JUDGMENT Harries, C.J. - This is an appeal from an order of Sinha J., dated November 23, 1948, dismissing the Appellants' application for restoration of a suit, which had been dismissed for non-prosecution. 2. The suit was for the recovery of Rs. 2,611-13-6, being the price of goods sold and delivered to the Defendants. The suit was filed on February 17, 1945 and the Defendants-Respondents filed their written statement on July 4, 1945. Neither party took any steps after this latter date and on September 1, 1948 the case appeared in the Special List, which was being taken on that day by Sinha J. As no steps had been taken to prosecute this suit for over three years, Sinha J. dismissed it for non-prosecution. 3. On October 1, 1948, an application was made to Sinha J. to set aside the order of dismissal and restore the suit for hearing. But, on November 23, 1948, Sinha J, having heard the parties, declined to set aside his order and dismissed the application for, restoration. It is from that latter order that the present appeal has been preferred. 4. Counsel for the Appellants has urged that Sinha J. should have restored this appeal, as the Appellants were under no duty to take any steps after July 4, 1945. His contention is that, before the Appellants could do anything, the case would have to be set down for directions under Rule 2D of Ch. XII of the Rules governing the Original Side. Rule 2D reads as follows: On the expiry of two months from the filing of the last written statement, each Commercial Suit, unless it has been entered in the Prospective List, shall be set down on a list in Chambers for directions. Two days' notice of such setting down shall be given by the Registrar to the parties appearing. 5. In the present case, it is conceded that the suit is a Commercial Suit and it is also conceded that the suit had never been entered in the Prospective List. Therefore, counsel for the Appellants contends that nothing could be done in this case until the office had set this case down on a list for directions. He has urged that they were entitled to await these directions before proceeding further with the case. 6. On the other hand, counsel for the Respondents has contended that Rule 7 of Ch. Therefore, counsel for the Appellants contends that nothing could be done in this case until the office had set this case down on a list for directions. He has urged that they were entitled to await these directions before proceeding further with the case. 6. On the other hand, counsel for the Respondents has contended that Rule 7 of Ch. X clearly applies to this case. That rule is in these terms: The attorney for any party, or any party acting in person, may submit to the Registrar a requisition in writing, whereof he shall have given prior notice to the opposite party or parties, to have a suit, other than a special suit, standing in the General List, entered in its proper Prospective List, on the ground that it is ready to be heard and the Registrar, if satisfied that the suit is ready to be heard, shall enter it in its proper Prospective List and the attorney or party acting in person, by whom the requisition was submitted, shall forthwith give notice to the opposite party or parties of such transfer when the suit is transferred to the Prospective List: Provided that, where a written statement has been called for, no such requisition shall be made until, in the case of commercial suits or suits for liquidated claims the expiry of one week and in other suits six weeks, after the filing or the expiry of the in or extended time fixed or prescribed for the filing of the written statement of the Defendants appearing. 7. Where a suit is entered in any of the Prospective Lists, it shall, unless otherwise ordered by the Court or a Judge, be placed at the bottom of such list. 8. Counsel for the Appellants contends that Rule 7, Ch. X has no application to commercial suits, but the terms of the proviso to this rule make it clear that it applies to commercial suits. 9. Counsel for the Respondents contends that the Appellants should have acted under this rule when their case did not appear in a list for directions in Chambers. There can be no doubt that either the Plaintiffs or the Defendants could have applied to have this case placed on the Prospective List and if that had been done, then Rule 2D, Ch. XII would have no application. There can be no doubt that either the Plaintiffs or the Defendants could have applied to have this case placed on the Prospective List and if that had been done, then Rule 2D, Ch. XII would have no application. How: ever, as no application was made to have the case placed on the' Prospective List, it appears to me that Rule 2D still governs the case. 10. Can the Plaintiffs be punished for not having this case put in the Prospective List, when, under Rule 2D of Ch. XII, it should have been placed by the office in a list for directions in Chambers. It appears to me that the Plaintiffs could wait for the appearance of their case in the Chamber List for directions and that they were not bound to apply to have the case placed in the Prospective List. That being so, it appears to me that this case should not have been dismissed for want of prosecution and the application for restoration should have been allowed. 11. It must not be thought that this Court approves of a Plaintiff waiting for three years for his commercial case to be placed in the Chamber List for directions; an attorney who has the best interests of his client at heart would undoubtedly move, under r. 7 of Ch. X and have the case placed in the Prospective List. However, as he is not bound to take such action, it appears to me that the case cannot be dismissed, as the suit had never appeared in the Chamber List for directions. In my view, this suit must therefore be restored. 12. The delay is entirely due to the Plaintiffs and they must bear all the costs incurred by these proceedings. Further, I think that the payment of these costs should be a condition precedent to the restoration of the suit. 13. In the result, therefore, I would allow this appeal, set aside the order of Sinha J. and restore the suit. The Appellants must pay the Respondents the costs of this appeal and of the proceedings in the Court below within one month from today. Unless the payment of such costs is made within that time, this appeal will stand dismissed. The costs of this appeal and of the proceedings in the Court below must be taxed by the taxing office within fourteen days of today. Unless the payment of such costs is made within that time, this appeal will stand dismissed. The costs of this appeal and of the proceedings in the Court below must be taxed by the taxing office within fourteen days of today. The Taxing Officer can act on the endorsement on Mr. Meyer's brief. The Respondents should lodge their bill of costs within four days of today. 14. The suit should appear in the list of the learned Judge hearing Commercial Suits a week hence, to be mentioned with a view to fixing a date for hearing. Chatterjee J. Iagree.