C.K.Matemba t/a Matemba & Company v. Jumanne Yamulinga t/a Citizen Club, Civ. 1-M-67, 25/1/68, Mustafa J.

C.K.Matemba t/a Matemba & Company v. Jumanne Yamulinga t/a Citizen Club, Civ. 1-M-67, 25/1/68, Mustafa J.

Plaintiff sued defendant in Resident Magistrate’s Court. The summons instructed the defendant to file a written statement of defence within 21 days after receipt of the summons. Judgment ex parte for the plaintiff, however, was entered only 15 days after defendant received the summons. More than 30 days later, defendant applied to have the ex parte judgment set aside, along with an order for proclamation of sale which by then had been made; the application was granted, and the order rescinded. Plaintiff then applied by way of revision to have the High Court set aside these latter actions by the Resident Magistrate.

            Held: (1) The original ex parte judgment for plaintiff was premature, since defendant’s time within which to file his defence had not elapsed. (2) In an application for revision, the High Court has not power to interfere except where the subordinate court has exercised a jurisdiction not vested in it by law, where it has failed to exercise a jurisdiction so vested, and where it has acted “in the exercise of its jurisdiction illegally or with material irregularity”. [Civ. Proc. Code, ss. 79(1).] This section applies “to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.” [Quoting Balakrishna v. Vasuda (1917) 44 I. A. 261); and citing Amir Hassan Khan v. Sheo Baksh Singh (1885) 11 I A. 237; both Privy Council cases.] The High Court, on revision, will not interfere merely because a lower court allowed an application which was time-barred, as this is not a matter going to jurisdiction.

            The Court noted, obiter: The validity of an order setting aside an ex parte decree may be attacked under section 75 of the Code, in an appeal from the final decree. [Citing Mulla’s Civil Procedure Code, 10th Edition, P. 605] Plaintiff’s application dismissed.