of the application having been “noted as made” earlier on the 20th of August 1985 it was submitted that in view of the provisions of the Limitation Act 1963 as specified above, the application is deemed to have been made on the date the Notice of Motion is taken and presented before the proper office and merely because it was ‘noted as made’ at an earlier date does not improve the position. In this context reliance was placed on P.C Ray [India] Pvt Ltd.… v. B. Bose Private Limited…. (1967) 71 Cal WN 230 (paragraphs 1 and 11 to 17). It was submitted that in view of the same, the other decisions before the said decision and before the Limitation Act 1963 came into force, are no longer good law.

7. It was next submitted that no sufficient cause for restoration was made out in the application for restoration. It is submitted that the statements made in the petition had been dealt with in the affidavit-in-opposition of the appellants affirmed on 13th of Sept. 1985, there was no affidavit-in-reply denying the averments made in the affidavit-in-opposition.

8. The last submission made on behalf of the appellants was that the application for restoration was not maintainable inasmuch as though there are altogether 8 plaintiffs but the Notice of Motion was taken only on behalf of the 6 plaintiffs though the petition was signed by all the 8 plaintiffs. Accordingly the said application was defective, and no order could be passed on the same.

Arguments (contd.) — On behalf of the respondents.

9. On behalf of the respondents, so far as the question of limitation and the question of jurisdiction of Court to recall an order passed restoring a suit dismissed for non-prosecution after the same had been signed completed and filed, is concerned, it was submitted that the power to recall an order before it is drawn up, completed and filed is an inherent power of the Court but that does not take away the power of the Court as conferred by O. 9 R. 9 of the CPC and in that case Art. 122 of the Limitation Act, 1963 applies which provides that the period of limitation for setting aside an order dismissing the suit for default is 30 days from the date of order of dismissal. This right cannot be curtailed by any practice or rules of the Court. It was further submitted that the appellants contention amounts to adding words to O. 9 R. 9 and S. 3 of the Limitation Act to the effect that in Chartered High Courts no order for restoration of the suit can be made after the order is perfected. It was further submitted that in cases where it was held that once an order was perfected it cannot be varied or recalled, in all those cases either the period of limitation had already expired or inherent power of the Court under S. 151, CPC was sought to be exercised. In this connection reference was made to the following decision Addl. Collector of Customs Calcutta v. Best and Co. AIR 1966 SC 1713 at P. 1717 (para 12) and Piyaratana v. Wahareke. (1950) 54 Cal WN 568 (PC) and Sarupchand Hukumchand v. Madhoram Raghumall, 28 Cal WN 755: (AIR 1925 Cal 83).

10. It was submitted that the position before the 1963 Act was made clear in Shree Chand Daga v. Sohanlal Daga, 47 Cal WN 450: AIR 1943 Cal 257; Debendra Nath Dutt v. Sm. Satyabala Dassi, 54 Cal WN 110 at p. 120: (AIR 1950 Cal 217 at p. 222), Sohanlal Nagarmull v. Manick Lai Seal, 58 Cal WN 313 at P. 317: (AIR 1954 Cal 352 at p. 354). So far as the 1963 Act is concerned, it was submitted that the position is that though ordinarily such application is deemed to have been made when the notice of motion was presented before the proper officer, it is open to the parties, to move the application ex parte and accordingly such application which is so moved before the court itself and “noted as made” on that date would be deemed to have been in fact properly made within the meaning of the Limitation Act. In this connection reliance was placed on P.C Ray [India] Pvt Ltd.… v. B. Bose Private Limited…. (1967) 71 Cal WN 230 at p. 233 (para 14) and Union Of India… v. Union Builders…., AIR 1985 Cal 337 (para 25).

11. On the merits of the case it was stated that sufficient cause has been shown. If there is absence of a Solicitor due to absence of his name in the daily list or wrong name has been printed that is sufficient cause. Reliance was placed in this connection to Kanai Lal Shaw… v. Bhattu Shaw…. reported in 65 Cal WN 249: (AIR 1961 Cal 474).

