Ranchoddas and Others v Taibji and Another (Civil Case No. 77 of 1928) [1928] EACA 6 (1 January 1928)

## ORIGINAL CIVIL.

Before PICKERING, J.

## MORARJI RANCHODDAS AND OTHERS $\overline{\mathfrak{g}}$

## HUSSEINBHAI TAIBJI AND ANOTHER. $^{\prime}$ C. C. 77/1928 (Msa).

'Civil Procedure Rules, 1927-Order 23, security for costs of a defendant.

## *Held*: -That a Judge can only make an order for security for costs<br>under Order 23 when sitting in open Court, and the application<br>must be by motion on notice so returnable.

ORDER.—The defendant herein has lodged an application returnable before a Judge in Chambers asking that the plaintiff Morarji be ordered to furnish security for the defendants' costs of the suit. The manner in which this Court shall entertain and deal with such an application is prescribed in Order XXIII; rule 2 (3) of that Order runs "Any application under this rule<br>shall be made by motion on notice." It has been urged on behalf of the plaintiff respondent that by reason of this sub-rule no valid Order under Order XXIII can be made by a Judge when sitting in Chambers, and that the words motion or notice necessitate a hearing in open Court. The wording of the Order is consistent with this contention in that it is directed that orders requiring security for costs shall be made by "the Court." Where the words "the Court" appear in the Rules of the Supreme Court of England they are taken to mean the Court sitting in banc, that is a Judge or Judges in open Court; and it has been held that the words do not include a Judge in Chambers. Similarly it has been held that the word "Judge" in the English rules includes a Judge sitting in Chambers. The same words with a corresponding connotation were used in the Rules of the Supreme Court in Ireland. So far as I am aware throughout our local rules it is laid down that the jursidiction of the Supreme and Subordinate Courts shall be exercised by "the Court" and that the phrase "the Court or a Judge" is not to be found in any order. From the consistent use of the words "the Court" it would appear that the local rule-making authority intended that all business should proceed in open Court except where provision is otherwise made by the introduction of specific words; some of the phrases which are actually used to effect this modification of the general rule are "application by Chamber Summons " (O. XXI r. 12) or "application by Summons in Chambers " (O. XXVII r. 11); or again an originating Summons whether taken out under O. XXXI r. 1 (a) or O. XXXIV r. 1

may be made returnable before " a Judge sitting in Chambers." Throughout the rules indications are to be found that applications by way of summons should be made returnable in Chambers: and although it is not so clearly indicated that motions should be heard in open Court, yet that some real distinction in procedure exists between motions and summonses is apparent from provisions such as are to be found in O. I r. 13 where it is directed that an application under that rule may be made to the Court by "motion or summons." The contents of O. LII r. 1 of the Rules of the Supreme Court in Ireland indicate that applications made in Court can be aptly regarded as made by motion. That rule runs "where by these rules any application is authorized to be made to the Court or a Judge, such application if made to a Divisional Court or to a Judge in Court shall be made by motion." I have also considered the Rules of Court-No. 3 of 1911 which purport to control the Transaction of Business in Chambers. Whether those Rules of Court are still valid I am uncertain, but it is in my opinion clear that a Judge cannot in the exercise of the discretion given to him under Rule 3 "The business to be disposed of in Chambers shall consist of $\ldots$ (8) Such other matters as the Judge may think fit to dispose of at Chambers' direct that an application may be made returnable in Chambers where a specific provision as to procedure has been inserted in the Rules made under the Civil Procedure Ordinance. For these reasons I am of opinion that a Judge of this Court can only make an Order for security for costs under Order XXIII when sitting in open Court and that this application. should have been by motion on notice made so returnable.