« EdellinenJatka »
Court may require Security in respect of Counterclaims.
Notice and Service thereof.
ORDER VIII.-GUARDIAN FOR PURPOSES OF SUIT.
1. Where on default made by a Defendant in answering or otherwise defending the Suit, after service of the Writ, it appears Infant Defen- to the Court that he is an infant, or a person of weak or unsound
Court may appoint Guardians to
mind, so that he is unable of himself to defend the Suit, the Court
is out of the jurisdiction, or is only temporarily therein, he shall assign a fit place within the jurisdiction where notices or other papers issuing from the Court may be served on him.
2. If it shall be made to appear on Oath or Affidavit to the satisfaction of the Court that the Defendant has a bona fide counterclaim against such Plaintiff which can be conveniently tried by the Supreme Court, it shall be lawful for the Court in its discretion to stay proceedings in the Suit instituted by such Plaintiff until he shall have given such security to comply with the orders and judgment of the Court with respect to such counter-claim as the Court shall think fit.
Suits relating to Land.
ORDER VII.-ISSUE OF WRIT.
1. The Writ of Summons may be sued out and issued either in the Divisional Court where the Suit is to be tried, or by the Commissioner of the District where the Defendant resides.
2. Before such an order is made the Court shall cause such notice as it thinks reasonable to be served on, or left at the dwelling-house of the person with whom, or under whose care, the Defendant is, and also, unless the Court sees good reason to the contrary, in the case of an infant not residing with or under the care of his Guardian to be served on or left at the dwelling-house of his Guardian.
3. Infants or persons of weak or unsound mind may sue as Plaintiffs by their Committee or next friend, on such terms as to the liabilities for costs and otherwise of such Committee or next friend as the Court shall deem just.
ORDER IX.-PLACE OF TRIAL AND OF INSTITUTING SUITS.
Subject to the provisions of the Ordinance respecting transference, the place for the trial of any Suit or matter shall be regulated as follows:
1. All Suits relating to land, or any mortgage or charge thereon, or any other interest therein, or for any injuries thereto, and also all actions relating to personal property distrained or seized for any cause, shall be commenced and determined in the Province in which the land is situated, or the distress or seizure took place.
2. All actions for recovery of penalties and forfeitures, and also SCHEDULE II. all actions against Public Officers, shall be commenced and tried in the Province in which the cause of action arose.
3. All Suits for the specific performance, or upon the breach of Penalties. any contract, may be commenced and determined in the Province Suits upon in which such contract ought to have been performed or in which Contract.
the Defendant resides.
4. All other Suits may be commenced and determined in the Other Suits. Province in which the Defendant resides or carries on business. If there are more Defendants than one resident in different Provinces, the Suit may be commenced in any one of such Provinces ; subject, however, to any order which the Court may, upon the application of any of the parties, or on its own motion, think fit to make, with a view to the most convenient arrangement for the trial of such Suit.
5. In case any Suit shall be commenced in any other Province Suits comthan that in which it ought to have been commenced, the same may, notwithstanding, be tried in the Province in which it shall Province. have been so commenced, unless the Court shall otherwise direct, or the Defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause.
6. No proceedings which may have been taken previously to Transfer of such plea in objection shall be in any way affected thereby; but Proceedings. the Judge shall order that the cause be transferred to a Divisional Court of the Province to which it may be proved to his satisfaction to belong, or, failing such proof, that it be retained and proceed in the Court in which it has been commenced, and such Order shall not be subject to appeal.
of Order to
7. The provisions of this Order are applicable, and shall, mutatis Application mutandis, be observed in determining the District in which any Proceedings Suit shall be tried which may be capable of being heard and before determined in any District by the Commissioner thereof.
1. The writ or document shall be served on every Defendant within the time and in the manner directed by the Court.
2. Where Partners are sued in the name of their firm, the writ or other document shall be served either upon any one or more of the Partners, or at the principal place within the particular jurisdiction of the business of the partnership upon any person having at the time of the service the control or management of the partnership business there; and such service shall be deemed good service upon the firm.
