(COURT OF APPEAL)* OMER EL HASSAN…Applicant and OMER FADL …Respondent (AC-REV-42-56) Revision Principles · Practice-five adjournments at request of plaintiff-defendant out of jurisdiction for medical treatment refusal to adjourn-default decree set aside-Application for Revision under Order XII. r.i. of Rules of Court out of time-inherent jurisdiction of Court to restore suit.’ After repeated adjournments granted on the application of the Plaintiff, the case come on for hearing when the Defendant was Out of jurisdiction undergoing (*) Court : M.A. Abu Rannat C.J and cl Nur J. medical treatment The District Judge refused an adjournment and gave a default decree. The decree was not served upon the Defendant until four months later and his application to the Province Judge to have the decree set aside was rejected as being Out of time. Held: (i) Although adjournments without good reason are an abuse of procedure, it is a sufficient cause to set aside a default decree where illness necessitated treatment out of jurisdiction. Section 69 Civil Justice Ordinance. (2) Time for application for Revision does not run until the decree has been communicated. The applicant having applied Within five days of having notice of the decree was not out of time. (3) Section 69 Civil Justice Ordinance does not take away the inherent power of the Court to restore a Suit if it be just and reasonable to do so. Judgment Plaintiff’s action for the recovery of wages came on for first hearing on 6th January, 1955 when the issues were framed and the case was set down for trial on 31st January, 1955. On that date, plaintiff having failed to pay hearing fees, the case was struck off. It was, however, subsequently restored on payment of fees and- the hearing adjourned to 12th March, 1955. On that date defendant appeared but plaintiff failed to appear in person to give evidence His advocate—applied for an adjournment was granted by the Court. On 12th April 1955 plaintiff again failed to appear and the hearing was again adjourned. On 16th April, 1955 plaintiff, having given evidence, applied for yet another adjournment so that two witnesses may be summoned by the Court. Plaintiff was ordered to pay witness fees, but on 15 May, 1955 — the date to which the case was adjourned — it appeared that he failed to do so, and the case was adjourned to 4th July, 1955. On that date it appeared that plaintiff again failed to pay witness fees; and the case was again adjourned for the fifth time to 3rd August 1955. On 2nd August, 1955 defendant wired from- Egypt stating that he was prevented by illness from appearing for the trial, and applied for an adjournment. The Court, however, refused his application an passed judgment in default in favour of the Plaintiff. The Application in person. Advocate: Hag el Tahir ………………… for Respondent El Nur J. : - After setting out the facts substantially as above stated : - On 21.8.55 defendant applied to the District Judge for setting aside the above default decree giving as his reasons his sudden illness which compelled his departure for treatment. The District Judge had on 18.9.1955 rejected defendant’s application on the grounds that he was not satisfied that he (Defendant) was prevented from attendance by any sufficient cause. On 19.9.1955 defendant applied to the Province Judge for revision of the Order of the District Judge dated 18.9.55 — and on 12.10.1955 the Province Judge summarily dismissed Defendant’s application because he was also not satisfied that defendant was not prevented from appearance on 3.8.1955 by a sufficient cause. On 22.2.1956 defendant applied to this Court for the Revision of the Order of the Province Judge dated 12.10.1955. At the instance of this Court Plaintiff’s (Respondent’s) Advocate made a written statement in reply to Defendant’s (Applicant’s) application for the revision of the Province Judge’s decision dated 12.10.1955. Respondent’s Advocate objected to Applicant’s application on two grounds, viz (a) that Defendant’s application is nearly 4 months out of date and should therefore be dismissed as time barred, since the decision of the Province Judge was issued on 12.10.1955 and the application for its revision on 20.2.1956, and (b) that the failure of defendant to attend the hearing on 3.8.1955 because of his absence in Egypt was not a sufficient cause within the meaning of Section 69 C.J.O. As regards point (a) the decision of the learned Province judge summarily dismissing defendant’s application though issued since 12.10.1955 was not conveyed to him by the Province Court Bailiff until 15.2.1956 : Therefore his right of appeal started from that date and be actually put his application to this Court on 20.2.1956 : Therefore his application was within time limit. As regards point (b) that defendant did not satisfy the Court that he was prevented from attending the hearing on 3.8.1955 by sufficient cause, within the meaning of Section 69 C.J.O., I do not agree to the decisions of both the District Judge and the Province Judge on this point I cannot think of’ a better cause than the one shown by defendant; He was compelled by sudden illness to go to Egypt for treatment he wired the Court from there before the date fixed for hearing praying for adjournment : Why the learned District Judge and Province Judge thought that cause was not sufficient I don’t know. Moreover the Rule in Section 69 C.J.O. does not take away the inherent power, of a Court to restore a suit if there be adjust and reasonable cause for restoring if even if no sufficient cause is shown for defendant’s non-appearance within the meaning of that Rule. It is to be noticed that the case before the District Judge was adjourned five times for no good reason at the insistences of Plaintiff’s advocate which. to my mind was a great abuse of procedure and the delay in determining this very simple suit from 22.12.1954 to 3.8.1955 was due more to the default of plaintiff than that of defendant. For all above reasons I think that an order setting aside the order of the learned Province Judge dated 12.10.1955 as well as the default decree of the District Judge dated 3.8.1955 be made and an order that CS/1123/1954 be re-opened. (Case re-opened)