Mubarakali v Najam-Ud-Din and Sons (Civil Suit 1259 of 1953) [1954] EACA 56 (1 January 1954)

#### ORIGINAL CIVIL

### Before CRAM, Ag. J.

# BASHEER AHMED s/o MUBARAKALI, Plaintiff ν.

### NAJAM-UD-DIN TRADING AS NAJAM-UD-DIN & SONS, Defendants -

## Civil Suit 1259 of 1953

Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 6, rule 3-Order for particulars within specified time, in default, suit to be dismissed—Condition not fulfilled—Application for dismissal of suit— Whether Court had discretion to extend time-"Time order", necessity for precise terms—Distinction between possible illusory compliance by filing ambiguous particulars and failure to file any—Whether suit automatically dismissed on lapse of time—Whether application for declarator of dismissal competent—Costs.

On an application, by the defendants, on 24th March, 1954, the Court ordered: "By consent, plaintiff to provide further and better particulars of the claim within 15 days. In default, suit to be dismissed. Costs in the cause". No particulars of any sort were filed or delivered within the time stipulated in the order, although particulars were, admittedly, filed and delivered one day out of time. The defendants applied by motion for dismissal of the suit and for costs. The respondent contended that there remained a discretion to the Court to enlarge the time for filing the particulars and this, in the circumstances, should be exercised in his favour. The applicants submitted that, on the contrary, the suit was automatically dismissed on the expiry of the time order and so the Court had no discretion to exercise: further, that the application was made merely as a precautionary and declaratory measure, and the defendants were entitled to the costs of it.

*Held* $(21-6-54)$ .—(1) An order dealing with the dismissal of a suit unless something is done, is competent but should be specified in the clearest and most precise language so that it may be possible for the party on whom the necessity of doing the act lies to be in no<br>doubt whatsoever as to the steps which must be taken if he is to avoid having his suit<br>dismissed, otherwise the order will be inoperativ being clear and precise and the Court had jurisdiction to make a declaration that the suit was dismissed

(2) A distinction may be drawn between the complex case, where there has been an attempt to comply with a time order (resulting in controversy as to whether or not the alleged compliance is illusory leading to a further application) and the simple case of<br>an absolute failure to obey a specific order. In the former case, the Court may have a in absolute that the set of the time specified in the order, the suit is automatically dismissed and that without any further application to the Court. An order dealing with the time of compliance may be distinguished from an order dealing with the mode of compliance. In the instant case, the form of the order involved an anticipatory dismissal of the suit for failure of performance and the suit automatically died after the time specified in the order had lapsed without compliance.

(3) While it is not obligatory to take out a further application, it is a wise and usual course to do so. The application is not to obtain an order dismissing the suit, for the suit is already dead, but for a declaration that the suit stands already dismissed, and so is competent.

(4) The defendants were entitled to the costs of the suit and, in addition, to the costs of the declaratory application.

Cases cited: Davey v. Bentinck. (1893) 1 Q. B. 185; Abalian v. Innous. (1936) 2 A. E. R. 834; Kaye v. Levinson, (1950) 1 A. E. R. 594 (C. A.); Reiss v. Woolf, (1952) 2 A. E. R. 3; Whistler v. Hancock, (1878) 3 Q. B. D. 83

D. N. Khanna for applicants/defendants:

Vohra for respondent/plaintiff.

RULING.—This is an application by motion to strike out the plaint in pursuance of an order of the Court dated 24th March, 1954, which runs:-

"Order: By consent: Plaintiff to provide further and better particulars of the claim within 15 days. In default suit to be dismissed".

This order imposed, conditionally, a drastic penalty. It is unnecessary for the purposes of this ruling to go into the reasons which impelled the Court to make such a drastic order or which indeed, on grounds well known to them, induced the plaintiff to consent.

The condition was not fulfilled. No particulars of any sort were filed or delivered within the time stipulated. Particulars were admittedly delivered one<br>day out of time. The defendants then applied. At the hearing the plaintiffrespondent contended that the Court had a discretion and should exercise this in his favour by extension of time on facts stated in his affidavit. The defendantapplicants maintained, on the contrary, that the Court had no discretion; that the suit was automatically dismissed by the order and that they applied for dismissal as a precaution.

The order of the Court was made under the provisions of Order 6, rule 3, which is identical with the English rule of the Supreme Court, rule 7 of Order 19. Both rules are as follows: $-$

"A further and better statement of the nature of the claim or defence. or further and better particulars of any matter stated in the pleading, may in all cases be ordered upon such terms as to costs and otherwise as may be just".