12. So far as the point regarding notice of motion being taken on behalf of only 6 out of 8 plaintiffs, it is submitted that was merely an irregularity and in any event leave is sought for correcting such irregularity. It is pointed out that all the 8 plaintiffs have signed the petition for restoration though inadvertently in the notice of motion only the names of 6 persons have appeared. Arguments (contd.) Reply by Appellants.

13. In reply Mr. Dutt has submitted that the fact that the application has been made on an earlier date, does not improve the position and in view of the amendment made by way of 1963 Act such application would be deemed to be made when the notice of motion was taken. So far as the decisions relied upon on this point by the respondents are concerned, it has been submitted that in view of the Division Bench judgment reported in P.C Ray [India] Pvt Ltd.… v. B. Bose Private Limited…. (1967) 71 Cal WN 230 (supra) the earlier judgments prior to the said decision have no application. It was pointed out that 58 Cal WN 313: (AIR 1954 Cal 352) was considered in (1967) 71 Cal WN 230. So far as Union Of India… v. Union Builders…., AIR 1985 Cal 337 (supra) relied upon by the respondent is concerned, it was submitted that it was an application under the Arbitration Act and also coupled with an application under S. 5 of the Limitation Act and that delay was condoned under S. 5. It was submitted that accordingly the said decision has no relevance in the present case.

14. Regarding Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718, it was submitted that the same has no application in the facts and circumstances of the present case.

15. On the point of sufficient cause and the decision relied upon by the respondents Kanai Lall Shaw v. Bhattu Shaw, reported in 65 Cal WN 249: (AIR 1961 Cal 474) (supra) it was submitted that in the instant case it is not stated whether the Board maker was informed about the change of Advocate and in any event the appellant was not informed about such change of advocate. In the absence of such intimation, it could not be contended that there has been a misprinting in the name of the Advocates-on-record in the Cause Title and accordingly that would not amount to a “sufficient cause”.

Cases cited.

16 to 64. xxxxx

Decision

65. Though a question of maintainability of the appeal has been raised, we propose to deal with the question of limitation raised in this Appeal first as in our opinion the answer to the same may have some bearing on the question of maintainability of the appeal.

66. As made clear by the decision of the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786 (supra). Even in the case of internal appeals in a High Court, O. 9 R. 9 of CPC is attracted in the case of an order setting aside an order dismissing a suit for non-prosecution by a single Judge in the Original Side. If such provision is attracted then Art. 122 of the 1963 Limitation Act is also attracted. Even if it may be said that O. 9 R. 9 by itself is not attracted in such a case, the said provisions would apply by way of analogy. In any event in all cases of such applications for setting aside a dismissal of the suit for non-prosecution, it is governed by Art. 122 of the Limitation Act. Similar decision was made by a Division Bench of this Court in the case of Debendra Nath Dutt v. Satyabala Dassi reported in 54 Cal WN 110: (AIR 1950 Cal 217) (supra) which was followed in Kanai Lai Shaw v. Bhattui Shaw, 65 Cal WN 249: (AIR 1961 Cal 474). Therefore such an application must be made within 30 days from the date of dismissal of the suit for non-prosecution. Accordingly, in the present case the question is whether the application before the trial Court for recalling the dismissal of the suit for non-prosecution was made within the period of 30 days from the date of such dismissal within the meaning of Art. 122 of the 1963 Limitation Act. This question revolves round the question as to whether such application was made within the meaning of 1963 Limitation Act on 20th of Aug. 1985 when it was first moved before the Court itself and when it was noted as made on that date by the Court or whether it was made subsequently on 3rd of Sept. 1985 when the notice of motion was taken out or thereafter when it was made returnable or directions for filing of affidavits given. If such application is held to have been made on 20th of Aug. 1985, then admittedly the application was not barred but if it was made on 3rd of Sept. or any other subsequent date, then admittedly the application was barred by limitation.

