087-NLR-NLR-V-05-RAMASWAMY-CHETTY-v.-UDUMA-LEBBE-MARIKAR.pdf
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RAMASWAMY CHETTY v. UDUMA LEBBE MARIKAR.
December 21.
D.C., Colombo, 15,815.
Civil Procedure Code, s. 704—Action on promissory note—Permission to appearand defend—Reasonable doubt as to good faith of the defence—Securityto cover plaintiff's claim.
Where the defence set up by the defendant to an action on a promis-sory note appears on the face of his affidavit to be good in law, and noreasonable doubt exists as to the bond fides of the defence, it is the dutyof the District Court to permit him to appear and defend withoutsecurity.
A reasonable doubt means a doubt for which reasons could be given.
T
HIS was an appeal from an order made by the Court belowunder section 704 of the Civil Procedure Code, requiring the
defendant to give security in full to cover the plaintiff’s claim- ontwo promissory notes as a condition to his being permitted toappear and defend the action. The Additional District Judgestated that he had reasonable doubts as to the good faith of thedefence raised by the defendant.
H. J. C. Pereira, for defendant, appellant.—In this case thedefendant bas tendered an affidavit disclosing a defence, but the .judge dec.ined to allow him to appear and defend unless he gavesecurity to the full extent of plaintiff’s claim. The reason, fortHe order was that the judge thought the defence was not a bondfide one. This is not a case in which defendant ought to be puton terms. Defendant discloses a valid defence, and it is not forthe judge to say he thinks it is not a bond, fide one unless hehas reasons to think so and states the reasons. The DistrictJudge had no materials, outside the affidavit, to go upon. InD. C., Colombo. 319, decided on the 7th November, 1000,the Supreme Court reversed a similar order. [Wendt, J.—-Thereare cases where the Chief Justice has held that a reasonable doubtis a doubt for which reasons can be given.]
21st December, 1901 – Bonser, C.-J.—
This is an appeal from an order made by the District Judge ofColombo upon an application under section 704 of the CivilProcedure Code, requiring the defendant, as a condition to hisbeing permitted to appear and defend the action, to give securityfor the full amount of the plaintiff’s claim. The defence set upby the defendant in his affidavit is one that is good in law, but theDistrict Judge says: “ T have reasonable doubts as to the good faith
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of the defence now raised,” and that is all he says. It seems to 1W1.me that that is insufficient. In Annamalai v. Allien, 2 N. I'- R- Deeember^i251, I said that in my opinion a reasonable doubt meant a doubt Bonsbb, C.J.for which reasons could be given, and the District Judge inthis case has given no reason whatever for his doubts. I canimagine a case in which a defence might be set up such as adefence of payment, but set up by the defendant so boldly with-out entering into particulars that the Court might well sav: ‘‘It*‘ seems to me this is merely a defence which has been put in for" the purpose of delaying the action, and not a bond fide defence,
“ otherwise the defendant would have stated what the alleged‘‘ payment was. the circumstances under which it was made, and“ all other such facts.” In this case, however, the defendant hasset out at length in his affidavit the circumstances of thecase, and 1 see nothing upon the face of his affidavit to lead meto doubt the bond fides of the defence. That beiug so, I thinkleave ought to be granted without security.
We.vdt. J.—1 am of the same opinion.