Sankar Prasad Mitra, J. - (1.) This is an appeal from an Order of Mallick, J. dated the 22nd February, 1962, dismissing the appellant's application, inter alia for having the order of striking out of the suit which appeared in the special list on the 30th August, 1961, set aside. The suit was instituted on July 30, 1958, inter alia, for an injunction restraining the defendant No. 1 from proceeding with an arbitration case before the Bengal Chamber of Commerce and Industry on the basis that the contracts between the parties were void and illegal. We are told that the Bengal Chamber was informed of the suit and thereafter no steps were taken in the arbitration proceedings. On November 17, 1958. both the defendants filed their respective written statements. Messrs, D. C. Dutt and Co. were acting as solicitors for the plaintiff. On April 10, 1963, this firm was dissolved owing to the death of one of the partners. On the 19th April, 1961, a new warrant of attorney was filed on behalf of the plaintiff, which is the appellant herein, by Mr. T. Goswami, a solicitor of this court. On May, 1, 1961, Goswami received certain papers of the suit from Mr. A.K. Dutt of D.C. Dutt and Co. On July 24, 1961, a notice was issued by this court to T. Goswami that the suit would be set down in a list before G.K. Mitter, J. in Chambers on the 2nd August, 1961, and would be 'dismissed for default unless good cause is shown to the contrary, or will be otherwise dealt with as the Judge may think proper.' This is the usual notice which is served on the parties or their attorneys when a suit is about to be placed in what is known as the 'Special List'.
(2.) On the 2nd August, 1961, the suit appeared in the Special List before G.K. Mitter, J. It is stated in paragraph 5 of the petition (herein page 4 of the Paper Book that: "on submissions being made by the said Mr. T Goswami on behalf or your petitioner, on the ground of non-delivery of all relevant cause papers and documents in this suit. His Lordship Mr. Justice G.K. Mitter was pleased to adjourn this suit till the next special list to enable the said Mr. T. Goswami to take steps in the meantime." In the affidavit-in-opposition, however (paragraph 11 at page 14 of the Paper Book), on behalf of the respondent No. I it is alleged that Mr. Goswami submitted to G.K. Mitter, J., that he had recently filed his warrant of attorney and had not received all the cause papers, and thereupon His Lordship was pleased to adjourn the suit till the next special list.
(3.) On the same day, namely, the 2nd August, 1961, T. Goswami took out a Master's summons against the defendants for discovery of documents which was served on the solicitors for the defendants on August 4, 1961, On the 8th August 1961, the Master by an order directed the defendants to file their affidavits of documents within a fortnight. The plaintiff was also directed on an application of the defendant No. 1 to file its affidavit of documents within the same time. The plaintiff's affidavit of documents was made ready and sent to the solicitors for the defendant No. 1 on the 23rd August, 1961, for their consent signature.;