(COURT OF APPEAL)*

ABDEL RAHMAN HUSSEIN v. SALIH EL AGIB

AC-REV-464-1966

 Principles

·  Civil Procedure decree—Civil Justice Ordinance. s. 71 (c)—It is wrOfl9 exercise a discretion by passing a default decree when dare is fixed for issues.

According to Civil Justice Ordinance, s. 71 (c), it is wrong to exercise discretion by passing a default decree when the suit is fixed for framing of issues and defendant fails to appear. The court must hear the plaintiff’s evidence before passing a default decree or adjourns the suit for another hearing and affords the defendant a chance to appear.

Judgment

Advocate: Kamal El Din Abbas for applicant

Osman El Tayeb J. February 7, 1967: - This is an application for revision from the order of Province Judge, El Obeid, dated August 31, 1966, dismissing summarily a similar application to him from the order of District Judge, El Obeid, dated December 15, 1965, rejecting an application to set aside a default decree.

The default decree was ordering applicant to pay to respondent the sum of £S.4, 140.800m/ms. by way of damages for personal injuries, caused in a road collision between two vehicles. Respondent was a passenger in the one and applicant was driving the second.

Applicant appeared in response to the summons and denied, inter alia, the allegation of negligence on his part. The suit was adjourned for framing issue to July 6, 1965. On this date a default decree was passed. This decree was set aside, on the ground that applicant, who resided in a village outside the town, appeared in court “a few minutes” after the suit was called and the decree was passed. And this short delay was due to the difficulty of transport from the village to the court. The suit was adjourned to October 24, 1965. The record shows that on this date applicant failed to appear, and so the previous default decree was ordered to be restored.

Applicant made an application to set aside that default decree, in which he stated as his grounds, that he was in the court at 10 o’clock on the same day, and later he discovered that the suit was called before that time. Respondent opposed the application, but he would agree to it conditionally on payment into court of the sum claimed. The learned District Judge decided that the cause for the delay was not satisfactory; and that the sum claimed was too much to order its deposit, and so he ordered the deposit of £S.500 as a condition for setting aside the default decree.

I do not think that in such a case such an order should be allowed to stand.

In the first place the delay of applicant appears to be for an hour or so. His assertion that he was in the court-house was not challenged, as he was supposed to come earlier; he was not examined as to the cause of his delay. However, I have to repeat what we have decided in many cases, that a delay of an hour or so is not to be considered a failure to appear without sufficient cause, when considering an application to set aside a default decree under Civil Justice Ordinance, s. 69

The reasonable practice for the court to follow is, that when it starts to c. cases at the beginning of the morning, and it finds that one or the other of the parties was not present, it has to keep the case aside to be called later in the day. It is not the intention to exercise this practice for encouragement of the litigants to come late and so delay the work of the court, but it will do justice to the party, who is really intending to appear.

The second point that I have to make is that about the action that the District Judge ought to have taken on the date of the first default decrees, since it resulted in what was called restoration of that same decree. The District Judge ought to have framed the issues, and then adjourn the case for the parties to bring their evidence, giving notice of that adjournment to applicant This is, in my opinion, the most appropriate action to be taken in any case, especially when the proof is not an easy one, as the present case. In every case, when the defendant appears and makes his defence, the court must frame the issues of fact or of law, and make a note of the evidence the parties intend to adduce as to issues of fact. The court in that case has to comply with Civil Justice Ordinance, s. 72 (1) and (2).

It may be submitted that the court has a discretion to pass a default decree, as in this case, before framing of issues, under Civil Justice Ordinance, s. 71 (C), which provides:

“When on the day to which the hearing of the suit is adjourned the parties or any of them fail to appear, the court may dispose of the suit in one of the modes directed in this chapter or may make such other order as it thinks fit.”

I think the exercise of such a discretion by passing a default decree on the date that was fixed for informing the parties of the issue is wrong. At this stage, that of defence being made, the issues must be framed, and satisfactory evidence must be heard before a decree is passed. In a simple case, where the proof does not seem to be a difficult one, the court after framing the issues may hear the evidence of plaintiff and pass a default decree, thereby exercising its discretion under section 71 (c). But on a complicated one it must, after framing issue, adjourn it to another date for hearing, and afford a chance to defendant to appear by giving him notice. The restoration of a bad default decree is bad too.

For these reasons this revision is allowed, and the order above referred to is hereby set aside and the suit is sent back for framing issues and final disposal.

El Fatih Awouda J. February 7, 1967: —I agree.