[*252] 1986 January 15.
(PAPAS, D.J.)
IN THE DISTRICT COURT OF PAPHOS
Plaintiff,
v.
Defendant.
Civil Procedure - Applications - Action dismissed because plaintiff failed to appear at the hearing, whereas the defendant did - Application for its re-instatement based on 0.33, r.1 of the Civil Procedure Rules - Dismissed as the rule applicable in the aforesaid circumstances is 0.33, r.5 and not 0.33, r.1.
Ch. Shailis for A. Kourides, for Applicant/Plaintiff.
Ch. Soteriades, for Respondent/Defendant.
RULING
The following ruling was delivered by:
PAPAS, D.J.: On the 30.6.1984 when this action was fixed for mention, the Court in the presence of both counsel, adjourned the action to 25.10.84 for hearing. On this latter date, the plaintiff and his counsel failed to appear before the Court when called although the time was 11.15 a.m. whereas the defendant and his counsel were present ready for the hearing. As a result, counsel for the defendant applied to the Court to have the [*253] case dismissed for want of prosecution and the Court ordered accordingly.
The app1icant/plaintiff filed to the Court, for the first time, an application dated 6.11.84 for reinstatement of the action but the latter application was withdrawn on the 22.3.85 and was dismissed by the Court. At a later stage, the applicant/plaintiff applied afresh by means of the present application for reinstatement of the action. This application has been opposed by the respondent/defendant and highly contested during its hearing.
The present application is stated to be based on 0. 33 r. 1, 0.48 r.9, 0.57 and 0.65 of the Civil Procedure Rules and the Order prayed for is for reinstatement of the action and no more.
Order 33 r.1 of the Civil Procedure Rules reads as follows:-
“If on the day fixed for trial the parties do not appear when the trial is called on, upon proof that they (or the party at whose instance such day was fixed) had notice, the action shall stand dismissed and shall not subsequently be heard, unless upon application to the Court, the Court orders reinstatement of the action on the ground that it is equitable so to do in the circumstances of the case.” [*254]
I have considered very carefully what has been submitted during the hearing of this application by both sides and I have also considered the authorities which were cited to me by both counsel.
It is my view that 0.33 r.1 of the Civil Procedure Rules does not apply under the present circumstances, the reason being, that 0.33 r.1 refers, in my opinion, to instances where both parties to an action fail to appear on the day fixed for trial. In the present case, as it transpires from the file, on the 25.10.84 when the case was fixed for trial, the plaintiff and his advocate failed to appear before the Court whereas the defendant and his counsel were present and ready to proceed with the trial.
In passing, I would like to mention that the plaintiff could have availed himself of the provisions of 0.33 r.5 to seek the setting aside of the judgment dismissing the action provided he had made an application to this end within 15 days after the date of the trial of the action or within such time as the Court might have allowed after an application under 0.57 for enlargement of time.
Unfortunately, the applicant/plaintiff based his application on 0.33 r.1 which, as I said before, is not applicable under the present circumstances. Consequently, the Court, to my mind, is hindered from going into the merits of the application and exercising any discretion. [*255]
In the result, the application fails and is refused. The Application is dismissed with costs in favour of respondent/defendant, to be assessed by the Registrar.
Application dismissed with costs.