Court dismisses application to strike out estate action, holding weak cases are not grounds for dismissal.

[*52] 1984 June 2

(MILTLADOU, D,J,)

IN THE DISTRICT COURT OF PAPHOS,

Plaintiff,

v.

Lambros Nicolaides, executor of the will of Panayiotis Aristodemou P. Zavrou,

Defendant.

(Action No. 324/84).

Administration of Estates - Caveat - The Administration of Estates Rules, Rule 24|.(5)(b) - Purpose of - Whether proceedings for administration taken after the three months’ period provided in the said rule are by reason of the failure to institute them within the aforesaid period null, void and/or illegal - Question answered in the negative.

Civil procedure - Setting aside the service of the Writ of Summons - The Civil Procedure Rules, Order 16, Rule 9 - Ambit of said Rule.

Administration of Estates - The Administration of Estates Law, Cap. 189, section 53 - The Civil Procedure Rules, Order 55, Rule 1 - Whether said legal provisions prevent a person, who belongs to -the class of persons specified therein, from instituting an action by writ of summons, instead of an application by originating summons, against the executor of a will, claiming a declaration that the will is void and an order that the plaintiff be granted letters of administration - Question answered in the negative.

Civil procedure - Pleadings - The Civil Procedure Rules, Order 19, Rules 4 and 26 - what facts constitute “material facts” in the sense of Rule 4 - Object of pleadings - Court should not dictate to parties how they would frame their case - When a pleading is too general in its terms and, thus, the opponent is deprived of the information he is entitled, the proper course for such opponent is to apply for particulars under Rules 6 and 7 of Order 19. [*53]

Civil Procedure - Interlocutory applications - The Civil Procedure Rules, Order 48, Rule 1 - The specification of the Law and Rules and a concise statement of the facts relied upon are not matters of mere formality, but substantive procedural provisions - Court cannot hear or determine matters or issues not specifically requested or raised by the applicant in his summons.

Administration of Estates - Practice

- The Administration of Estates Rules, 1955 - Rule 42 - Failure to give particulars as required by said Rule - No justification for striking out the action.

Civil Procedure - Hearing and determination of a point of law as a preliminary issue - The Civil Procedure Rules, Order 27, Rule 1 - An application thereunder is not justified before the exchange of pleadings between the parties.

Civil Procedure - Striking out a pleading summarily - The Civil Procedure Rules, Order 27, Rule 3 - Ambit of.

Civil Procedure - Irregularity - Special indorsement of writ of summons containing a claim in respect of fraud contrary to Order 2, Rule 6 of the Civil Procedure Rules - Such non compliance with the rule does not render the proceedings void, unless the Court so directs

- The Civil Procedure Rules, Order 64, Rule 1.

Chr. Demetriou, for the Applicant.

P. Charalambous, for the Respondent.

RULING

The following ruling was delivered by:-

MILTIADOU. D.J.: The plaintiff in the above action claims against the defendant, as the executor of the Will of the deceased Panayiotis Aristodemou late of Anarita:-

(a) For an order declaring the said will, null and void, both in form and in substance, and not in existence, and/or as not being executed [*54] according to the Law, and/or, that at the time of its execution the said deceased was not of sound mind and that Probate Application 150/83 for the grant of probate of the will be set aside.

(b) In the alternative, for an order declaring said will void and without any legal effect, because its execution was obtained by coersion, and/or, by fraud, and/or, by undue influence, and/or, the said deceased at the time . of its execution did not know the contents thereof.

(c) Further and in addition for an ;order. that, the plaintiff., being the only lawful descendant of the deceased, take his lawful share in the net estate and that, the defendant-executor-administrator, be adjudged to transfer to the plaintiff his said lawful share.

(d) For an order directing, in case the above will is declared null and void, the grant of letters of administration of the estate of the deceased to the plaintiff, being the only person who is entitled in priority thereto.

