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92. Miscellaneous.
ORDER 92
MISCELLANEOUS
1. Language of documents. (O. 92 r. 1)
Any document required for use in pursuance of these rules shall be in the national language, and may be accompanied by a translation thereof in the English language except that the translation for the purpose of Order 11, rule 6(4) and rule 7(1) must be prepared in accordance with rule 6(5) of that Order; [Am. PU(A)342/2000 w.e.f.22 Sept 2000];
Provided that any document in the English language may be used as an exhibit, with or without a translation thereof in the national language.
2. Seal of the Court. (O. 92 r. 2)
Every document issued by the Registry for which Form marked with the word "seal" as prescribed in Appendix A must bear the seal of the Court
3. Rejection of irregular documents. (O. 92 r. 3)
The Registrar, or any officer charged with the duty of receiving and filing any document, may reject it if it does not substantially comply with these rules.
3A. Transfer of proceedings. (O. 92, r. 3A) .
(1) An order to transfer any proceedings from a High Court to another shall be made with the approval of the Chief Judges.
(2) An order to transfer any proceedings from a Judge of a High Court to another Judge of that High Court shall be made with the approval of the Chief Judge of that High Court.
(3) Before making any order to transfer any proceedings from a subordinate court to a High Court or from a High Court to a subordinate court or from a subordinate court to another subordinate court, the Chief Judge shall take into consideration whether the High Court or subordinate court which shall hear the case is located at or nearest to the place where-
(a) the cause of action arose;
(b) the defendant, or one of the several defendants, resides or has his place of business;
(c) the facts on which the proceedings are based exist or are alleged to have occurred; or
(d) for other reasons it is desirable in the interests of justice that the proceedings should be had.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
3B. Practice directions. (O. 92, r. 3B) .
The Chief Judge after consulting the Chief Justice may issue such practice directions as may be necessary for the better carrying out or giving effect to the provisions of these rules, and those of the Subordinate Courts Rules 1980.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
4. Inherent powers of the Court. (O. 92 r. 4)
For the removal of doubts it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
91. Court Fees
Order 91
1. The fees and percentages in Appendix B shall be taken and paid in all causes and matters in the High Court.
Provided that nothing herein shall affect any fees fixed by any written law not by these rules expressly or impliedly repealed.
2. And provided that in proceedings by or against a Government or a department of a Government, the Government or the department of the Government, as the case may be, shall not be required to pay any Court fees, but in any case any decree, order or judgment shall provide that costs be paid by any party to the proceeding to such Government or such department of the Government, as the case may be, the amounts which would have been payable as fees but which for this proviso have not been paid, shall be payable by such party, have not been paid, shall be payable by such party, as, when recovered, shall be paid to the Registry of the Court at which such decree, order or judgment was given.
90. Lodgment in Court and Payment to Sheriff 91.
ORDER 90
LODGMENT IN COURT AND PAYMENT TO SHERIFF
1. Interpretation. (O. 90 r. 1)
In this Order–
"bank" means a bank approved by the Accountant-General;
"carry over", in relation to a fund in Court, means to transfer the fund or any part thereof from one account to another in the books of the Accountant-General;
"funds" or "funds in Court" means any money, securities, or other investments standing or to be placed to the account of the Accountant-General and includes money placed on deposit;
"interest" means the dividends and interest on all the funds referred to in the heading thereof;
"ledger credit" means the title of the cause or matter and the separate account opened or be opened under an order or otherwise in the books of the Accountant-General to which any funds are credited or to be credited;
"lodge in Court" means pay or transfer into Court, or deposit in Court;
"order" means an order or judgment of the High Court or Supreme Court, whether made in Court or in Chambers.
Lodgment in Court
2. Payment into Court under Trustees Act, 1949. (O. 90 r. 2)
(1) Subject to paragraph (2), any trustee wishing to make a payment into Court under section 62 of the Trustee Act 1949 (Act 208), must apply by summons supported by an affidavit setting out–
(a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose;
(b) the names of the persons interested in or entitled to the money or securities to be paid into Court with their addresses so far as known to him;
(c) his submission to answer all such inquiries relating to the application of such money or securities as the Court may make or direct; and
(d) an address where he may be served with any summons or order, or notice of any proceedings, relating to the money or securities paid into Court.
(2) Where the money or securities represents a legacy, or residue or any share thereof, to which an infant or a person resident outside Malaysia is absolutely entitled, no affidavit need be filed under paragraph (1).
3. Notice of lodgment. (O. 90 r. 3)
Any person who has lodged money or securities in Court must forthwith give notice of the lodgment to every person appearing to be entitled to, or to have an interest in, the money or securities lodged.
4. Funds how lodged. (O. 90 r. 4)
(1) Money to be lodged in Court must be lodged by means of a direction to the Accountant-General in form (a) in Form 131.
(2) Securities issued by a company or by any body corporate constituted under any written law, being fully paid up and free from liability, may be transferred to the Accountant-General in his official name.
(3) The person lodging under paragraph (2) must execute a transfer thereof, and send such transfer together with the authority in Form 193 to the registered office of the company or body corporate in whose books the securities are to be transferred.
(4) Such company or body corporate must, after registering such transfer, forward the authority to the Accountant-General with a certificate in Form 193, that the securities have been transferred as therein authorized.
(5) Securities, other than those described in paragraph (2), may be placed in a box or packet and lodged with a direction in form (a) Form 131 with the Accountant-General.
(6) After inspecting the contents in the box or packet in the presence of the person lodging the same, and seeing that such box or packet is properly marked and secured, the Accountant-General shall receive the same and give the person lodging a receipt.
(7) The Accountant-General must, after receiving the money or securities, send to the Registrar a duplicate of the receipt that had been issued to the person lodging the same, to be filed in the Registry.
5. Crediting lodgment and dividends. (O. 90 r. 5)
Any principal money or dividends received by the Accountant-General in respect of securities in Court must be placed in his books, in the case of principal money, to the credit to which the securities whereon such money arose were standing at the time of the receipt thereof, and in the case of dividends, to the credit to which the securities whereon such dividends accrued were standing at the time of closing of the transfer books of such securities previously to the dividends becoming due.
6. Interest on money lodged in Court. (O. 90 r. 6)
(1) Money lodged in Court to the credit of any account shall be deemed to be placed on deposit, and shall be credited with interest at such rate as is from time to time fixed by the Minister for Finance, not being greater than the highest rate of interest which for the time being can be obtained by the Government on current account from any bank in the State except–
(a) when money is paid into Court under Order 14, 22, 23 or 70; or
(b) when the amount is less than one hundred ringgit.
(2) Money on deposit shall be deemed to be withdrawn from deposit when the amount is reduced below one hundred ringgit.
7. Computation of interest. (O. 90 r. 7)
(1) Interest upon money on deposit must not be computed on a fraction of one ringgit.
(2) Interest upon money on deposit accrues by calendar months, and must not be computed by any less period.
(3) Such interest begins on the first day of the calendar month next succeeding that in which the money is placed on deposit, and ceases from the last day of the calendar month next proceeding the day of the withdrawal of the money from deposit.
(4) Interest which has accrued for or during the half-year ending on the thirtieth day of June and thirty-first day of December in every year, on money than on deposit must, on or before the fifteen days of the months respectively following, be placed by the Accountant-General to the credit to which such money is standing on every such half-yearly day.
(5) When money on deposit is withdrawn from deposit, the interest thereon which has accrued and has not been credited must be placed to the credit to which the money is then standing.
(6) When money on deposit consists of sums which have been placed on deposit at different times, and an order is made dealing with the money, and part of such money has to be withdrawn from deposit for the purpose of executing such order, the part of parts of the money dealt with by such order last placed and remaining on deposit at the time of such withdrawal must, for the purpose of computing interest, be treated as so withdrawn unless the order otherwise directs.
(7) Unless otherwise directed by an order, interest credited on money on deposit must, when or so soon as it amount to or exceeds one hundred dollars, be placed on deposit and, for the purpose of computing interest upon it, must be treated as having been placed on deposit on the last half-yearly day on which any such interest became due.
8. Applications with respect to funds in Court. (O. 90 r. 8)
(1) Where an application to the High Court–
(a) for the payment or transfer to any person of any funds in Court standing to the credit of any cause or matter or for the transfer of any such funds to a separate account or for the payment to any person of any dividend of or interest on any securities or money comprised in such fund;
(b) for the investment, or change of investment, of any funds in Court;
(c) for payment of the dividends of or interest on any funds in Court representing or comprising money or securities lodged in Court under any written law; or
(d) for the payment or transfer out of Court of any such funds as are mentioned in subparagraph (c),
is made, the application may be disposed of in Chambers.
