Case No.:

(AC-Revison-70-1959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Civil practice and procedure—Effect of non-appearance of advocate-Res judicata dismissal of case for non-appearance—--Civil Justice Ordinance, SS. 40, 65, 68, 214,217,266

·  Landlord and tenant-Claim for arrears of rent Recurring cause of action—Inte pretation-“Enhanced rent”

Failure of a client’s advocate to appear at the hearing of a cause is tanta- mount to non-appearance by the cliefit himself. Where a suit is dismissed on account of non-appearance by the plaintiff the matter is res judicata and a fresh suit cannot be maintained for the same cause of action. While the dis missal of a suit for default cannot debar the plaintiff from bringing a fresh Suit for enhancement of rent, the term ‘ enhanced rent “ cannot be interpreted as “ accumulated rent “; successive breaches of a covenant to pay rent give rise to separate causes of action. Aliter where there is a right to possession, when so long as thc right subsists it gives rise to a Continuous chain of causes of action, so that an adjudication upon one does not bar a subsequent claim.

a

Judgment

(COURT OF APPFAI)*

DAIRAT EL MAHDI v. A GADIR ABU REGAILA

(AC-Revison-70-1959)

Revision

Advocates: Dafa’alla el Hag Yousif………for the applicants.

                   Henry Riad………………….. for the respondent.

October 5, 1959. Abdel Mageed Imam, P.J.: —This is an application br revision against the order of the judge of the High Court, Khartoum, summarily dismissing an application submitted on behalf of the applicants (and plaintiffs) to proceed with the action in CS-656-58Khartoum District High Court, or to set aside an order of dismissal under section 6ç of the Civil Justice Ordinance issued in CS-1423-56 Omdurman District Court on the ground that the said applicants are not entitled to either of the above- mentioned reliefs.

The facts relevant to the disposal of this application are as follows:

(i) The applicants (and plaintiffs)—Dairat El Mahdi—were suing for and on behalf of the registered owner Sir El Sayed Abdel Rahman Pasha El Mahdi, vide CS-1423-56 Omdurman District Court, for:

(a) recovery of the sum of £S.189.75om/ms Arrears of rent up to October 1956.

(b) recovery of possession of Shop No. 605/3/4 Omdurman from respondent (and defendant) Abdel Gadir Abu Regaila.

The tenancy was apparently a statutory tenancy for a claimed monthly standard rent of £S.12 The respondent claimed full settlement of the arrears, alleged that the standard rent was £S.7 and counterclaimed for recovery of £S.3o rent difference. The case was fixed for hearing on February 21, 1957. On the appearance of the plaintiffs’ advocate alone hearing was adjourned to March 21, 1957. The court made the following orders: “ Hearing fees to be paid within a week. On failure, plaintiffs’ case is (to be) struck off the list.” On February 28, 1957 (i.e., within the weekl no hearing fees were paid, and no order striking the case off the record was made. But on March 21, 1957, the date conditionally fixed for hearing, the defendant this time, and not the plaintiffs, appeared. The suit was dismissed under section 6 of the Civil Justice Ordinance.

(ii) On November15,1958, a fresh action was brought in Khartoum District High Court—see CS-656-58 for: (a) recovery of possession of the same shop, and (b) arrears amounting to £S.447.15om/ms.Igom/ms up tO October 1958.

On an objection raised on behalf of the defendant, the court ruled:

‘It is evident from the particulars filed that the causes of action are partially one and the same because the rents in arrears are partly covered by the Omdurman District Court case which was dismissed, namely the arrears up to October 1956. As such the suit is partially res judicata. Dismissal under section 6ç of the Civil Justice Ordinance is sufficient adjudication to debar this court from proceeding with this case. The remedy available for the plaintiffs a long time ago was to apply for setting aside the order of dismissal. This they did not do

Accordingly the court seemed to have refused to proceed, and directed the plaintiffs to raise an action for eviction and recovery of £S.2o5.ooom/ms arrears accruing due after the dismissal of the first suit (CS-1919-56 and not CS-1423-56 as wrongly stated all through the record).

