Court of Appeal 

OHANES KODJANIAN v. GORASHI ABUL ELA AND OTHERS

AC-REV-37-1965

Principles

·  Civil Procedure-injunction against breach of contract of injury Civil Justice Ordinance s, 142-There must be contract or an over at causing injury  

Applicants (plaintiffs) who were tenants of the shops owned by respondents (defendants) raised these suits asking for an order to compel the defendants to carry out repairs in the shops which were damaged by fire as provisional remedy under Civil Justice Ordinance s, 142. District Judge rejected the request on the ground that the request on the ground that the section did not apply. Province Judge confirmed the court’s finding.

Held: refusal by defendants to make repairs does not entitle the plaintiffs to temporary injunction under Civil Justice Ordinance, s, 142, because such refusal does not constitute an over Act causing injury to  the plaintiffs. Also there is no contract between the parties which binds the defendants to carry out the repairs.
 

Judgment

Advocate: Abdel Aziz Safouat…………………………for applicants

Osman El Tayeb J. September 12.1965:-These three applications as shown above have been consolidated and dealt with together because they are identical.

Each of applicants, as tenants so the shops owned by defendants instituted a suit praying for an order to compel defendants to carry out the necessary repairs in each of the three shops that were damaged by fire. Together with each suit an application was submitted to the court paying the issuance of an order to the Municipality Engineer of  Khartoum directing him to accept the plan of the repairs in each of the sops, an allow each of applicants-the tenants-to carry out the repairs Justice Ordinance ,s, 142.

The District Judge fixed a date for hearing the said application and notice was sent to defendants to appear to show cause why the order should not be granted. On the date fixed the notice was returned un served as the senior member of defendants (who are a family) had died about that same time. Advocate for the repairs was an urgent matter since plaintiffs were losing their business.

The learned District Judge dismissed the application on the grounds that Civil Justice Ordinance, s, 142, does not apply and that it would be unfair to grant the order in the absence of defendants. Applicants applied for revision to the learned Province Judge who dismissed the application summarily.

Hence comes these applications, which should also be summarily dismissed. Section l142 speaks about temporary injunction, to restrain the defendant from committing breach of contract or doing other injury. That defendants have been doing something or some Act causing injury and it is sought to compel them to cease doing it. This is not the case here, it was not alleged that defendants were bound by a contract to constituted breach of the said contract. Again their refusal to make the repair is not an over Act causing injury.
 

It is right and just, s the learned District  Judge said that such an order should not be granted in the absence of defendants who are well known persons, and the summons could not be served on them because their head as a family had recently died.

Another interesting point, which is only fallacious, is how can a court issue an order to Municipality Engineer who is not party to these proceedings to accept the plans from the tenants instead of from the landlord. There is no  rule of law nor of practice authorizing such an action.