This rule has not been amended. |
ORDER 18 : SUMMARY JUDGMENT AND LEAVE T0 DEFEND WHERE WRIT SPECIALLY INDORSED
1. (a) Where the defendant appears to a writ of summons specially indorsed under Order 2, Rule 6, the plaintiff may on affidavit made by 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 action, apply for judgment for the amount so indorsed, together with interest (if any), or for the recovery of the land (with or without rent), or for the delivering up of a specific chattel, as the case may be, and costs. And judgment for the plaintiff may be given thereupon, unless the defendant shall satisfy the Court that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend.
(b) If on the hearing of any application under this Rule it shall appear that any claim which could not have been specially indorsed under Order 2, Rule 6, has been included in the indorsement on the writ, the Court may, if it shall think fit, forthwith amend the indorsement by striking out such claim, or may deal with the claim specially indorsed as if no other claim had been included in the indorsement, and allow the action to proceed as respects the residue of the claim.
(c) Where the plaintiff's claim is for the delivery up of a specific chattel (with or without claim for the hire thereof or for damages for its detention) the Court may make an order for the delivery up of the chattel without giving the defendant any option of retaining the same upon paying the assessed value thereof.
2. The application by the plaintiff for judgment under Rule 1 of this Order shall be made by summons returnable not less than four days after service accompanied by a copy of the affidavit and exhibits referred to therein.
3. (a) The defendant may show cause against such application by affidavit, or the Court may allow the defendant to be examined upon oath.
(b) The affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part of the plaintiff's claim.
(c) The Court may, if it thinks fit, order the defendant, or in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any leases, deeds, books, or documents, or copies thereof or extracts therefrom.
4. If it appears that the defence set up by the defendant applies only to a part of the plaintiff's claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms (if any) as to suspending execution, or the payment of the amount levied or any part thereof, into Court by the sheriff, the taxation of costs, or otherwise, as the Court may think fit. And the defendant may be allowed to defend as to the residue of the plaintiff's claim.
5. If it appears to the Court that any defendant has a good defence to or ought to be permitted to defend the action, and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to have judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with his action against the former
6. Leave to defend may be given unconditionally, or subject to such terms as to giving security or time or mode of trial or otherwise as the Court may think fit.
7. Upon the hearing of the application, with the consent of the parties, an order may be made, in cases where the Court is constituted by more than one Judge, referring the action to one of the Judges constituting the Court; and the Judge to whom the action is referred may make his award thereon, and the Court may, upon application, give judgment in conformity therewith.
8. (a) Where leave, whether conditional or unconditional, is given to defend, the Court shall have power to set down the action for trial forthwith.
(b) A special list shall be kept for the trial of causes in which leave to defend has been given under this Order, and in which the Court is of opinion that a prolonged trial will not be requisite; and the Court may, if it thinks it advisable, order any such action to be put into such list.
9. (a) The costs of and incident to all applications under this Order shall be dealt with by the Court on the hearing of the application, and the Court shall order by and to whom, and when the same shall be paid, or may leave them to be decided at the trial : provided that in case no trial afterwards takes place, or no order as to costs is made, the costs are to be costs in the cause.
(b) If the plaintiff makes an application under this Order where the ease is not within the Order, or where the plaintiff, in the opinion of the Court, knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, the application may be dismissed with costs to be paid forthwith by the plaintiff.