There is no rule providing specifically for an order in the form made by the Court. Davey v. Bentinck, (1893) 1 Q. B. 185, appears to be the first reported case in which the enforcement of an order in this form has been considered. In that case particulars were asked by the defendant of services alleged to have been rendered and of persons to whom a libel was alleged to have been published. He got no better answer than a repetition of the general allegations. Four orders for particulars were made and two of them ordered that, in default, the action. should be dismissed with costs. The action was so dismissed. The plaintiff appealed. Lord Esher, M. R., said: —

"The effective part of the order is that the action should be dismissed; and it seems to me that if either of the matters stated in the summons was made out the order of the master was justified, and I have come to the conclusion that under the circumstances of this case the master not only had jurisdiction to make the order, but that he rightly exercised it. . . . The other

ground on which the order may be supported is that Order 19, rules 6 and 7. give to the court power, in certain cases, to order particulars and to impose terms and that this includes the power to add as a consequence that if the order is not complied with in a certain time the action shall be dismissed".

The same principles apply to the striking out of a particular defence as apply to the dismissal of an action. They were formulated in Abalian $v$ . Innous, (1936) 2 A. E. R. 834 by Greene, L. J., as follows: —

"... any order dealing with the dismissal of an action, unless something is done, should be absolutely and perfectly precise in its terms. The dismissal of an action at an interlocutory stage is a very serious matter and may well work serious injustice. If an order is to be made in the form that, unless one party or another party does something, the action will be dismissed, it is imperative that the thing to be done in order to avoid dismissal of the action should be specified in the clearest and most precise language, so that it may be possible for the party on whom the necessity of doing the act lies-which would normally be the plaintiff-to be in no doubt whatsoever as to the steps which he is to take if he is to avoid having his action dismissed".

That was an appeal dealing with an order that an action be dismissed unless it was fixed for trial within six years of an alleged loss. The Court came to the conclusion that such orders must be absolutely precise in their terms and unless they were so, they were inoperative.

In Kaye v. Levinson, (1950) 1 A. E. R. 594 (C. A.), the following order was made by a Judge: $-$

"... it is ordered that unless the plaintiffs do deliver their statement<br>of claim on or before November 28th, 1949, this action do stand dismissed out of this Court with costs to be taxed by the taxing master and paid by the plaintiffs to the defendants".

The statement of claim was delivered on 28th November, 1949, but after 4 o'clock in the afternoon, bringing into consideration certain technicalities of the English rules, which do not apply here (i.e. that the service of pleadings be effected before 4 p.m.). On 2nd December, the plaintiffs applied to the Judge to extend the time for the delivery of pleadings, but this was refused on the grounds that the Judge had no longer jurisdiction because under the terms of the order the action stood dismissed. The plaintiffs appealed.

Evershed, M. R., said: $-$

"What is the effect of the order of 21st November, 1949? The form of the order which involved an anticipatory dismissal of the action on failure of performance is, I think, one which should be used cautiously. It seems to me not entirely satisfactory, that, if at any time, it has to be decided whether the action has or has not been dismissed, it is necessary to prove facts which may not always be free from controversy. I do not doubt that the learned Judge had power under Rules of the Supreme Court, Order 64, rule 7, in the exercise of his discretion to impose terms, and in particular, to impose the term that, unless the statement of claim was delivered by a certain time, then the action should die. There are numerous instances of the discretion having been so exercised".

The Court applied Abalian v. Innous. It held that, it was open to doubt whether the order of 21st November was complied with by the delivery of the statement of claim at any time on 28th November or whether it was essential for the purposes of the order that the delivery should be made before 4 p.m. of

that day... As there was an ambiguity in the terms of the order and it was undesirable that it should stand, therefore the Court would exercise the jurisdiction. which it had, to vary the order and would extend the time for delivery of the statement of claim. On the other hand, the Court made it clear that, but for the doubt arising from the order, if the statement of claim had been delivered outside the time the action would have to have been treated as dead. Indeed, the plaintiffs had been compelled to base their appeal on the ground that the action was, in fact, dead.

