1935   Present : Poyser and Koch JJ. and Soertsz A J.

PAINDATHAN v. NADAR.

 4-D. C. Chilaw, 10,321.

Summary procedure on liquid claims-Affidavit in support of plaint-The use of words " justly due " not essential-Civil Procedure Code, s. 705.

In an action under Chapter LIII. of the Civil Procedure Code it is not essential that the plaintiff should actually use the word " justly" in his affidavit in support of the plaint.

The defendant should not be granted unconditional leave to defend merely because such word was not used.

The affidavit will substantially comply with the requirements of section 705 of the Code if the facts therein set out show that the sum claimed was rightly and properly due.

CASE referred to a Bench of three Judges on a construction of section 705 of the Civil Procedure Code. This was an action on a promissory note under Chapter LIII. of the Civil Procedure Code. The question referred was whether the plaintiff's affidavit was defective as it did not set out that the money was " justly " due. The learned District Judge held that the affidavit was sufficient to comply with the require-

ments of section 705 of the Civil Procedure Code and that the defendant could file answer on giving security.

Croos Da Brera (with him S. Alles), for defendant, appellant.-The plaintiff cannot avail himself of the summary procedure provided by Chapter LIII. of the Code as he has not complied with the requirements of section 705. That section requires that in the affidavit the plaintiff should swear that the amount claimed is justly due. In Anamalay v. Allien[1 2 N. L. R.251 ] it was held that the word "justly" is a material word and its omission was an irregularity. It has been the practice in all Courts of the Island to use this form of affidavit. This practice should not be disturbed (Boyagoda v. Mendis [2 30 N L. R. 321]). The form of affidavit used in our Courts has been borrowed from the English practice. The word " justly" was intended to express in a compendious way the requirement of the English law that the plaintiff should swear that there is no defence to his claim. To allow the plaintiff to use other language would involve the Courts in an inquiry as to its sufficiency. Enactments which shut out a defence should be strictly construed. Counsel also cited Meyappa v. Bastian Fernando[3 (1899) 1 Br. 127.]; Lagos v. Grunwaldt [4  (1910) 1 K. B. (46) C. A.] Gurney v. Small [5 1(1891)2.Q.B.584.] 18 Halsbury 191; 67 L. T. 350 N. S.

Rajapakse (with him H. N. G. Fernando), for plaintiff, respondent.-The plaintiff has substantially complied with the requirements of the Code. The use of the word "justly" is not imperative. The affidavit filed clearly shows that the amount is due. The defendant has not in his affidavit disclosed any facts which will entitle him to obtain leave. It was never the intention of the Code to invest with any special sanctity the mechanical use of the word " justly". So long as the language used shows that the amount is justly due the affidavit should not be rejected.

Cur. adv. vult.

Croos Da Brera, in reply.

September 14, 1935. POYSER J.-

The question for determination in this case is the correct interpretation of section 705 of the Civil Procedure Code.

The plaintiff sued the defendant on a promissory note for the sum of Rs. 635 being Rs. 400 principal and Rs. 235 interest. The material part of the affidavit in support of the plaint is as follows :-

" There is now due and owing to me from the defendant upon the said note the sum of Rs. 635, to wit, Rs. 400 being principal and Rs. 235 being interest due from September 17, 1930, to August 17, 1934, which said sum or any part thereof the defendant has failed and neglected to pay me although thereto often requested. I have no adequate security from the defendant to meet payment of the amount due on the said note ".

When the matter came up for inquiry before the Distri