(2) Subject to paragraph (3), any such application must be made by summons, and unless the application is made in a pending cause or matter or an application for the same purpose has previously been made by petition or originating summons, the summons must be an originating summons.
(3) Where an application under paragraph 1(d) is required to be made by originating summons, then, if the funds to which the application relates do not exceed $5,000 in value, and subject to paragraph (4), the application may be made to the Registrar.
(4) This rule does not apply to any application for an order under Order 22.
9. Payment out of funds in Court. (O. 90 r. 9)
(1) Money paid under Order 14, 22 or 23 must be paid out on a direction to the Accountant-General in form (b) in Form 131.
(2) In all other cases the person entitled to withdraw the funds must lodge with the Accountant-General a copy of the order authorizing withdrawal, and the Accountant-General must act in accordance with such order.
(3) When an order directs any sums to be ascertained by the certificate of the Registrar, both the order and the certificate in form (c) in Form 131 must be sent to the Accountant-General.
(4) When an order directs payments out of a fund in Court of any costs directed to be taxed, the Registrar must state in his certificate, the name and address of the person to whom such costs are payable.
10. Name of payee to be stated in order. (O. 90 r. 10)
(1) Every order which directs funds in Court to be paid, transferred, or delivered out must state in full the name of every person to whom such payment, transfer, or delivery is to be made, unless the name is to be stated in a certificate of the Registrar.
(2) In the case of payment to a firm it is sufficient to state the business name of such firm.
(3) When money in Court is by an order directed to be paid to any persons described in the order, or in a certificate of the Registrar, as co-partners, such money may be paid to any one or more of such co-partners, or to the survivor of them.
11. Payment out on death of payee. (O. 90 r. 11)
(1) When funds in Court are by an order directed to be paid, transferred, or delivered to any person named or described in an order, or in a certificate of the Registrar, except to a person therein expressed to be entitled to such funds as trustee, executor, or administrator, or otherwise than in his own right, or for his own use, such funds, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, unless the order otherwise directs, on proof of the death of such person, whether on or after or, in the case of payment directed to be made to a creditor as such, before the date of such order, be paid, transferred, or delivered to the legal personal representatives of such deceased person, or to the survivors or survivor of them.
(2) If no administration has been taken out to the estate of such deceased person who has died intestate, and whose assets do not exceed the value of ten thousand dollars, including the amount of the funds directed to be so paid, transferred or delivered to him, such funds may be paid, transferred, or delivered to the person who, being widower, widow, child, father, mother, brother, or sister of the deceased, would be entitled to take administration to his or her estate, upon a declaration by such person in accordance with Form 194.
(3) When funds in Court are by an order directed to be paid, transferred, or delivered to any persons as legal personal representatives, such funds, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, upon proof of the death of any such representatives, whether on or after the date of such order, be paid, transferred, or delivered to the survivors or survivor of them.
(4) No funds shall under this rule be paid, transferred, or delivered out of Court to the legal personal representatives of any person under any probate or letters of administration purporting to be granted at any time subsequent to the expiration of two years from the date of the order directing such payment, transfer, or delivery, or, in case such funds consist of interest or dividends, from the date of the last receipt of such interest or dividends or such order.
(5) When any application for an order such as is referred to in paragraphs (1) and (3) is made, notice thereof must be given to the Collector of Estate Duty who shall be entitled to attend and be heard on the matter.
12. Transfer or investment of funds in Court. (O. 90 r. 12)
(1) When funds in Court are by an order directed to be transferred or carried over, the party having the carriage of the order must lodge with the Accountant-General a copy of the order, and the Accountant-General must act in accordance with such order.
(2) When funds in Court are by an order directed to be invested, the party having the carriage of the order must lodge with the Accountant-General a copy of the order and the Accountant-General must thereupon invest such funds in the manner directed by the order.
(3) The Court may direct that any money in Court, other than money under Orders 14, 22, 23 and 70, may be invested in any of the securities in which trustees are by law permitted to invest trust money in their hands, or it may order such money to be deposited in the Post Office Savings Bank, provided that it exceeds ten dollars and does not exceed the highest sum which may be deposited therein.
13. Proof to Accountant-General before payment. (O. 90 r. 13)
When any person is entitled under an order or direction to receive any payment from the Accountant-General, and the Accountant-General requires evidence of life, or of the fulfilment of any conditions affecting such payment, such evidence may be furnished by a statutory declaration made by a solicitor acting on behalf of such person, or by the person entitled to such payment.
14. Copy of order or certificate to be sent to Auditor-General. (O. 90 r. 14)
An office copy of every order of Court and certificate to be acted upon by the Accountant-General, and of every direction to the Accountant-General, must be forwarded by the Registrar to the Auditor-General.
15. Accountant-General to give certificate of funds in Court. (O. 90 r. 15)
(1) the Accountant-General, upon a request signed by or on behalf of a person claiming to be interested in any funds in Court standing to the credit of an account specified in such request, must, unless there is good reason for refusing, issue a certificate of the amount and description of such funds, such certificate shall have reference to the morning of the day of the date thereof, and shall not include the transactions of that day.
(2) The Accountant-General must notify on such certificate the dates of any orders restraining the transfer, sale, delivery out, or payment of other dealing with the funds in Court to the credit of the account mentioned in such certificate, and whether such orders affect principal or interest, and any charging orders affecting such funds, of which respectively he has received notice and the names of persons to whom notice is to be given, or in whose favour such restraining or charging orders have been made.
(3) The Accountant-General may re-date any such certificate, provided that no alteration in the amount or description of funds has been made since the certificate was issued.
(4) When a cause or matter has been inserted in the list referred to in rule 16, that fact shall be notified in the certificate relating thereto.
16. Publication of list of funds in Court. (O. 90 r. 16)
In the month of January in every year the Accountant-General shall cause to be published in the Gazette a list of accounts not dealt with for a period of ten years or more and must give the title and number of the cause or matter and the title of the ledger credit in which funds are outstanding, and the balance of the funds in each account.
17. Unclaimed funds in Court with Accountant-General. (O. 90 r. 17)
(1) The funds in Court appearing from the books and accounts to have been in the custody with the Accountant-General for a period of fifteen years and upwards, without any claim having been made and allowed thereto during that period, must be transferred and paid to the Government for the general purposes of the State.
(2) If any claim is made to any part of the funds in Court which are transferred and paid to the Government under paragraph (1), and if such claim is established to the satisfaction of the Court, the Government must pay to the claimant the amount of the principal so transferred and paid as aforesaid, or so much thereof as appears to be due to the claimant.
(3) Nothing in this rule shall authorize the transfer of any funds standing to the separate credit of an infant, or held in an infant’s account pending the coming of age of such infant, until such infant comes of age or dies.
Payment to Sheriff
18. Sheriff to keep an account book. (O. 90 r. 18)
(1) The sheriff must keep an account of all sums of money paid or deposited with him and of all sums of money paid out by him in an account book in Form 195.
(2) All money paid or deposited with the sheriff must be kept in a bank or with the Accountant-General.
(3) No interest shall be payable in respect of any money paid or deposited with the sheriff.
19. How money paid to Sheriff. (O. 90 r. 19)
Money paid or deposited with the sheriff under these rules or a judgment or order of a Court must be paid to the proper officer in the Registry who must give a receipt for every sum of money received by him.
20. Payment in under judgment or order. (O. 90 r. 20)
Where any payment is made under a judgment or order the person making the payment must produce a copy of the judgment or order and he must give notice to the person entitled to the money.
21. Money not required for making payments on day of receipt. (O. 90 r. 21)
Any money paid or deposited with the sheriff that it is not required for making payments on that day must be paid into the bank or to the Accountant-General, as the case may be:
Provided that where the payment to the bank or to the Accountant- General, as the case may be, cannot be made on the day of receipt, it must be made on the morning of the next working day.
22. Accountant-General to grant an imprest. (O. 90 r. 22)
(1) Where the money is kept by the Accountant-General, he must grant an imprest to the sheriff and the imprest must be kept by the sheriff in a bank.
(2) All cheques in respect of the bank account must be signed by the sheriff and another officer appointed by the Registrar.
23. Cash book for imprest. (O. 90 r. 23)
(1) The sheriff operating the imprest must maintain a Cash Book in which must be entered all sums received under the imprest (including reimbursements from the Accountant-General) and all payments made from the imprest.
(2) A supervisory officer must be made personally responsible for making (at least once a week) surprise checks of the Cash Book, for comparing all the entries with receipted vouchers and other relevant documents and for ensuring that the balance of cash agrees with the balance shown in the Cash Book, and the officer must also satisfy himself that cash is not drawn from the bank in excess of normal requirements.
(3) A record of all surprise inspections must be made in the Cash Book.
