The Advocate General vs Adamji Mahomedalli

Batchelor, J.—This is a case of a Chamber order which has been issued by the Prothonotary calling upon the Advocate General as plaintiff in Suit No. 125 of 1905 to show cause why this suit should not be dismissed for want of prosecution.

Unquestionably this is rather a strong order and in my opinion u/s 80(a) of the High Court Rules it is not an order which was within the jurisdiction of the Prothonotary. Admittedly there was no consent of the Advocate General to that order, and when reference is made to the applications which under Rule 80(a) require consent before the Prothonotary has jurisdiction, it will, I think, be recognised that this application is at least on as high a footing as those mentioned in the rule.

Then it is not, I understand, denied that the position of the Advocate General here corresponds by Statutory Enactments to the position held by the Attorney General in England, and there is ample authority for the view that in general the Attorney General is not called upon to make discovery upon oath. It is relevant to add, as the Honourable Mr. Scott assures me, that so far as he recollects, he has not in the past been called upon to make such discovery. I should certainly be reluctant to introduce a practice different from that which obtains in England in this matter.

It appears to me that the difficulty has arisen almost entirely owing to the form of procedure which the first defendant has elected to adopt. It must have been patent to him from the first that the Advocate General was suing at the instance of relators, and the Advocate General has from the first been willing that the relators should make affidavits concerning the one relevant document in their possession, that is to say, the Will of Piroo Dossa, which is referred to in the annexure to the plaint.

The order must be discharged with costs as against the Advocate General.

As against the second defendant, the fact is that he has now filed his affidavit of documents, but as he did not do so until after this order was taken out, I think that the first defendant is entitled to his costs as against him.

Counsel certified as between plaintiff and first defendant.

I should add that I do not desire by this Judgment to curtail the powers which the Prothonotary has hitherto exercised under Rule 80 (a). Here the case was a special one owing to the Advocate General being the plaintiff.