(Court OF APPEAL)*

IBRAHIM AWAD v. NASR SPORTS CLUB, KARIMA

AC,APP.32.1964

Principles

·  Civil Procedure –Failure to present written statement-Civil Justice Ordinance ord. 11,r.14-Allowance to reply by written statement Civil Procedure-Default decree-Civil Justice Ordinance, s, 64-Applicable when defendant defaults to appear when duly summoned

Plaintiff sued defendant for damages for breach of contract . both parties appeared and defendant applied for  time to reply. No order of pleadings was decree against defendant under Civil Justice Ordinance Ord.11, r. 14.
Held : (i) In absence of an order of pleading allowance to reply does not mean to reply by a written statement under Civil Justice ordinance, ord.11, r.14, unless it is expressly mentioned.
(i)                  As defendant failed to appear when duly summoned , plaintiff is entitled to a default decree under Civil Justice Ordinance, s, 64, and defendant is entitle to be heard to set aside such default decree under Civil Justice Ordinance, s, 69.

Judgment

Advocate:   Abdel Wahab Abu Shalimar…………………for respondent

Osman El Tayb J. March  7. 1965:- Respondent and plaintiff instituted a case for damages for breach of contract against appellant and appellant’s advocate applied for tie to reply, the Court allowed him time to reply by fixing the date of June 15.1964 advocates for both parties appeared and appellant’s advocate applied for time to reply, the Court allowed him time to reply by fixing the date of June 15.1964 for framing issues. On the latter date appellant’s advocate failed to appear, and respondent’s advocate applied for decree under Civil Justice Ordinance Ord .11,r, 14, application and passed a decree for the claim with costs. Hence this application comes before us.

Order II prescribes the Procedure of pleadings and so rule 14 can only be applied when the case is conducted by pleadings. This rule is not an imitative one, as to the requirement of a statement, but it provides for the effect of he failure to submit statement required in accordance with the previous provision of the order . the wording of the rule starting as follows: “ When any party from whom a written statement is so required………..” means a reference to the manner or the cause or reason previously prescribed

Then we have to look at the proceedings of the case to see if a written statement was so required. We find in the first place that no order of pleadings was made in  the case,  and in the second place we find that there was no order to make a written statement . the recorded shows that defendant’s advocate was allowed time to reply. In the absence of an order of pleadings under order 11. allowance to reply does not mean to reply by a written statement , unless it so expressly mentioned.

The common practice of the Court in the Sudan is that when defendant is duly served with summons ,and that formal appearance is entered by him, and that he fails to appear at any subsequent date to which the case is adjourned or further adjourned after being given notice of any of these adjournment s, the Court may pass a default decree against him under Civil Justice Ordinance ,s, 69. the case may at any stage for sufficient cause being shown, be adjourned from time to time under Civil Justice Ordinance s, 214 and under subsection (2) of section 64,the defendant is entitled to be heard in answer to the case if he appears, but if the fails the plaintiff would be entitled to default decree.

I think that this practice is invariably being followed , whether the case is conducted by pleadings, ie, by written statements, or not, ie, that the defendant is required to answer orally.

As I pointed out before e, rule 14 is only applicable when there is an order of pleadings and written statement is required from any party, plaintiff or defendant, and on his failure to submit that written statement the Court found that it can pronounce judgment ; that there are grounds to support a judgment on the merits , whether these grounds appear from the pleadings only or from evidence received by the Court. Suppose the defendant admitted the claim, but pleaded a set-off and he was asked to furnish particulars of the debt sought to be set off , ad he failed to do so, a judgment may be pronounce against him on his admission or on further proof, if the Court so thought fit.

The rule refers to judgment , which is a statement of the grounds of a decree, but it self not a decree. A judgment is pronouncement in the presence of the party for his failure to file the written statement required from him in the course of the pleadings. While a default  decree is essentially passed against a defendant, who has defaulted to appear in obedience of the summons, or at anytime to which the hearing of the case is adjourned.

In the present case, there is no pronouncement of a judgment but only a decree for non–appearance under Civil Justice Ordinance, s, 64, and defendant is entitled to be heard on his application to set it aside under Civil Justice Ordinance,s,69. the passing of a decree under Civil Justice Ordinance, Ord, 11,r, 14, is clearly wrong.

The judgment in the case of universal Cotton C. ltd. V. Pinto Cotton Co. ltd. (19590 S.L.J.R.33,has been observed and followed .

The application for revision is allowed the decree of the learned Province Judge is set aside and the case is sent back to proceed.

M.E. Gassouma P.J  March 7.1965- I concur.

Hassan Abdel Rahim P.J  March 7.1965- I concur
 

* Court: Osman El Tabeb .J. M. E. Gassouma J. and Hassan Abdel Rahim J.