24. How payments from imprest to be made. (O. 90 r. 24)
(1) All payments from the imprest must be made by cheques and an acknowledgment received or a receipt obtained from the person to whom the cheque is paid.
(2) When the balance of the imprest reaches a figure sufficient for 7 days’ anticipated requirements, the Cash Book must be balanced and the sums paid from the imprest recovered from the Accountant-General.
(3) The receipts must be attached to a bill showing the total amount of the payments; if the receipts are numerous, the receipts and a machine-list of the amounts only may be attached to the bill.
(4) This bill and attachments must be sent to the Accountant-General at least 7 days before the money is actually required.
25. Proof before payment out. (O. 90 r. 25)
Before any money is paid out to any person, the sheriff must require proof to his satisfaction that the person applying for payment is the person entitled or authorized to receive it.
26. Where money due to Government under any law. (O. 90 r. 26)
Before any money is paid out under any order directing the payment out of any money paid or deposited with the sheriff, the sheriff must satisfy himself that any money due to Government under any written law of which he has notice has been paid or deducted.
27. When payment to be made by cheque. (O. 90 r. 27)
(1) All payments by the sheriff of an amount exceeding fifty ringgit must be made by cheque payable to the person entitled to receive the payment and marked "payable only within 30 days from date".
(2) If the payment is to be made to–
(a) any Government department;
(b) any body corporate
(c) an advocate and solicitor; or
(d) a moneylender under the Moneylenders Ordinance, 1951. (42/51)
the cheque must be crossed to the payee’s account and marked "not negotiable".
(3) Where a cheque has not been cashed within 30 days of its date a fresh cheque may be issued to replace it.
89. Summary Proceedings for Possession of Land.
ORDER 89
SUMMARY PROCEEDINGS FOR POSSESSION OF LAND [Ins. P.U. (A) 114/84]
1. Proceedings to be brought by originating summons. (O. 89 r. 1)
Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.
2. Forms of originating summons. (O. 89 r. 2)
The originating summons shall be in Form No. 8A and no acknowledgment of service shall be required.
3. Affidavit in support. (O. 89 r. 3)
The plaintiff shall file in support of the originating summons an affidavit stating–
(a) his interest in the land;
(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and
(c) that he does not know the name of any person occupying the land who is not named in the summons.
4. Service of originating summons. (O. 89 r. 4)
(1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him–
(a) personally or in accordance with Order 10, rule 5; or
(b) by leaving a copy of the summons and of the affidavit or sending them to him, at the premises; or
(c) in such other manner as the Court may direct.
(2) The summons shall, in addition to being served on the named defendants, if any, in accordance with paragraph (1) be served, unless the Court otherwise directs, by–
(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises; and
(b) if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to "the occupiers".
(3) Every copy of an originating summons for service under paragraph (1) or (2) shall be sealed with the seal of the Court out of which the summons was issued.
(4) Order 28, rule 3 shall not apply to proceedings under this Order.
5. Application by occupier to be made a party. (O. 89 r. 5)
Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.
6. Order for possession. (O. 89 r. 6)
(1) A final order shall not be made on the originating summons except by a Judge in person and shall, except in case of urgency and by leave of the Court, not be made less than 5 clear days after the date of service.
(2) An order for possession in proceedings under this Order shall be in Form No. 193A.
(3) Nothing in this Order shall prevent the Court from ordering possession to be given on a specified date, in the exercise of any power which could have been exercised if possession had been claimed in an action begun by writ.
7. Writ of possession. (O. 89 r. 7)
(1) Order 45, rule 3(2), shall not apply in relation to an order for possession under this Order but no writ of possession to enforce such an order shall be issued after the expiry of three months from the date of the order without the leave of the Court.
8. Setting aside order. (O. 89 r. 8)
The Judge may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order.
88. Companies Act 1965.
ORDER 88
COMPANIES ACT 1965
1. Interpretation. (O. 88 r. 1)
In this Order "Act" means the Companies Act 1965 (Act 125).
2. Applications to be made by originating summons. (O. 88 r. 2)
(1) Unless otherwise provided in the Act, and except in the case of the applications mentioned in rules 3, 4 and 5, every application under the Act must, in accordance with Order 5, rule 3, be made by originating summons.
(2) No appearance need be entered to an originating summons under this rule unless the application made by the summons is–
(a) an application under section 173 of the Act for an order to make provision for all or any of the matters mentioned in subsection (1) of that section where an order approving the compromise or arrangement to which the application relates has previously been made; or
(b) an application under section 192 of the Act for an order directing a receiver or manager of a company to make good any such default as is mentioned in subsection (1) of that section; or
(c) an application under section 12 of the Act for an order directing a company and any officer thereof to make good any such default as is mentioned in that section.
(3) An application under section 357 of the Act may be made by ex parte originating summons.
3. Application to be made by originating summons or motion. (O. 88 r. 3)
(1) An application under section 162 of the Act for rectification of the register of members of a company may be made by originating summons or originating motion.
(2) No appearance need be entered to an originating summons under this rule.
4. Applications to be made by originating motion. (O. 88 r. 4)
The following applications under the Act must be made by originating motion, namely, applications–
(a) under section 27 of the Act for an order that a company be relieved from the consequences of default in complying with conditions constituting the company a private company;
(b) under section 63 of the Act for an order validating the issue or allotment of shares improperly issued or confirming the terms of issue or allotment thereof;
(c) under section 88(5) of the Act for an order to confirm, set aside or vary a direction of the holders of the interests;
(d) under section 95(4) of the Act for an order to confirm a winding up resolution;
(e) under section 200(5) of the Act for an inquiry into any such case as is mentioned therein;
(f) under section 307 of the Act for an order declaring a dissolution of a company which has not been wound up to have been void.
5. Applications to be made by petition. (O. 88 r. 5)
The following applications under the Act must be made by petition, namely, applications–
(a) under section 28 of the Act to cancel the alteration of a company’s objects;
(b) under section 59 of the Act to confirm the issue by a company of shares at a discount;
(c) under section 60 of the Act to confirm a reduction of the share premium account of a company;
(d) under section 61 of the Act to confirm a reduction of the capital redemption reserve fund of a company;
(e) under section 64 of the Act to confirm a reduction of the share capital of a company;
(f) under section 65 of the Act to cancel any variation or abrogation of the rights attached to any class of shares in a company;
(g) under section 176 of the Act to approve a compromise or arrangement between a company and its members or any class of them;
(h) under section 181 of the Act for relief in cases of oppression;
(i) under section 308(5) of the Act for an order restoring the name of a company to the Register;
(j) under section 354 of the Act for relief from liability of an officer of a company or any other person to whom this section applies.
6. Entitlement of proceedings. (O. 88 r. 6)
(1) Every originating summons, notice of originating motion and petition to which this Order relates and all affidavits, notices and other documents in those proceedings must be entitled in the matter of the company in question and in the matter of the Act.
(2) The originating summons by which an application for leave under section 130(1) of the Act is made must be entitled in the matter of the company (if any) in relation to which the applicant was convicted and in the matter of the Act.
7. Summons for directions. (O. 88 r. 7)
(1) After presentation of a petition by which any such application as is mentioned in rule 5 is made, the petitioner, except where his application is one of those mentioned in paragraph (2), must take out a summons for directions under this rule.
(2) The application referred to in paragraph (1) are–
(a) an application under section 59 of the Act to confirm the issue by a company of shares at a discount;
(b) an application under section 176 of the Act to approve a compromise or arrangement unless there is included in the petition for such approval an application for an order under section 178 of the Act; and
(c) an application under section 308(5) of the Act for an order restoring the name of a company to the register.
(3) On the hearing of the summons the Court may by order give such directions as to the proceedings to be taken before the hearing of the petition as it thinks fit including in particular, directions for the publication of notices and the making of any inquiry.
(4) Where the application made by the petition is to confirm a reduction of the share capital, the share premium account, or the capital redemption reserve fund, of a company, then, without prejudice to the generality of paragraph (3), the Court may give directions–
(a) for an inquiry to be made as to the debts of, and claims against the company or as to any class or classes of such debts or claims;
(b) as to the proceedings to be taken for settling the list of creditors entitled to object to the reduction and fixing the date by reference to which the list is to be made;
and the power of the Court under section 64(3) of the Act to direct that section 64(2) thereof shall not apply as regards any class of creditors may be exercised on any hearing of the summons.
(5) Rules 8 to 13 shall have effect subject to any directions given by the Court under this rule.
8. Inquiry as to debts: Company to make list of creditors. (O. 88 r. 8)
(1) Where under rule 7 the Court orders such an inquiry as is mentioned in paragraph (4) thereof, the company in question must, within 7 days after the making of the order, file in the Registry an affidavit made by an officer of the company competent to make it verifying a list containing–
(a) the name and address of every creditor entitled to any debt or claim to which the inquiry extends;
(b) the amount due to each creditor in respect of such debt or claim or, in the case of a debt or claim which is subject to any contingency or sounds only in damages or for some other reason does not bear a certain value, a just estimate of the value thereof; and
(c) the total of those amounts and values.
