SHAILAIN HIRACHAND JHAVERI t/a KIRAN DIAMONDS v. JAYANTILAL CHUNILAL JHAVERI AND OTHERS

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D E C I S I O N

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1. This is an appeal by the plaintiff against a determination of the Master who refused the plaintiff's application for production of various further documents. The plaintiff feels aggrieved by the Master's decision, hence the instant appeal.

2. In the course of his appeal, the plaintiff launched into a searching exercise for material in support of his stance that further relevant documents have yet to be disclosed. The plaintiff seeks to rely principally on the first affirmation of the 1st defendant and what possibly transpired at his interview with the Commercial Crime Bureau.

3. For my determination, the point is a short one. A list of documents is "normally conclusive". It is said to be subject to three exceptions under which a further and better list of documents may be obtained. That is clearly stated in the Annual Practice 1988, Vol. 1, marginal reference 24/3/5 at p.415 as follows :-

"An order may be made for a better and further list of documents where it appears (a) from the list itself, or (b) from the documents referred to in it, or (c) from admissions made either in the pleadings of the party making discovery or otherwise, that the party making discovery has or has had other relevant documents in his possession, custody or power."

4. For a forced disclosure of any specific document, the same view is expressed in 24/7/1 at p.427 ibid : "It was well-established under the former 0.31, and in the days before discovery was given by lists, that statements in a party's affidavit of documents are conclusive...... The same principles apply to a list of documents ......." "The position is subject to two qualifications. First, a party was and is entitled to apply for a further and better list, where it appears on the face of the list already served ..... or on the face of disclosed documents ..... or on an admission that in all probability that the party has or has had other relevant documents beyond those disclosed".

5. These present considerable obstacles to the plaintiff in the prosecution of his appeal. The plaintiff is not legally represented and he is evidently in difficulty, seeking to connect documents and allegations in order to bring himself within these exceptions or any one of them. It is a pitiful endeavour, being a layman, which has the utmost sympathy of this Court.

The plaintiff is an intelligent businessman who has now been shown the short passage in the White Book and who, no doubt, is able to digest and appreciate the significance of the given brief statement.

6. Allegations and documents are as well multifarious as they are voluminous. Justice dictates that the plaintiff should not be barred from re-ventilating his application, if circumstances justify it, after further perusal and examination of these allegations and documents, with this simple concept now clearly implanted in his mind. Sensing that the plaintiff's appeal, as it t is now being presented, is almost hopeless, this Court suggests that his purpose could well be better served if he were to apply for the appeal to be withdrawn, naturally with costs to the defendants, but without prejudice to he, the plaintiff bringing a like application for a further and better list of documents or for specific discovery. The plaintiff so applies.

7. This court could grant indulgence to the plaintiff by adjourning the appeal pending his re-consideration of documents and allegations, but an adjournment in the circumstances may prove to be undesirable, if only for the fact that any future application, if made, is likely to be supported by grounds other than those presently relied upon by the plaintiff.

8. Mr Karbhari, solicitor for the defendants, is not pressing for a dismissal of the appeal. Appreciating where justice truly lies, he fairly leaves the matter entirely in the hands of the Court.

9. For the removal of any possible misunderstanding, I should have these matters recorded.

10. In my view, the plaintiff ought to be granted further indulgence so that he could, in his own good time and with a clear concept of the law in mind, examine the documents and allegations afresh and re-assess his position as to whether matters could bring him within one or the other of the exceptions.

11. The plaintiff is therefore given leave to withdraw the instant appeal and his withdrawal be entirely without prejudice to the plaintiff bringing a like or similar application for a further and better list of documents or specific, documents. The order I propose to make is therefore as follows :-

(1) Leave be granted to the plaintiff to withdraw the appeal, and the appeal be accordingly withdrawn;

(2) The withdrawal of the appeal be without prejudice to the plaintiff re-applying for a further and better list of documents or specific documents before the Master; and

(3) Costs of the appeal be costs for the respondents. Costs reserved be likewise costs against the plaintiff for the respondents.

(No further submissions made)

I make an order in terms as proposed.