Principles

·  CIVIL PROCEDURE— Default decree —Specific performance—Court required to examine plaintiff carefully — Civil Justice Ordinance, s 64 (1) (a)

A default decree for specific performance of a contract for sale of land will be re-opened where the Courl did not “ ... examine plaintiff carefully as to why specific relief should be granted . .

Judgment

Babiker Awadalla J.. July 25. 1961 This is an application for revision of the order of the Honourable Judge of the High Court, Khartoum, dated January 7. 196i. refusing to set aside a default decree against applicant passed by the learned District Judge, Khartoum. on September I 1959 in CS-3168-1954

‘ Court: MA. Abu Rannat , C.J and P. Awadalla. J.

The civil suit in which this default decree was passed goes back to November, 1954, when a certain Mohamed Mustafa Sheikat (now deceased) applied for specific performance of an agreement of’ sale alleged to have been Concluded on April 4, 1953 between h and applicant, in which the latter agreed to sell him his house on plots 23-26, Block G.W.5, Saggana, for a sum of £S..265.

Owing to some difficulty in serving summons on applicant, the case was only first ready for hearing on 25, 1955, when plaintiff alone appeared and defendant, though summoned, failed to appear. Plaintiff restated on oath the allegation contained in his petition but was not called upon to produce the written agreement, and a decree for claim and Costs was passed. That same day applicant-defendant petitioned the Court for re-opening, contending that he was there in the vicinity of the Court on the date of hearing but was not called. That application was, however dismissed on March 7, 1955 for lack of evidence that defendant was in Court at the date of hearing.

Almost four years later, the learned advocate for plaintiff informed the Court by letter that the number of the plot in question was changed by the decision of the Settlement Officer, made since the institution of the suit, and on the basis of this letter the District Judge applied to the Honourable Judge of the High Court for leave to review his decree in order to substitute the new number for the old. When leave was obtained, the decree first above referred to was passed,

Before us, applicant appeared in person, and the heirs of the deceased purchaser were represented by one of the deceased’s sons. The written agreement was produced to the Court by respondents’ representative and was marked and filed.

In my view this decree cannot stand. This Court has repeatedly ex pressed its unwillingness to allow land cases to be disposed of without a proper hearing. In the present case plaintiff was not even called upon to prove the document of which specific performance was sought. Civil Justice Ordinance, s. 64 does not say that when a defendant fails to appear (decree shall he passed against him, but it only says that the Court shall proceed to “hear the suit.” After adequate proof of claim in a case like rhts one, the Court should proceed to examine plaintiff carefully as to why specific relief should be granted, instead of the ordinary remedy of damages. I he Court must be very cautious in examining plaintiff on this point. A contract may be perfectly valid and binding, but there may be circumstances uching the conduct of the parties or any of them that make it inequitable cant the remedy, and ver little is enough to satisfy a Court of equity that behalf. For the above reasons, and with the above remarks in mindI think that this case should go back for a re-hearing.

This application is therefore allowed, and the decree of the learned district Judge, dated September 1, 1959 is hereby set aside and the case at back for rehearing.

MA. Abu Rannat, C.J. July 25, 1961 :— I concur.