(iii) On March 5 , 1959, the plaintiffs applied for revision of the above-mentioned ruling and on March 9, 1959 this application was summarily dismissed by the judge of the High Court, Khartoum, on the grounds that CS-1919-56 was dismissed under section 6 of the Civil Justice Ordinance and that the plaintiffs are debarred by section 68 of the Civil Justice Ordinance from bringing a fresh action.

The present application is directed against this order on the following grounds: (a) That the District Judge (High Court) was wrong in treating the dismissal under section 6 of the Civil Justice Ordinance as res judicata under section 40 of the Civil Justice Ordinance. (b) ... it is inequitable to deprive the plain’tiffs of their right to sue the defendant because their advocate failed to appear on the date fixed for hearing

These two grounds were disclosed in applicants’ petition submitted to this court. During the hearing of their application they submitted two more: (c) That the original dismissal in the Omdurman suit was for non-payment of fees. (d) That they, in spite of section 65 of the Civil Justice Ordinance, are entitled to raise a fresh suit for recovery of possession and also for the arrears which were claimed in the said suit, basing their sub mission on the authority of Mulla, p. 664, and taking the meaning of the words “enhanced rent” to be “accumulated rent.”

These grounds will be considered one after another as is shown hereunder (.i it is cJc, from the ruling of the District Judge (High Court) Khartoum, tli.it hc did not consider the dismissal in CS-1919-56 Omdurman as one falling under section 40 of Ihc vii Justice Ordinance, but one under Section 65 of the Civil Justice Ordinance, and that in spite of the erroneous expressions used by him. The words res judicata mentioned were evidently used to mean the effect, which they produce, i.e., barring an action, and not in their true legal meaning as being the cause that produces this effect. For he states: “As such the suit is partially res judicata, i.e., barred. Dismissal under section 65 of the Civil Justice Ordinance is sufficient adjudication to debar this court from proceeding with this case, i.e., because it is a fresh suit based on the same cause.” And more clearly: “The remedy available for the plaintiffs a long time ago was to apply for setting aside the order of dismissal.” The term res judicata is more often erroneously used in the above sense even in connection with section 40 of the Civil Justic Ordinance when it is said that “a case is res judicata” meaning thereby that it is barred being “a thing adjudicated upon” by a competent courtl i.e., heard and finally decided.

However, the crucial point is not the muddle in District Judge’s (High Court) own mind about the use of legal terminology, but the consideration of the legal problem, which he was tackling. The problem in this case is whether he can hear and determine a fresh case based on the same cause of action after an order of dismissal for non-appearance of the plaintiffs (admitting that such was the case) under section 6 of the Civil Justice Ordinance.

(b) The applicants contend that they (the plaintiffs) ought not in equity to be made responsible and penalised for the fault of their representing advocate. I think that this contention cannot be upheld. To exempt himself for the working of section 65 of the Civil Justice Ordinance, a plaintiff must have appeared in person or by a duly authorised agent.

“Appearance “—A plaintiff or a defendant will be deemed to have “appeared on the day fixed for the hearing of the suit, if he appears

(i) In person, or

(2) By a pleader either himself duly instructed and able tq answer all material questions relating to the suit or accompanied by some person able to answer such questions (Mulla p. 643)

Nothing short of this can be considered as appearance in the eyes of the law. In this respect, therefore, failure of appearance by the plaintiffs’ advocate is tantamount to failure of appearance of the plaintiff himself.

(c) Under this head it is submitted that it amounts to saying that the order of dismissal, if at all, ought to have been one for non-payment of hearing fees and not one for non-appearance; for the order in CS- Omdurman dated March 21, 1957, is clear. It says, “Suit dismissed under section 6 of the Civil Justice Ordinance.”

This contention would have been correct were it mandatory on the court to stop all its activity in the event of non-payment of fees and/or to dismiss the suit altogethçr; for had this been the position, any subsequent order by the court would be null and void.

