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SCHEDULE II. Ord. 28. When Cause of Action accrues to Survivors.
4. If there be two or more Plaintiffs and one of them die, and if the cause of action shall not survive to the surviving Plaintiff 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 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.
Death of Sole
5. In case of the death of a sole Plaintiff, or sole surviving or Surviving Plaintiff, the Court may, on the application of the legal representative of such 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.
Dispute as to 6. If any dispute arise as to who is the legal representative of a Legal Repre- deceased Plaintiff, it shall be competent to the Court either to stay
the 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.
Death of one
7. If there be two or more Defendants, and one of them die, and the cause of action shall not survive against the surviving Defendant or Defendants alone, and also in case of the death of a sole Defendant, or sole surviving Defendant, where the action survives, the Plaintiff 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 SCHEDULE II. to defend the Suit; and the case shall thereupon proceed in the Ords. 28-29. 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 Bankruptcy Assignee or Trustee might maintain for the benefit of the Creditors, shall not be 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 may, within eight days after such neglect or refusal, plead the bankruptcy of the Plaintiff as a reason for abating the Suit.
IV. Hearing and Judgment.
ENTRY OF CAUSES FOR HEARING.
1. It shall not be necessary for the Defendant to enter a formal Cause to be appearance, but on the return day marked on the writ of summons placed on (the summons having been served) the cause shall be placed by the Registrar on the cause list for the current week.
The Registrar shall, unless otherwise directed, make every writ of summons returnable on a Monday, or if Monday be a dies non, on the next working day.
2. Subject to the provisions of Rule 4 of this Order, causes Order of shall be placed on the cause list in the order of the time of issue of Causes on their respective writs of summons.
3. Causes shall be taken for hearing in the order in which they Causes to be stand on the weekly cause list, and such list shall be proceeded taken in with from day to day until disposed of, provided that the Court may direct any cause to be heard out of its turn.
4. Any cause on the list not disposed of during the course of the Adjournment week may be adjourned to a future day or week. Any causes not of Causes. so adjourned shall be placed on the cause list for the following week before all causes returnable for hearing in that week, and in the same order as they stood on the cause list for the previous week. No further notice to either party of any such adjournment, or of any cause being placed on the cause list of the following week shall be requisite, unless otherwise ordered by the Court.
5. In case the Judge before whom any Divisional Court is to be Adjournment held shall fail to attend the same on a day on which any cause is of Cases fixed for hearing, it shall be lawful for any District Commissioner fixed. specially 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
SCHEDULE II. notice will be given, or to an unspecified future date notice of Ords. 29-32. which will be given to the parties. The District Commissioner shall make a note of each such adjournment.
Witness out of
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.
3. Where an application is made for the purpose of enabling the party applying to obtain the evidence of a witness resident out of the jurisdiction, the Court shall require to be satisfied that the evidence of the witness is material, and that he is permanently residing out of the jurisdiction, or does not intend to come within the jurisdiction within a reasonable time.
SITTINGS OF COURT.
1. Subject to the provisions of the Ordinance, the Court may, at its discretion, appoint any day or days, from time to time, for the Hearing of causes as circumstances require.
2. Subject to special arrangements for any particular day, the business of the week shall be taken as nearly as circumstances permit in the following order:
(a) Ex parte motions.
(b) Motions on notice, and arguments on showing cause.
(d) Interpleader issues.
(e) Judgment in matters standing over for that purpose.
1. The Trial of every Suit shall take place before a Divisional Court or a District Commissioner, and such Court or Commissioner, District Com- as the case may be, shall determine all questions of fact or of law, missioner. or partly of fact and partly of law, arising in such Suit.
2. If the Court considers it conducive to justice, it may direct that any one or more Issues of Fact or Law arising in any Suit may be tried before any other Issue or Issues.
