[1952] EACA 298

### APPELLATE CIVIL

#### Before DE LESTANG, J.

# RATTAN SINGH, Appellant (Original Defendant) $\mathbf{v}$

# TRILOCHAN SINGH JAWALA SINGH, Respondent (Original Plaintiff)

#### Civil Appeal No. 2 of 1952

(Appeal from the decision of the Resident Magistrate's Court at Kisii-Roger J. Quin, Esq.)

Practice—Fixing hearing date where defendant applies for adjournment— Magistrate's discretion—Judicial exercise.

The appellant was defendant in a civil suit before the Magistrate at Kisii and was resident at Mombasa. Appearance was entered and defence was filed. On 29th November on the ex parte application of the respondent-plaintiff the Court fixed the hearing of the suit for 10th December. Notification was served on the defendant at 5.30 p.m. on 4th December. On 7th December defendant's advocate applied by telegram for an adjournment. The application was refused and on 10th December the defendant did not attend and his advocate renewed his application for an adjournment. The Magistrate rejected the application without assigning any reason.

Held (10-4-52).-(1) Where a Magistrate's refusal to grant an adjournment amounts to manifest injustice the Appeal Court will not hesitate to interfere with the exercise of a Magistrate's discretion.

(2) That the refusal to grant an adjournment was unreasonable and a denial of justice to the appellant.

Appeal allowed.

Cases cited: H. K. Shah and another v. Osman Allu. 14 E. A. C. A. 45, Maxwell v. Keun, (1928) 1 K. B 645.

D. N. Khanna for appellant.

Gautama for respondent.

JUDGMENT.—This is an appeal from the decision of the Resident Magistrate, Kisii, on the ground that his refusal to grant the appellant's application for an adjournment amounted to a denial of justice.

On 11th October, 1951, the respondent filed a suit at Kisii against the appellant to recover an alleged debt of Sh. 825. The plaint was served on the appellant at Mombasa, where he resides on 17th October, 1951. On 30th October the appellant entered an appearance and in view of the distance involved at the same time applied for and was granted by the Court 21 days within which to file his defence. Be it noted that Mombasa is over 600 miles from Kisii, that there is no direct train or bus service between Mombasa and Kisii and that Kisumu which is itself some 70 miles away from Kisii is the nearest railway station to it. On 29th November on the *ex parte* application of the respondent and without notice to the appellant the Court fixed the hearing of the suit for 10th December at Kisii. Notification of the hearing was served on the appellant at Mombasa at 5.30 p.m. on 4th December. On 7th December Mr. Kohli, an advocate of Kisumu, applied to the Court by telegram, on behalf of the appellant, for an adjournment on the ground that the appellant had not been given

sufficient time to attend at the trial. Not only was this application rejected, but the Magistrate informed the advocate of the other side, who had requested confirmation of the hearing date, that the suit would be heard on the day appointed. On 10th December the appellant did not personally attend the hearing. His Counsel renewed his application for adjournment on the same ground, but without assigning any reason the learned Magistrate rejected it. The trial proceeded and judgment was entered for the respondent.

The appellant, while conceding that the Court has a discretion in granting or refusing an adjournment, contends that the refusal of an adjournment in the circumstances of the present case, amounted to a denial of justice since the appellant was not given reasonable notice of the hearing and that it should have been apparent to the learned Magistrate that if the trial proceeded in the appellant's absence the result could only be judgment for the respondent. Whether there was a denial of justice or not depends on whether or not the learned Magistrate in refusing an adjournment exercised his discretion judicially. It is well settled that an Appeal Court will not readily interfere with the exercise by a Magistrate of his discretion as to granting or refusing an adjournment, but it is equally clear that where his refusal to grant an adjournment amounts to a manifest injustice the Appeal Court will not hesitate to interfere. As the Privy Council said in H. K. Shah and another v. Osman Allu, 14 E. A. C. A. 45 at page $46:-$

"Their Lordships do not think it at all necessary to restate at length what has been many times stated before, the ground upon which an appellate tribunal, including the Board will interfere with the discretion of a Court below. It is sufficient to say that a mere difference of opinion between the appellate Court and the lower Court as to the proper Order to make is no sufficient ground for interfering with the discretion which has been exercised below. There must be something much more than that, amounting to proof (to put it quite summarily) that there has been an unjudicial exercise of discretion, or an exercise of discretion at which no Judge could reasonably arrive whereby injustice had been done to the party complaining."

In Maxwell v. Keun, (1928) 1 K. B. 645 at page 653 Atkin, L. J. said this: -

"I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned Judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so."

In the present case, considering that the train leaves Mombasa daily not later than 5 p.m., the appellant was given in effect four days to transport himself from Mombasa to Kisii to defend the suit. Is that sufficient notice to give to a defendant in the circumstances? The answer can only be a most emphatic "No". and it seems to me that no Judge could reasonably give a different answer. If the learned Magistrate considered 21 days a reasonable time to allow for filing the defence owing to the distance, how can four or five days be considered sufficient for the appellant to attend personally? Has the learned Magistrate exercised his discretion judicially in the present case? Again, I say most emphatically "No". He knew that the suit was contested. He knew what would be the result if he proceeded to trial in the appellant's absence and yet, judging by the record, he appears not to have seriously considered the appellant's application but dismissed it without assigning any reason. The record reads "PatelApplication for adjournment. Refused." In fact it might even be inferred from the Court's telegram to the respondent's advocate two days before the hearing that the learned Magistrate had made up his mind before the trial to refuse any application for an adjournment. The words of Lord Atkin in Maxwell $v$ . Keun at page 657 seem to me to apply particularly to the facts of this case: $-$

"The result of this seems to me to be that in the exercise of a proper. judicial discretion no Judge ought to make such an order as would defeat the rights of a party and destroy them altogether, unless he is satisfied that he has been guilty of such conduct that justice can only properly be done to the other party by coming to that conclusion. I am very far from being satisfied that that is so in this case; on the other hand, I am quite satisfied that very substantial injustice would be done to the plaintiff by refusing the application that this case should be postponed, and that that is the result of the present order."

In my view the appellant having been given such short notice was, as it were, entitled to an adjournment. He had not been guilty of any conduct as would disentitle him of it and no injustice could possibly have been caused to the respondent by an adjournment. In my judgment the refusal of an adjournment in this case amounted to a denial of justice to the appellant. The appeal is therefore allowed and the judgment set aside. There will be a retrial before another Magistrate. The appellant will have the costs of this appeal and the costs hearing in the lower Court which is already fixed by agreement at Sh. 100.