HARENDRA NATH DE Vs. MANMATHA NATH DE

JUDGEMENT

(1.) THIS is an appeal from a judgment dismissing a suit for want of prosecution under Rule 35, Chapter 10 of the Original Side Rules of this Court. On or about April 30, 1957, the plaintiff instituted this suit for declaration that certain shares in the joint stock companies mentioned in paragraph 15 of the plaint belonged to the estate of his father Bholanath De, possession and partition of the shares and/or of their value and enquiry as to what dividends or profits accrued to the estate of Bholanath De in respect of the said shares and a decree for the amount found due to the plaintiff and for accounts, receiver, discovery and administration of the said estate of Bholanath De, deceased. On or about May 29, 1957, the contesting defendant, Manmatha Nath De entered appearance. The other defendants did not appear. On or about 5th June, 1957, Manmatha Nath De took out Summons for an order for rejection of the plaint and if necessary for extension of time to file written statement. On the 25th July, 1957, the order was passed for extension of time to file the written statement. In August 1957, Manmatha Nath De filed his written statement wherein he contended that the suit was an abuse of the process of the Court, was barred by res judicata and by the law of limitation and also that the plaint did not disclose any cause of action. On December 10, 1957, a summons for discovery was taken out on behalf of the plaintiff against the defendant and on December 13, 1957, order was passed directing Manmatha Nath De to file his affidavit of documents by January 6, 1958. On January 6, 1958 Manmatha Nath De filed his affidavit of documents. Thereafter, no step was taken by the plaintiff for the progress of the suit. There is no material on record to show that the inspection of documents disclosed by the defendant had been completed or that the suit was otherwise ripe for hearing. The suit did not appear in the prospective list at all. The materials on the record do not show that the Attorneys for the plaintiff wrote to the Registrar, Original Side asking him to place the suit on the prospective list. In due course the notice was issued by the office on December 12, 1960, to the effect that the suit would be set down in a list before Mr. Justice Ray on December 21, and would be dismissed for default unless good cause was shown to the contrary and would otherwise be dealt by the Judge as he might think proper. The parties filed their respective affidavits before the learned Judge. The plaintiff in his affidavit set out the following further facts. It appears that prior to the filing of this suit he had filed another suit being Suit No. 3221 of 1956 against the same defendants and under like charges against Manmatha Nath De for conversion and appropriation of the estate belonging to the plaintiff's grand father Ashutosh De, since deceased. In that suit Manmatha Nath De made a similar application for rejection of plaint and for extension of time to file his written statement. By an order dated the 3rd June, 1957 the prayer for rejection of the plaint in that suit was rejected and the defendant was allowed further time to file his written statement. Manmathanath De preferred an appeal from the order passed in the other suit which was eventually dismissed on August 31, 1960. Manmathanath De thereafter applied for leave to appeal to the Supreme Court from the order of the appellate Court dated August 31, 1960. THIS application for leave to appeal to the Supreme Court was pending on December 21, 1960 when the plaintiff filed his affidavit. We are informed that the application for leave to appeal to the Supreme Court was subsequently dismissed. After setting out the above facts the plaintiff in paragraph 14 of his affidavit submitted that in this view of the matter, all steps to be taken by him has been done and the suit might be placed in the prospective list and in the meantime inspection would be completed. The plaintiff's Counsel contends that in view of the pendency of the appeal from the order refusing to reject the plaint in Suit No. 3221 prima facie 1956 the plaintiff was entitled to wait until the final disposal of the litigation relating to and arising out of the application for rejection of the plaint in the other suit. We see no justification for the plaintiff taking that course. The application for rejection of the plaint in Suit No. 3221 of 1956 has nothing to do with the progress of the present suit. We cannot accept the submissions made by the plaintiff in paragraph 14 of the affidavit that all steps to be taken by him and had been done. He did not even take inspection of the documents disclosed by the defendant Manmathanah De. Almost three years have elapsed since the defendant filed his affidavit of documents. Not a single step was taken by the plaintiff during the course of these three years and the learned Judge was entitled to take the view that good cause had not been shown as to why this suit should not be dismissed for want of prosecution. The learned Judge has not delivered any judgment in this matter but it is not shown to us that he exercised his judgment capriciously or did not apply his mind to the facts of this case. The facts are all undisputed. On the admitted facts there can be no doubt that the plaintiff was not diligent in the prosecution of the suit. Considering the entire history of this litigation I am satisfied that to allow the plaintiff to prosecute his claim would be to permit an abuse of the process of the Court. I am satisfied that public interest would best be served by depriving the plaintiff from his right to prosecute the suit any further. It is true that the plaintiff has offered in para 14 of his affidavit that the suit might now be placed in the prospective list but mere offer to set the case down for immediate trial is by no means the determining factor. In all the circumstances of the case we are satisfied that the learned Judge rightly directed the dismissal of the suit for want of prosecution. There is no merit in this appeal. The appeal be and is hereby dismissed with costs. Appeal dismissed.