Tanzania Distilleries Limited vs Thomas Mangia (Commercial Case No. 8 of 2000) [2000] TZHC 529 (31 July 2000)

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO.8 OF 2000 TANZANIA DISTILLERIES LIMITED ...... PLAINTIFF VERSUS THOMAS MANCIA, trading as, MIS GREEN CORNER STORE ..................... DEFENDANT JUDGMENT This is a suit in accordance with summary procedure under Order XXXV of the Civil Procedure Code. 1966. The plaintiff filed the suit on the 29.2.2000 claiming the recovery of Shs. 11.317, 20.00 from the defndant. Paragraph 3 of the plaint is in the ft,1l,1wing terms - .. 3. That the pluintifh' claim ogainst the deje:·ndonts is for immediate recove1:i-- ql T\·hs 11.317.220. 00 remaining 11npuidji·n111 dishonoured cheques. which the d£fendant issued to gt!.t duliveries. om! on heing dishonoured hy the Bank the defendant paid a lesser amotmt. " The court record sho"vs that the defendant was served with summons on the 4.4.2000 requiring the defendant to obtain leave from the court to appear and defend the suit \vithin seven days ti·om the date of service of summons. On the 1.6.2000 v,1hen the suit catnL' before me, thl:°: defendant had not sought leave from this court to appear and defend the suit. whereupon iVlr. Mbwarnbo. learned ndvocate for the plaintiff prayed that jrn..!gmcnt be entered against the plaintiff. Order XXXV rule 2 (2) (a) of the Civil Pn,ccdun: Code is in the l"nll1n,·ing terms - " (2) In any cuse in H·/iich the plain/ (Ill(/ sI1111mo11s ore in suchjhrms. rcspecth·e/1·. thi! d£!/endunt shall nor uppeur or de/"i!11CI the suit 1111IC!ss he ohtuins leaff!i-om thl' Jwz1:;e or !}/(/gistrute OS haeiw!fier pro,·idecl so {() uppuar (l/1l/ chfend: (//Id in punuance then.:<( the ollego1io11s in the ploint sh(r!I he deemed tu he aclmiJtecl. om/ th£' /7iui11t(fl'shull he entitled: (a) where! the suit is u suit. rcf'rr<!d 10 in /JUrugrctph (uJ. rh) or (c/J of'Rule 1 or u suit /<Jr tin• n'co,·ay o(moni.T under u mortguge 011(/ 110 other re/ie(i11 ,.l'Sf)L'CI o(s1H·h 11Iortgu_1:,e is cluimul. too decree _1;1,. ,111_1 · such 1101

exceeding the sum mentioned in the summons, together with interest at the rate specified (if any) and such sum for costs as may be prescribed, unless the plaintiff claims more than such fixed sum, in which case the costs shall be ascertained in the ordinary way. and such decree may be executed forthwith:" By my count fifty.seven (57) days have passed since the defendant was served with the summons on the 4.4.2000. and the suit falls under Order XXXV rule I (a) of the Civil Procedure Code. This Order contemplates that the court shall pass a decree in a summary suit where the defendant has not obtained leave to appear and defend. Thus, in default of the defendant's obtaining such leave, the allegations in the plaint should be deemed to be admitted and the plaintiff will be entitled to a decree. (.')ee: Pes1onii S. Narielwulla v .Jomsed;i v Gamadia 1. L. R [ 1926} 50 Bom. 262: Hassanali ./Peerani v L.I-/orn and Dem Tzias JTLR(R) ../67.) In the result, I do hereby enter judgment for the p\Jintiff as prayed with costs. It is accordingly ordered. 1-1.R.Nsckcla, .Judge '1