Held 1 the notice of appeal was given under rule13 of

Info icon This preview shows pages 600–602. Sign up to view the full content.

Held: (1) The notice of appeal was given under Rule13 of the Civil Proce- dure (Appeals in Proceedings Originating in Primary Courts) Rules, 1963, G. N. 312/64, which permits an appellant to submit his appeal in writing without ap- pearing. The rule is not applicable to this appeal, which is from a Resident Magi- strate’s Court, but as defendant has relied on the notice in ignorance of its inva- lidity, 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 defec- tive 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 plead- ings 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 memoran- dum 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 re- manded to trial court for amendment of the written statement and trial of the case on its merits. (1968)H.C.D. - 134 –
Image of page 600

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

355. Joseph Kimera v. Idd Hemedi , Civ. App. 1-M-68, 31/7/68, Seaton J. Plaintiff sued defendant upon a contract of guarantee and was awarded judg- ment. His principal evidence consisted of a document, Exhibit A, alleged to have been written and signed by defendant acknowledging the guarantee, and also a copy of a letter, Exhibit B, written by plaintiff to defendant demanding payment on the contract. Defendant appealed on the following grounds, inter alea; (i) the ma- gistrate should have referred Exhibit A to handwriting experts or the police to de- termine if it was really written by defendant, rather than rely on his own judgment; (ii) the magistrate erred in admitting in evidence Exhibit B without proof that it was delivered to the defendant and without proof of service of notice to produce the original; (iii) plaintiff failed to serve a copy of Exhibit A on the defendant to- gether with the plaint and summons as required by Order VII, Rule 14 of the Civil Procedure Code; (iv) the magistrate failed to frame the issues at the outset of the trial as required by Order XIV, Rule 1 of the Civil Procedure Code.
Image of page 601
Image of page 602
This is the end of the preview. Sign up to access the rest of the document.
  • Fall '17
  • Dean Majamba

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern