Marten, J.:— These five suits are all summary suits, in four of which the Tata Industrial Bank are the plaintiffs and in the last of which the Eastern Bank are the plaintiffs. They are against various defendants, but the same point arises in each of them, and therefore they have been taken together. The same counsel appear for the plaintiffs and the defendants in each case in each case there is a notice of motion to set aside the order made by Mr. Justice Crump in Chambers directing the summary suits to be heard on May 23, 1922, and also to set aside the ex parte decree passed by myself on the hearing of the suit in the absence of any application for leave to defend, and, thirdly, asking in the alternative that the decree may be set aside under Order 37, rule 4, there being special circumstances and that the defendants may now be given leave to defend and appear.

2. Substantially the point in each case is this: whether within the meaning of Section 4 of the Indian Limitation Act, these Courts are closed for this class of business, viz., summary suits, during the April vacation. The material dates are as follows: On April 20, 1922, the plaint was declared. On April 22, Mr. Justice Crump made his order directing the returnable date for the hearing of the suits to be May 23. He then, I am informed, directed the plaint to be returned to the Prothonotary for admission, it being unnecessary to obtain any special leave under clause 12 of the Letters Patent Accordingly the plaint was admitted on April 24. On May 4, the service of the summons was effected, and on May 25, the matter came before me as a summary suit and an ex parte decree was passed. As regards the latter date, I should explain that the number of Short Causes fixed for May 23 was originally about 300. I directed these Short Causes to be put into two lists, the one for hearing on May 23 and the other for hearing on the 25th because the intervening date, viz., the 24th, was a public holiday. In the ordinary course many of these suits were either compromised or postponed or otherwise settled before the Prothonotary, and eventually about 120 Short Causes were left. Of these I heard 70 on May 23 and the remaining 50 I took on the 25th. The summary suits came after those Short Causes. If I remember rightly they were about 12 or 14 summary suits down for hearing that day. I may say at once that in numerous summary suits applications for leave to defend were made to me during the vacation, and in several of them I have passed ex parte decrees in which no application has so far been made to set the decrees aside on the ground of want of jurisdiction.

3. I will refer for a moment to the Code to see exactly how the point is put by the defendants. Under Order 37, rule 2, it is necessary in a summary suit for a defendant to get leave to defend, and if he does not obtain such leave, the case is heard as undefended in the way with which we are all familiar. Then, if one turns to Article 159 of the Indian Limitation Act the defendant has ten days from the service of the summons in which to apply for leave to appear and defend a summary suit. But it is under S. 4 that the defendants' present application is mainly based. That section runs as follows:—

“4. Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.”

4. In the present case the service of the summons being on May 4, you would exclude that day in the computation of time, and May 14 being a Sunday, the defendant would have up so and including May 15 in which to make this application. I cannot, without looking at my records, be sure that I was sitting in Court on May 15, but I certainly was on the 16th. I was hearing insolvency work that day and ordinary Original Side work, such as Motions, Chamber Summonses, and so on, the next day. My impression is that I was sitting in Court on May 15 as well.

[His Lordship then discussed the old High Court Rules and proceeded:—]

5. Up to a year or so ago. Rules 2 and 3 of our High Court Rules provided in rule 2 that—

6. The vacations to be observed in the several Courts and offices of the High Court on its Original Side shall be four in every year, viz., the Easter, April, October and Christmas vacations, and shall begin and end on such days as the Court may direct.”

7. Then rule 3 provided:—

“The Courts and offices are closed on the following holidays.”

8. Then comes a long list of most of the ordinary public holidays, and it ends up with “And during the Easter and Christmas Vacations (provision being made for urgent business)” Then the word “vacations” in “The Easter and Christmas Vacations” was struck out and it was described as “holidays.” It will be observed that those rules did not say that the Courts were to be closed during the April vacation: out only on certain holidays.

9. Quite recently again there has been a change made in the dates of the public holidays, because it was represented to us that it was most inconvenient as regards certain public holidays for the High Court to keep one day and for the public at large to be keeping another day. That was what was happening, and so it was decided that our public holidays should coincide with the public holidays notified by Government, and those, for instance, under the Negotiable Instruments Act.

10. Accordingly rule 2 now runs as follows:—

“The vacations to be observed in the several Courts and offices of the High Court on its Original Side shall be two in every year, viz., the April and October vacations, and shall begin and end on such days as the Court may direct. Besides these two vacations, the several Courts and Offices of the High Court on its Original Side shall be closed during the Easter and Christmas Holidays, beginning and ending on such days as the Court may direct.”

11. Then rule 3:—

“The Courts and Offices will be closed on holidays which will be published in the Bombay Government Gazette after the annual Bank Holidays are notified by Government and during the Easter and Christmas holidays (provision being made for urgent business.)”

