A.V. Narayanaswami Naicker vs Sakharam Rao and Others

Murray Coutts Trotter, Kt., C.J.—Under the provisions of Order 6, Rule 4 of the Original Side Rules of this Court, this case, having been in

the list of default cases for three weeks, stood dismissed. The proviso to that rule allows the plaintiff within 30 days of the date of dismissal to

apply by Master''s summons to have the suit restored and thereupon the Master has a discretion to restore it or not as he thinks fit. That proviso

was not availed of by the plaintiff in this case and he took no steps within 30 days. The Master held that in those circumstances he had no

discretion to allow the case to be restored after those 30 days. It is pointed out that by Order 1, Rule 7, which is in effect a reproduction of that

which appears as Order 64, Rule 7 of the Rules of the Supreme Court in England, and which repeats similar rules which had been in force for

many years, there is a general discretion given to revive a suit, because it says in terms that an enlargement may be ordered although the application

for the same was not made until after the expiration of the time appointed or allowed. We have been referred to a series of English cases, the

earliest of which is Whistler v. Hancock (1878) 3 Q.B.D. 83, a decision of Chief Justice Cockburn and Mr. Justice Manisty. There an order was

made dismissing an action for want of prosecution unless a statement of claim should be delivered within a week. The week expired and nothing

was done and it was held that the action was at an end. A similar conclusion was arrived at in King v. Davenport (1879) 4 Q.B.D. 402, a decision

of Chief Justice Cockburn and Mr. Justice Mellor, but it has been held that this case only applied to a state of things were an extension was sought

to do something in the action after the action was dead. Thus it was decided in Schafer v. Blyth (1920) 3 K.B. 140 : 89 L.J. (K.B.) 671 that the

general words of the rule covered a case where it was sought not to extend the time for taking a particular step in a case that had automatically

come to an end but to revive the whole case itself and that the words of the rule gave a discretion to that effect. And in so deciding, Mr. Justice

Lush was following a decision of the Court of Appeal, Bradshaw v. Warlow (1886) 32 Ch. D. 403. It is quite obvious that the draftsman of the

Madras rules went for guidance to the English rule and no doubt was familiar with these decisions. We think that it must be taken that the intention

of the framers of the rules which are made under the statute - and it is not suggested that they are ultra vires of the statute - was to give a discretion

to the Court to revive a suit, even after the expiration of the time delimited for the taking of a particular step in it. The learned Master here held that

he had no discretion, and that he was bound by the terms of Order 6, Rule 4, to decline to entertain any application or exercise any discretion with

regard to its revival. We think that this cannot be upheld and we propose to remit the case to the learned Judge with this intimation of our opinion.

He will probably send it back to the Master with a direction that he should consider the application on its merits and that his discretion on the

merits is unfettered by any supposed rule of law.