Chand v Majid and Another (C.A. 17/1933.) [1933] EACJ 5 (1 January 1933)

Full Case Text

#### APPELLATE CIVIL.

## Before SIR JACOB BARTH, C. J.

# PARKASH CHAND (Appellant) (Original Plaintiff)

$\boldsymbol{v}$ .

# ABDUL MAJID AND ANOTHER (Respondents) (Original (Defendants).

### C. A. $17/1933$ .

- Civil Procedure Rules, Order XXXIII—Summary procedure— Indian Limitation Act, 1877, Article 5, limitation in case of summary procedure on negotiable instruments. - Held (3-7-33).—That the procedure under the Order is entirely different from that contained in Cap. 39 of the Code of Civil Procedure (India) of 1882, and also from that contained in Order 33 as originally enacted invoked.

Mangat for Appellant.

Trivedi for Respondents.

In Civil Case No. 1265/1933 of the Resident Magistrate's Court, Nairobi, which was filed on 24-4-33, plaintiff sued on a promissory note dated 16-11-31. The Court held that Article 5 of the Indian Limitation Act, 1877, was applicable, and that the suit was barred by limitation. From that decision the plaintiff appealed.

Marginal notes and headings are not law. Section 106, Civil Procedure Ordinance, 1924. Article 5, Limitation Act, refers to Cap. 39, Civil Procedure Code, 1882, dealing with negotiable instruments. These provisions do not correspond with Order XXXIII, Civil Procedure Rules. Article 159, Limitation Act, does not apply under Order XXXIII. Under that Order, suit is filed and summary proceedings do not arise until after application. In this case no application was filed under Rule 4. Rule 8 $(b)$ : order should have been for leave to defend. Article 5 applies to suits. Section 4, Limitation Act. Nothing in plaint to show summary procedure. Section 3, Limitation Act: suit does not include appeal or application. Court has treated application as a suit.

Trivedi.—Section 83, Civil Procedure Ordinance, sub-section (2) (f). Order XXXIII, Rule 2, provides for summary procedure. Article 5 deals with summary procedure. Rule 8 (b) does not apply to this case. No application required to raise objection under Limitation Act; 7 E. A. L. R. 192. Order XXII provides for withdrawal of suit.

Before LANE, Ag. J. Before LANE, Ag. J. This is an appeal from a judgment of the learned Residenta Magistrate of Nairobi Idismissing a suit on the ground that it came within Article 5 of the applied Indian Limitation

Act, 1877. ARIAN BECHAR (Respondent) (Original Defendant), (Original Defendant), The suit was lodgedgen, the 24th April, 1933, by way of plaint under the ordinary procedure to recover Sh. 630/02, the Balance of the amount due ounder and mand promissory in ofe Tdated 146th November 1931 ran Notice Pollamotion lunders Order XXXIII, Rules 2 and 3, was lodged with an affidavit in support.

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action arose at Jinja.

affile is soon notical addition in the procedure under the Order is entirely different from that contained in Cap. XXXIX of the Code of civil Procedure of 1882, and indeed from that contained in Order Civil Procedure of 18 esw ofthe tappeal is raillowed swith loss of the fault is remitted to out of jurisdiction. Distance of the desired are distanced as a state of the oriental distance of the oriental distance of the oriental distance of the oriental distance of the oriental distance of the oriental distance of Person passing through a country is subject to jurisdiction of courts in that country. Doctrine of territorial dominion. $\mathcal{C}(\mathcal{A},\mathcal{A})$

Phodic -Local law limiting jurisdiction of courts must apply. Fernandes v. Ray, 25 Bombay 176. Must in any event be reason for action being taken outside normal court. Logan v. Bank of England (1906), K. B. D. 141.