Jhabarmal Parasrampuria vs Dhanraj Nathani and Another

Banerjee, J.—This is an application for an order that the defendants who are the petitioners before me be permitted to file their affidavit of documents; in the alterative that the time to file the affidavit be extended; in the further alternative, that the order made by the learned Master on 7th July, 1950, be recalled. The suit was filed on or about 20th May, 1947, for recovery of a sum of Rs. 2,785-15, being the alleged commission due by the defendants to the plaintiff, on account of certain commission agency transactions.

On or about 14th June, 1947, the Writ of Summons was served on the defendants, and on 26th July, 1947, the written statements were filed. The plaintiff filed his affidavit of documents on 18th May, 1950. The defendants did not.

On or about 7th July, 1950, on the application of the plaintiff the Master made the order which is as follows :

It is ordered that the defendants do within a fortnight from the date hereof file their affidavit as to documents in their possession or power relating to the matters in question in this suit, such affidavits to be affirmed by either of them with liberty to the plaintiff firm to call for further affidavit from the defendants other than the defendant making such affidavit as aforesaid, in case the affidavit to be filed under this order be deemed insufficient. And it is further ordered that in default of the defendants filing such affidavit as aforesaid within the time aforesaid the defence of the defendants in this suit be struck off and this suit be transferred from the list of defended suits to the list of undefended suits. And it is ordered that the costs of and incidental to this application to be taxed by the Taxing Office, of this Court be paid by the defendant to the plaintiff firm.

The defendants failed to file their affidavit within the time specified in the order. The effect of the order would be to strike out the defence and place the suit in the undefended list of suits. But the suit has not yet been placed in that list. This summons was taken out on, 19th of August, 1950, for the reliefs I have mentioned. Nobody is able to explain why it was not heard earlier.

In the petition it is alleged that the defendants are residents of Muzaffarpur in the State of Bihar; the dealings and transactions between the parties continued for several years and there are voluminous papers and documents on which the defendants rely and are to be disclosed in the affidavit : the petitioners came down to Calcutta on several occasions to give instructions to their attorney to prepare the affidavit. The affidavit of documents could not he filed earlier. It is further alleged that the affidavit of documents of the petitioners is now lying ready for being filed, but it could not be filed in view of the order of 7th July, 1950. The petitioners also allege that they have got a good defence to the suit and are ready to go to trial at once, and that unless the time to file the affidavit is extended, they would be greatly prejudiced.

The delay in this case is three weeks, and undoubtedly the defendants were not very diligent and failed to obey the order of the Court. In the petition they have given reasons for the failure. The question is--are the defendants to be deprived of their right to be heard ? Is the delay so inexcusable that the suit should be heard undefended ? Is there a locus poenitentiae ? If I extend the time, will that occasion an injury to the plaintiff which cannot be sufficiently compensated for by costs or other term which I may impose.

Ordinarily no order should be made against a party without giving him a hearing. That is a fundamental principle of justice. But there may be cases in which the laches of a party may give such an advantage to his opponent that the Court thinks it unjust to deprive that party of the advantage he has gained. In this case, in my view the plaintiff has not gained such advantage which I cannot make good by directing the petitioners to pay costs. I cannot say the delay is such as in the circumstances of this case cannot be excused. Therefore, I would be inclined to extend the time on terms, if I have got the power to do so. It is argued I have not the power : the Court has no jurisdiction to enlarge the time. And that is the main point debated before me. In support of the argument that the Court cannot extend the time reliance is placed on a judgment of Lort-Williams, J., in Gulraj Shroff v. Kaniram Sureka, [(1938) 42 C. W. N. 457]. In that case the order for consideration was as follows :--

It is further Ordered that in default of the plaintiff firm filing such affidavit within the time aforesaid this suit do stand dismissed.

The difference between that case and the case before me is plain. In that case the suit stood dismissed. The basis of the judgment was that the suit was dead when the day fixed by the order expired. In this case the defence only has been struck out but the suit is pending : it is not dead. It must be heard.

Chapter 38, rule 46 of the Original Side Rules reads as follows:--

The Court or a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time, of or doing any act or taking any proceeding upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or allowed.

It is the Court who can enlarge or abridge the time ? Neither the Master nor the Registrar can do it as appears from Appendix Z, 773, (Ormond''s Edition), item No. 87. That item is marked with an asterisk, and it appears from the note under Appendix Z, that such item cannot be taken by the Master. Necessarily, therefore, the application has to be made to the Court. The Court can enlarge the time if it thinks fit.

