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1. This is an appeal against an order made by Mr. Justice Kania on March 9, 1937, refusing to restore the applicant's chamber summons to the list. The facts leading up to the application are that on December 23, 1936, the applicant took out a chamber summons to set aside an allocator issued by the Taxing Master, and that summons was duly adjourned into Court, It appeared on the daily list for hearing on February 4, 5, 8, 9 and 10. It was not reached on any of those days. The applicant says that he attended Court on those five days until the Board was discharged about 4 o'clock in the afternoon. On February 11, the summons was again in the list, and there were some ten matters in front of it; three were ex parte summary suits, three contested, and one ex parte motion, and three other matters, and the applicant being a layman, might not unreasonably have supposed that those matters would take some time, and that his case was no more likely to be reached promptly on February 11 than it had been on the five previous days. He in fact did not attend the Court on the 11th until 1-15 p.m., when he found that his summons had been called on and dismissed for want of appearance at 12-30 p.m. He thereupon gave a written notice to the other side that he would ask the Court at 4-30 to restore the summons to the list. The respondents, the Central Bank of India, Ltd., appeared on that; application, and took the technical objection that there ought to be a notice of motion. Strictly speaking, no doubt they were entitled to a formal notice, and to have the facts placed on affidavit. It is obvious from the evidence subsequently filed on the motion that the Bank, for reasons of Its own, desired to take every advantage of the lapse on the part of the applicant in this matter, but that is a matter with which the Court had nothing to do. The learned Judge adopted, I think, a somewhat harsh attitude on February 11. Seeing that this application had been made on written notice to the other side, I think he should have adjourned the matter and directed the applicant to serve a proper notice of motion and then dealt' with the merits on the motion, instead of which he merely dismissed the application, and the order directed that the applicant should pay Rs. 175 costs. That order could only be justified on the ground that the application was a motion which had failed. The applicant then, having been ordered to pay the costs of a motion which failed, not unnaturally tried another means of approaching the Court and on February 12 took out a chamber summons to have his summons restored to the list. It came on for hearing on March 1, and the learned Judge dismissed it with costs on the ground that the application should have been by motion. There is no appeal from that order, and I assume it to be right, though I must not be taken to accept the view that a summons cannot be restored to the list without a motion. I think however that the learned Judge might, in the circumstances of the case, having regard to the fact that the applicant had probably been misled by the terms of the order dismissing his former application, have treated the summons as a motion, and dealt with the matter on the merits. However he did not do so. He dismissed the summons with costs. Thereupon the applicant issued a notice of motion on March 2, on which the order was made which is now under appeal. The learned Judge took the view that there was no sufficient cause under Order IX, Rule 9, and no sufficient reason for being asked to exercise the inherent jurisdiction of the Court for restoring the summons to the list. He adverts nowhere in his judgment to the fact that the applicant had been required to attend the Court on the five previous days when his application was not reached. Now, to any one responsible, as I happen to be, for the business of this Court it must be apparent that it is a serious defect in the procedure of the Court that a litigant should be brought to the Court on five consecutive days on the plea that his case will be heard, but in fact it is not reached. Unfortunately that is a defect which it is impossible to remove. Judges who are making up their lists for the next day can only form the most vague and indefinite estimate as to how long the cases they propose to put in the list are likely to last. If they make up a list which they think likely to last for a day and no longer, so as to avoid summoning people unnecessarily, it will frequently happen that cases will break down and the list be disposed of by the) middle of the day, and the Judge will be left for the rest of the day with no work to do. This is a matter which has engaged a great deal ofi public attention lately in England, and the view has been expressed in some quarters that it is better that the time of a High Court Judge should be occasionally wasted than that the time of the litigating public and their advisers and witnesses should be incessantly wasted. But in England they are in the fortunate position of being abreast with work, and in this Court, where, having regard to the arrears which exist, the Judges are always exceedingly conscientious in providing themselves with a very full day's list for the next day, it must often happen that people will be summoned to the Court unnecessarily, as happened in this case to Mr. Shamdasani, and I have no doubt, to other people whose cases were also in the list. But, when a man has been summoned to Court on five consecutive days, has spent his time in Court, and his case has not been reached, if he comes rather late on the sixth day (having possibly other business to attend to), it seems to me prima facie unreasonable on the part of the Court to say that his dereliction on the sixth day is to be met with the utmost rigour of the law, and he is not to have his case heard at all. The excuse which the applicant makes for being late on the 11th is that he was in Court until the Board was discharged on the 10th, when a part-heard case was proceeding, he asked counsel in that case how long it was likely to last, and counsel stated that it was good till 2 o'clock the next day. Everybody engaged in the business of the Courts knows how unreliable the estimate of counsel is as to the length of time his case will last. Counsel may think his case will last four or five hours, but a sudden access of reasonableness on the part of his client or his opponent may suddenly induce a settlement, and the case comes to an end at once. In point of fact this part-heard case did come to an end on the 10th, and therefore it was not in the list on the 11th. But there were, as I have said, ten cases in the list on the 11th in front of the applicant's case, and even if he had looked at the list, I do not think it would have been unreasonable for him to assume that he would be safe until 1-15. Of course he was undoubtedly guilty of a certain amount of carelessness in not looking at the list, and in not attending the Court at 11 o'clock, but in all these cases in which applications are made to restore matters summarily dismissed there is nearly always some degree of carelessness or negligence on the part of the applicant. It is not often that you can say that failure to appear in Court at the requisite time was due to a pure Act of God. In the present case I think there was a certain element of negligence, but I think that the negligence was, on the whole, exceedingly slight, because the applicant had taken some steps to ascertain how late he could be on the next day, and he had the precedent of the five previous days to go upon. In my opinion the learned Judge in this case exercised his discretion on a wrong basis. I entirely agree with what was said by Sir Norman Macleod in Bilasrai Laxminarayan v. Cursondas Damodar das (1919) I.L.R. 44 Bom. 82 : s.c. 21 Bom. L. R. 952 that in cases of discretion it is very undesirable to act on precedents, as every Judge has to deal with the cases which come before him on the particular facts of each case. But it is, I think, a good working rule, which again, was laid down by Sir Norman Macleod in Sorabji v. Ramjilal that if a person whose suit has been dismissed summarily appears on the same day, and produces some not unreasonable excuse for his absence, prima facie the (Court ought to exercise its discretion in his favour. Of course the applicant has no absolute right to ask the Court to waive its rules in his favour, but it is a good working rule that if he applies at once, and thereby shows that his failure to appear was not due to a desire to cause delay, but was bona fide, he ought generally to be given the right to have his case restored on payment of costs thrown away. It is, after all, a very serious matter to dismiss a man's suit or summons, or whatever it may be, without hearing it, and that course ought not to be adopted unless the Court is really satisfied that justice so requires. In this case, in my view, the judgment of the learned Judge could only be justified if we were prepared to lay down the principle that wherever there has been any negligence or any carelessness on the part' of the applicant in failing to attend the Court when his case was called on, then he ought not to be subsequently entitled to have his case restored to the list. I do not think that is the rule which has been acted upoln in the past, or ought to be acted upon. Whethe r the negligence is of a kind which should be excused or not must depend on the facts of the particular case. But I can hardly imagine a case in which the negligence was less gross than in this case, where the applicant was a layman appearing in person, and he did take steps, which might well appear to a layman sufficient, to ascertain how long the existing case was going on, and how late he could safely be. I am emphatically of opinion that the learned Judge ought to have restored the summons to the list, and that order ought to be made now by this Court.