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Nawroji Vikaji Vakharia Vs. Chunilal B. Desai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 2004 of 1946
Judge
Reported inAIR1947Bom436; (1947)49BOMLR447
AppellantNawroji Vikaji Vakharia
RespondentChunilal B. Desai
Excerpt:
bombay high court rules (o.s.), 1936, rule 350, form no. 7-notice of motion-special leave-mention of special leave in notice.;in a notice of motion framed in form no. 7 of the bombay high court rules (o.s.), 1936, where special leave has been obtained under rule 350, that fact must be recited in the notice of motion itself. otherwise, the notice of motion is bad. - .....to have been mentioned in compliance with the form no. 7. in form no. 7 it has been provided:if special leave has been obtained add as follows: and take notice also that special leave to give this...(if so, short) notice for the day and hour appointed has been obtained from (his lordship mr. justice...or as the case may be the prothonotary and senior master).in so far as the plaintiff had obtained leave under rule 350 of the high court rules to serve notice of motion for the particular date, prima facie it was necessary for him to have mentioned this fact in the notice of motion in accordance with the requirements of form no. 7.2. mr. m. v. desai for the plaintiff, however, argued that this paragraph was to be added in the form no. 7 only if special leave had been obtained; and on a.....
Judgment:

Bhagwati, J.

1. A preliminary point has been urged in this notice of motion by Mr. Munshi for the defendants that the notice of motion is not in form No. 7 annexed to the High Court Rules and that it should, therefore, be dismissed. The plaintiff took out this notice of motion on October 31, 1946, and obtained from my brother Blagden. leave under High Court Rule 350 to serve notice of motion in terms of the draft produced, returnable on November 8, 1946. An interim injunction in terms of prayer (a) with certain modifications was granted on the same day, and liberty was given to the defendants or any of them to bring on the notice of motion earlier before November 8, 1946, on 48 hours' notice in writing to the plaintiff's attorneys. It appears that the draft of the notice of motion, which was submitted to my brother Blagden that day and which after due engrossment appears to have been served on the defendants, did not make any mention of the fact that leave under Rule 350 had been granted by the Court to serve the notice of motion for the particular date. It also did not mention the fact of the interim relief having been granted or the liberty given by the Court to the defendants or any of them to bring on the notice of motion before November 8, 1946, on 48 hours' notice in that behalf to the plaintiff's attorneys. Mr. Munshi for the defendants has submitted that under r. 344 of the High Court Rules the notice of motion has got to be in form No. 7 with such variations as the circumstances may require, and the provisions of r. 344 are mandatory. The plaintiff had obtained leave from the Court under r. 350 and that fact ought to have been mentioned in compliance with the form No. 7. In form No. 7 it has been provided:

If special leave has been obtained add as follows: And take notice also that special leave to give this...(if so, short) notice for the day and hour appointed has been obtained from (His Lordship Mr. Justice...or as the case may be the Prothonotary and Senior Master).

In so far as the plaintiff had obtained leave under Rule 350 of the High Court Rules to serve notice of motion for the particular date, prima facie it was necessary for him to have mentioned this fact in the notice of motion in accordance with the requirements of form No. 7.

