Jehangir Emporium v. Teema Garments Civ. Rev. 1-M-70; 20/4/70; Seaton, J.

 

Jehangir Emporium v. Teema Garments Civ. Rev. 1-M-70; 20/4/70; Seaton, J.

            An application was filed by the Plaintiff/Applicant requiring the Court under its revisionary jurisdiction to ivoke section 79 of the Civil Procedure Code, set aside the order of the learned Senior Resident Magistrate at Mwanza dismissing the suit for non-appearance of the parties and restore the suit. Some interlocutory proceedings between the parties were fixed for hearing on 28^th January, 1970, before a Senior Resident Magistrate. The applicant had two simultaneous case on the same morning and, as he stated, ‘adhering to a convention quite known, to the Magistrate that the High Court has preference over a lower court, he opted to appear before the Judge in Chambers first. Meanwhile, the Magistrate called upon the parties to have audience before the court and for want of appearance did dismiss the whole current suit. An application under Order I rule 14 for third party proceedings was the only subject-matter before the magistrate and the date for hearing the whole suit was yet to be fixed. Since the Magistrate was only seized with discretion of dismissing the application for want of appearance, the applicant submitted that the order dismissing the suit was improper and irregular and prayed the High Court to exercise its discretionary power of revision.

            Held: (1) “The applicant had three courses of action open to him as regards the decree of the Magistrate. Under order 9 he should have applied under rule 4 to set aside the dismissal. Alternatively, he could have appealed against the dismissal order. Lastly, he could have applied for revision to this Court. He had opted for the last. The power of revision is discretionary which no doubt must be exercised judicially and which must further be exercised on some fixed principles and not according to dictates of sympathy or benevolence …..This Court must therefore look at the competence of this application bearing in mind the provision of section 73 of the Civil Procedure Code which direct that ‘no decree shall be reversed or substantially varied ….. in appeal on account of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.’ Counsel for the respondent made no objection to the prayer sought by the applicant but his alone does not render the exercise of this discretion any lighter. It was said in the case of Munshi v. Amin (1955) 22 E.A.C.A. 183 that ‘there is no authority for the proposition that a power to review an exparte decision is a principle or rule of natural justice. Rules of Court cannot be used as premises from which to deduce rules of natural justice nor can equitable principles be used for creating a power or review.’ (2) “The applicant reasons that although he had three remedies open to him, the reversionary remedy was the most appropriate since it alone could restore the suit. In support of this, there were raised several cogent arguments. First, that appealing against the dismissal would be incompetent since there was no lawful order from which to appeal. As the Magistrate could only dismiss the application in Chambers then pending, and not the whole suit, the order dismissing the whole suit was no order at all, thus it was a nullity and had no effect at all in law. The other alternative would have been to proceed under Order 9 rule 4. This, the applicant considers to be impossible because the suit was irregularly dismissed when only a Chamber Application was being heard. The dismissal was therefore not a valid order which could be set aside. The

Applicant could no doubt have instituted a fresh suit as this was not barred by the decree, but since the second suit would be caught by the Limitation Act, resort to this would only be detrimental to the applicant. This would mean losing some Shs. 15,000/- which he may have obtained had the suit been maintained. It has been submitted by Mulla in his Code of Civil Procedure Code. 10^th Edition, that the high Court may not exercise its reversionary jurisdiction where the alleged irregularity can be tested and challenge on appeal. With respect, I am inclined to accept the submission of the applicant that there was no lawful order  to appeal against, even if it were lawful, the order does not appear to be one from which appeal lies under section 74 of the Civil Procedure Code. in any case where a subordinate court exercises a jurisdiction not vested in it, the High Court has power under section 79(a) of the Civil Procedure Code to interfere in revision. I accordingly agree with the submission of he learned counsel for the applicant to the effect that an application for revision to this Court was not only proper but appropriate.” (3) “Order 9 rules 3 allows a court to dismiss the suit where neither party appears when the suit is called for hearing. This power is discretionary and that is why the legislature found it safe to use the word ‘may’ rather than ‘shall’. In the present situation there were a number of reasons which would have forced a cautious magistrate not to proceed under this Order. In the first place the hearing was not for a suit but for a third party proceeding. Secondly an order dismissing an interlocutory proceeding could not be used at the same time to dismiss the suit ….. The application which was to be heard before the learned Senior Resident Magistrate was not a suit for the purpose of Order 9 rule 3 ….. in the circumstances the purported order dismissing the whole suit was illegal and therefore no order at all at law. The learned magistrate could only dismiss the application but had no jurisdiction to dismiss the suit. In dismissing the suit he was acting in excess of the jurisdiction conferred on him by law. It is the view of this Court that such an irregularity goes to the root of the matter and is incurable.” (4)”Accordingly, I would order as prayed and send the file back to the Senior Resident Magistrate and direct him to proceed with the case. As there was no order regarding the Chamber Application, I direct the same to be heard and settled.”