The Writ of Summons in the above action was served on the defendant on the 2.3. 84, and the., defendant without entering, an appearance, on the 27.3.84 took out a summons to have -

(a) The service of the said writ set aside on the

ground that it was invalidly and illegally instituted after the 19.2.84. [*55]

(b) The above action wholly struck out on the ground -

(i) that it was instituted on the 29.2.84 after the expiration of the three months period of the caveat which was entered on the 19.11 .83:

(ii) that it was instituted in contravention to the provisions of section 53 of the Administration of Estates Law, Cap. 189; and

(iii) that, as it is shown from the pleadings, it discloses no reasonable cause of action and is frivolous and vexatious.

The facts relied upon, are set forth, in the accompanying affidavit sworn by the defendant dated 10.3.84 on the content of which I do not intend to go in detail as the grounds raised therein are those mentioned in the summons and which are set out hereinabove.

The application is based on the Administration of Estates Law, Cap. 189 section 53, The Administration of Estates Rules 1955, Rules 24(5)(b), 25, 16 and 17 and on the Civil Procedure Rules. Order 48 rule 2, Order 27, rules 1 and 20 3, Order 55, rule 1, Order 16, rule 9, Order 2, rule 13 and Order 19, rules 4 and 26.

The respondent opposes the above application and the facts relied upon are set out in an affidavit sworn by the respondent/plaintiff. [*56]

At the commencement of the hearing the applicantdefendant made a statement to the effect that he didn’t object asregards the claim of the respondent-plaintiff as set out in paragraph 11(c) of the indrosement of the writ of summons. However, I myself, I don’t see, what it worths, since, in a question by the Court if he admits an. order accordingly, the reply was in the negative.

The respondent-plaintiff on. the other hand made a statement to the effect that he abandons paragraph 11(d) of the indorsement of the writ of summons and submits to an order accordingly striking out said paragraph.

I will now proceed to consider the.-remedies applied for and the grounds relied upon as set out in the summons taken out by.the applicant, one by one.

The applicant applies first for an order setting aside theservice of the writ of summons on the ground that the above action was filed after the lapse of three months from the date of the entering by the respondent of the caveat in probate application No. 150/83 and in consequence the said action is null, void and illegal.

The above ground is based as far as I can apprehend on the Administration of Estates Rules, rule 24 (5) (b), which reads as follows:-

“No grant shall be made to an application after.a caveat has been entered against his application unless -

(a)…………………. [*57]

(b) the caveator has for three months brought no action for administration”.

and on the Divil procedure Rules, Order 16, rule 9 which reads as follows:-

“A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorizing such service”.

Rule 24(5) (b) of the Administration of Estates Rules 1955, as I understand it is to provide a bar to the making of a grant for a period of three months, to give to the caveator time to make the necessary inquiries and to obtain such information to enable him to determine, whether or not there are grounds for his opposing the grant, or to a person interested in the estate an opportunity of bringing any question arising in respect of the grant before the Court. It is a step preliminary to a probate action or to the issue of a summons. If, however, no action for administration is taken by the caveator within the above appointed period of the three months, then the said bar ceases to be coperative and such grant may be made by the Probate Registrar.

Despite the fact that the respondent has abandoned his claim for administration, by this statement at the commencement of the hearing of this application, yet, I myself cannot see, even on the most liberal construction of the said rule, [*58] how, auch failure of the respondent, to take proceedings, within three months, for administration, renders, such proceedings taken thereafter, null, void and illegal.

As regards Order 16, rule 9 of the Civil Procedure Rules, it is my judgment that this rule is designed to give relief in cases where there is an irregularity in the issue or service of the writ of summons and after an unconditional appearance, it is too late to object to any such iregularity which the defendant knew, because the said appearance “is fresh step” within order 64|,rule 2 of the Civil Procedure Rules, and no application to set aside any such proceeding for irregularity shall be allowed thereafter.

