1. This is a suit against certain Insurance Companies to recover certain sums secured on various Fire Policies.
2. On the 18th of April 1899 an order was made in the suit referring it to the Registrar to ascertain the value of the plaintiff's' gola at the date of the fire in the pleadings mentioned, and also the amount of rice then in the gola and the value thereof, with other directions.
3. The Registrar made his report on the 28th of October 1899. The report was for some reason or other not filed until the 2nd of March 1900. On the 9th of March the defendants' solicitors were informed of the filing of the report. On the 15th of March they filed certain objections to that report. They did not, with those objections, serve any notice of motion to discharge or vary the report.
4. Mr. Watkins, who acted as solicitor for the Insurance Companies at that time, states that, on the 27th of March 1900, he first became aware of the decision in the case of Lutchmee Narain v. Byjanauth Lohia (1897) I.L.R. 24 Cal. 437 to the effect that it was necessary to give notice, within the time required by Rule 565 (which is identical with the present Rule 615), of the application to vary or discharge the report; and that such notice should be accompanied with the grounds of exception relied on by the party objecting to the report.
5. That case was decided nearly three years before, and was reported in the reports for the year 1897. Mr. Watkins says he made a bona fide mistake in not giving notice under Rule 615, that, on learning of this decision, the defendants on the 28th March 1900 made an application to Mr. Justice Ameer Ali, who was then sitting as a Judge on the Original Side, asking for further time within which to apply by motion upon notice to discharge or vary the Registrar's report.
6. Mr. Justice Ameer Ali, after consideration, refused the application on the ground that it had been made too late under Rule 565. That order stands unreversed, for there was no appeal from it. It is an existing order.
7. The defendant then applied for a rule nisi against the plaintiffs to show cause why the filing of the exceptions should not be taken and deemed to be due notice of motion to discharge or vary the report, or in the alternative a rule nisi against the plaintiffs to show cause why the report should not be reopened on the ground of surprise or mistake, or such other special ground as may appear. That application came on before Mr. Justice Sale, and on the 5th of April 1900 he refused, for the reasons stated by him, which appear in his judgment at page 11 of the paper-book, to grant a rule. It was subsequently represented t him that by refusing to grant a rule the defendants might be prejudiced if they wished to take the opinion of a Court of Appeal on the point, and the learned Judge consequently allowed the rule to issue, but refused to make it absolute, and hence the present appeal.
8. In the view I take of the case it is unnecessary to discuss the question whether an appeal does or does not lie. The rule divides itself into two branches, and I will deal with the first branch, that is, why the filing of the exceptions should not be taken and deemed to be due notice under Rule 615 (which is Rule 565 of the old Rules).
9. This argument is quite untenable; to say that the filing of the exceptions is to be taken as a compliance with the terms of Rule 615 is an absurdity. Such a result would amount to an absolute abrogation of the rule. The rule prescribes what is to be done, and that rule must be com plied with, and if a party desires to discharge or vary a report he must adopt the procedure laid down by the rule, and he must apply by motion upon notice to be given within the time prescribed by the rule that is fourteen days from the date of the filing of the report, or within such further time as may be obtained for that purpose. Further time in this case has been refused, and there was no appeal from that refusal. It is clear that, in its first branch, the present application must fail.
10. I pass to the second branch, that is, why the report should not be reopened on the 'special ground' appearing on the facts stated in the affidavit of Mr. Watkins. It is said the case falls within Rule 617, which runs thus:
A certificate or report, after it has become binding, will not be reopened, except on the ground of fraud, surprise or mistake, or such other special ground as may be allowed by the Court. For this purpose an application may be made to the Court for a rule nisi, which may afterwards be made absolute, on such terms and conditions as to costs and otherwise as to the Court shall seem fit.
11. I think this contention is equally hopeless. What is the special ground? The special ground alleged is that Mr. Watkins made a mistake in not following the course of procedure laid down by Rule 615. Assuming that the report has become binding, the words 'fraud, surprise or mistake, or other special ground' refer, in my opinion, to fraud, surprise or mistake, or some other special ground incident to, or connected with, or which has resulted in the making of, the certificate or report itself; and not to something which has occurred quite outside and independent of the certificate or report. The mistake in this case might have been rectified by the Court allowing further time to make the necessary motion under Rule 615, which the Court, in its discretion, did not think fit to do, but I am wholly unable to accede to the view that a mistake in not complying with the procedure laid down in Rule 615 is a special ground for reopening the report under Rule 617.
12. It is said that the case is a hard one upon the Insurance Companies, but it is impossible to enter into any such considerations.
13. The appeal fails and must be dismissed with costs.
14. I am of the same opinion.
15. I am also of the same opinion.