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Ashish Ardeshir Namdar Vs. F. Ruttonshaw - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1909 of 1947
Judge
Reported in(1948)50BOMLR143
AppellantAshish Ardeshir Namdar
RespondentF. Ruttonshaw
Excerpt:
.....court rules, 1936 (o.s.), rule 208 - summary suit-summons for judgment-affidavit in support of summons-affidavit based on information and belief-practice.;an affiadavit made by the plaintiff in support of a summons for judgment taken out in a summary sweet can be made as based on information and belief; it need not necessarily be of his own personal knowledge. - - where the defendant appears to a writ of summons specially endorsed with or accompanied by a statement of claim under order iii, rule 6, the plaintiff may on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed, and. 117 is a form for a like affidavit by a person other than the plaintiff. that was the original form of order xiv, rule..........asked to deliver a judgment so that the practice may be settled and made known.2. the relevant rule is rule 208 of the high court rules. sub-rule (1) of that rule is in these terms:(1) in a suit filed under order xxxvii of the code of civil procedure if the defendant enters an appearance, the plaintiff shall, on affidavit made by himself, or by any other person who can swear to the facts of his own personal knowledge verifying the cause of action, and the amount claimed, and stating that in his belief there is no defence to the action, apply by summons for judgment.3. the punctuation in this rule is somewhat unfortunate. it is apparent that the words 'verifying the cause of action' must refer as much to the affidavit of the plaintiff as to the affidavit of any other person. there.....
Judgment:

Tendolkar, J.

1. A question of procedure of some importance has been raised on this summons. The question is whether when the affidavit in support of a summons for judgment taken out in a summary suit is made by the plaintiff himself he must be in a position to swear to the facts of his own personal knowledge or whether he can make the affidavit on information and belief. This question has often been raised in chambers; but so far as I am aware, it has never been argued, nor has a decision been given by any of my brother Judges, so that the practice in this respect remains undetermined. I have had the question fully argued before me; and I have been asked to deliver a judgment so that the practice may be settled and made known.

2. The relevant rule is Rule 208 of the High Court Rules. Sub-rule (1) of that rule is in these terms:

(1) In a suit filed under Order XXXVII of the Code of Civil Procedure if the defendant enters an appearance, the plaintiff shall, on affidavit made by himself, or by any other person who can swear to the facts of his own personal knowledge verifying the cause of action, and the amount claimed, and stating that in his belief there is no defence to the action, apply by summons for judgment.

3. The punctuation in this rule is somewhat unfortunate. It is apparent that the words 'verifying the cause of action' must refer as much to the affidavit of the plaintiff as to the affidavit of any other person. There should therefore have been a comma after the word 'knowledge' but no such comma in fact exists. None-the-less I can only read the rule as if a comma existed after the word 'knowledge,' because no one has contended, or can contend that the affidavit of the plaintiff need not verify the cause of action. The position then on the rule is that the words 'who can swear to the facts of his own personal knowledge' qualify 'any other person' only. Apparently therefore where the plaintiff himself makes the affidavit, he need not be in a position to swear to the facts of his own personal knowledge. But Mr. Banaji who appeared for the defendant contended that by virtue of the provision of Order XIX, Rule 3, of the Code of Civil Procedure even the plaintiff must make an affidavit and depose to such facts only as he is able of his own knowledge to prove. Sub-rule (1) of that rule states,

Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on the interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated.

It is apparent that an affidavit in support of a summons for judgment is an affidavit on an interlocutory application and in terms this rule would no doubt apply to affidavits made in support of a summons for judgment. But Mr. Khambatta for the plaintiff has contended that Order XIX, Rule 3, is a general rule applicable to all affidavits and since there is a special rule in the High Court Rules, namely Rule 208 with regard to affidavits to be made in support of a summons for judgment, the provisions of that rule only and not of Order XIX, Rule 3 should apply to such affidavits.

4. Rule 208 is in substance the same as Order XIV, Rule 1, of the Rules of the Supreme Court in England. The material part of that rule is as follows:

Where the defendant appears to a writ of summons specially endorsed with or accompanied by a statement of claim under Order III, Rule 6, the plaintiff may on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed, and.stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Judge for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to.

In the commentary in the Annual Practice under this rule a reference is made to Chitty's King's Bench Forms (16th Edition). At p. 116 is a form of affidavit to be made by the plaintiff. There are only two paragraphs, the first of which states:

The defendant is justly and truly indebted to me..

The second paragraph states:

I verily believe that there is no defence to this action.

The second form at p. 117 is a form for a like affidavit by a person other than the plaintiff. This has two paragraphs corresponding to the paragraphs in the affidavit of the plaintiff with an additional paragraph which is in these terms:

It is within my own knowledge that the said debt was incurred and is still due and owing as aforesaid.

5. There is also a form given in the Annual Practice itself which is Form 23A at p. 1653 of the 1945 edition. This is a common form for affidavit either by the plaintiff or by any one else. It gives the three paragraphs corresponding to the paragraphs in the form of Chitty with a note before the third paragraph,

If the affidavit is made by the solicitor, or his clerk, or any other person not being the plaintiff, add the following paragraph.