67. Various decisions have been cited before us where question arose as to when an application can be said to be made for the purpose of limitation. Most of these decisions were made before 1963 Limitation Act came into force. Before 1963 Limitation Act came into force when such application was made by way of taking out a notice of motion, the controversy arose as to whether such application was made when the notice of motion was taken out or subsequently when it was made returnable or when directions for affidavits were given or when the application itself was heard on merits. However all along, the admitted position was that merely taking out the notice of motion does not amount to making such application. One of such decisions is Sohanlal Nagurmull v. Manick Lal Seal, 58 Cal WN 313:(AIR 1954 Cal 352) (supra). In some cases it was held that such application was made when the application was actually heard and not when the notice of motion in support of the application was taken out or was made returnable or directions for filing of affidavits were given. Reference may be made in this connection to Devendra Nath Dutt v. Satya Bala Dassi reported in 54 Cal WN 110: (AIR 1950 Cal 217). In some cases it was held that such application was deemed to have been made when the Court took cognizance of the matter by way of giving directions for filing of affidavits, or when the matter was adjourned for hearing at a future date. Reference may be made in this connection to Abdul Gani v. David Jacob (1953) 57 Cal WN 313 which was followed in Sohanlal Nagarmull… v. Manick Lal Seal…. reported in 58 Cal WN 313 : (AIR 1954 Cal 352) (supra).

68. In order to solve the problem raised by such contradictory views and in order to relax the rigidity and strictness under which such questions were considered in various decisions, which held that in any event presentation of the notice of motion did not amount to making of the application, that S. 3(2)(c) of the 1963 Limitation Act had been introduced. However, even before such 1963 Act came into force there was no controversy that if an application was in fact moved before the Court and Court directed that it was to be noted as made on that particular date, then that would be treated as the date when such application was made, even if the notice of motion was taken out of made Returnable or directions for affidavits were given or the application itself was heard at a later date. This is well founded because in such a case, the Court itself is moved and the Court directs the application to be noted as made on the particular date. When the court is moved on a particular date and following the direction of the Court an endorsement to that effect is made in the back of the petition itself, this is in order to save the bar of limitation and to avoid all the controversies regarding taking out of the notice of motion and as to when such application was deemed to have been made in such a case. This is an age-old practice of the Original Side of this Court which is also a well recognized one. In this connection reference may be made to the decision of the Division Bench of this Court in the case of Sree Chand Daea v. Sobhanlal Daga, 47 Cal WN 450 : (AIR 1943 Cal 257) (supra), Debendra Nath Dutt v. Satyabala Dassi, 54 Cal WN 110 : (AIR 1950 Cal 217) (supra) and Sohanlal Nagurmull v. Manik Lal Seal, 58 Cal WN 313 : (AIR 1954 Cal 352) (supra).

