[1952] EACA 310

## APPELLATE CIVIL

## Before BOURKE, J.

## R. P. ANAND, Appellant (Original Defendant)

ν.

# KACHRA SHAMJI SHAH, Respondent (Original Plaintiff) Civil Appeal No. 16 of 1951

(Appeal from the decision of the First Class Magistrate's Court at Nairobi-Miss Rugg Gunn)

# Civil Procedure—Application for summary judgment—Conflicting defence and affidavit—Triable issue.

The plaintiff in a suit in the Magistrate's Court applied for summary judgment under Order 35, rules 2 and 3, Civil Procedure Rules. The defendant filed an affidavit showing cause against the application which contradicted the defence filed. The Magistrate allowed the plaintiff's application being satisfied that the defendant had no bona fide defence. The defendant appealed.

Held $(13-6-52)$ —(1) The Magistrate was correct in looking at the defence filed before the defendants' affidavit.

(2) The defence was not bona fide and no trial of an issue on affidavits was involved on the affidavits leaving the defence filed out of consideration.

Appeal dismissed.

Cases cited: Kundanlal Restaurant v. Devshi & Co., C. A. No. 76 of 1951 (E. A. C. A.); B. E. A. Timber Co. v. The Universal Timber Co., C. C. No. 280 of 1950.

## D. N. Khanna for appellant.

Nowrojee for respondent.

JUDGMENT.—The plaintiff (respondent) brought a suit in the Magistrate's Court claiming the sum of Sh. 356/04 as due from the defendant (appellant) for goods sold and delivered.

The defendant entered an appearance and filed a defence by which he (1) denied owing any sum, (2) denied having bought goods on credit at any time, and (3) denied receiving any demand for payment as alleged.

Under Order 35, rules 2 and 3, the plaintiff applied for summary judgment and exhibited by his affidavit in support a cash sale note of 20th June, 1949, signed by the defendant and a letter of demand of 28th October, 1950. Under Order 35, rule 4 (a) the defendant filed an affidavit showing cause against the application. By this affidavit the defendant (1) admitted the sale as disclosed by the sale note and deposed, (2) that he paid the amount to the plaintiff's son who promised to return the sale note, (3) that he forgot about the sale and "the<br>plaintiff has taken advantage thereof", (4) that there was no repeated demand<br>for payment but the letter of demand of 28th October, 1950, was rec (5) that on receipt of this letter he interviewed the plaintiff and informed the latter of the payment to his son whereupon the plaintiff undertook to return the cash sale note. No particulars are given as to date or place.

The learned Magistrate, observing the contradictions between the contents of the defendant's defence filed and the contents of the affidavit raising an "entirely new defence", was "satisfied that he (the defendant) has in fact no bona fide defence". She accordingly allowed the application and entered judgment as praved.

The defendant appeals on the ground that the lower Court tried the issues on affidavits, and was wrong in taking cognizance of the defence actually filed and in not allowing leave to defend.

The principles to be applied in a matter of this kind are to be observed from Kundanlal Restaurant v. Devshi & Co., C. A. No. 76 of 1951 (E. A. C. A.). If the defendant can show that there is a bona fide triable issue he should be allowed unconditionally to defend as to that issue. It has been submitted that in considering whether a genuine defence was disclosed the Magistrate should not have looked at the defence filed only two months before the defendant swore his affidavit. At the outset of the proceedings below the defendant's advocate sought a dismissal of the application in reliance upon the defence filed. The Magistrate, however, adjourned to enable an affidavit to be lodged. I cannot see why the Magistrate should not look at that defence; she had been invited to do so at the outset and I think she was bound to do so when she had to satisfy herself as to whether or not the defendant was raising a bona fide defence. Such a course was taken by de Lestang, J., in B. E. A. Timber Co. v. The Universal Timber Co., C. C. No. 280 of 1950, in which the defence filed and the affidavit were in direct conflict. Looking at the defence as filed and the defence as put forward by the defendant's affidavit. I fail to appreciate how the Court below could come to any other conclusion but that the defence was not bona fide, and I do not see that any trial of an issue on affidavits was involved. Indeed I would go further and say that no bona fide triable issue was raised on the defendant's affidavit leaving the defence filed out of consideration. Thereby he makes the case that he discharged the debt due to the plaintiff by making payment to a third party. He says that this third party was the son of the defendant whose name he does not know. He does not say that the plaintiff's son was in any way authorized to receive the payment in discharge of the debt to the plaintiff, nor does he depose that the plaintiff's son had anything to do with the running of the plaintiff's business or even that he made the payment to the son at the plaintiff's shop, which might let in the case that this third party was entitled to accept payment in discharge of the debt on the plaintiff's behalf and to undertake to return the paper being the plaintiff's property evidencing the debt. I have not overlooked paragraph 4 of the affidavit but it does not alter the view I have formed.

I am of opinion that there is no merit in this appeal which is dismissed with costs.