Order 11 rule 1: service of the writ out of the jurisdiction
As to this, we hold that if a writ of summons contains any claim in respect of which leave for service out of jurisdiction cannot be granted then even though it may contain other claims in respect of which leave can be granted, the court cannot by reason of the former claims grant leave for service out of jurisdiction, as such writ does not fall within any of the provisions of Order 11, rule 11.
Again, the jurisdiction of the Court to join a party under Order 16 rule 11 may be exercised by the Court at any stage of the proceedings, so long as anything remains to be done in an action (Ives v. Brown [1919] 2 Ch. 314). It can be exercised even after an admission of liability by one of two possible defendants, and even after judgment, though all that remains is assessment of damage (The Duke of Buccleuch) [1892] P. 201).
Order 25 rule 4: striking out for no reasonable cause of action
Order 25, r. 4 reads: “The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.” It seems obvious that Mr. Reindorf s appeal here is to rule 4. How is the power under this rule to be exercised ? It is clearly a matter in the judicial discretion of the judge, and a pleading will only be struck out under the rule in a plain and obvious case, where it is apparent that even if the facts are proved, the plaintiff is not entitled to the relief he seeks: Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd. [1899] 1 Q.B. 86 at p. 91, C.A.; Barton, Thompson & Co., Ltd. v. Stapling Machines Co. [1966] 1 Ch. 499. The jurisdiction conferred by this rule, it has been said, is one, to be exercised with extreme caution: Moore v. Lawson (1915) 31 T.L.R. 418 at p. 419, C.A.
Order 37 rule 55: proof by production of the Gazette
We referred to Order 37, rule 55 of the Supreme [High] Court (Civil Procedure) Rules which provides that: “All Proclamations . . . nominations, appointments, and other official communications of the Government, appearing in any such Gazette, may be proved by the production of such Gazette and shall be prima facie proof of any fact of a public nature which they were intended to notify” and being satisfied that the Gazette Notice to which our attention was called by counsel for the plaintiff-appellant was only prima facie proof of the fact notified, gave leave to counsel for the defendant-respondent to lead such evidence as was available to him towards rebutting the fact stated in the Gazette Notice.
Order 60 rule 21(2): writ of summons against caveators
The Court was therefore bound under the provision of Order 60 Rule 21(2) to order the applicant to issue a writ of summons against the caveators within a specified period. Instead of proceeding as required by the Rules the learned Judge ordered Letters of Administration to issue jointly to the applicant and the second caveator.
Order 70 rule 1: effect of non-compliance with the rules
We are therefore of the opinion that, in the circumstances, the Court properly exercised the jurisdiction given it by Order 16 rule 11, and that the joinder of the defendant was proper. We are further of the opinion that (there being nothing to show that the provision in Order 16 rules 11 and 13 for service of the writ or notice were not complied with, and the defendant having taken part in the proceedings after the order joining her as defendant) it must be presumed that the provisions of the said rules were complied with. In any event, Order 70 rule 1 prevents the non-compliance from making the proceedings a nullity.
