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1976 MarsdenLR 142
Mohamed Zahir J:
In this case the appellant appealed against the decision of the learned magistrate who refused the application of the appellant to set aside the magistrate's own judgment and to order the case reinstated for hearing. The appellant in the case had failed to file a defence to the respondents' liquidated claim for goods sold and delivered in the sum of $1,471.25. On the first date of mention in the magistrate's court the appellant asked for time to file the defence and this request was allowed. On the second date the appellant "wanted time to settle matter" and the respondents agreed to this request. On the third occasion the appellant again requested for time and again this request was granted as the final one. On the last date again the appellant had failed either to "settle the matter" or to file the defence. The learned magistrate at this stage entered judgment against the appellant as prayed in the statement of claim. The appellant was present in court when this judgment was entered against him.
Lastly the appellant filed an application supported by an affidavit to have the judgment set aside and the case reinstated. The grounds given in the affidavit appeared to be as follows:-
(a) that the case had been referred to arbitration; and
(b) that he had sufficient grounds to defend the action.
However what actual grounds the appellant had in order to defend the claim were not disclosed in the affidavit. The learned magistrate dismissed this application against which the appellant appealed. However in the grounds of appeal an important ground that was not before the court below was pleaded that the judgment of the magistrate was irregular for non-compliance with and not being in accordance with O. 19 r. 4 of the Subordinate Courts Rules. This Order requires the court to permit in cases in which the defendant has not filed a defence or having filed a defence does not appear at the trial the plaintiff's case be proved by evidence on affidavit or require the case be proved by oral evidence. However under O. 19 r. 3, it is provided that when any action is called where the defendant does not appear, the court may (subject to formal proof of due service) where the claim is for a liquidated sum, enter judgment forthwith for the plaintiff.
In this case the defendant was present at the hearing and it was therefore wrong on the part of the learned magistrate to enter judgment forthwith for the respondents. The learned magistrate should have required the respondents to adduce some evidence to support their claim before recording the judgment. However had the appellant appealed against the substantive judgment of the learned magistrate he would have succeeded in his appeal. But the appellant chose to apply to the same court to have the order set aside and failed to base his application on the important ground of irregularity and the learned magistrate was therefore deprived of considering the point. Anyway the learned magistrate in dismissing the application by the appellant to set aside his own judgment contended that the judgment was entered inter partes hence he had no power to set it aside and the appellant's remedy was to appeal against the judgment.
Mr. Periasamy counsel for the appellant argued that the learned magistrate had the powers to set aside his own judgment if such judgment was obtained by default of defence. He also argued that there was no provision in the Subordinate Courts Rules for setting aside judgments in default of defence and where the defendant was present at the time of the judgment although the Rules, as he contended, expressly provided the procedure for setting aside judgment in cases of default of appearance. Counsel therefore submitted that that being the case the Rules of the Supreme court be adopted (O. 1 r. 2 of the Subordinate Courts Rules).
Now, before we go further, we have to examine whether the Subordinate Courts Rules do not have any procedure for setting aside
