[1935] EACA 145

## APPELLATE CIVIL. Before GAMBLE, Ag. J.

MISTRY AMAR SINGH, Appellant (Original Defendant)

FREDERICK HOPLEY, Respondent (Original Plaintiff).

Civil Appeal No. $5/35$ .

Civil Procedure Ordinance-Order 33-English Rule Order 14 compared.

The arguments and cases quoted appear from the judgment.

$Held$ (21-3-35).—When a defence discloses a triable issue unconditional leave to defend should be given.

Gautama for appellant.

Trivedi for respondent.

JUDGMENT.—This is an appeal from the order of the learned Resident Magistrate, Nairobi, in C. C. 4139/34.

The original suit was under Order 33: the defendant (present appellant) filed a written statement of defence and asked that he be given leave to defend.

The learned resident magistrate granted the appellant leave to defend conditioned on his paying the amount claimed with costs into Court within ten days.

The appellant failed to deposit the sum ordered and on the expiry of the prescribed period the respondent obtained judgment $ex$ parte.

The appellant now appeals against the refusal of the learned resident magistrate to grant him unconditional leave to defend.

Under Order 33 three courses are open to the magistrate:—

1. To pronounce judgment for the plaintiff unless a good defence is disclosed.

2. To grant conditional leave to defend when there is some shadow of defence and the Court "is prepared very nearly to give judgment for the plaintiff".

3. To grant unconditional leave to defend, i.e. when there appears to be a substantial triable issue.

Since the case of Jacob v. Booth's Distillery Co. (85 L. T. 263) the condition of payment into Court or giving security is rarely imposed in the English Courts but the discretion still exists.

The appellant has himself somewhat contributed to the doubt raised in the learned trial magistrate's mind by the methods he has adopted. In his written statement of defence he denied that he owed anything at all to the respondent: on his viva voce examination he admitted that he owed something: both statements cannot be true.

In my opinion, however, he has raised a triable issue in respect to the retainer Sh. 450. Both in his written statement and on oral examination he has maintained that the agreed retainer was Sh. 250 and following the opinions expressed in Jacob v. Booth's Distillery Co. (supra) it appears to me that here there is a triable issue to go before the Court.

I guard myself against giving any opinion on the merits of this claim.

As regards the remaining items in the respondent's statement of claim, I am of the opinion that the learned trial magistrate exercised his discretion properly; there is no triable issue that I can see raised by the appellant on these items. $\mathrm{He}$ produces no accounts and admits that something, he knows not how much, is due. The respondent on the other hand has filed a detailed statement of accounts.

The appeal is allowed to the following extent:—The order of the trial magistrate is set aside as regards the issue whether the retainer in S. C. C. C. 280/32 was Sh. 450 or Sh. 250, and the appellant is granted unconditional leave to defend on this issue.

The remainder of the appeal is dismissed and the ex parte judgment to the extent of Sh. 187 stands.

In view of the fact that each party in this appeal has been successful to the extent of approximately half of the matter in appeal, I make no order as to costs.