Wakilii

Desai v Jiwa (Civil Suit No. 77 of 1952)

East African Court of Appeal · [1953] EACA 47 · 1953 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for order to strike out defence for failure to pay taxed interlocutory costs
Decision
Order made that defence be struck out and suit proceed ex parte if defendant fails to pay taxed costs within 14 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that it has inherent jurisdiction under sections 63 and 97 of the Civil Procedure Ordinance and under Order 16 rule 4 of the Civil Procedure Rules to impose a time limit for payment of taxed costs and to order that the defence be struck out in default. The Court ordered that unless the defendant paid the taxed costs within 14 days of service of the taxation order, the defence would be struck out and the suit would proceed ex parte.

Outcome

Order made that defence be struck out and suit proceed ex parte if defendant fails to pay taxed costs within 14 days

Facts

The Court had previously ordered certain parts of the defendant's defence to be struck out following applications for further and better particulars and to strike out the defence. The defendant was ordered to pay the taxed costs of those applications. The costs were duly taxed but the defendant failed to 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 entirely and the suit heard ex parte.

Issues

  1. Whether the Court has jurisdiction to make an order imposing a time limit for payment of taxed interlocutory costs and to strike out the defence in default of compliance.

Orders

  • In default of the defendant's paying into Court the taxed costs ordered to be paid within 14 days of service of the taxation order, the defence be wholly struck out.
  • In default of payment, the case may proceed ex parte.
  • This order to be served on the defendant together with the taxation order.

Rules and key headnotes

Civil Procedure — Interlocutory Costs — Power to Strike Out Defence for Non-Payment
A court has inherent jurisdiction under sections 63 and 97 of the Civil Procedure Ordinance and under Order 16 rule 4 of the Civil Procedure Rules to impose a time limit for payment of taxed interlocutory costs and to order that a defence be struck out in default of compliance.
Civil Procedure — Striking Out Defence — Failure to Perform Act Necessary to Progress of Suit
Failure to pay taxed costs within a specified time constitutes a failure to perform an act necessary to the further progress of the suit, justifying an order to strike out the defence.

Legislation cited (4)

  • Civil Procedure Ordinance (Cap. 5) s.63
  • Civil Procedure Ordinance (Cap. 5) s.97
  • Civil Procedure (Revised) Rules, 1948 Order 16 rule 2
  • Civil Procedure (Revised) Rules, 1948 Order 16 rule 4

Cases cited (3)

  • 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

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Desai v Jiwa (Civil Suit No. 77 of 1952) [1953] EACA 47 (1 January 1953)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.