[1955] EACA 27

#### ORIGINAL CIVIL

#### Before WINDHAM, J.

## AMBALAL CHHOTABHAI PATEL, Plaintiff

$\mathbf{v}$ .

# PHILLIP OTHWELE, Defendant Civil Suit No. 103 of 1954

## Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 9, rule 9 (2)—Defence to counterclaim lodged out of time—Application to strike out and enter judgment—Discretion of court—Costs.

A plaintiff filed a defence to a counterclaim out of time. The defendant applied under the provisions of Order 9, rule 9 (2) to have the defence to the counterclaim struck out and for judgment to be entered in his favour on the counterclaim, which was a liquidated amount. The pleadings disclosed a substantial defence going to the root of the counterclaim.

Held (9-6-55).—(1) The Court will not give *ex parte* judgment where a defence of substance has been entered, although out of time, so compelling the defendant to apply to have the judgment set aside, but will exercise the discretion afforded by Order 9, rule 9 (2) to admit the late pleading and order the suit to be tried upon the merits.

(2) The respondent had received an indulgence by acceptance of his late pleadings and as a result, although successful, he would not have his costs.

Case cited: Rajinder Nath Dhiri v. Preetam Singh. (1950) 24 (1) K. L. R. 26.

S. S. Patel for the plaintiff.

Menzour Ahmed for the defendant.

DECISION.—The defendant-applicant applies to have the plaintiff-respondent's reply and defence to counterclaim struck out for being lodged out of time and for judgment to be entered in his favour on the counterclaim (which is for a liquidated amount) under Order IX, rule 9 (2) of the Civil Procedure Rules. The defence and counterclaim was filed on 24th March, 1955, and the reply and the defence to counterclaim were filed on 25th April, 1955, so that under Order VIII, rules 10 and 17 the reply and the defence to counterclaim were respectively 25 and 17 days out of time; nor did the plaintiff apply for any extension of time. It appears that the reason for the plaintiff's lateness was that he returned to Kenya from a visit to India only about three days before the reply was due. The reply is a mere denial of the allegations in the defence and is therefore strictly unnecessary; but the defence to the counterclaim discloses a substantial defence going to the root of the counterclaim, which is for Sh. 2,110.

Now, Order IX, rule 9 (2), which empowers the Court to give judgment upon a plaint (and accordingly upon a counterclaim) for a liquidated amount, in a case such as the present, is not mandatory. It gives the Court a discretion either to enter judgment or to admit the late pleading and allow the case to go to trial on its merits, always assuming that the late pleading discloses (as it does in the present case) a defence of substance. This was made clear in the judgment in Rajinder Nath Dhiri v. Preetam Singh, (1950) 24 (1) K. L. R. 26, where an application similar to the present one was dismissed with costs. The facts here are very similar to those in that case, and in so far as they differ, they do not differ in any point affecting the principle there laid down, namely that the Court will not give an *ex parte* judgment where a defence of substance has been entered

out of time, thereby obliging the defendant to apply later to have that judgment set aside, but will rather shorten procedure by enabling the case to be tried on its merits at the outset.

For these reasons I dismiss this application, and allow the reply and defence to counterclaim to be accepted although they were filed out of time. In the circumstances, however, since an indulgence is being granted to the respondent in accepting his late pleadings, I do not think it would be fair to allow him his costs of this application. There will be no order for costs.