69. In our opinion such position has been changed by the 1963 Limitation Act only to this extent that if the notice of motion is presented before the proper officer of the Court, it would be deemed to have been made on that date, irrespective of the question as to when the Court is moved on such application or cognizance of the same was taken by the Court. That is, the rigidity has been relaxed. But that does not mean that though in fact an application was moved before the Court on a particular date or cognizance is taken by the Court on a particular date and the Court directed that it was to be noticed as made on that date, still that would not be the date of the application but some other date in future when the notice of motion is taken out or presented before the Officer concerned. So far as that is concerned, the principle laid down in the aforesaid decisions are still good law even after the 1963 Limitation Act came into force. In our opinion, the provisions of S. 3(2)(c) do not support the interpretation sought to be put by the appellants. In the case of P.C Ray [India] Pvt Ltd.… v. B. Bose Private Limited…. (1967) 71 Cal WN 230 (supra) which was decided after the 1963 Act came into force it was held that after enactment of S. 3(2)(c)of the 1963 Limitation Act, the decision in Sohanlal Nagarmull… v. Manick Lal Seal…., 58 Cal WN 313: (AIR 1954 Cal 352), which held that filing of notice of motion and affidavit in support thereof was not sufficient was no longer good law. Still it was held in that case that in exceptional circumstances such an application may be moved ex parte when application papers are filed with the officer of the Court which hears the application and that officer would be the proper officer within the meaning of S. 3(2)(c) of the 1963 Limitation Act. In our opinion even after 1963 Limitation Act, for the purpose of saving the period of Limitation, such application may be moved ex parte before the Court and the applicant can have the application noted as made on that date and that would be the date of making of the application within the meaning of the 1963 Limitation Act and the period of limitation would stop to run from that date. This has now become well settled in view of a recent Division Bench decision of this Court in Union Of India… v. Union Builders…., AIR 1985 Cal 337 (339) (supra) wherein it has been held that S. 3(2)(c) of the 1963 Limitation Act does not take away the right of an applicant to present an application to the Court directly if the rules of business so permit and in that event for calculating the period of limitation, the appellant can well exclude the days when the Courts are closed though the office is open. It was held that the rules of this Court leave an option with the appellant either to move the application before the Court or to file the same in the Registrar's Office for the purpose of taking out a notice of motion. This question arose on a point of limitation.

70. In the present case the application for restoration was moved before the Court itself on 20th Aug. 1985. when the Court directed that it was to be noted as made on that, date and an endorsement to that effect was made in the petition itself. Accordingly that date would be treated as the relevant date for calculating the period of 30 days as provided in Art. 122, Limitation Act. Applying such principle this application was made within the period of limitation and accordingly it was not barred by limitation.

71. The inherent right of the Court to recall an order before it is completed and filed is well settled and that power still exists. Ordinarily no Court can modify or recall any final order after the said order is drawn up, completed and filed. But it is not any absolute proposition of law. The said proposition is only a general rule and having some exceptions. We have already referred to the cases. However, in our opinion/the mere fact that before the expiry of the period provided in Art. 122, the order dismissing the suit for non-prosecution was drawn up, completed and filed, does not make any difference if the application is made within the time provided by Art. 122. The exercise of inherent jurisdiction of this Court to recall any order before it is drawn up, completed and filed does not and cannot take away the jurisdiction of the Court to entertain such an application if it is made within the time provided by Art. 122, Limitation Act. To recall an order before it is completed and filed, is, by its nature itself, an exercise of a jurisdiction by the Court as a part of its inherent power but that cannot nullify the specific and express provision of the Limitation Act including Art. 122 thereof. An application which is otherwise not barred by limitation cannot be so barred merely because the order in respect of which the application has been made has been drawn up and completed before the expiry of such time. In our opinion if we hold otherwise, that would completely nullify the provisions of the Limitation Act. Inherent jurisdiction cannot be invoked to nullify express provisions of an Act. The inherent power of this Court cannot take away the right of a litigant to make an application within the time stipulated in the Limitation Act. Accordingly, in our opinion, the application made:before the trial Court for setting aside the dismissal for non-prosecution not being barred by limitation cannot be barred merely because it was made after the order was drawn up and completed. On the other hand if such an application is otherwise barred by the laws of limitation, it is not open to the Court to allow such application in the exercise of its inherent right merely because the order has not yet been drawn up completed and filed. Reference may be made in this connection to the decisions in Debendra Nath Dutt v. Satya Bala Dassi, 54 Cal WN 110: (AIR 1950 Cal 217). Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786 and Kanai Lai Shaw v. Bhattu Shaw, 65 Cal WN 249 : (AIR 1961 Cal 474) (supra). The unreported decision of the Division Bench of this Court in Guneantray Ojha's case was decided on the basis of facts peculiar to the case. It is to be pointed that in the said case the order of dismissal of suit was not under O. 9 R. 8, C.P.C, but it was a case of summary dismissal under the Original Side Rules of this Court. O. 9 R. 9. C.P.C, could not apply in such a case. Similar was the position in the case of Nanalal Verma v. Gordhandas, AIR 1965 Cal 547 (supra) Administrator General of West Bengal v. Purnendu Nath Tagore, AIR 1970 Cal 231 (supra).

