1. This is an appeal from a decree of Sarkar J., made in favour of the plaintiff in an undefended suit.
2. On September 4, 1947 the plaintiff filed a suit for recovery of Rs. 3410-9-3 from the respondents being the arrears of payments under a hire-purchase agreement. On November 14, 1947 the defendant appellant filed a written statement and nothing more was done for some considerable time. On April 8, 1949 the plaintiff-respondents made an application to the Master to strike out the defence for failure to file an affidavit of documents. On April .11, 1949 the learned Master ordered the defendant to file an affidavit of documents on or before April 26 and in default he directed that defence of the defendant-appellant be struck out and the suit transferred to the undefended list. On July 18, notice was issued under Ch. 10, Rule 35 directing the suit to toe set down in the special list to be dealt with for want of prosecution and on July 26, 1950 the suit was actually dismissed for want of prosecution. But an application was made and the learned Judge acceded to that application and restored the suit and directed it to appear on the next special list. On August 2, 1950 the matter came before Sarkar J. who directed that the case should appear in the undefended list which it did and was decreed an favour of the plaintiffs.
3. This was a commercial cause and this Court has rules specially dealing with such causes.
4. Mr. Dutt on behalf of the appellant has contended that the order of the learned Master when he directed that in default of filing the affidavit of documents the defence should. be struck out and the case transferred to the undefended list was wholly without jurisdiction. He has urged that such an order cannot be made on the first application to the Court for an order directing an affidavit of documents and such an order could only be made for failure to comply with the terms of an earlier order. Reliance is placed on the terms of Order 11, Rule 21, Civil P. C., which is in these terms:
'Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents he shall if a plaintiff be liable to have his suit dismissed for want of prosecution, and, if a defendant to have his defence if any struck out, and to be placed in the same position as if he had not defended and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made accordingly.'
5. Mr. Dutt has pointed out that an order under Order 11, Rule 21 cannot be made unless there has been a previous order directing discovery. He has urged that the learned Master made the order impugned when the first application was made to him and this he could not do.
6. Mr. Hazra on behalf of the respondents contended that even if this contention was right, the order 'of the learned Master was appealable to the learned Judge in Chambers and as there was no appeal the order right or wrong became final and could not be questioned' now. Reliance was placed upon a Bench decision of this Court in 'JAGANNATH MOTILAL v. BALA PROSAD', 50 Cal. L. J. 397. In that case an order was made on February 14, 1923 ordering the plaintiff to file a further and better affidavit within ten days from the date and in default the suit would stand dismissed. This order was not complied with, but the plaintiff filed his affidavit on March 13, 1923. The defendant applied to the Court on May 14, 1923 for an order that the further and better affidavit of documents improperly filed on March 13, 1923 be taken off the file and that the suit be struck off. On May 14, 1923, the Court passed an order:
'It is ordered that the further and' better affidavit of documents filed by the plaintiff firm after the expiration of the time grant-d by the said order be taken off the file and it is further ordered that this suit be and the same is hereby dismissed for want of prosecution'.
Against this last-mentioned order, the plaintiff appealed on June 4, 1923. The Bench held that the order of February 14, 1923 became on February 25 a final order dismissing the suit. It was open to the plaintiff to appeal from that order or to make an application upon proper materials to review the judgment by way of extending the time for the filing of the affidavit. The appeal which was filed on June 4 and was limited to the order of May 14, so far as the order of February 14 was concerned, was out of time even if it could be considered as an appeal against the order of February 14.
7. Mr. Hazra's contention is that this case fully supports his argument that the order of the learned Master whether it was right or wrong became final and cannot be questioned now.
8. The cases are distinguishable because in the Bench decision the suit had actually been dismissed and when the time for filing the affidavit had expired the order became really a decree dismissing the suit. That should have been appealed from and when that became final it could not be questioned later.
9. It may be contended that some of the reasons given in this case cannot be supported. But I do not think that it is necessary to deal with the matter because the case can be disposed of on other grounds.
10. Mr. Dutt contended that he was in any event not bound to appeal from the Master'. order and that he could take this point that the Master's order was wrong in the appeal from the decree. He has relied upon a well-known Full Bench decision of the Allahabad High Court in 'SHEO NATH SINGH v. RAM DIN SINGH', 18 All. 19, in which it was held that an order made under the Code of Civil Procedure from which an appeal is given under Section 588 of that Code may be questioned under Section 591 in an appeal from the decree in the suit if the ground of objection is stated in the memorandum of Appeal, although no appeal from such order had been preferred under Section 583.
11. Mr. Dutt's contention is that though the Master's order might be appealable ha could take the point on an appeal from the decree though he did not file an appeal from the Master's order.
