DEWANCHAND AND SONS Vs. DORA AMY FEW

JUDGEMENT

(1.) This appeal arises out of a summary suit filed by the plaintiff. On a summons for judgment taken out by her, the learned Judge made an order granting leave to the defendants to defend on certain conditions. In appeal it has been contended by the Advocate General that apart from the question of merits the summons for judgment is bound to fail as it does not comply with the provisions'of Rule 211. Rule 211 provides that 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 returnable within a certain period. Therefore, the application of the plaintiff for summons for judgment is conditional upon an affidavit being filed as laid down under Rule 211. The affidavit can be by the plaintiff himself or it can be by any other person, but if it is by any other person, then that other person must be in a position to swear to the facts of his own personal knowledge. In this case the affidavit contemplated by Rule 211 is not by the plaintiff herself, nor is it by any other person who was in a position to swear to the facts of his own personal knowledge. The affidavit is by a constituted attorney of the plaintiff, and the very narrow question that arises for our determination on this appeal is whether when an affidavit is sworn not by the plaintiff himself but by his constituted attorney and that constituted attorney is not in a position to swear to the facts of his own personal knowledge, that affidavit satisfies the conditions laid down in Rule 211.

(2.) It is necessary to point out, as was observed by a very learned English Judge, that the procedure by a summary suit is a novel procedure. It constitutes a departure from the ordinary well established rules governing trial of suits. In an ordinary suit the plaintiff is entitled to a judgment only after a trial. In a Summary suit he is entitled to a judgment without a trial. Therefore, the remedy is a very stringent remedy, the procedure is an extraordinary procedure, and therefore it has been painted out that in order that the plaintiff should be entitled to avail himself of such a procedure he should strictly comply with the conditions laid down in Rule 211. Moreover, the English Courts have gone to the length of observing that the jurisdiction of the Court to pass a decree in a summary suit depends upon the conditions laid down in Rule 211 being complied with. It has also been said that the conditions laid down in Rule 211 are conditions precedent to the jurisdiction of the Court to pass a decree in a summary suit. See the observations of Lord Justice Williams in - 'Symon & Co. v. Palmer's Stores, (1903), Ltd.', (1912) 1 KB 259 at p. 263.

(3.) A similar question arose before Mr. Justice Tendolkar in - 'Ashish Namdar v. Ruttonshaw', 50 Bom LR 143. What was sought to be argued before the learned Judge was that even in the case of the plaintiff, if he makes an affidavit under Rule 211, he must have knowledge of the facts deposed to in the affidavit. That argument was rejected by the learned Judge on a construction of Rule 211 and the learned Judge took the view that under Rule 211 every person making an affidavit must swear to the facts of his own personal knowledge, but the exception to that rule was the plaintiff himself. In the case of the plaintiff he could make an affidavit on his information and belief. Our attention has been drawn to the observations of Lord Justice Buckley in - 'Pathe Freres Cinema, Ltd. v. United Electric Theatres, Ltd.,' (1914) 3 KB 1253, which are also relied upon by Mr. Justice Tendolkar in - 'Ashish Namdar v. Ruttonshaw'. Lord Justice Buckley construing "the corresponding English rule, O. XIV, Rule 1, observed as follows (p. 1255) : "... The question is whether the affidavit made on behalf of the plaintiffs under Order XIV, Rule 1, is sufficient." Then the learned Judge sets out the original rule. Then he proceeds to say (p. 1255) : " ...The rule seems to assume that a 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." Therefore, what Lord Justice Buckley empha-sises is that the exception is made in the case of the plaintiff simply because he is the plaintiff.