MOHAMMED AZHIR SHARIF v. BALBIR SINGH and SURINDER SINGH JOHAL, PARTNERS OF AND TRUSTEES FOR THE FIRM OF THE INDIA GATE TADOORI RESTAURANT
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE
A15/00
JUDGMENT OF SHERIFF PRINCIPAL
R A DUNLOP QC
in the cause
MOHAMMED AZHIR SHARIF
Pursuer and Appellant
against
BALBIR SINGH and SURINDER SINGH JOHAL, Partners of and Trustees for the firm of The India Gate Tandoori Restaurant
Defenders and Respondents
__________________
Act: Kelly. Solicitor
Alt: Lloyd, Solicitor
STIRLING, 29 August 2000. The Sheriff Principal, having resumed consideration of the cause, Refuses the appeal as incompetent; Finds the pursuer and appellant liable to the defenders and respondents in the expenses of the appeal; Allows an account thereof to be given in and Remits same, when lodged, to the Auditor of Court to tax and to report.
NOTE: In this ordinary action the pursuer avers that he is the tenant and the defenders the landlords of heritable property in Dunblane in terms of a contract of lease which has been recorded in the General Register of Sasines. The lease is produced and its terms held incorporated brevitatis causa into the pleadings. It is averred that by clause 15 of the lease the pursuer has an option to purchase the heritable property at any time throughout the currency of the lease at a price of £170,000.00. The pursuer avers that by missives between the parties the pursuer agreed to buy and the defenders to sell the heritable property at that price or the sum required to pay and discharge the defenders' debts as specified in the missives. The missives likewise are produced and held incorporated into the pleadings brevitatis causa. The missives comprise three letters, one of which was a letter dated 23 March 1999 from Messrs Barrowman and Partners, Solicitors which, bore to have been written on behalf of and as instructed by the defenders. The entry date specified in the missives was 31 March 1999 and the pursuer avers that since that date the defenders have failed to give entry or to execute and deliver a valid disposition of the subjects, notwithstanding that the pursuer has all along been willing and able to pay the price. He avers that, despite repeated requests, the defenders have refused to implement their part of the bargain. The pursuer's action is brought for specific implement of the missives. The only substantive defence advanced on behalf of the defenders is that they had not given instructions to Messrs Barrowman and Partners to enter into a contract on their behalf for the sale of the subjects and that Messrs Barrowman and Partners had neither actual nor ostensible authority to contract on behalf of the defenders for the sale of the subjects. The defenders also have a preliminary plea-in-law which is in standard terms, namely:- "The pursuer's averments being irrelevant et separatim lacking in specification the action should be dismissed with expenses."
At a continued options hearing on 26 May 2000 the pursuer's solicitor moved the Sheriff to appoint the cause for a proof before answer. Although the pursuer had a preliminary plea, this was repelled of consent. The defenders had lodged a note of the basis of their preliminary plea in accordance with the provisions of Ordinary Cause Rule 22.1 and the solicitor for the defenders moved the Sheriff to appoint the cause for a debate on that preliminary plea. The learned Sheriff granted that motion and it is against that interlocutor that the pursuer now appeals.
In marking his appeal the pursuer requested the Sheriff to write a note, which he did. In the course of that note the Sheriff questions the competency of an appeal without leave. It was not disputed that leave to appeal had not been obtained. At the commencement of the appeal I invited parties to address me on the issue of competency. Neither party had come prepared to address this issue, which was somewhat surprising given the observation of the learned Sheriff, and accordingly I allowed a brief adjournment for them to consider the position. In the result both solicitors advanced competing arguments, though I am left with the impression that the argument could have been more full.
It was not disputed that the Sheriff's interlocutor was not a final interlocutor and that accordingly an appeal without leave was not competent unless the interlocutor fell within one of paragraphs (a) to (f) of Section 27 of the Sheriff Courts (Scotland) Act 1907. The only paragraph which it was suggested was relevant was paragraph (d), which relates to interlocutors "allowing or refusing or limiting the mode of proof."
Mr Kelly for the pursuer submitted that if a motion for a proof is made and that motion is refused that is an interlocutor refusing proof. He had been unable to find any authority directly in point but referred to Buchan Supplies Stores v Morgan 1954 SLT (Sh. Ct.) 7 and Mowbray v The Secretary of State for Scotland 1992 SLT (Sh. Ct.) 84 for a discussion of analogous circumstances from which some support could be derived. He submitted that, in terms of Ordinary Cause Rule 9.12, at the options hearing there were three courses of action open to the Sheriff. Ordinary Cause Rule 9.12(3) is in the following terms:-
"(3)At the Options Hearing the sheriff shall, except where the cause is ordered to proceed under the procedure in Chapter 10 (additional procedure), close the record and -
- appoint the cause to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit;
- after having heard parties and considered any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or
- after having heard parties and considered any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which justifies a debate."
