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.) When the notice of motion reached hearing on September 23, 1946, after list B was over, the Advocate General on behalf of the first defendants took up a preliminary objection. He contended that the notice of motion could not lie any longer because it was taken out on the original plaint as it stood before the amendment. No fresh notice of motion had been taken out by the plaintiffs after the plaint had been amended and he, therefore, contended that the notice of motion as taken out on the original plaint should be deemed to have been abandoned by the plaintiffs, they not having obtained leave to amend without prejudice to the pending notice of motion. In view of the circumstances which I will point out a little later, I was inclined to summarily brush aside this preliminary objection. In so far, however, as the matter involved herein was a matter of some importance and would not rest merely with my decision here, and, looking to the manner in which the parties have been fighting, might very easily be taken to the Appeal Court, I thought it advisable to hear the parties fully on this preliminary objection. This is the justification for my entertaining this preliminary objection in the manner I did and having taken considerable time of the Court in determining the same.