2. Mr. M. v. Desai for the plaintiff, however, argued that this paragraph was to be added in the form No. 7 only if special leave had been obtained; and on a reading of the Rules 345 and 350, he submitted that the words 'special leave' were appropriate only to a case where special leave to serve the notice of motion under Rule 345 was obtained by the plaintiff from the Court. He submitted that there was no warrant for treating the leave under Rule 350 as 'special leave.' It was ordinary leave which did not require to be specified in form No. 7. If one reads Rules 345, 347 and 350 and also reads along therewith the form No. 7 which has been prescribed, one finds that the words 'special leave' which have been used in form No. 7 have reference not only to the leave under Rule 345 but also to leave obtained by the plaintiff under Rules 347 and 350. No doubt Rule 347 is deleted from the Rule Book of late, but a reference thereto is necessary for the purposes of understanding the words which have been used in form No. 7 'as the case may be the. Prothonotary and Senior Master'. Leave under Rule 345 and leave under Rule 350 were within the province of the Court. The Prothonotary and Senior Master could not grant the same. When Rule 347 was in operation, leave under Rule 347 was competent, to the Prothonotary and Senior Master to grant by reason of Rule 89 of the High Court Rules which delegated certain work to be done by the Prothonotary and Senior Master. Leave under Rule 347, if there was nothing more, required by the plaintiff was thus competent to the Prothonotary to grant. If he had granted such leave, that fact was required by form No. 7 to be mentioned therein. Otherwise the words 'as the ease may be the Prothonotary and Senior Master' would not have been contained in form No. 7. The very fact that this provision is contained in form No. 7 goes to show that the words 'special leave' mentioned in form No. 7 did not mean, the special leave as submitted before me by Mr. M. v. Desai, viz. the special leave contemplated by Rule 345 only. The words 'special leave' in form No. 7 were meant to include not only special leave under Rule 345 but also the leave which was granted by the Prothonotary and Senior Master under Rule 347. If this is so, I cannot, accept the argument of Mr. M. v. Desai that the words 'special leave' in form No. 7 can and should be confined to special leave contemplated under Rule 345 only. It was also urged by Mr. M. v. Desai that leave under Rule 350 to serve notice of motion for a particular date was absolutely unnecessary to be applied for or to be granted by the Court if Rule 345 did not come into operation at all. He urged that in this particular case the notice of motion was made returnable on November 8, 1946, which would certainly afford the defendants more than four clear days after the service of the notice of motion to appear before the Court and have their say in the matter of the subject-matter of the notice of motion. If this argument of Mr. M. v. Desai were correct, it would render the provision as to leave under Rule 350 absolutely nugatory in those cases where it would, not be absolutely necessary to obtain leave under Rule 345 of the High Court Rules. According to my reading of Rule 350 it has application to those cases where the plaintiff approaches the Court ex parte for interim relief on the ground of urgency. In those cases it is necessary for the plaintiff to obtain leave before he can obtain any interim relief under Rule 350 to serve notice of motion for a particular date, and after granting such leave the Court also, if it thinks fit, grants interim relief up to that date on such terms and conditions as it seems just. The very foundation of the granting of interim relief by the Court is that leave under Rule 350 is granted by the Court. If no such leave was granted the very foundation of the interim relief to be granted by the Court would disappear. The leave under Rule 350 is therefore a special leave which has got to be obtained by the plaintiff before any interim relief is granted to him by the Court on his application in that behalf. There are various kinds of notices of motion which can be taken out by a plaintiff. If there is no reason to obtain any order for the notice of motion being made returnable except in the ordinary course, the Prothonotary and Senior Master is competent to grant that notice of motion and it can be taken out by the plaintiff. No leave is necessary in that behalf. When, however, the notice of motion is made returnable on a day which would not leave four clear days to the defendant before he can be called upon to come before the Court and argue out the notice of motion, leave under Rule 345 is necessary. That is a leave to make a notice of motion returnable on a date which does not leave four clear days to the defendant before he can be called upon to appear before the Court and argue out the notice of motion. This notice of motion, however, is again an ordinary notice of motion based on ordinary prayers of the plaint. It is not concerned with any interim relief applied for by the plaintiff. In those notices of motion, however, where interim relief is asked for by the plaintiff, he has of necessity by virtue of Rule 350 of the High Court Rules to apply for leave under that rule before any interim relief can be granted to him by the Court. This is a special category of notices of motion where special leave, if I may so use the expression, is granted by the Court under Rule 350 of the High Court Rules and the granting of the leave under r. 350 of the High Court Rules is the very foundation of the interim relief granted by the Court. This is a condition precedent to any interim relief being granted to the plaintiff on a notice of motion. Both the leave under Rule 345 and. the leave under Rule 350 are therefore, in my opinion, 'special leave' which have got. to be mentioned in form No. 7 according to my reading of the words 'special leave' contained therein. I, therefore, reject the argument of Mr. M. v. Desai based on his construction of Rules 345 and 350 of the High Court Rules.

3. Under the circumstances I am of opinion that the objection of Mr. Munshi is sound, and the notice of motion as served on the defendants does not comply with form No. 7, compliance with which as I have already stated is absolutely mandatory by virtue of the provisions of Rule 344 of the High Court Rules.

4. Mr. M. v. Desai on the above position being pointed out by the Court applied to the Court to allow him to amend the notice of motion by bringing the notice of motion in accordance with the requirements of form No. 7. He urged that it was a mere technicality and the Court must look to substantial justice and not dismiss his notice of motion on a mere technicality of this type. There is some force no doubt in this contention of Mr. M. v. Desai. The Court, however, has insisted on strict compliance with the requirements of form No. 7. In cases where in accordance with the requirements of form No. 7 the names of the parties to whom the notice of motion was addressed were not set out as they should have been and the notice of motion was addressed to the attorneys of the parties, the records of this Court show that such notices of motion have been dismissed. I do not see any reason to differ from the practice which has been adopted by the Court in this behalf. The requirements of the form No. 7 as I have already stated are mandatory, and if a notice of motion does not comply with those requirements, it is liable to be dismissed.

5. I accordingly dismiss this notice of motion with costs. I shall, however, in the event of the plaintiff being advised to take out another notice of motion for the same reliefs which he has prayed for in this notice of motion, allow him opportunity to use the same affidavits on such subsequent notice of motion so that unnecessary costs may not be incurred in such subsequent notice of motion. The interim receiver will be discharged and the interim injunction will be dissolved. The Prothonotary to issue a certificate.


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