Gihir v Batten (Civil Suit No. 1810 of 1953) [1954] EACA 77 (1 January 1954)

### ORIGINAL CIVIL

### Before CRAM Ag. J.

### NARATI GIHIR, Plaintiff

ν.

# G. F. BATTEN, Defendant

### Civil Suit No. 1810 of 1953

Civil Procedure and Practice-Civil Procedure (Revised) Rules-Order 50, rule 1 -Whether applicant who has applied under the wrong rule may have at the hearing recourse to the right rule—Order 50, rule 3—Contents of notice of motion—Whether notice must contain reference to a rule.

The applicant applied to have "an ex parte judgment" set aside, whereas judgment had been entered in default of appearance. The notice of motion was headed "Order 9, rule 24". At the hearing the applicant submitted he could have recourse to Order 9, rule 10, as the appropriate rule. The respondent submitted no such recourse was open to the applicant.

$Held$ (5-10-54).—(1) Although the applicant had moved under the wrong rule, there was no rule of law or practice forbidding him recourse to the proper rule and to have his application considered on the merits.

(2) In asking for an order from the Court, a party is not bound to state under which rule or order he proposes to move, although it is good practice to do so.

Cited: In re Barker's Estate, (1879) 10 Ch. D. 162; Annual Practice 1954 p. 936.

#### Couldrey for applicant.

# D. N. Khanna for respondent.

RULING.—The judgment on record is beyond equivocation a judgment by default. The application is headed "Notice of Motion-Order 9, rule 24" and this in itself precludes argument that there is no more than a mere misdescription of the nature of the judgment. The application has been brought under the wrong rule. While it is good practice to insert into the Motion the order and the rule under which an application is brought, neither the Civil Procedure (Revised) Rules, 1948, nor the Civil Procedure Ordinance anywhere makes such reference mandatory. To the contrary, on this topic both are silent. For example, the use of the Forms in the Appendices is enjoined by Order 47, rule 3, and, on those forms, the orders and rules are shown in brackets, presumably as a reference and not as part of the form itself. There is also high authority in England, still current, to the effect that "... in asking for an order from the court a party is (not) bound to state under which rule or order he proposes to move" per Hall, V. C., in re Barker's Estate, (1879) 10 Ch. D. 162.

The learned Vice-Chancellor went on to say: "... it frequently happens that parties move under a particular rule, and then when they find it as a wrong one, turn to another, and an order is made". While these remarks might be said to be obiter dicta to the decision in that case, yet they were germane to

the submission tendered by the respondents to the motion in that case. The remarks proceeding from high authority are entitled to very great respect and are quoted as authority for the practice in the 1954 edition of the Annual Practice at page 936, demonstrating that there has been, so far as the learned authors are concerned, no authority to the contrary up to the present day. That is, the practice is hallowed by the passage of over 75 years. Although these remarks may be *obiter* and may not be binding on this Court, nevertheless they are very apt to assist in solving the preliminary issue before the Court, and, with respect, I propose to adopt them.

I rule, therefore, that although the applicant, from carelessness, failed to bring his motion under the proper rule and, indeed, brought it under the wrong rule, he may turn to the right rule and have his application considered on its merits.