In the present action I don’t see how this rule is applicable, since, according to the applicant’s own allegations the whole action is null, void and illegal. The rule does not apply to proceedings which are null and void and we are not here concerned with irregularity in the service or issue of the writ. That raises other.. considerations which are here quite out of place.

The-second relief applied for by the applicant in his said summons is for an order striking out the whole action on the., grounds:-

(a.) that, this action was filed on the 29.2.84 after the expiration of the three months period of the caveat, whichwas entered on the 19.11.83.

As regards this ground, I have already dealt with and I have nothing more to add to what I have hereinabove-mentioned. [*59]

(b) that the action was instituted in contravention to the provisions of section 53 of the Administration of Estates Law, Cap. 189.

It is quite clear that the above ground is based on section 53 of the Administration of Estates Law, Cap. 189 which, reads as follows:-

(1) Personal representatives or any of them, creditor devisees, legatees or next-of-kin, or persons claiming through such creditors or beneficiaries by assignment or otherwise, may apply to the Court by originating summons for the determination, without an administration in Court of the estate, of any of the following questions or matters: -

(a) any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next-of-kin, or heir-at-law;

(b) the ascertainment of any class of creditors, legatees, devisees, next-of-kin, or others;

(c) the furnishing of any particular accounts by the executors or administrators, and the vouching, when necessary, of such accounts;

(d) the payment into Court of any money in the hands of the executors or administrators;

(e) directing the executors or administrators to do or obtain from doing any particular act in their character as such executors or administrators; [*60]

(f) the approval of any sale, purchase, compromise, or other transaction;

(g) the determination of any question arising in the administration of the estate,

(2) The Rules of Court, in force for the time being, relating to originating summons shall apply to all proceedings under this section,

(3) Applications under this section may be heard and determined in Chambers”.

and on Order 55, rule 1 of the Civil Procedure Rules which reads as follows:-

“Any person claiming to be interested under a deed, will, or other written instrument, may apply to the Court by originating summons (Forms 50 and 51 ) for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested”.

Section 53 of The Administration of Estates Law, Cap, 189, which is almost identical with rule 3 of Order 55 of the old English Rules of the Supreme Court, and rule 1 of Order 55 of our Civil Procedure Rules, aims to give a discretionary right to executors or administrators, as well as, to a class of interested persons, specified therein, to have certain matters determined by the Court or to apply for directions, by originating summons, and, in no way are applicable or are a bar to an action by a next-of-kin, or heir-at-law, who alleges that a deed, will or other written instrument, as in the [*61] present action, is void and null, because its execution was obtained by coersion, fraud, undue influence and/or because at the time of its execution the said deceased did not know the contents thereof.

(c) that, as it shown from the pleadings, its discloses no reasonable cause of action and is frivolous and vexatious.

The above ground is based on Order 19,rules 4 and 26 and on Order 27, rules 1 and 3 of the Civil Procedure Rules .

Rule 4 of Order 19 of the Civil Procedure Rules reads as follows: -

“Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claims or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expresses in figures and not in words. The pleadings shall be signed by the advocate, or by the party, if he sues or defends in person”.

Rule 26 of the above order reads as follows:-

“The Court or a Judge may, at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous or which may tend to [*62] prejudice, embarass, or delay the fair trial of the: action”.

Rule 1 of Order 27 of the Civil Procedure Rules reads as follows:-

“Any party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the Court at any stage that may appear to it convenient”

Rule 3 of the above order finally reads as follows:-

“The Court may order any pleading to be struck out on the ground that-it discloses no reasonable cause of action or answer, and in any such, case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly as may be just”.

Rule 4 of Order 19 is similar to rule

4 of Order 19 of the Rules of the Supreme Court in England as it was before 1962, Under this rule the word “material” means necessary for the purpose of formulating a complete cause of action, so, pleadings must be concise statements of the facts the party pleading deems material to his case and on which he means to rely on at the trial to prove his claim.

The general rule, of what amounts to, “material facts” is stated by Cotton L.J. in Philips v.P.