72. We shall now take up the question of maintainability of the appeal, that is whether it is an appealable order. In the case of Maharaj Kishore Khanna v. Kiran Shashi Dasi* reported in AIR 1922 Cal 407 (supra) it was held that an order passed restoring a suit dismissed for want of prosecution is not a “judgment” within the meaning of Cl. 15. Letters Patent. This was followed in the case of Tulsiram Bhagwandas v. Sitaram Srigopal, AIR 1959 Cal 389 (supra). If that is still the good law, then clearly this appeal is not maintainable. The sole question is whether this legal position has been changed by the subsequent decision of the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786 (supra). In that case the majority judgment held that S. 104 read with O. 43, R. 1 clearly applied in respect of an application of this nature before the Trial Judge of the High Court. Such application of C.P.C does not in any way abridge, interfere with or curb the powers conferred by Cl. 15 of the Letters Patent. It merely gives an additional remedy by way of appeal from the orders of the Trial Judge to a larger Bench. It was further held that O. 43 R. 1 applies to the “internal appeals” in the High Court and that there is no inconsistency between the provisions of the Letters Patent and S. 104 read with O. 43 R. 1 of the Code of 1908. S. 104 merely provides an additional or supplemental remedy by way of appeal and therefore widens-rather than limits the jurisdiction of the High Court. It was further held that an appeal should be held to be allowed under the Letters Patent where it is allowed under the Code. It was also held that the fact that Legislature has in the Code allowed appeal in a particular case affords a ground for supporting that the case is of a class which is to be considered appealable under the Letters Patent. It was pointed out that O. 49 R. 3, which excludes operation of other rules, does not exclude operation of O. 43R. 1 in the case of Original Side of High Court. It was further held that O. 43 R. 1 possesses the attributes and characteristics of a final order and in any event by way of analogy it would amount to “judgment” within the meaning of Cl. 15, Letters Patent. The next question was regarding the position of other orders passed by the Trial Judge which may not be covered by 0.43 R. 1. Accordingly the importance of the expression “judgment” within the meaning of Cl. of the Letters Patent was stressed. In this context, it was observed by the Supreme Court that to amount to “judgment” it must be a formal adjudication which conclusively determines the rights of the parties in regard to all and any of the matters in controversy. The word “judgment” should receive much wider and more liberal interpretation than the word used in the Code of Civil Procedure. While considering the different kinds of preliminary judgments, it was pointed out that when a Trial Judge passes an order after hearing the preliminary objection raised by the defendant relating to the maintainability of the suit, e.g, bar of limitation, res judicata, a manifest defect in the suit, absence of notice under S. 80 and the like, when these objections are decided by the Trial Judge against the defendant, (underlines supplied) then though the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant because if his objections are valid, he is entitled to get the suit dismissed on preliminary grounds. In the matter of interlocutory orders which are not covered by O. 43 R. 1 but which also possess the characteristics and trappings of finality in the sense that the orders adversely affect the valuable right of the parties, they are “Judgments” within the meaning of Cl. 15. The learned Judges while giving examples pointed out that suppose a Trial Judge allowed the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away, that would be a “judgment” within the meaning of the Letters Patent as it contains the attributes and characteristics of the finality and must be treated as such. In this context the learned Judge also pointed out that when the Trial Judge allows the plaintiff by adding particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation that does not work serious injustice to the defendant who gets ample opportunity to disprove the case taken by the plaintiff at the time of hearing and in that case it will not be a judgment. While giving illustrations of certain interlocutory orders which are treated to be “Judgments” it was clearly pointed out that the illustrations were not exhaustive in nature. The first example given was the case where an order is passed permitting amendment of the plaint by introducing new cause of action which clearly alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant. The fifth example given was the case where an order decided on a preliminary objection as to the maintainability of the suit on account of limitation. Similar observations were made by A.N Sen, J.

