Lancelot Sanderson, C.J.
1. This is an appeal by the plaintiff against an order of my learned brother, Mr. Justice Buckland, made on the 11th December, 1925.
2. The matter came before the learned Judge by means of a summons under Chap. XIIIA of the Killer of this Court on the Original Side. The learned Judge said that “this application must fail for the reason that there is no affidavit of any one who swears positively to the facts of the case. I have but to repeat what I have said often before that it does not suffice to refer to the plaint and say that the statements contained in it are true. The application is dismissed with costs.”
3. On the opening of the appeal, the learned Advocate for the defendant took the point that no appeal would lie from the order of the learned Judge on the ground that it was not a judgment within the meaning of Clause 15 of the Letters Patent of this Court.
4. The order which the learned Judge made was in the form of a dismissal of the application for judgment made by the plaintiff. In effect it was an order giving leave to the defendant to defend the suit, the consequence of which would be that the suit would be tried in the ordinary manner.
5. In my judgment no appeal lies from that order. As I have said on several occasions, when the question, whether an order is appealable or not, arises, the Court must have regard to the particular facts of the case and the nature of the order.
6. When the learned Judge gives unconditional leave to defend, as in this case, on a summons under Chap. XIIIA of the Original Side Rules, in my opinion, it is not a judgment within the meaning of Clause 15 of the Letters Patent.
7. Reliance was placed by the learned Advocate for the appellant upon a decision of this Court in the case of Kuramall Rambullobh v. Mungilal Dalim Chand 54 Ind. Cas. 836 : 23 C.W.N. 1017. That is not an authority which covers the facts of this case. As I have already said each case must be decided on its own facts and the nature of the order.
8. That, conclusion is sufficient to dispose of this appeal.
9. The learned Advocate for the plaintiff, however, argued strenuously that the learned Judge ought not to have dismissed the application on the ground, on which the learned Judge relied, namely, that the affidavit was not sufficient.
10. I propose to say a word or two with regard to that, because, the point relating to the insufficiency of the affidavit may arise in future with regard to other cases. Rule 3 provides that there must be an affidavit by the plaintiff himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim.
11. I am of opinion that the learned Judge was right in taking care that the affidavits in relation to summons under Chap. XIIIA should be sufficient and in proper form.
12. There ought to be no difficulty on the part of legal practitioners dealing with this Chapter, and the affidavit made on behalf of the plaintiff ought to be in accordance with the plain provisions of Chap. XIIIA, Rule 3. The learned Judge, as I have already mentioned, said, “It does not suffice to refer to the plaint and say that the statements contained in it are true.”
13. I agree with him to that extent. But he seems to have overlooked the fact that in this case the affidavit contained considerably more than a mere reference to the plaint. The affidavit was sworn by a member of the plaintiff’s firm. It contains paragraphs setting out what was the cause of action, namely, the difference alleged to have been settled by a contract of the 12th December, 1924. It was alleged that the defendant had no defence to the suit at all and had entered appearance only to delay the hearing of the suit and to gain time.
14. It was further alleged that the plaintiff had been desirous of going to arbitration and that the defendant had taken up the position that there was no ground for arbitration, because there was no dispute between the parties.
15. A letter from the defendant to the Registrar of the Chamber of Commerce, dated the 19th May, 1925, was set out in the affidavit in which the defendant said : “It is a clear settlement contract by which we are to pay to Messrs. Meghjee arising a difference of Rs. 2-5 per cent. yards Messrs. Meghjee Mansing presented the difference bill every month which we accepted without protest. There is nothing for the arbitrators to arbitrate upon, because there is no dispute. Clause 12 of the contract provides arbitration by your tribunal if there is a dispute, but when we admit their claim there is no dispute and consequently no ground for arbitration.”
16. It seems to me that there is a great deal more in that affidavit than a mere reference to the statements in the plaint and a further allegation that the statements are true.
17. With great respect to the learned Judge I think it would have been better if he had considered the question on the merits instead of dismissing the application on the ground that the affidavit was insufficient.
18. I refer to this matter, so that in future when an application is made under Chap. XIIIA, care may be taken to see that the plaintiff’s affidavit is in accordance with the provisions of the rule.
19. On the ground that there is no right of appeal in this case, I am of opinion that the appeal should be dismissed with costs.
20. I entirely agree.