CHIMANRAM MOTILAL Vs. SHANKARMAL SABU

JUDGEMENT

(1.) IN accordance with the orders which I passed on September 20, 1946, the plaintiffs amended their plaint by incorporating therein paragraph 36-A and prayer (e1) which referred to the decision of the clearing house sub-committee dated July 31, 1946, and the letter received by the plaintiffs from the Bullion Exchange on September 2, 1946, intimating to the plaintiffs that as the plaintiffs had failed to pay the sums into the clearing house a resolution was passed at the joint meeting of the board and the Mandal of defendant No.2 company held that day to the effect that if the payment was not made by the plaintiffs by 12 noon on September 19, 1946, then another joint meeting would be convened at 4 p. m. on that day to take adequate steps against the plaintiffs.

(2.) ALL these grounds were no doubt there in the affidavit which was made by Juthalal Motilal on September 16, 1946, in further support of the notice of motion but were incorporated in the plaint in pursuance of the orders which 1 made as above. 1 may observe in passing that reply had been made to these various allegations which were contained in the affidavit of Juthalal Motilal of September 16, 1946, in the affidavits which were filed in reply by the first defendants as well as by the Secretary of the second defendants, the Bullion Exchange. There was the usual affidavit of Juthalal Motilal in rejoinder dated September 19, 1946, and these were the materials on which I was called upon by the parties to decide the notice of motion for prayer (3) thereof which was for a relief in terms of prayer (f) of the plaint.

(3.) THE Advocate General relied upon three cases which have been referred to in the note (f) at p. 105 in Halsbury's Laws of England, Vol. XVIII, as in support of the proposition which has been enunciated there. THE first, case was Gouthwaite v. Rippon. (1838) 1 Beav. 54 In that case it was held that a motion for injunction and receiver was irregular where the plaintiff amends his bill between the time of giving notice of moving and the time of bringing on the motion. THE Master of the Rolls there allowed the objection which had been taken that the motion was irregular, the notice having been given on a record which no longer existed and that on the existing record no notice of motion had been given. This is the only report and there is nothing further to indicate as to what was the position which obtained in that suit or the notice of motion taken out therein. It does not appear if there was or there was no opportunity to the objecting party to reply to the bill as amended. THEre is also nothing to show whether the objection was sustained by reason of any particular inconvenience which would be caused to the party objecting in. meeting the notice of motion on the bill which had been amended. THE second case was Smith v. Dixon (1864) 12 W. R. (Eng.) 934. THEre also after a notice of motion for a receiver the plaintiff, on the defendant putting in a plea, had amended his bill. He had endeavoured to bring on his motion again after the amendment, and it was contended that there was no notice of motion before the Court. It was submitted on behalf of the pleading defendant that the plaintiff by amending his bill had put an end to the motion, and Stuart v. C. expressed his opinion that the plaintiff having amended his bill the notice was gone. I have to offer the same remarks in the case of this opinion also as I did in the matter of the earlier opinion of the Master of the Rolls in Gouthwaite v. Rippon. THE third case, which was relied upon by the Advocate General, was the case of THE London & Blackwall Railway Co. v. THE Limehouse District Board of Works (1856) 8 K. & J. 128. In this case, however, before the notice of motion for injunction, which was argued actually before the Court, the plaintiffs had previously given a similar notice of motion and had afterwards amended their bill and then had given that notice of motion which was argued. It was ordered that the plaintiffs must pay the costs occasioned by the notice of motion which they gave before amending their bill as of an abandoned motion. In this case it was clear that after the amendment of the bill a fresh notice of motion had been given by the plaintiffs. That was the notice of motion which had been dealt with. THE earlier notice of motion had not been brought on or argued and it was rightly treated as an abandoned motion. If that was so, the Court felt itself bound to award to the pleading defendant the costs of such an abandoned motion. In my opinion it is as a result of all these three cases that the proposition has been enunciated in Daniel's Chancery Practice, Vol. II, p. 1357, in the form which I have mentioned above. If a plaintiff amends his bill or statement of claim, he would be prima facie deemed to abandon the notice of motion which he has based on the bill or the statement of claim which was originally filed in Court, and if he wanted to bring on before the Court a notice of motion on the amended bill or statement of claim, he should, either when he made the application for amendment or when lie amended his bill or statement of claim, have done so without prejudice to the notice of motion which was pending based on the original bill or statement of claim, or abandoned the old notice of motion and taken out a fresh notice of motion based on the amended bill or statement of claim. THEse are, however, prima facie considerations, as Daniel's Chancery Practice puts it. It should be done as a matter of precaution, otherwise the plaintiff may be considered to have waived it and be ordered to pay to the defendant the costs of the notice of motion which was based on the original bill or statement of claim as unamended. THEre is, however, in my opinion, no justification for the absolute manner in which the proposition has been enunciated in Halsbury's Laws of England, Vol. XVIII, p. 105, 155. THE result, therefore, in my opinion, is that if the circumstances of a particular ease warrant that conclusion, the Court is not fettered in holding that under the circumstances of the particular case the plaintiff should not be considered to have waived or abandoned the notice of motion which had been taken out earlier on the bill or statement of claim as unamended. This, as I conceive it, is the true position in law, and if the matter were res integra, I would certainly express it as my definite opinion on the point. THE difficulty is, however, created by a judgment of a Court of co-ordinate jurisdiction here, which is reported in Govindram v. Shivanarayan. (1938) 41 Bom. L. R. 545 In that suit a notice of motion was taken out by the plaintiffs for a receiver on February 7, 1938, and while the notice of motion was pending for hearing the plaintiffs by leave of the Court amended the plaint on June 17, 1938, by adding a further or alternative ground of attack. THE first defendant therein tendered on June 22, 1938, an affidavit in reply on the notice of motion, and the plaintiffs tendered an affidavit in rejoinder. Defendant No.1 then raised a preliminary objection that the notice of motion had been abandoned by reason of the subsequent amendment of the plaint. THE position came on for consideration before Somjee J. THE authorities which were cited before me were all cited before the learned Judge. THE learned Judge considered both the passages, one from Halsbury's Laws of England. Vol. XVIII, p. 105, 155, and the other from Daniel's Chancery Practice, Vol. II, p. 1357, which I have above referred to. It does not appear to have been pointed out to him in what different manners both these passages had enunciated the proposition based on the very same cases which were cited there as well as here, and the learned Judge took both these passages in Halsbury's Law of England and Daniel's Chancery Practice, as establishing the proposition as it was advanced before him that by reason of the amendment of plaint the old notice of motion must be deemed to have been abandoned. Whatever my opinion to the contrary may be, as I have already stated above, I am not inclined in this particular ease and on the facts before me to disagree with the same even though, if it were necessary to do so I would go to the length of doing it, because the distinction which obtains between the enunciation of the proposition in Halsbury's Laws of England, Vol. XVIII, p. 105 155, and Daniel's Chancery Practice, Vol. II, p. 1357, was neither brought before the notice of the learned Judge nor was considered by him as I have done above.