73. Upon a careful consideration of this matter we are of the opinion as follows. Order 43 R. 1 applies in the case of “internal appeal” in our High Court also. In our opinion in an ordinary case, no appeal would lie from an order allowing an application for setting aside the dismissal for non-prosecution. In our opinion, by necessary implication such an appeal is excluded in view of the provisions of O. 43 R. 1. The C.P.C provides for both an application for setting aside a decree passed ex parte against the defendant and also for an application for setting aside a suit dismissed for non-prosecution. Only an order refusing to set aside a suit dismissed for non-prosecution has been made appealable under O, 43 R. 1. Such an order is also to be treated as a “Judgment” within the meaning of Cl. 15, Letters Patent. But an order setting aside a suit dismissed for non-prosecution has not been made appealable under O. 43 R. 1. The appealability of such order has been excluded by necessary implication and accordingly in our opinion the same cannot be treated as a “judgment” within the meaning of Cl. 15, Letters Patent. As pointed out, Cl. 15 confers powers in addition to S. 104 read with O. 43 R. 1, C.P.C but Cl. 15 cannot be so interpreted to make it contrary to or inconsistent with the provisions of the Code. If we hold that though O. 43 R. 1 excludes any appeal from an order setting aside a dismissal of the suit for non-prosecution but that still it would amount to a “judgment” within the meaning of Cl. 15, Letters Patent, then this interpretation would amount to nullifying the provisions of O. 43 R. 1 which, in our opinion, cannot be allowed.

74. Apart from the decisions of the Calcutta High Court referred to above, in view of the principles laid down by Supreme Court in Shah Dabulal Khimji v. Jayaben D. Kania AIR 1981 SC 1786 (supra), in our opinion, an order allowing an application for setting aside a suit dismissed for non-prosecution does not satisfy the test of finality as laid down therein.

75. However, in our opinion, there is an exception to the same. When in such a case the question of limitation is involed and when such application is allowed and the suit is restored in spite of the fact that the same is barred by limitation, in our opinion that is a “Judgment” within the meaning of Cl. 15 of the Letters Patent. This in our opinion follows from the decision of the Supreme Court itself. If such application has become time-barred, a valuable right is conferred on the defendant. If in such a case, in spite of such application being time-barred, it is allowed and the suit is restored, then in our opinion such an order is a “judgment” within the meaning of Cl. 15 of the Letters Patent because it takes away a valuable right conferred on the defendant. However as in the present case we have held that such application was not barred by limitation, accordingly in our opinion the general principle applies and the order allowing such application is not a “judgment” within the meaning of Cl. 15.

76. There is no question of the impugned order being without jurisdiction so that it, may be contended that it was a “judgment” within the meaning of Cl. 15 of the Letters Patent. If it was not time barred, as we have held, then the learned Judge's order restoring the suit was not made without jurisdiction. The learned Judge had jurisdiction to entertain the application and pass an order, rightly or wrongly. Even if the order may be said to have been passed wrongly, in the sense that in the facts and circumstances of the case no-such order should have been passed, that by itself does not and cannot amount to the order being without jurisdiction.