As I see jt, I think there is no such provision in the Civil Justice Ordinance which makes it incumbent on a court to dismiss a case for non-payment of hearing fees, or to make a final order, pending such payment, debarring it from dealing with interlocutory matters other than the hearing itself. Section 1,Order XXI, First Schedule, reads:

“Where under this ordinance it is provided that a fee be paid to the court upon the making of any application . . . Or for the carrying out of any proceeding such application shall not be accepted and such

Proceeding shall not be issued, done or carried out until the fee prescribed has been paid.”

This section shows that the court is prevented only from proceeding with the hearing of the case, if the particular instance was such, and not from the making of any other order. For the court may, e.g., extend the time for payment under section 214 of the Civil Justice Ordinance.

In this particular case, the plaintiffs were allowed a week’s time to pay, and a date, conditional upon such payment, was fixed for hearing. The plaintiffs failed to pay at the time limit or at any time subsequent thereto. They also failed to appear on the day already fixed for hearing. The court was entitled to dismiss the case under section 6 of the same Ordinance. Had the court’s attention been drawn to their power of striking the case off the list on the expiry of the time allowed for payment, the plaintiffs might have been luckier; for then they would not have been entrapped within the clutches of section 65 nor for that matter section 217, and could have applied for the restoration of the case to the list, at any time, upon payment, as long as their cause of action was not barred by lapse of time.

(d) In the Shorter Oxford Dictionary the meaning of the word “enhance” is: “to raise, increase (prices, charges), etc., and to raise or increase in price, value, importance, attractiveness, etc.”

In Stroud’s Judicial Dictionary the following data is given: “‘Enhanced price,’ Irish Land Act, 1903(3 Edw. 7,e, 37), S. 43 (3): see Re Warden [1906] I lr. R. 444. See Congested Di Board v. Att.-Gen. [1922] I Ir.R.155.” None of these references is available.

Under the heading “Enhanced punishment for certain offences, etc.” section 75of the Indian Penal Code provides:

“Whoever, having been convicted,—

(a) by a court in India of an offence puñfshable under Chapter

XII Or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards,

(b) Shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to transportation for life, or to imprisonment of either description for a term which may extend to ten years.” Under the heading “Assessment of Loss or enhancement and of com pensation,” section 19 (i) of the Town Replanning Ordinance reads:

“The Commission shall assess the extent to which every person interested is affected by any loss or enhancement in the value of his land resulting from any order made under section 18

and subsection (2) of the same section:

“In the case of any person interested who has lost the whole of his land the Commission shall assess his loss at the value of ‘the land at the date of publication of the notice under section 3 and in all other cases shall assess the loss or enhancement at the difference between the value of the land at that date and the value of the same land or of any land representing it after the scheme has been carried into effect.”

Now Mulla in his explanation of the phrase fresh suit in respect of the same cause of action” lays it down:

“Similarly if a suit for partition is dismissed for default a fresh suit for partition would not be debarred under this rule, for the cause of action for partition is recurring so long as the properties remained joint. Similarly if A sues B for the rent of certain lands and the suit is dismissed for default of A’s appearance under r. 8, the dismissal does not operate as a bar to a suit by A against B for enhanced rent or for possession of the lands”: The Code of Civil Procedure, 12th ed., p. 644.

Before dealing with the meaning of the word “enhance” let it be pointed out from the very start that the operation of section 68 (i) of the Civil Justice Ordinance is to debar the raising of any fresh suit in respect of the same cause of action. The significance of the word “same” should be grasped. It indicates that the original cause before and the subsequent cause after the order of dismissal must be identical. If they are identical the right to sue is barred forever. This is true in the case of causes of action which are one and indivisible, e.g., recovery of a simple debt. Following this exposition it can easily be seen that it cannot be applied to cases in which the cause is not a sole cause but one which is recurring, i.e., one which returns or comes back, ever renewing itself and giving birth at every infinitesimal fraction of time to identical causes or rights that are dependent thereon; e.g., so-called incidents of ownership. An ill tion is supplied by Mulla in the above-mentioned quotation in the example of a partition case. In this case, so long as the properties remain joined. from the very start of the proceedings. all through to the time of dismissal and thereafter, there is a chain of causes of action vested in the joint owner to have the land partitioned. So when a joint-owner whose suit for partition is dismissed for non-appearance brings a fresh action, it cannot be said that that action w hased on the same cause. To put it cate gorically, such claimant cart, even before the ink with which the order of dismissal was writt4 dues, start a fresh suit, his only penalty being the loss of tjme and costs in the toi one. It should be made clear here that all recurring cai.ises before the order of dismissal are debarred by such order. In effect, therefore, the partitionet will be basing his suit on a new cause arising immediately after the dismissal, which cause, though the same in nature as the one that was based, is yet different in point of time. And it is not maintained that such order has any prospective effect.