3. When the Suit is against a British Corporation or a Company, On British authorised to sue and be sued in the name of an Officer or Trustee, and Corporations the writ or document may be served by giving the same to any panies. Director, Secretary, or other Principal Officer, or by leaving it at the Office of the Corporation or Company.
Services to be
4. When the Suit is against a Foreign Corporation or Company, having an Office and carrying on business within the jurisdiction, and such Suit is limited to a cause of action which arose within the Corporations jurisdiction, the writ or document may be served by giving the same to the Principal Officer, or by leaving it at the Office of such Foreign Corporation or Company within the Jurisdiction.
5. Where the person to be served is living or serving on board of any ship, it shall be sufficient service to deliver the writ or document to the person on board who is at the time of such service apparently in charge of the ship.
6. Where the person to be served is a prisoner in a prison, it shall be sufficient service to deliver the writ or document at the prison to the gaoler or person appearing to be in charge of the prison.
7. Where the person to be served is employed or dwells in any public asylum or prison, it shall be sufficient service to deliver the writ or document to the gatekeeper of such asylum or prison.
On Person in
Where Defendant resides out of, but carries on business within jurisdiction.
When Court may direct Service out of jurisdiction.
Application for leave to serve out of jurisdiction.
Where violence threatened.
8. Where the Suit is against a Defendant residing out of but carrying on business within the jurisdiction of the Supreme Court, in his own name or under the name of a Firm through an authorised Agent, and such Suit is limited to a cause of action which arose within the jurisdiction, the writ or document may be served by giving it to such Agent, and such service shall be equivalent to personal service on the Defendant.
9. Service out of the jurisdiction may be allowed by the Court whenever the whole or any part of the subject-matter of the Suit is land or stock or other property situate within the jurisdiction, or any act, deed, will or thing affecting such land, stock, or property; and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled or otherwise affected in any such Suit, or for the breach whereof damages or other relief are or is demanded in such Suit, was made or entered into within the jurisdiction; and whenever there has been a breach within the jurisdiction of any contract wherever made, and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done, or is situate within the jurisdiction.
10. Every application for an Order for leave to serve a writ or notice on a Defendant out of the jurisdiction shall be supported by evidence by affidavit or otherwise, showing in what place or country such Defendant is or probably may be found, and the grounds upon which the application is made.
11. Any Order giving leave to effect service out of the jurisdiction shall prescribe the mode of service, and shall fix a date, subsequent to such service, as the return day, such date to depend on the place or country where or within which the writ is to be served, and the Court may receive an affidavit or statutory declaration of such service having been effected as primâ facie evidence thereof.
12. Where the officer of the Court or person charged with the service of any writ or document on any person is prevented by the violence or threats of such person, or any other person acting in
concert with him, from personally serving the same, it shall be SCHEDULE 11. sufficient to inform the person to be served of the nature of the Ords. 10-12. document and to leave it as near to such person as practicable.
13. In all cases where service of any writ or document shall Certificate of have been effected by a bailiff or other officer of the Court, a certificate of service signed by such bailiff or officer shall on production without proof of signature be primâ facie evidence of service.
14. The costs of and incidental to the execution of any process Expenses of in a Suit shall be paid in the first place by the party requiring Service. such execution, and the Sheriff shall not (except by Order of the Court) be bound to serve or execute any process unless the fees
nd reasonable expenses thereof shall have been previously paid or tendered to him; and such fees and expenses shall be costs in the
ORDER XI.-APPEARANCE OF PARTIES.
1. In every cause or matter pending before the Court, in case it Court may shall appear to the satisfaction of the Court that any Plaintiff or permit Party Defendant who may not be represented by Counsel or Attorney is to appear by Proxy. prevented by some good or sufficient cause from attending the Court in person, the Court may in its discretion permit any Servant, Clerk, or the Master or any Inmate of the family of such Plaintiff or Defendant, who shall satisfy the Court that he has authority in that behalf, to appear for such Plaintiff or Defendant.
