(COURT OF APPEAL)*

FARIS BEBAWI v. JUIS AZ1Z AND OTHERS

AC-REV-136-1966

 Principles

·  Civil Procedure—Dismissal for lack of prosecution—Civil Justice Ordinance, s. 217 (1)—Court’s attention may be drawn to the tact of the abandoned case without action for a year by any person

The court’s attention may be drawn to the fact that a suit is adjourned or stayed without action for a year, by any person, ie court derk or one of the parties to the suit. Accordingly the court may exercise its power to dismiss the suit under Civil Justice Ordinance, S. 217 (1), even though the suit was not dismissed before court’s attention is drawn.

Judgment

Advocates: Kamal Abdel Razik Hamid for applicant

Hasan Nagm El Din Lashin for respondents

Osman El Tayeb J. October 18, 1966: —On July 5, 1962, plaintiff instituted a suit against the two named defendants claiming recovery of the sum of £S. being the value of four cheques draWn by first defendant and endorsed or guaranteed by the second defendant, that were dishonoured on presentation.

Both defendants were duly served with summons, on August 9, 1962, first defendant failed to appear; plaintiff gave evidence on oath in support of his claim, and the right for a default decree was reserved to him against first defendant. But second defendant in reply admitted endorsement of the cheques, but denied liability on the grounds, inter alia, that her sig nature was procured by duress, and further that the cheques were not protested. The issues were framed. On February 9, 1962, plaintiff was ordered to pay the hearing fees; he promised to do so, and the suit was adjourned without a date.

On December 4, 1965, advocate for plaintiff appeared before the court, with an applicatiofl requesting the court to set aside the order of dis missal passed by it under the Civil Justice Ordinance, s. 217 (a). The court found that no such order had yet been made, the learned District judge thought that it ought to have been passed, and purporting to exercise that power vested on him by the said section, dismissed the suit under Civil Justice Ordinance, s. 217 (i). Then a date was fixed to consider the setting aside of the order of dismissal. The reason put forward by plaintiff for his failure to prosecute the suit was that he was sick. The learned District.Judge thought that the period of abandonment of the suit was too long and that the sickness of plaintiff was not a sufficient excuse, and rejected the application.

An application for revision to the learned Province Judge was summarily dismissed by him.

As I see it the difficulty presented in this case is about the making of the order of dismissal under section 217 (1), at the time and as a result of the application of plaintiff to proceed. Has the court the power so to dismiss the suit? It may be argued that so long as the suit was not, before the application dismissed, and as at the time of the application it was still open and alive for any further action, its dismissal there and then would be wrong.

In Mohamed Omer Bazara’a v. Abdel Hamid Buhafazalla (1962) S.L.J.R. 132, the defendant applied to the court to dismiss the suit for lack of prosecution under section 217 (1). The suit had remained without pro secution for just a year. The application was rejected and the revision brought before this court was dismissed. it was decided that the court can exercise its inherent powers to extend the limitation period for the ends of justices according to the circumstanceS of the case, that the court normally acts on section 217 (1) out of its own motion, but the defendant may apply to it so to act; and, that the court has to summon the plaintiff to show cause why the case is not to be dismissed in order to come to a fair decision in the matter.

The present case is different in that the plaintiff applied for moving it. In my opinion this difference does not make a change in the powers of the court to allow the case to proceed or to dismiss it. The rule that the court normaUy acts on its own motion logically means: when its attention is drawn to the fact of the abandoned case by any person, whether he is the court clerk or any of the parties. The defendant is the party who normally benefits from the dismissal of the hanging suit, and so he moves the court to exercise its powers of dismissal. On the other hand, the plaintiff is the party who is normally prejudiced by the dismissal, and so he also moves the court to exercise its power, not to dismiss the case, but to extend the limitation period. The court may accede to his request or may not. The fact that the suit was not dis missed before is not to be given any consideration, since it does not strip the court of its powers to dismiss the case at that stage. The dis missal must be at the end of the period during which the suit was abandoned but not after it was moved and action was taken on it. This last point was decided in Heirs of Mahmoud Abu Saba’a v. Heirs of Mahmoud Ali El Dawi, AC-REV-73-1965. The suit was abandoned for one year, then it was moved; plaintiff paid hearing fees, some parties were joined, the parties appeared before the court many times, and date for hearing was fixed. At this date the defendants drew the attention of the court to the fact that between antecedent dates the suit remained without prosecution for a little more than a year. The court, purporting to exercise its powers under section 217 (1), dismissed the suit. Revision to this court vas allowed, and it was held that it was too late for the court to dismiss, since it virtually extended time and allowed the suit to proceed.

Now, I think this case was rightly dismissed under Civil Justice Ordinance, s. 219 (i), though defendants were not given notice to appear and show cause. The main ground is that the period during which the suit was abandoned was too long; it was from February 9, 1962 up to December 4, 1965 a little less than four years. It is reasonable to assume, in such circumstaflces, that plaintiff had, for one reason or the other, given up his claim. The excuse of sickness is not acceptable because it was not shown to be extending during all that period with seriousness.

This revision is dismissed with costs.

El Fatih Awouda J. October 18, 1966: —I agree.