What applied to a partition case mutatis mutandis applied to a case of recovery of land, for every moment an owner of land retains his ownership he is entitled thereby to its recovery; within the limitation period, of course.

But can such owner recover rents that were claimed in the former action before the order of dismissal? The answer to this question lies in the answer to another question, to wit, what is it that gives rise to the cause of action in a claim for recovery of rent? Certainly it is the breach of the covenant to pay, contractual or statutory. A breach of the covenant to pay rent is not a recurring cause of action, unlike that in a partition case. It is periodic, and not momentary. It arises once a rent falls due and is not paid. Therefore, though the source of the cause of action is one, it gives rise to a succession of separate rights to claim. A landlord cannot raise a fresh suit claiming recovery of rents that were due before -an order of dismissal for default, because then he will be claiming exact.ly the same rents based on identically the same causes of action. But obviously he is not barred from claiming rents that become due after the order of dis missal; for now he will be claiming different rents based on different causes of action that attach themselves to each separate claim of rent when it so becomes due. According to this analysis a landlord is debarred from claim ing accumulated rents in a sense which includes those that were ripe prior to an order of dismissal for default under section 65 of the Civil Justice Ordinance. But can he claim, “enhanced” rent?

What is “enhanced” rent? From the above-quoted references the word means to raise or increase, whether it is an increase in the value of land subsequent to a replanning scheme or in respect of some punishment for some aggravating circumstances, etc., etc. It is an increase given rise to by some ulterior circumstances connected with the subject matter in question. In the case of rent it means increase of rent, which may arise by agreement of the parties or by operation of law. It Iannot in any way mean accumulated rent as submitted by the learned advocate for the appellants. In Gopal Lal v. TaJ Muhammad (1927) 7 Patna 28, from which Mulla’s above-mentioned quotation wa taken, the question before the Patna High Court was whether ‘ the dismissal of the previous suit under Order 9.

r. 8, would debar the plaintiff from maintaining the present suit for enhancement of rent of the same tenure—section 9 of the Bengal Tenancy Act provides that when the rent of a tenure-holder had been enhanced by the court or by contract it shall not again be enhanced by the court during the fifteen years next following the d on which it has been so enhanced.” It was held that the dismissal of a suit for default couldn’t debar the plaintiff from bringing a fresh suit for enhancement of rent. The reasons given for the decision were that in this case there had been no enhancement of rent either by the court or by contract, and that therefore a fresh suit would not be debarred. The court said: “The cause of action in the present suit cannot be considered to be the same as the cause of action in the previous suit. The learned Munsif observed that the cause of action in the previous suit was that the rent of the tenure had not been enhanced within the fifteen years, and in this suit also the cause of action is that the rent had not been enhanced within fifteen years; but he overlooked the fact that the period of fifteen years in the present suit was different from the period of fifteen years in the prior suit.”

It is clear that this Indian case is an illustration and not an exception to the principle contained in Order 9 (equivalent to section 68 (1)), as one is apt to misunderstand it from the wording of the ratio decidendi. From the facts of the case the cause of action for an increase is periodic. It arises every fifteen years. It springs from agreement or by order of the court. There was no such increase in the former case. Surely a new and different right attaches to the second period and gives rise to a “different” cause of action. The position is exactly the same as in periodic claims of arrears of rent as explained above. Even if there was an increase in the former suit, e.g., by agreement, which the plaintiff lost because of his default, he will still be entitled to the subsequent increase, which becomes due after the order of dismissal. What applies to a contractual tenancy in so far as the application of section 68 (1) of the Civil Justice Ordinance is concerned, mutatis mutandis applies to a statutory tenancy; the cause of action that gives rise to recovery of arrears of rent in a statutory tenancy is the statutory breach by the tenant to pay the standard rent.

