Wakilii

Patel v Seth (Civil Appeal No. 53 of 1951)

East African Court of Appeal · [1952] EACA 34 · 1952 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court order dismissing application to strike out plaint under Order 6, rule 29
Decision
Appeal dismissed for want of jurisdiction — leave to appeal not obtained

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An order made in pursuance of Order 6, rule 29 is limited to an order made in exercise of the powers given by the rule and granting relief. An order dismissing an application to strike out a plaint does not fall within this category and is therefore not appealable as of right. Leave to appeal is required for such orders. The preliminary objection was sustained and the appeal dismissed.

Outcome

Appeal dismissed for want of jurisdiction — leave to appeal not obtained

Facts

The respondent sued the appellants for possession of premises in Nakuru. The appellants moved under Order 6, rule 29 to strike out the plaint as disclosing no reasonable cause of action. The trial judge found the plaint defective but dismissed the application to strike it out and instead ordered the respondent to amend the plaint within seven days. The appellants appealed to the Court of Appeal. The respondent raised a preliminary objection that no appeal lay as of right from an order dismissing an application under Order 6, rule 29, and that leave to appeal had not been obtained.

Issues

  1. Whether an appeal lies as of right from an order dismissing an application to strike out a plaint under Order 6, rule 29 of the Civil Procedure Rules, or whether leave of court is necessary.

Orders

  • Preliminary objection sustained.
  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Right of Appeal — Order 6 rule 29
An order made in pursuance of Order 6, rule 29 of the Civil Procedure Rules is limited to an order made in exercise of the powers given by the rule and granting relief, such as an order dismissing the suit or striking out the defence. An order dismissing an application to strike out a plaint is not an order made in pursuance of the rule and is therefore not appealable as of right.
Civil Procedure — Statutory Interpretation — Meaning of 'In Pursuance Of'
The expression 'in pursuance of' in Order 6, rule 29 is more limited than 'under' and conveys the sense of being an exercise of powers. It does not extend to orders refusing to exercise the powers conferred by the rule.
Civil Procedure — Appeals — General Principle of Right of Appeal
The general principle emerging from Order 42, rule 1(1) is that an appeal will lie as of right when the decision, whether granting or refusing relief, is in the nature of a final decision that puts an end to the proceedings or will irrevocably alter the positions of the parties or their property.

Legislation cited (6)

  • Civil Procedure (Revised) Rules 1948 Order 6 rule 29
  • Civil Procedure (Revised) Rules 1948 Order 6 rule 16
  • Civil Procedure (Revised) Rules 1948 Order 6 rule 18
  • Civil Procedure Ordinance (Chapter 5) s.2
  • Civil Procedure Ordinance (Chapter 5) s.75(1)
  • Civil Procedure (Revised) Rules 1948 Order 42 rule 1(1)

Cases cited (4)

  • Wilson v Mayor of Halifax (1873) LR 3 Ex 114
  • Joliffe v Wallasey Local Board (1873) LR 9 CP 62
  • Lachmi Narain v Ram Charan Das (1913) ILR 35 All 425
  • Dalip Chand v Feroz Din (1935) 16 KLR 106

Full judgment

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

Patel v Seth (Civil Appeal No. 53 of 1951) [1952] EACA 34 (1 January 1952)
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.