SHRI CHAND DAGA Vs. SOHANLAL DAGA

JUDGEMENT

(1.) This is an appeal from the dismissal by Gentle J., on 30 June 1942 of an application by the plaintiff Shree Chand Daga to have the decree dismissing his suit on 19 May 1942, set aside. The facts which led up to these two dismissals are as follows: The plaintiff Shree Chand Daga claims to be the owner of, or beneficially interested in, certain ornaments and jewellery which he says are worth about rupees six lacs. He says that one Motilal Kothari, his maternal grandfather, and one Pani Bai held the said ornaments and jewellery in trust for him; that in December 1932, the two trustees Motilal and Pani Bai made over the jewellery to defendants 1, 2, 3 and 4 for the purpose of effecting a composition between Motilal and his creditors, and that the said defendants agreed to return the jewellery if no composition took place. He alleges that no composition in fact took place and the ornaments and jewellery were not used for the purpose for which they were made over; the jewellery not having been returned defendants 1, 2, 3 and 4 held it in trust for him. He alleges that he was a minor at the time and that he attained majority on 23 May 1937. In January 1937, the applicant, the plaintiff alleges that his father on his behalf served defendants 1, 2, 8 and 4 with a notice demanding the return of the ornaments and jewellery whereupon defendant 1 for the purpose of harassing him brought a suit for defamation in this Court which was dismissed on 11 April 1940. He goes on to allege that in order to recover the jewellery he began criminal proceedings in the Court at Bhandara in the Central Provinces against defendants 1, 2, 3 and 4. The defendants were discharged from those proceedings when the plaintiff took the matter up to the Nagpur High Court and that Court held that it was a civil dispute. Thereupon, on 12 May 1940, the plaintiff applicant began these proceedings against defendants 1, 2, 3 and 4 together with defendant 5 Pani Bai and defendant 6, the Official Assignee of Calcutta, being the assignee of the estate of Motilal, for a declaration that he is entitled to the jewellery and for a decree for recovery of the same or its value, rupees six lacs. The defendants entered appearance and denied his claim.

(2.) There were various interlocutory proceedings. The plaintiff asked leave to administer interrogatories to defendants 1, 2, 3 and 4. Panckridge J. on 26 August 1941, adjourned the application till the hearing of the suit. On 18 December 1941, the plaintiff says, the suit came on the special list by mistake, but that the mistake was corrected and the suit went into the prospective list of 20 December 1941. The plaintiff says that he was diligent, but that he had difficulty in getting some of his witnesses, who lived either in the Central Provinces or in Rajputana, to give evidence. He thereupon was advised to apply for their examination on commission. The application for the issue of commission was sent to the plaintiff at Nagpur on 3 February 1942, where the plaintiff was then residing. On 4 February 1942, the suit appeared in the Warning List of Panckridge J., when the plaintiff's counsel applied to have a special date fixed for the hearing after the commission intended to be taken out had been executed. Panekridge J. thereupon, placed the suit on the Peremptory List for directions in the presence of the parties.

(3.) On 6 February 1942, the matter came before Panckridge J. but in view of the fact that he was going shortly to take up other work the suit was put back into the Warning List. On 16 February 1942, the plaintiff took out summons for an application before Sen J. for the issue of a commission to examine his witnesses. On 4 March 1942, Sen J. made an order for the issue of the commission subject to the plaintiff furnishing security for Rs. 4000 with liberty to the registrar to take Calcutta properties as security within a fortnight. The commission was made returnable within two months after the security was furnished. Prom 11 February 1942, the suit was in the Warning List and it was there till 4 March 1942 when it went out of that List. The plaintiff says that he found it impossible to arrange for security of any Calcutta property and he sent to his attorney in Calcutta a security bond and title deeds of his Nagpur properties valued at over Rs. 10,000 in order that the said properties might be accepted as security. The attorney tendered the security, but Sen J. refused to give the registrar liberty to accept it. He also refused to grant an extension of time to furnish the security.