(1989)1989March31 (SAWIDES,HADJ1TSANGARIS,BOYADJIS,JJ.) PANAYiOTA ANDREA LOIZIDE,WIFEOFSAWAS MICHAEL AND ANOTHER, Appellants-Defendants, v. PANAYIOTA FIAKOU, Respondent-Plaintiff. (Civil Appeal No. 7742). Appeal — Dismissal of, by reason of non-compliance with Rule 22 of 0.35 oftheCivil Procedure Rules — Thetimelimit isofa mandatory nature — The fact that after its expiration Registrar requested compliance with Rules 6, 21 and 22 of 0.35 does not save the appeal — Therefore, the fact that such notice did not come to the attention ofcounsel byreasonofamistakeofhisclerkisnotaground 5 for reinstating the appeal. Civil Procedure — Appeal — Reinstatement of Appeal which had been dismissed for non compliance with Rule 22 of 0.35 of the Civil Procedure Rules — Review ofauthorities — 0.33, rules1and5 and 0.65, rule 11areirrelevant. *" The facts of this case appear sufficiently from the hereinabove headnote. Application dismissed. Casesreferred to: Kyriacou v.Georghiadou
(1970)1C.L.R. 145; 15 Ibrahim v.Kasab
(1972)1C.L.R. 16; HjiPanayi v.HjiPanayi
(1974)1C.L.R.60; Harakis v. Feghali
(1979)1 C.L.R. 293. application. Application by appellant for the reinstatement of the appeal 208 20 1C.L.R. Loizidev. Fiakou which has been dismissed under rule 22 of Order 35 of the Civil Procedure Rules. N. Papamiltiadous, for the appellants. M.Charalambides,forthe respondents. 5 SAWIDESJ. gave the following decision of the Court. By the present application the applicants,whoaretheappellants inCivil Appeal No. 7742,which was dismissed on 31.1.1989 under rule 22 of Order 35 of the Civil Procedure Rules, seeks the reinstatement by us of such appeal, in the exercise of our 10 discretionary powersunderthe saidrule. The appeal was filed against the judgment of a judge of the District Court of Nicosia in Action No. 7631/83 of the District Court of Nicosia, whereby judgment was given in favour of the respondent/plaintiff againstthe applicantsand their counterclaim 15 was dismissed. The facts relevant to the present application are briefly as follows:Counsel for the appellants filed the above appeal on 26 July, 1988, but he failed within one month of lodging his notice of 20 appeal, to apply for copies and make a deposit as provided in Rules 6 and 21 of Order 35 of the Civil Procedure Rules. Long after the expiry of the said period and in fact on 24.10.1988 the Registry addressed to counsel for the appellants, with copy to counsel for the respondent, the following letter:25 30 «With reference to Order35rules 6, 21 and 22 ofthe Civil Procedure Rules, you are requested to comply with the provisions of the Rules and lodge in this Court the sum of £10.- subject to increase or return of any surplus for the preparation of the record of the proceedings, if you wish to have the appeal fixed for hearing». Counsel forappellants failed totake anystepsinfurtherance of the appeal and counsel for respondent on 24.12.1988 filed an application for the dismissal of the appeal for failure of the appellantstocomplywiththerelevantprovisionsintheRules.The 35 application was granted and the appeal was dismissed accordingly. Subsequently, counsel for the appellants filed the present application for the reinstatement of the appeal. 209 SavvidesJ. Loizidev.Fiakou
(1989)The grounds relied upon as set out in the affidavit sworn by a clerk of counsel for the appellants, which accompany the application, arethat the letterofthe Registrarwasreceivedbyhim butbyoversighthefailed toinformcounselofthereceiptofsucha notice. ° The application isbased onOrder
- Rules 1and 5, Order35, rules21 and 22, Order 65, rule 11,ofthe CivilProcedure Rules. TheprovisionsofOrders33and 65oftheCivilProcedure Rules are entirely irrelevant and have no bearing at all in the present case. Both such Orders refer toproceedings before a districtcourt 10 intheexercise of first-instance jurisdiction and have nothing to do with the procedure on appeal which is regulated by Order 35 of theCivil Procedure Rules. The relevant rules in the present case are rules 21 and 22 of Order35, which provide asfollows:«