1. In the absence of any agreement between the parties, and Evidence of subject to these Rules, the witnesses at the trial of any cause shall Witnesses, be examined rivâ voce, and in open Court; but the Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial on such conditions as the Court may think reasonable; or that any witness, whose attendance in Court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise, before a Commissioner: provided that every witness making an affidavit so received shall be liable to cross-examination in open Court, unless the Court shall direct the cross-examination to take place in any other manner.
2. The Court may, in its discretion, if the interests of justice Admission of appear absolutely so to require (for reasons to be recorded in the Affidavits. Minutes of Proceedings), admit an affidavit, in evidence, although it is shown that the party against whom the affidavit is offered in evidence has had no opportunity of cross-examining the person making the affidavit.
3. The Court may, in any cause or matter where it shall appear Evidence necessary for the purpose of justice, make any Order for the preparatory to Hearing. examination before any Officer of the Court, or other person, and at any place, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court may direct.
*4. Any Judge, or Commissioner, or other Officer of Court, shall, Who may on the request in writing of any Court before which a cause or take matter is pending, so take evidence for the purposes of the cause or
5. The evidence, when not directed to be taken upon Interro- How to be gatories previously settled, shall be taken as nearly as may be as taken. evidence at the Hearing of a Suit, and then the Note of Evidence shall be read over to the witness, and be signed by him. If he refuses the Judge or Commissioner shall add a note of his refusal, and the statement may be used as if he had signed it.
6. Evidence may be taken in like manner on the application of Evidence any person before Suit instituted, where it is shown to the satisfac- before Suit tion of the Court on oath that the person applying has good reason to apprehend that a Suit will be instituted against him in the Court, and that some person within the jurisdiction at the time of
As to Commissions to take evidence in England, see 22 Vict. c. 20, and 48 & 49 Vict. c. 74.
SCHEDULE II. the application can give material evidence respecting the subject of Ords. 33-34. the apprehended Suit, but that he is about to leave the jurisdiction, or particular jurisdiction, or that from some other cause the person applying will lose the benefit of his evidence if it be not at once taken; and the evidence so taken may be used at the Hearing, subject to just exceptions: provided always that the Court may impose any terms or conditions with reference to the examination of such witness, and the admission of his evidence as to the Court may seem reasonable.
7. Any party desiring to give in evidence any deed or other proving Deed, instrument which shows on the face of it that it is duly executed, may deliver to the opposite party not less than four clear days before the return day a notice in writing, specifying the date and parties and the nature of the deed or instrument, and requiring such party to admit the same, saving all just exceptions as to its admissibility, validity and contents; and if at the Hearing the party so notified neglect or refuse to give such admission, the Court may adjourn to enable the party tendering such deed or instrument to formally prove the same, and, upon the production of such proof, the Court may order the costs of such proof to be paid by the party neglecting or refusing to admit the same.
Non-appearance of both
Counterclaim where Plaintiff does not appear.
NON-ATTENDANCE OF PARTIES AT HEARING.
1. Where a cause on the cause list has been called, if neither party appears the Court shall, unless it sees good reason to the contrary, strike the cause out of the cause list.
2. If the Plaintiff does not appear the Court shall, unless it sees good reason to the contrary, strike out the cause (except as to any er-claim by the Defendant) and make such order as to costs in favour of any Defendant appearing as seems just provided that if the Defendant shall admit the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the Plaintiff had appeared.
3. If the Plaintiff appears and the Defendant does not appear or sufficiently excuse his absence or neglects to answer when duly called, the Court may, upon proof of service of the summons, proceed to hear the cause and give judgment on the evidence adduced by the Plaintiff, or may postpone the Hearing of the cause and direct notice of such postponement to be given to the Defendant.
4. Where the Defendant to a cause which has been struck out under Rule 2 of this Order has a counter-claim the Court may, on due proof of service on the Plaintiff of notice thereof, proceed to hear the counter-claim and give judgment on the evidence adduced by the Defendant, or may postpone the Hearing of the counterclaim and direct notice of such postponement to be given to the Plaintiff.