clr/1986/1986_1_548.pdf

(1)The question of whether an adjournment will be granted or not is within the dis­ cretionary powers of the trial Court and depends on the 20 facts of each particular case. It is upon the appellant to persuade this Court that such discretion was wrongly exercised.

(2)In this case the appellant failed to persuade Court that the trial Court was wrong to refuse the 548 this ad- 25 1 CL.R. Artstidou v. Yiannoplast Ltd. journment as he had been notified of the date of the hearing and failed to appear without giving any reasons. Appeal dismissed with costs: CAM· referred to: 5 Maxwell v. Keyη and Others [1928] Ι Κ. B. 645: Kier (Cyprus) Ltd., v. Trenco ConstructionsLtd. I CL.R. 30.

(1981)Appeal. 10 15 Appeal by defendant against the judgment of the District Court of Limassol (Eleftheriou, D.J.) dated the 18th September, 1984 (Action No. 5076/83) whereby his application for the adjournment of the hearing of the action was refused and judgment as per claim was issued against him. C. Melas, for the appellant. E. Kollatsi (Mrs.), for the respondent. 20 MALACHTOS J. gave the following judgment of the Court. This is an appeal against the judgment of a District Judge in Action No. 5076/83 of the District Court of Limassol where an application for adjournment of the hearing of the action by the defendant was refused and judgment was issued against him as per claim, with costs. The relevant facts are the following: 25 30 The respondent company in this appeal instituted on 6.12.83, as plaintiff in the court below, the above action claiming against the defendant, the present appellant, £217.975 mils as balance of his account for various plastic goods sold and delivered to him between 19.3.80 and 19.10.81. On 12.3.84, when the action came on before the Court for first appearance, the defendant disputed the claim and the action was fixed for hearing on 18.9.84, and the defendant was ordered to file and deliver, in the meantime. his defence within 30 days. 549 Melachtos J. Aristidou v. Yiannoplast Ltd.

(1986)On 18.9.84. counsel appearing for the defendant, who was not the one appearing for him before us today, in applying for an adjournment of the act:on made the fol­ lowing statement: "I apply for an adjournment as although we notified our client by letter and yesterday by persona! con­ tact, today something unexpected happened to him and he has been unable to appear before the Court". To a question bv the Court as to what was this un­ expected, counsel for the defendant said: "Something must have happened to him", (tha tou etihe kati). Counsel for the plaintiff, on the other hand, jecting to the adjournment said: 5 10 in ob­ " I am bound to object to the application of my colleague. In the first place, because I have not re- 15 ceived in my file the defence which as I have been informed was filed on 15.9.84, whereas it ought to have been filed within 30 days, in compliance with the order of the Court, and because it happens to be present the D ; rector of the plaintiff company and 20 because in the past Τ was asked by my colleague to deliver all the particulars and all the invoices and Τ have done that and because I have reasons to believe that the defendant is s'mply apply;ng delaying tactics for payment of his debt, for this, Τ object to the 25 application**. The trial Judge then in rejecting the application adjournment said: for "The adjournment of cases falls within the dis­ cretionary power of the Court, which, as it was many 30 times stressed by the Supreme Court, must be exer­ cised judicially. In the present case the defendant was ordered on 12.3.84 to file and deliver his de­ fence within 30 days. Since then, a period of more than six months has elapsed, and the defendant filed 35 the defence (if this can be considered as a defence). after the lapse of t : me and so he could not do so unless he applied to the Court for extension of time 550 1 CL.R. S Arietidou v. Yiannoplast Ltd. Malachtos J. in accordance with the Rules of Court. In any case, the defendant is not present before the Court today for reasons unknown to the Court and his advocate. I have heard carefully the learned counsel of both sides and I find that there are no reasons justifying the Court to grant the adjournment applied for and I call Mrs. Kollatsi to prove her case". In support of the case of the plaintiff company, its Director then gave evidence and the trial Judge delivered 10 judgment against the defendant as per claim with £68.costs of the action. As against this judgment the defendant filed the present appeal. Counsel for the appellant in his effort to .persuade us that the trial Judge wrongly exercised, his''discretion by not granting the adjournment, submitted that the trial Judge was not justified in doing so and that a miscarriage of justice has been occasioned, since the defendant had the right to be heard. It was further submitted that the 20 trial Judge did not take into consideration the principle laid down in the case of Maxwell v. Keun and Others

(1928)1 Κ. B. 645, that where the refusal of an adjourn­ ment would result in a serious injustice to the party re­ questing the adjournment, the adjournment should be re25 fused only if that is the only way that justice can be done to the other party. In our case, he submitted, by granting the adjournment, no injustice could be done to the plaintiff, whereas by not granting it, great injustice has been done to the defendant. 15 30 35 In the case of Kier (Cyprus) Ltd., v. Trenco Construc­ tions Ltd.

(1981)1 CL.R. 30 at page 38, the following is stated: "The principles that should govern the exercise of a Court's discretion in granting or refusing an adjournment have been reviewed recently and at length by Sawides, J., in the cases of International Bonded Stores Ltd. v. Minerva Insurance Co. Ltd.

(1979)1 CL.R. p. 557, and reiterated in the case of Manolis Kranidiotis v. Ship "AMOR"

(1980)1 CL.R. p. 551 Malachtos J. Aristidou v. Yiannoplast Ltd.

(1986)297, where the position is summed up as follows (pp. 299 - 300): '*'It has been repeatedly stressed by our Supreme Court in a number of cases that delays in the hearing of a case are highly undesirable and that 5 adjournments should be avoided as far as possible and that only in unusual circumstances they must be granted. The reason for this, is that it is in the public interest that there should be some end to litigation and. furthermore, the right of a citizen to 10 a fair trial within a reasonable time according to the Constitution and the Courts should comply with these constitutional prov:sions with meticulous care. The discretion of the Court in granting an adjournment should be exercised in a proper ju- 15 -dicial manner and an order for an adjournment should not be made if there is danger that the rights of a party before the Court will be prejudicially affected by such adjournment'". It is clear from the above that the question whether an 20 adjournment will be granted or not, is within the discretionary powers of the trial Judge and depends on the facts of the particular case. It is also upon the appellant to persuade this Court that the trial Judge wrongly exercised this discretion. 25 In the present case we have not been persuaded that the trial Judge was wrong to refuse the adjournment applied for as the appellant was notified both verbally and in writing about the date of trial and failed to appear without giving any reasons. 30 Therefore, this appeal is dismissed with costs. Appeal dismissed with costs. 552