Maritime Association Of Ship ... vs Mackinnon Mackenzie And Co. Ltd.
2002 Latest Caselaw 688 Bom

JUDGMENT

D.G. Karnik, J.

1. Yesterday, a praecipe was filed before me by Mr. O. P. Soni, Advocate accompanied by a draft Judge's Order and an affidavit dated 8-7-2002 sworn in by Captain A. P. Kothurkar, Secretary of the applicant. Learned counsel for the applicant then requested me to pass an order in terms of the draft Judge's Order and requested me to sign the Judge's Order tendered to me.

2. In the last few days, since I took up this assignment, many such requests were made for passing of orders in terms of Judge's Order, almost all of which I had declined to grant. Since repeated requests are made, I am passing this speaking order in this matter after having heard all the appearing counsels in several matters which were listed today under the caption "Judge's Order". Learned counsel stated that the phrase "Judge's Order" is not used anywhere in the Bombay High Court (Original Side) Rules (for short "the Rules") except in Form No. 109. Form No. 109 is regarding Letters of Administration which has no relevance to this matter or any other matters in which the "Judge's Order" was sought. Learned Counsel submitted that under Rule 988, in respect of matters not provided by the Code of Civil Procedure or by the Rules, the present practice and procedure is to be followed so far as it is applicable and not inconsistent with the Code of Civil Procedure and the Rules. It was contended that the practice of handing in draft "Judge's Order" is followed in this Court for many years prior to the said Rules and that Judges have been signing such draft orders and therefore, the same practice should be continued.

3. Rule 55 of the Rules prescribes that all petitions and miscellaneous applications shall be on oath and shall be verified in the manner provided by Order VI, Rule 15 of the Code of Civil Procedure for verification of the pleadings. It is thus clear that a request to pass the "Judge's Order" must also be made by means of a petition declared on oath and verified in the manner provided by Order VI, Rule 15 of the Code of Civil Procedure. The present practice to hand in the Judge's Order and an affidavit, without moving/filing any petition is contrary to Rule No. 55 and is therefore, not saved by Rule No. 988. Presently, the request for Judge's Order is made by means of a praecipe, called out at 2.45 p.m., under the caption "Judge's Order". The affidavit and the Judge's Order is numbered and no record is maintained in the office until the Judge's

Order is signed by the Judge in Chambers. When the Judge declines to pass an order, the papers are simple taken back by the learned counsel. This is undesirable state of affairs. I have no doubt that no counsel of this Court would do it but any uncanny litigant may change the counsel and present the same Judge's Order which was once declined, before another Judge after the Roaster/assignment changes. It is, therefore, absolutely necessary that before moving the Court or the Judge in Chambers, to pass the Judge's Order, an application/petition as required under Rule 55 of the Rules be filed. The office should examine and number the petition. There should be a paper record. Only thereafter, the petition accompanied by the draft "Judge's Order" may be placed before the Judge in Chambers.

4-5. Let me examine the present draft "Judge's Order" presented to me. In this Judge's Order, Maritime Association of Ship owners and Ship Managers and Agents is shown as the Applicant and Mackinnon Mackenzie and Company Ltd. is shown as the Respondent. No other person is joined as a party to the "Judge's Order". The "Judge's Order" as handed in by the learned counsel reads thus :

"Upon hearing Shri O. P. Soni, Advocate instructed by M/s. O. P. Soni and Co. and upon reading an affidavit of Captain A. P. Kothurkar, Secretary of the Applicants abovenamed affirmed on of 8th of July 2002, it is hereby ordered and directed that leave to sue is granted to the applicant to sue the Court Receiver, High Court, Bombay in R.A.D. Suit bearing Stamp No. 1478.02 filed by the Applicants in the above matter against Mackenzie and Company Ltd., Defendants in the above High Court Suit No. 2348/90."

On this 10th day of July, 2002.

Checked by :

Chamber Registrar. Judge."

6. If this "Judge's Order" is signed, it would have the effect of permission being granted by me to sue the Court receiver appointed by this court in suit No. 2348 of 1990 by joining him as a party to R.A.D. Suit bearing stamp No. 1478 of 2002 pending in the Small Causes Court, at Mumbai. Copy of the plaint bearing stamp No. 1478 of 2002 is not presented to me and the Judge's Order is sought. Perusal of the records of the suit No. 1348 of 1990, shows that the suit is filed by Bank of India against Mackinnon Mackenzie and Company and four other defendants. Neither Bank of India nor the other four defendants to the suit are shown to be parties to the "Judge's Order". The learned counsel for appearing parties in Suit No. 1348 of 1990 appeared before me (on their names being shown on board on account of my directions passed yesterday) and stated that they are not even aware what Judge's Order is sought and on what grounds. I have narrated these facts only to demonstrate in what manner orders are sought ex parte under the caption "Judge's Order".

7. It is therefore necessary to forthwith discontinue the practise of presenting the "Judge's Order" at 2.45 p.m. by or under a praecipe. Hence forward, all requests/prayers for Judge's Order shall be made by means of a petition/application which should be filed in the office, and be placed before the

Judge in Chambers only after it is examined and numbered. In cases of extreme urgency, the application may bear the presentation/lodging/stamp number. 8. A copy of this order be sent to the Prothonotary and Senior Master.