12. Stopping there for a moment, I think the present rules still preserve a distinction which I have always understood to be the fact on the Original Side, viz., that there are two descriptions of holidays or vacations. One class are absolutely closed holidays, and the other class are mere vacations or ordinary holidays. The Christmas and Easter holidays, for instance, are absolutely closed holidays, as are also the public days notified by Government. On those days there are no clerks in the building and no Judge is sitting. There may possibly be one or two officials for some particular business but, speaking generally, this building, like other Government buildings, is closed. That is not, however, the case with the April and October vacations. The whole office is then at work, although at reduced hours; and though this may be the time of year for certain officials to go away on leave, the members of the office and their subordinates are substantially speaking on duty the whole of the vacation.

13. This will be seen from rule 5 which says: “The offices of the Court (except in vacation and holidays) are open daily” for certain hours. Then it goes on: “In vacation the offices are open daily from 11-30 A.M to 1-30 P.M for urgent work only; but on Saturdays and holidays they are closed, provision being made for very urgent business.” I draw attention to that word “closed”. It once more emphasises the distinction between the days when the Courts are closed and the days when there is only, say, partial work going on.

14. Accordingly in the new rule 2, I do not think the use of the words “besides these two vacations” import that the Court and offices are to be closed during the April vacation as well as during the Easter and Christmas holidays.

15. Then unfortunately there has been a recent alteration in the numbering of the various rules dealing with writs of summons. I was not aware that the old numbers had been altered in this way, and I think it must have been done while I was away on furlough. But I am again reading from the Prothonotary's copy. Under the present rule 102, which up to a short time ago was 101, the returnable date in summary suits is four weeks from the date of the admission of the plaint: in Short Causes it is three weeks from the date of the admission of the plaint; and in Long Causes it is eight weeks from the date of the admission of the plaint; and “in all other cases, within such time as may be considered sufficient for the transmission service and return of the summons.” The expression “returnable date” really means there the hearing date and not the date of appearance. Our rules at times are a little troublesome in their wording to one who is accustomed to the rules of the English Courts. But in another case I have held after making due investigation that the expression “returnable date” in our Bombay Rules means the hearing date. Accordingly it will be seen here that the plaint being admitted on April 24, the hearing date was fixed for May 23.

16. Then under rule 104, formerly 103, all writs have to be delivered to the Sheriff within thirty-six days from the filing of the plaint or within forty-six days during the vacations. There are corresponding provisions in rule 369, formerly 366, as to the Sheriff not receiving the summons after those dates unless the Judge so orders. Then in rule 267, which was formerly 266, in those cases which do not come under the statute of limitation, you reckon time exclusively of the first day and inclusively of the last day, unless the last day shall happen to fall on a Sunday or other, day on which the offices are closed, in “which case the time shall be reckoned exclusively of that day also, and any succeeding day or days on which the offices continue closed: Provided that written statements due in vacations and appeals, the time for filing which expires in vacation, may be filed on the day the Court re-opens.”

17. If one eliminated that proviso, one would have thought that written statements and appeals under this rule would have to be filed during the vacation, because otherwise you would not want this proviso. But the proviso makes it clear that written statements and appeals are to be excluded from what would otherwise be the rule, and that they may be filed on the opening day of the next term.

18. Then in rule 270, formerly 269, the Court has got power to enlarge or abridge the time appointed by the rules or fixed by any order enlarging time, for doing any act or taking any proceeding upon terms.

19. Then in rule 834 (old rule 814):—

“Whenever any business is required to be done in vacation, the attorney or party in person shall give reasonable notice thereof to the Prothonotary or the officer whose duty it is to attend such business.”

20. I think those are the more material rules which have been brought to my attention. As regards the numbering, it just occurs to me, as I deliver judgment, that possibly the red ink numbers which the Prothonotary has inserted in his copy represent the numbers which will appear in the new rule book. If so, no harm will be done because I have given the numbers, the new and the old.

21. Now, what has actually taken place during this vacation—and this vacation is, I suppose, merely typical of the vacations experienced during the last two or three years—is that the Court in some of its branches has remained open as usual.

[His Lordship then showed what matters were dealt with and continued as follows:—]

22. Mr. Jinnah's point is that if the Courts are “closed” within the meaning of Section 4 of the Indian Limitation Act, then whether in fact the vacation Judges do one suit or 1000 or 5000 does not matter: for the Courts are still “closed”. But I wish to emphasise that so far as certain classes of business are concerned, these Courts have undoubtedly not been closed. They certainly had not been closed as regards the admission of plaints, the Sling of written statements, and what is much more important, the hearing of Short Causes. I entirely fail to see how it can be argued that this Court has no jurisdiction to hear in the vacation summary suits, although it has jurisdiction to hear suits which are not of such a summary nature, viz., Short Causes.

23. I may also add that though it is not our practice in the vacation to near ordinary Long Causes, I should be very slow to hold that in certain cases this Court will never have the Jurisdiction to hear a Long Cause in vacation. Take for instance the two Admiralty suits I have mentioned. In one case by consent the matter was heard in the vacation. In the other case an early date for hearing in the vacation was granted despite opposition. Those were cases where ??? were waiting in Bombay ??? for their wages. In the English Admiralty Courts where ??? we concerned the Court does ??? best to expedite the suit irrespective of what would be the case in an ordinary suit between landsmen.

