Sewratan v. Kristo Mohan Shaw

1. This suit appeared on the Special Board sometime in December last. When the suit was called on, the defendants contended that the suit was dead by virtue of an order passed on the 10th April, 1919. That order has never been drawn up. But it appears from the Minute Book that the order was made in these terms “Adjourned till 1st June; Rs. 200 as condition precedent to be paid before 1st Jane. If the money is not paid by the 1st June, the suit will be dismissed with costs.”

2. The money was not in fact paid in, by the 1st June and has not been paid up to this day. On the 4th June, Mr. Mandal, Attorney for some of the parties wrote a letter to the plaintiff with regard to the drawing up of the order for dismissal.

3. On the 25th June, the case came on, and another case in which a similar order had been made, and in which on the 25th, an order for dismissal was made. On the 21st June, one of the plaintiffs had died and on the 25th the case was ordered to go out of the list for substitution to be made, and in August of the same year an order for substitution was made. I have been referred to the cases of Script Phonography Co. v. Gregg(1), Metcalf v. British Tea Association(2), King v. Davenport(3) and also to the case of Whistler v. Hancock(4).

4. It seems to me that the real question is the effect of the order of the 10th April 1919. If that order had contained the words: “In default the suit with stand dismissed,” I should have thought that as from that date the suit in the circumstances was dead and that, irrespective of subsequent proceedings and any question as to the drawing up of the order, the Court could not revive the suit in the absence of any appeal from the order of the 10th April 1919. But I think having regard to the terms of the order of the 10th April 1919 a further order was necessary by the Court before the suit was dead, and that, on an application for such as order, it would be open to the Court, if the circumstances appeared to the Court to justify such an order, to further extend the time for making the payment. Under the circumstances, I think, it is now open to the Court, in spite of the order of the 10th April 1919 to hold that the suit can proceed. Counsel for the plaintiff tells me that the suit is ready for hearing, and is willing to have it put in the Prospective List. In these circumstances, I will allow the suit to go into Prospective List. But the order of the 10th April must be complied with, and I give the plaintiff one week, to comply with the order. In default of compliance, within one week from this day, the suit will stand dismissed. Costs, costs in the cause.

5. Order accordingly.