The taking out of a notice of motion under Chapter XX of the Original Side Rules is directory in nature, and the court has the power to dispense with the requirement of a notice of motion.

PINAKI CHANDRA GHOSE, J.

( 1 ) A notice of motion in this matter has been taken out on 13th April, 2005 for substitution of the first plaintiff by his legal heirs in view of his death on 26th December, 1996. An application was taken out earlier, in fact there is an endorsement on the application itself, that ''the application is noted as made today". This endorsement was made by the Assistant Registrar of the Court and such an endorsement is made upon leave being granted by the Court. This aspect is not in dispute in the present petition. An objection, however, has been taken at the preliminary stage itself on the ground that the application is not maintainable in view of the fact that no notice of motion was taken out at the time of filing of this application, and the notice of motion cannot be taken out at this stage. It is also the admitted position that the provisions of Chapter XX of the Original side Rules applies to petitions of this nature.

( 2 ) THE only question arose in this appeal that whether an application taken out by the respondent after the demise of the plaintiff No, 1 on december 26, 1996 for recording of the death of the said plaintiff No. 1 and for substitution of his legal heirs and representatives in place and stead of the plaintiff. It appears that the application was filed on March 19, 1997 without taking out a notice of motion in accordance with the provisions of rules of this High Court. A notice of motion in the matter has been taken out in April 13, 2005 which is also admitted by the parties before this court. The issue in this case is whether taking out a notice of motion contemplated in Rules 3 and 4 of Chapter XX is mandatory or not. It appears that the Hon'ble First Court held that the requirement to take out the notice of motion in an application covered by Chapter XX of the Original side Rules as contained in Rule 3 thereof, is directory in nature, and in appropriate case its compliance can be dispensed with by the Court. Therefore, only question arose at this stage, whether the Court can dispense with the rules as framed. It is apparent before us that a notice of motion which was taken out on April 13, 2005 was barred by the laws of limitation as it has been taken out and in any event is not taken out upon the defendants. It is submitted that the said notice of motion was also not a valid, legal piece of document and cannot be relied upon by the plaintiff/ respondent. In fact, the plaintiff/respondent has not relied upon the same but has argued that taking out of notice of motion is directory and not mandatory.

( 3 ) MR. Chatterjee, learned senior Advocate appearing on behalf of the appellant submitted that such submission is incorrect. It was further urged before the Hon'ble First Court by the respondent that inasmuch as the application was made "noted as made today" on March 19, 1997, this Hon'ble court granted leave to take out the application without the notice of motion.

( 4 ) HE further submitted that no endorsement, indicating, "noted as made today" could have been made in an application which was not supported by notice of motion and in any event, no leave can be granted to make an application without taking out a notice of motion. In fact, the endorsement "noted as made today" can only be made upon the notice of motion and not anywhere else. It is also submitted that the Hon'ble First Court has erred in coming to the conclusion that an application under Chapter XX of the original Side Rules (hereinafter referred to as the said rules) can be taken out without a notice of motion or the notice of motion can be dispensed with by the Court. Mr. Chatterjee also relied upon an unreported decision in the matter of "union of India vs. Mukherjee and Mukherjee Put. Ltd. " (in A. P. No. 301 of 2003) and submitted this Court held in the said decision that it is only upon presentation of notice of motion "noted as made today" can be made by the Court and he relied upon the said decision in su

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