TMI Blog1945 (1) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... Kiranmoyee Dassee became the owner of the remaining half share in the premises by purchase at a sale held by this Court in December 1938. Under a verbal agreement made between the defendant and the said Bibhuti Bhusan Mukherjee and the plaintiff Kiranmoyee Dassee represented by Manindra Nath Bysack the defendant occupied the said premises from 1st August 1940 as a monthly tenant at a rent of ₹ 50 per month payable to the said Bibhuti Bhusan Mukherjee and the plaintiff Kiranmoyee Dassee in equal shares. The defendant paid full rent upto March 1941. Bibhuti Bhusan Mukherjee died intestate in April 1941 leaving the plaintiff Protima Sundari Debi as his sole heiress. After the death of Bibhuti Bhusan Mukherjee the defendant stopped payment of the half share of the rent payable to Bibhuti Bhusan Mukherjee and up to October 1941 only paid to Manindra Nath Bysack the agent of the plaintiff Kiranmoyee Dassi the half share of the rent payable to her. Since November 1941 the defendant has not paid any rent at all. Thereupon, on 6th May 1944 the plaintiffs through their attorney served a notice on the defendant to quit and vacate the premises on the expiry of the month of May 1944. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 out of the rents leaving a balance of about ₹ 1,000, still due to him. He denies having entered into any agreement with Kironmoyee Dassee or Bibhuti Bhusan Mukherjee as alleged or at all having paid any rent to either of them. He admits having received the notice of ejectment on 16th May 1944 but denies the validity thereof. He denies that the plaintiffs are his landlords or that he is liable to ejectment on any notice from them or to pay any rent to them. 6. An affidavit in reply has been affirmed by Manindra Nath Bysack and Panchanon Banerjee denying the allegations of the defendant in his affidavit in opposition. They characterise the letter alleged to have been written by Sm. Ashalata Debi as having been got up for the purposes of this application. It is said that the premises were let out to the defendant by Kironmoyee Dassi and Bibhuti Bhusan Mukherjee on and from June 1940 and not from 1st August 1940 as wrongly stated in the plaint. It is said that it was agreed between Manindra Nath Bysack representing the then landlords and the defendant that the latter would put up electric installations at his own costs and that he did so in terms of that agreement. 7. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have unconditional leave but if he only made out a defence which was not a very convincing or plausible one then he must be put on terms as to security. In support of his arguments, Mr. Sett relied on the observations of McNair J. in the case of Mahadeolal v. Bisseswarlal, 44 C.W.N. 808. 8. Mr. Sridhar Chatterjee appearing for the defendant insisted that the defendant had made out a good defence and that his defence was supported by a written document whereas the plaintiff's case was not supported by any writing. He pointed out that neither in the plaint nor in the affidavit in support of this application had the plaintiffs given any particular date when the alleged oral agreement was made. He strongly relied on the discrepancy in the date of commencement of the tenancy as alleged in the plaint and that mentioned in the affidavit in reply. He also commented on the fact that although in the affidavit in reply it had been admitted that the defendant had been paying both shares of municipal taxes, yet in the plaint the plaintiffs had claimed full rent at ₹ 50 per month without any deduction what ever. These facts, Mr. Chatterjee urged, considerably weakened the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued and interpreted by the English Courts. The cases will be found collected in the notes under O. 14 in the Annual Practice. I shall only refer to a few of them in this judgment. 11. In Runnacles v. Mesquita, (1876) 1 Q.B.D. 416 : (45 L.J.Q.B. 407), which was an action by a builder for balance due for work done. Cockburn C.J. at p. 418 observed as follows: We are agreed that the order of my brother Denman, in making it a condition to the defendant being let in to defend that he should pay money into Court, was going too far. The Court is always very unwilling to interfere with any matter which is in the discretion of a judge at chambers. But this is a new power, and it is a discretion which must be exercised most scrupulously. This is the commencement of a new system, and of a practice, hitherto only applicable to bills of exchange, superseding the ordinary forms of law where the defendant's liability has to be made out by evidence. And I think we must not hesitate to establish a precedent that, when the defendant goes beyond the mere form of stating that he has a good defence, and states what his defence is, and gives reason for thinking that his defence is substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionally or upon such terms as may be thought just. Cotton L.J. observed at p. 284: I think that the power conferred by Order XIV ought to be used carefully, and that we ought to consider whether in the present case an order ought to have been made. It the defendant's affidavit sets up a good defence, the Court has no discretion and cannot order the money claimed to be paid into Court. But an alternative is allowed in which leave to defend may be given, namely, where the defendant discloses 'such facts as may be deemed sufficient to entitle him to defend', and it is this state of facts to which the discretionary power given by the sixth rule is directed. The affidavit may not make it clear that there is a defence but the defendant may be able at the trial to establish a bona fide defence. I am not satisfied that in the present case a valid defence exists; but the defendant may plausibly argue that he has a good defence. 