JUDGMENT
Pinaki Chandra Ghose, J.
1. A notice of motion in this matter has been taken out on 13th April, 2005 for substitution of the first plaintiff by his legal heirs in view of his death on 26th December, 1996. An application was taken out earlier, in fact there is an endorsement on the application itself, that ”the application is noted as made today”. This endorsement was made by the Assistant Registrar of the Court and such an endorsement is made upon leave being granted by the Court. This aspect is not in dispute in the present petition. An objection, however, has been taken at the preliminary stage itself on the ground that the application is not maintainable in view of the fact that no notice of motion was taken out at the time of filing of this application, and the notice of motion cannot be taken out at this stage. It is also the admitted position that the provisions of Chapter XX of the Original Side Rules applies to petitions of this nature.
2. The only question arose in this appeal that whether an application taken out by the respondent after the demise of the plaintiff No. 1 on December 26, 1996 for recording of the death of the said plaintiff No. 1 and for substitution of his legal heirs and representatives in place and stead of the plaintiff. It appears that the application was filed on March 19, 1997 without taking out a notice of motion in accordance with the provisions of Rules of this High Court. A notice of motion in the matter has been taken out in April 13, 2005 which is also admitted by the parties before this Court. The issue in this case is whether taking out a notice of motion contemplated in Rules 3 and 4 of Chapter XX is mandatory or not. It appears that the Hon’ble First Court held that the requirement to take out the notice of motion in an application covered by Chapter XX of the Original Side Rules as contained in Rule 3 thereof, is directory in nature, and in appropriate case its compliance can be dispensed with by the Court. Therefore, only question arose at this stage, whether the Court can dispense with the rules as framed. It is apparent before us that a notice of motion which was taken out on April 13, 2005 was barred by the laws of limitation as it has been taken out and in any event is not taken out upon the defendants. It is submitted that the said notice of motion was also not a valid, legal piece of document and cannot be relied upon by the plaintiff/respondent. In fact, the plaintiff/respondent has not relied upon the same but has argued that taking out of notice of motion is directory and not mandatory.
3. Mr. Chatterjee, learned Senior Advocate appearing on behalf of the appellant submitted that such submission is incorrect. It was further urged before the Hon’ble First Court by the respondent that inasmuch as the application was made “noted as made today” on March 19, 1997, this Hon’ble Court granted leave to take out the application without the notice of motion.
4. He further submitted that no endorsement, indicating, “noted as made today” could have been made in an application which was not supported by notice of motion and in any event, no leave can be granted to make an application without taking out a notice of motion. In fact, the endorsement “noted as made today” can only be made upon the notice of motion and not anywhere else. It is also submitted that the Hon’ble First Court has erred in coming to the conclusion that an application under Chapter XX of the Original Side Rules (hereinafter referred to as the said rules) can be taken out without a notice of motion or the notice of motion can be dispensed with by the Court. Mr. Chatterjee also relied upon an unreported decision in the matter of Union of India v. Mukherjee and Mukherjee Pvt. Ltd. in A.P. No. 301 of 2003 and submitted this Court held in the said decision that it is only upon presentation of notice of motion “noted as made today” can be made by the Court and he relied upon the said decision in support of his contention. He further submitted that an application cannot be moved without a notice of motion because it is mandatory under the provisions of the rules that a notice of motion has to be taken out and the petition which is to be filed along with the notice of motion will be nothing but the grounds for the said notice of motion. In a case of an appeal without a memorandum of appeal an appeal cannot be accepted by a Court. Similarly, without a notice of motion an application also cannot be accepted by the Court. Therefore, without a notice of motion it cannot be stated that an application/petition can survive. He also relied upon the decisions reported in 47 CWN 450 Shree Chand Daga v. Sohan Lal Daga and Ors.; 57 CWN 313 Abdul Gani v. David Jacob Cohan and Union of India v. Union Builders, in support of such contention.
5. In these circumstances, he submitted since no notice of motion was taken out, the application is liable to be dismissed and hence he submitted that the appeal should be allowed.
6. Mr. Mitra, learned Advocate appearing on behalf of the respondent opposing the application submitted that it cannot be denied that as per the Rules of the Original Side framed by this Hon’ble Court, a notice of motion is really the application which is supported by the grounds made out in the petition. Thus, clearly there is no application in the absence of a notice of motion. However, it may be said that this Hon’ble Court in its inherent power may take cognizance of a matter which is unaccompanied by a notice of motion and grant leave and/or liberty to the applicant to present a notice of motion subsequently. However, if such leave is granted the applicant can present a notice of motion subsequently. Clearly in this case due to the endorsement “noted as of today” this Hon’ble Court had already taken cognizance of the matter on 19th March, 1997 thus, granting the respondents herein the leave to file a notice of motion subsequently.
