Eksteen v Bukua (Civil Appeal No. 1 of 1951) [1951] EACA 328 (1 January 1951)

# APPELLATE CIVIL

#### Before WINDHAM, J.

### J. C. EKSTEEN, Appellant (Original Defendant)

## KUTOSI s/o BUKUA, Respondent (Original Plaintiff)

#### Civil Appeal No. 1 of 1951

(Appeal from decision of R. M.'s Court at Eldoret—R. A. Campbell, Esq.)

Ex parte decree—No appearance and no defence filed—Application to set aside— Civil Procedure Rules, Order IX, rule 17-Order IX, rule 4-Order 48, rule 2 (1)-Order IX rules 10 and 24-Liquidated demand.

A plaint was filed by an African claiming Sh. 194 for "making and burning 11,800 bricks on defendant's own request at Sergoit". Ex parte judgment was given by the lower court in default of entry of appearance and filing a defence. The lower court refused an application to set aside the decree the only reason being that advocate overlooked the date for entry of appearance; on appeal,

Held $(15-5-51)$ .—(1) If an appearance had been entered and defence filed, the plaintiff ought to have been called formally to prove his claim, and the words "may" in O. IX r. 17 (1) mean "shall" in that contingency.

(2) Where no appearance has been entered and no defence filed if the summons has been duly served and if the claim is "liquidated" the Court can enter judgment forthwith<br>under O. IX r. 4, or the Registrar may do so under O.48 r. 2 (1) without formal evidence.

(3) The present suit was for a liquidated demand.

(4) A plaint must be construed reasonably and if drafted by a layman not over strictly.

(5) Mere oversight on the part of an advocate or clerk cannot of itself be held to constitute "sufficient cause" to set aside a judgment under O. IX r. 24.

(6) If the Court is of opinion that there was a reasonable attempt by the pleader to. appear or be represented, but that he was unable to do so because of causes which he could not reasonably control, then it must be held that there is good cause for restoration.

(7) In the result the appeal was dismissed.

Cases referred to: Smith v. Buchan. 58 L. T. 710; Young v. Thomas (1892) 2 Ch. 135: Abdul Aziz v. Punjab National Bank, Ltd. (1929) 10 Lahore 570.

Shaw for appellant.

Respondent present, unrepresented.

Judgment.—This is an appeal against a judgment and decree entered ex parte in favour of the plaintiff—respondent against the defendant—appellant for the sum Sh. 194 with interest and costs. The amount was claimed to be due to the plaintiff "for making and burning 11,800 bricks on the defendant's own request at Sergoit". The defendant filed no defence and did not even enter an appearance. Judgment was accordingly entered by default. The defendant appealed unsuccessfully to the Magistrate's Court for the setting aside of the judgment and decree, and the present appeal is against this refusal to set aside as well as against the original judgment and decree.

Two grounds of appeal have been argued. First it is contended that the learned Magistrate erred in entering the ex parte judgment without requiring the plaintiff formally to prove his claim from the witness box. Now if an appearance had been entered and a defence filed, and if the only failure on the defendant's part had been a failure to appear, either personally or through his<br>advocate, on the day when the suit was called on for hearing, then I think the plaintiff ought properly to have been called upon formally to prove his claim that is to say, to prove everything the burden of proof of which, on the pleadings, lay on him in order to establish his claim. Order IX, rule 17 (1) of the Civil Procedure (Revised) Rules, 1948, which provides that in such a case as that the court may "proceed *ex parte*", does not, it is true, expressly lay down that the plaintiff shall formally prove his case but such is the proper practice, and it is the practice laid down in England by Order 36, rule 31, which provides that, "If, when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies on him". The "may" in this rule means "shall" where a plaintiff desires judgment to be entered in his favour.

The position, however, is entirely different where, as in the present case, no defence has been filed, nor even any appearance entered. Such a case is dealt with, and was in the present case dealt with, under Order IX, rule 4 of the Civil Procedure (Revised) Rules, 1948, which provides that "Where the plaint is drawn claiming a liquidated demand and the defendant fails to enter an appearance on or before the day fixed in the summons ... the Court, may subject to the provisions of rule 3 hereof, enter judgment for any sum not exceeding the sum claimed in the plaint together with interest ... and costs". The rule 3 referred to provides that if required by the court the plaintiff shall first file an affidavit of service of summons. In the present case the court did not so require, being satisfied that the summons had been duly served, a fact which is admitted by the defendant. Judgment may alternatively be entered by the Registrar in such a case under Order XLVIII, rule 2 (1). Neither in Order IX, rule 4, nor in Order XLVIII, rule 2 (1) is it expressly laid down whether or not the plaintiff shall first formally prove his case, but clearly there is no necessity for him to do so,<br>provided of course that the claim is for a "liquidated amount" or is a "liquidated demand", that being necessary in order to bring it within those rules. In England Order 27, rule 2 of the Rules of the Supreme Court provides that in claims for a debt or liquidated demand where no defence has been delivered, the plaintiff may, at the expiration of the time limited for its delivery, enter final judgment for the amount claimed with costs, and under rule 11 of the same Order the plaintiff may, even in claims that are not for a liquidated demand (save where special provision is made for particular kinds of claims) "set down the action on motion for judgment and such judgment shall be given as upon the statement of claim the court or a judge shall consider the plaintiff to be entitled". In all such cases, whether the claim is for a liquidated amount or falls under rule 11 judgment is given as claimed in the plaint, without formal proof by the plaintiff. It has even been decided at a meeting of the judges of the Supreme Court in England that in such cases not only need not the plaintiff prove his case but that the court cannot receive evidence on it but must give judgment according to the pleadings alone. (Smith v. Buchan, 58 L. T. 710; Young v. Thomas, 1892 2 Cap. 135; cited in Annual Practice, 1949, Vol. 1 at page 474.) Not less is this the case where not only has no defence been delivered but not even an appearance has been entered, which case is dealt with in Order 13, rule 3 of the Rules of the Supreme Court.

