J B ROSS AND CO Vs. CRSCRIVEN

JUDGEMENT

(1.) This is an appeal by the defendants in this case, J. B. Ross & Co., against the judgment which was given by the learned Judge in the Court below in favour of the plaintiffs under these circumstances: The action was brought for unliquidated damages arising upon an alleged breach of contract, which was made between the plaintiffs and the defendants. The damages claimed were based upon the ordinary rule, viz., the difference between the contract price and the market price at the time the contract ought to have been performed. The summons was served, but the defendants did not enter appearance within the time specified in the summons, nor did they put in a written statement of defence within the time mentioned in the summons. Thereupon, the case was put upon the list of undefended cases, and it came before the learned Judge in due course. Then an application was made to the learned Judge on behalf of defendants for leave to appear and defend. The application was based upon the ground that the gentleman representing the defendant firm had been away and that he had sent a telegram which was not delivered to his attorney in the way it had been sent, and that through that mistake the attorney understood that he had no instructions to defend, whereas, as a matter of fact, the defendant had given instructions to his attorney to appear; and the result was that no steps were taken to defend the suit. The learned Judge having refused the defendants leave to appear, proceed -ed to give judgment for the plaintiffs without hearing any. evidence, for the full amount claimed; and the question which has been raised in this appeal is, whether the learned Judge was entitled so to do.

(2.) Now, I am of opinion, inspite of the ingenious and able argument which has been addressed to us by Mr. Buckland on behalf of the plaintiffs, that the learned Judge had no jurisdiction to make the decree which he in fact did.

(3.) The fundamental principle is that the plaintiff, when he comes to Court, must prove his case, and he must prove it to the satisfaction of the Court. There are certain rules, made under the powers of the Civil Procedure Code, expressly limited to certain cases in which proof, in the ordinary sense of the word, by the plaintiff of his case is dispensed with, and those rules are contained in Order XXXVII, Rule 2, of the Civil Procedure Code. That is a rule which is limited to bills of exchange, hundis or promissory notes, and it provides that All suits upon bills of exchange, hundis or promissory notes may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed." Then it goes on to provide in Clause (2) that "In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons", and so on. Now this rule created an exception to the ordinary fundamental rule to which I have referred; and, in my opinion, one of the reasons why that exception was made was because of the special nature of the documents mentioned in that rule, namely, negotiable instruments such as bills of exchange, hundis or promissory notes. It is a procedure which is somewhat analogous to the procedure under Order III, Rule 6, of the rules which are applicable to England, but it is of a much more limited nature: and, it is only in a case of that limited nature, such as where the plaintiff sues upon bills of exchange, &c., and in respect of which he files his verified plaint, and the defendant asks for leave to appear and defend, but fails to obtain it, that the allegations in the plaint shall be deemed to be admitted. As far as I am aware, in the rules which are applicable to this Court there is no other provision under which proof by the plaintiff, in the ordinary course, as we understand it, in support of his claim, can be dispensed with.