7. He also did not dispute that the proper procedure would be that an application must be accompanied with a notice of motion or the same can be made after taking out of the notice of motion. He further contended that it is not the case of the respondents that a notice of motion is not required, but, only the case has been made out that a notice of motion may be subsequently filed and that too with the leave of the Court. Subsequently, filing of the notice of motion, if the application has been made and noted by this Hon’ble Court before taking out of such notice of motion would save the bar of limitation. In support of his contention he relied upon a decision reported in 47 CWN 460 (supra).
8. He further contended that Chapter XX Rules 3 and 7 of the Original Side Rules framed by this Hon’ble Court do not lay down any mandatory rule that every application has to be presented before the Registrar. In fact, Chapter XX leaves an option to the applicant to move the application before the Hon’ble Court directly or to file the same in the Registrar’s office. In the events, there is a question of limitation, the application can be filed and might be moved directly before this Hon’ble Court and once the Court takes cognizance of the matter the bar of limitation stops. It is not to say that an application is maintainable without a notice of motion but only for the purpose of saving limitation that an application can be made without a notice of motion till such times the Court grants leave. Further the Court grants leave to file the notice of motion subsequently only for the purpose of saving limitation. In support of his contention he relied upon a decision reported in AIR 1986 Cal 337 (supra).
9. However, he submitted that for the purpose of equity the Court should not overlook the facts of this case that the matter was heard before a Hon’ble Judge and was awaited for a decision after concluding the hearing of the suit and unfortunately His Lordship expired before delivering the judgment and hence, he submitted that thereafter the matter was pending before the Court and the plaintiff died. In these circumstances, he submitted that the application for substitution may be allowed on the grounds of equity.
10. In the decision of Sree Chand Daga v. Sohanlal Daga and Ors. (supra) the Court held that in order to save the bar of limitation it is necessary that actual application before the Judge should be made within 30 days of the order of dismissal. The serving of a notice of motion on the opposite party, or the filing of the notice of motion in the Registrar’s Office will not be sufficient.
11. In Abdul Gani and Ors. v. David Jacob Cohen (supra) the Hon’ble Court, held that the taking out of a summons or a notice of motion under the practice of this Court is not the making of an application. It is an act of the party and not an act of the Court. The application is, however, made when the Court takes cognizance of the application and acts upon it. Further the Court held that when the Court took cognizance of the application and passed orders which it could pass only on the basis that the application was made and was pending.
12. In Union of India v. Union Builders (supra) the Court held as follows:
It is no doubt true that Section 3(2)(c), Limitation Act, was incorporated in the present Limitation Act, to override the earlier view of this Court expressed in the case of Sohanlal Nagarmal v. Manik Lal Seal 58 CWN 313 : , where it was held that filing of such an application before the Registrar for taking out a notice of motion does not constitute making of an application which can be made only when it reaches the Court to be moved. But Section 3(2)(c), Limitation Act, does not take away the right of an applicant to present an application to the Court directly if the rules of business so permit and in that event for calculating the limitation the applicant can well exclude the days when the Courts are closed in the sense that the Judges do not sit to entertain such an application though office remains open. In our opinion, Chapter XX, Rules 3 and 7 relied on by Mr. Dey do not lay down any mandatory rule that every application has to be presented before the Registrar. In our opinion the provisions of Chapter XX leave an option with the applicant either to move the application before the Court directly or to file the same in the Registrar’s office for taking out a notice of motion together with affidavit or affidavits of service and the affidavits in support thereof duly complying with the other requirements of the relevant rules. Therefore, in our opinion, the mere fact that the appellant could have filed the application in the office of the Registrar after complying with the other requirements of Rule 7, does not render the application time-barred only because it was not so done. The applicant having the other option he could well wait for the next available date to move the application in Court and that exactly was done in the present case. But here again, a difficult question arises as to whether, the Judges not being available for moving the application on Monday, September 20, 1982, in the circumstances pointed out hereinbefore, that date should also be excluded. Mr. Dey may be right in pointing out that the said day was not formally declared to be a holiday. But in our view the applicant ought not to be made to suffer for absence of a proper Court for reception of such an application, and, therefore, the said day should as well as be excluded. If Sept. 20, 1982, be excluded, it must be held that the application was presented well within time when it was moved before the Court on September 21, 1982. Even assuming for a moment that the appellant is not entitled to exclusion of September 20, 1982 that not being a formally declared holiday for the Court, the undisputed facts in our opinion make out a sufficient case for condonation of that day’s delay under the provision of Section 5, Limitation Act. Therefore, even if we accept the contention of Mr. Dey and hold that September 20,1982, cannot be excluded for the purpose of calculating the period of limitation, we feel no hesitation in condoning that day’s delay in exercise of our discretion under Section 5, Limitation Act.
