Mathew CJ:

The JUDGMENT below was read by the Ag Senior Asst Registrar.

Mathew CJ (with whom Whyatt CJ (S) and Pretheroe J agreed):- The only matter to be considered in this appeal is the exercise of discretion under Order X r. 7 of the Subordinate Courts Rules. This rule reads:

If a defence or defence to counterclaim is not filed or does not disclose any defence to the claim or counterclaim, the Court may in its discretion direct that the party in default be precluded from defending the claim or counterclaim. The Court may exercise the same discretion if a defence or defence to counterclaim is filed after due time or is not, in proper form.

The discretion is unfettered in its terms, but its exercise is of far-reaching importance, as it precludes a defendant from defending a suit. The case is not tried on its merits, and judgment is obtained by the plaintiff because the defendant has failed to conform with a rule of procedure.

The approach to an appeal of this kind is well stated by Lord Wright in Evans v. Bartlam [1937] AC 473, (at p. 486):