A notice of motion on the Original Side of the High Court is a sufficient compliance with the requirement of Order 9 Rule 9 Civil Procedure Code, as amended by the Calcutta Amendment, to serve a copy of the application along with the notice.

P. B. MUKHARJI, J.

( 1 ) THIS is an application to set aside an ex parte order of dismissal made on 24-2-1955. The application is made by the plaintiff. The suit appeared on the peremptory list for hearing on 24-2-1955. No one appeared on behalf of the plaintiff. It is now said in para 16 of the petition used in support of the notice of motion and in explanation of the non-appearance that the learned counsel engaged on behalf of the plaintiff was busy in another Court actually cross-examining a witness at the time when this suit was called on for hearing. The defendant's Counsel was present on that date, and it is alleged that he prayed for the dismissal of the suit. The suit was dismissed with costs to the defendant and certified for two Counsel.

( 2 ) IT is unfortunate that only one counsel was engaged for the plaintiff in this case although the claim in this suit is for about Rs. 30,000/ -. An Attorney who briefs one counsel for the hearing of a suit placed on the interlocutory Court which is not able to reach suits every day due to interlocutory applications, takes thereby a big risk in these matters, and it is necessary for this Court to express its opinion that on that ground alone of his counsel being busy elsewhere, it cannot always accommodate Attorneys specially when it is a matter which is certified as fit for the employment of two Counsel.

( 3 ) THE merits of the case do justify in my view the setting aside of the order of dismissal on certain terms and conditions as to costs. For the fault of the Counsel, I do not think it will be in consonance with justice in this case that the plaintiff's claim should be defeated. At the same time, failure to arrange for his counsel to appear or failure to make arrangement for more than one counsel which has led to unnecessary costs being incurred by the defendant, must be compensated,

( 4 ) MR. K. C. Mukherjee appearing for the defendant has drawn my attention to the Calcutta Amendment of Order 9, 11. 9 Civil P. C. , which says in Sub-rule (3) thereof: "no order shall be made under this rule unless notice of the application (with copy thereof or concise statement as the case may be) has been served on the 'opposite party". Now in tin's case only the notice of motion was served on the respondent at first and not a cppy of the petition in support thereof. In other words, the copy of the petition in support of the notice of motion was not served at the same time as the notice of motion was served on the respondent. It was, therefore, urged by Mr. Mukherjee appearing for the defendant that this application must be dismissed.

( 5 ) MR. Amiya Nath Bose appearing for the plaintiff contends in defence, first, that this Rule in terms does not apply. Secondly, he contends that sub-clause (2) of the Calcutta Amendment indicates that the applicant while presenting the application to the Court presents as many copies thereof on plain paper as there are opposite parties. From that provision he deduces that it is the obligation of the Court to serve the copies of what are called "applications" under Order 9, Rule 9. This argument does not help Mr. Bose's client because, although no copy was served by the Court in this case on the respondent, yet Mr. Bose's client did not fulfil the primary obligation of supplying copies to the Court for such service. Thirdly, Mr. Bose contends that under the Rule on the Original Side of this Court only notice of motion need be served at first and copies later on usual charges. To that the answer is that while it is true that ordinarily notice of motion need alone be served without the grounds at first, nevertheless where there is statutory provision adjoining service along with the notice of the application copies of the application itself, then I think the Rules cannot be allowed to override such statutory mandate.

( 6 ) THEN it was contended by Mr. Bose that Order 9 R. 9 cannot prevail over the Rules of this Court. I have no hesitation in rejecting thi

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