(COURT OF APPEAL)*

HOHMAN CO. AND ANOThER v. MAHGOIJB MOHAMFI) AHMED

AC-REV. 1966

Principles

·  Civil Procedure- Non apearance of a party at later gage of the suit—Civil Justice Ordinance. s. 71 (c)—Coug has discretion to make any reasonable order according to the cfrcvm of the defaulting party—War essential to pass a default decree

If the suit is adjourned to another day for hearing and on the fixed ch one of the parties fails to appear, then the court according o Civil Justice Ordinance,
s. 75 (c) may dispose of the suit by any order, which it thinks reasonable according to the circumstances of the defaulting party. In case the defaulting party is the defendant, it is not essential to pass a default decree by the court.

Judgment

Advocates: Abdel Wahab and Tigani for applicants

Herry Riad for respondent

Alfatih Awadalla J.  July 31, 1966: —Respondent brought an action against applicant claiming recovery of £S.2, 899,0000m/ms value of a prommisory not to which the latter raised certain defences and conse quently issues were framed and the case was set down for hearing. On the said date advoca for applicants absented himself, whereupon the learned District Judgc pissed a default decree w hearing respondent (plaintiff) on the ground that the burden of proving all the issues lay on the applicants. Applicants applied to have the default decree set aside. The District Judge who was not satisfied that there was sufficient cause for the non appearance of applicants on the date of hearing sac piepared to set asldL the default decree conditional upon payment of the whole mount of claim into court An application for res ision therefrom was made to the Province Judge who dismissed it summarily on the ground that there was no sufficient cause for defendants’ non-appearance in the court below. It is from that dismissal that this application lies.

With due respect to the opinion of the learned Province Judge, I do not think that he had dealt with the subject matter of the application ss hich v as the impropriety of the condition of payment into court.

It seems to me that the District Judge disposed of the suit under civil Justice Ordinance s 64 and treated the application to set aside the decree ‘inder Civil Justice Ordinance s 69 This is wrong Section 64 is applicable only when the defendant does not appear and ais er It is appearance at the early stage of the suit. But these proceedings have gone well beyond that stage. The matter should have therefore been treated under Civil Justice Ordinance, s. 71 (C), for it was non-appearance at a later stage of the suit. The section gives the court a very wide discretion. It is not necessary under the provisions of that section that a default decree be passec. The court” . . . may make such other order as it thinks fit.” In deciding what sort of order is to be made regard must be had to the general conduct of the defaulting party in the litigation. If he is a defendant the court must consider whether he is SeriouSly and genuinely intending to defend and whether the order to be made is in all the circumstances reasonable.

On August 8 1965, the suit was dismissed for non-appearance of both parties. Applicants agreed to hase the dismissal set aside despite the fact thit recp did not show any acceptable cause for his absence. This in my opinion is evidence of applicants genuine intent to fIght. Moreover the sum involved is a considerable one. To dispose of a suit of that value in the manner adopted by the District Judge was, in the circumstances, improper. I would have thought it reasonable if the court, instead of passing the default decree, adjourned the hearing and ordered a reasonable sum to be paid by the defendants by way of costs.

In the result this application is allowed. The default decree of the District Judge is hereby set aside and he is directed to proceed with the hearing.

There is no order as to costs of this application. El Rayah El Amin J. July 31, 1966: —I agree.