4 Q.B.D. 139.

“In my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, [*63] should state those facts which will put the defendants on their guard, and tell them, what they have to meet when the case comes on for trial. Each party must plead all the material facts on which he means to rely at the trial; otherwise he is not entitled to give any evidence of them at the trial. No averment must be omitted which is essential to success”.

The main objective of the pleadings is to narrow the issues between the parties and to clarify what is in issue and any failure on behalf of a pleader to aver, material facts, he is not entitled to give evidence of them at the trial. (See Kapatais v. The London Insurance, Vol. 24, (1959-1960) C.L.R. p. 66, Loucaides v. C.D.Hay

(1971) 1 C.L.R. p. 134 and A.D. Hotel v. Pilava

(1982) 1 C.L.R. 81).

Rule 26 of Order 19 on the other hand is similar to Rule 27 of Order 19 of the Old English Rules of the Supreme Court.

This rule is a general rule and is designed for enforcing the previous rules, but, despite its generality, its operation has been to some extent limited by the decisions of the Courts given on it. The rule that the Court is not to dictate to parties, how, they should frame their case is one, that, always to be preserved sacred, and, therefore, where a pleading is too general in its terms, and thus deprives ; the opponent party of the information to which he is entitled, and without which he cannot properly prepare for trial, the [*64] proper course is to apply for particulars under rules 6 and 7 of Order 19.

In the summons or in the affidavit relied upon nothing is mentioned of what “material facts” which ought to he pleaded were omitted by the respondent in the indorsement of the writ of surrmons in the above action, or, how the said action is scandalous or tends to prejudice, embarass, or delay the fair trial of the action, to help the court to exercise its discretion, whether, to strike out said action or not. During the hearing of the above summons, however, counsel for the applicant referred to-Rule 42 of The Administration of Estates Rules 1955 and to the Wills and Succession Law, Cap, 195 section 2 in his effort to prove that material facts which ought to be pleaded or delivered, were not pleaded, or delivered by the respondent as therein provided,

Order 48,rule. 1 of the Civil Procedure Rules lays down that:-

“Every application to the Registrar shall be in writing stating the nature of the request made and referring to the specific section of the law or to the specific Rule of Court upon which it is founded. If the application relies on any facts “which do not appear in the Court books or records, it shall be supported by affidavit”.

The word “shall” in the above rule, specifies, both the manner in which the request must be made and the legal framework within which it can be pursued, and, where, the facts relied upon are not apparent, such facts ought to [*65] be stated in an affidavit in support of the application.

The specification of the Law and Rules and a concise statement of the facts relied upon in an affidavit, when necessary, in interlocutory proceedings, is not a matter of mere formality, but, a substantive procedural provision, that, should be strictly adhered to and, therefore, the Court cannot hear and determine matters or issues, which have not been specifically requested or raised by the applicant in his summons.

But, irrespectively, of the above procedural provisions, which are mandatory and cannot be ignored by the Court, yet, such failure by the respondent to deliver and file in the registry particulars in writing as required by the above rule 42, does not justify the requesting, by the applicant, of such a strict measure.

In Panayiota Constantinou Mosaikos v. Zehra Lren, Vol. 23, (1958) C.L.R. 286 Josephides P.D.C. in his judgment at pp.

291 and 292 dealing with the matter has this to say:-

“There now remains the defendant’s plea under (b), namely, whether the deceased knew and approved of the contents of the will. Under Rule 42 of the Administration of Estates Rules, any party pleading that the deceased at the time of the execution of the will did not know and approve of the contents thereof shall therewith (unless otherwise ordered by the Court) deliver to the adverse parties and file in the registry particulars in writing, stating shortly the substance of the case he intents to set up thereunder. It is a fact that the defendant has [*66] “failed to file any particulars in writing regarding her allegation of lack of knowledge and approval of the testator. The defendant, .having failed to deliver such particulars, it was the :plaintiff’ s “right to apply to the Court that the defendant should be ordered to supply the particulars and that in default this plea should be ordered to be struck out. Irrespective of this, and having regard to the view I take in this case (as will be fully set out hereinbelow) nothing material “turns on this point”.