77. For the aforesaid reasons we hold that this appeal is not maintainable.

78. So far as the question of “sufficient cause”, within the meaning of O. 9 R. 9 is concerned, in the present case, the case of the plaintiff is as follows. The suit was filed through Fowler & Co. acting as the Advocate-on-Records of the plaintiff. Later on a change of Advocate-on-record was made from Fowler & Co. to Messrs T. Banerjee & Co. Sri Pallav Kumar Banerji, Advocate, Senior Partner of Messrs T. Banerji & Co. Advocates for the plaintiffs was-looking after the case on behalf of the plaintiffs. During the later part of July, 1985 Sri Pallav Kumar Banerjee Advocate was mostly out of Calcutta in connection with professional works. After coming back to Calcutta while going through the cause lists published during the later part of July, 1985 Sri Pallav Kumar Banerji Advocate was surprised to find out that the above suit has appeared in the warning list of suits to be transferred to the peremptory list for hearing before Ajit K. Sengupta, J. on 22nd July, 1985 but unfortunately the name of T. Banerjee & Co. Advocates was not printed in the cause list and as such the suit escaped the notice of the other partner and assistants of the office of T. Banerji & Co. Advocates. On further scrutiny of the cause list it appeared that the suit was printed in the Warning List of the suits again on 25th July, 1985 in the name of Fowler & Co. as Advocates-on-record for the plaintiffs. The suit was thereafter transferred to the peremptory list for hearing on 26th July, 1985 and the name of Fowler & Co. also appeared in such list. On further enquiry it transpired that the suit was called on 26th July, 1985 but since no one appeared the learned Judge dismissed the suit for non-prosecution.

79. Dealing with the same, in the affidavit-in-opposition it was stated on behalf of the appellant-defendants as follows: It was stated that the defendants have no knowledge as to when Messrs T. Banerji & Co., obtained a change of advocates was ever intimated by Messrs T. Banerjee & Co. to the defendant's Advocates-on-Record, Messrs R.N Dutt & Co. The defendants have stated they have no knowledge of the alleged absence of the senior partner of the petitioner's advocates. It was alleged that there were other partners of the petitioner's Advocate-on-record and accordingly the alleged absence of one of the partners of the firm of petitioner's Advocates in connection with professional work, could be no ground and/or cause (sic) the making the application. It is stated that though the petitioner's advocates came to know of the dismissal of the suit in later part of July, 1985, no step had been taken whatsoever to for restoration of the suit earlier if the petitioners' were so interested. It is further stated that the alleged enquiry and scrutiny as alleged were made during the later part in July, 1985 and the suit was dismissed on 26th July 1985 and accordingly if there is any truth in the averments made in the petition, the petitioners could mention the matter before the Honourable Court. Further, no reason has been assigned as to why the counsel of the petitioners briefed, if any, did not appear when the suit was called on for hearing. It is further stated that the suit appeared on more than one day in the peremptory list of Ajit Kumar Sengupta J. It is denied that no one appeared on 26th July, 1985 as alleged. It is stated that the advocate engaged by the defendant to defend the suit, was present when the suit was called on for hearing. Since no one appeared on behalf of the plaintiffs the Court dismissed the suit. It is further stated that there could be no question of any surprise of the Advocate of the petitioners as alleged since all the old suits had been appearing in the list of Ajit Kumar Sengupta J. chronologically and yearwise in an uniform manner for quite sometime and every one is aware of the said fact.

80. In the case of Kanai Lal Shaw… v. Bhattu Shaw…. reported in 65 Cal WN 249: (AIR 1961 Cal 474) it was a Division Bench decision. In that case the name of the plaintiff s attorney was wrongly printed in the list. The Division Bench held that this fact was sufficient to indicate that the plaintiffs Attorney was misled by the misprint of his name. In this connection the Court took into consideration the practice prevailing in the office of the Attorneys (now known as Advocates-on-Record) that at the time of examining the peremptory Cause List the-attorneys and-their clerks generally do not remember the number, of the suit or the names of the litigants, but they mark only those suits in which the names of the attorneys appear. It was held that as a result of the fact that the name of the plaintiffs attorney was not correctly printed, it was reasonable to hold that he was misled and this amounts to a “sufficient cause” within the meaning of O. 9 R. 9 of the Code of Civil. Procedure.

