KILACHAND DEVCHAND AND CO Vs. AJODHYAPRASAD SUKHANAND

JUDGEMENT

(1.) This is a notice of motion taken out by the plaintiffs calling upon defendants Nos. 1 and 2 and one Shamlal Gomatwalla to show cause why they should not be committed to jail for having committed contempt of this Court by interfering with the possession of the receiver, Mr. Nandlal Kilachand, and having assaulted his men, or caused them to be assaulted, at the place commonly known as the Sukhanand Shiamlal Ginning and Pressing Factory at Debai on November 21, 1933. Shamlal Gomatvalla is not a party to this suit, Mr. Nandlal Kilachand was appointed a receiver in this suit under a consent order made by this Court on June 29, 1933. It is alleged that to the knowledge of defendants Nos. 1 and 2 and the said Shamlal, the receiver had taken possession of the Ginning and Pressing Factory, and, thereafter, the three persons mentioned above assaulted the receiver's men and ousted them.

(2.) On behalf of the respondents four preliminary objections have been taken to this notice of motion. It is, first, alleged that the service of the notice of motion was effected at Khurja through the attorneys clerk and the same is, therefore, not in order. It is next contended that in the notice of motion sufficient particulars are not given and, under the circumstances, the same is bad. It is, thirdly, contended that the order appointing Mr. Nandlal Kilachand receiver has not been served on any of the respondents and, therefore, the motion is not maintainable. On behalf of Shamlal it is further contended that as he is not a party to the suit and is not a resident within the jurisdiction of this Court, the plaintiffs are not entitled to take out this notice of motion against him as the Court has no jurisdiction over him. I shall deal with these points in the order in which they have been put before me.

(3.) In support of the first objection about service it is pointed out that, under the High Court Rules, all processes should be served by the Sheriff or his bailiffs. The only authority given to the attorneys clerk to effect service is in respect of a chamber summons and that is by virtue of the express provision of Rule 78. It is, therefore, contended that an attorneys clerk is not entitled to serve the present notice of motion on any of the respondents. I am unable to accede to that contention. In respect of the processes of the Court, the High Court Rules of the Original Side provide for the service through the Sheriff and his bailiffs. Rule 76 provides as follows: The mode of proceeding in Chambers on any application, when notice is required to be given shall, unless otherwise ordered or provided by the rules of the Court, be by summons. Such summons shall be prepared by the party obtaining it or his attorney. Sub-rule (ii), which is important for the present consideration, is as follows: A summons, other than an originating summons, shall in the first instance and on payment of the proper stamp fee, be presented at the office or registry for being entered. And when so entered, it shall be deemed to be issued without any separate fiat of the Judge or Prothonotary and Senior Master in regard thereto but shall bear an office or registry stamp denoting the fact of such entry, and a copy of such summons shall at the time be lodged with the Prothonotary and Senior Master.... Having regard to the terms of this sub-rule it is evident that, although the summons does not bear the signature of the Judge or the Prothonotary and Senior Master, by reason of its being filed and entered in the Prothonotary's Office, it is deemed to be issued by the Court. By reason of this sub-rule, therefore, the summons becomes a process of the Court and its service through the attorneys clerk is regulated by r.78. A notice of motion is taken out under Rule 340 which runs as follows: Applications in Court for injunctions, receivers and other interim relief in a cause shall be made by notice of motion. A notice of motion shall be in Form No. 8 with such variations as circumstances may require. Where special leave to serve it is obtained, the fact shall be so stated in the notice of motion. A copy of every notice of motion shall be lodged with the Prothonotary and Senior Master. This rule, which is applicable to all notices of motion, and under which the present application is made, does not in terms provide that when the notice of motion is lodged with the Prothonotary and Senior Master it becomes a process of the Court. Therefore, in spite of the fact that a notice of motion is so lodged under this rule, it continues to be a notice given by one party to the other and it does not acquire the character of a process of the Court and require to be served accordingly. Under Rule 341 it is incumbent on the applicant only to prove that the notice of motion was served on the respondent at least four clear days before it is brought on for hearing, and provided that fact was established, the manner in which the notice of motion was served would be immaterial. Under the circumstances the first contention of the respondents fails.