Sabayaga Farmers’ Cooperative Ltd v. Anyony Mwita, Civ. App. 172-M-67, 6/6/68, Seaton J.

Sabayaga Farmers’ Cooperative Ltd v. Anyony Mwita, Civ. App. 172-M-67, 6/6/68, Seaton J.

Plaintiff sued defendant in Resident Magistrate’s Court for Shs. 715/-, for maize which defendant was alleged to have wrongfully taken. Defendant, who was not represented by an advocate and whose officer in charge of the case had never appeared in court, filed a written statement of defence which read as follows: “1; That on behalf of the Society, I strongly deny any indebtedness to the Plaintiff in the sum of Shs. 715/-. 2. That I put the plaintiff to strict proof of his claim.” The Resident Magistrate ordered the written statement of defence struck out under Order 6, rule 16 of the Civil Procedure Code, because it was a general denial and therefore insufficient under Order 8, rules 3, 4 and 5. Plaintiff was then permitted to give his evidence ex parte, and judgment was awarded for plaintiff. Defendant then appealed, and his memorandum of appeal included the following: “5. That the defendant (appellant) denies having removed unlawfully 13 bags of maize from the plaintiff’s premises at Ngoremi. Also the defendant (appellant) denies his indebtedness to the plaintiff in respect of 13 bags of maize or Shs. 715/-.” The District Registrar gave him notice of hearing of the appeal in which he was advised that the could appear himself or by agent, or might submit a written statement of his arguments. Defendant did not appear at the appeal, and plaintiff moved that his appeal be dismissed.

            Held: (1) The notice of appeal was given under Rule13 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1963, G. N. 312/64, which permits an appellant to submit his appeal in writing without appearing. The rule is not applicable to this appeal, which is from a Resident Magistrate’s Court, but as defendant has relied on the notice in ignorance of its invalidity, the appeal should be decided on its merits. (2) There is authority that a court has discretion under Order 8, rule 10 of the Indian Civil Procedure Code of 1908 (which is similar to Order 8 rule 14 of the present code) to ignore a defective written statement of defence and to give judgment for plaintiff after hearing his evidence ex parte [Citing Haji Ibrahim Haji Adam v. Ismail Dilmirkhan (1938) 1 T.L.R. (R) 585]. The court also has inherent powers to strike portions of pleadings in addition to its powers under Order 6, rule 6 of the Code. [Citing Bank of India, Ltd. v. Manibhai M. Patel, Ltd., (1965) E.A. 638]. However, these powers should be exercised very cautiously, and a pleading should generally not be struck where the defect can be cured by amendment. [Citing Mulla, Indian Code of Civil Procedure of 1908, 10^th edn., p. 543] (3) In the present case the written statement of defence was curable as is shown by paragraph 5 of the memorandum of appeal, which would have satisfied the requirements of Order 8, rules 3, 4, or 5 of the Code. Defendant’s officer was a man of limited education and with no legal experience, and in these circumstances, the trial court erred in striking the written statement of defence. Ex parte judgment set aside, and case remanded to trial court for amendment of the written statement and trial of the case on its merits.