014-NLR-NLR-V-01-ALLIE-v.-MOHIDEEN.pdf
( » >ALLIE v. MOHIDEEN.
D. C., Colombo, 5,454.
Civil Procedure Code, chapter LIII.—Summary procedure on action onpromtuory note and claim for money lent—Right to tummont thereonLeave to defendant to appear and defend—Power of Court to call ondefendant to give eecurity.
The summary procedure allowed by chapter LIII. of the CivilProcedure Code is applicable only to actions in which the claim is formoney due upon certain classes of documents.
When a plaintiff has a second cause of action as for money lent, he isnot entitled to a summons in the form No. 19, and the plaint should bereturned for amendment.
If a defendant shows sufficient cause why the decree passed againsthim for default of appearance should be set aside, he is entitled to beallowed to enter into his defence, and he cannot be called upon to givesecurity exoept for good reasons.
npHIS was an action on a promissory note alleged to have beenmade by the defendant in favour of the plaintiff. The plaintcontained two causes of aotion : one upon the note itself, and theother for money lent in respect of the very sum which was securedby the note.
The plaint was accepted and summons in the form No. 19allowed on the first cause of action alone, under section 703 atthe Civil Procedure Code. As defendant did not enter appearance
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on the returnable day, decree waa entered against him. There*after his counsel moved to set aside the decree, and to be permittedto appear and defend the action.
The District Judge allowed the motion on condition thatdefendant gave security for the amount claimed and filed hisanswer on or before a day named.
The defendant appealed against that part of the order whichrequired him to give security for the amount claimed as acondition precedent to his defending the action.
Bawa, for appellant.
Sampayo, for respondent.
Cur. adv. vult.24th January, 1895. Lawrib, A.O.J.—
The summary procedure allowed by the 53rd chapter of theCode is applicable only to actions in which the claim is for moneydue on certain writings. When a plaintiff has a second cause ofaction, such as a claim for money lent, he is not entitled to asummons in the form No. 19.
Here the plaintiff sued on a promissory note, but, probablyfearful lest some technical defect might be found in the note orin the stamp, he added to the claim on the note a claim for moneylent. The District Judge properly refused to give summons asprayed for. He ordered summons to issue on the first prayeronly. It would have been better had the learned Judge returnedthe plaint for amendment by the <deletion of the second count,but although the second count still remains in the plaint thedefendant has not been summoned to answer to it, and for thepurposes of this appeal I think we may treat the action as laidonly on the note.
The defendant did not appear within the time fixed in thesummons, and decree was entered for the amount of the note.After decree the defendant appeared, and the Court set aside thedecree. The District Judge was satisfied that there existed specialcircumstances which justified him in doing so, and that there weresuch is plain from the fact that the plaintiff acquiesced and didnot appeal, but when the Judge gave leave to the defendant toappear and defend, he imposed the terms that he should findsecurity for payment of the whole sum claimed. The learnedJudge gave no reason for attaching that condition.
If a defendant shows sufficient cause why the decree should beset aside, he is entitled, as a matter of right, to be allowed to enterinto his defence, and he can be forced to give security only forsome good reason.
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A defendant in an action under the 53rd chapter must disclose adefence. If that defence be not prim a facie sustainable, or if theCourt feels reasonable doubts as to its good faith, it may imposethe terms of payment into Court or of finding security. Possiblywhen a decree has been entered, the Court may impose terms forsome other good reason. The discretion given in the 707th sectionmay possibly be greater than that given in the 704th, but in theordinary case the directions of the 704th section must apply to theterms -which the Judge is permitted to impose when he sets asidea decree. By satisfying the Court that there are special circum-stances why the decree should be set aside, and by filing affidavitsof a defence, the defendant put himself in the same position ashe would have been in had he appeared in time. I see no reasonwhy he should be required to find security in the former, if hewould not have needed to find it in the latter.
The defence here is that the defendant did not make the note.That is a defence primd facie sustainable. The learned Judgedoes not say that he had any reason to doubt its good faith. Inthese circumstances, I am of the opinion that the defendant hasbeen unduly prejudiced-by that part of the order which requireshim to find security, and I recommend that that be deleted.
I would give the defendant the costs of the appeal; he did notappear in time in the District Court and he must bear the costsin the Court below.
I agree to the addition proposed by my brother Withers.
Withers, J.—
I agree in the order proposed by my brother Lawrie, and aminclined to add a direction that paragraphs 4 and 5 of the plaintbe struck out, unless plaintiff elects to treat this as an ordinaryregular action. Chapter 53 must be strictly construed, and in myopinion no plaintiff should be allowed to proceed under thischapter who joins with a claim for a debt or liquidated demandin money upon a bill of exchange, promissory note, cheque, instru-ment or contract in writing, or a liquidated amount of money, aclaim on a contract which does not answer to any of the precedingkinds of contract. It matters not one whit to my mind that the *second cause of action is for the same amount as that claimedunder the first cause of action, as is the case here when the debton the contract of money lent at defendant’s request forms theconsideration for which the promissory note was given, and is the
subject of plaintiff’s alternative claim.
Vol. I.
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