It appears therefore from these forms that the corresponding English rule has been understood to mean that where the plaintiff makes an affidavit himself he need not be in a position to swear to the facts of his own personal knowledge.

6. My attention has been drawn to some English decisions under Order XIV, Rule 1. The first of these decisions is the case of Lagos v. Grunwaldt [1910] 1 K.B. 41. In that case the affidavit in support was made by a person other than the plaintiff and he was not in a position to swear to the facts to his own knowledge. It was held therefore that no order could be made under Order XIV, the affidavit being insufficient. Cozens Hardy M.R. in delivering judgment stated as follows (p. 46):

The plaintiff must not only satisfy the Court that there is a specially indorsed writ under Order III, Rule 6, but he must do something else. He may 'on affidavit' made by himself, 'verifying the cause of action and swearing that in his belief there is no defence to the action', apply, to a Judge for liberty to enter final judgment. That was the original form of Order XIV, Rule 1, and unless the plaintiff could make an affidavit verifying the cause of action, and swearing that in his belief there was no defence to the tuition, Order XIV could not be used at all, Then it was pointed out that there were many cases in which the plaintiff might have a perfectly good claim to which there was no defence, but the plaintiff himself was not in a position to make an affidavit. Then the rule was altered to add these words : 'or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any), and stating that in his belief there is no defence to the action, and so on'.

7. The Master of the Rolls then proceeded to point out that in this case there was no affidavit by any person who knew the facts of his own knowledge and the conditions of Order XIV, Rule 1 were not fulfilled. Reliance is placed by Mr. Banaji on the observations of the Master of the Rolls that the plaintiff had to make an affidavit verifying the cause of action and swearing that in his belief there was no defence to the action. That no doubt is perfectly true: but that does not necessarily mean that the plaintiff must verify the cause of action or swear that there was no defence to the action of his own knowledge. This case therefore does not directly help us.

8. The decision of Cozens-Hardy M. Rule was followed in the case of Symon and Co. v. Palmers Stores (1903) Limited [1912] 1 K.B. 259 . That was also a case where the affidavit was made by a person other than the plaintiff and therefore it does not really touch the point before me at all.

9. There is however a case reported in Pathe Freres Cinema, Limited v. United Electric Theatres, Limited [1914] 3 K.B. 1253 in which the Court of Appeal expressed certain opinions about the interpretation of Order XIV, Rule 1. In this case also the affidavit was made by a person other than the plaintiff. At p. 1255 Buckley L. J. in delivering judgment stated as follows :

The question is whether the affidavit made on behalf of the plaintiffs under Order XIV, Rule XIV, is sufficient. That rule originally ran thus: 'The plaintiff may, on an affidavit made by himself, verifying the cause of action', etc.: it was amended by the insertion of the words 'or any other person who can swear positively to the facts.' The rule seems to assume that the plaintiff is qualified to make the affidavit simply because he is plaintiff; the other person who may make the affidavit must be able to swear positively to the facts.

Kennedy L.J. agreed with this judgment and said that he had nothing to add. Phillimore L.J. also agreed with the judgment. Now it is perfectly true that the opinion expressed by their Lordships that the rule seemed to assume that the plaintiff was qualified to make an affidavit simply because he was the plaintiff, is obiter, but it is the obiter of a very high authority and I treat it with very great respect. It must be remembered that in England also there is a rule corresponding to Order XIX, Rule 3 of the Civil Procedure Code. That rule is to be found in Order XXXVIII, Rule 3, and I must assume that that rule was present to the minds of their Lordships when they interpreted Order XIV. Rule 1 in the manner they did.

10. I am conscious of the fact that in a summary suit the plaintiff gets a judgment without a trial; and it is therefore no doubt desirable that the person who makes the affidavit in support of the summons should be a person who knows the facts of his own knowledge. But none the less I am not concerned with what the rule should be. I am only required to interpret Rule 208. Since the rule is in substance similar to Order XIV, Rule 1, of the Rules of the Supreme Court, I respectfully follow the opinion of Buckley L.J. regarding the interpretation of that rule. I do not think that Order XIX, Rule 3, has any application to the affidavits made under Rule 208. The former rule is a general rule applying to all affidavits, and since there is a special rule, viz., Rule 208, which is applicable to affidavits in support of a summons for judgment, that rule must prevail over Order XIX, Rule 3. Moreover if Order XIX, Rule 3, was applicable to affidavits made in support of a summons for judgment, it would equally apply to affidavits made by persons other than the plaintiff; and it would have been unnecessary to provide in Rule 208 that a person other than the plaintiff who makes the affidavit must be one 'who can swear to the facts of his own per sonal knowledge.' I therefore hold that where the affidavit in support of the summons is made by the plaintiff', he need not be in a position to swear to the facts of his own personal knowledge, but he may do so on information and belief. Whether on such an affidavit the Court will proceed to grant an ex parte decree is another matter altogether. The affidavit made in support of the present summons is therefore quite in order.


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