The Judgment of the Court was as follows:—

McNair, J.:— This is an application for final judgment under Ch. XIII(A) of the Rules of this Court. The writ in this matter was served on the 30th May, 1939. The Defendants entered appearance on the 13th July, and the present summons was taken out on the 19th July. On the 24th July the Defendants filed a joint written statement.

The suit is against six persons, two of whom are minors, as being the persons carrying on business under the name and style of Bisseswar Lal Badri Prosad. The Plaintiff is suing for himself and as karta of his joint family.

It is alleged that there were business dealings between the parties when the Plaintiff acted as commission agents for the Defendants in their business of Bisseswar Lal Badri Prosad. It is further alleged that accounts were adjusted in 1931, in 1933, and again in June, 1986. On the last occasion there was a sum of over Rs. 15,000 found due to the Plaintiff firm. The adjustment was entered in the books of the Plaintiff firm and was signed by Bisseswar Lal, it is alleged, on behalf of the Defendant business. The signature is “Bisseswar Lal Badri Prosad of Runiganj by the pen of Bisseswar Lal.”

Bisseswar Lal has not put in an affidavit in this application but learned Counsel appearing on behalf of the Defendants has contended that the written statement, which was filed five days after the summons was taken out, contains statements on which he is entitled to rely both on behalf of Bisseswar Lal and the other Defendants.

The written statement is a joint written statement, verified by four persons who jointly and severally declared that the statements contained in the written statement are true to their knowledge. From a perusal of the paragraphs of the written statement it is clear that many of the statements can only be within the knowledge of one of the signatories and a joint verification is valueless.

Mr. Chatterjee for the Plaintiff has drawn my attention to the provisions of Ch. XIII, A particularly to r. 5(a) which provides that:

“The Defendant may show came against such application by affidavit.”

Rule 5(b) provides.

“The defendant shall state whether the defence alleged goes to the whole or to part only, (and if so) to what part of the Plaintiff's claim, and shall deal Specifically with all matters of fact.”

Rule 6 provides that:

“Upon such application the Judge may unless the Defendant by affidavit or otherwise as the Judge may direct shall satisfy him he has a good, defence make an order refusing leave to defend.”

In my experience no written statement has ever been filed in a suit where an application has already been made under Ch. XIII, A, but I am unable to find any provision which forbids the filing of the written statement provided it is within the time provided by the writ. The provisions of Ch. XIII, A; however, contemplate that in an application under that Chapter the Defendant should show cause by affidavit. Clearly the intention is that the Defendant should make the affidavit in the form of r. 5(b) which should be either on oath or solemn affirmation, so that he should be bound by the statements which he had made and to ensure, as far as: possible, that these statements should be accurate. I have already deferred to the unsatisfactory nature of the verification of the written statement, and the verification is not on oath or solemn affirmation.

The result is that, so far as Bisseswar Lal is concerned, there is no denial of the statements in the plaint and affidavits in support of this application. There must, therefore, be judgment against Bisseswar. Lal, in terms of the summons.

With regard to the other Defendants, Mr. B.C Ghose contends that they must be given unconditional leave to defend or else have judgment given against them. He has referred to the decision of the Appellate Court reported in I.L.R 53 Cal. at p. 412 Radha Kissen Goenka v. Thakursi Das Khemka and, more particularly to the words of Rankin, J., as he then was, at p. 416 of the Report where the learned Judge says:—

“It is entirely a wrong practice under Ch. XIII A to order security merely because looking at the statements on either side one rather thinks that the Plaintiff has a better prospect of success than the Defendant.”

The decision in that case was confined to the facts of the case, but the statement relied on is a general statement with regard to the manner in which Ch. XIII, A should be interpreted. If it is interpreted as strictly as Mr. Ghosh suggests, the result would be that there would be no discretion in the learned Judge before whom the application comes to consider whether the defence, which had been put in by the Defendant, was a good defence or otherwise. This cannot be the intention, because r. 6 of Ch. XIII, A specifically calls upon the Judge to satisfy himself that the defence of the Defendant is a good defence on the merits, or that the defence discloses such facts as may be deemed sufficient to entitle him to defend.

