*Page 611 *Page 612had in fact been filed out of time on the 2nd February, 1953. The plaintiff's counsel opposed the application and the learned Judge made the following order:-
“If defendant sick with asthma he could have asked' his lawyer to go and see him. The grounds for the application are inadequate and the motion must be dismissed with £3 3s. 0d. costs.”
Pursuant to an application made by the defendant in that behalf, special leave to appeal against the order was granted by Abbott, J. The affidavit in support of the motion for special leave to appeal disclosed nothing new, and when granting leave the learned Judge made the following observations “I am by no means satisfied of the defendant’s sincerity in this matter. The affidavit in support of the motion is meagre and of little substance. It gives no dates and these are important. There is no medical evidence, which is equally important. Defendant has really done nothing to entitle him to sympathy from this Court. Nevertheless I will give him one more final chance. He may have the leave for which he asks on the following conditions.” One of the conditions (all have been fulfilled) required the defendant to pay into Court the full amount of the claim.
The principles which should guide the Court when dealing with applications for an extension of time to do anything required in the course of an action are clearly laid down by Bramwell, L.J., in the case of Collinsy. Vestry of Paddington (1), and are as follows:- If the mistake, error, or carelessness of the applicant has been real and unintentional, and no damage has been done to the other side that could not be repaired by payment of costs or otherwise, the application should be granted. If, on the other hand, it appears to the Court that the occasion for the application is wilful or mala fide, or that the application itself is, or that the granting of the application would cause irreparable hurt to the other side, it should be refused.
When the case came before this Court learned counsel for the appellant agreed that, in the circumstances here, the affidavit filed in support of the application for an extension of time left a lot to be desired and ought to have averred that the defendant was advised that he had a good defence to the action, which he stated to be the case, and he asked leave to file al;1affidavit which he stated would satisfy this Court that the defendant ought to be allowed to have the dispute determined upon the merits.
Leave was granted provided the affidavit was filed on or before the 23rd October. The affidavit has now been filed and since judgment has not yet been entered for the plaintiff I would, on the facts now alleged in the affidavit, grant the defendant fourteen days from the date of this judgment within which to file his defence, thus giving him a final opportunity of having the dispute determined on its merits; and since no blame can fairly attach to the plaintiff-respondent I would make no order as to costs on this appeal.
Jibowu, Ag. S.P.J. I concur. Bairamian, J. I concur.”
Order: That part of the order of Abbott J., date 17th day of March, 1954 refusing the defendant an extension of time within which to file his statement of defence is hereby amended, and the defendant is granted fourteen days from the 26th day of October, 1954, within which to file his defence. We make no order as to costs of this appeal.
Time for filing defence extended.