- Ifthe appellant does not, within one month of lodging his notice of appeal, apply for copiesand make a deposit as provided in rule 6 of thisOrder, the appeal may be dismissed on the application of any party. Such application may be madeexparte,buttheCourtofAppealmaydirectnoticetobe 20 given to such of the other parties or persons affected by the appeal asitmay deem fit. 22.Iftheappellantdoesnot,withinthreemonthsoflodging hisnoticeofappeal,takethestepsmentioned inrule21ofthis Order, the appeal shall stand dismissed, but it may, if the 25 CourtofAppealsodeemsfit,bereinstatedupon suchtermsas may bejust». Rule 22 gives a discretion to the Court «if it deems fit» to reinstatean appeal upon suchtermsas maybe just. Rules21and 22of Order35havebeenjudiciallyconsidered by 30 our Supreme Court in a series of cases. In Kyriacou v. Georghiadou
(1970)1 C.L.R. 145, the Court of Appeal after concluding that the appellant failed to show cause why the discretionoftheCourtshouldbeexercisedinhisfavour tohavehis appeal reinstated,stressed thefollowing (perJosephides,J., atp. or 147):«itisinthe publicinterestthatthere shouldbe some end to litigation, and thestipulationsastotimeinprocedural matters 210 *5 1C.L.R. 5 Loizldev. Fiakou SawidesJ. ' laid down in the Rules of Court are to be observed unless justice clearlyindicatesthattheyshouldberelaxed:cf. Loizou v..Konteatis
(1968)1C.L.R. 291,at page 294; Georghiou v. Republic (Minister of Interiorand Another)
(1968)1 C.L.R. 411; and Edwardsv.Edwards[1968] 1W.L.R. 149». The above view was followed in Ibrahim v. Kasab
(1972)1 C.L.R. 16, 17. HjiPanayi v. HjiPanayi
(1974)1 C.L.R. 60 and Harakisv.Feghali(1979}1C.L.R. 293.The cases of Ibrahimand HjiPanayi(supra),were casesinwhich,asinthe caseofKyriacou 10 (supra) after the dismissal of appeals under rule 22 of Order 35 applications were made for reinstatement of the appeals concerned. InHarakisv. Feghali(supra), long after the expiryof thethree months'periodprescribed byrule22,the Registryofthe Court addressed aletter tocounsel forthe appellant, with copy to 15 counsel for the respondent, requesting him to comply with the provisions of the rules and lodge the amount required for the preparation of the record of the proceedings ifhe wished to have the appeal fixed for hearing. Counsel for the appellant complied with such request and the appeal was fixed for hearing. At the 20 hearing of the appeal counsel for the respondent raised a preliminary objection that the appeal should be treated ashaving stooddismissedeversincetheperiodspecified inrule22ofOrder 35 expired, which wassustained bythe Court. Inthejudgment ofTriantafyllides P.,(ashethen was)inHarakis 25 (supra)we read the following atpage295:«In our view, the provisions of rule 22 are of a mandatory nature and, therefore, they come into operation without the need totake anyspecific step forthatpurpose; consequently, we agree with counsel for the respondent that this appeal 30 standsdismissed eversincetheperiodofthreemonths,afterit waslodged onJuly 15, 1977,hasexpired; ...» Andatpp.296and297thefollowing observationsappearasto the actions taken by the registry in informing counsel for the appellant asabove:35 «Butwhatever action was taken, as above, by our Registry administratively, in a routine way, cannot alter the legal position which crystallized when, after the expiry of the three months'period prescribed byrule22 ofOrder35, this appeal came tostand dismissed byvirtueof the application of rule 22 40 211 SavvidesJ. Loizidev.Flakou
(1989)We would liketoconclude byobservingthat,inviewofthe true effect of rule 22 of Order 35, the Registry of this Court should not taken any step in relation to an appeal which standsdismissedbyoperation ofthatrule,otherthanto certify that itdoes stand dismissed». 5 The only reason advanced by counsel for the applicants for non-compliance withthe rulesisthe fact alleged inthe affidavit of nisclerk that she failed, byoversight to bring tohisnotice that the appeal was filed, and that such oversight wasdetected after awrit of movables was issued against the applicants. 10 From the facts before us counsel was aware of the filing of the appeal but he only alleged that the letter of the Registry did not come tohisknowledge.Once theadvocate wasawareofthe filing of the appeal it was his duty under the rules to comply with the requirements of rule 21 without expecting anyreminder from the 15 Registrar. The fact whether the letter of the Registry came to his knowledge or not is entirely irrelevant in view of the mandatory provisionsof rule 21 of Order35. In the circumstances before us we are of the opinion that the applicantsfailedtosatisfy usthatitisfittoexerciseourdiscretionin 20 their favour and grant their application. Asa result the present application failsand ishereby dismissed with costs in favour of the respondent. Application dismissed with costsagainstapplicants. 25 212