(COURT OF APPEAL)

DARFUR AMARI COMPANY v. ISMAIL BALDO

AC-REV-510-1969

Principles

  Civil Procedure—Failure to submit written statement—Civil Justice Ordinance. Ord. 11, r. 14—Hearing is meant to be hearing of the plaintiff’s case—Not both parties

The court would be justified in pronouncing judgment against a defendant according to the Civil Justice Ordinance. Ord. 11, r. 14, when, at any time after hearing of the plaintiff’s case, it has ordered him to submit his statement of defence and he has failed to do so. Hearing under above order does not mean hearing of both parties and their witnesses, because in such a case the judgment would be on merits.

Advocate: Mubarak Ahmed Salih ………………………….. for the applicant

Judgment

Tawfik Abdel Mageed J. July 10, 197o :—This is an application for revision against the decision of the learned District Judge, Wad Medani, whereby he passed a judgment in favour of the respondent in the counterclaim for £S.2,650.177m/ms. with costs and stayed procedure in respect of the original claim. In doing so, the learned District Judge has invoked the provision of the Civil Justice Ordinance, Ord. 11, r. 14, First Schedule, which reads:

"Where any party from whom written statement is so required fails to present it within the time fixed by the court, the court may pronounce judgment against him or make  such order in relation to the suit as it think fit."

A similar application for revision against that decision made to His Honor the Province Judge, Blue Nile Circuit, was summarily dismissed because the application was time-barred (HC-REV-186-1969).

Hence, this application for revision is made to this court against the decision of the learned District Judge, Wad Medani, above mentioned. In the circumstances of this case this court has to consider two questions,

Viz.:

(a) Whether this application could be entertained though it was submitted beyond the time limited for such application.

(b) Whether it was bad in law to pronounce a judgment in favour of the counterclaimant-respondent under the Civil Justice Ordinance, Ord. 11, r. 14, First Schedule.

As to the first of the two above questions, I would like to say that the application for revision to this court was in time. The decision of His Honor the Province Judge in HC-REV-186-1969 was on July 20, 1969 and the application for revision AC-REV-510-1969 to this court was on August 3, 1969.

But the question is whether His Honor the Province Judge ought to have entertained the application for revision in spite of its submission to His Honor after the expiration of 45 days from the decision of the court of first instance. This court is of the opinion that notwithstanding the wording of the Civil Justice Ordinance, Ord. XII, r. 1, courts have the discretion to enlarge the time so fixed. The discretion is the logical outcome of the Civil Justice Ordinance, s. 214, read in conjunction with section 213 of the same Ordinance. It is submitted that the applicant has forwarded fairly sufficient reasons for his failure to enter appearance on that specific date.

This court has, on many occasions, made it clear that a failure of one of the parties to a suit to submit a written statement required or ordered by a court, does not per se justify in all cases a pronouncement of a judgment against that defaulting party. The precedents of this court have reduced the effect of the Civil Justice Ordinance, Ord. 11, r. 14, First Schedule to cases where a prima fade case is proved against the defaulting party. In Awad Mukhtar v. El Rayah Ibrahim (1969) S.L.J.R. 36, it was held by the Court of Appeal that:

“even if the District Judge who issued the decree under revision had powers under the Civil Justice Ordinance, Ord. 11, r. 14, he was certainly wrong in issuing that decree in favour of plaintiff without calling on him to prove his claim.”

The Court of Appeal made it clear that the said rules are rules of pleadings and as such they were not applicable to suits before District Judges of the second class. The court of first instance is not justified in pronouncing a judgment against a defendant who fails to appear or fail to submit his written statement of defence as directed by the court. However, the court would be justified under the said rule, when it pronounces such judgment against a defendant, where at any time after the hearing it has ordered him to submit his statement of defence and he has failed to do so; for then the assumption is that the plaintiff has made out a prima facie case—Universal Cotton Co. Ltd. V. Pinto Cotton Co. Ltd. (1959) S.L.J.R. 33. This decision could be understood and be appreciated if “the hearing” is meant to be “the hearing” of plaintiff’s case.

Otherwise, if the hearing is meant to be the complete hearing of both parties and their witnesses, if any, the reference to this rule becomes meaningless; for in such cases the judgment will be on merits, and that may not be pronounced against the defaulting party.

In the case subject of this revision, the learned District Judge has stayed the proceedings in respect of the claim and entered judgment against the defaulting plaintiff in respect of the counterclaim. This procedure has indeed led the court below to an illogical situation, viz, the pronouncement or a judgment in the counterclaim while the claim itself is still pending.

This court is therefore of the opinion that the decree in the counter claim should be set aside and the court below should be directed to resume the hearing of the whole case.

In the peculiar circumstances of this case, where the applicant-plaintiff was the party to blame for the delay of disposal of this Suit, it is only fair to order that the applicant should pay to the defendant-respondent costs taxed at the rate of £S.20.000m/ms.

Mahdi Mohamed Ahmed J. August 9, 1970:—I agree. This court has held again and again that judgment under Ord. 11, r. 14, cannot be passed unless there was in the record sufficient evidence to enable the court to pronounce such judgment. Universal Cotton Co. Ltd. v. Pinto Cotton Co Ltd. (1959) S.L.J.R. 33 and Apostolou Enterprises Ltd. v. Colgate Palmolive Ltd. (1966) S.L.J.R. 38. In the case Subject-matter of this revision, respondent did not lead any evidence to substantiate his claim. Hence it was wrong to pass judgment against applicant in such circumstances.