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1988 DIGILAW 348 (KAR)

D. K. KULUR v. INDIAN DRUGS

1988-08-09

M.RAMA JOIS

body1988
M. RAMA JOIS, J. ( 1 ) IN this application the following question arises for consideration : whether an interlocutory application in any case before this Court made by a party/applicant, can be numbered and posted before the Court if a certificate of posting for having sent the application by post to the Advocate appearing for the opposite party is produced along with the application ? ( 2 ) THE facts and circumstances in which the question arises for consideration are these : This is an interlocutory application filed by the petitioner seeking an interim direction against the respondents. It has been numbered and posted for orders. Learned Counsel for the respondents submitted that the application could not have been numbered and posted for orders before this Court, as copy of the application had not been served on him. The learned Counsel for the petitioner submitted that he had sent a copy of the application to the Advocate for the respondent by post under Certificate of Posting. Learned Counsel for the respondents submitted that he had not received the application by post also. ( 3 ) THE certificate of posting was produced along with the interlocutory application evidencing the posting of a cover addressed to the learned Counsel for the respondents. Learned Counsel for the petitioner submitted that he had complied with the Rules which required the serving of a copy of the application on the learned Counsel appearing for the opposite party. In view of these rival submissions, the question set out above arises for consideration. ( 4 ) THE answer to the question has to be ascertained from the High Court of karnataka Rules 1959 ('the Rules' for short ). Chapter X of the Rules regulates the filing, numbering and posting of interlocutory applications in various matters pending before this Court. Rule 7 of the Rules is relevant to the question arising for consideration. It reads: "7. Chapter X of the Rules regulates the filing, numbering and posting of interlocutory applications in various matters pending before this Court. Rule 7 of the Rules is relevant to the question arising for consideration. It reads: "7. In appeals and petitions in which notice to respondent has already been issued, and interlocutory application shall not be numbered or posted unless parties to the appeal or petition affected by the application who are represented by Advocates have been served with notice of the application by delivering to each of such Advocates a copy of the application together with a copy of the supporting affidavit or memorandum of facts and the written acknowledgement over the signature of each such Advocate or his registered clerk is taken either by endorsement on the application or otherwise and is filed in the Court along with the application. If, however, the applicant's Advocate makes an endorsement on the application that such service on Advocates was either refused to be accepted or could not be effected inspite of due diligence, the Registrar may direct that the application be numbered and posted Wherever it is intended to move the application as an emergent application, the copy of the applica ion served on every Advocate under this rule shall contain an endorsement stating that the application is intended to be moved as an emergent application on the day specified in the endorsement". The above Rule expressly provides that when the parties are represented by the Advocate/advocates unless a written acknowledgement under the signature of the Advocate/advocates appearing for all the opposite parties or his/their registered clerk is taken on the application or a separate written acknowledgement is taken and is filed along with the application, an interlocutory application cannot be numbered or posted. The Rule also provides that in exceptional cases where the applicant's Counsel finds that it is impracticable to serve the application on the Advocate concerned and take a written acknowledgement, he should make an endorsement on the appfication itself stating as to the efforts made for serving the application on the Advocate concerned and the reason for his inability to serve the application on the Advocate concerned. It is only under such exceptional circumstances and on the making of the endorsement by the Counsel for the applicants, the Registrar can direct that the application be numbered and posted for orders before the Court; though written acknowledgement of the advocate for the opposite party was not obtained. ( 5 ) THE Rule does not provide that an application can be sent to the Advocate representing the opposite party under certificate of Posting and that on the production of certificate of posting the application can be numbered and posted. Therefore, the objection of the learned counsel for the respondents that the office should not have numbered and posted this application is correct and has to be upheld. Accordingly, I answer the question as follows :- "an interlocutory application in any case before this Court made by a party/ applicant, cannot be numbered and posted before the Court if a certificate of posting for having sent the application by post to the Advocate appearing for the opposite party is produced along with the application. " ( 6 ) THE learned Counsel for the petitioner submitted that it has been the practice to send copy of the application to the Advocates appearing for the opposite parties by post under Certificate of posting and when such certificate of posting is produced the office has been numbering and posting the I A. before the court for orders. All that need be stated in this behalf is, such practice is plainly opposed to Rule 7 of the Rules and therefore it has to be stopped. --- *** --- .