Gulraj Shroff v. Kaniram Sureka

1. This is a summons asking that it be recorded that this suit stands dismissed and the same be struck out and removed from the list. On 19th February 1937, the defendants filed a suit against the plaintiffs, being Suit No. 279 of 1937, for recovery of Rs. 1801-2-0 for money lent. The plaintiff Gulraj Shroff filed a written statement alleging, inter alia, that he had paid a sum of Rs. 1500 and produced a purja in support, which is challenged by the defendants. On 9th March 1937, one of the defendants, Banwarilal Sureka, instituted a Suit No. 388 of 1937 for the recovery of Rs. 7578-1-0 for money lent to the plaintiff. A written statement was filed by the plaintiff in this suit also. Both these suits were appearing high in the prospective list in July 1937 when the plaintiffs instituted the present suit on 14th July. On 28th July Panckridge J., ordered the plaintiffs to supply particulars within a fortnight and to file a written statement within a fortnight thereafter. On 29th July Panckridge J., directed that an affidavit of documents should be filed within a week after the filing of the written statement and inspection was to be given immediately thereafter, and the suit was to be placed after the aforesaid Suits Nos. 279 and 388 on the list after the vacation. The defendants filed their written statement on 17th August and the time for filing the affidavit of documents expired on 23rd August. On 30th August an order was made by consent by Biswas, J. directing the plaintiff Gulraj Shroff to file his affidavit of documents within ten days, inspection to be given within a week thereafter and that in default the suit be dismissed with costs. The office was directed to accept the affidavit during the vacation. The plaintiff Gulraj Shroff failed to file his affidavit of documents within time and on an application made by the plaintiffs, Biswas J. on 9th September extended the time to file the affidavit by a week, and ordered inspection to be given forthwith.

2. The learned-judge acted thus, presumably, under the provisions of Chap. 38, R. 33, which gives power to the Court or a Judge to enlarge or abridge time, but I am doubtful, whether this Rule gives the Court power so to act, with regard to a consent order, without the consent of the parties. The plaintiff filed his affidavit of documents on 17th September, but failed to give inspection forthwith as he had been directed so to do. On 21st September Messrs Khaitan & Co., the attorneys for the defendants, wrote to Messrs Fox and Mandal, the attorneys for the plaintiff, asking them to appoint a time to give-inspection. They wrote again on 22nd September, saying that no time had been appointed and that the defendants would attend at the office of Messrs Fox and Mandal next day between 2 and 3 P.M to take inspection. On 23rd Messrs Fox and Mandal replied to the effect that they had no time to communicate with their clients and that they could not arrange inspection on that day, and that they would inform Messrs Khaitan & Co. later on when they had been able to hear from their clients.

3. On 30th September Messrs Khaitan & Co. wrote saying that inasmuch as they had failed to give inspection according to the orders of the Court, the suit stood dismissed. In reply, Messrs Fox Mandal said that there was no question of failure to give inspection, and that their suggestion that the suit stood dismissed was preposterous, that the time for offering, inspection expired on a day on which the Court was closed, and as their office was also closed for all normal work no inspection could be given during that period, and they stated that they had already made an appointment to allow the defendants to have inspection on the first day after the re-opening of the Court, after the long vacation. They accordingly fixed 6th November 1937 for inspection.

4. In the plaintiffs' affidavit in reply they allege that no order for inspection was made, that they duly filed their affidavit of documents in compliance with the order of the Court on 17th September, and they deny that they failed to give inspection or that there was any demand for inspection. Both these allegations are obviously inaccurate. The minutes show that an order for inspection was made and the letters to which I have referred show that there were repeated demands for inspection. They further allege that they appointed 6th November for inspection, but that the defendants' attorneys did not appear and that they made further appointment for 8th November but the defendants were absent. They say also that the defendant treated the suit as subsisting by giving, notice to admit and produce, dated 6th November 1937. This is correct, but the defendants say that this notice was given by inadvertence and, in my opinion, it, makes no difference to the question which I have to decide. In another affidavit dated about 9th September, a clerk in the employ of Messrs Fox & Mandal said that the adult plaintiff left for pilgrimage on or about 27th August 1937 and was expected back in Calcutta by the first week of September, but had not yet returned and was moving about in different places of pilgrimage and would come back in about ten days' time. In the circumstances the order dated 30th August could not be communicated to him.

