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ANAMALAY v. ALLIEN.D. C., Colombo, No. 9,249.
Summary procedure under chapter LI1I. of the Civil Procedure Code—When- defendant may be ordered to bring money into Court as acondition of being allowed to defend—Affidavit by plaintiff—.Itsrequirements.
Ia an action under chapter LIII. of the Civil Procedure Code,the Court cannot order the defendant to bring the money intoCourt as a condition of being allowed to defend, unless the defenceset up is bad in law, or the Court has reasonable doubt (that is tosay, doubt for which reasons could be given) as to its good faith.
In order to entitle the plaintiff to the summary procedure underchapter.LIII., it is necessary that he should make an affidavit thatthe sum he claims is justly due to him from the defendant.
facts of the case sufficiently appear in the judgment.
Pereira, for defendant, appellant.
30th October, 1896. Bonseb, C.J.—
The appellant appeals against the refusal of the District Judgeof Colombo to allow him to appear and defend in a case whichwas brought against him on a promissory note for Rs. 1,000.
The action is brought under chapter LIII. of the Code. Thedefendant put in a long affidavit, which, if true, disolosed a gooddefence to the action. The District Judge has disallowed theapplication for leave to defend, except on the condition that thedefendant brings Rs. 1,000 into Court. He gives no reason for hisdecision.
Now, there are only two cases in which the Court can orderthe defendant as a condition of being allowed to defend to-bringthe money into Court: First, when -the defence set up is bad inlaw; and secondly, when the defence set up is good in law, butthe Court has reasonable doubt, that is to $ay, doubt for whichreasons could be given.
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18M. in the present case the District Judge has not .given any reasonOctober 30. for doutting the good faith of the defence set up, and for my own .
Bosses, CJ. part I do not see anything upon the face of the defendant’s storyto throw doubt upon its good faith ; but however that may be, itappears that the plaintiff is not in a position to avail himself of:this summary procedure. In order to do this he must make anaffidavit that the sum he claims is justly due to him from thedefendant. In my opinion the word “ justly ” is a material word.
In this case the plaintiff has merely sworn that the amount isdue on the promissory note. He has not sworn that he has givenany consideration for the note, and it may merely amount to astatement that by the promissory note the defendant undertookto pay him Rs. 1,000 and has not paid him any part of it.
1 think that the requirements of this chapter must be strictlyconstrued. The defendant must be allowed to defend the actionunconditionally.
Lawbie, J., agreed.