(COURT OF APPEAL) *

AWAD MUKHTAR vs. EL RAYAH IBRAHIM

AC-Revision-29-59

Revision

Principles

  Practice and procedure—District Court—No power to give judgment in default of pleadings—Civil Justice Ordinance, Order II, rule14                                   

      A suit was brought in the District Court for the value of goods sold and delivered. Defendant not appearing, judgment by default was entered against him. Later the case was re-opened, but the Judge again entered judgment for plaintiff, this time on the absence of proper defence pleadings, relying on C.J.O., Order II, rule 14. An application for revision to the High Court was dismissed, but a further application was made to the Court of Appeal.                                                           `                                                
      Held: Case to be re-opened. Formal pleadings are not obligatory in District Courts. A District Court Judge, Second Class, has no power to make this type of order. Hence order made here was ultra vires. Audi alteram partemis a fundamental rule, not to be departed from except under the very clearest statutory authority.     

Judgment

Advocates:       Abdalla El Hassan ………………………… for applicant

                       Abdel Gader Hassan Saleem ………………….for respondent

       6th May 1959. M. I. El Nur J. : —The facts of this case are briefly as follows: On 11th March1959 El Rayah Ibrahim(respondent) represented by his advocate Abdel Gader Hassan Saleem instituted Medani DC/CS/375/58, claiming recovery fromAwad Mukhtar (applicant) of the sum of £S.49.856 m/ms balance value of goods sold and delivered up to 10th February 1958. On 29th May 1958 defendant having been duly summoned failed to appear on the date fixed for hearing and a default decree was issued against him for the amount claimed plus costs Total £S.52.386m/ms. On 3rd July 1958, the above default decree having been set aside on the application of defendant, the District Judge (a District Judge of the Second Grade) proceeded to hear the case. Then defendant’s advocate asked for a copy of the plaint to enable him to make his reply. Plaintiff’s advocate promised to deliver a copy of the plaint to defendant’s advocate who was then ordered by the Court to submit his statement of defence within seven days. The case was therefore adjourned to 19th July 1958. On 19th July 1958 advocates of both parties appeared in Court and defendant’s advocate said                                                                                                                          

* Court: M. A. Abu Rannat C.J., M. I. El Nur J.                                                          

1 “Where any party from whom a written statement is so required fails to present it within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.”                                                    

that the copy of the plaint delivered to him contained nothing of the particulars of the goods in respect of which the claim was made and asked for those particulars. Plaintiff’s advocate then objected to the application by defendant’s advocate contending that the latter should have asked for those particulars before the date fixed for the submission of his statement of defence and applied that judgment should be issued against defendant under rule 14 of Order II of the C.J.O., whereupon the District Judge without hearing any evidence to prove plaintiff’s case passed a decree in his favour for the £S.49.856m/ms claimed by him plus £S.2.530 m/ms costs. Total £S.52 .386m/ms.                                                                                                        

    On 19th August 1958, i.e., sixteen days after his application was barred by limitation, defendant applied to the Judge of the High Court, Blue Nile Province, for revision of the District Judge’s decree dated 19th July 1958. The learned Judge of the High Court without taking notice of the time limit, or issuing his order extending time in favour of defendant, adjourned the application to his Court.                                                                  

    Upon hearing of the revision, defendant’s (applicant’s) advocate contended that the District Judge was wrong in passing the decree under rule 14 of Order II of the C.J.O., because:                                                                                                                 

(1) there was no order of pleadings;                                                                                         

(2) even if there was such order, plaintiff did not bring any evidence in support of his claim;                                                                                                                               

(3)Order II of the C.J.O. relating to pleadings does not apply to the Court of a District Judge of the Second Grade.                                                                                          

     After hearing the argument put forward by respondent’s advocate the learned Judge of the High Court gave his decision on 20th January 1959 dismissing the application for revision on the following grounds : — “Though strictly speaking Order II of the C.J.O. does not apply to the Court of a District Judge of the Second Grade, yet it was on the invitation of the advocate for applicant that the Court followed this course of procedure, and it will then be inequitable to allow applicant to object to such course.”

     On 14th February 1959 advocate Abdalla El Hassan put this application to the Chief Justice for revision of the Judge of the High Court’s decision, and the Court of Appeal, acting under section 177of the C.J.O., asked plaintiff’s (respondent’s) advocate to submit a written statement in reply to the points raised by applicant.

    On perusal of the record before both the District Judge and the Judge of the High Court, and having read the submission made by the advocates for both parties, we think that this application should succeed. Order II of the C.J.O. was not intended to apply to the Courts of District Judges of the Second Grade because almost all the cases before such Courts are simple, or at least presumed to be simple ones, and in most cases attended                                                                                                                                                    
by laymen who should be saved the complications attendant on the application of the said rules of pleadings. Therefore if a party who is not required by law to adhere to those rules of pleadings voluntarily attempts to follow them, he cannot in our opinion be justly penalized for his shortcomings. Further, rule 14 of Order II of the C.J.O. empowers a District Judge of the First Grade or Judge of the High Court (since 15th November 1958 the application of rules of pleadings was confined to Province and High Courts only) to pronounce judgment against a defendant in the circumstances stated therein. It gives no power to a District Judge of the Second Grade, and therefore any order made by him under that power is ultra vires. Even if the District Judge who issued the decree under revision had powers under rule 14 of Order II of the C.J.O., he was certainly wrong in issuing that decree infavour of plaintiff without calling or’ him to prove his claim.                                                                                 

    For the above reasons we hereby reverse the decision on revision dated 20th January 1959 by the Judge of the High Court, Blue Nile Province, and order that the decree by the District Judge, Wad Medani, dated 19th July 1958 shall be set aside and CS/375/58 re-opened.                                                                                                         

                We make no order as to costs.                                                                                 M. A. Abu Rannat C.J.: —I concur.                                                                        

                                                                                                      (Case re-opened)