Pretheroe J:

In this Originating Motion Mr. Sault claims certain relief under sub-section (5) of s. 11 of the Debtor and Creditor (Occupation Period) Ordinance, 1948.Affidavits have been filed by both parties and the motion came up for hearing on 15 March last.When the motion was called Mr. Jayaswal, Counsel for the respondent, immediately applied for leave to call witnesses to prove that the repayment of the mortgage debt had been compelled by duress.Mr. Sault opposed the application on the ground that the Court had no jurisdiction to grant it. He referred to the rules relating to motions viz. r. 1 of O. 36 and rr. 1 to 7 inclusive and r. 10 of O. 49 of the Rules of the Supreme Court and submitted that none of these rules gave the Court jurisdiction to authorise the calling of witnesses in a motion such as this now under consideration.He also referred to the note appended to r. 5 of O. 49 in the Straits Settlements Practice which states that "under special circumstances the Court may permit oral evidence to be given by persons other than the deponents" but submitted that the English authorities showed that in fact such permission was only given in cases where an arbitrator's award was the subject matter of the motion.Mr. Sault cited English precedents and referred to certain comments in text books.

In his reply Mr. Jayaswal submitted that there is no rule which prevents the Court acceding to his application and that the cases cited by Mr. Sault did not support the restricted interpretation put upon them by Mr. Sault.

In view of the fact that the preoccupation creditor has an option under s. 11(5) of the Ordinance to initiate action either by way of an originating motion or by way of an originating summons and as many of the alleged debtors are not represented by Counsel and know nothing about the preparation and filling of affidavits the point raised in this case is of some importance.If the evidence of witnesses who are not deponents on the record cannot be heard respondents who are not represented by Counsel will be at a grave disadvantage in cases where the applicants have elected to proceed by way of motion.For this reason I took time to consider my decision.

It was common ground that the English r. 1 of O. 38 and rr. 1 to 4 inclusive of O. 52 are similar in effect to the rules of this Court to which I have already referred.In a note appended to O. 52 r. 4 in the Annual Practice the following appears "Evidence beyond that in the affidavits is admissible Dean and Chapter of Chester v. Smelting Corp. [1902] WN5. The rule does not prevent the Court from permitting oral evidence to be given by persons other than deponents in special circumstances, e.g. on a motion to discharge an award where the facts were in dispute Leiserach v. Schalit [1934] 2 KB 353". Mr. Sault submitted that these comments apply solely to the motions referred to in r. 4 of O. 52 viz. motions to set aside, remit, or enforce an award or for attachment.But this is not the opinion of the compilers of the Annual Practice as a comment in similar terms, and citing Leiserach's case, is appended to r. 1 of O. 38 and that rule applies to "any motion, petition or summons". In Leiserach v. Schalit [1934] 2 KB 353.Counsel on each side referred to certain rules but in his judgment Humphreys, J did not base his decision on any rule and in fact did not even refer to any rule.He said:

It is also a case in which it is essential, in order to do justice, that the Court should be enabled to make up its mind as to the actual facts of the case.In the view of the Court this is an exceptional case, and in this exceptional case the Court has arrived at the conclusion that the only way in which it can satisfactorily deal with the matter before it, is by having the assistance of the evidence of the arbitrators, who, being independent persons, can tell the Court what it is unable to ascertain from a perusal of the affidavits on one side and the other - namely, what are the es