(2) the deponent must state in the affidavit his belief that at the date fixed by the Court as the date by reference to which the list is to be made there is no debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company, other than the debts or claims set out in the list and any debts or claims to which the inquiry does not extend, and must also state his means of knowledge of the matters deposed to.
(3) The list must be left at the Registry not later than one day after the affidavit is filed.
9. Inspection of list of creditors. (O. 88 r. 9)
(1) Copies of the list made under rule 8 with the omission, unless the Court otherwise directs, of the amount due to each creditor and the estimated value of any debt or claim to which any creditor is entitled, shall be kept at the registered office of the company and at the office of that company’s solicitor.
(2) Any person shall be entitled during ordinary business hours, on payment of a fee of fifty cents, to inspect the said list at any such office and to take extracts therefrom.
10. Notice to creditors. (O. 88 r. 10)
Within 7 days after filing the affidavit required by rule 8 the company must send by post to each creditor named in the list exhibited to the affidavit, at his last known address, a notice stating–
(a) the amount of the reduction sought to be confirmed;
(b) the effect of the order directing an inquiry as to debts and claims;
(c) the amount or value specified in the list as due or estimated to be due to that creditor; and
(d) the time fixed by the Court within which, if he claims to be entitled to a larger amount, he must send particulars of his debt or claim and the name and address of his solicitor, if any, to the company’s solicitor.
11. Advertisement of petition and list of creditors. (O. 88 r. 11)
After filing the affidavit required by rule 8 the company must insert, in such newspapers and at such times as the Court directs, a notice stating–
(a) the date of presentation of the petition and the amount of the reduction thereby sought to be confirmed;
(b) the inquiry ordered by the Court under rule 7;
(c) the places where the list of creditors may be inspected in accordance with rule 9; and
(d) the time within which any creditor not named in the list who claims to be entitled to any debt or claim to which the inquiry extends must send his name and address, the name and address of the solicitor, if any, and particulars of his debt or claim to the company’s solicitor.
12. Affidavit as to claims made by creditors. (O. 88 r. 12)
Within such time as the Court directs the company must file in the Registry an affidavit made by the company’s solicitor and an officer of the company competent to make it–
(a) proving service of the notices mentioned in rule 10 and advertisement of the notice mentioned in rule 11;
(b) verifying a list containing the names and addresses of the persons (if any) who in pursuance of such notices sent in particulars of debts or claims, specifying the amount of each debt or claim;
(c) distinguishing in such list those debts or claims which are wholly, or as to any and what part thereof, admitted by the company, disputed by the company or alleged by the company to be outside the scope of the inquiry; and
(d) stating which of the persons named in the list made under rule 8, and which of the persons named in the list made under this rule, have been paid or consent to the reduction sought to be confirmed.
13. Adjudication of disputed claims. (O. 88 r. 13)
If the company contends that a person is not entitled to be entered in the list of creditors in respect of any debt or claim or in respect of the full amount claimed by him in respect of any debt or claim, then, unless the company is willing to secure payment of that debt or claim by appropriating the full amount of the debt or claim, the company must, if the Court so directs, send to that person by post at his last known address a notice requiring him–
(a) within such time as may be specified in the notice, being not less than 4 clear days after service thereof, to file an affidavit proving his debt or claim or, as the case may be, so much thereof as is not admitted by the company; and
(b) to attend the adjudication of his debt or claim at the place and time specified in the notice, being the time appointed by the Court for the adjudication of debts and claims.
14. Certifying list of creditors entitled to object to reduction. (O. 88 r. 14)
The list of creditors entitled to object to such reduction as is mentioned in rule 7(4), as settled by the Court under section 64(2) of the Act, shall be certified and filed by the Registrar and his certificate shall–
(a) specify the debts or claims (if any) disallowed by the Court;
(b) distinguish the debts or claims (if any) the full amount of which is admitted by the company, the debts or claims (if any) the full amount of which, though not admitted by the company, the company is willing to appropriate, the debts or claims (if any) the amount of which has been fixed by adjudication of the Court under section 64(2) of the Act and other debts or claims;
(c) specify the total amount of the debts or claims payment of which has been secured by appropriation under the said section 64(2);
(d) show which creditors consent to the reduction and the total amount of their debts or claims;
(e) specify the creditors who sought to prove their debts or claims under rule 13 and state which of such debts or claims were allowed.
15. Evidence of consent of creditor. (O. 88 r. 15)
The consent of a creditor to such reduction as is mentioned in rule 7(4) may be proved in such manner as the Court thinks sufficient.
16. Time, etc., of hearing of petition for confirmation of reduction. (O. 88 r. 16)
(1) A petition for the confirmation of any such reduction as is mentioned in rule 7(4) shall not, where the Court has directed an inquiry pursuant to that rule, be heard before the expiration of at least 8 clear days after the filing of the certificate mentioned in rule 14.
(2) Before the hearing of such a petition, a notice specifying the day appointed for the hearing must be published at such times and in such newspapers as the Court may direct.
17. Restriction on taking effect of order under section 59. (O. 88 r. 17)
Unless the Court otherwise directs, an order under section 59 of the Act confirming the issue of shares at a discount shall direct that an office copy of the order be delivered to the Registrar of Companies within 10 days after the making of the order or such extended time as the Court may allow and that the order shall not take effect until such copy has been so delivered.
87. Trade Marks Act 1976.
ORDER 87
TRADE MARKS ACT 1976
1. Interpretation. (O. 87 r. 1)
In this Order:
"Act" means the Trade Marks Act 1976 (Act 175).
"Registrar" means the Registrar of Trade Marks appointed under section 3 of the Act.
2. Application by notice of motion. (O. 87 r. 2)
Applications to the Court under the Act may be made by notice of motion.
3. Appeals by notice of motion. (O. 87 r. 3)
Appeals to the Court under the Act shall be given by notice of motion within one calendar month from the date of decision appealed against.
4. Service of Application on Registrars. (O. 87 r. 4)
All applications to the Court under the Act whether by way of appeal or otherwise shall be served on the Registrar.
5. Time for application. (O. 87 r. 5)
Whether the Registrar decides to refer an application or appeal to the Court, the applicant or appellant shall apply to the Court within one calendar month from the date of the decision so to refer, and unless he so applies he shall be deemed to have abandoned the application or appeal.
6. Notice of intention to withdraw application. (O. 87 r. 6)
Where under section 19(5) or section 27(8) of the Act an applicant becomes entitled and intends to withdraw his application, he shall give notice of the intention in writing to the Registrar and to the other parties, if any, to the appeal within one month after the leave referred in those subsections has been obtained.
7. Counterclaim for rectification of registrar. (O. 87 r. 7)
A defendant in an action for infringement may, in regard to any registered trade mark in issue, counterclaim for the rectification of the register and shall within the time limited for the delivery of the counterclaim serve the Registrar with the same, and the Registrar shall be entitled to take such part in the action as he may think fit without delivering a defence or other pleading.
8. Extension of time. (O. 87 r. 8)
The times specified in rules 3 and 5 of this Order may be extended by the Court or Registrar upon the application of any party interested and notwithstanding that the time so specified has expired.
9. Proceeding for infringement of registered trade mark: Validity of registration disputed. (O. 87 r. 9)
(1) Where in any proceedings a claim is made for relief for infringement of the right to the use of a registered trade mark, the party against whom the claim is made may in his defence put in issue the validity of the registration of that trade mark or may counterclaim for an order that the register of trade marks be rectified by cancelling or varying the relevant entry or may do both those things.
(2) A party to any such proceedings who in his pleading (whether a defence or counterclaim) disputes the validity of the registration of a registered trade mark must serve with the pleading particulars of the objections to the validity of the registration on which he relies in support of the allegation of invalidity.
(3) A party to any such proceedings who counterclaims for an order that the register of trade marks be rectified must serve on the Registrar of Trade Marks a copy of the counterclaim together with a copy of the particulars mentioned in paragraph (2); and the Registrar of Trade Marks shall be entitled to take such part in the proceedings as he may think fit but need not serve a defence or other pleading unless ordered to do so by the Court.
86. Inheritance (Family Provision) Act 1971.
ORDER 86
INHERITANCE (FAMILY PROVISIONS) ACT 1971
1. Interpretation. (O. 86 r. 1)
In this Order "Act" means the Inheritance. (Family Provisions) Act 1971 (Act 39).
