2nd Schedule to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such Order shall be made upon such terms as to costs or otherwise as shall seem just.

Motion may be made at any time. Motion paper, or

application to Registrar.

Motion list.

Affidavits.

Hearing of motions.

Adjournment.

Motions ex parte, or on notice.

Absolute order, or

order to show

cause.

Argument on

motion.

Orders on ex parte motions.

Court may

vary or dis

Order XXVII.

INTERLOCUTORY APPLICATIONS.

1. Motions.

1. Interlocutory applications may be made by motion at any stage of a cause or matter.

2. Unless the Court shall otherwise order, no motion shall be entertained until the party moving has filed a motion paper, or made verbal application to the Registrar, distinctly stating the terms of the order sought.

3. The Registrar shall make up, for each day on which the Court appoints motions to be heard, a motion list, on which he shall enter the names of each cause in which a motion is made, the party moving, and the terms of the order sought by him.

4. There shall be filed with the motion paper all affidavits on which the person moving intends to rely.

5. The motion shall be made on such days and at such times as are by the regulations of the Court appointed for hearing motions. In cases of urgency the motion may, by leave of the Court, be made at any time while the Court is sitting.

6. The hearing of any motion may from time to time be adjourned upon such terms as the Court may deem fit.

7. Motions may be made either ex parte or after notice to the parties to be affected thereby.

2. Ex parte Motions.

8. On a motion ex parte the party moving shall apply for either an immediate absolute order of the Court, in the terms of the motion paper, on his own showing and evidence, or an order on the other party to appear on a certain day and show cause why an order should not be made in terms of the motion paper.

9. Any party moving in Court ex parte may support his motion by argument addressed to the Court on the facts put in evidence; and no party to the suit or proceeding, although present, other than the party moving, shall be entitled to be then heard.

10. Where a motion is made ex parte, the Court may refuse to make the order sought, or may grant an order to show cause why the order sought should not be made, or may allow the motion to be made on notice to the parties to be affected thereby.

11. Where an order is made on a motion ex parte, any party affected by it may, within seven days after service of it, or within charge order. such further time as the Court shall allow, apply to the Court by motion to vary or discharge it; and the Court on notice to the party

obtaining the order either may refuse to vary or discharge it, or may 2nd Schedule vary or discharge it with or without imposing terms as to costs or security, or otherwise, as seems just.

3. Orders to Show Cause.

12. An order to show cause shall specify a day when cause is to be Return-day to shown, to be called the return-day to the order, which shall ordinarily be specified. be not less than three days after service.

13. A person served with an order to show cause may, before the Counterreturn-day, produce evidence to contradict the evidence used in ob- evidence. taining the order, or setting forth other facts on which he relies to induce the Court to discharge or vary such order.

certain cases.

14. On the return-day, if the person served do not appear, and it Further appears to the Court that the service on all proper parties has not service in been duly effected, the Court may enlarge the time and direct further service or make such other order as seems just.

15. If the person served appear, or the Court is satisfied that Appearance service has been duly effected, the Court may proceed with the or proof of

matter.

service.

orders.

16. The Court may either discharge the order or make the same General absolute, or adjourn the consideration thereof, or permit further evi- powers as to dence to be produced in support of or against the order, and may modify the terms of the order so as to meet the merits of the case.

4. Notice of Motion.

17. Unless the Court gives special leave to the contrary there shall Notice of be at least two clear days between the service of a notice of motion motion. and the day narned in the notice for hearing the motion.

18. Notice of motion may without leave of the Court be served by Service of any person notwithstanding that such person is not an officer of the notice. Court.

19. Where a party acts by a solicitor service of notice of motion on Service on such solicitor shall be deemed good service on such party.

solicitor.

affidavit to be

20. Along with the notice of motion there shall be served a copy of Copy of any affidavit on which the party moving intends to rely at the hearing served with of such motion.

notice.

served.

21. If at the hearing of any motion the Court shall be of opinion Where all that any person to whom notice has not been given ought to have or parties not to have had such notice, the Court may either dismiss the motion, or adjourn the hearing thereof in order that such notice may be given, upon such terms as to the Court may seem fit.

22. The plaintiff may, by leave of the Court, cause any notice of Service with motion to be served upon any defendant with the writ of summons.

5. Evidence in Interlocutory Proceedings.

writ of summons.

23. Oral evidence shall not be heard in support of any motion Oral evidence. unless by leave of the Court. Where the party moving is illiterate, the Court; may direct evidence to be taken by the Registrar, or other

2nd Schedule fit officer of Court, and the minutes of such evidence may be used as an affidavit.

Evidence in addition to or in lieu of affidavits.

Notice to parties.

Evidence, how taken.

Affidavit not filed with

motion paper.

Where

change of interest, Court may make order

enabling suit to proceed.

When suit does not abate.

When cause of action survives.

When cause of action accrues to survivors.

24. In addition to or in lieu of affidavits the Court may, if it thinks it expedient, examine any witness vivâ voce, or receive documents in evidence, and may sumrion any person to attend to produce documents before it, or to be examined or cross-examined before it in like manner as at the hearing of a suit.

25. Such notice as the Court in each case according to the circumstances considers reasonable, shall be given to the persons summoned, and to such persons (parties to the cause or matter or otherwise interested) as the Court considers entitled to inspect the documents to be produced, or to examine the person summoned, or to be present at his examination as the case may be.

26. The evidence of a witness or any such examination shall be taken in like manner as nearly as may be as at the hearing of a

suit.

27. Upon the hearing of any motion the Court may, on such terms as it may deem fit, allow any affidavit to be used although such affidavit has not been filed with the motion paper, and although a copy thereof has not been served on the opposite side along with the notice of motion.

