(COURT OF APPEAL)*

HASSAN DAWI ABDEL GALIL v. MORGOS TRADING Co.

AC-REV-180-1966

 Principles

·  Civil Procedure—Default decree—Civil Justice Ordinance, s. 64 (1) (a)—Absence of defendant does not automatically give plaintiff the right to a default decree— Plaintiff must proceed to produce evidence to prove his claim

·  Civil Procedure-Counter-claim- Justice Ordinance, Ord. XXI, r. i—Does not empower the court to dismiss counter-claim for non-payment of fee-Proceedings pending until fee is paid

(i) Civil Justice Ordinance. s. 64 (1) (a), does not automatically give the plaintiff the right to a default decree when defendant is duly summoned and failed to appear. The section requires that the plaintiff must proceed to produce evidence to prove his claim before a default decree be passed.

(ii) According to Civil Justice Ordinance, Ord. XXI, r. i, failure to pay fee for counter-claim by a party, does not empower the court to discuss the claim, but only forbids the court to proceed to deal with the claim until the fee prescribed is paid.

Judgment

Advocates:           Mohamed Ahmed Orabi . . . . . . . . . . . . . . for applicant

Abdel Rahman Yousif. . . . . . . . . . . . . . . . . . . . . . . . for respondent

El Fatih Awouda J. April 9, 1967:-In my opinion this application should succeed.

Applicant is the defendant in KH-fHC-CS-415-1964, against whom there is a claim for the recovery of £S.415.300m/ms. by way of damages for breach of contract. Subsequent to the institution of that suit applicant instituted a suit against respondent to recover £S.120.000m/ms money allegedly accruing to him under the same contract. On August 19, 1964, an order consolidating the two actions in the former suit was passed and applicant was allowed to counter-claim. On September 1, 1965, after the issues have been framed the court ordered payment of hearing fees on the original claim, payment of “fees on the counter-claim and set the case down for hearing on December 6, 1965. On that date advocate El Nasri appeared for applicant on behalf of advocate Orabi and until then the fee ordered by the court to be paid on the counter-claim was not paid. Advocate for respondent thereupon asked for the counter-claim to be dismissed. The court did not accede to that and thought to give applicant a further chance and adjourned the hearing to February 12, 1966. On that date neither applicant in person nor his advocate appeared nor were the fees paid. Respondent who attended before the court was made to swear and gave the following statement:

“I claim as against defendant £S.415.300m/ms.representing damages for certain things he made in the wrong way and for others he made in an unsatisfactory manner.”

On that statement the court passed a default decree against applicant for the whole sum and dismissed the counter-claim for non-payment of fees. An application by advocate Orabi to set aside the default decree as well as to set aside the dismissal of the counter-claim was dismissed by the learned District Judge, and an application for revision therefrom was summarily dismissed by His Honor the Province Judge for being out of time.

Advocate for applicant argued before us that as no evidence proving the claim was given no decree should have been passed and that the counter-claim should not have been dismissed for non-payment of tees but should have been merely struck off the list so that it could be restored after payment of fees.

Advocate for respondent argued in reply that as applicant did not show sufficient cause under Civil Justice Ordinance, s. 69, the District Judge had to refuse to set aside the default decree and has rightly dismissed the counter-claim for non-payment of fees.

With regard to the first leg of this revision this court has on innumerable occasions pointed out that it is an erroneous practice to pass a decree in default of appearance by merely asking the plaintiff to swear and say that he Is entitled to what he claims or something within that meaning, It is mandatory on the court proceedings under Civil justice Ordinance, s. 64 (1) (a), “to proceed to hear the suit” by asking plaintiff to lead evidence in proof of his claim, If the plaintiff has no such evidence to lead then the court will have to dismiss the suit, and absence of a defendant in itself does not automatically give the plaintiff a right to have a decree passed in his favour.

It is true that Civil Justice Ordinance, S. 69, does not give the court power to set aside a default decree except on any of the grounds therein mentioned. It is also true that advocate for applicant did not assign sufficient cause for his non-appearance on the day fixed for him to appear. But, where, as in the case before us, the default decree was not properly passed in accordance with section 6 (1) (a) the court will set it aside not because he has satisfied the requirements of section 69 but because of the existence of a just and sufficient cause for setting it aside because it should not have been passed in the first place. In the circumstances of this case and because of the nature of the issues involved the statement of plaintiff was too generalized and most insufficient to support a decree.

As to the second leg of this revision, I think the learned District Judge was also wrong in dismissing the counter-claim for non-payment of fees. The unpaid fee on the ground of which the counter-claim was dismissed is, I presume, the fee payable upon the hearing. Our Civil Justice Ordinance, Ord. XXI, r. i, confers upon the court the power to dismiss a suit, or for that matter a counter-claim, for non-payment of fees. it only forbids the court to proceed to deal with the matter until the fee pre scribed has been paid.” If it is not paid, then the right procedure is to keep the matter, pending application by the plaintiff or counter-claimant and if no such application is made within one year, dismiss it under Civil Justice Ordinance, s. 317, for lack of prosecution.

This application is to be allowed without an order as to costs. The default decree of the learned District Judge as well as his order dismissing the counter-claim are to be set aside.

Osman El Tayeb J. April 9, 1967: —I agree.