ASHISH ARDESHIR NAMDAR Vs. F RUTTONSHAW

JUDGEMENT

(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.) 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.