24. Take another kind of case. Suppose you have got a light and air suit, and it is vitally important that the builder should get in his foundation or his roof before the monsoon remarks at the end of May or the ??? of June but there is some contested point. Is it to be said that the Judge has no jurisdiction to hear that Long Cause in the vacation? Or I may take a suit for specific performance of a contract for the sale of real estate, where it is vitally important that an alleged purchaser should know whether he is the owner of the property or not. That again might be a case where the Judge would think it right in the interests of public justice that the case should be expedited and heard in the vacation.

25. Mr. Jinnah's argument for the defendants practically amounts to this: that this Court has no jurisdiction to hear one important class of suits during the vacation. In other words, it has no jurisdiction to hear summary suits, although it has jurisdiction to hear suits of lesser urgency, viz., Short Causes. In my opinion Section 4 of the Indian Limitation Act has been carefully worded. It does not talk about the vacation: it talks about “when the Court is closed.” In my opinion it is a question of fact in each case whether Court is closed for any particular description of work. To my mind it is impossible to say that our High Court is closed for Short Causes, and it is equally impossible to say it is closed for summary suits, if they have been directed by the Judge to be heard in the vacation.

26. In my opinion Mr. Justice Crump had ample jurisdiction to admit the plaints in these summary suits and to direct that they should be heard in the vacation. In my opinion the Court was not closed as regards that particular description of suits during the vacation any more than it was for Short Causes and nobody can suggest, as far as the making of the application to the Court is concerned, that there was the slightest practical difficulty in applying to the Court because, as I have already pointed out, on all material dates in the present case, I was sitting in Court almost every day including Saturday.

27. Now what actually happened was this. When the suits came on for hearing before me the defendants did not appear by counsel. Their solicitor stated something to the effect the I had no jurisdiction to hear the suits during the vacation. I said that as no leave to defend had been obtained, he had no locus standi. Then in one, or it may possibly be in some other, of the suits he asked for leave to defend. But there was no affidavit and there was no application before me in writing; nothing except what the solicitor said. I, accordingly, declined to entertain the application, and made the decrees.

28. At a later date the defendants appeared by counsel and got my leave to serve the present notice of motion in each case and today I have had the advantage of a very useful argument from Mr. Jinnah in the course of which I believe he has drawn my attention to all the points that can be said in favour of his client.

29. The conclusion which I have arrived at is this: that these Courts were not closed during this April vacation for the disposal of summary suits, and therefore the defendants were out of time with their application for leave to defend, and that so far as that goes, the ex parte order must stand. Now I come to a further point. Mr. Jinnah for the defendants has argued that assuming, the ex parte decree was properly made, still under Order 37, rule 4, I have poorer to set aside the decree. Rule 4 runs:—

“After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.”

30. We are now at June 12. But even now I have no affidavit before me nor any indication of what the defence, if any, of the defendants to these suits is. As far as one of them is concerned, viz., the last suit by the Eastern Bank, my attention has been drawn to a letter in which the defendants have admitted their liability and have given a promise to pay. So, so far as that suit is concerned, one fails to see how there could be any defence. How can I say then there are here any special circumstances in the other suits? It is said that these special circumstances arise from the fact of the vacation and from the state of the authorities. Mr. Jinnah has cited to me altogether three authorities, one in Ranchordas v. Pestonji(1), another in Rani Venkata Romania v. Kherodi Mull(2), and the remaining one in Nachiyappa v. Ayyasami(3). Not one of them deals with Short Causes. They deal with the point about admission of plaints or appeals and there is also a reference in Mr. Justice Russell's decision in Ranchordas v. Pestonji to a case decided by Sir Charles Sargent and Mr. Justice Far ran as regards the time for filing an appeal. But, as I have already pointed out, in our rules it is perfectly clear that the time for petitions in appeal does not expire in the vacation but extends to the opening day of the term time. So, there being an express rule on the subject, there seems nothing in that point. But do draw an important distinction between those cases and the case where the Court has directed the certain business shall be done. A regards the case of Nachiappa v. Ayyasami, which was a decision the Full Bench as regards an appel in a District Court, it appears the four of the learned Judges there took very much the same view as have endeavoured to express in the present case, and that the remaining Judge took a contrary view. Takin at its best, one can see on the authorities that the defendants we running a big risk in assuming that the decision of the Full Bench the Madras High Court was an ??? decision.

[His Lordship then found the special circumstances were not may out and concluded as follows:—]

31. In the result, all these motions will be dismissed and dismissed ??? costs.

32. I should have added that a question arose to my mind as to question these notices of motion should has been heard by my brother Crump by myself, but in the events which have happened, Mr. Justice Crump would has been unable to attend Court today and he has asked me to hear these motions for him if and in so far as any such request is necessary.

33. Motions dismissed.