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Court of Cassation - Civil & Trade Division - Number: 53 /2008

Ruling Summary Record: The Court: Court of Cassation Circuit: Civil & Trade Division Number: 53Year: 2008Session Date: 6/17/2008

The Court Panel :Abdulla Bin Ahmed Al-Saadi - Abd AlRaouf Ahmed Al-Bekeey - Ibraheem Mohamed Al-Taweela - Mounir Ahmed El Sawy - يحيى إبراهيم عارف. -

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إنشاء قائمة تشغيل جديدة

إدخال اسم لقائمة التشغيل...

Session: June 17, 2008

Appeal No. 53, 2008 Civil Cassation

Appeal "Service of the statement of Appeal". Service of Process "Service of Process at Selected Domicile". Invalidity: "Invalidation of Service of Process". Judgment " Appealing of Judgment".

Service of appeal. Must be on opponent party personally or at his original domicile. Service of appeal at selected domicile. In two cases. Must be stated on the judgment serving paper, or if respondent was plaintiff and his original domicile was not stated in the statement of suit. Service of appeal –other than in these two cases – at selected domicile. Not valid. Article (158) Civil & Commercial Procedures.

Provision of Article (158) Civil & Comm. Procedures that "service of the appeal shall be on opponent party personally or at his original domicile, and may be served at his selected domicile stated in the judgment serving paper, and if respondent was the plaintiff and did not state his original domicile in the opening statement of suit, he may be served with the appeal at his selected domicile stated in that statement of suit.", means that service of appeal may be effected in two cases only, first: if the selected domicile of respondent is stated in the judgment serving paper, second: if respondent was the plaintiff who did not state his original domicile in the opening statement of suit; service of appeal at the selected domicile other than in these two cases is not valid; for, the principle – as provided for in Paragraph One of the said Article – is to effect service on opponent personally or at his original domicile. That being so, and whereas it is established from the papers that service of the statement of appeal was effected at the office of advocate (-), being the selected domicile of the two Respondents, thereby service was not proper to be effected at this place, and in a manner other than that of the two cases provided for by way of exception in the said Article (158). Therefore, service is invalid.

Court:

After reviewing the papers and hearing the report, read by the reporting judge, pleading, and after deliberation.

Whereas the appeal has satisfied its formal conditions;

The facts, as stated in the appealed judgment and the other papers, are that Respondent company instituted Suit No. (-) Full Civil Circuit, for evicting the two Appellants from the leased premises and compensation for using it after expiration to the lease contract on 1/1/2007, and explaining this it said that two respondents leased from it fifty six apartments of the building indicated in the statement of suit and contract for the duration of two years starting as of 1/1/2005, and that before expiration of the lease it gave notice to the two Appellants of its intention not to renew the contract for another term and to vacate the leased premises, but they did not, so it filed the suit. The court dismissed the suit. Respondent filed Appeal No. 509/2007 and the court cancelled the appealed judgment and decreed termination of the lease contract and ordered the two Appellants to surrender the leased premises and pay to Respondent the sum of ninety eight thousand Riyals monthly starting from 1/1/2007 until the date of surrendering the premises to Respondent. The two Appellants appealed against this judgment for cassation, which was put before this court in the consultation room, and a date for hearing was fixed.

Whereas the two Appellants argue against the appealed judgment for misapplication of law, explaining that by saying that the statement of appeal was served at the office of advocate (-), contrary to Article (158) of the Code of Civil & Commercial Procedures, thereby being invalid, and therefore, the judgment based on it which was passed against them without their attendance at any of the sessions for hearing the appeal, is flawed and calls for cassation.

Whereas this argument is in place, for, the purport of the provision of Article (158) Civil & Commercial Procedures that "service of the appeal shall be on opponent party personally or at his original domicile, and may be served at his selected domicile stated in the judgment service paper, and if respondent was the plaintiff and did not state his original domicile in the opening statement of suit, he may be served with the appeal at his selected domicile so stated in that statement of suit.", is that service of appeal may be effected in two cases only, first: if the selected domicile of respondent is stated in the judgment service paper, second: if respondent was the plaintiff whose original domicile was not declared in the opening statement of suit; service of appeal at the selected domicile other than in these two cases is not proper; for, the principle – as provided for in Paragraph One of the said Article – is to effect service opponent party personally or at his original domicile. That being so, and whereas it is established from the papers that service of the statement of appeal was effected at the office of advocate (-), being the selected domicile of the two Respondents, thereby service was not proper to be effected at this place, and in a manner other than that of the two cases provided for by way of exception in the said Article (158). Therefore, service is improper. That being so, and as it is established that the two Appellants did not attend any of the appeal hearing sessions, therefore, the judgment determining the appeal without proper service of process on the Appellants, is a misapplication of law and liable to cassation without the need to consider the other grounds of the appeal.

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