LALA JANGPAL SINGH Vs. RAJA KUSHALPAL SINGH

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Aligarh refusing to restore a case which had been dismissed by the Special Judge appointed by this Court to try the case, as he said, for default, it not being quite clear whether he meant to dismiss it under one or other of the 2nd or 3 rules of Order XVII. The case which was undoubtedly presented before us with great ability, has a very long history and gives rise to a great many considerations, and in some respects the members of the Court hearing the appeal do not regard the questions which have come up for discussion precisely in the same light, but we have come to the conclusion that the appeal must be dismissed. It is never satisfactory to dismiss a suit without trial, but, speaking for myself, I agree substantially with every word of the very long and elaborate order passed by Mr. Kisch, the District Judge, in March 1920, refusing to restore the case, the order now under appeal. I have followed as closely as possible all the arguments and all the relevant facts and documents to which we have been referred and I cannot find any inaccuracy of statement, or any fallacy in reasoning, throughout the while of that long order of Mr. Kisch. It would be to my mind superfluous to re-state the history of the case. I could not do so more effectively than in the language of the learned Judge to the Court below. I merely propose to refer to one or two additional topics not dealt with by the learned Judge in quite the same way as I propose to deal with them which to my mind carry great weight. Mr. G.W. Dillon has argued the case with his usual ability and fairness throughout and he based his main argument upon one point; this he described and ingeniously sought to make out as a "Mutual understanding which prevailed between the parties and the Court that evidence would not be recorded in this suit until the second suit was ready for trial." There is no doubt that the learned Judge was Anxious to please every body and this argument can no doubt, be put as Mr. Dillon put it, with a good deal of plausibility because there are traces in the communications between the Special Judge and the District Judge which show that at one time the Special Judge had himself formed that expectation. On the other hand, it must be borne in mind that if the learned Judge had, at any stage prior to the communications which he made to the District Judge to which I have referred, namely, in April, entered into any such definite understanding with the parties he would have been guilty of a grave dereliction of duty, and I come without hesitation to the conclusion that no such understanding in the real sense of the word did in fact exist although the plaintiffs may have formed hopes of reaching that stage. Therefore, the best point which one of the leading Advocates in this Court can suggest to justify this appeal fails.

(2.) One point which has weighed with me considerably throughout the hearing has been the efforts of the plaintiffs to amend their original, plaint. I think that was largely the fons et origo of the whole trouble which subsequently ensued and it is a pity that the learned Judge did not seem to have the necessary grasp of the situation to deal with it promptly and precisely. When one comes to examine it, it stands in this way. When the application was made the case was ready for trial; the costs had been incurred, the bulk of the witnesses had either been summoned or must have been known to the respective parties; a letter had been sent from the High Court warning the parties that owing to the special circumstances under which the Special Judge had been appointed the case would be heard de die in diem except for some very strong cause; the claim to amend arose out of a statement by the defendant in his written statement as long ago as the previous August; it was based upon an assignment from some persons with outstanding rights which assignment had been made since the case started and it raised a totally new case and apparently in some respects a totally inconsistent case. It was an unreasonable application which to my mind no Court ought to have entertained for a moment. I pass over the subsequent efforts to get a transfer of the second suit and to hold up the hearing of the first suit which I regard as merely the natural result of the partial success which attended the efforts of the plaintiffs to delay the hearing by their application to amend. Some of the incidents which have been disclosed on the evidence are far from creditable to the professional gentlemen certainly on the side of the plaintiffs, and many of them explain and justify the complaints which one hears about the delays of litigation in India. I pass on to a stage in the history of the case which I think is fatal to the appeal, namely, the position of the plaintiffs when the case came on for hearing on the 4 of June. I quote from the judgment of the learned Judge: "The plaintiffs had exhausted ail the means that the law allowed them for obtaining a stay of proceedings in the first case and they were faced with the alternative of either submitting to the order of the Court and producing their evidence or deliberately disregarding the order of the Court and making another effort to get the case adjourned with all the risk that such a proceeding involved. They chose the latter course."