He submitted that, if the Sheriff makes an order under either para (a) or para (b), there is a right of appeal without leave and it would be strange in these circumstances if a decision made in terms of para (c) could not likewise be appealed without leave. He submitted that Section 27 of the Act looked at on its own was not free from ambiguity and that one was entitled to interpret the Section by reference to the rules, which after all were incorporated into the Statute within the Schedule. He submitted that Rule 9.12 dealt with an absolutely critical part of the procedure in an ordinary cause and that as a decision to send a case to debate was of equal importance to one allowing a proof before answer one would expect both to be able to be appealed without leave. He submitted that Section 27 should be interpreted in that light.
In response Mr Lloyd for the defenders submitted that to send the cause for debate did not involve a refusal of proof but rather involved the fixing of a diet at which one would decide whether proof should be allowed in whole or in part. It was only at the debate that any decision would be made as to whether a proof should be allowed or refused. He referred to Macphail Sheriff Court Practice (2nd edn.) para 18.42 and Lamont v Dublin 1908 SC 1017 at 1020.
In my opinion the submissions of Mr Lloyd are to be preferred. Although none of the three cases referred to deals directly with the point at issue, nevertheless they provide some general assistance. In Mowbray v Secretary of State for Scotland Sheriff Principal Nicholson cited with approval (p.86C/D et seq.) the approach of Sheriff Principal Walker in Buchan Supplies Stores v Morgan. In that case, as in Mowbray, the question was whether an allowance or refusal of a commission and diligence was an interlocutor that could be appealed without leave of the Sheriff, it being submitted that such an interlocutor had effect as an allowance or refusal of proof. That question was answered in the negative in both cases. In the course of his construction of section 27(d) Sheriff Principal Walker said:
"At the closing of the record the Sheriff-Substitute may require to determine whether proof is necessary and may limit the mode of proof ..... Such a determination is expressed in an interlocutor which allows parties a proof of averments - either proof at large or proof limited to writ or oath - or, in one which refuses a proof of averments. I think that it is this class of interlocutors that is referred to in section 27(d)."
In Mowbray, Sheriff Principal Nicholson added that, in his examples of interlocutors falling within the subsection, Sheriff Principal Walker might have included an interlocutor which allows proof but excludes certain averments from probation (p.86H). At para.18.42 of Macphail's Sheriff Court Practice the examples given of interlocutors refusing proof are "those which exclude certain averments from probation, or dismiss an action as regards one of several craves."
In my opinion, these references set out the proper ambit of the words in section 27(d) "allowing or refusing....proof". Although the case of Buchan Supplies Stores turned on the distinction between "proof" and "evidence", the passage to which I have referred identifies the true nature of an interlocutor that either allows or refuses proof. In my view, it is clear that it records a decision taken in relation to "averments" and involves a positive determination to allow or refuse proof of particular averments as the case may be. It is accordingly unsurprising that the conclusion of a preliminary plea such as that advanced by the defenders is dependant upon a certain state of the pursuer's averments being found to exist - "The pursuer's averments being irrelevant ..." etc. It is the irrelevance of the averments which it is said justifies the conclusion that a proof should be refused (by dismissal of the action) and accordingly an interlocutor refusing proof can only be pronounced once that irrelevance has been judicially determined.
Of the alternative courses open to him in terms of Ordinary Cause Rule 9.12(3) the learned Sheriff appointed the cause to a debate. A debate is a procedural hearing at which preliminary pleas are discussed. In the context of a preliminary plea such as that advanced by the defenders in this case, it is the occasion on which there is argument as to whether a party should or should not be allowed to prove his averments and, in my view, sending a cause to debate necessarily involves deferral of the decision as to whether to allow parties a proof of their respective averments or not. No doubt, in appointing the cause to a debate, the Sheriff has not acceded to a motion to allow a proof, but that is not the same thing as refusing proof. No decision has yet been taken as to whether all or any of the averments in the cause should or should not be admitted to probation.
In these circumstances, I have reached the view that the Sheriff''s interlocutor does not fall within paragraph (d) of Section 27 of the Act and that accordingly this appeal is incompetent. Parties were agreed that in these circumstances the pursuer and appellant should be found liable in the expenses of the appeal.