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Colonial Cases

Muniram and others v. Thackoorsidas and others, 1861

[equity procedure]

 

Muniram and others v. Thackoorsidas and others

Supreme Court, India
Sausse C.J., 17 August 1861
Source: The Times of India, 24 August 1861

 

SUPREME COURT. - EQUITY SIDE.

Saturday, 17th August 1861.

BEFORE CHIEF JUSTICE SAUSSE.

Lucknichund Muniram and others vs. Ramlall Thackoorsidas and others.

   Mr. Westropp instructed by Mr. Vinayekrao Hurrychund, after reading the registrars certificate and correspondence between the solicitors, moved on behalf of the Plaintiff, that a writ of attachment do issue against Ramlall, and another against the other defendants (except the last) for want of their answer to the complaint, Bill of complaint filed in this suit on the 30th November last.  The learned counsel said it would appear by the letters just read that the Defendants were liberally indulged by the Plaintiff's solicitor, Mr. Vinayekrao, and that, at the end of that time, the defendants' solicitors Messrs. Bowyer and Crawford, shifted their ground and alleged that they would not file the other defendants' answer because the plaintiff's solicitor had not furnished them with a copy of the interrogatories for each of the defendants.  They had assigned no reason whatever for an extension of time.  Ass to the arrangement, he was not in Court, but his learned friend Mr. White would be able to say if there was any.

   Mr. Anstey appeared on behalf of the defendants to oppose this motion.  On behalf of Ramlall he had to remark that his answer was now ready, but must be interpreted by Mr. Flynn who could spare only 3 or 4 hours a day, if not more, besides, as the judgment on the demurrer would be given on Thursday and as it was agreed that until the demurrer was disposed of, the time which would elapse of between the time it would be decided and the day of application for such a postponement, viz. the 27th June last, must not be counted.  With regard to the other defendants they were (as would afterwards appear) improperly joined and most minutely interrogated as to the truth of every part of the Bill.

   The Chief Justice thought the practice of interrogating by turning every part of the Bill into an interrogative form by adding "whether or no - " was done away with.

   Mr. Anstey. - The inquiry curtailed much labour on the reader; it took some weeks for the gentleman who drew the interrogatories, and he said, considering the business in Court, that it would require some time to settle it.  The plaintiff's solicitor had more than his usual time to file his demurrer to the suit in the nature of a cross-suit, and then he filed in an irregular manner as demurrer to the Bill. 

   A motion was made by the learned counsel to take it off the file, but his Lordship held that, in form, it was correctly filed, and then, when it came on for argument the learned counsel for the plaintiff, Mr. White, asked it to be postponed in consequence of Mr. Westropp's absence which was consented to, on the understanding that th4 defendant's answer should not be filed until long after the decision on the demurrer.  Now it was stated that it was only till Mr. Westropp's return that the time to answer was to be excluded from the computation.

   Mr. White's recollection was that, on mentioning the circumstances at the request of his client, who wanted to be sure, though the demurrer was not likely to come on at all for some days, Mr. Anstey proposed that they should consent to his clients' answers being filed about the time when his (Mr. White's) client's answers should be filed, to which he did not assent, and the Court postponed the argument of the demurrer, on the understanding that until Mr. Westropp was able to attend, the time to answer should not run; and so soon as Mr. Westropp was able to attend the demurrer appeared in the papers.

   Chief Justice recollected that he distinctly told Mr. Anstey that the Court would not be a party to any arrangement between the parties.

   Mr. Anstey. - If I had known that that was the impression made on his Lordship's mind, I should most certainly never have consented to any postponement.  I beg the court would not grant this attachment, for natives read it differently from what Europeans do.  And moreover, it would be a triumph, and construed into a discomfiture at Bombay.  It is a hungering after and thirst app├ętit for costs which influenced Mr.  Vinayekrao Hurrychund to make this application.

   Mr. Westropp was grateful to the court for having postponed the argument of the demurrer until he was able to attend the Court.  He repeated that Mr. Vinayekrao had been too indulgent towards the defendants.  He gave them five months without the expense of any application to the court, and at the end of that period, he was sharply told that he was wrong in not serving four copies of the interrogatories instead of the one he had served on Mess. Bowyer and Crawford who appeared for all the defendants and who never asked for such copies.

   There had been a great deal said about Vinayekrao Hurychund's conduct in the matter, which was exceedingly fair to the clients of his learned friend, who, however, was pleased to use hard language towards him, but they were not to have the Indigo question transplanted here.  There was every opportunity given to the other side to make out a case for extension of time which was granted profusely, and yet it was complained that further extension was denied. 

   It turned out that Mr. Anstey's statement, that what was called the cross-suit was not filed until after the interrogatories in this suit were served, was at variance with the facts.  It appeared by the registrar's certificate that the interrogatories were filed on the 20th February, and it was not until the 1st March that the other suit was instituted, and if his learned friend was wrong in his statement of the arrangement, he would be glad to know that he (Mr. Westropp) would not press for an answer until the decision on the demurrer should be pronounced.  Indeed, if he had known that his Lordship would pronounce the judgment on Tuesday next, he would certainly not have made this motion; as it was he was willing that the order might be drawn up on Thursday next, and then the attachment to lie in the sheriff's office for a week; and then, if the answer if Ramlall be not filed by that time, it should issue.  The other defendants had shown no ground why the writ should not issue forthwith, but he (Mr. Westropp) would have a month after which it should issue.

   Chief Justice. - This was an application for one or more writ or writs of attachment against the defendants for want of their answers to the plaintiffs' bill of complaint and interrogatories.  Prima facie their time to file the answer, which solicitor for the plaintiff had from time to time extended, having expired, the plaintiffs' solicitor was entitled to carry out his intention to issue the attachment.

   There was a difference between counsel as to whether or not there was any understanding between them.  His Lordship's recollection was that something was said by Mr. Anstey as to some proposals about the filing of the answers but he did not entertain it.  And Mr. White was right in thinking the demurrer was postponed till Mr. Westropp was able to appear, and till then the time was not to be counted.  With reference to the other parties to this suit it was objected that the plaintiffs' solicitor did not furnish to the defendants more than one copy of the interrogatories, which caused a delay in preparing the answers; but it appeared distinctly by the defendant's solicitors' letter of the 23rd June last that they accepted the two months additional time to answer the bill without saying a word about these copies, which they had never asked to be furnished with.  Therefore the Court would not now pay any regard to such a technical objection, and his Lordship thought the solicitor had given them ample time to file their answer, and therefore the writ must issue forthwith to lie in the office for a month.

   As against the other defendants, a writ of attachment should issue against Ramlall on Thursday next, unless his answer be filed in the meantime, and then it would lie in the sheriff's office for a week. - Writ of attachment to issue.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School