1. In this matter a summons was taken out by Grees Chunder Dass, the defendant in the first mentioned suit and the plaintiff in the second and third mentioned suits, for an order that the Assistant Registrar may be at liberty to refer to the statement of facts filed by him, and that he may be allowed to appear and support the statement of facts filed by him as in an ordinary defended reference.
2. It appears that a decree was made so far back as the 26th of February 1890, directing an inquiry as to the properties belonging to the defendants jointly, an account of the joint estate and joint and separate liabilities as between the defendants, and an account of the sums spent by the defendants respectively, and whether such sums ought to be debited against the defendants jointly or against the individual making the expenditure. On the 10th May 1890, Wilson, J., ordered the defendants to file a statement of facts. Negotiations took place for the compromise of the suits, and no steps having been taken in prosecution of the same, on the 23rd March 1892 the suit was struck out from the General Reference list as having been abandoned under Rule 537.
3. On the 27th May 1893 the case was reinstated on the General Reference list on the application of the two defendants who are now resisting this application.
4. There were no proceedings taken after the reinstatement, and again the suit was under the rule deemed to be abandoned.
5. On the 18th December 1897 another application was made to restore the case to the list, and an order was made to reinstate it, and by that order Grees Chunder Dass was ordered to file a statement of facts and accounts before the 28th February 1898, and in default of his doing so it was directed that the reference was to be proceeded with against him ex parte. Negotiations for a compromise were again opened, and the order of the 18th of December 1897 was not complied with. On the 4th February 1899 an application was again made to restore the case to the list of references, and Sale, J., ordered that the reference directed by the decree of 1890 be proceeded with, and the defendant Grees Chunder Dass was directed within one month to file his statement of facts, and in default the reference was to proceed ex parte as against him. The statement of facts was not filed within the month, but was handed to Babu Grees Chunder Banerjee, the Second Assistant Registrar of the Court, seven days after the expiration of the month, and Grees Chunder Dass asked that the Registrar should proceed with the reference in the ordinary way.
6. The two defendants, who are opposing the present application, objected to this, and urged that the reference must, under Mr. Justice Sale's order, be proceeded with ex parte, as against Grees Chunder Dass. The Assistant Registrar then sent the matter up to the Court for directions.
7. Mr. Pugh for the applicants submits that the application is one which his client is entitled to have granted ex debito justifice, and that the only question for the Court relates to the costs of the motion.
8. Mr. Dunne has offered strenuous opposition to the motion, and he submits that the order of Mr. Justice Sale has determined the matter, and that I am bound by that order and cannot review it; that as the statement of facts was not filed in time the inquiries directed by the decree must proceed ex parte, that is, that the applicant cannot be allowed to use the statement of facts filed by him or make any substantive case before the Assistant Registrar or be represented by an attorney on the inquiry.
9. The order of Mr. Justice Sale directs that the reference directed by the decree be taken up and proceeded with by the Second Assistant Registrar of the Court at the expiration of one month from the date of the order, and orders that Grees Chunder Dass do, within the time aforesaid, file his statement of facts and accounts as directed by the said order, and that in default thereof the said reference be proceeded with ex parte as against him. Mr. Dunne contended that the original reference directed by the decree of 1890 had been abandoned, and that the order of Mr. Justice Sale amounted to a new reference. This does not appear to me to be so. Rule 537 says: 'If default be made in complying with Rule 159, or if at any stage of a reference no steps shall be taken to prosecute it for thirty days, any party may apply, by summons, at Chambers, that the suit be dismissed or discontinued for want of prosecution, and such order may be made thereon as to costs or otherwise as to the Judge shall seem fit. If no such application be made, the suit shall, at the end of fourteen days from the time of such default, or of such thirty days, be struck out of the General Reference list, and be deemed to have been abandoned.' Under this rule the suit is deemed to be abandoned, not the reference. Mr. Dunne says it is the reference which must be deemed to have been abandoned and not the suit--and that Mr Justice Sale's order was a new order of reference and is binding upon me.
10. I think that is not the proper construction to be placed on the learned Judge's order. Rule 537 merely provides that the suit shall be deemed to have been abandoned if proceedings are not taken in time, but an application can be made to revive it, and, if it is revived, it is revived as a suit in which a decree has been made directing that the applicant shall file a statement of facts and accounts.
11. If the order of Mr. Justice Sale is interpreted as an order that the applicant shall not file a statement of facts unless he does so within a limited time, it appears to me that this order would be a modification and over-ruling of the decree in the suit which directs that he shall account. The applicant is bound to account, and so long as he fails to do so he is in contempt and liable, I would say, to attachment.
12. Can an order of this Court preclude him from purging his contempt? I think not. I understand Mr. Justice Sale's order to amount to nothing more than this, that if the applicant fail to file his statement within the time limited by the order the reference shall notwithstanding proceed. If no statement is filed by the applicant so much the worse for him, as he cannot raise any objection to the accounts filed by the opposite party inasmuch as he had not filed any verified statement. (Rule 522.)
13. I was referred to two unreported cases recently decided by the Chief Justice of this Court where he laid down that parties must follow the rules of Court as to the time within which steps should be taken. Moti Chand v. Fool Chand and Radhabullav Dass v. Bholanath Dass. Those cases are distinguishable from the present. There the application was for an extension of time for appealing after judgment had been pronounced when the opposite party had obtained a vested interest in the judgment; here it is different; nothing has been decided between the parties. The questions between them are still undecided. A party cannot be shut out from filing a statement when by doing so he is only purging the contempt he was in not having done so before. Each party has a right to have the dispute determined on the merits, and the Court should do everything to favour the fair trial of the issues between the parties. The application is, I think, a matter ex debito justifice.
14. I have not gone into any of the matters contained in the affidavits dealing with the delays which have taken place or into the charges which have been made by the applicant. I think that these charges ought not to have been made. If they had not been made, Mr. Dunne's client would not, I think, have been justified in resisting this application. Consequently, though I hold that the statement of facts may be filed and the reference proceeded with in the usual course, I direct that the applicant shall pay the costs of this application.