1. There are two applications before the Court, one by the defendant Pulin Behary Shaw and Bijoy Kristo Shaw for an order that the Report of the Commissioner of Partition appointed herein be confirmed subject to a slight variation as to costs. The other application is an application by the plaintiff that the Report of the Commissioner may be varied or modified and be remitted for re-consideration.
2. The defendants at the outset have taken the objection that the Report cannot now be varied because it has been confirmed by the effluxion of time, and they refer to Chap. XXVI, Rule 89, which is in the following words:
An application to discharge or vary a certificate or report shall be made by motion upon notice to be given within 14 days from the date of the filing thereof or within such further time as may be obtained for that purpose but in that case the notice shall mention that it has bean given with the leave of the Court. An application for further time may be made by petition in Chambers without notice.
3. The contention on behalf of the defendants is that an application to discharge or vary a certificate or report must be made by motion within 14 days upon notice. They refer in support of their contention to two cases which have been decided in this Court on the old Rule 565, which is in the same terms as the present rule. The first case is that of Lutchmee Narain v. Byjanauth Lahia 24 C 437, decision of Mr. Justice Sale. In that case the Report was dated February 1, 1896, and was filed on July 8, 1896. On July 17, the defendant obtained three weeks' further time to file exceptions to the Report Exceptions were filed on August 10, i. e., within the extended period, but no further steps were taken till March 15. No notice of motion was given by the defendants to discharge or vary the Report.
4. The learned Judge, when the matter came before him, caused an enquiry to be made from the Registrar as to the practice which prevailed in this Court in regard to this matter, and Mr. Belchambers, the then Registrar, furnished a report which the learned Judge says shows that there has been no uniform course of practice. He then said:
As it is desirable that there should be a uniform practice, I thought it right to consult my learned colleague Mr. Justice Jenkins, and our opinion is that the procedure laid down in Rule 565 (which corresponds to our present Rule 89, Chap. XXVI) should be strictly adhered to.
5. He then says:
It is necessary that notice should be given within the time required by the rule, or such further time as the Court may allow, and that such notice should be accompanied with the grounds of exception relied on by the party objecting to the Report. In the absence of any such notice, given in the manner now indicated, the Report will be regarded as confirmed by efflucion of time.
6. The other case which has a bearing on this question is the case of Royal Insurance Co. v. Aukhoy Coomar Datt 28 C 272. The learned Chief Justice Sir Francis Maclean, in his judgment said:
To say that the filing of the Exceptions is to be taken as a compliance with the terms of E. 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 complied 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 rules, i. e., 14 days from the date of the filing of the Report or within such further time as may be obtained for that purpose.
7. The matter was there considered by three Judges and Mr. Justice Prinsep and Mr. Justice Hill agreed with the opinion of the learned Chief Justice.
8. Learned Counsel for the plaintiff points out that in both these Cases the strict wording of the rule is not complied with. He says that the rule says that notice must be given, and that in each of these cases no notice at all had been given, therefore, it cannot be said that there was any compliance with the rule. The notice which was given by him, actually on the 14th day, was a notice that on Monday, November 12, (i. e., after the Long Vacation) an application will be made for an order that the return of the Commissioner of Partition be modified. His contention is, and he said quite frankly, that provided he has given notice of motion it is immaterial when the motion be tried, and on my putting it to him that this might mean 'Take notice that on November 12, 10 years hence an application will be made', he submitted that a notice in that form would be a good compliance with the rule.
9. On the other hand it is contended that the rule must be taken to be reasonable and that the practice of the Court as shown from the two cases, Lutchmee Narain v. Byjanauth Lahia 24 C 437 and Royal Insurance Co. v. Aukhoy Coomar Dutt 28 C 272 shows that what must be done is that the motion must be brought upon notice within 14 days. Provided the notice has been given within 14 days it would appear that the actual provision in the rule has been complied with.
10. A further point has been taken on behalf of the defendant that the notice must be accompanied by grounds, and that he relies on the judgment of Mr. Justice Sale at page 439 Page of 24 C. [Ed.] of the Report, in Lutchmee harain v. Byjanautli Lahia 24 C 437 to which I have already referred, where his Lordship says:
It is necessary that notice should be given within the time required by the rule, and that such notice should be accompanied with the grounds of exceptions relied on by the party objecting to the Report.
11. His Lordship there had also said that it was very desirable that there should be a uniform practice, and he laid down that that was to be the practice of the Court. In the present instance the practice which has been laid down in interpretation of this rule has not been complied with for the grounds were not given with the notice.
12. When the matter came before me yesterday afternoon I suggested that in order that I might deal more fully with the matter were it necessary to hear the exceptions, the plaintiff should put in their (his?) grounds, but at the same time this was to be without prejudice to any contention which might be raised by the defendant as to the actual validity of the notice which was not accompanied by the grounds of exceptions relied on. I am satisfied that the defendant's contention is correct, and the practice laid down by the rules has not been complied with.
13. In the circumstances the plaintiffs motion cannot be heard.
14. The Thakurs costs will be paid out of the debutter estate.
15. With regard to the defendant's application objection has been taken by the plaintiff that the manner in which the Commissioner has dealt with the costs should be varied. He contends that the Counsel's fees should not be permitted, and that costs of those meetings which were prolonged owing to the action of certain parties, should be paid for by the parties themselves. It is very difficult for me to decide this question and I consider that the discretion which has been exercised by the Commissioner should not be interfered with. In the circumstances I confirm the order that he has made and make the following order:
There will be an order that the Report of the Commissioner of Partition appointed here be confirmed subject to the following variation, viz., that costs of the meeting of September 26, 1932, shall be treated as costs of partition and be paid out of the estate, but the costs of the meeting of September 30, 1932, shall be payable as recommended by the Commissioner.
16. There will also be an order in terms of Clauses 2 and 3 of the notice of motion.
17. Costs of the guardian ad litem of the hakur defendant shall be paid out of the debutter estate by the she bait including costs of this application.