2. Powers of Courts as to parties. (O. 86 r. 2)
(1) Without prejudice to its powers under Order 15, the Court may at any stage of proceedings under the Act by order direct that any person be added as a party to the proceedings or that notice of the proceedings be served on any person.
(2) Order 15, rule 13, shall apply to proceedings under the Act as it applies to the proceedings mentioned in paragraph (1) of that rule.
3. Affidavit in support to be filed. (O. 86 r. 3)
An affidavit in support of an originating summons by which an application under section 3 of the Act is made must be filed before the first hearing of the summons and Order 28, rule 3(3), shall apply accordingly.
4. Disposal of application in Chambers, etc. (O. 86 r. 4)
Any application under the Act in which it appears to the Court that the interests of an infant or other person under disability are affected may, if the Court thinks fit so direct, be disposed of in Chambers, but any order under section 3 or 6 of the Act shall be made by the Judge in person.
5. Applications in proceedings under section 3 of the Act. (O. 86 r. 5)
Where an order has been made on an application under section 3 of the Act, any subsequent application, whether made by a party to the proceedings in which such order was made, or by a person on whom notice of the application for the order was served or by or on behalf of such person as is mentioned in section 6(2) of the Act, must be made by summons in those proceedings.
6. Indorsement of memorandum on probate, etc. (O. 86 r. 6)
(1) The personal representatives of the deceased to whose estate an application under section 3 or 6 of the Act relates must produce in Court at the hearing of the application the probate or letters of administration under which the estate is being administered; and if the Court makes an order under the Act or an order dismissing the application the probate or letters of administration shall remain in the custody of the Court until section 5(3) of the Act has been complied with.
(2) the memorandum of the order required by section 5(3) of the Act to be indorsed or annexed as therein mentioned must set out the title of the proceedings in question and the operative part of the order in full.
85. Bills of Sale Ordinance 1950.
ORDER 85
BILLS OF SALE ORDINANCE 1950*
1. Rectification of register. (O. 85 r. 1)
(1) Every application to the Court under section 15 of the Bills of Sale Ordinance 1950 (30/50) (hereafter in this Order referred to as "the Ordinance") for an order–
(a) that any omission to register a bill of sale or an affidavit of renewal thereof within the time prescribed by that Ordinance be rectified by extending the time for such registration; or
(b) that any omission or mis-statement of the name, residence or occupation of any person be rectified by the insertion in the register of his true name, residence or occupation,
must be made by summons ex parte to the Registrar.
(2) Every application for such an order as is described in paragraph (1) shall be supported by an affidavit setting out particulars of the bill of sale and of the omission or mis-statement in question and stating the grounds on which the application is made.
2. Entry of satisfaction. (O. 85 r. 2)
(1) Every application under section 16 of the Ordinance to the Registrar for an order that a memorandum of satisfaction be written on a registered copy of a bill of sale must–
(a) if a consent to the satisfaction signed by the person entitled to the benefit of the bill of sale can be obtained, be made ex parte;
(b) in all other cases, be made by originating summons.
(2) An ex parte application under paragraph (1)(a) must be supported by–
(a) particulars of the consent referred to in that paragraph; and
(b) an affidavit by a witness who attested the consent verifying the signature on it.
(3) An originating summons under paragraph (1)(b) must be served on the person entitled to the benefit of the bill of sale, and must be supported by evidence that the debt (if any) for which the bill of sale was made has been satisfied or discharged.
(4) No appearance need be entered to an originating summons under paragraph (1)(b).
3. Restraining removal on sale of goods seized. (O. 85 r. 3)
No appearance need be entered to an originating summons by which an application to the Court under section 8(3) of the Ordinance must be made.
4. Search of register. (O. 85 r. 4)
The Registrar shall, on a request in writing giving sufficient particulars, and on payment of the prescribed fee, cause a search to be made in the register of bills of sale and issue a certificate of the result of the search.
84. Proceedings Relating to Infants.
ORDER 84
PROCEEDINGS RELATING TO INFANTS
1. Applications under Guardianship of Infants Act. (O. 84 r. 1)
Where there is pending any action or other proceeding by reason of which an infant is a ward of Court, any application under the Guardianship of Infants Act 1961 (13/61) (hereafter in this Order referred to as "the Act") with respect to that infant may be made by summons in the proceeding, but except in that case any such application must be made by originating summons.
2. Defendants to summons. (O. 84 r. 2)
(1) Where the infant with respect to whom an application under the Act is made is not the plaintiff, he shall not, unless the Court otherwise directs, be made a defendant to the summons or, if the application is made by ordinary summons, be served with the summons, but, subject to paragraph (2), any other person appearing to be interested in, or affected by, the application shall be made a defendant or be served with the summons, as the case may be.
(2) The Court may dispense with service of the summons (whether originating or ordinary) on any person and may order it to be served on any person not originally served.
3. Applications as to guardianship, maintenance, etc. (O. 84 r. 3)
(1) Applications as to the guardianship, maintenance or advancement of infants may be disposed of in Chambers.
(2) A guardian’s account must be verified and passed in the same manner as that provided by Order 30 in relation to a receiver’s account or in such other manner as the Court may direct.
83. Charge Actions.
ORDER 83
CHARGE ACTIONS
1. Application and interpretation. (O. 83 r. 1)
(1) This Order applies to any action (whether begun by writ or originating summons) by a or chargee or chargor or by any person having the right to foreclose or redeem any charge, being an action in which there is a claim for any of the following reliefs namely–
(a) payment of moneys secured by the charge;
(b) sale of the charge property;
(c) foreclosure;
(d) delivery of possession (whether before or after foreclosure or without foreclosure) to the chargee by the chargor or by any other person who is or is alleged to be in possession of the property;.
(e) redemption;
(f) reconveyance of the property or its release from the security;
(g) delivery of possession by the chargee.
(2) In this Order "charge" includes a legal and an equitable charge.
(3) An action to which this Order applies is referred to in this Order as a charge action.
(4) These rules apply to charge actions subject to the following provisions by this Order.
2. Claims for possession: Non-appearance by a defendant. (O. 83 r. 2)
(1) Where in a charge action begun by originating summons, being an action in which the plaintiff is the chargee and claims delivery of possession or payments of moneys secured by the charge or both, any defendant fails to enter an appearance, the following provisions of this rule shall apply, and references in those provisions to the defendant shall be construed as references to any such defendant.
This rule shall not be taken as affecting Order 28, rule 3, or rule 5(2) in so far as it requires any document to be served on, or notice given to, a defendant who has entered an appearance in the action.
(2) Not less than 4 clear days before the day fixed for the first hearing of the originating summons the plaintiff must serve on the defendant a copy of the notice of appointment for the hearing and a copy of the affidavit in support of the summons.
(3) Where the plaintiff claims delivery of possession there must be indorsed on the outside fold of the copy of the affidavit served on the defendant a notice informing the defendant that the plaintiff intends at the hearing to apply for an order to the defendant to deliver up to the plaintiff possession of the charged property and for such other relief (if any) claimed by the originating summons as the plaintiff intends to apply for at the hearing.
(4) Where the hearing is adjourned, then, subject to any directions given by the Court, plaintiff must serve notice of the appointment for the adjourned hearing, together with a copy of any further affidavit intended to be used at the hearing, on the defendant not less than 2 clear days before the day fixed for the hearing.
A copy of any affidavit served under this paragraph must be indorsed in accordance with paragraph (3).
(5) Service under paragraph (2) or (4), and the manner in which it was effected, may be proved by a certificate signed by the plaintiff, if he sues in person, and otherwise by his solicitor.
The certificate may be indorsed on the affidavit in support of the summons or, as the case may be, on any further affidavit intended to be used at an adjourned hearing.
(6) A copy of any exhibit to an affidavit need not accompany the copy of the affidavit served under paragraph (2) or (4).
(7) Where the plaintiff gives notice to the defendant under Order 3, rule 6, of his intention to proceed, service of the notice, and the manner in which it was effected, may be proved by a certificate signed as mentioned in paragraph (5).
3. Action for possession or payment. (O. 83 r. 3)
(1) The affidavit in support of the originating summons by which an action to which this rule applies is begun must comply with the following provisions of this rule.
This rule applies to a charge action begun by originating summons in which the plaintiff is the chargee and claims delivery of possession or payment of moneys secured by the charge or both.
(2) The affidavit must exhibit a true copy of the charge and the original charge or, in the case of a registered charge, the charge certificate must be produced at the hearing of the summons.
(3) Where the plaintiff claims delivery of possession the affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class otherwise directs, the state of the account between the chargor and chargee with particulars of–
(a) the amount of the advance;
(b) the amount of the repayments;
(c) the amount of any interest or instalments in arrear at the date of issue of the originating summons and at the date of the affidavit; and
(d) the amount remaining due under the charge.