81. In the present case also the names of the Advocates-on-record did not appear in the Daily List. Though it is not alleged in the affidavit of the appellant herein in opposition to the application for restoration, that the Board Maker was not informed about such change, it was so argued before us and, accordingly, it was submitted that non-appearance of the name of the new Advocate-on-record was not a sufficient cause. However the fact remains that, whether the Board Maker has been intimated about such change or not, the name of the Advocate-on-Record in whose favour the change was given, did not appear in the Warning List or Daily List and accordingly it could not be possible for the office of the Advocate-on-record concerned to find out whether this matter of theirs was in the List or not. Even if it is held that such non appearance of the name was due to such reason of non-intimation, to the Board-Maker the litigant was, not at fault though his Advocate-on-Record may be. In the case of Rafiq v. Munshilal AIR 1981 SC 1400 it was held by the Supreme Court that under bur present “adversary legal system” where the parties generally appear through their Advocates, the obligation of the parties is to select his Advocates, brief him pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's proceedings. After engaging the lawyer the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal the personal appearance of the party is not only not required but hardly useful. Therefore the party having done everything in his power to effectively participate in the proceeding can rest assured that he has neither to go to the High Court to enquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch dog of the Advocate that the latter appears in the matter when it is listed. The Supreme Court further held that it is not proper that the party should suffer for the inaction or deliberate omission or misdemeanour of his agent. It was further pointed out, that the Court cannot be a party to an innocent party suffering injustice merely because his chosen Advocate defaulted. In that case the High Court disposed of appeal preferred by the, appellant before the Supreme Court, in the absence of the learned Counsel for the appellant. It is interesting to point out that the Supreme Court directed that the cost payable to the respondent to the extent of Rs. 200/- be recovered from the Advocate who was absent during the hearing. This decision was followed in the case of Goswami Krishna Murari Lai Sharma v. Dhan Prakash, (1981) 4 SCC 574 and Lachi Tewari v. Director of Land Records. AIR 1984 SC 41 at P. 42 (paragraph 4).

82. A party cannot be made to suffer for the fault on the part of his advocate if he himself is not at fault. The party having engaged an Advocate expects that his. Advocate will take such step as necessary for the purpose of proper representation of the party concerned. If such advocate does hot take necessary step resulting in the suit being dismissed for non-prosecution, the fault is of the Advocate and not the party. In the present case the client i.e the plaintiff could not expect that the Advocate-on-record in whose favour the change-has been given, would not take necessary step to intimate the Board Maker or otherwise bring the same in the records of the case and accordingly the plaintiff cannot be made to suffer for that.

83. In that view of the matter we are of the opinion that “sufficient cause” has been shown in the present case to justify the action of the learned single Judge in allowing the application for setting aside the order of dismissal of the suit for non-prosecution.

84. One other point which was sought to be urged was that though there were eight plaintiffs, the Notice Of Motion was taken on behalf of only six plaintiffs and accordingly the application was defective and no such order could have, been passed on such application. There is no merit in the same. The main application was signed by all the eight plaintiffs and it was made on behalf of all of them. The mere fact that in the Notice of Motion it was not mentioned that it has been taken out on behalf of all the eight plaintiffs but the names of only six plaintiffs were given, that in our opinion does not make the application made by all the plaintiffs defective. At the most it is an irregularity which does not go into the root of the matter. This did not affect the jurisdiction of the Court to pass such an order. The petition was made on behalf of and signed by all the plaintiffs and accordingly, in our opinion, this application cannot be held to be defective in the sense that no such order could be passed on the said application. The irregularity, if any, was of a very formal nature and in any event leave is given upon oral application to that effect to rectify the notice of motion accordingly though it is not strictly necessary. Such amendment of notice is to be carried out on Counsel's endorsement.

85. For the aforesaid reasons, the appeal is dismissed with costs. All interim orders are vacated.

86. Prayer for stay of the operation of the order is rejected.

Sachikanta Hazari, J.:— I agree.

Appeal dismissed.