12. We shall assume that this point can be taken by Mr. Dutt in the appeal from the decree. But even so, there is no force in the contention.
13. As I have said, this cause was a commercial cause as defined by the Rules of this Court and by the Rules there are endorsed on the writ of summons certain directions of the Court. There is endorsed in the writ these words:
'The defendant is required by the Court to file his written statement within 35 days from the service upon him of this writ and also to file his or their respective affidavits of documents within 14 days from the filing of his or their written statements'.
14. This endorsement is made pursuant to the Rules of this Court contained in Ch. 12. Rule 21 of that Chapter provides:
'In all commercial suits affidavits of documents shall be filed by all the parties with in 14 days from the filing of their respective written statements and in the case of the plaintiff from the filing of the first written statement'.
15. It is clear therefore that when the writ of summons is served on the defendant he is by the terms of it directed by the Court to file an affidavit, of documents within a certain period. If he fails to do so the plaintiff may apply to the Court and it seems to me that if the plaintiff does apply to the Court it is an application clearly within the terms of Order 11, Rule 21. It is an application made where a party has failed to comply with an order for discovery or inspection of documents.
16. Mr. Dutt contended that this endorsement on the writ of summons was not an order. The Rules provide that an affidavit of documents must be filed within ten days of filing the written statement and the endorsement on the writ carries out the Rules of the Court. The writ is issued in the name of the Court and I think that the endorsement is an 'order' as that term is used in Order 11, Rule 21, Civil P. C. If the terms of the direction or order endorsed on the writ be not complied with, an application can be made under Order 11, Rule 21 and an order may be made under that Rule.
17. Such an order was made and I think rightly made.
18. The power to make such orders is given to the learned Master by R 12 of Ch. 6 of the Rules of this Court. Rule 11, Ch. 6 sets out the matters which can be disposed of in Chambers by a learned Judge of this Court and in sub-r. 12 it is stated that applications for discovery and production of documents may be so dealt with. Rule 12 of Ch. 6 provides that the Registrar or Master may transact all such business and exercise all such authority and jurisdiction as under these rules may be transacted or exercised by a Judge in Chambers except where otherwise prescribed for in respect of certain proceedings. It is conceded that jn commercial matters the Master can exercise the powers of a learned Judge in Chambers. That being so, the Master could make appropriate orders relating to affidavits of documents.
19. Mr. Dutt however contended that the learned Master could not in any event have power to make the order which he made in this case, namely that in default the, defence would be struck out. He relied upon a single Judge decision of this Court in 'KAMALAKHY DOSSEE v. JOTINDRA MOHUN', 6 Cal L. J. 374. In that case, the Registrar had made a peremptory order that the plaintiff should file an affidavit of documents within a certain time and in default the suit would stand dismissed for want of prosecution. It was held that the effect of the Registrar's order was to fix a date peremptorily within which the affidavit must be filed and that in default the suit was liable to be dismissed on an application made to the Court. It was further held that if the Rule giving the Registrar such powers was intended to give the Registrar powers to pass a decree, the Rule was ultra vires as the Court alone could pass an order dismissing a suit and an appeal would lie from such an order.
20. I do not think it is necessary to discuss this case because the point decided by Wood roffe J., in that case does not arise in the case before us. Here the Master made no order dismissing a suit. It may well be that the Rule is ultra vires if- it gave the Master power to dismiss a suit and that matter I need not discuss. All that the learned Master did here was to make an order striking out the defence. The suit was actually placed on the undefended list of a learned Judge and decreed by a learned Judge and therefore the point made by Woodroffe J. that a learned Master or Registrar could not make a decree does not arise.
21. It appears to me clear that a learned Judge in Chambers could make an order striking out a defence in default of filing an affidavit of documents, and as I have said by Rule 12 of Ch. 6 the Master or the learned Registrar has the same powers as a Judge in Chambers. It appears to me that the order in this case made by the learned Master could properly be made and was for the reasons which I have given an order rightly made and made with jurisdiction.
22. It follows therefore that even if it is open to the appellant to question the order of the Master in this appeal from' the decree, the appeal must nevertheless fail. We are bound to hold on the Rules of this Court that the order made by the learned Master was an order within the purview of Order 11, Rule 21 and further that he had power under the Rules of this Court to strike out the defence and direct that the suit be transferred from the list of defended suits to the list of undefended suits. As I have said the suit eventually appeared on the special list and it was later put back in the undefended list by an order of Sarkar J., and then dealt with by him as such.
23. For the reasons which J have given, I see no force in this appeal and I would dismiss it with costs.
24. I agree.