(3.) What the learned Judge refers to there consists of two. separate matters either of which, in my judgment, are sufficient to dispose of this appeal. On the 10 of May the plaintiffs became aware that on the 7 of May the High Court, on the administrative side, refused to transfer the second case to the Special Judge and indicated that that question could be considered when the first case was nearing completion. As the learned Judge rightly points out, that communication turned the provisional order which the Special Judge had made-fixing the date of hearing oh the 4 of June, into an absolute order. In addition to that the plaintiffs had made on the 2nd of June a last and disparate effort to get the High Court to stay the suit which the Special Judge was going to try. That was refused. Whether from the 2nd of June, or from the 10 of May, it matters not from either data it was the duty of the plaintiffs to be ready with their evidence and to continue, the case on the, 4 of June. It is quite clear that they deliberately decided not to be ready. During the proceedings which took place on the 4th, 5 and 6 of June, one of the plaintiffs left the Court professedly to get witnesses, the other went post-haste, undoubtedly with the full concurrence of his co-plaintiff, to Allahabad to seek advice from their leading Counsel. The result of that was that a telegram was sent in the following terms, by the plaintiff in Allahabad to his Pleader at the place of trial, "Apply withdrawal get a fortnight for arguments if possible." Whether the vakalatnama authorized, the withdrawal, a point which I consider an idle one, the telegram contained express authority, and the Judge was wrong on this point. On the back of the application for further adjournment made on the 5 of, June the following endorsement was made: "A week's time may be granted to us, during this period we will produce witnesses who will be able to attend. As to the remaining witnesses we will apply to have their summonses delivered to us personally so that the Court's time may not be wasted. The sole object of the application is that time may be granted to us to secure the attendance of the witnesses." In spite of that deliberate statement made by a responsible Lawyer for the plaintiffs, Thakur Manak Singh, one of the Pleaders for the plaintiffs, had the effrontery to deny in Court the next day that the adjournment had been made for the production of witnesses and it has been admitted on behalf of the plaintiffs that there never was any intention to produce evidence. Pandit Sham Kishan Dar, another Pleader, aptly observed that if he had been really engaged in getting witnesses and had been prepared to produce some, he would have sent an urgent wire to the Special Judge informing him of that fact and asking for a temporary adjournment until he had such as could a; rive. The learned Judge, whether with a desire to prolong his occupancy of the temporary post which he held, or because he lacked the necessary grip of the reins to get the parties to go on with the word, to my mind, showed exceptional, and I think unnecessary, indulgence to the plaintiffs. It was open to the plaintiffs either on the 5 or the 6 or the 7 to go on with the case and produce their witnesses. It is alleged that some of the witnesses were present in Court on the 5th. It is not denied that some of them lived in a zemindari within 6 or 7 miles of the Court. I come unhesitatingly to the conclusion on these materials that on the advice of Counsel for reasons which cither do not know, or I do not consider adequate, deliberately decided to take no further steps at that stage in the prosecutor of their case. I would merely observe a introductory to what I am going to say in a moment that at the final disposal of the case they were represented by Counsel who had definite instructions to withdraw from the case and not produce evidence Both the plaintiffs, either of whom one would have expected in a case like this were necessary witnesses, voluntarily absented them selves, admittedly for purposes connected with an alternative method of disposing of the case which they preferred to the of having a trial. This brings me to the last point which has weighed with me throughout the argument, to which I see no answer, namely, what was the real disposal of the case. I accept, the view which I understand has been decided that where a patty does not personally appear, even although his Counsel originally instructed is there, if he has failed to supply his Counsel with materials or funds of, any other necessary matter for the prosecution of the suit and the Counsel states that he has no further instructions, although that situation may be drawn into the. express words used in Rule 3 of Order XVII, it ought to be treated as a default by the plaintiff for want of appearance under Rule 2 of Order XVII. The reason for this view is doubtless that Counsel no longer represents him, and in that sense Counsel is not present in the name of the plaintiff, while the plaintiff is himself absent.