Civil appeal dismissed because ex parte application for early trial was abandoned as out of time under rule 17.035.17. The court also clarified that early trial requests must be judged on merits, not just judge availability.
Cipro (CY)
Sintesi Legislator
Generato dall'IAThe appellant's appeal against the refusal of an ex parte application for an early trial date was dismissed because the appeal was abandoned by counsel as being out of time. The application had been refused on June 17, 1971, and the appeal was filed on June 25, 1971, exceeding the four-day limit under rule 17 of Order 35. While the appeal was procedurally barred, the court noted that the lower court erred in refusing the request solely due to a lack of available judges caused by heavy workloads, stating such applications should be decided on their merits.
Regesto Legislator
Generato dall'IAOrder 35, Rule 17; Order 35, Rule 17.035.17: An application for an early date of trial must be adjudicated on its merits, and if granted but unarrangeable due to judicial pressure, the Supreme Court should be notified to facilitate temporary judicial personnel from another district.
Parole chiave
Generato dall'IADisposizioni normative citate
Generato dall'IADecisioni correlate
Generato dall'IATesto completo
[*1362] 1971 July 1st
(TRIANTAFYLLIDES, P., HADJIANASTASSIOU, A. LOIZOU, JJ.)
APPELLATE JURISDICTION
Nina Siman,
Appellant-Plaintiff,
v.
Georgnios Tambourlas,
Respondent-Defendant.
(Civil Appeal No. 4989).
Civil Procedure - Appeal against refusal of ex-parte application - Not brought within the time limit provided by
0.35 r. 17 of the Civil Procedure Rules - Abandoned - Dismissed.
Observations with regard to the correct course to be adopted when dealing with an application for an early date of trial and it is found that it should be granted but that it cannot be arranged for the early trial to take place due to pressure of other work on the judges of the District Court concerned.
Chr. Demetriades with A. Triantafyllides, for the Appellant.
J. Kaniklides with M. Hadjichristofis, for the Respondent.
JUDGMENT
The judgment of the Court was delivered by: -
TRIANTAFYLLIDES, P.: This appeal, which has been made against the refusal of an application for [*1363] an early date of trial of Civil Action No. 3335/70 before the District Court of Famagusta was abandoned by counsel for the appellant as being out of time; the said application was an ex parte application, it was refused on the 17th June, 1971 , and the appeal was filed on the 25th June, 1971, after there had elapsed the four days' period provided under rule 17 of Order 35 of the Civil Procedure Rules.
We would like, however, to observe that, having perused the reasons given by the Court below in refusing an early date of trial, we think that it was not the correct course to have done so merely because there were not, at the material time, available for the purpose - due to pressure of other work - any judges of the District Court of Famagusta. An application for an early date of trial should be dealt with judicially on its merits and if it is found that it should be granted but that it cannot be arranged for the early trial to take place due to the pressure of other work on the judges of the District Court concerned then the situation should be brought to the notice of the Supreme Court so that necessary steps may be taken to make temporarily available to such District Court, from another District Court, additional judicial personnel.
In the result the appeal is dismissed, with costs for one advocate on the basis of the minimum of the relevant scale of advocates’ fees.
Appeal dismissed; order
for costs as above.