Case No.:

AC.REV-81-1959

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Civil Procedure—Civil Justice Ordinance, s. 65— Appearance “—Unprepared advocate asking for adjournment on day set to frame issues

·  Civil Procedure— Justice Ordinance, s. 68—Liberal application

An appearance on the day set for framing iv by plaintiff’s advocate who applies for adjournment because he is insufficiently briefed is an appearance sufficient to comply with Civil Justice Ordinance, s. 65 but plaintiff exposes himself to a possible order under Civil Justice Ordinnance s. 71 (c).

Obiter dictum: Civil Justice Ordinance, s. 68. should be applied liberally having regard to the time limit.

Judgment

( COURTOF APPEAL)*

CHUNILAL PARMANAND v. OMER ABU AMNA AND ANOThER

AC.REV-81-1959

Advocates: Hanna George for Advocate Sinada,

counsel for plaintiff-applicant

Amin El Tahir El Shibli .... for first defendant-respondent

Ahmed Gumaa for second defendant-respondent

• Court: M. A. Abu Rannat C.J. and M. I. El Nur J.

M. A .Abu Rannat  C.J. June 30. 1959 :—This is an application for revision by the plaintiff in PS-C.S-494.1959.  against the order of dismissal under Civil Justice ordinance s. 68.

The facts are fully stated in the judgment of the court below but it is  necessary for the purpose of this revision to restate the material facts.

On March 29, 1958, the plaintiff sued the defendants for the recovery of ¦s 600 The claim was disputed and pleadings were ordered by the court on July 12, 1958. and the issues were to be framed on October 26, 1958. On October 26. 1958 defendants appoared by their advocates, but the plaintiff for whom Advocate Sinada was appearing in initial stages, appeared by Advocate El 1-ladi Scum who was asked by Advocate Sinada to appear for him Advocate El Hadi Selim applied for adjournment on the ground that he was not fully briefed by Advocate Sinada to proceed with the case The application for adjournment by Advocate El Hadi Scum was rejected and the whole claim was dismissed under Civil Justice Ordinance. s. 65 On December 27, 1958, Advocate Sinada applied on behalf of the plaintiff for setting aside the order of dismissal. The defendants objected to the setting aside of the order of dismissal, main- tuning that it was correctly dismissed under civil  Justice Ordinance s.65. and that it cannot he reopened under Civil Justice Ordinance, s. 68, because the application by the plaintiff was submitted to the court more than 3() clays from the date of dismissal.

In reply . Advocate Sinada contended that Civil Justice Ordinance, s. 65, is not applicable to the facts of this case and that the appropriate section is civil Justice Ordinance, 5. 71 (c). The learned judge found that the dismissal was under Civil Justice Ordinance . S . 65  , and he therefore refused to reopen the case.

civil Justice Ordinance, s 68, is identical with the Indian Code of Civil procedure. Order IX. r. 9. except that there is no time limit in the Indian rule It is therefore important to decide whether the appearance by Advocate EL Hladi Selim is deemed to be appearance within the rule in ( vii Justice Ordinance, s. 6 I think on the Indian authorities the appearance by Advocate El Hadi Selim ought to have been accepted. I refer to the commentary by Mulla. Indian Code of Civil Procedure 643—644 (12th ed. 1953  )where he said:

A pleader appears at the hearing on behalf of a plaintiff, and applies for an adjournment on the ground that he had no time to prepare himself with the case, or on the ground that the papers being left with his senior he could not proceed with the case The application is refused, and the pleader being unable to go on with the case, the suit is  dismissed . Can   it be said under these circumstances that

the plaintiff appeared by a pleader’ It has been held in the under- mentioned cases that the plaintiff must be held to have appeared by a pleader, and that the order of dismissal could not, therefore, be said to be one made under rule 8 so as to entitle the plaintiff to apply under this rule.”

(The cases referred to are Indian authorities which we need not quote here.) I think it is also fitting to quote the words of Sir Charles Cumings L.S. where he commented on Civil Justice Ordinance, s. 68. He said:

“The only cause open to a plaintiff whose suits have been dismissed under Civil Justice Ordinance, s. 65—notice the time limit. If the court is satisfied there was sufficient cause (apply this liberally—always give plaintiff the chance unless there has been deliberate evasion or un excusable fault or neglect), or has given up case and then changed his (mind) . . .' (sic).

In this case, plaintiff’s advocate sent another advocate to appear on  his behalf for the purpose of appearing at the settlement of issues. The advocate who appeared for plaintiff’s advocate applied for adjournment on the ground that he was not fully briefed. The court could have settled the issues and proceeded with the hearing of evidence.

I wish to point out that there is a distinction between appearance at the first stage and appearance at a second or later stage of the case. There has been a lot of confusion in the minds of the courts as to when Civil Justice Ordinance, s. 65 should be applied.

In this case the parties appeared, pleadings were ordered, and a date was fixed for the settlement of issues. In my view in such cases the appropriate section applicable to the case is Civil Justice Ordinance, s. 71 (C). This section is identical with the Indian Code of Civil Procedure, Order XVII, r. 2. It has been decided in India that where the plaintiff has made a case, which, if uncontradicted, would entitle him to a decree, but does not appear at an adjourned hearing, the court should not dismiss a suit under this rule. The reason given is that Civil Justice Ordinance, s. 68, does not apply where the plaintiff has made out a case which, if uncontradicted, would entitle him to the relief claimed. The Allahabad High Court has amended its rules which provided that no party is deemed to have failed to appear if he is represented by a pleader though engaged only to apply for an adjournment. This is on all fours with the facts of this case, and I do not think that the court can preclude the plaintiff from applying for ‘he setting aside of the order of dismissal.

In commenting on Civil Justice Ordinance, s. 71 (c), Sir Charles Cumings L.S. said:

“This is, of course, very important as it refates to non-appearance of either party at any later stage of the suit. The court can dispose

in any mode directed in this chapter or make any order as it thinks fit.”

This shows that if there is not sufficient cause, or if there is neglect or evasion by the plaintiff, the court should dismiss the claim under Civil Justice Ordinance, s. 6 otherwise the court should apply Civil Justice Ordinance, s. 72 (c), by making the plaintiff pay costs or any other order as it thinks fit.

In our view the order of dismissal dated February 14, 1959, should b set aside, and the hearing of the suit be continued.

A. I. El Nur  J. June 30, 1959:—I concur