Bimal Chandra Basak, J. - (1.) - This appeal is directed against a judgment order passed by the trial Court dismissing the application for condonation of delay and for recalling the order dated 15th June, 1987 passed by the learned trial Judge dismissing the suit for non-prosecution.
(2.) The facts of this case are shortly as follows : On or about 1st February, 1980, the plaintiff instituted this suit against the defendants for leave under Clause 12 of the Letters Patent, decree against the defendants or such of them as may be held liable to the plaintiff for the sum of Rs. 14,37,400.23 paise, declaration that the sum Rs. 9,33,377.16 paise is payable by the defendants or either of n to the plaintiff and decree directing the defendants to pay the sum Rs. 9,33,377.16 paise along with interest thereon from 31st January, 1977 at the rate of 18% per annum until payment, interim and further interest, costs and various other reliefs. The writ of summons was duly served on the defendants Nos. 1 and 2. On or about 7th March, 1980, the defendant No.1 duly entered appearance. An application was made by the plaintiff for final judgment in March, 1980. There was also an application on or about 7th April, 1980 on behalf of the defendant No.1 for revocation of leave under Clause 12 of the Letters Patent. By an interim order dated 7th April, 1980, the suit and the proceedings therein was stayed. The application for final judgment and for revocation of leave was disposed of by giving directions for expeditious hearing of the suit. The suit was directed to appear at the top of the prospective list of suits on 2nd September, 1980. Thereafter, the defendant No.2 also entered appearance. Both the defendants filed written statements. A peremptory order for discovery was made in April, 1981 and inspection was also taken. According to the plaintiff, all appropriate steps were taken in the suit for early hearing. The plaintiff's Advocate-on-Record wrote a letter in August, 1980 to the Registrar, High Court, Original Side, Calcutta, to place the said suit at the top of the prospective list of suits in terms of the said order. According to the petitioner, the petitioner had been at all times diligent in taking steps in the instant suit and there was no negligence and/or laches on the part of the petitioner. It had also caused its Advocate-on-Record to write a letter to the Registrar, High Court, Original Side, Calcutta, to place the instant suit in the prospective list. It is also the case of the petitioner that it has always been conducting and reminding its Advocate for the final bearing when the petitioner was assured that the petitioner will be informed as and when the suit is placed in the peremptory, list of suits for final disposal.
(3.) A letter was written on 20th/21st April, 1988, by the plaintiff to its Advocate-on-Record about the final hearing of the suit pursuant to which the plaintiff's Advocate-on-Record issued a notice dated 5th May, 1988 and mentioned this suit before the Tria1 Court on 9th May, 1988, for fixing an early date of hearing of the suit. On 9th May, 1988, at the mentioning of the said suit before the trial Court, on behalf of defendant No.1 it was pointed out that the said suit was dismissed for default by the trial Court by an order dated 15th June, 1987. The explanation given would appear from paragraph 16A of the petition made before the trial Court which is set out hereinbelow: "Your petitioner has come to learn from its Advocate-on-Record that immediate after having come to learn with regard to the dismissal of the above suit at the mentioning on 9.5.88, your petitioner's Advocate-on-Record caused necessary enquiries when it transpired as follows : (a) The above suit had appeared in the daily peremptory list before the Hon'ble Mr. Justice Prabir Kumar Majumdar on Friday 12.6.87 and again on Monday 15.6.87. (b) The suit number as also the cause-title and name of the petitioner's Advocate-on-Record was not printed properly and clearly in the said cause lists dated 12.6.87 and 15.6.87. In fact the suit number, the cause-title as also the name of the petitioner's Advocate-on-Record were not correctly printed. (c) The name of the Advocate-on-Record for the defendant No.1 M/s. Khaitan & Co. was also not printed in the said cause lists dated 12.6.87 and 15.6.87. (d) The name of the petitioner 'Ganga Nagar Sugar Mills Ltd.' was not correctly printed in both the said two cause lists. The name of the petitioner was printed as "The Ganga Nagar Mills Ltd." The name of the defendant No.1 "Upper Ganges Sugar Mills Ltd." was also incorrectly printed as "Upper Ganga Sugar Mills Ltd." Due to the above-mentioned various reasons as also due to inadvertance and/or mistake the Court clerk of the petitioner's Advocate-on-Record could not mark and/or notice the above suit in the said cause lists dated 12.6.87 and 15.6.87. (e) The above suit having been not marked and/or noticed in the said cause lists dated 12.6.87 and 15.6.87 at the office of the petitioner's Advocate-on-Record as aforesaid, no one on behalf of the petitioner could appear before the Hon'ble Mr. Justice Prabir Kumar Majumdar at the time when the above suit was called on for hearing on 12.6.87 and 15.6.87.";