Chipeta, J.: On the 19th March, 1983, granted the application and set aside both orders of the trial court made on 14th February, 1983 and 10th March, 1983, and ordered that the suit be restored to the file and determined on the merits. I reserved my I reasons for doing so, which I now give.
The Background to this application is that on 14/2/83, this matter, which was suit for the A recovery of a debt, came up before Massawe, Resident Magistrate, for hearing preliminary arguments. When the case was called out, the clerk told the learned trial magistrate that both parties were absent. Accordingly, the learned magistrate dismissed B the suit for non-appearance of the parties under O.IX, r.4 of the Civil Procedure Code.
Mr. R.M. Patel, learned advocate, who was representing the plaintiff from the very beginning, then filed an application before the same court for an order to set aside the dismissal order. That application was supported by an affidavit which was to the effect C that he had been within the court premises at the time the case was called out, and that at the time the suit was being dismissed, he was appearing before another magistrate (Mr. Luanda, Resident Magistrate) in a criminal matter. That application, however, was refused by Mr. Luanda, hence these proceedings. D
During the hearing of these proceedings, Mr. Kwikima for the defendant, said that he had no objection to this application being granted.
To start with, I take the view that wherever possible suits should be determined on the E merits. In the instant case, the learned counsel for the applicant had deposed on oath as to the circumstances which had prevailed at the time the suit was dismissed. There was no counter-affidavit to rebutt the facts contained in the learned counsel's affidavit. All things being equal, therefore, the lower court ought to have acted on the basis of those F facts deposed to, unless they were, on the face of it, palpably false.
Secondly, I take the view, with respect, that the provisions of Rule 3 of Order IX of the Civil Procedure Code were, in any case, misapplied. As pointed out earlier, the suit was not coming for hearing on that day. The matter was simply for hearing arguments on a G preliminary issue. To my mind, the word "hearing" must have reference to the hearing of the suit itself and not the hearing of preliminary matters to the main suit.
I find fortification in this point in the case of Jehangir Emporium v Teema Garments, H [1970] H.C.D. n 841. In that case, an interlocutory proceeding involving the question whether a third party should be joined in the suit was fixed for hearing before a Senior Resident Magistrate. On that day, the applicant had another matter before a Judge in chambers. Following the well known practice that the High Court takes precedence over I a lower court, the applicant attended the Judge in chambers. Meanwhile his case was
called up in court before the Senior Resident Magistrate. Both parties were absent, and A so the court dismissed the entire suit for non-appearance of both parties. The application then referred the matter to the High Court for review. Commenting on the court's powers of dismissal under Rule 3 of Order 9, the court (Section, J). said: B
Order 9 rule 3 allows a court to dismiss the suit when neither party appears when the suit is called for hearing. This power is discretionary and that is why the legislature found it safe to use the word "may" rather than "shall". In the present situation there were a number of reasons which would have forced a cautious magistrate not to proceed under this order. In the C first place the hearing was not for a suit but for a third party proceedings...The application which was to be heard before the learned Senior Resident Magistrate was not a suit for the purpose of Order 9 rule 3. D
It was for these reasons that I set aside the orders of the court below and ordered that the suit be proceeded with for determination on the merits.
E Appeal allowed.
F
