ASHISH ARDESHIR NAMDAR Vs. FRUTTONSHAW

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 Civil P. C. 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.) The punctuation in this rule is somewhat unfortunate. It is apparent that the words "verifying the cause of action" must refer as much to the affidavit of the plaintiff as to the affidavit of any other person. There should therefore have been a comma after the word "knowledge" but no such comma in fact exists. None-the-less I can only read the rule as if a comma existed after the word "knowledge," because no one has contended, or can contend that the affidavit of the plaintiff need not verify the cause of action. The position then on the rule is that the words "who can swear to the facts of his own personal knowledge" qualify "any other person" only. Apparently therefore where the plaintiff himself makes the affidavit, he need not be in a position to swear to the facts of his own personal knowledge. But Mr. Banaji who appeared for the defendant contended that by virtue of the provision of Order XIX, Rule 3, of the Civil P. C. even the plaintiff must make an affidavit and depose to such facts only as he is able of his own knowledge to prove. Sub-rule (1) of that rule states, Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on the interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. It is apparent that an affidavit in support of a summons for judgment is an affidavit on an interlocutory application and in terms this rule would no doubt apply to affidavits made in support of a summons for judgment. But Mr. Khambatta for the plaintiff has contended that Order XIX, Rule 3, is a general rule applicable to all affidavits and since there is a special rule in the High Court Rules, namely Rule 208 with regard to affidavits to be made in support of a summons for judgment, the provisions of that rule only and not of Order XIX, Rule 3 should apply to such affidavits.