It is contended in the present case that the claim was not a "liquidated demand" because the plaint was not precise enough and did not specifically allege that the sum claimed was due on a contract or state how the figure of Sh. 194 was arrived at. Now for a claim to constitute a liquidated demand it is sufficient that it should state the amount demanded and give sufficient particulars of the contract to disclose its nature. The claim in the present case which was drawn up by an African who then, as now, was not legally represented, states, as the facts constituting the cause of action and when it arose, as follows: "Refused to pay Sh. 194 for making and burning 11,800 bricks during August to October, 1950". And as the relief claimed, it states: "Sh. 194 for making and burning 11,800 bricks on the defendant's own request at Sergoit."

Now although this claim is drafted in a somewhat amateurish way, as is not unnatural, it discloses to my mind by necessary implication that the claim is on a contract and it does give sufficient particulars of the contract to disclose its nature. No doubt further particulars could have been given had the defendant ever got so far as entering an appearance and asking for them. But the plaint must be construed reasonably and in view of its having been drafted by a layman, not over strictly. Only thus can justice be done to parties not legally represented. In my view this plaint does constitute a liquidated demand, and therefore the plaintiff did not need to prove it formally before obtaining judgment on it. The first ground of appeal accordingly fails.

The second ground of appeal is that the learned Magistrate erred in refusing to set aside his *ex parte* judgment and decree on the application of the defendant under Order IX rules 10 and/or 24. In his affidavit in support of this application the defendant's advocate frankly admitted that he had received service of the summons and that the defendant instructed him to enter an appearance and to defend the suit. He went on to state that, "I had ample time to do this before 31st October, 1950, and having made a file the date was overlooked, and I am entirely responsible for the defendant not entering appearance." On this affidavit the learned Magistrate in his judgment, after expressing sympathy for the applicant, continued, "But I think I am bound by the general rule that negligence on the part of a suitor or his counsel cannot be a ground for setting aside. There must be some element of an intervening cause which the suitor was unable reasonably to prevent or overcome. Forgetfulness cannot be included in this category."

Now if I may say so, I think the learned Magistrate was here laying down a perfectly correct criterion by which to consider applications of this nature. Of course it would be undesirable and almost impossible to lay down any rigid rule to bind or to guide courts in the exercise of their discretion in such applications since each case must be decided on its merits. But an application to set aside an ex parte judgment given in default of appearance must, and Order IX, rule 24 so requires it, show, "Sufficient cause" why he was prevented from appearing when the suit was called on for hearing; and the same requirement must apply in the case of a failure not merely to appear at the hearing but even to enter an appearance or file a defence. And mere oversight on the part of the applicant's advocate, or of the latter's clerks, cannot of itself be held to constitute "Sufficient cause". The applicant's advocate in his affidavit admitted the oversight and made no excuses for it. Such frankness and honesty is highly commendable and is an example to the legal profession. But it does not make the oversight less of an oversight, any more than a plea of guilty mitigates the offence pleaded to. I think it would lead to undesirable laxity if it were laid down that a court, on an application to set aside a default judgment, is bound to accept an honest admission of negligence or oversight as entitling the applicant to succeed in his application. That is what in effect this court is being asked to do, namely to declare that the learned magistrate exercised his discretion wrongly in declining so to accept it. This I am unable to do.

It is pointed out that the learned Magistrate, in the concluding paragraph of his judgment stated, "I think I am bound by the judgment in *Abdul Aziz v. Punjab* National Bank, Ltd., 1929 10 Lahore 570 and the application must be dismissed with costs", and it is suggested that the Magistrate misinterpreted that decision, and wrongly thought that he had no discretion in the matter. That was a case where an advocate failed to appear at the time set down for hearing. As I read the case, however, it is mainly concerned with emphasizing that in applications of this nature the Court's discretion is wide and that each application must be treated on its merits; in other words, as the late Mr. Bernard Shaw phrased it, "The golden rule is that there is no golden rule". For the rest, in that case counsel was late in appearing in Court and the Court was satisfied that he was at the time engaged in another Court elsewhere and made every effort to appear in the first mentioned Court as soon as possible. In holding for the applicant in that case the Court said, "In each case the question is whether the absence of the pleader or the party was excusable and in determining this due regard must be had to the professional duties of a pleader. If the Court is of opinion that there was a reasonable attempt by the pleader to appear or be represented but that he was unable to do so because of causes which he could not reasonably control then it must be held that there is a good case for restoration". Sound principles, no doubt, but hardly applicable to the present case, where defendant's Counsel made no excuse for the oversight of himself or of his clerical staff. In that case a further decision was cited where a pleader had by mistake noted in his diary the wrong date for the hearing of his action, and this was accepted as sufficient excuse. I can again only say that each case must be dealt with on its merits and that a Magistrate's discretion, once exercised, will not be lightly interfered with on appeal. Perhaps the learned Magistrate in the present case went somewhat far in thinking that he was "bound" by the Abdul Aziz case, for there was little or nothing in that decision which could constitute a precedent. But it is clear from the earlier paragraph of his judgment, which I have already quoted, that he was acting on correct principles, irrespective of Abdul Aziz case; and I am unable to say that he came to a wrong decision.

For these reasons this appeal must be dismissed with costs.