1967 hcd 40 held order 39 rule 1 of the civil

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( 1967) H.C.D.
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- 40 – Held: Order 39, rule 1, of the Civil Procedure Code, 1966, provides that a memo- randum of appeal “shall be accompanied by a copy of the decree appealed from ….” The rule is imperative, and the cross-appeal must be dismissed, even though the Court had before it the copy of the decree filed with the appeal. 154. Salum s/o Rashidi v. Hadija d/o Abdallah , (P.C) Civ. App. 61-D-66; 2/5/67; Saidi, J. Plaintiff’s wife died shortly after the birth of their son. The child remained with the wife’s sister until the age of five years, when plaintiff brought this action for his custody. The Primary Court ruled that plaintiff could have the child when he had reached the age of seven years. Plaintiff applied for a copy of the judgment and the proceedings, but did not receive them, and for this reason was unable to file his appeal until the time (30 days) had expired. Held: (1) “Until (plaintiff) had received such a copy the period of thirty days’ limitation could not be said to have started to run against him. Normally the time requisite for obtaining a copy of a judgment or an order appealed against should be excluded in computing the period of thirty days …” The Court stated, obiter: “It would also appear that it is unfair for a court to grant custody of a child to any person other than a parent who is keen and able to maintain such child unless such parent is disqualified by unsuitable character, such as loose morals or chronic drunkenness. 155. In re Shariff Jamal & Sons Limited , Misc. Civ. Cause 23-D-67; 15/6/67; Duff, J. The applicant company, which was actively doing business, was struck from the rolls for failure to make the necessary returns. The applicant moved, by means of a chamber summons, for restoration to the Register of Companies. The only is- sue before the High Court was whether the form of proceeding had been proper. Held : Such an application should be made by way of petition Citing In re National Agricultural Credit Agency, Misc. Civ. Cause of 1967. However, in the
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absence of any prejudice, the chamber summons was treated as a petition and restoration was ordered. 156 Burns & Blane Limited v. United Construction Company Limited , Civ. Case 4-D-66; 6/5/67; Duff, J. Plaintiff sued for goods sold and delivered and services rendered. Plaintiff had acted as a subcontractor to defendant, the main contractor, on a construction project. Defendant did not deny that it was liable under the contract. However, defendant alleged that plaintiff’s recovery should be reduced by the amount of expenses which defendant had incurred in correcting certain defects and also by the amount of a settlement which defendant had made with a third party, the company for which the building was being constructed, because of other defects in materials which plaintiff had supplied.
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