1. This is an appeal by the Defendant against the judgment of my learned brother Mr. Justice Buckland which was delivered on the 6th of January 1925, by which the learned Judge directed the Defendant's written statement to be struck out as embarrassing. Inasmuch as this appeal is in the nature of an interlocutory appeal, the hearing of it was expedited.
2. The application was made by the Plaintiff under Order 6, Rule 16 of the first schedule of the Civil Procedure Code. That rule is as follows: ' The Court may, at any stage of the proceedings, order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit:' and it is upon the ground that the written statement would embarrass and delay the fair trial of the suit, that the order has been made.
3. The suit was brought by the Plaintiff to recover the sum of Rs. 11,000 and it was alleged that that sum was advanced to the Defendant on the 4th of April 1923 and that in return for that advance the Defendant gave the Plaintiff four cheques, which were post-dated and bore the dates respectively the 1st of October, the 1st of November, the 1st of December 1923, and the 1st of January 1924.
4. The plaint further alleged that the Defendant promised to repay the sum of Rs. 11,000 on the aforesaid dates.
5. The plaint then alleged that the cheques were duly presented: but payment was refused on the ground endorsed upon the cheques. The endorsement was ''payment stopped by the drawer.'
6. The Defendant in his written statement set up the defence that the Plaintiff was a Turf Commission Agent, that the Defendant had given him instructions to back a horse called 'Better Hope,' and that the Plaintiff had failed to carry out his instructions, whereby the Defendant had lost a sum of about Rs. 20,000 inasmuch as the horse, which the Defendant desired to back, had won the race. It was then alleged that the Plaintiff denied that he had received these instructions: that a dispute arose and the matter was reported by the Defendant to the Stewards of the Royal Calcutta Turf Club; that the Plaintiff was intending to leave Calcutta; and, it was then arranged that the settlement, of that dispute should be postponed until his return which, it was anticipated, would be about September 1923.
7. The Defendant then alleged as follows: -' The Defendant on the said date (i.e., the 4th April of 1923) made over the 4 post dated cheques referred to in the plaint to Plaintiff and it was orally agreed by and between the Plaintiff and the Defendant that on the dispute being settled as aforesaid, the said cheques would not be presented for payment.'
8. The learned Judge decided that evidence of the oral agreement, which the Defendant alleged would not be admissible under Section 92 of the Indian Evidence Act; consequently he came to the conclusion that the written statement in that respect was embarrassing and would dely the fair trial of the suit; acting upon that opinion the learned Judge ordered that the written statement should be taken off the file.
9. With great respect to the learned Judge I am of opinion that the written statement ought not to have been struck out on that ground.
10. It is clearly established that the Court should not, as a rule decide an important point as to the relevancy of matters on an application to strike out.
11. The jurisdiction which is given to the Court by Order 6, Rule 16, is one which, in my judgment, ought to be exercised with great care and caution; and it follows that [a written statement ought not to be struck out unless it is clear beyond all reasonable doubt that the allegations, which the Defendant has put upon the record, are such as cannot afford a defence to the action, with the result that if they are allowed to stay upon the record, the trial of the suit must be unnecessarily delayed.
12. In this case, there is a matter which, in my judgment, is decisive of this appeal. It was referred to by the learned Counsel for the Plaintiff in the course of his argument. The question whether the alleged oral agreement, upon which the Defendant relies, is admissible in evidence, will depend to some extend upon the way in which the Defendant's case is presented at the trial. The allegation in the written statement as to the oral agreement is open to the criticism that the meaning thereof is not clear, and I could well understand the learned Judge making an order that the pleading should be amended and made more explicit. That, however, was not done. As the pleadings, stand the allegation is susceptible of the meaning that when the Defendant handed the four cheques to the Plaintiff, it was agreed between them that the cheques should not be presented for payment until the dispute which had arisen between the parties should be settled in the manner which was stated in the written statement.
13. Under these circumstances I am not prepared at this stage of the proceedings to hold that evidence of such an agreement would be inadmissible having regard to the provisions of Section 92, proviso (3) of the Indian Evidence Act.
14. It has been held that evidence is admissible which shows a contemporaneous verbal arrangement, upon the faith of which an instrument was handed over, that it would not be effective or operative until a certain condition has been fulfilled.
15. In my judgment, therefore, the learned Judge ought not to have exercised the jurisdiction which was vested in him by Order 6, Rule 16, by striking out the written statement.
16. With regard to the other part of the written statement, namely, that which alleges that ' there is a sum of Rs. 9,000 due and owing to the Defendant by the Plaintiff being the difference between the said sums of Rs. 20,000 and Rs. 11,000 all or any portion of which sum the Plaintiff has failed to pay to the Defendant,' and that part of paragraph seven which prays for a decree in favour of the Defendant against the Plaintiff, I agree with the learned Judge that those allegations should be struck out of the written statement for the reasons which (ho learned Judge has stated.
17. I do not mean to say that the previous paragraphs which set out the alleged facts upon which the Defendant relied and which led up to the allegation of the oral agreement should be struck out: I confine my decision solely to paragraphs 6 and 7 of the written statement which in my opinion should be struck out. This is without prejudice to any right which the Defendant may have to institute a suit in respect of those allegations.
18. For these reasons in my judgment this appeal must be allowed, and the learned Judge's order so far as it directs that the written statement should be taken off the file must be set aside. The written statement will stand, except that paragraphs 6 and 7 so far as they relate to the Defendant's claim for Rs. 9,000 must be struck out. Each party will pay his own costs of the application before Mr. Justice Buck-land.
19. The plaintiff must pay the Defendant's costs of this appeal.
20. Having regard to the fact that it might be somewhat embarrassing ' to my learned brother Mr. Justice Buckland to try this case in view of the opinion which he has already expressed, we think it desirable that this case should be tried by another Judge. I therefore direct that this case should be placed in Mr. Justice Page's list, with liberty to the parties to apply for a speedy trial.
21. I agree.
22. The learned Judge has not merely objected to the lack of clarity in certain words in the middle of paragraph 4 of the written statement, and accordingly gone on to tell the Defendant that he ought to have pleaded better, and given him upon certain terms a few days in which to make the matter clearer; but he has struck out the written statement altogether, having come to a finding that the defence disclosed in paragraph 4 is one which must be inadmissible in evidence in view of Section 92 of the Evidence Act. Before that could be done, it must be very clear that the defence put forward is inadmissible in evidence. Ear from thinking that that is. very clear, I am disposed to think that it may very well be that the oral agreement as expressed in paragraph 4 is within proviso (3) to Section 92. For this reason it seems to me that the order of the learned Judge with regard to this matter cannot be upheld.
23. I agree also with regard to the alleged counter-claim for Rs. 9,000 which is set up in paragraphs 6 and 7 of the written statement, that those ought to be struck out without any opportunity to amend, having regard to the fact that this counterclaim cannot be tried in this suit.