It is, therefore, clear in my mind that the procedure under Order 19, rule 26, is quite inappropriate to the facts of this case.

Finally, as regards rules 1 and 3 of Order 27 of The Civil Procedure Rules, these rules are identical with rules 2 and 4 of the Old English Rules of the Supreme Court.

In my judgment rule 1 or Order 27, is applicable, whenever, a serious point of law is raised in the pleadings, and in order to save unnecessary costs, such point, can be heard and determined by the Court as a preliminary issue, before trial on the application of the party, and, the considerations which will help the Court to exercise its discretion, to make an order for such preliminary trial, are stated in rule 2 of said order, namely, if in the opinion of the Court the decision of such point of law substantially ‘disposes of the whole action, or of any distinct cause of action, ground of defence, counter-claim, or reply therein.[*67]

In Waters v, Sunday Pictorial Newspapers Ltd.

(1961) 2 All E.R. p„ 758, Danckwerts L,J. observed the following at p.763, in relation to rule 2 of Order 25:-

“That rule is one which is only useful when there “is a legal point, or legal points, which will “dispose of the action if they are decided in a “certain way”.

In Everett v. Ribbans and Another (1952) 1 All E.R. p 823, Romer, L.J. in his judgment at p.827 had this to say as regards above rule:-

“I think it is a pity that this point was not set “down as a preliminary point of law before the hearing……. “The point of law, if decided, as it has been, “against the plaintiff, would have been decisive “of the case. Although there may have been good “reason for not applying, I should have thought “this was the very class of case in which an application ought to have been made under Order 25, “r, 2, to have the point determined before the “hearing, so as to save all discovery of documents, “the collecting together of witnesses, and so on, “and to have the question decided at a very early “stage. Where there is a point of law which, if “decided in one way, is going to be decisive of “litigation, advantage ought to be taken of the “facilities afforded by the rules of Court to have “it disposed of at the close of the pleadings or “very shortly afterwards”.[*68]

In The Heirs of the late Theodora Panayi v. the Administrators of the Estate of the late Styliancs Georghi Mandrioti (1963) 2 C.L.R. p.167, Josephides J. at p, 170 said:-

“We would like to add that in cases where an “objection is taken in the defence the interested “party must apply to the Court to have a particular “point of law under Order 27 formulated and set down “for hearing before the date of trial, and he should “not wait until the day of trial, when all the parties “and their witness are before the Court, when considerable costs may be incurred”.

(See also Michaelides v. Diakou

(1968) 1 C.L.R. 392 - Papamichael v. Chacholiades. (1970) 1 C.L.R.

305. - Jupiter Electrical etc. v. Christides (1975)

1 C.L.R. p.144 - Paschalis v. The Ship “Tania Maria” etc. (1977) 1 C.L.R. p.53 and Overseas Shipping etc. v. Kappa Shipping Co. Ltd. and Others (1977) 1 C.L.R. 248).

I myself, wonder, how the above rule is. applicable to the present case, the defendant didn’t yet enter an appearance in the above action and no pleadings were exchanged between the parties, to justify, provided that some serious point of law is raised therein, an application under said rule for its determination before the trial of the action.

Now, as regards rule 3 of the above Order, it undoubtedly gives the Court a discretionary power to strike out pleadings summarily, but it is only in plain and obvious cases that recourse should be to said rule. A pleading will not be [*69] struck out under this rule unless it is not demurrable but something worse than demurrable, i.e. such, that no legitimate amendment can save it from being demurrable.