(4) Where the plaintiff claims delivery of possession, the affidavit must give particulars of every person who to the best of the plaintiff’s knowledge is in possession of the charged property.
(5) If the charge creates a tenancy other than a tenancy at will between the chargor and chargee, the affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.
(6) Where the plaintiff claims payment of moneys secured by the charge, the affidavit must prove that the money is due and payable and give the particulars mentioned in paragraph (3).
(7) Where the plaintiff’s claim includes a claim for interest to judgment, the affidavit must state the amount of a day’s interest.
4. Action by writ: Judgment in default. (O. 83 r. 4)
(1) Notwithstanding anything in Order 13 or Order 19, in a charge action begun by writ judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court.
(2) An application for the grant of leave under this rule must be made by summons and the summons must, notwithstanding anything in Order 62, rule 10, be served on the defendant.
(3) Where a summons for leave under this rule is issued, rule 2(2) to (7) shall apply in relation to the action subject to the modification that for references therein to the originating summons, and for the reference in paragraph (2) to the notice of appointment, there shall be substituted references to the summons.
(4) Where a summons for leave under this rule is issued in an action to which rule 3 would apply had the action been begun by originating summons, the affidavit in support of the summons must contain the information required by that rule.
5. Foreclosure in redemption action. (O. 83 r. 5)
Where foreclosure has taken place by reason of the failure of the plaintiff in a charge action for redemption to redeem, the defendant in whose favour the foreclosure has taken place may apply by motion for an order for delivery to him of possession of the charged property, and the Court may make such order thereon as it thinks fit.
82. Debenture Holders’ Action: Receiver’s Register.
ORDER 82
DEBENTURE HOLDERS’ ACTION: RECEIVER’S REGISTER
1. Receiver’s register. (O. 82 r. 1)
Every receiver appointed by the Court in an action to enforce registered debenture or registered debenture stock shall, if so directed by the Court, keep a register of transfers of, and other transmissions of title to, such debentures or stock (in this Order referred to as the "receiver’s register").
2. Registration of transfers, etc. (O. 82 r. 2)
(1) Where a receiver is required by rule 1 to keep a receiver’s register, then, on the application of any person entitled to any debentures or debenture stock by virtue of any transfer or other transmission of title, and on production of such evidence of identity and title as the receiver may reasonably require, the receiver shall, subject to the following provisions of this rule, register the transfer or other transmission of title, and on production of such evidence of identity and title as the receiver may reasonably require, the receiver shall, subject to the following provisions of this rule, register the transfer or other transmission of title in that register.
(2) Before registering a transfer the receiver must, unless the due execution of the transfer is proved by affidavit, send by post to the registered holder of the debentures or debenture stock transferred at his registered address a notice stating–
(a) that an application for the registration of the transfer has been made; and
(b) that the transfer will be registered unless within the period specified in the notice the holder informs the receiver that he objects to the registration,
and no transfer shall be registered until the period so specified has elapsed.
The period to be specified in the notice shall in no case be less than 7 days after a reply from the registered holder would in the ordinary course of post reach the receiver if the holder had replied to the notice on the day following the day when in the ordinary course of post the notice would have been delivered at the place to which it was addressed.
(3) On registering a transfer or other transmission of title under this rule the receiver must indorse a memorandum thereof on the debenture or certificate of debenture stock, as the case may be, transferred or transmitted, containing a reference to the action and to the order appointing him receiver.
3. Application for rectification of receiver’s register. (O. 82 r. 3)
(1) Any person aggrieved by anything done or omission made by a receiver under rule 2 may apply to the Court for rectification of the receiver’s register, the application to be made by summons in the action in which the receiver was appointed.
(2) The summons shall in the first instance be served only on the plaintiff or other party having the conduct of the action but the Court may direct the summons or notice of the application to be served on any other person appearing to be interested.
(3) The Court hearing an application under this rule may decide any question relating to the title of any person who is party to the application to have his name entered in or omitted from the receiver’s register and generally may decide any question necessary or expedient to be decided for the rectification of that register.
4. Receiver’s register evidence of transfers, etc. (O. 82 r. 4)
Any entry made in the receiver’s register, if verified by an affidavit made by the receiver or by such other person as the Court may direct, shall in all proceedings in the action in which the receiver was appointed be evidence of the transfer or transmission of title to which the entry relates and, in particular, shall be accepted as evidence thereof for the purpose of any distribution of assets, notwithstanding that the transfer or transmission has taken place after the making of a certificate in the action certifying the holders of the debentures or debenture stock certificates.
5. Proof of title of holder of bearer debenture, etc. (O. 82 r. 5)
(1) This rule applies in relation to an action to enforce bearer debentures or to enforce debenture stock in respect of which the company has issued debenture stock bearer certificates.
(2) Notwithstanding that judgment has been given in the action and that a certificate has been made therein certifying the holders of such debentures or certificates as are referred to in paragraph (1), the title of any person claiming to be such a holder shall (in the absence of notice of any defect in the title) be sufficiently proved by the production of the debenture or debenture stock certificates, as the case may be, together with a certificate of identification signed by the person producing the debenture or certificate identifying the debenture or certificate produced and certifying the person giving his name and address who is the holder thereof.
(3) Where such a debenture or certificate as is referred to in paragraph (1) is produced in the chambers of the Judge, the solicitor of the plaintiff in the action must cause to be indorsed thereon a notice stating–
(a) that the person whose name and address is specified in the notice (being the person named as the holder of the debenture or certificate in the certificate of identification produced under paragraph (2)) has been recorded in the chambers of the Judge as the holder of the debenture or debenture stock certificate, as the case may be; and
(b) that that person will, on producing the debenture or debenture stock certificate, as the case may be, be entitled to receive payment of any dividend in respect of that debenture or stock unless before payment a new holder proves his title in accordance with paragraph (2); and
(c) that if a new holder neglects to prove his title as aforesaid he may incur additional delay, trouble and expense in obtaining payment.
(4) The solicitor of the plaintiff in the action must preserve any certificate of identification produced under paragraph (2) and must keep a record of the debentures and debenture stock certificates so produced and of the names and addresses of the persons producing them and of the holders, thereof, if the Court requires it, must verify the record by affidavit.
6. Requirements in connection with payments. (O. 82 r. 6)
(1) Where in an action to enforce any debentures or debenture stock an order is made for payment in respect of the debentures or stock, the Accountant-General shall not make a payment in respect of any such debenture or stock unless either there is produced to him the certificate for which paragraph (2) provides or the Court has in the case in question for special reason dispensed with the need for the certificate and directed payment to be made without it.
(2) For the purpose of obtaining any payment the debenture or debenture stock certificate must be produced to the solicitor of the plaintiff in the action or to such other person as the Court may direct and that solicitor or person must indorse thereon a memorandum of payment and must make and sign a certificate certifying that the statement set out in the certificate has been indorsed on the debenture or debenture stock certificate, as the case may be, and send the certificate to the Accountant-General.
81. Actions for Specific Performance, etc., Summary Judgment.
ORDER 81
ACTIONS FOR SPECIFIC PERFORMANCE, ETC.,
SUMMARY JUDGMENT
1. Application by plaintiff for summary judgment. (O. 81 r. 1)
(1) In any action begun by writ indorsed with a claim–
(a) for specific performance of an agreement (whether in writing or not) for the sale, purchase or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages; or
(b) for rescission of such an agreement; or
(c) for the forfeiture or return of any deposit made under such an agreement,
the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.
(2) An application may be made against a defendant under this rule whether or not he has entered an appearance in the action.
2. Manner in which application under Rule 1 must be made. (O. 81 r. 2)
(1) An application under rule 1 must be made by summons supported by an affidavit made by some person who can swear positively to the facts verifying the cause of action and stating that in his belief there is no defence to the action.
(2) The summons must set out or have attached thereto minutes of the judgment sought by the plaintiff.
(3) The summons, a copy of the affidavit in support and of any exhibit referred to therein must be served on the defendant within 14 days from the date of issue of the summons. [Am. PU(A)342/2000 w.e.f. 22 Sept 2000]
2A. Affidavits. (O. 81, r. 2A) .
Order 32 rule 13(2) shall apply mutatis mutandis to all affidavits in respect of an application under this Order.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
3. Judgment for plaintiff. (O. 81 r. 3)
Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action.
4. Leave to defend. (O. 81 r. 4)
(1) A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.
(2) The Court may give a defendant against whom such an application is made leave to defend the action either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.
(3) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity–
(a) to produce any document;
(b) if it appears the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.
5. Directions. (O. 81 r. 5)
Where the Court orders that a defendant have leave to defend the action, the Court shall give directions as to the further conduct of action, and, if the Court so directs, Order 25, rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modification apply as if the application under rule 1 were a summons for directions.
