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Dhikajlal Panachand Vs. Hormusji Edulji Bottlewalla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal Nos. 1512 and 1513
Judge
Reported in(1908)10BOMLR301
AppellantDhikajlal Panachand
RespondentHormusji Edulji Bottlewalla
DispositionAppeal allowed
Excerpt:
practice -ex parte decree-suit set down for hearing before the date fixed in summons-civil procedure code (act xiv of 1882), sections 68, 69, 96, 100, 101, 112 and 113-high court rules, nos. 111 and 112.;the plaintiff is not entitled to have a suit set down for an ex parte decree before the date fixed in the summons for the hearing of the suit, even though the defendant has not filed his written statement within four weeks from the date of the service of the summons as required tinder rule 111 of the high court rules. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent..........is not only required by the terms of the summons but is in accordance with the provisions of the code with which the rules are consistent in this respect. at the same time the plaintiff has followed a course which has been permitted by the office for a great number of years and it would be hard to cast upon him costs of this appeal.2. so the order we make as to the costs will be that all costs of the suit and appeal up to this date, including the costs of the motion, will be costs in the cause as between the plaintiff and defendants 4 and 5.3. we set aside the decree that has been passed against defendants 4 and 5.4. this order is in both the appeals.
Judgment:

Lawrence Jenkins, C.J.

1. We are of opinion that having regard to the summons and what is therein stated it was not open to the plaintiff to obtain a decree before the returnable date. We think that this conclusion is not only required by the terms of the summons but is in accordance with the provisions of the Code with which the Rules are consistent in this respect. At the same time the plaintiff has followed a course which has been permitted by the office for a great number of years and it would be hard to cast upon him costs of this appeal.

2. So the order we make as to the costs will be that all costs of the suit and appeal up to this date, including the costs of the motion, will be costs in the cause as between the plaintiff and defendants 4 and 5.

3. We set aside the decree that has been passed against defendants 4 and 5.

4. This order is in both the appeals.


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