Mr. Asoke Sen in his argument for the petitioners has referred me to an English case--Manley Estates Ltd. v. Benedek [(1941) 1 All. E. R. 248. In that case judgment in default of appearance was obtained against the defendant. The defendant later stated that he had a defence to the action, and leave was then given to defend, provided certain conditions were complied with within 7 days. After that time had elapsed the defendant applied for an extension of time. It was argued before the Court there, that the leave to defend was conditional upon payment being made within 7 days, and that, when the payment was not made within that time, the action had come to an end, because the condition upon which the defendant was allowed to continue it had not been fulfilled.

This argument found favour with the Master and the learned trial Judge. On appeal, Mackinon, L. J., observed as follows :

I think, with all respect to them, (referring to the Master and the Trial Judge) that they were both wrong, because R. S. C. (Rules of the Supreme Court), Ordinance 64, r. 7, provides as follows :

A Court or a Judge (which includes, therefore, a Master) has power to enlarge any time fixed by these rules, although the application for the same is not made until after the expiration of the time appointed or allowed. I think that one would be deleting those words ''although the application for the same is not made until after the expiration of the time'' from the rule altogether if this suggested point were a good one. Counsel for the respondents relies, and there was reliance below, on cases of a totally different nature, where, after an action was dismissed--and, therefore, judgment entered for the defendant--it was held that the plaintiff could not make an application to enlarge the time in that action, as the action had disappeared. Here, the action has not disappeared. It is in existence, and there is actually a judgment which has not been prosecuted to execution. I think that, within the words of that rule, there was jurisdiction in the Master to enlarge the time.

On these observations the Court of Appeal in England set aside the order of the Court below and extended the time. It should be noticed that in England the Master has the power to extend the time but as I have already pointed out he has not here.

In Putin Krishna Roy v. Sushil Kumar Dey [(1949) 53 C. W. N. 192], N. C. Chatterjee, J., had to deal with a similar situation, and he also took the same view. He said, if a suit is pending and there is no statutory bar the Court can grant relief to a party in default who wants time to do something which the Court required him to do. But where the action is dead by virtue of a previous order or where there is some legal bar under a Statute the Court has no such power. Chatterjee, J., refers to the English case I have already cited.

In Gaya Din Vs. Lalta Prasad and Others, , the High Court at Allahabad (Allsop and Ganga Nath, JJ.), took the same view without making any reference to the English case.

On these authorities, I think that the Court has the power. I have set out the English rule and our own rule. It does not seem to me that there is any material difference between the two. Therefore, I hold I have jurisdiction to extend the time.

Mr. Bhabra on behalf of the plaintiff has argued that by reason of the order, the defence has been struck out; his client will be deprived of a valuable right if the time is extended. Counsel submitted that if the time was not extended, the suit would appear in the undefended list and it would be enough for his client to get a decree. He will get a decree as a matter of course. This right should not be taken away. He further argued that as there was no appeal from the order of the Master his order had become final between the parties and cannot be set aside and it would be unjust to make the orders asked for. There is some force in this contention. But it must be remembered that when an order is made in favour of a party and there are provisions in the law that on sufficient cause being shown, that order can be set aside, it cannot be said that every such order confers an indefeasible absolute right on a party. The party in whose favour the order is made takes that order subject to the order being set aside on good cause shown. In this case I do not accept Mr. Bhabra''s contention that his client by virtue of the order made by the Master has acquired an indefeasible right and the Court cannot extend the date. At the same time, having regard to the facts of the case, I must impose terms on which I would extend the time. The defendants were not very diligent. The effect of my order would be to restore the defence, and the suit will be heard in the usual way.

I extend the time on the following condition. The defendants to deposit within three weeks from date with their attorneys Messrs. Khaitan & Co. Rs. 1,000 as security for costs, if any, that may be payable to the plaintiff for this suit. If the security is deposited, Messrs. Khaitan & Co., within 24 hours will inform the plaintiff''s attorneys about it. If within the time specified the deposit is not made, the application twill stand dismissed. If the deposit is made, the defendants shall within a week from the date of the deposit file their affidavit of documents. In any event the defendants will pay the costs of this application. Certified for counsel.