13. After analyzing the facts of this case the only question arose as it appears to us that whether taking out of a notice of motion is directory or mandatory. It appears to us that the application if at all to be filed before the Court, it has to be accompanied with the notice of motion because the petition is the ground of the notice of motion which has to be taken out by the parties before presentation of the said application in accordance with Chapter XX Rule 3 of the Original Side Rules. In 71 CWN 230, P.C. Ray (India) Pvt. Ltd. v. B. Base Private Limited, the Hon’ble Division Bench has specifically dealt with the matter and came to the conclusion that the application should have been filed by way of a notice of motion and not otherwise. The petition is merely the ground under the said notice of motion. Therefore, without a notice of motion it cannot be treated that an application is on record of the Court.
14. It is necessary at this stage for us to quote Rules 3, 4 and 7 of Chapter XX of the Original Side Rules of this Court which are as follows:
3. Application on motion after notice.-Ex parte orders.-Except where otherwise provided by statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in Chambers, shall be made on motion after notice to the parties affected thereby, unless, according to the practice existing at the time of passing of these rules, an order might be made absolute ex parte in the first instance; but the Court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court may think just, and any party affected by such order may move to set it aside.
4. Title, contents and signature of notices of motions.-A notice of motion shall be instituted in the suit or matter in which the application is intended to be made, and shall state the time and place, of application, [and] the nature of the order asked for, with a note at foot specifying the grounds to be used in support of the application. If shall he addressed to the party or parties intended to be affected by it and their [Advocate acting on the Original Side] or [Advocate acting on the Original Side (if any) [including the caveat (if any) who has lodged a caveat under Section 148A of the Court] and shall be signed by the [Advocate acting on the Original Side] of the party moving, or the party himself where he acts in person.
7. Four clear day’s’ notice for motion.-Filing of notice.-Filing of affidavits in answer or reply.-Unless the Court or a Judge gives special leave to the contrary, there shall be at least four clear days between the service of a notice of motion and the day named for bringing on the motion. The notice of motion together with the affidavit or affidavits of service […] shall be filed in the Registrar’s Office immediately after service of the notice, but not less than four days before the day named for bringing on the motion. Affidavits in answer or reply shall be filed in the Registrar’s Office not later than 4 p.m. on the day preceding the day named for the hearing, or, where such day is a Monday, not later than 1 p.m. on the previous Saturday.
15. After construing the said rules it appears to us that the requirement of the application to be initiated through a notice of motion is apparent from the said rules. The question at this stage whether such requirement is mandatory or not and after analyzing the decisions of the Hon’ble Division Bench in Union of India v. Union Builders , the Hon’ble Division Bench of this Court construed the provisions of Rules 3 and 7 of Chapter XX and held that compliance of such Rules should be directory in relation to controversy involved in that case.
16. Therefore, there cannot be any doubt that the normal procedure is that application has to be taken out by way of a notice of motion and such notice to be taken out not less than four clear days and in case of short service of such notice of motion leave has to be taken from the Court. But where the matter is so urgent, in that case the Court may make an order on an application dispensing such service of notice of motion at that point of time. It may happen that a suit has been dismissed for want of prosecution and the Counsel may appear before the Court and makes an application for restoration of the same, the Hon’ble Judge after hearing him and the defendant may set aside the dismissal order and restore the proceedings. It is not necessary to take out any notice of motion on such application at that point of time. Therefore, it has to be construed that the application was entertained by the Court dispensing the said formalities. Even, in some cases, we have found that a party may come before the Court and moves an application which cannot wait even for a day and files an application without taking out a notice of motion and the Court entertains such application and directs him to serve a notice of motion to the other side so that the other side can appear before the Court on the returnable date and submissions can be made by them on such date. Therefore, it is clear that service of notice of motion is nothing but a notice to the parties who can appear before the Court and can present his case. Therefore, it is a direction of the Court on the applicant to serve such notice to the other side. Therefore, we have to come to the conclusion that the taking out of a notice of motion under Chapter XX of the Original Side Rules is directory in nature.
17. In the facts and circumstances of this case, we cannot brush aside that the Court passed an order on the application which was specifically stated as “noted as made today”. Then automatically it is to be accepted that the Court on that date duly accepted the application. Before we part, we must also express ourselves that the rules are nothing but procedural steps to be taken by the parties and has been framed by the Court. Therefore, the Court must have power to dispense with the same. Accordingly, we uphold the order so passed by the Hon’ble First Court and dismiss this appeal.
Tapan Kumar Dutt, J.
18. I agree.
