I have already pointed out that the plaintiff did not make any attempt to establish the facts set out in the affidavit filed in support of the application for condonation of the delay, by producing the relevant documents. In the absence of such documents, the Master could not have assumed that the delay was due to the inaction of the counsel on record. There is no presumption that just because an official of a Department of the Central Government files an affidavit deposing to certain facts, which are not known to him personally the affidavit is true. The Master should have called for the production of the relevant records before condoning the delay.
Print Page
Madras High Court
Union Of India vs M/S. Cavalier Shipping Company, ... on 2 June, 1989
Equivalent citations: AIR 1990 Mad 312
Bench: Srinivasan
1. This is a case in which a shockingly inordinate delay of seventeen years and odd has been condoned by the Master without any notice to the defendants. No doubt. Rules do not insist upon notice being given to the defendants in the matter of condonation of delay in re-presentation. There is a judgment of this Court on the appellate side that in matters of condonation of delay in re-presentation, no notice is required to the respondent. But, that rule cannot be applied automatically as a rule of thumb without any reference to the quantum of delay in the particular case.
2. This suit was presented on 14th July, 1967. The prayer in the suit is for recovery of a sum of Rs. 1,35,602.77. The claim related to the consignment of cargo discharged in Madras Port during June, July, 1966. The plaint was returned for rectification of certain defects on 18-7-1967. It was re-presented only on 17-10-1984 with an application for condonation of delay.
3. The affidavit in support of the application for condonation of delay was filed by the Deputy Direct or (Food) of the office of the Regional Director (Food), Southern Region, Madras-1. The deponent of the affidavit did not know the facts personally. He got the facts stated in the affidavit from the records available in the office. According to the affidavit, the case was in charge of Mr. C. Rangasami Iyengar who was the junior Advocate on record and that the return of the plaint was taken by him.
4. The relevant portion in paragraph 3 of the affidavit reads as follows :
".... The same was got back by the said Junior Counsel and he has not represented the same. In this behalf this office has addressed various letters to the counsels to know the progress of the said suit. It was as I understand, that our office assistants also have personally contacted the said Junior Counsel to know about the progress of the suit. He seems to have been informed that the suit will be represented complying with the defects pointed out by the office and shortly thereafter the suit would be numbered.
4-A. Now I understand that the said plaint was not represented at all by the counsel. The said Junior Counsel. Thiru C. Rangaswami Iyengar, later became ill and he has not attended Court and there were changes of the Central Government Standing Counsels too. Our attempts to contact the said Thiru C. Rangaswami lyengar, proved futile and later it w as understood that he fell ill and admitted in some hospital. The particulars of which was not known to this office for a long time. Virtually all the suits of this department was in charge of the said counsel and the case papers were also with him. He has not chosen to return the same to our office nor to the subsequent counsel appointed. We addressed various letters to him, but we received no reply. Then some time last year we came to know that he settled at West Mambalam, with his son and he is also bed-ridden suffering from Cancer. Both this office and the Branch Secretarial. Ministry of Law at Madras. addressed letters to him directing him to handover the cause papers to the present counsel with all particulars to further prosecute the matters. As no reply was received from him, our office assistant went to his residence and found him ailing and that he was serious and even now he is unable to move about or able to sit. Then it was suggested to him to arrange the cause papers through his clerk to enable us to get back the same from him.
5. Significantly no supporting affidavit was filed by the clerk of the said Junior Counsel Thiru C. Rangaswami lyengar. even though reference was made to the role played by the clerk, in the affidavit of the departmental Officer. Nor was any attempt made to get any written statement, memo or affidavit from the said Thiru C. Rangaswami Iyengar. The correspondence said to have been effected between the officials of the department and the Junior Counsel was not produced before Court. No affidavits were obtained from the office assistants who are said to have personally contacted the Junior Counsel and enquired about the progress of the suit. In spite of the non-production of the aforesaid documents, the Master condoned the delay on 6-11-1984 with the observation that 'the delay is due to the inaction of the then counsel on record'.
