(COURT OF APPEAL) *

ABBAS MAHMOIJI SAAD v. HEIRS OF MOHAMEI EL ABID FADLALLA

AC-REV-706.1965

Principles

·  Civil Procedure Default decree Civil Justice Ordinance, s. 64—Applicable only when defendant defaults to appear when duly summoned to answer the claim Civil Procedure Default decree—When defendant appeared and answered the claim, then no default decree should be passed if he defaulted to appear— - Court should proceed to hear the suit until final disposal

Where at the time fixed to answer the claim, defendant who is duly summoned fails to appear and plaintiff does appear, then the court may pass a default decree according to Civil Justice Ordinance. s. 64. But at any later stage of the suit, e.g., when pleadings are completed and the time is fixed to consider the issues, then defendant fails to appear and plaintiff does appear. the court must not pass a default decree for non-appearance; but must proceed to hear the suit until final disposal, even if defendant never appeared.

Judgment

Advocates: Mohamed Ibrahim El Nur…………………………………. for applicant

Mohamed Tawfix Zeidan ………………………………………………for respondent

Osman El Tayeb 1. August 7, 1966 :—This is an application for revision from the order of Province Judge, Northern Province, dated December 4, 1965, in which he allowed the setting aside of the decree dated November 14, 1965, intended to be a decree in default of appearance, on condition of depositing in the court the value of the claim amounting to £s.5.006.

It must be stated from the outset that the decree passed on November 14, 1965, is not a decree in default of appearance by the defendant within the meaning of Civil Justice Ordinance, s. 64. A decree in default of appearance is that which is passed in the case where defendant was duly served with summons to appear and answer the claim, and he fails to appear for that purpose. After defendant had appeared and answered the claim and in any later stages of the suit, the court cannot pass a decree in default of appearance, but it has to proceed with the hearing, framing issues hearing the evidence, etc. The defendant is to be given notice of any adjournment made in the suit.

In the present case, the pleadings were completed by plaintiff making his reply to the statement of defendant and the case was adjourned to November 14, 1965, in order to consider the issues arising out of the pleadings. On that date plaintiff appeared but defendant failed to appear, the duty of the court in this circumstance was to frame issues and adjourn the case for hearing the evidence on those issues until final disposal, even if defendant, after being given notice, has never appeared.

I think, the learned Province Judge was clearly wrong in passing a decree in default of appearance on the date already mentioned and was further wrong in refusing to set that decree aside except on deposit of the sum claimed in court. This application has, therefore, to be allowed with costs.

The decree dated November 14, 1965, is hereby set aside and the case sent back for hearing and determination.

El Fatih Awouda 1. August 7. 1966 :—I concur.

* Court: Osman El Tayeb J. and El Fatih Awouda J.