2. Any person doing any act or taking any proceeding in the Proceeding Court in the name or on behalf of another person, not being without lawfully authorised thereunto, and knowing himself not to be so authority. authorised, shall be deemed guilty of a contempt of Court.
3. Where by any Rule of Court any act may be done by any Act may be party in a Suit, such act may be done either by himself or by his done by solicitor or agent, if it can be legally done by an agent. Agent.
II. Interim Proceedings for preventing Prejudice to Claims.
ORDER XII.-*ARREST OF ABSCONDING DEFENDANT.
1. If in any Suit for an amount or value of ten pounds or Defendant upwards the Defendant is about to leave the Province in which the leaving JurisSuit is brought or the jurisdiction of the Court, or has disposed of diction or or removed from the Province in which the Suit is brought or from Property. the jurisdiction, his property, or any part thereof, the Plaintiff may, either at the institution of the Suit, or at any time thereafter until final judgment, make an application to the Court that security Application be taken for the appearance of the Defendant to answer any for Security. judgment that may be passed against him in the Suit.
2. If the Court, after making such investigation as it may Warrant to
See Order XVI.
SCHEDULE II. consider necessary, shall be of opinion that there is probable cause for believing that the Defendant is about to leave the jurisdiction of the Court, or the Province in which the Suit is brought, or that he has disposed of or removed from the Province in which the Suit is brought, or from the jurisdiction, his property, or any part thereof, and that in either case by reason thereof the execution of any decree which may be made against him is likely to be obstructed or delayed, it shall be lawful for the Court to issue a warrant to bring the Defendant before the Court, that he may show cause why he should not give good and sufficient bail for his appearance.
3. If the Defendant fail to show such cause, the Court shall Appearance. order him to give bail for his appearance at any time when called upon while the Suit is pending, and until execution or satisfaction of any decree that may be passed against him in the Suit; and the surety or sureties shall undertake in default of such appearance to pay any sum of money that may be adjudged against the Defendant. in the Suit, with costs.
4. Should a Defendant offer, in lieu of bail for his appearance, to deposit a sum of money, or other valuable property, sufficient to answer the claim against him, with costs of the Suit, the Court may accept such deposit.
5. In the event of the Defendant neither furnishing security nor offering a sufficient deposit, he may be committed to custody until the decision of the Suit, or, if judgment be given against the Defendant, until the execution of the decree, if the Court shall so order: Provided that the Court may at any time, upon reasonable cause being shown and upon such terms as to the security or otherwise as may seem just, release the Defendant.
Deposit in lieu of Bail.
6. The application may be made to any Divisional Court or District Commissioner of the Province or District in which the ceedings may Defendant may be, and such Court or Commissioner may issue
the warrant for detaining and bringing the Defendant before the Court, and may make such further orders as shall seem just. In case the warrant shall be issued by a different Court than that in which the Suit is depending, such Court shall, on the request of either of the parties, transmit the application and the evidence therein to the Court in which the Suit is so depending, and take sufficient security for the appearance of the Defendant in that Court, or send him there in custody of an Officer of Court, and the Court in which the Suit is depending shall thereupon examine into and proceed in the application in accordance with the foregoing provisions, in manner as to it shall seem just.
Costs of Subsistence of persons Arrested.
7. The expenses incurred for the subsistence in prison of the person so arrested shall be paid by the plaintiff in the action in advance, in the manner prescribed by Order 46 in respect of the subsistence money of judgment debtors committed to prison; and the amount so disbursed may be recovered by the Plaintiff in the Suit, unless the Court shall otherwise order. The Court may release the person so imprisoned on failure by the Plaintiff to pay the subsistence money, or in case of serious illness order his removal to hospital, as in the case of an imprisoned judgment debtor.