Case No.:

AC.REV-80-1960

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure-Adjournment-Civil Justice Ordinance, s. 214-Must be ordered by District Judge

A clerk of court has no power to adjourn a suit under Civil Justice Ordinance, S. 214, giving “the court” power to adjourn; “court” means a District Judge.

Judgment

(COURT OF APPEAL) *

NUGIJD MOHAMED SALIH AND ANOTHER v. MEDANI HASSAN AHMED

AC.REV-80-1960

Advocates: Abdalla El Hassan for defendant-applicant

Abdel Moneim Mustafa for plaintiff

M. A. Hassib J. August 8, 1960: This is an application for revision against the order of the judge of the High Court, Blue Nile, in HC-RE 1960, dismissing summarily an application for revision against the order of the District Judge, dismissing an application for setting aside a default decree given against defendant-applicant in CS-48-

The District Judge for hearing on July 6, 1959 adjourned the suit. On that date both parties appeared but the District Judge was not present. He left on duty for Kosti. The clerk of the court made a record showing appearance of the parties and adjournment of the suit to August 3,

1959.

Again on August 3, 1959, the parties appeared and again the District

Judge was not available. This time he went away on leave. The clerk for another time made a record showing appearance of the parties and adjournment of the suit to October 19. 1959.

On October 19, 1959, plaintiff-respondent alone appeared. He was told to file an affidavit but he appeared again on October 22, 1959, and obtained the default decree; and this default decree was not served on the defendant-applicant till he presented an application on January 12, 1960, for setting it aside.

When the court heard the application for the plaintiff-respondent’s advocate objecting to setting aside the default decree, the District Judge dismissed the application on the ground that the reasons assigned were not sufficient.

Before embarking to consider the applicant. I feel I must record a word of rebuke to the District Judge who handled the suit. The judges must bear in mind that the proper administration of justice requires carefulness when dealing ‘with the public. It is the duty of every judge to see that Suits should not be given dates when he is not available. That would save the trouble of the public and also the inconvenience of multiplicity of work. In case of unforeseen absence the clerk is not the authorized person to deal with the parties. He should have submitted the papers to another District Judge if available for dealing, with the parties. That was not done in this case.

In this case the parties twice appeared and there was no judge available. If one or both of them failed to come again on the dates given by a clerk, they, I must admit, had an excuse. It is not their fault but that of the court, which caused successive delays.

Civil Justice Ordinance, s. 214, provides for the power of adjournment of suits, which reads: “The court may at any stage of the suit for sufficient cause and on such terms as to costs as it thinks fit:

(a) from time to time adjourn the hearing of the suit

The power of adjournment of the Suits by the provision of the Civil Justice Ordinance, s. 124, is left to the court only, and according to the definition of the “court” by Civil Justice Ordinance, s. 4 (3), means a civil court, i.e., a District Judge of any grade.

For the above-stated reasons and because the amount involved in the claim is an enormous one, I am of opinion that the trial was most unfair and the defendant-applicant is, in the circumstances of the case, entitled to the assistance and aid of the Court of Appeal exercising its inherent power by Civil Justice Ordinance, S. 226.

This application, in the result, be allowed with costs here and in the lower courts.

Ahdel Rahman El Nur P.J. August 8, 1960: -—l concur.

* Court: M. A. Hassib J. and Abdel Rahman El Nut P.1.