Case No.:

(AC-Revision-216-1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

·    Civil practice and procedure—Civil JUstice Ordinance. s. 71 (c)— Whether party vhose advocate withdraws is entitled to notice

Where a party’s advocate applies to the court for leave to withdraw trorn the suit and the court gives such leave without any reasons appearing on the record, the court must stay the proceedin ut order to give a fair chance to the party whose advocate withdrew, for otherwise the trial of the suit would be unfair to such party.

Judgment

(COURT OF APPEAL)*

SIMOS MOTORS v. BANK MISR

(AC-Revision-216-1960)

Revision

Advocates: Fawzi El Tom ………….for applicants

                         Mellasi for E. M. Krotitli. for respondents

December 5, 1960. M. A. Hassib I.: —This is an application challenging the decree of the District Judge, High Court (Michel Cotran), Khartoum, dated February 8, 1960, and also the order of summary dismissal made by the Judge of the High Court on June 11, 1960.

The plaintiffs’ action was brought for recovery of £S.500 value of five notes drawn by the applicants and endorsed to respondents. The claim was opposed on the plea that the notes were made without consideration.

 The trial court fixed a date for trial of the suit on a major issue as to whether the notes were with or without consideration.

On the date of trial, defendants’ advocate Zarroug appeared and applied ‘or leave to withdraw without giving his reasons for the withdrawal. Flowever, the trial court allowed him to withdraw and he withdrew from the case. The trial court then proceeded with the suit in the absence of defendants and without giving them an opportunity or notice to defend their case and the result was that plaintiff obtained a decree in their favour. Applicants immediately presented an application for setting aside the decree, which the court issued in favour of the plaintiffs, but the application of the applicants was turned down on the ground that the decree was not a decree in default, but one on the merits.

Hence comes this application to the Court of Appeal. It urges two points, namely:

(1)The trial court was wrong in procec with the suit after accepting the application for withdrawal by the defendants’ advocate without giving notice to defendants in person.

(2) The decree of February 8, 1960, was a default decree because the suit was not decided on the merits as no single piece of evidence was heard in support of the main issue.

The advocate for respondents in answer to the points referred to, section 71(c), Civil Justice Ordinance, with an interpretation from the Indian Law of Procedure, Order 17, rule 2, which deals with suits when parties fail to appear at the trial and submits:

(a) That the trial court was not bound to adjourn the suit in order to give liotice to the applicants on withdrawal of their advocate, and

(b) That the suit was disposed of on the merits because the notes were admitted in pleadings.

In our opinion this is a case for an order of retrial. By practice defen dants were entitled to an opportunity to continue their defence once their pleader was allowed by the court to sithdraw at such a stage. Section 71 (C) reads:

“where on any day to which the hearing of the suit is adjourned the parties or any of them fail to appear, the court may dispose of the suit in one of the modes directed in th chapter or may make such other order as it thinks fit.”

It is obvious that the wording of this section does not apply to the present case. Defendants did, not in fact fail to appear. They were repre sented by Advocate Zarroug who for no reasons in the record asked for leave to withdraw and he was allowed to withdraw.

The proper procedure in such circumstances is the adjournment of the suit and issue of a notice to the defendants in order to give them a fair trial. Failing this the trial would be most unfair and we are of opinion that the applicants are entitled on their point to an order ot retrial.

As regards the other contention, we have no doubt that the trial court had misdirected itself as to the provisions of the law. The record of the suit does not show any piece of evidence in support of the issue for which the suit was fixed for hearing. The decree of February 8, 1960, therefore is neither on the merits nor in default. In either case the court is bound to hear some evidence making at least a prima facie case for the plaintiffs and as the court failed to do so we are unable to affirm its finding and the suit should go back with an order for retrial.

M. A. Abu Rannat C.J.: —I concur.

                                                            (Retrial orderedl)

* Court: M. A. Abu Rannat C. M. A. Hcissib J.