Narrottam Vizbhookandas And Ors. vs Hrai Chand Ramchand And Ors. on 13 April, 1889

Bombay High Court
Narrottam Vizbhookandas And Ors. vs Hrai Chand Ramchand And Ors. on 13 April, 1889
Equivalent citations: (1889) ILR 13 Bom 368
Author: Scott
Bench: Scott


Scott, J.

1. This case has been set down for further directions on the Commissioner’s report. That report was signed by the Commissioner and filed in the Prothonotary’s office on the 5th February. The plaintiff now asks to vary the report on grounds of objection which he filed on the 4th March. He is met with the answer that he is out of time, under Rule VI of Chapter VI sit page 52 of the High Court Rules. That rule has been given judicial interpretation by Westropp, C.J., in Sumar Ahmed v. Haji Ismail Haji Habib I.L.R. Bm. 158 at p 161, who says that the parties should move to vary the Commissioner’s report on a memorandum of objections filed in the Prothonotary’s office, and upon the evidence before the Commissioner* * * *. The application to vary the report should be made within the twenty days required by Rule VI.” To this, I think, should be added “or within such additional time as a Judge or the Court has allowed for the application to vary the report. In the present case there has been no application to vary the report at all. But a memorandum of objections has been filed, and Mr. Kirk-patrick argues that this memorandum must be taken to be equivalent to the application, or to include or necessarily imply, an application, to vary the report. It may appear a harsh decision, but I cannot yield to this argument. There are two steps to be taken according to the rule–one to file the objections, the other to apply to vary the report. This second step was never taken. The plaintiff in all probability honestly mistook the rule, but such a mistake has been repeatedly held to be no ground for interfering with the limitation of time established in favour of a person who has obtained a decree or a decision–Craig v. Phillips L.R. 7 Ch. Div. 249: In re Mansel; Rhodes v. Jenkin L.R. Ch. Div. 711, at p. 713. As Sir G. Jessel, M.R., said in the latter ease, no reason has been given but that the solicitors’ clerk made a mistake as to the meaning of the rule. If that is to be allowed as a sufficient season for relaxing the rules, they might as well be repealed.”

2. But it was further argued that the order for extension of time granted by the Judge in chambers on the 22nd February, although in words it was only an extension of time for filing the exceptions, was intended to be an extension of time with the object of preserving the plaintiff’s right to vary the report. I have consulted the learned and experienced Judge who granted the order, and he says its object was to keep the plaintiff in possession of all his rights up to the 4th March. We must, therefore, see what he did after that date. As he only filed his exception on that date, and did not then, or subsequently, apply to vary the report, as the late Chief Justice says should be done, I cannot hold that be has done enough to be within the rule. He is beyond the twenty days given for applying to vary or discharge the report; he has obtained no extension for that object, no extension can be given at this stage. I must, therefore, hold that the report is final, and must be confirmed.

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