1. This is an appeal by the plaintiff's from an order made by my learned brother Mr. Justice Greaves on the 14th of May 1923.
2. The order was: 'It is ordered that the further and better affidavit of documents filed by the plaintiff firm after the expiration of the time granted 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.'
3. The facts which it is necessary for me to mention for the purposes of my judgment are as follows:
On the 2nd of August 1921, an order was made that the plaintiffs in this suit should file an affidavit of documents within ten days, such affidavit to be made by their gomasta. The affidavit was not filed within ten days, and it was not until the 3rd of January 1922 that the plaintiffs filed the affidavit sworn by the plaintiffs gomasta. On the 8th of February 1923, the defendants made an application for a further and better affidavit of documents by the plaintiffs and on the 14th of February the learned Judge made the following order:It is ordered that within ten days from the date hereof the plaintiff firm do file a further and better affidavit to be made by all their members accounting for the various letters received by them from the defendant firm and specifically disclosing the entries in their account-books showing the names of the sellers of the goods referred to in the said petition, the dates on which such goods were purchased and the prices thereof. And it is further ordered that in default of the plaintiff firm filing such affidavit within the time aforesaid this suit do stand dismissed with costs on scale No. 2.
4. The order was not complied with. The further and better affidavit was not filed within the time specified by the order, namely, ten days, and no affidavit of documents, made by all the members of the firm, was ever filed. But on the 13th of March 1923 a further affidavit was filed: that was sworn by Motilal, one of the members of the plaintiff firm, on the 16th of March.
5. Certain correspondence took place which is to be found at pages 4, 5, 6, and 7 of the paper-book. On the 14th of March 1923 the plaintiff's Solicitors wrote as follows:
Please note that we have filed our clients further affidavit of documents.
It is to be noted that that was written a day after the affidavit was filed.
6. Then the defendant's Attorneys wrote as follows:
Yours of yesterday received by us today.'
'Please let us know when you have filed your clients' further affidavit of documents.
7. To that no answer was sent and apparently nothing was done by the defendants until the 24th of April when the defendant's Attorneys wrote to the Registrar with reference to this matter, as follows. After referring to the order of the 14th of February 1923 they proceeded:
The plaintiff firm did not file any affidavit of documents within that time. On the 15th March last we received a letter from Messrs. Pugh & Co., the Attorneys for the plaintiff firm, informing us that the further and better affidavit of documents has been filed to which we sent an immediate reply asking them to let us know as to when they filed the affidavit of documents to which no reply has yet been received. From your office we came to learn and subsequently we saw that the affidavit has been filed and on the back of the said affidavit it is noted as follows. Pursuant to order ' of 14th February 1923 out of time. 'no steps taken ' Pugh & Co.12-3-23.'Requisition given G. Sanyal12-3-23.''out of timeno steps taken13-3-23.'(Then comes the final note)'File 13-3-23.'
8. That last note, as I understand was initialled by the Master.
9. The letter then proceeded:
We do not understand, how the said affidavit can be filed on the 13th March last when the order directs that it is to be filed within 10 days from the 14th and in default the suit do stand dismissed with costs and we do not know how your office received that affidavit, as the order of the 14th of February last has been drawn up, completed, served on Messrs. Pugh & Co. and then filed in your office.
Under the circumstances we shall be much obliged if you will kindly take the affidavit off the file and place the suit in the special list of suits.
10. The reply of the Registrar was as follows:
With reference to your letter of the 24th instant asking that a further affidavit of document filed by Messrs. Pugh & Co. on behalf of the plaintiff firm should be taken off the file as having been filed after the expiry of the time granted by the peremptory order of the 14th February last. I write to inform you that owing to the endorsement made by Messrs. Pugh & Co., that no steps have been taken and made on the 12th March and owing to the fact that the order itself was not signed until the 16th March and not filed till the 19th March, the ledger-keeper certified that the affidavit was out of time and that no steps have been taken, and hence the order was given by the Master on the 30th that the affidavit be filed. The affidavit has obviously been wrongly filed, but I am unable to take it off the file or to place the case in the special list of suits, unless Messrs. Pugh & Co. consent, or unless you obtain an order for that purpose.
11. Having received that letter from the Registrar the defendants gave notice of an application on the 5th of May as follows:
Take notice that an application will be made before the Sitting Judge in Chambers on the 8th May 1923 on the part of the defendant firm above-named for an order that the further and better affidavit of documents improperly filed on the 13th March 1923 be taken off the file and this suit be struck out.
12. This matter came before the learned Judge on the 14th of May be bad before him an affidavit sworn by the gomasta of the plaintiff firm in which he set out that none of the partners of the plaintiff firm was in Calcutta but that Motilal who had sworn the affidavit was in the Native State of Alwar and he had sworn it in Alwar and he had sent it down to Calcutta, where it was received on the 12th March and filed on the 13th March, alleging that there bad been no negligence; and then it was further alleged that, inasmuch as no steps had been taken by the defendant firm, the plaintiff firm was entitled to file the said affidavit.
