Desai v Jiwa (Civil Suit No. 77 of 1952) [1953] EACA 19 (1 January 1953)

ORIGINAL CIVIL

Before CONNELL, J.

NANUBHAI MAKANJI DESAI, Plaintiff

$\nu$ .

HASHAM JIWA, Defendant Civil Suit No. 77 of 1952

Civil Procedure and Practice—Civil Procedure Ordinance (Cap. 5), sections 63 and 97—Civil Procedure (Revised) Rules, 1948—Order 16, rules 2 and 4—Order of Court on defendant to pay taxed interlocutory costs-Defendant's failure to comply—Application for order to strike out defence failing compliance within limited time—Whether competent.

After hearing an application for further and better particulars and an application to strike out the defence, the Court ordered certain parts of the defence to be struck out and the defendant to pay the taxed costs of the applications. The costs were duly taxed, but the defendant did not pay as ordered. The plaintiff then applied for a further order that unless the costs were paid within a limited time after taxation, the defence be struck out and the suit heard $ex$ parte.

Held (19-9-52).—The Court had an inherent jurisdiction under the provisions of sections 63 and<br>97 of the Civil Procedure Ordinance (Cap. 5) as well as in terms of Order XVI, rule 4, to make a further order imposing a time limit for the payment of the taxed costs ordered to be paid and in default to order that the defence be struck out and the suit proceed ex parte. Order accordingly.

Cases cited: Gauri Shankar v. Musammat Manki Kunwar, (1923) I. L. R. 45 All. 624; Shaikh Saheb v. Mahomed, (1890) 1. L. R. 13 Mad, 510; East Indian Railway Co. v.<br>Jit Mal, (1925) 1. L. R. 47 All.

538.

U. K. Doshi for appellant.

O'Brien Kelly for respondent.

ORDER.—Certain portions of the defendant's defence have been struck out by order of this Court dated 12th September, 1952, and the defendant ordered to pay the taxed costs of the application for particulars and of the application to strike out the defence. Mr. Doshi orally invites the Court to make a further order that unless the defendant do pay the costs within a time limited after taxation, the defence be wholly struck out and the case be heard ex parte.

Mr. Doshi has referred me to Order 16, rule 2; but I think he intended to quote Order 16, rule 4.

I have no doubt that, in proper cases, it would be a proper order for the Court to impose a time limit for the payment of costs and to order that in default, the pleadings of the defaulter be struck out. This is clearly laid down by the Indian cases of Gauri Shankar v. Musammat Manki Kunwar, I. L. R. 45 All. 624; Shaikh Saheb v. Mahomed, I. L. R. 13 Mad. 510, and East Indian Railway Co. v. Jit Mal, I. L. R. 47 All.

538. I think the Court has also inherent jurisdiction to pass such an order under section 63 and section 97 of the Ordinance in addition to the power under Order 16, rule 4

The failure of the defendant to supply certain vital particulars within a specified time is, in my view, also a "failure to perform an act necessary to the<br>further progress of the suit", for which time has been allowed.

I propose to make the order Mr. Doshi invites me to make and I order that in default of the defendant's paying into this Court the taxed costs ordered to be paid by him within 14 days of the service on him of the taxation order, the defence be wholly struck out and the case may proceed *ex parte*.

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This order will be served on the defendant together with the taxation order.