RAHIMTULLA JIVRAJ Vs. JAMSETHJI RDRIVER

JUDGEMENT

(1.) Mr. Jinnah has raised a preliminary objection to this notice of motion under Rule 325 of the Original Side Rules, 1022, Admittedly, the plaintiff has not obtained leave of the Court to serve this notice of motion as required by that rule. It appears that on June 10, the plaintiff appeared before my brother Blackwell to apply for leave under Rule 325 and for an interim order. The defendant having come to know that the plaintiff was going to make an application in this Court appeared at the time, and as no notice of motion was served on him, by consent an order was made by Mr. Justice Blackwell allowing the notice of motion to stand over to the following day, and directing the plaintiff to serve the notice of motion and copy of his affidavit on the defendant in the course of the day. The notice of motion was in the main for restraining the defendant from prosecuting the suit which he had filed against the plaintiff in the Small Causes Court, and the defendant agreed in the meanwhile not to proceed with that suit.

(2.) Thereafter, a copy of the notice of motion with the plaintiff's affidavit was served on the defendant, and it distinctly stated that leave to serve notice of motion on the defendant before the service of the writ of summons had been obtained from the Court, a statement which the learned Counsel for the plaintiff had to admit was false. The defendant took search in the Prothonotary's office and found that in fact no leave under Rule 825 was obtained. He, therefore, inquired of the plaintiff as to whether the latter had obtained leave. No reply to that letter was given. On Tuesday the motion was allowed to stand to the 17th.

(3.) It is argued by Mr. Desai that under these circumstances the defendant waived the objection to the notice of motion being heard. In my opinion there is no substance in that contention. The rule in question is very clear, and it is not open to the parties by consent to ignore it. In this case, however, it is clear that the defendant did not waive his objection to the notice of motion. All that he agreed to was, that the suit in the Small Cause Court should not be proceeded with before the disposal of the notice of motion which, in my opinion, does not amount to a waiver on his part of all objections which he may be entitled to raise to the notice of motion at the hearing, both as to the procedure adopted as well as to the form and the merits relating thereto, Apart, therefore, from the fact that the plaintiff made a false statement in the copy of the notice of motion which he served on the defendant, and which he never attempted to correct till to-day, the objection must be upheld, and the notice of motion must be dismissed with costs.