5. In spite of the orders made by Panckridge J. to which I have referred, the adult plaintiff deliberately chose to go on pilgrimage and flout and disregard the orders which the Court had made. There is therefore no shadow of excuse for the plaintiff's failure to obey these orders. The question which I have to decide is whether, as a result of these proceedings, this suit is dead as from 30th September 1937. O. 11, R. 21 of the CPC, provides that where any party fails to comply with any order for discovery or inspection of documents he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and the party seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made accordingly. This Rule is similar in terms to O. 31, R. 21 of the rules of the Supreme Court in England. The form of the order in the present case was that the plaintiff Gulraj Shroff should file his affidavit within the prescribed time and that inspection be given within a further prescribed period and that in default the suit be dismissed. The question for decision therefore is whether the effect of such an order in the present circumstances results in the suit being automatically dismissed upon default, without any further order. The terms both of the English and the Indian rule seem to contemplate that ordinarily there will be two orders; first an order for discovery, and second, on default, an order of dismissal of the suit for want of prosecution. On this point I am in agreement with the opinion expressed by Sanderson C.J in 50 CLJ 397.1 But the learned Chief Justice seems to suggest that ordinarily it would not be proper to make a conditional order, for example, an order for discovery within a prescribed time, and on default that the suit be dis missed. If that be the meaning of the judgment, I regret to find myself in dis-agreement.

6. Where, as in the present case, there has been a previous order for discovery, it is in my opinion proper, and according to practice both in England and India, to make a subsequent conditional order, for example, an order for discovery within a prescribed time, and upon default that the suit be dismissed or stand dismissed. The English forms under O. 31, R. 21 are to be found at pp. 364 and 365 of Chitty's King's Bench Forms, Edn. 15; and No. 2 provides for such a conditional dismissal of a suit for want of prosecution. The expression used by this author is “be dismissed”. For similar forms, see Seton's Judgments and Orders, Edn. 7, Vol. 1, at pp. 133 and 134. Nos. 4 and 5 provide for similar conditional orders. The expression used by this author is “stand dismissed”. There is a similar Form, No. 15 of App. K in the Annual Practice 1937 at p. 1759, where the expression used is “be dismissed”. However in that case, as in the present case, the point could not and cannot be agitated because there was no appeal from the order, and all that now remains for decision is what in the effect of the order upon the suit. In that case the material words were and it is further ordered that in default of the plaintiff firm filing such affidavit within the time aforesaid this suit do stand dismissed. The Court held that this order became on default a final order dismissing the suit. In 48 Cal 9022 the order ran:

Adjourned till 1st June; Rs. 200 as condition precedent to be paid before 1st June. If the money is not paid by 1st June the suit will be dismissed.

7. Greaves J. considered that if the order had contained the words “in default the suit will stand dismissed,” the suit in the absence of any appeal from the order would have been dead. (On this point see 59 LJ Ch 406.3) But that having regard to the terms of the order a further order was necessary. With this opinion I respectfully agree. The order was that the application be adjourned until 1st June, and obviously contemplated that the matter would again come before the Court, and that if there were default, the suit would then be dismissed. That case is clearly distinguishable from the present case. In my opinion there is no difference in effect between the terms “stand dismissed” and “be dismissed”. Both mean that the effect of the order is to dismiss the suit unless something be done within a specified time. Thus, in (1879) 48 LJ QB 6064 an order was made dismissing the action unless a statement of claim should be delivered within 14 days. Held that the action was dead when the day fixed by the order expired. Similarly, in the present case, the order contemplated that in case of default the suit would be dead. Nor have I any doubt that the plaintiffs were guilty of default. The order provided for inspection ‘forthwith’ and obviously contemplated that it would be given during the period of the vacation. In (1882) 51 LJ Ch 207,5 it was held that “forthwith” was to be construed according to circumstances and meant within a reasonable time. That, where an act, required to be done forthwith, is one which is capable of being done without any delay, no delay can be permitted, and that in other cases the delay must not be unreasonable. The delay in the present case, in my opinion, was unreasonable, and no reasonable excuse for it has been offered by the plaintiff.

8. The plaintiffs have relied also upon certain obiter dicta in (1882) 46 LT 316 to the effect that an order does not take effect until it is drawn up and served, and that the order in the present case has not even yet been drawn up. But these dicta were not approved subsequently in England, [see (1890) 59 LJ Ch 406 and (1889) 23 QBD 124,7 or in this High Court, see 36 CWN 8618 at p. 865], and in my opinion they do not correctly state the law in India. Finally, it has been argued that in any case the minor plaintiff is not affected by the order and the suit is alive so far as he is concerned. I fail to appreciate this argument. The same attorneys were and are acting for both the plaintiffs. The summons asking for an order directing the adult plaintiff to file an affidavit of documents was directed to these attorneys as solicitors for the plaintiffs and both plaintiffs were asked to give inspection and to pay costs. The order was by consent and was directed to both of them. The result is that this application must be allowed with costs. It is recorded that the suit stood dismissed as from 30th September 1937, and the defendants will have the costs of the suit and reserved costs.

D.S/R.K

9. Application allowed.