13. The learned Judge, on the 14th of May 1923, made the order, which I have already read, and this appeal has been filed against that order of the 14th of May.
14. It was pointed out during the course of the argument that the second order of the learned Judge, which he made at the instance of the defendants, was really a superfluous order, inasmuch as the first order provided that if the affidavit were not filed within the time specified in the order of 14th February the suit should stand dismissed with costs and inasmuch as the affidavit was not filed within the time specified the suit was in fact dismissed; in other words, that the order of the 14th of February became, on the 25th of February, a final order dismissing the suit.
15. It was argued by the learned Counsel on behalf of the plaintiffs that the order of the 14th of February was no more than an interlocutory order; and that, inasmuch as the plaintiffs had appealed from the final order of the 5th of May, the plaintiffs were entitled to challenge the propriety of the order of the 14th of February 1923, as well as the order of the 5th May.
16. In my judgment, that argument should not be accepted. In my opinion the order of the 14th of February became, on the 25th February, a final order dismissing the suit. It was open to the plaintiffs to appeal from that order if they so desired, and I suppose it was also open to them to make an application upon proper materials to the learned Judge to review his judgment by way of extending the time for the filing of the affidavit. The appeal with which we are now dealing, was filed on the 4th of June, 1923 and was limited to the order of the 14th May: and, therefore, as far as the order of the 14th of February was concerned, the appeal was long out of time even if it could be considered as an appeal against the order of the 14th of February.
17. The second point which the learned Counsel for the plaintiffs urged was that the learned Judge had no jurisdiction to make the order of the 14th of February in the form in which it stands, and that it must be regarded as an order which was made entirely without jurisdiction, and, therefore, is a nullity.
18. The order was made in pursuance of the provisions of Order 11, Rule 21, Civil Procedure Code, which runs as follows:- ' 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 bad 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.'
19. There was no appeal by the plaintiff's from the order of the 14th February and in my judgment it is not necessary for the purpose of the disposal of this case to decide whether the learned Judge should have made the order of the 14th of February, 1923 in the form in which it stands.
20. At present I am not prepared to hold that it was made without jurisdiction. It may be that the learned Judge was satisfied on the 14th of February 1923 that the plaintiffs were endeavouring to avoid giving a fair and proper discovery of documents. I am inclined to think that he must have been of that opinion first because of the peremptory nature of the order that the affidavit of documents should be made within ten days, secondly because he directed that all the members of the plaintiff firm should make an affidavit and, thirdly because of the matters which he specified that the plaintiff firm should disclose. I desire to make it clear, however, that I do not decide the question in this case whether the learned Judge had jurisdiction to make the order of the 14th of February in the form in which it stands.
21. At the same time, I think it is desirable to add that in my judgment, the terms of Order 11, Rule 21 contemplate two orders being made. First, an order for the answer to the interrogatories or for the discovery or inspection of documents, as the case may be, within a specified time and, secondly, upon the failure to comply with such an order, a further order dismissing the suit. This is in accordance with the English practice, as to which reference may be made to Daniel's Chancery Forms (sixth Edition) p. 1027, the form being No. 1932 which order is made in pursuance of the English Order 31, Rule 21, which is similar to Order 11, Rule 21 in all material respects.
22. It is desirable, in my judgment, that this course should ordinarily be followed, and it should be noted that an order dismissing the suit should not be made unless the Court is satisfied that the plaintiff is endeavouring to avoid giving a fair and proper discovery. It must, therefore, be assumed that, when the learned Judge made the second order, namely, that of the 5th May 1923, the learned Judge was satisfied that the plaintiffs, by not conforming to the order which he had made on the 14th of February were endeavouring to avoid giving a fair and proper discovery. That being so, in my judgment the learned Judge had jurisdiction to dismiss the suit, and, having regard to the facts of the case, I am not prepared to say that the learned Judge was wrong in the exercise of his discretion in dismissing the suit.
23. The last point which the learned Counsel for the plaintiffs urged was that this Court should exorcise the jurisdiction which is given under Section 5 of the Limitation Act, and expend the time for appealing from the order of the 14th February 1923. In order that the provisions of that section should be available, it would be necessary for the plaintiffs to show that they had sufficient cause for not preferring the appeal within the time specified. I cannot see any grounds which would bring the case within the scope of that section. The terms of the order of the 14th of February were perfectly plain and, I do not find that the defendants did anything to mislead the plaintiffs. As far as the Court is concerned, it is true that the Master directed the further affidavit to be filed; but it has been explained by the Registrar that that would not have been done but for the endorsement which was put on the affidavit by the Attorneys acting for the plaintiffs.
24. Consequently in my judgment, for the reasons which I have mentioned, this appeal must be dismissed with coats.
25. I agree.