GULRAJ SHROFF Vs. KANIRAM SUREKA

JUDGEMENT

(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 19 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, Ban-warilal 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 14 July. On 28 July Panckridge J., ordered the plaintiffs to supply particulars within a fortnight and to file a written statement within a fortnight thereafter. On 29 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 17 August and the time for filing the affidavit of documents expired on 23 August. On 30 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, Rule 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 17 September, but failed to give inspection forthwith as he had been directed so to do. On 21 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 23 Messrs. Fox and Mandal replied to the effect that they had 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. On 30 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.

(3.) 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 6 November for inspection, but that the defendants attorneys did not appear and that they made further appointment for 8 November but the defendants were absent. They say also that the defendants 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 9 September, a clerk in the employ of Messrs. Fox & Mandal said that the adult plaintiff left for pilgrimage on or about 27 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 30 August could not be communicated to him.