S RANGARAJU NAIDU Vs. D J KEYMER AND CO LTD

JUDGEMENT

(1.) This is an appeal against the order of Yahya Ali J. imposing a condition before permitting the appellant to defend the suit brought against him by the respondents.

(2.) The principal contention of the learned advocate for the appellant is that it was not open to the learned Judge to go into the merits of the defence and to judge the material placed before him to arrive at a conclusion whether or not there was any truth in the case put forward by the defendant. According to this argument, the learned Judge should confine himself to the pleadings. If in the written statement a case is put forward which, if proved, would be a successful answer to the plaint claim, then leave should be granted unconditionally. In support of this argument the learned advocate for the appellant relies on the decision in the House of Lords in Jacobs v. Booth's Distillery Co, (1902) 85 L. T. 260 : (50 W. R. 49), a decision of Beasley C. J. and King J. in Sundaram Chettyiar v. Valliammal, 58 Mad. 116 : (A. I. R. (22) 1935 Mad. 43) and a recent decision of Satyanarayana Rao and Viswanatha Sastri JJ. in Kesavan v. The South India Bank, .

(3.) In the House of Lords case two judgments were delivered, one by the Lord Chancellor (Lord Halsbury) and the other by Lord James of Hereford. We do not find anything in the judgment of the Lord Chancellor which affords any support for this argument, though there are remarks in the very short judgment of Lord James of Hereford which afford a basis for such an argument. This House of Lords case has, however, come up for consideration in a number of cases in this Court. The two cases of this Court relied on by the learned advocate for the appellant discuss the House of Lords case in some detail. Sundaram Chettiar v. Valliammal, 58 Mad. 116: (A. I. R. (22) 1985 Mad. 43), certainly affords support for the argument that it is not permissible for the Court to consider the truth or otherwise of the defence put forward. In Ebrahim Sait v. South India Industrials Ltd., I. L. R. (1939) Mad. 36 : (A. I. R. (25) 1938 Mad. 962), the learned Judges had to consider Sundaram Chettiar v. Valliammal, 58 Mad. 116 : A. I. R. (22) 1935 Mad. 43) and Madhavan Nair Offg. C. J. said of that case: