(Court OF APPEAL)*

APSOSTOLOU ENTERPRISES LTD v. COLGATE PALMOLIVE LTD.

AC-A PP-22-1964

 Principles

·  Civil Procedure-Striking out pleadings-Civil Justice Ordinance ord.11,r.14, -may terminate case by judgment

When pleadings are struck off under Civil Justice Ordinance. Ord.11 r.7, and the party concerned failed to submit proper pleadings, this does to terminate the case by judgment against the party, but the Court should order the said party to submit proper pleadings within the specified time, if the said party fails then judgment may pass against him under Civil Justice Ordinance ord,11,r,14.
 

Judgment

Advocates: Mohamed Yosif……………………….for appelants

                 E.M. Kronfli…………………………   for respondents

Babiker Awadalla J. November 5.1964:-this is an appeal against the judgment and decree of His Honour the Province Judge, Khartoum, in cs- 589-1963 and by which appellant-defendant I the suit-was alleged to be the value of two bills of exchange payable at sight and drawn by respondents on defendants for goods sold and delivered.

Appellants admitted the bills but denied liability, contending that they had not received the goods for which the bills were given and consequently  were not liable on those  bills.

In their reply, dated July 22.1964, they alleged that the defence was “vague and evasive and applied for it to be struck off. After rejoinder and surrounded, His Honour the Province Judge struck out the defence and immediately passed the judgment appealed against.

Before us, appellants were represented by advocate Kronfli. Advocate Mohamed Yosif contends that although the decision of His Honour the Province Judge does not state under what provision of the Civil Justice Ordinance that contentions correct, the learned advocate goes on argue, then surely the decision

Is contrary to the several precedents decided by this Court, viz-Awad Muhtar v. EL Rayah Ibrahim (1959) S.L.JR. 33.

Both those decisions require proof of the claim in the ordinary  way before judgment therefore can be given.

The learned advocate for respondents contends that the decision was passed under rule 7 and not under rule 14 or order 11.

In my view this appeal should be allowed. It is obvious that the only rule under which a decision can be given against a defaulting litigant is rule 14. rule 7 only gives the Court power to strike out any pleading which “may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit’ Rule 7 cannot be invoked to terminate the case by judgment except after rule 14 is invoked. In other word , if pleadings are struck off under rule 7 and the party concerned fails to submit proper pleadings, then he can be ordered to do so within specified time, and if he fails to comply with that order that judgment can be passed against him . such judgment-according to the favour it given proves his claim in the ordinary way.

For these reasons, the appeal is allowed with costs and the case sent back to His Honour the Province Judge for a proper hearing.

 M. A. Abu Rannat C.J. November 5.1964:- I concur.

Hassan Abdel Rahim J. November 5.1964:- I concur

* Court : M. A. Abu Rannat C.J. and Babiker Awadalla J. and Hassan Abdel Rahim J.