13. Blaiberg v. Abrams, (1884) 77 L.T. (O.S.) 255, was a case on bills of exchange given in payment of price of goods sold and delivered. The defence set up was that the defendant gave the bills to his son to buy a piano and not the unusable fan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ward v. Plumbley, (1889) 6 T.L.R. 198, was an action to recover about 170 alleged to be due on accounts arising out of stock transactions. The Judge in Chambers ordered payment into Court as a condition for leave to defend. In reversing this order, Wills J. referred to a case before him. In that case the defendant obtained leave to defend on condition of payment into Court. He could not pay and consequently the plaintiff obtained judgment. The defendant then went bankrupt. The trustee in bankruptcy disputed the judgment and Wills J. himself after hearing the matter came to the conclusion that the defendant's story was true. After referring to this case Wills J. is reported to have concluded as follows: He could not help concurring with those judges who had said that, even though the case for the plaintiff appeared to be supported by documents and letters, yet it might be that there was a defence. And that if there was a fair probability of a defence, as defence ought to be allowed, without imposing the condition of payment of money into Court, for perhaps the defendant had, as in the case be had mentioned, no money to pay; and if that were so, and he was deprived of the opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in England. The defendant in his affidavit admitted having paid rent to the plaintiff's mother and then to the plaintiff but alleged that the plaintiff's mother and the plaintiff acted as collector on behalf of Atkinson who was the real owner. The Judge in Chambers allowed the plaintiff to sign judgment as the defendant did not disclose any reasonable ground of defence, for, he had attorned tenant to the plaintiff. This order was upheld by the Full Court. Defendant appealed to the Privy Council. Their Lordships allowed the appeal. Lord Halsbury in delivering the judgment of the Board observed as follows at p. 124: The Chief Justice of the Supreme Court, who dissented from the order of the Court giving the plaintiff liberty to sign judgment, remarked in his judgment that the case seemed to him to be 'eminently one which required the fullest investigation before a jury, as the conduct of the plaintiff in his dealings with the defendant in connection with the land in question was of a most suspicious character'. Whether that is so or not, it is abundantly clear to their Lordships that there are very serious questions of fact in debate which never ought to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not by general demurrer, if it were a point of law raise a defence here. We think it impossible for you to go before any tribunal to determine the question of fact.' We are not expressing any opinion whatever upon the merits of the case. It appears to me that there is a fair issue to be tried On which side the chances of success are it is not for this House to determine; but thinking, as I do, that there is a fair issue to be tried by a competent tribunal, it seems to me to be perfectly clear that the order of the Court of appeal ought to be reversed. Lords Macnaughten, Brampton and Lindley concurred. 22. The case of Codd v. Delap, (1905) 92 L.T. 510, is also a decision of the House of Lords. The action out of which the appeal arose was one on a foreign judgment. On an application being made under O. 14, the defendant made an affidavit that the judgment had been obtained by fraud. Walton J. gave the plaintiff leave to sign judgment. The Court of Appeal affirmed the order. The defendant's appeal to the House of Lords was allowed. Lord Halsbury L.C. said: There is an affidavit by the person sued that he has a good defence. I am not satisfied that he has not a good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Chambers substantially upheld the order of the Master. The defendant appealed. Before the Appeal Court two questions were discussed: (1) Can the Court make any condition as to mode of trial in a case where there is a triable issue which prevents judgment and entitles the defendant to have leave to defend? (2) In any event, can the Court under O. 14, R. 6 impose a condition depriving the defendant of the right to trial by jury which he would otherwise have by reason of O. 36, R. 6? We are not concerned, in this application, with the second question. On the first question Scrutton L.J. was of opinion that, although on giving leave to defend an order might be made under R. 8(b) of O. 14 (corresponding to our R. 14) for entering an action in the special list, no condition either that this should be done or that the action should be tried without a jury, can be imposed except under R. 6 of that order and then only when but for the condition the Judge was prepared to give the plaintiff leave to sign judgment under R. 1. The