056-NLR-NLR-V-14-RENGASAMY-v.-PAKEER.pdf
( 190 )
Jan. 31,2911
Present: Hutchinson C J. and Van Langenberg A J.
RENGASAMY v. PAKEER.
181— D. C. Kandy, 20,752.
Action of summary procedure on liquid claims—Unconditional leave todefend-—“ Reasonable doubt ”—Civil Procedure Code, 88. 703 and704—Expediting trial.
Where the defendant, in an action by summary procedure on aliquid claim, has sworn to things which, if proved, will be a gooddefence, he should be allowed to defend unconditionally, unless thereis something on the face of the proceedings which leads the Court todoubt t he bona fides of the defence. The Court may impose termsas to fruminga nd recording issues, expediting the trial, or other.wise, but it should not require payment into Court of, or securityfor, the amount claimed.
“ Reasonable doubt ” in section 704, Civil Procedure Code, doe-not mean doubt for which reason could be given ; although a Judgeshould always be able to give a reason for his belief.
"HE plaintiff, who was endorsee of a promissory note, sued theJ- defendant on it by way of summary procedure. The defendantfiled an affidavit denying his making of the note, and applied forunconditional leave to defend. The learned District Judge ( F. R.Dias, Esq.) made the following order : “ I have a very seriousdoubt as to the truth of the defendant’s denial of the note, whichappears to be a perfectly genuine document. Leave to appearwill be allowed only on defendant giving security for the plaintiff’sclaim on or before November 29.”
The defendant appealed.
Vernon Grenier, for the appellant.—The plaintiff is only anendorsee, and knows nothing as to the making of the note. Thedefendant in his affidavit denies that he made the note. He oughtto have been given unconditional leave to defend. The DistrictJ udge does not give any reason for his doubt. “ Reasonable doubt ”in section 704 has been explained to mean a doubt for which reasoncould be given. Counsel referred to Annamalai Chetty v, AliMarikarf Meyappa v. Chittambalam.-
Cur. adv. vult.
January.31, 1911. Hutchinson C.J.—
This is an appeal by the defendant from an order allowing himto appear and defend the action only on giving security for the
1 {1901) 2 Br. 267.2 (1902) 5 N. L. R. 26S ; 2 Br. 394.
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plaintiff’s claim ; he contends that he is entitled to unconditionalleave to defend.
The plaintiff’s claim is on a promissory note signed by the defend-ant and endorsed to the plaintiff. The defendant filed an affidavit,in which he swears that he did not make the note, and that hewas never indebted to the payee or to the plaintiff. The Judgesaid that he had very serious doubts as to the truth of thedefendant’s denial of the note, which appeared to be a perfectlygenuine document.
The principles on which the Court should give or refuse leave todefend in actions of this kind under chapter LIII. of the Code are, ofcourse, well known to the learned Judge, who must have dealt with alarge number of applications similar to this. The appellant contendsthat, when he filed his affidavit, against which there is only theaffidavit of the plaintiff stating that the defendant made the note—a statement which (the plaintiff being the endorsee) is probably notfounded on his own personal knowledge—the Court was bound togive leave to defend.
The proviso to section 704 says that the defendant shall not berequired, as a condition of his being allowed to appear and defend,to pay into Court the sum mentioned in the summons or to givesecurity for it, unless the Court thinks his defence not to beprima facie sustainable, or feels reasonable doubt as to its good faith.This seems to be meant to apply where there is no affidavit by thedefendant; for section 706 enacts that the Court shall, on applica-tion by the defendant, give leave to defend on affidavits satisfactoryto the Court which disclose a defence, and on such terms as tosecurity, framing and recording issues, or otherwise, as the Courtthinks fit.
The appellant’s counsel contends that section 704 applies, andthat the words “ reasonable doubt ” there mean doubt for which areason can be given. That, however, is not the meaning of w reason-able ” ; no such meaning will be found in any dictionary, and I donot think that anyone has ever used the word in that sense,although, no doubt, a Judge should always be able to give a reasonfor his belief.
The section which applies here is 706. The Judge did not considerthe defendant’s affidavit satisfactory. The reason which he givesis that the note appears to be perfectly genuine ; which is perhapsnot a very cogent reason, since one would expect a forged note tolook genuine.
The law says that even when the affidavits are satisfactory anddisclose a defence the Court may impose such terms as to securityas it thinks fit. There is a good deal to be said for the view thatthe Legislature intended to give to the Judge in every such case adiscretion as to imposing terms with which the Appeal Court shouldnot interfere. But I think that it is too late to urge that view now.
Jan. -31, mi
Hutchinson
CJ.
Rengasatnyv. Pdkf.tr
( 192 )
Jan. SI, 1911
Hutchxstsok
C.J.
Rengammyv. Pakeer
Having regard to the decisions of the Court in Annamalai Chetty v.All Marikar'-and Meyappa Chetty v. Chittambalam1 think that weare bound to hold that in such a case as this, where the defendanthas sworn to things which, if proved, will be a good defence, heshould be allowed to defend unconditionally, unless there is somethingon the face of the proceedings which leads the Court to jdoubt thebona fides of the defence. I cannot reconcile this rule with section706, which authorizes the Court to impose such terms as it thinks fit;but it is the rule laid down by two Judges in the last-mentioned case,and we are hound to follow it. The defendant must therefore beallowed to appear and defend unconditionally. At the same time,I do not think that the Judges meant to say that the Court could notimpose terms as to framing and recording issues, expediting the trial,or otherwise, but only that it should not require payment into Courtof, or security for, the amount claimed.
Van Langenberg A.J.—
Following the decisions referred to by my Lord, I think we mustallow the defendant to appear and defend unconditionally.
Appeal allowed. 1
1 (1901) 2 Br. 267.» (1902) 6 N. L. R. 265, 2 Br. 394.