SYED ABBAS Vs. NAWAB ABID JEHAN BEGUM

JUDGEMENT

(1.) On 8 April, I dealt in this suit, which I will call suit "a", with an application by the receiver appointed in suit "a" who is defendant in Suit No. 1950 of 1987, which I shall call suit "b", a suit on a money claim by one Kedarnath. I declined on that occasion to make an order such as I thought, perhaps erroneously, was required of me, i. e., an order in the nature of one revoking or recalling leave to defend. I indicated or recommended in my judgment, as will appear from para. 3 from the end, that the receiver should regulate his future action upon the advice of counsel. After signing the judgment I did what I should have done before, namely consult the English practice in these matters, and having done so I thought it desirable, for reasons which I have to make apparent, to convert the recommendation into a direction to be incorporated in the order. This I did on the 16 in Court and in the presence, at any rate, of counsel for the defendant, and the added direction was minuted, but it was not listed and I gave no reasons, and it has perhaps on this account been suggested that there is something not quite respectable about the added direction.

(2.) Since it is undesirable that any suspicion should attach to this little direction and I have not the faintest desire to do anything in a clandestine or equivocal manner, I have had the application restored on notice to the parties in the suit, and, although in my opinion it is not necessary, on notice to the plaintiff in suit "b". Notice has not gone to the parties in suit "a", resident in Lucknow, some of whom are in fact minors, but some of the plaintiff's and some of the defendants are present in Court. The plain-tiff in Suit No. 1950 of 1937 does not appear on the application. Further, this being a public trust, the matter is more than usually one in which the responsibility is shared between the receiver and the Court. This having been done, the circumstances indicate the propriety of my taking the opportunity first to explain the principle and practice upon which my direction is based, and secondly to state the precise direction to be incorporated in the order. My original reason for looking into the English practice was to ascertain whether there existed anything to support the view, to the effect that leave to defend should have been granted only on notice to the plaintiff in suit "b" and after taking evidence, I found nothing, and in that respect therefore I am unable to depart from the view expressed on this point in my previous judgment; but what I did find, and should possibly have found earlier, are certain indications of a practice or usage, features of which might usefully be adopted by this Court and which to my mind point to the proper course to be followed in this matter.

(3.) I shall now state in outline how I understand that practice and how it compares with ours. In England the original application is usually made by one of the parties on notice to the other party to the suit in which the receiver is appointed. In England in any matter of complexity the Judge will probably require to have placed before him an opinion of counsel. In England in the order granting leave to defend there is incorporated a provision for indemnity in the matter of costs and expenses to be incurred by the receiver in defending the suit. In England it is also usual or common to insert in the order liberty to renew the application at different stages or any critical stage of the, suit. It is further the usage for the Judge to require on such renewed application in any matter of complexity a further opinion of counsel. In our practice, so far as I am familiar with it, it is almost invariably the receiver who applies, nor do I think it necessary to depart from that system. Rarely, if ever, is notice given even to the parties in the suit. That, in certain circumstance might, however, be desirable. In our practice the application is, as a rule, when made in Chamber, treated as a formality. Although" on certain occasions the Court may have required an opinion of counsel, generally speaking it is not demanded. Further, we have not yet, at any rate, adopted the system of making the application renewable, when the receiver wishes for further directions. So far as I know, it has been done usually by a fresh application. Having considered this practice, I do not feel myself to blame, excepting in one respect. I gave leave to defend more attention than is usual in an application of this kind, but now that I have seen what is done in England, I think that since this was an important matter involving difficult questions of equity, I should have required the opinion of counsel to be put before me rather than to proceed on such knowledge of that branch of law as I myself possess. That is the course I shall take in future. Secondly, that being the nature of the matter involved in the suit, I might usefully have made the application renewable as in the English practice.