In Hubbuck & Sons Ltd. v. Wilkinson, Heywood and Clark Ltd. (1895-1899) All E.R. Rep. p. 244, Sir Nathaniel Lindley, M.R. in his judgment at p.243 in an appeal by the defendants from the refusal of Kennedy J., to strike out the plaintiff’s statement of claim on the ground that it disclosed no reasonable cause of action said:-

“The application is made under R.S.C., Order 25, “r.4. Order 25 abolished demurrers, and substituted a more summary process for getting rid of “pleadings which show no .reasonable cause of action “or defence. Two courses are open to a-defendant ‘‘who wishes to raise the question, whether, assuming “a statement of claim to be proved, it entitles the. “plaintiff to relief. One method is to raise the “question of law as directed by Order 25, r.2; “the other is to apply to strike out the statement “of claim under Order 25, r.4. The first method “is appropriate to cases requiring argument and “careful consideration. The second and more “summary procedure is only appropriate to cases “which are plain and obvious, so that any master “or judge can say at once that the statement of “claim as it stands is insufficient, even if proved, “to entitle the plaintiff to what he asks. The “use of the expression ‘reasonable cause of action [*70] “in r.4, shows that the summary procedure there “introduced is only intended to be had recourse “to in plain and obvious cases”.

In Lawrence v. .Lord Morreys and Others ‘(1886-1890) All E.R. Rep. 858,”Lord Herschell, in an appeal to a summons to dismiss the action on the ground that no reasonable cause, of action was disclosed, and that it was frivolous and vexatious at p. 863 in. his judgment said;-

“It cannot be doubted that the Court has an inherent “jurisdiction to dismiss an action which is an abuse “of the process of the Court. It is a jurisdiction “which ought to be very sparingly exercised, and “only in very exceptional cases. I do not think “its exercise would be justified merely because the “story told in the pleadings was highly improbable, “and one which it was difficult to believe could be “proved”.

In Gugenheim v. Ladbroke & Co. Ltd. (1947) 1 All E.R; p. 292, in an interlocutory appeal from an order of Denning J., allowing an appeal from Master Moseley who had struck out the action as being frivolous and vexatious, Tucker, L.J. in his judgment at p. 294 said “that a plaintiff should not be driven “from the judgment seat before his case has been heard”.

In. Dyson v. Attorney-General (1911) 1 K.B. 418, Fletcher Moulton L.J. dealing with above rule in his judgment had this to say:-

“Now it is unquestionable that, both under the “inherent power of the Court’ and also under the [*71] “specific rule to that effect made under the Judicature Act, the Court has a right to stop an action “at this stage if it is wantonly brought without the “shadow of an excuse, so that to permit the’ action “to go through its ordinary stages upto trial would “be to allow the defendant to be vexed under the “form of legal process when there could not at any “stage be any doubt that the action was baseless. “But, from this to the summary dismissal of actions “because the judge in chambers does not think they “will be successful in the end lies a wide region and “the Courts have properly considered that this power “of arresting an action and deciding it without trial “is one to be very sparingly used, and rarely, if “ever, excepting in cases where the action is an “abuse of legal procedure. They have laid down “again and again that this process is not intended “to take the place of the old demurrer by which the “defendant challenged the validity of the plaintiff s “claim as a metter of law. Differences of Law, just “as differences of fact, are normally to be decided “by trial after hearing in court, and not to be “refused a hearing in court by an order of the judge “in chambers. Nothing more clearly indicates this “to be the intention of the rule than the fact that “the plaintiff has no appeal as of right from the “decision of the judge at chambers in the case of “such an order as this ……“To my mind it is evident that our judicial system [*72] “would never permit a plaintiff to be ‘driven from “‘the judgment seat’ in this way without any court “having considered his right to be heard, excepting “in cases where the cause of action was obviously and “almost incontestably bad”.

In Mavromoustaki v. lacovos N. Yeroudes etc.

