Sabyasachi Mukharji, J. - (1.) On 20th of December, 1968 this suit appeared in my list of suits in the Special List under Chapter X of the Rules of the Original Side of this Court. This suit was filed on 2nd of February, 1951. Counsel appeared on that date and made oral submissions before me that I should adjourn the suit till the next date for taking up suits in the Special List as his client was not in a position to place the facts relating to the non-prosecution of the suit. As there was no affidavit I was not inclined to accept the oral submissions made on behalf of the plaintiff in this suit and as no cause was shown why the suit had not been prosecuted so long. I directed that the suit be dismissed. On the 20th of January, 1969 this application was noted as made and a notice of motion was taken out for recalling and setting aside the said order made on the 20th of December, 1968 and further praying for review of the said order dated 20th December 1968 and for directions for the hearing of the above suit.
(2.) It appears that the suit was filed on the 2nd of February 1951 by the petitioner as administrator to the estate of Raja Profulla Nath Tagore, since deceased, against one Kumar Purnendu Nath Tagore, for an account of all realisations made by the defendant in respect of "Tagore Villa" from the Military Authorities as well as other tenants between the death of Raja Profulla Nath Tagore and the institution of this suit, for further accounts and for certain other incidental reliefs. It appears that Messrs. Mukharji and Lahiri, a firm of Solicitors, having office at 10. Old Post Office Street, Calcutta was the Attorney on record of the plaintiff. Mr. A. B. Lahiri, since deceased, was the sole proprietor of the said firm. It has been stated in the petition that except Mr. Lahiri there was no other Solicitor in the said firm. It has been further stated that the said Mr. Lahiri looked after all the legal matters of the estate of Raja Profulla Nath Tagore and was entrusted with the suits and proceedings in connection thereof. The petitioner states in the petition that Mr. Lahiri died on or about 4th of February, 1966.
(3.) This petition which was noted as being made on the 20th of January, 1969 is verified by one Balaknath Paramanik, who has described himself as Head assistant in the employment of the Administrator General of West Bengal. In paragraph 4 of the petition it has been stated that the petitioner caused enquiries to be made to find out if any other Solicitor was looking after the business of Messrs. Mukherjee and Lahiri in paragraphs 4 to 10 the petitioner has stated about certain enquiries being made and how the petitioner tried to contact the family of late A. B. Lahiri Unfortunately there is no particulars as to the dates when these enquiries were made. Certain correspondence are annexed to the petition. The first letter which I find is a letter dated 30th of April, 1968, written to Mrs. A. B. Lahiri by the Administrator General of West Bengal It has been stated that certain cause papers in respect of the estate of Raja P. N. Tagore were lying with late Mr. Lahiri and Mrs. Lahiri was requested to hand over those papers. The next letter is dated 19th of December, 1968 written to the son of late Mr. Lahiri. It appears that on or about 18th December, 1968 the petitioner received the notice from this Court that the above suit had been set down in my list of 20th December, 1968. The petitioner states that the said letter was addressed to Messrs. Mukherjee & Lahiri and most presumably have been served on the petitioner because the office of Messrs. Mukherjee & Lahiri was found to be closed. The matter appeared in my list, as mentioned hereinbefore on the 20th of December, 1968 and the petitioner was not in a position to instruct the present Solicitor about the steps taken in respect of the suit. In the petition the petitioner has stated about how certain enquiries and searches of the records were made. The petitioner has however stated that before 20th December, 1968 the petitioner was not able to get the cause papers of the suit in the question. There was a supplementary affidavit affirmed on the 18th June, 1969 by one Balaknath Paramanik. He has stated in this supplementary affidavit in paragraph 15 that on the 30th of May, 1969 he persuaded Mr. Subodh Kumar Chatterjee, who is supposed to have been formerly the Managing Clerk of Messrs. Mukherjee & Lahiri to go to the office room occupied by late Mr. Lahiri. He has further stated in paragraph 16 that he made certain searches and found out the several dates on which the suit had appeared in the peremptory list. From the list given by him, it appears the said suit appeared in the list on the 3rd of August, 1961. He further stated in paragraph 17 that he had come to know on enquiries made by him that this suit along with several other suits between the parties were directed by the P. C. Mallick, J., to be placed in the list of his Lordship. It further appears that on 3rd August, 1968 P. C. Mallick, J., had directed that this suit along with several other suits save and except those mentioned in the subsequent paragraph were directed to go out of the peremptory list. He has further stated that as searches were made by him he could not place the information earlier before this Court. Learned Advocate General, who appeared on behalf of the Administrator General of West Bengal, placed before me a copy of the minutes of the 3rd August, 1968. It is in the following terms:-- "O.S. No. 41 of 1953 (Cal.), A. G. v. Purnendu Nath Tagore. Mr. I. P. Mukherjee, for the applicant also appear Mr. Sudhamay Basu, Mr. Ajit Ganguli, Mr. B. C. Dutta, Mr. R. K. Ghosh and Mr. T. K. Ghosh. Court -- The order dated 8-6-1969 will not be drawn up until the disposal of this application. Nor the Report of Mr. G. K. Dutt the Special Referee appointed herein, be given effect to. The A. G. is directed to write to the Land Acquisition Collector at Varanashi enquiring when the money will become payable because without that the administration is being held up and the Court is prevented from disposing of the suits. Similar letter be written to the Certificate Officer. The application is adjourned to Monday next. A. G. to take steps for substitution of the heirs of Anjali Tagore since deceased in the consolidated suit Mr. Ganguli will supply the names of the heirs to the A. G. by this week. Other Tagore suits to go out of the list.";