(COURT OF APPEAL)

GAAFAR SADDIK v. FADL EL MOULA ALI

AC-REV-178-1958

Principles

·  Civil Procedure—Allowance of action—Civil Justice Ordinance, s. 56

·  Civil Procedure—Court to which revision lies cannot set itself up as a court of first instance

A court to which revision lies cannot set itself up as a court of first instance  and reopen a case in order to give another chance to a litigant who was negligent.
A court to which revision lies cannot set itself up as a court of first instance  and reopen a case in order to give another chance to a litigant who was negligent.
 

Judgment

Babiker Awadala 1. December 28, 1958 :—This is an application against the order of His Honour Abu Ghazala dated September 17, 1958 dismissing summarily an application or revision of the decree of the District Judge, Khartoum, dated June 4, 1958, by which applicant was ordered to pay to respondent a sum of £S.180  and costs.

The case was originally started in the District Court by respondents a certain Fadl El Moula Ali, claiming from applicant and two others jointly a sum of £S.201 being arrears of rent of Plot No. 10 Block 5 F. West Khartoum for the period of 1952/1957 at £S.3 per month. It appears that the plot in question is simply a vacant enclosure which the registered owners have been letting out to respondent since very long and that respondent, in turn, was sub-letting it as a dumping ground for scrap iron dealers. His practice, it seems, was to divide the enclosure into small dumping sites of which each dealer would take one or more in accordance with his requirements at a definite pre-agreed monthly rent.

The case is in our opinion an easy one, but the complication apparent

on the face of the record, and which prevented the court below from understanding the fact as far as can be, is no doubt due to a disregard by the District Judge of the rules of procedure and, in particular, of Civil Justice Ordinance, s. 56, which requires a careful examination of the plaint, and if necessary the plaintiff, before allowing action. The joinder of two or three entirely separate causes of action in one suit or of an agent and a principal as co-defendants are nothing but tactical tricks intended by the respondent to shroud some serious defects in his claim which would other wise have been apparent under careful scrutiny. That there are serious defects in this case can, apart from the plaint, be seen from the vacillation disclosed in respondent’s own testimony in court. At p. 9 of the proceedings, he gave a statement diametrically opposed to his allegations on plaint. For while in his plaint he says that first defendant was an agent for second and third defendants, the principal tenants, he says in the testimony referred to “defendant No. 3 is not a sub-tenant. He only claimed ownership of iron stored in the part rented to Markar (i.e., first defendant).” Even on this piece of testimony alone, the dismissal of third defendant from the suit was no doubt correct.

As regards first defendant, the court below dismissed the action against him although, in my view quite illogically, it said that it was satisfied that he did give up possession in 1950/1951. The testimony of first defendant that he left the site in 1950 is sufficiently borne out by that of applicant (second defendant) at p. 17 that at the time respondent obstructed delivery of the scrap iron consequent on the sale to Tewfik Ahmed Yahia (third defendant) there was no iron whatsoever on the site besides that which was being sold. If in dismissing first defendant the court below was accepting the evidence of these two defendants in preference to that of plaintiff, then no doubt it was quite entitled so to do.

We now come to the case of applicant. The learned advocate who appeared on the application contends: (a) that the lessor (respondent had commited a breach of his implied covenant for quiet enjoyment by refusing to allow applicant to remove the iron sold by him in 1952; (b) that the rent payable by applicant for the site was only £S.1 and the court was wrong in making its calculation at £S.3 (c) that in any case respondent cannot receive rent for more than five years immediately preceding the action. All these allegations are now being pressed for the first time, save that perhaps the one referring to the quantum of rent was also raised in the application to the Province Judge. We entirely agree with the Province Judge that a court to which revision lies cannot set itself up as a court of first instance and reopen a case in order to give another chance to a litigant who was negligent. On the other hand, a court of law has certain obligations which it has to discharge properly in order to arrive at a decision on the facts forming the basis of the claim. In the present case, the allegation that the monthly rent was £S.3 was denied by the defendants but no issue thereon was framed by the court which, for no apparent reason, seems to have believed plaintiff on the point.

Again, as regards the effect of the Prescription and Limitation Ordinance on the case, the District Judge said in the penultimate paragraph of his judgment, “As I see it, second defendant is solely responsible for payment of rent from five years ago commencing from August 17, 1952, to August 17, 1957 (date on which iron was sold by court).” As the date of the plaint in this case was December 16, 1957, the District Judge is unjustifiably extending the period of limitation by four months. This is obviously incorrect.

We are therefore of opinion that this application be allowed and that the case be returned to the District Judge for determination of the liability of applicant (second defendant) to respondent in the light of the following questions: (a) what is the rent per month of the site let out to second defendant by plaintiff? and (b) to what extent is the claim statute barred?

M. A. Abu Ranncit C.J. December 28, 1958:—I concur.