6. Thereafter the plaint was numbered on 15-12-1984 and summons were issued to the defendants in January, 1985. The defendants have taken out the application (A. No. 193 of 1986) for dismissing the suit, after discovering that the inordinate delay of over seventeen years was condoned by the Master without notice to them. The validity of the order of the Master condoning the delay is challenged by the defendants, though not by way of appeal or by application to set aside the same, but by way of this application to dismiss the suit. As the defendants did not have any notice in the application for condonation of delay, they are certainly entitled to challenge the validity of the order in this application.
7. I have already pointed out that the plaintiff did not make any attempt to establish the facts set out in the affidavit filed in support of the application for condonation of the delay, by producing the relevant documents. In the absence of such documents, the Master could not have assumed that the delay was due to the inaction of the counsel on record. There is no presumption that just because an official of a Department of the Central Government files an affidavit deposing to certain facts, which are not known to him personally the affidavit is true. The Master should have called for the production of the relevant records before condoning the delay.
8. Order 14, Rule 10(i) of the Original Side Rules prescribes that applications for admission and rejection of plaints and applications for excusing delay in representation of pleadings beyond one month, shall be made to the Master. Impliedly the Rule prescribes that the period for representation of pleading is one month normally. If the period exceeds one month, then the delay should be got condoned by an application to the Master.
9. In view of the inordinate delay in this matter, the Master is was not right in condoning the delay without ordering notice to the defendant.
10. The question of dismissing proceedings on the ground of inordinate delay or non-prosecution has been considered by English Courts. In The 'Mollymawk'. (1974) 1 Lloyd's Law Rep 32, Justic Brand on held that in order to succeed in an application for striking out the proceedings on the ground of delay, the defendants should show (a) that there had been an inordinate delay by the plaintiffs in prosecuting the claim: (b) that such a delay was inexcusable : and (c) that the defendants would, or were likely to be seriously prejudiced by the delay. Though the learned Judge in that case found that the delay of over four years was inordinate, he held on the facts that it was not proved that the defendants were prejudiced by the delay so as to make a fair trial impossible. On that ground, he refused to strike off the proceedings.
11. A similar matter was considered by Court of Appeal in another case, namely, Sweeney v. Sir Robert Mc Alpine, (1974) 1 Lloyd's Law Rep 128. Lord Denning, who delivered the leading judgment in that case. observed as follows:
".... In such cases as we have often said, the Court does not look merely at the delay since the writ. It looks at the delay throughout from the date of the accident, going on to the date of the writ, and then the delay in failing to comply with the times prescribed by the rules of Court. The Court enquires whether the total delay has been such that a fair trial between these parties cannot now be had. The Court will in a proper case dismiss the case for want of prosecution, if the total delay of the plaintiff was inexcusable and inordinate and such as to be likely seriously to prejudice the defendant."
The Court of Appeal expiressed itself on similar terms in Karr v. National Carriers, (1974) 1 Lloyd Law Rep 365. In that case, it was held that the delay was quite shocking and inexcusable. It was observed :
"In the light of those observations, and having regard to the quite shocking delay which has occured in this case delay in regard to which it is right to say that the defendants and the third party have also placed a part we take the view that this Application for relief ought no to be granted. The Court accordingly dismissed the Application."
12. In the present case, it is stated in the affidavit filed by the manager of the second defendant that the important papers like charter Party. Bill of Lading and other documents were destroyed long ago and the second defendant is not aware whether the first defendant is carrying on business or not Hence, it is clear that it is impossible to have a fair trial in this proceedings. The defendants will be put to irreparable hardship and serious prejudice if trial goes on.
13. In the circumstances, the application of the defendants to dismiss the suit should be accepted. The order of the Master condoning the delay in representation is set aside. Application No. 3193 of 1986 is ordered and C.S. No. 882 of 1984 is dismissed. No costs.
14. Order accordingly.
No comments:
Post a Comment