Paindathan v. Nadar.
1935Present: Poyser and Koch JJ. and Soertsz A.J.
PAINDATHAN v. NADAR.
4—D. C. Chilaw, 10,321.
Summary procedure on liquid claims—Affidavit in support of plaint—The useof words " justly due ” not essential—Civil Procedure Code, s. 705.
In an action under Chapter LIII. of the Civil Procedure Code it is notessential that the plaintiff should actually use the word “ justly" inhis affidavit in support of the plaint.
The defendant should not be granted unconditional leave to defendmerely because such word was not used.
The affidavit will substantially comply with the requirements ofsection 705 of the Code if the facts therein set out show that the sumclaimed was rightly and properly due.
ASE referred to a Bench of three Judges on a construction ofsection 705 of the Civil Procedure Code. This was an action on a
promissory note under Chapter UII. of the Civil Procedure Code. Thequestion referred was whether the plaintiff’s affidavit was defective as Itdid not set out that the money was “justly” due. The learned DistrictJudge held that the affidavit was sufficient to comply with the require-
POYSER J.—Paindathan v. Nadar.
ments of section 705 of the Civil Procedure Code and that the defendantcould file answer on giving security.
Croos Da Brera (with him S. Alles), for defendant, appellant.—Theplaintiff cannot avail himself of the summary procedure provided byChapter LIII. of the Code as he has not complied with the requirementsof section 705. That section requires that in the affidavit the plaintiffshould swear that the amount claimed is justly due. In Anamalay v.Allien1 it was held that the word “justly ” is a material word and itsomission was an irregularity. It has been the practice in all Courts ofthe Island to use this form of affidavit. This practice should not bedisturbed (Boyagoda v. Mendis “). The form of affidavit used in our Courtshas been borrowed from the English practice. The word “ justly ” wasintended to express in a compendious way the requirement of the Englishlaw that the plaintiff should swear that there is no defence to his claim.To allow the plaintiff to use other language would involve the Courtsin an inquiry as to its sufficiency. Enactments which shut out a defenceshould be strictly construed. Counsel also cited Meyappa v. Bastian■ Fernando Lagos v. Grunwaldt'; Gurney v. Small5 18 Halsbury 191;67 L. T. 350 N. S.
Rajapakse (with him H. N. G. Fernando), for plaintiff, respondent.—The plaintiff has substantially complied with the requirements of theCode. The use of the word “justly” is not imperative. -The-affidavitfiled clearly shows that the amount is due. The defendant has not inhis affidavit disclosed any facts which will entitle him to obtain leave.It v/as never the intention of the Code to invest with any special sanctitythe mechanical use of the word “ justly ”, So long as the languageused shows that the amount is justly due the affidavit should not berejected.
Cur. adv. vult.
Croos Da Brera, in reply.
September 14, 1935. Poyser J.—
The question for determination in this case is the correct interpre-tation of section 705 of the Civil Procedure Code.
The plaintiff sued the defendant on a promissory note for the sum ofRs. 635 being Rs. 400 principal and Rs. 235 interest. The materialpart of the affidavit in support of the plaint is as follows: —
“ There is now due and owing to me from the defendant upon thesaid note the sum of Rs. 635, to wit, Rs. 400 being principal andRs. 235 being interest due from September 17, 1930, to August 17,1934, which said sum or any part thereof the defendant has failedand neglected to pay me although thereto often requested. I have noadequate security from the defendant to meet payment of the amountdue on the said note ”.
When the matter came up for inquiry before the District Judge itwas argued that the plaintiff’s affidavit was defective as it did not setout that the money was “ justly ” due to him.
'U. L. R. S&1.'3 (1899) 1 Br. 127.
» 30 X. L. R. ;i-J 1.4 (1910) 1 K. B. (46) C. A.
(1891) -2 Q. B. r>84.
POYSER J.—Paindathan v. Nadar.
The District Judge held that the affidavit was sufficient to fulfil theconditions required by section 705 of the Civil Procedure Code andthat the defendant could only file answer if he gave adequate security.
The defendant appeals from that decision.
This appeal originally came before my brother Akbar and myself, wereferred to a Bench of three Judges as we had doubts whether the caseof Anamalay v. Allien *, a two Judge decision, was correctly decided.
In that case it was held, that in order to entitle the plaintiff to thesummary procedure under Chapter Lin., it is necessary that he shouldmake an affidavit that the sum he claimed is ‘ justly ’ due to him from thedefendant. The material passage in the judgment of Bonser C.J. atpage 252 reads as follows: —
“It appears that the plaintiff is not in a position to avail himself ofthis summary procedure. In order to do this he must make an affidavitthat the sum he claims is * justly ’ due to him from the defendant.In- my opinion the word ‘ justly ’ is a material word. In this case theplaintiff has merely sworn that the amount is due on the promissorynote .. .. ”
If this case was correctly decided, and there is no other ^reported casedissenting from it, this appeal will have to be allowed.
In my opinion, however, it is not essential that the plaintiff shouldactually use the word ‘ justly ’ in his affidavit in support of the plaint,nor do I consider it reasonable that a defendant should be grantedunconditional leave to defend an action instituted under Chapter LIII.of the Civil Procedure Code merely because such word was not used.The affidavit will substantially comply with the requirements of section705 if the facts therein set out show that the sum claimed was rightlyand properly due.
Further, section 705 does not specifically provide that the affidavitshall be in a particular form (compare section 703 in regard to the plaintand summons) and in the absence of any such provision, I consider it isonly necessary to set out sufficient material to show that the sum claimedis justly due.
We have been referred to the case of Boyagoda v. Mendis *,in which it was laid down that where an enactment concerning procedurehas received a certain interpretation, which has been recognized by theCourts for a long period of years, the practice based upon such interpre-tation should be followed.
I am not at all sure that section 705 has always received the interpre-tation laid down in Anamalay v. Allien (supra).
I followed this case in Wijesinghe v. Perera ’, sitting by myself I wasbound to do so but there are no other* cases—at least none were cited tous—to indicate that the principle enunciated in Anamalay v. Allien (supra)had been recognized by the Courts for a long period of years and I cannotthink that that principle has been so recognised.
>2». L. R. 251.■- 30 N. L. R. 321.
3 2 Cey. Law Weekly ■jOG.
Associated Newspapers of Ceylon Ltd. v. Hendrick
An examination of the affidavits filed in this appeal are conclusivegrounds, in my opinion, for dissenting from the principle laid down inAnamalay v. Allien (supra).
I have previously referred to the material facts of the plaintiff’s affidavit.The defendant in his affidavit admits the execution of the promissorynote sued on and that he gave the same as security for monies advancedto him from time to time. He states he has a good and valid defence tothis action both on the facts and the law, but he does not state whatsuch defence is. This affidavit therefore discloses no defence to theaction, but if we are to follow Anamalay v. Allien (supra), we must allowthe defendant unconditional leave to defend merely because the plaintifflias not sworn that the sum claimed is “ justly ” due to him, although hehas set out ample material to show that such sum is justly due.
Por these reasons I do not agree with the principle laid down in thecase of Anamalay v. Allien (supra) and would dismiss the appeal with' costs.
Koch J.—I agree.
Soertsz A.J.—I agree.
PAINDATHAN v. NADAR