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Desai v Jiwa (Civil Suit No. 77 of 1952) [1953] EACA 47 (1 January 1953)
- Citation
- [1953] EACA 47
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Connell J
- Case number
- Civil Suit No. 77 of 1952
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Connell J
- Case number
- Civil Suit No. 77 of 1952
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court determined that it possesses both inherent and express jurisdiction under the Civil Procedure Ordinance and the Civil Procedure Rules to impose a time limit for the payment of taxed interlocutory costs and, in default, to strike out the defence and allow the suit to proceed ex parte. The defendant's failure to pay the taxed costs and to supply vital particulars within the specified time constitutes a failure to perform an act necessary for the further progress of the suit. The court relied on statutory provisions and persuasive Indian case law to confirm its competence to make such an order, ensuring compliance with interlocutory orders and the efficient administration of justice.
Court disposition
application_granted
Orders
- Unless the defendant pays into court the taxed costs ordered to be paid by him within 14 days of service of the taxation order, the defence shall be wholly struck out and the case may proceed ex parte.
- This order will be served on the defendant together with the taxation order.
02
Material facts
Parties
Nanubhai Makanji Desai
Plaintiff Counsel: U. K. DoshiHasham Jiwa
Defendant Counsel: O'Brien Kelly03
Procedural history
Posture
Civil Suit / Interlocutory Application
04
Questions and positions
Legal issues
- 01
Whether the court is competent to order that the defence be struck out and the suit heard ex parte if the defendant fails to pay taxed interlocutory costs within a limited time.
- 02
Whether the court has inherent jurisdiction under sections 63 and 97 of the Civil Procedure Ordinance and Order 16, rule 4 to impose a time limit for payment of costs and strike out pleadings in default.
Party arguments
- Applicant
- Mr. Doshi, for the plaintiff, invited the court to make a further order that unless the defendant pays the taxed costs within a limited time after taxation, the defence be wholly struck out and the case heard ex parte. He referred to Order 16, rule 2 (intending rule 4), arguing that the court has power to impose such a time limit and strike out pleadings in default.
- Respondent
- No substantive argument from the defendant is recorded in the judgment regarding the competence of the court to make the requested order. The defendant failed to comply with previous orders to pay taxed costs and supply particulars.
05
Court’s reasoning
Legal principles
- 01
Civil Procedure Ordinance (Cap. 5), sections 63 and 97
The court has inherent jurisdiction under sections 63 and 97 of the Civil Procedure Ordinance to impose a time limit for payment of costs and to strike out pleadings in default.
- 02
Civil Procedure (Revised) Rules, 1948, Order 16, rule 4
Order 16, rule 4 of the Civil Procedure (Revised) Rules, 1948 empowers the court to strike out pleadings for failure to comply with court orders.
- 03
Gauri Shankar v. Musammat Manki Kunwar, (1923) I.L.R. 45 All. 624; Shaikh Saheb v. Mahomed, (1890) I.L.R. 13 Mad. 510; East Indian Railway Co. v. Jit Mal, (1925) I.L.R. 47 All. 538
Indian case law supports the court's power to strike out pleadings for non-compliance with orders for costs or particulars.
06
Ratio, limits and disposition
Ratio decidendi
The court determined that it possesses both inherent and express jurisdiction under the Civil Procedure Ordinance and the Civil Procedure Rules to impose a time limit for the payment of taxed interlocutory costs and, in default, to strike out the defence and allow the suit to proceed ex parte. The defendant's failure to pay the taxed costs and to supply vital particulars within the specified time constitutes a failure to perform an act necessary for the further progress of the suit. The court relied on statutory provisions and persuasive Indian case law to confirm its competence to make such an order, ensuring compliance with interlocutory orders and the efficient administration of justice.
Obiter and limits
- The failure to supply vital particulars within a specified time is also a failure to perform an act necessary to the further progress of the suit.
- It is a proper order for the court to impose a time limit for payment of costs and to strike out pleadings in default, as laid down by Indian authorities.
Court disposition
application_granted
- Unless the defendant pays into court the taxed costs ordered to be paid by him within 14 days of service of the taxation order, the defence shall be wholly struck out and the case may proceed ex parte.
- This order will be served on the defendant together with the taxation order.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
ORIGINAL CIVIL
Before CONNELL, J.
NANUBHAI MAKANJI DESAI, Plaintiff
ν.
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;<br>Shaikh Saheb v. Mahomed, (1890) I. L. R. 13 Mad. 510; East Indian Railway Co. v.<br>Jit Mal, (1925) I. 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.
$\mathcal{L} = \mathcal{L}$
This order will be served on the defendant together with the taxation order.
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