The same issue arose again in Reiss v. Woolf, (1952) 2 A. E. R. 3 where a plaintiff obtained an order from a master that the defendant deliver "not later than four o'clock of the afternoon of the 21st day following the date hereof... the undermentioned further and better particulars of his defence and in default thereof paragraphs 2 and 3 of the defence be struck out". Within the time limited the defendant delivered particulars which represented an attempt to comply with the order, but were not in full compliance, the defendant replying, in respect of several matters, that he could not give particulars till after discovery. On a summons to have the action transferred to the short cause list on the ground that paragraphs 3 and 4 had been automatically struck out, leaving one brief issue to be determined, the master refused. The plaintiff appealed. Devlin, J., $said :=$

"... So the point to be decided is whether or not these paragraphs now form part of the pleading. The defendant takes two points. He says that although there has not been a strict compliance with the order there has been some compliance and no "default" within the meaning of the order. He also says that if there has been a default the order does not operate automatically but there must be a further summons to strike out the paragraphs in accordance with the order before it becomes effective in this respect".

The learned Judge then proceeded to apply *Abalian v. Innous* and went on to say: $-$

"The event, on which the order of 8th February turns, is default in the delivery of particulars. If "default" means default in the sufficiency of one or more of the answers, I should not consider that the event was defined with precision. Whether or not it had taken place might be the subject of a genuine conflict of opinion which could only be resolved by further adjudication. If I thought this to be the right construction of the order I should follow *Abalian v. Innous* and treat it as inoperative. The order can conform with the principle in that case only if it is treated as an order that is dealing with the time of compliance rather than with the mode of compliance. The order does fix a time very precisely and I think it can and should fairly be construed as a time order. So construed, 'default' refers to default in the delivery of a document within the specified time. I do not, of course mean that any document with writing on it will do. It must be a document made in good faith which can fairly be entitled 'Particulars'. It must not be illusory. . . . That, in my judgment, is the test and, not as the plaintiff contends, whether each demand for particulars has been substantially met. Applying that test, I think there has been no default. Of course, any party who receives particulars, which he says are insufficient, is entitled to pursue the matter by further summons and; it may be, to have any paragraph that is not sufficiently particularized struck out as vague and embarrassing. But that is not what I have to consider. I determine no more than that the paragraphs have not been struck out automatically.

The contention that the paragraphs are not struck out until the Court on a fresh summons declares that they are is, in my judgment, unsound: see Whistler v. Hancock, (1878) 3 Q. B. D. 83. A dead man is dead with or without the death certificate, although, of course, a party who tries to conduct the funeral before the death is certified, may find his efforts wasted and himself in a difficulty. It is always wise and convenient, where there is doubt, to have the matter determined. In this type of order I think it could be done in a case of controversy at the instance of either side under the liberty to apply. But I cannot hold that it is compulsory. It is usual, for instance, to take out a summons to set aside a writ which is a nullity but the failure to do so does not bring such a writ to life. The appeal is dismissed with costs".

The plaintiff appealed. The Court of Appeal approved the judgment of the lower Court. Somervell, L. J., said: -

"The learned judge also went on to deal with the question whether under an order of this kind the paragraphs are struck out automatically or whether there has to be a fresh application. On that matter, he accepted the contention for the plaintiff that, if there was a default, the order operated automatically. So far, at any rate, as a complete failure to comply is concerned I would agree with that—that is to say—if no document which could possibly be described as particulars was delivered, but, if a document were delivered, regarding which the question arose whether it was illusory, I think it might be the subject of a further application".

Applying these principles to the instant application, I am of opinion that the order of this Court is precise as to time and can fairly be construed as a time order. It deals with the time of compliance rather than the mode of compliance. It is admitted by the plaintiff that he filed the document containing his particulars one day out of time. Further applying the principles, in my judgment, the failure resulted in the decease of the suit. It automatically died after the lapse of the time specified in the order when there was no compliance. That is, I rule, I have no discretion to extend the time on any grounds put before me. The plaintiff has taken the same point held unsound in Reiss v. Woolf and Whistler $v$ . Hancock. It is true that the defendant has taken the precaution of taking out a fresh application, but any contention that the suit is not dead until an order on this summons declares it is, is, in my view, unfounded. The plaintiff further avers that the application need not have been brought. But this ground too has been considered in Reiss v. Woolf. There it was said not to be compulsory, but it was regarded as a wise and usual course to take. The application before the Court, is, therefore, competent, although the suit was automatically dismissed without this motion.

In my view, this motion partakes of an application for a declaration that the suit is dismissed much in the same way as a summons is taken out to obtain an order to set aside a writ that is a nullity. I declare, therefore, that the suit was automatically dismissed 15 days after 24th March, 1954, and that the costs of this application be the applicants'.

Order accordingly.