Order XXVIII.

ALTERATION OF PARTIES.

1. Where after the institution of a suit any change or transmission of interest or liability occurs in relation to any party to the suit, or any party to the suit dies or becomes incapable of carrying on the suit, or the suit in any other way becomes defective or incapable of being carried on, any person interested may obtain from the Court any order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings.

But any person served with such an order may, within such time as the Court in the order directs, apply to the Court to discharge or vary the order.

2. The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survive.

3. If there be two or more plaintiffs or defendants, and one of them die, and if the cause of action survive to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and against the surviving defendant or defendants.

4. If there be two or more plaintiffs and one of them cie, and if the cause of action shall not survive to the surviving paintiff or plaintiffs alone, but shall survive to them and the legal representative of the deceased plaintiff jointly, the Court may, on the application of the legal representative of the deceased plaintiff, enter the name of such representative in the suit in the place of such deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and such legal representative of the deceased plaintiff. If no application shall be made to the Court by any person claiming to

be the legal representative of the deceased plaintiff, the suit shall 2nd Schedule proceed at the instance of the surviving plaintiff or plaintiffs; and the legal representative of the deceased plaintiff shall, after notice to appear, be interested in, and shall be bound by the judgment given in the suit, in the same manner as if the suit had proceeded at his instance conjointly with the surviving plaintiff or plaintiffs, unless the Court shall see cause to direct otherwise.

plaintiff.

5. In case of the death of a sole plaintiff, or sole surviving plaintiff, Death of sole the Court may, on the application of the legal representative of such or surviving plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed; if no such application shall be made to the Court within what it may consider a reasonable time by any person claiming to be the legal representative of the deceased sole plaintiff or sole surviving plaintiff, it shall be competent to the Court to make an order that the suit shall abate, and to award to the defendant the reasonable costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased sole plaintiff or surviving plaintiff; or the Court may, if it thinks proper, on the application of the defendant, and upon such terms as to costs as may seem fit, make such order for bringing in the legal representative of the deceased sole plaintiff or surviving plaintiff, and for proceeding with the suit in order to a final determination of the matters in dispute, as may appear just and proper in the circumstances of the case.

sentative.

6. If any dispute arise as to who is the legal representative of a Dispute as to deceased plaintiff, it shall be competent to the Court either to stay legal reprethe suit until the fact has been duly determined in another suit, or to decide at or before the hearing of the suit who shall be admitted to be such legal representative for the purpose of prosecuting the suit.

defendant.

7. If there be two or more defendants, and one of them die, and Death of one the cause of action shall not survive against the surviving defendant of several defendants, or or defendants alone, and also in case of the death of a sole defendant, of a sole or or sole surviving defendant, where the action survives, the plaintiff surviving may make an application to the Court, specifying the name, description, and place of abode of any person whom the plaintiff alleges to be the legal representative of such defendant, and whom he desires to be made the defendant in his stead; and the Court shall thereupon enter the name of such representative in the suit in the place of such defendant, and shall issue an order to him to appear on a day to be therein mentioned to defend the suit; and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant, and had been a party to the former proceedings in the suit.

8. The bankruptcy of the plaintiff, in any suit which the assignee Bankruptcy or trustee might maintain for the benefit of the creditors, shall not be of plaintiff. a valid objection to the continuance of such suit, unless the assignee or trustee shall decline to continue the suit, and to give security for the costs thereof, within such reasonable time as the Court may order; if the assignee or trustee neglect or refuse to continue the suit and to give such security within the time limited by the order, the defendant

2nd Schedule may, within eight days after such neglect or refusal, plead the bankruptcy of the plaintiff as a reason for abating the suit.

Cause to be placed on cause list.

Order of

causes on list.

Causes to be

taken in order.

Adjournment of causes.

District Com

causes in absence of Judge.

IV. Hearing and Judgment.

Order XXIX.

LISTING OF CAUSES FOR HEARING.

1. It shall not be necessary for the defendant to enter a formal appearance, but on the return day marked on the writ of summons (the summons having been served), the cause shall be placed by the Registrar on the cause list for that day.

2. Subject to the provisions of rule 4 of this Order, causes shall be placed on the cause list in the order of the date of the issue of their respective writs of summons.

3. Causes shall be taken for hearing in the order in which they stand on the cause list for the day: provided that the Court may direct any cause to be heard out of its ordinary turn.

4. Any cause on the cause list not disposed of during the course of the day may be adjourned to a future day. Any causes not so adjourned shall be placed on the cause list of the following day before all causes returnable for hearing on that day and in the same order as they stood on the cause list of the previous day. No further notice to either party of any such adjournment or of any cause being placed on the cause list of the following day shall be requisite, unless otherwise ordered by the Court.

5. In case the Judge before whom any Divisional Court is to be missioner may held shall fail to attend the same on a day on which any cause is adjourn fixed for hearing, it shall be lawful for any District Commissioner by the direction of the Judge, or, (in case no such direction is given) for the District Commissioner of the district, to adjourn any cause so fixed, either to any definite date of which no further notice will be given, or to an unspecified future date notice of which will be given to the parties. The District Commissioner shall make a note of each such adjournment.

In what cases.

Absence of witness.

Order XXX.

POSTPONEMENT OF HEARING.

1. The Court may postpone the hearing of any cause on being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the questions between the parties on the merits, and is not made for the purpose of mere delay. The postponement may be made on such terms as to the Court seems. just.

2. Where such an application is made on the ground of the absence of a witness, the Court shall require to be satisfied that his evidence is material, and that he is likely to return and give evidence within a reasonable time.