(1965) 1 C.L.R. 176 in an interlocutory appeal whereby it was ordered that the plaintiff’s action was maintenable and that it should take its normal course, Josephides J., in his judgment at p. 183 said:-

“As already stated, the defendant based his application on the provisions of the Civil Procedure Rules, “Order 27, rules 1 , 2 and, 3 and the inherent jurisdiction of the Court. Our Rules correspond to the “provisions of the English Rules of the Supreme Court “before the 1962 Revision) Order 25, Rules 2, 3 and “4. These Rules constitute a wide and general provision, both useful and necessary, to enforce the “rules of pleading. They empower the Court by “summary process, that is, without a trial in the “normal way, to stay or dismiss an action where the “pleading discloses no reasonable cause of action, “etc.”.

And after a reference in Lawrance v. Norreys (1890) 15 App. Cases 210, Dyson v. Attorney-General (1911) 1 K.B.410 and Law v. Dearley. (1950) 1 All E.R. 124 he continues:-

“According to the notes to the English P.S.C. “Order 25, rule 4, in the Annual Practice, it has [*73] “been held in many cases that it is only in plain and “obvious cases that recourse should be had to the “summary process under this Rule, and that this procedure can only be adopted when it can be clearly seen “that a claim is, on the face of it, obviously unsustainable, or that the case is clear beyond doubt. So “long as the statement of claim discloses some cause “of action, or raises some question fit to be decided . “by a court, the mere fact that the case is weak, and “not likely to succeed, is no ground for striking “it out”.

In Papamichael v. Chahcliades (1970) 1 C.L.R. 305, Josephides J., in his judgment at p.307 dealing with Order 27 said:-

“It would appear that in this case the learned “District Judge purported to apply the provisions “of Order 27, that is to say, to decide a point of “law under rules 1, 2 and 3, whereas he was actually “deciding a point of fact, or the maximum a point of “mixed law and fact. This Court has considered the “provisions of Order 27 in a number of cases in the “past and I think we have made it clear that this “jurisdiction ought to be very sparingly exercised, “and only in very exceptional cases”.

And after referring to Mavromoustaki’ s case and Dyson’s case at p. 308, he continues:-

“That is, undoubtedly, the test to be applied, and “if there is a point capable or worthy of being argued [*74] “it was clearly impossible to strike out an action “in limine. It has he en held that it is only in “plain and obvious cases that recourse should he had “to the summary process under this rule, and that this “procedure can only he adopted when it can he clearly “seen that a claim is, on the face of it, obviously “unsustainable, or that the case is clear beyond doubt. “So long as the statement of claim discloses. some “cause of action, or raises some question fit to be “decided by a Court, the mere fact that the case is “weak, and not likely to succeed, is no ground for “striking it out”.

Pausing here for a moment, I would like to refer to a new ground raised by the applicant’s counsel during the hearing of this summons, that, the writ of summons in the above action is null and void because it contravenes the provisions of Order 2, r.6, namely it contains a claim, in which fraud is alleged, and which cannot be specially indorsed.

I have, already elaboratedon Order 48, r.1 , which requires specification’ of the request applied for as well as specification of the Law and Rule of Court relied upon in. the summons, otherwise, the Court cannot hear and determine grounds which are not specifically mentioned therein, but irrespectively of the above default, I would like to stress, that, under Order 64, r.1, non compliance with any rule of practice shall not render any proceeding void, unless the Court or Judge shall so direct, (see Protopapas v. Vassiliou, Vol. 24 (1959-1960) C.L.R. 132).[*75]

In the light of the above authorities and having given the whole matter my best consideration in the exercise of my judicial discretion, I refuse to make the orders applied for and I decided to permit the above action to go through its ordinary stages upto trial. In my view the indorsement of the writ of the plaintiff’s action discloses some cause of action and raises some question fit to be decided by the Court and to hold differently is like to drive the plaintiff from the judgment seat before his case has been heard.

In the result, I order the striking out of paragraph 11(d) of the indorsement of the writ of summons in the above action.

The application is dismissed and I order that the costs both of the applicant and those of the respondent to be borne by the estate.

Application dismissed.

Cost by the estate.