Rule 9 further provides that:

“Leave to defend may be given unconditionally or subject to such terms a to giving security, or time, or mode of trial or otherwise as the Judge may think fit.”

It seems clear to me that Ch. XIII A in effect directs the Judge to consider all the facts which are brought before him in the affidavits and to direct his attention as to whether the defence is or is not a good defence and after such consideration to decide whether leave should be given to defend unconditionally or subject to terms which may include the furnishing of security.

This procedure has probably been taken from Or. 14 of the Rules of the Supreme Court in England. Or. 14, r. 6 is in identically the same terms as r. 9 of Ch. XIII, A, and in the English cases on the interpretation of Or. 14, r. 6, the Courts have referred to the discretion in the Judge by such words as “where there is a real and substantial question to be tried” and “where there is a reasonable doubt that a Plaintiff is entitled to judgment.” It appears to me that the true principle must he that the Judge who is hearing the application must come to a decision on the facts before him as to the merits of the rival parties and whether the affidavits give reasonable grounds for concluding that there is not only a defence but a good defence.

In Blaiberg v. Abrams , Bowen L.J, said that:

“In deciding whether the defence set up is a real defence or not, all the circumstances must be looked at.”

This statement by the learned Judge shows that in his view, the Court before whom such an application comes, has to decide whether the defence is a real defence or not.

Turning now to the affidavit of Badri Prosad. In para. 5 he says that “Bisseswar Lal had no authority to sign the alleged adjustment of accounts.” Later in the same paragraph he refers in detail to the circumstances in which Bisseswar Lal's signature to the adjustments was given, and to the motives by which Bisseswar Lal was actuated. There is no suggestion that Badri Prosad was present at the time and in any event he cannot say of his own knowledge what were Bisses war's convictions. He has not, however, purported to make this statement on information received from Bisseswar Lal. He does not deny that the adjustments were made, for in para. 6 he states that the adjustments were written on the definite understanding that the same were necessary to keep alive the claim of the Plaintiff, so that the Plaintiff should not be liable to pay the Defendants money which, he alleges, was due to them on other grounds. In para. 7 he says that “the alleged adjustments were made at the request of the Plaintiff only to save the Plaintiff from paying in cash the whole amount that would be found due and payable by the Plaintiff to the Defendants and in respect of which a suit is pending in this Court.”

I have already pointed out that the deponent has said that Bisseswar Lal had no authority to sign, yet in para. 7 he is explaining the circumstances under which the adjustments were made, and this is apparently a matter within his own knowledge.

The applicants have set out in the affidavit of Madan Lal Sharma a number of letters purported to have been written from Runeegange by Bisseswar Lal Badri Prosad in which the writers admit that they owe money to the Plaintiffs. Some of these letters are written after the final adjustment in 1936. They do not, however, refer in terms to any adjustment having been made.

In view of Badri Prosad's admission that there were adjustments, and, in view of the statements in the plaint in the suit referred to by Badri Prosad in para. 7 of his affidavit, it is a fair inference that Bisseswar Lal was the manager of the joint family business of Bisseswar Lal Badri Prosad.

That suit is Suit No. 921 of 1939, and there Bisseswar Lal describes himself as manager of the Hindu joint family business carried on under the name and style of Bisseswar Lal Badri Prosad. In para. 1 of the plaint he refers to the agreement made between the parties, the Plaintiff on the one hand on behalf, of the joint family business of Bisseswar Lal Badri Prosad.

From these facts, which appear from the documents before me, it is difficult to say that the Defendants, or any of them, have a “good” defence within the meaning of Ch. XIII, A of r. 6.

With regard to Bisseswar Lal, there will be a judgment for the full amount of the claim with costs.

With regard to the other members of the family, although it would appear from the facts before me that, their statements cannot be substantiated, I will give them leave to defend provided they give security for Rs. 10,000 to the Registrar within two months from date. If security is furnished, then there will be cross-orders for discovery within a fortnight thereof. Inspection is to be given forthwith thereafter and the suit placed at the top of the appropriate prospective list a month thereafter and the costs will be costs in the cause.

In default of furnishing security as aforesaid, there will be a decree against all the Defendants in terms of the summons.

Solicitors: Fox & Mondal for the Plaintiff; B.K Bose for the Defendants.

R.C