6. Costs. (O. 81 r. 6)
If the plaintiff makes an application under rule 1 where the case is not within this Order, or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, without prejudice to Order 59, and, in particular, to rule 4(1) thereof, the Court may dismiss the application with costs and may, if the plaintiff is not an assisted person, require the costs to be paid by him forthwith.
7. Setting aside judgment. (O. 81 r. 7 )
Any judgment given against a defendant who does not appear at the hearing of an application under rule 1 may be set aside or varied by the Court on such terms as it thinks just.
80. Administration and Similar Actions.
ORDER 80
ADMINISTRATION AND SIMILAR ACTIONS
1. Interpretation. (O. 80 r. 1)
In this Order "administration action" means an action for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.
2. Determination of questions, etc., without administration. (O. 80 r. 2)
(1) An action may be brought for the determination of any question or for any relief which could be determined or granted, as the case may be, in an administration action and a claim need not be made in the action for the administration or execution under the direction of the Court of the estate or trust in connection with which the question arises or the relief is sought.
(2) Without prejudice to the generality of paragraph (1), an action may be brought for the determination of any of the following questions–
(a) any question arising in the administration of the estate of a deceased person or in the execution of a trust;
(b) any question as to the composition of any class of persons having a claim against the estate of a deceased person or a beneficial interest in the estate of such a person or in any property subject to a trust;
(c) any question as to the rights or interests of a person claiming to be a creditor of the estate of a deceased person or to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust.
(3) Without prejudice to the generality of paragraph (1) an action may be brought for any of the following reliefs–
(a) an order requiring an executor, administrator or trustee to furnish and, if necessary, verify accounts;
(b) an order requiring the payment into Court of money held by a person in his capacity as executor, administrator or trustee;
(c) an order directing a person to do or abstain from doing a particular act in his capacity as executor, administrator or trustee;
(d) an order approving any sale, purchase, compromise or other transaction by a person in his capacity as executor, administrator or trustee;
(e) an order directing any act to be done in the administration of the estate of a deceased person or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed, as the case may be, under the direction of the Court.
3. Parties. (O. 80 r. 3)
(1) All the executors or administrators of the estate or trustees of the trust, as the case may be, to which an administration or such an action as is referred to in rule 2 relates must be parties to the action, and where the action is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff must be made a defendant.
(2) Notwithstanding anything in Order 15, rule 4(2) and without prejudice to the powers of the Court under that Order, all the persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, to which such an action as is mentioned in paragraph (1) relates need not be parties to the action; but the plaintiff may make such of those persons whether all or any one or more of them, parties as, having regard to the nature of the relief or remedy claimed in the action, he thinks fit.
(3) Where, in proceedings under a judgment or order given or made in an action for the administration under the direction of the Court of the estate of a deceased person, a claim in respect of a debt or other liability is made against the estate by a person not a party to the action, no party other than the executors or administrators of the estate shall be entitled to appear in any proceedings relating to that claim without the leave of the Court, and the Court may direct or allow any other party to appear either in addition to, or in substitution for, the executors or administrators on such terms as to costs or otherwise as it thinks fit.
4. Grant of relief in action begun by originating summons. (O. 80 r. 4)
In an administration action or such an action as is referred to in rule 2, the Court may make any certificate or order and grant any relief to which the plaintiff may be entitled by reason of any breach of trust, wilful default or other misconduct of the defendant notwithstanding that the action was begun by originating summons, but the foregoing provision is without prejudice to the power of the Court to make an order under Order 28, rule 8, in relation to the action.
5. Judgments and orders in administration actions. (O. 80 r. 5)
(1) A judgment or order for the administration or execution under the direction of the Court of an estate or trust need not be given or made unless in the opinion of the Court the questions at issue between the parties cannot properly be determined otherwise than under such a judgment or other.
(2) Where an administration action is brought by a creditor of the estate of a deceased person or by a person claiming to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust, and the plaintiff alleges that no or insufficient accounts have been furnished by the executors, administrators or trustees, as the case may be, then, without prejudice to its other powers, the Court may–
(a) order that proceedings in the action be stayed for a period specified in the order and that the executors, administrators, or trustees, as the case may be, shall within that period furnish the plaintiff with proper accounts;
(b) if necessary to prevent proceedings by other creditors or by other persons claiming to be entitled as aforesaid, give judgment or make an order for the administration of the estate to which the action relates and include therein an order that no proceedings are to be taken under the judgment or order, or under any particular account or inquiry directed, without the leave of the Judge in person.
6. Conduct of sale of trust property. (O. 80 r. 6)
Where in an administration action an order is made for the sale of any property vested in executors, administrators or trustees, those executors, administrators or trustees, as the case may be, shall have the conduct of the sale unless the Court otherwise directs.
79. Moneylenders’ Actions.
ORDER 79
MONEYLENDERS’ ACTIONS
1. Application and interpretation. (O. 79 r. 1)
(1) These rules apply to a moneylender’s action subject to the following rules of this Order.
(2) In these rules–
"moneylender" has the meaning assigned to it by section 2 of the Moneylenders Ordinance, 1951 (42/51)*;
"moneylender’s action" means an action for the recovery of money lent by a moneylender or for the enforcement of any agreement or security relating to money so lent, being an action brought by the lender or an assignee.
2. Indorsement of writ. (O. 79 r. 2)
Before a writ beginning a moneylender’s action is issued it must be indorsed with a statement that at the time of the making of the loan or contract or the giving of the security in question the lender was licensed as a moneylender.
3. Particulars to be included in statement of claim. (O. 79 r. 3)
Every statement of claim in a moneylender’s action (whether indorsed on the writ or not) must state–
(a) the date on which the loan was made;
(b) the amount actually lent to the borrower;
(c) the rate per cent per annum of interest charged;
(d) the date when the contract for repayment was made;
(e) the fact that a note or memorandum of the contract was made and was signed by the borrower;
(f) the date when a copy of the note or memorandum was delivered or sent to the borrower;
(g) the amount repaid;
(h) the amount due but unpaid;
(i) the date upon which such unpaid sum or sums became due; and
(j) the amount of interest accrued due and unpaid on every such sum.
4. Judgment in default of appearance or of defence. (O. 79 r. 4)
(1) In a moneylender’s action judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court.
(2) An application for the grant of leave under this rule must be made by summons, and the summons must, notwithstanding any thing in Order 62, rule 10, be served on the defendant.
(3) If the application is for leave to enter judgment in default of appearance, the summons shall not be issued until after the time limited for appearing.
(4) On the hearing of such an application, whether the defendant appears or not, the Court–
(a) may exercise the powers of the Court under section 21(2) of the Moneylenders Ordinance 1951 (42/51);
(b) where it refuses leave under this rule to enter judgment on a claim or any part of a claim, may make or give any such order or directions as it might have made or given had the application been an application under Order 14, rule 1, for judgment on the claim.
5. Particulars to be included in originating summons. (O. 79 r. 5)
Where a moneylender’s action is begun by originating summons, the summons must contain a statement of the matters specified in rules 2 and 3.
78. Defamations Actions.
ORDER 78
DEFAMATION ACTIONS
1. Application. (O. 78 r. 1)
These rules apply to actions for libel or slander subject to the following rules of this Order.
2. Indorsement of claim in libel action. (O. 78 r. 2)
Before a writ in an action for libel is issued it must be indorsed with a statement giving sufficient particulars of the publications in respect of which the action is brought to enable them to be identified.
3. Obligation to give particulars. (O. 78 r. 3)
(1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in respect of such sense.
(2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.
(3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.
(4) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant.
4. Provisions as to payment into Court. (O. 78 r. 4)
(1) Where in an action for libel or slander against several defendants sued jointly the plaintiff, in accordance with Order 22, rule 3(1), accepts money paid into Court by any of those defendants, in satisfaction of his cause of action against that defendant, then, notwithstanding anything in rule 3(4) of that Order, the action shall be stayed as against that defendant only, but–
(a) the sum recoverable under any judgment given in the plaintiff’s favour against any other defendant in the action by way of damages shall not exceed the amount (if any) by which the amount of the damages exceeds the amount paid into Court by the defendant as against whom the action has been stayed; and
(b) the plaintiff shall not be entitled to his costs of the action against the other defendant after the date of the payment into Court unless either the amount of the damages awarded to him is greater than the amount paid into Court and accepted by him or the Judge is of the opinion that there was reasonable ground for him to proceed with the action against the other defendant.
(2) Where in an action for libel a party pleads the defence for which section 10(2) of the Defamation Ordinance 1957*, provides, Order 22, rule 7, shall not apply in relation to that pleading.