From the above it can be seen that all four grounds of appeal cannot be sustained. The appellants (and plaintiffs) are debarred from raising a fresh suit by sectiOn 68 (1) as minutely explained above. They cannot avail themselves and have the former suit re.opened as section 68 (2) as mandatory or peremptory.

“Where no application to set aside a dismissal is made within the period of limitation, the court has no inherent power under section i (equivalent to our section 226 of the Civil Justice Ordinance) to set aside the dismissal after the expiry of the period “ : Mulla, p. 648.

Though this is the rule there are conflicting decisions in the Indian courts about its being absolute. The Patna High Court, following an earlier decision of the Calcutta High Court, maintains this absolutism on the ground that to allow a review, with a view to extending time, would be an invasion of the rule of limitation. The Calcutta High Court, in a later case, apparently abandoned its former orthodoxy and allowed a review under Order 47, r.1. Mulla enumerates this as one of the incidents in respect of which the court can exercise its inherent power—see under (n), p. 480. With all respect to the Indian views I think this court is not bound to follow one or the other. Our section 226 of the Civil Justice Ordinance is very extensive (like section 151 its Indian equivalent), Under this section the court can exercise its power to do justice, and the only fetter one can think of is that this exercise must not clash with the expre provisions of the law.

“Inherent jurisdiction must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be involved”: Mulla, p. 477.

This court has freely, but judiciously, exercised its inherent power in connection with extensions of time limits, treating each individual case on its own merits, It can exercise these powers in connection with extend ing time under section 68 (2). In this respect it should be guided by the principle that it is for the ends of justice that there should be an end to lifigation.

Applying this principle to the particular facts of the case, I am of opinion that its merits do not warrant the exercise of this power. It seems to me that they might not have even warranted the setting aside of the order of dismissal within the time limit. To set aside an order of dis missal, a defaulter must show sufficient cause and the court, on equitable considerations, will relax the rule and allow him to succeed upon showing reasonable cause only: see Mulla, p. 646. The plaintiffs’ advocate showed neither. In fact he had no excuse whatever, He even did not attempt to make any such plication. The order of dismissal was made on March 21 1957. The first attempt to revive the suit was made by raising CS-656-58 District Court (High Court) on November13,1958, i.e., after nearly eight months. The first excuse ever made was the faint one raised by applicants’ advocate that no notification was given of the order of dismissal. The court was under no duty to notify in this case. The plaintiffs’ advocate’s failure to apply to set aside the default decree amounts to nothing but gross negligence.. Does this negligence bind his principal? The prevailing principle is that each case must be decided on its own merits.

“Each case must be decided on its own merits and the queston to be considered must be whether there was a bona fide and reasonable attempt by the counsel to put in an appearance within a reasonable time of its being called.     . . . At the same time the court cannot be expected to give unlimited or unreasonable latitude to counsel in this respect . . .. The matter, therefore, is one of exercise of judicious discretion in each case” Abdul Aziz v. Pun jab National Bank, A.I.R. (1929) Lahore 96. The same principle applies to the case of negligence on the part of the plaintiffs:

see Shamdasani v. Central Bank, AIR. (1938) Bomb. 431.

“It is a very serious matter to dismiss a man’s suit or summons, or whatever it may be, without hearing, and that course ought not to be adopted unless the court is really satisfied that justice so requires. Thus the court should refuse to restore a matter only if there is gross negligence or gross carelessness.”

It is noteworthy that application to restore in these two cases was made within the time limit prescribed. The court could refuse to restore within the time limit if there is gross negligence. A fortiori after an unreasonable expiration of the time limit.

For the above reasons explained, I think this application must be dis missed with costs. The respondent is to be awarded costs.

M. A. Abu Rannat C.J.: —l concur.

                                                                        (Applecation dismissed)

Court: M.A. Abu Rannat C.J. and Abd Mageed Imam P.J.