ZENOP KHATCHEKIAN, Appellant-Defendant v. MOHAMMED OMER BAZAREA, Respondent-Plaintiff
Appeal-Error not causing harm-Appeal dismissed despite error=Time allowed
·Court: Dun C.J., Peacock and Williamson JJ.
for appearance at trial insufficient-No real defence to action-Appeal.
dismissed
Civil Practice and Procedure-Summons-lnadequate notice of date set for trlol
Appellant, . who .lived in Khartoum, was given. one week notice to
attend a court in Suakin and defend a claim against him for breach of
contract. Judgment was given against him in default of appearance. He
appealed on the ground that the time given to him was unreasonably short ..
Held: That although the time given to the appellant to attend was
unreasonably short, the court, being absolutely satisfied that the appellant
had no real defence to the claim, would decline to impose upon the
parties the expense and inconvenience of a rehearing, to which the appellant
would have otherwise been entitled under section 49 C.J.O. 1900.
Civil Justice Ordinance 1900, s. 49.
Appeal
Advocates: Mr. Frangoudis ......................... for appellant.
June 9, 1920, Dun C. J.: This an appeal against a decree of
the court of the Red Sea Province sitting at Suakin, whereby damages
for -breach of a contract for the sale of soap were awarded against
the appellant Zenop Khatchekian, at the suit of the respondent,
Mohammed Orner Bazarea. The appeal is reported only on the issue
whether rehearing should be ordered on the ground that the appellant
was not given sufficient notice of the date of the, hearing .
. There was also an application to have the judgment of the
Province Court set aside under section 49 of the Civil Justice Ordi-
nance 19001, on the ground that the appellant, who was defendant in
the court below, was prevented by sufficient cause from appearing. at
the hearing. An application to that effect was made by letter to the
province judge, who refused it. In my opinion, the notice given to
the appellant, who lives in Khartoum, on January 1 or 2 to appear at
Suakin on January 8 was unreasonably short, and if I. were not
absolutely satisfied that the appellant had no real defence to the
action, I should have been compelled to hold that he was entitled
to a rehearing. But as the two lines of defence disclosed are clearly
v unfounded, I decline to impose on the parties the expense and in-
convenience of a rehearing. It was argued that, if the appellant had
an opportunity of going into the witness box, his evidence might
Corresponding to s. 69 Civil Justice Ordinance 1929.
induce the judge who reheard the case to arrive at a different con-I
elusion. I do not agree; he might have tried to put a different
interpretation on the documents we have seen, but where the parties
differ as to the meaning of documents, it rests with the court to
interpret them, and as I think the meaning is clear, I do not think
the appellant could gain any advantage by going into the witness box.
Peacock J.: I agree. The appellant asks for rehearing on the
ground that the time allowed for him to appear at the trial was
insufficient. The time was short, but the judge, having regard among
other considerations to the fact that the decision was on the con-
struction of a written contract, refused to alter his decision. Having
heard the advocate for the appellant I am not prepared to say that
the judge under the circumstances was not justified in his refusal,
Appeal dismissed