5. Statement in open Court. (O. 78 r. 5)
(1) Where a party accepts money paid into Court in satisfaction of a cause of action for libel or slander, the plaintiff or defendant, as the case may be, may apply to a Judge in Chambers by summons for leave to make in open Court a statement in terms approved by the Judge.
(2) Where a party to an action for libel or slander which is settled before trial desires to make a statement in open Court, an application must be made to the Court for an order that the action be set down for trial, and before the date fixed for the trial the statement must be submitted for the approval of the Judge before whom it is to be made.
6. Interrogatories not allowed in certain cases. (O. 78 r. 6)
In an action for libel or slander where the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant’s sources of information or grounds of belief shall be allowed.
7. Evidence in mitigation of damages. (O. 78 r. 7)
In an action for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Judge, unless 7 days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.
8. Fulfilment of offer of amends under section 7 of Defamation Ordinance 1957. (O. 78 r. 8)
(1) An application to the Court under section 7 of the Defamation Ordinance 1957, to determine any question as to the steps to be taken in fulfilment of an offer of amends made under that section must, unless the application is made in the course of proceedings for libel or slander in respect of the publication to which the offer relates, be made in Chambers, but only a Judge may determine such question.
(2) No appearance need be entered to an originating summons by which such an application is made.
77. Partners.
ORDER 77
PARTNERS
1. Actions by and against firms within jurisdiction. (O. 77 r. 1)
Subject to the provisions of any written law, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued.
2. Disclosure of partners’ names. (O. 77 r. 2)
(1) Any defendant to an action brought by partners in the name of a firm may serve on the plaintiffs or their solicitor a notice requiring them or him forthwith to furnish the defendant with a written statement of the names and places of residence of all the persons who were partners in the firm at the time when the cause of action accrued; and if the notice is not complied with the Court may order in Form 191 the plaintiffs or their solicitor to furnish the defendant with such a statement and to verify it on oath or otherwise as may be specified in the order, or may order that further proceedings in the action be stayed on such terms as the Court may direct.
(2) When the names of the partners have been declared in compliance with a notice or order given or made under paragraph (1), the proceedings shall continue in the name of the firm but with the same consequences as would have ensued if the persons whose names have been so declared had been named as plaintiffs in the writ.
(3) Paragraph (1) shall have effect in relation to an action brought against partners in the name of a firm as it has effect in relation to an action brought by partners in the name of a firm but with the substitution, for references to the defendant and the plaintiffs, of references to the plaintiff and the defendants respectively, and with the omission of the words "or may order" to the end.
3. Service of writ. (O. 77 r. 3)
(1) Where by virtue of rule 1 partners are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2), be served–
(a) on any one or more of the partners; or
(b) at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control or management of the partnership business there;
and where service of the writ is effected in accordance with this paragraph, the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction.
(2) Where a partnership has, to the knowledge of the plaintiff, been dissolved before an action against the firm is begun, the writ by which the action is begun must be served on every person within the jurisdiction sought to be made liable in the action.
(3) Every person on whom a writ is served under paragraph (1) must at the time of service be given a written notice in Form 192 stating whether he is served as a partner or as a person having the control or management of the partnership business or both as a partner and as such a person; and any person on whom a writ is so served but to whom no such notice is given shall be deemed to be served as a partner.
4. Entry of appearance in an action against firm. (O. 77 r. 4)
(1) Where persons are sued as partners in the name of their firm, appearance may not be entered in the name of the firm but only by the partners thereof in their own names, but the action shall nevertheless continue in the name of the firm.
(2) Where in an action against a firm the writ by which the action is begun is served on a person as a partner, that person, if he denies that he was a partner or liable as such at any material time, may enter an appearance in the action and state in the memorandum of appearance that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time.
An appearance entered in accordance with this paragraph shall, unless and until it is set aside, be treated as an appearance for the defendant firm.
(3) Where an appearance has been entered for a defendant in accordance with paragraph (2) then–
(a) the plaintiff may either apply to the Court to set it aside on the ground that the defendant was a partner or liable as such at a material time or may leave that question to be determined at a later stage of the proceedings;
(b) the defendant may either apply to the Court to set aside the service of the writ on him on the ground that he was not a partner or liable as such at a material time or may at the proper time serve a defence on the plaintiff denying in respect of the plaintiff’s claim either his liability as a partner or the liability of the defendant firm or both.
(4) The Court may at any stage of the proceedings in an action in which a defendant has entered an appearance in accordance with paragraph (2), on the application of the plaintiff or of that defendant order that any question as to the liability of that defendant or as to the liability of the defendant firm be tried in such manner and at such time as the Court directs.
(5) Where in an action against a firm the writ by which the action is begun is served on a person as a person having the control or management of the partnership business, that person may not enter an appearance in the action unless he is a member of the firm sued.
5. Enforcing judgment or order against firm. (O. 77 r. 5)
(1) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6, issue against any property of the firm within the jurisdiction.
(2) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6 and to the next following paragraph, issue against any person who–
(a) entered an appearance in the action as a partner; or
(b) having been served as a partner with the writ of summons, failed to enter an appearance in the action; or
(c) admitted in his pleading that he is a partner; or
(d) was adjudged to be a partner.
(3) Execution to enforce a judgment or order given or made against a firm may not issue against a member of the firm who was out of the jurisdiction when the writ of summons was issued unless he–
(a) entered an appearance in the action as a partner; or
(b) was served within the jurisdiction with the writ as a partner; or
(c) was, with the leave of the Court given under Order 11, served out of the jurisdiction with the notice of the writ, as a partner;
and, except as provided by paragraph (1) and by the foregoing provisions of this paragraph, a judgment or order given or made against a firm shall not render liable, release or otherwise affect a member of the firm who was out of the jurisdiction when the writ was issued.
(4) Where a party who has obtained a judgment or order against a firm claims that a person is liable to satisfy the judgment or order as being a member of the firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for leave to issue execution against that person, the application to be made by summons which must be served personally on that person.
(5) Where the person against whom an application under paragraph (4) is made does not dispute his liability, the Court hearing the application may, subject to paragraph (3), give leave to issue execution against that person and, where that person disputes his liability, the Court may order that the liability of that person be tried and determined in any manner in which any issue or question in an action may be tried and determined.
6. Enforcing judgment in action between partners, etc. (O. 77 r. 6)
(1) Execution to enforce a judgment or order given or made in–
(a) an action by or against a firm in the name of the firm, against or by a member of the firm; or
(b) an action by a firm in the name of the firm against a firm in the name of the firm where those firms have one or more members in common,
shall not issue except with the leave of the Court.
(2) The Court hearing an application under this rule may give such directions including directions as to the taking of accounts and the making of inquiries as may be just
7. Attachment of debts owed by firm. (O. 77 r. 7)
(1) An order may be made under Order 49, rule 1, in relation to debts due or accruing due from a firm carrying on business within the jurisdiction notwithstanding that one or more members of the firm is resident out of the jurisdiction.
(2) An order to show cause under the said rule 1 relating to such debts as aforesaid must be served on a member of the firm within the jurisdiction or on some other person having the control or management of the partnership business.
(3) Where an order made under the said rule 1 requires a firm to appear before the Court, an appearance by a member of the firm constitutes a sufficient compliance with the Order.
8. Actions begun by originating summons. (O. 77 r. 8)
Rules 2 to 7 shall, with the necessary modifications, apply in relation to an action by or against partners in the name of their firm begun by originating summons as they apply in relation to such an action begun by writ.
9. Application to person carrying on business in another name. (O. 77 r. 9)
An individual carrying on business within the jurisdiction in a name or style other than his own name may be sued in that name or style as if it were the name of a firm, and rules 2 to 8 shall, so far as applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.
10. Applications for orders charging partner’s interest in partnership property, etc. (O. 77 r. 10)
(1) Every application to the Court by a judgment creditor of a partner of an order under section 25 of the Partnership Act 1961 (Act 135) (which authorizes the High Court or a Judge thereof to make certain orders on the application of a judgment creditor of a partner including an order charging the partner’s interest in the partnership property), and every application to the Court by a partner of the judgment debtor made in consequence of the first mentioned application must be made by summons.
(2) The Registrar may exercise the powers conferred on a Judge by the said section 25.
(3) Every summons issued by a judgment creditor under this rule, and every order made on such a summons, must be served on the judgment debtor and on such of his partners as are within the jurisdiction.
(4) Every summons issued by a partner of a judgment debtor under this rule, and every order made on such a summons, must be served–
(a) on the judgment creditor; and
(b) on the judgment debtor; and
(c) on such of the other partners of the judgment debtor as do not join in the application and are within the jurisdiction.
(5) A summons or order served in accordance with this rule on some only of the partners of a partnership shall be deemed to have been served on all the partners of that partnership.
