M.M.Dutt. J. - (1.) This appeal has been preferred by the appellant, Shethia Mining & Manufacturing Corporation Limited against the order dated July 3, 1979 of a learned single Judge of this Court whereby the learned Judge dismissed the application of the appellant filed on Dec. 7, 1978.
(2.) On Feb. 7, 1972, the appellant filed a suit against the respondent in the Original Side of this Court praying for a decree for Rs. 12,25,615.62, being the balance of the price of the goods sold and delivered by the appellant to the respondent. The respondent entered appearance in the suit and filed its written statement. On July 16, 1975, the respondent applied before the Court below for discovery of documents by the appellant. It appears that on July 30, 1975, the appellant affirmed an affidavit of documents. The said affidavit was not, however, filed by the appellant. It is the case of the appellant that the affidavit, after it was affirmed, was sent by the appellant to its Directors in Bombay for their approval, but it was lost sight of and so it could not be filed. Be that as it may, on Aug. 5, 1975 the Court below directed the appellant to file the affidavit of documents within 10 days and further directed that in default the suit would stand dismissed.
(3.) The affidavit of documents which was affirmed by the appellant on July 30, 1975 was not filed within 10 days that was allowed by the learned Judge. A long time after the expiry of the period of 10 days, that is to say, on Apr. 24, 1976, the respondent consented in writing to the filing of the affidavit of documents. On Apr. 30, 1976 the Court below granted liberty to the appellant to file the affidavit of documents which was affirmed on July 30, 1975 and the appellant filed the same on that date, Thereafter, the appellant gave notice to the respondent for mentioning the suit for hearing and in terms of the said notice on Nov. 20, 1978, the suit was mentioned by the appellant for fixing a date of hearing. It was, however, contended on behalf of the respondent that the suit stood dismissed by virtue of the order dated Aug. 5, 1975. In view of the said contention, the hearing of the suit was not fixed and that led to the appellant to the filing of an application, inter alia, praying for the following reliefs : (1) Liberty to the appellant to proceed with the hearing of the suit; (2) Extension of time to file the affidavit of documents till April 30, 1976 and (3) Condonation of delay in filing its affidavit of documents which had been affirmed on July 30, 1975. The said application was opposed by the respondent,;