Patel v Agard and Another (Civil Case No. 24 of 1951) [1951] EACA 344 (1 January 1951)

## Before WINDHAM, J.

#### D. K. PATEL, Plaintiff

# J. E. AGARD, Defendant

## Civil Case No. 24 of 1951

Summary Judgment—Order XXXV rule 2 Civil Procedure Rules—Affidavit of merits.

The plaintiff applied for summary judgment under Order XXXV, rule 2, Civil Procedure Rules on 18th April, 1951, and filed an affidavit of merits in support. The application was withdrawn by consent on 3rd May, 1951, and leave to defend was granted. On 16th May, 1951, the plaintiff made a further similar application but filed no further affidavit in support.

Harris for plaintiff.

# S. S. Patel for defendant.

JUDGMENT.—The plaintiff-applicant applies for summary judgment in a liquidated sum of Sh. 3,673 under Order XXXV, rule 2 of the Civil Procedure Rules, the defendant having entered an appearance but as yet filed no defence. The applicant made a similar application on 18th April, 1951, and supported it by an affidavit of merits bearing that date, such a supporting affidavit being necessary under that rule. That application was heard on 3rd May, advocates for both parties being present, and it appears from the record that it was withdrawn, leave being given to the defendant to file his defence within 15 days. No fresh affidavit has been filed in support of the present application. It is contended for the applicant that the affidavit dated 18th April, which had been filed in support of the now withdrawn application, is sufficient to support the present one. But I do not think that can be so. For that affidavit, being dated 18th April, states that the defendant "is" indebted to the plaintiff in the amount of Sh. 3,673, i.e. that he was so indebted on 18th April. There is nothing to show that as at the date of the present application, namely 16th May, the defendant was still indebted in the whole of that amount. Such an allegation is necessary, for the supporting affidavit must testify to the state of facts as at the date of the motion which it supports. The former motion having been withdrawn, the present one is a fresh motion and not merely an amending one. The application is accordingly dismissed with costs. The respondent will have 15 days within which to file a defence.

Held (28-5-51).—That there was nothing to show that on the date of the second application the defendant was still indebted to the plaintiff and the application must be dismissed.