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1956 MarsdenLR 47
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):
It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order.
In the present appeal, the appellant says in effect that the exercise of the discretion was not justified on the facts. The appellant was the first defendant in an action, and when the case came on for hearing on 17 August 1955, he had not been served. The case proceeded and judgment was entered against the second defendant who admitted the claim. The case against the appellant was adjourned until 21 September 1955. When it was called on, the appellant had not been served, and Mr. Sharma for the plaintiff asked for substituted service, and the summons was fixed on the door of the appellant's house with the return date as 5 October 1955.
On 5 October the appellant appeared but had not filed his defence. He asked for a month's adjournment to enable him to employ Counsel and file his defence, and said that he had not returned from Singapore until the 1 October. Between the 1 and 5 October a Saturday and a Sunday intervened. Mr. Sharma asked the Magistrate to exercise his discretion under o X r. 7. He urged that the appellant had been avoiding service and that he had not taken the trouble between 1 and 5 October to apply for an extension of time in which to file his defence. The Magistrate precluded the defendant from defending the action and entered judgment for plaintiff. In his grounds of judgment the Magistrate said:
I came to the conclusion that the defendant's request for adjournment was unjustified and merely for the purpose of delaying proceedings.
It is admitted very properly by Mr. Sharma that nothing can be looked at before substituted service was effected on 23 September 1955. It has not been disputed that the appellant defendant arrived back from Singapore on 1 October 1955 and found the summons at his house. It is true that the appellant's request for one month to file his defence was unreasonably long, but he could easily have been given a week, to which Mr. Sharma would not have objected. No injustice would have been done to the respondent who could have been compensated in costs. Courts prefer that cases should be decided on their merits, and do not invoke procedural rules to prevent a defendant from defending an action unless the defendant has no merits in his application for a postponement. The learned Judge on appeal would have regarded the defendant's application with greater favour, had he disclosed