majority of the Court consisting of Greer and Slesser L. JJ., however, held that on a summons to sign final judgment the Court refusing the plaintiff le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t entitled to fetter his leave to defend with conditions under R. 6. The plaintiff having failed in his application for judgment, how can the defendant be limited in his defence because the plaintiff is not entitled to summary judgment? This was suggested, in relation to the actual defences raised, by the Court of Appeal in Langton v. Roberts, (1894-10 T.L.R. 492), where Davey L.J. doubted whether 'the Master having given leave to defend could dictate to the defendant how he should restrict his defence.' This result seems to me to follow from the decision of the House of Lords in Jacobs v. Booth's Distillery Co., (1901-85 L.T. 262 : 50 W.R. 49). It is said that this view makes O. 14, R. 6 meaningless, for if the Judge can give judgment under O. 14 no condition as to security or trial are wanted. But in my view R. 6 is wanted and can be used to protect the defendant by giving him a right to trial if he will protect the plaintiff by security or a speedy trial; in other words it is only applicable when the plaintiff is entitled to judgment, but the Judge thinks that he may in mercy to the defendant mitigate the strict rights of the plaintiff if he protects him in certain w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y enabling speedy trials to be ordered in cases where, though the defendant has established that there is a triable issue, it seems just and convenient that there should be a prompt trial in cases where the defence raises a simple issue and in cases where, though there is a triable issue, the success of the defence seems improbable. From any point of view the wording of the rule makes it some what illogical; but in this case logic must give way to convenience. It seems odd that a defendant who is entitled to defend should be told by the Master or the Judge that unless he performs conditions laid down in the order there will be judgment against him; and if a condition is imposed in this form, it might conceivably make the order for leave to defend illusory. In Jacobs v. Booth's Distillery Co., (1901-85 L.T. 262 : 50 W.R. 49) the order which the House of Lords reversed was to the effect that, unless the defendant paid the whole amount of the claim into Court, judgment should be given for the plaintiff. An order in this form would, in the case of a man who was unable to find the money, entirely deprive him of the right to defend which the order purported to give him. In my judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-85 L.T. 262 : 50 W.R. 49), the House of Lords decided that where there is a triable issue, the Court should not order so large a sum to be paid by way of security under O. 14, R. 6 as a condition to defend, as would have the result that, in the language of Lord Halsbury L.C. the rights would not be litigated at all: see also Wing v. Thurlow, (1893 10 T.L.R. 53) Ward v. Plumbley, (1890-6 T.L.R. 198), Bowes v. Caustic Soda Chlorine Syndicate, (1893 9 T.L.R. 328), O. 14, R. 6, which has already been quoted, speaks of leave to defend being given unconditionally or subject to such terms as to giving security or mode of trial or otherwise as the Judge may think fit. This on the face of it would appear to give to the Court an unqualified discretion. The cases of Jacobs v. Booth's Distillery Co., (1901-85 L.T. 262 : 50 W.R. 49), Runnaclos v. Mesquita, (1876 1 Q.B.D. 416 : 45 L.J.Q.B. 407), Reaveley v. Nicolopulo, (1893-28 L.J. (Newspapers) 508) and others must now be read as limiting this discretion by saying that security or payment in may not be ordered to such an extent as would have the effect of excluding the defendant from his right to defend altogether, that is to say, condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sign judgment but out of pity gives the defendant a chance to defend. 24. From the above authorities the following propositions may be laid down with regard to an application under O. 14: (a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence yet shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court from which the provisions of our Chap. 13A have been adapted, I am unable, in spite of my very great respect for the experience and learning of McNair J. to accept his judgment in Mahadeolal v. Bissesswarlal, 44 C.W.N. 808, in so far as it deals with the question of imposing security as a condition for granting leave to the defendant to defend the suit to be a quite correct or complete enunciation of the law. In any event according to the test there laid down I would not be prepared, in the case before me, to impose security as a condition to granting leave to defend. 26. In the circumstances as I am not prepared to give the plaintiffs judgment at this stage and as I am not convinced that the defence is illusory or sham or practically moonshine I am prepared to give the defendant unconditional leave to defend the suit. But this I do without expressing any opinion as to the merits or the ultimate result of the case. I propose, however, to give directions as to the further conduct of this suit under R. 10 of Chap. 13A. I direct that the written statement be filed within a week and affidavits of documents be filed by both parties within a week thereafter and inspe ..... 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