Session of 2 December 2008
Civil Cassation Appeal by Cassation No. 127 / 2008
(3-1) Appeal “effects of an appeal: applications in an appeal: a new application: what is considered as such, what is not” – judgment “its reasoning”: defects in argumentation: error in the application of the law: what is not considered as such”.
(1) That no new application may be presented before the Court of Appeal – it shall decide the inadmissibility of its own accord – Section 172 Procedures – the reason for this.
(2) The original application in a claim – that its reason may be changed or added to before the Court of Appeal – its condition – that the intention of the claimant should be ensure his right to the same application presented before the first instance court.
(3)  That the initial claim by the appellant was based on an application for the rescission of the rent contract and eviction for his personal need to occupy the rented property, and for the failure by the respondent to pay the rent – contending against the judgment appealed against by cassation its error in the application of the law by not ordering eviction due to the expiration of the rent contract under Section 625 – civil – which was not presented before the first instance court – baseless – the reason for this.
1- The established principle is that adjudication shall be of two levels and, in order to avoid the exploitation of appeal as a means of ambushing the opposing litigant with an application not previously presented before the first instance court, Section172 of the procedures Law prohibits the admission of any new application before the appellate court, an made it mandatory on such court to decide of its own accord not to admit such application.
2- Whereas Section 172 of the Procedures Law allows the alteration of the reason of the application or addition thereto, without changing the substance of such application, this is subject to the condition, beside the reason on which such application was based before the first instance court, that the intention of the claimant behind such alteration or addition is to ensure his right in the same application that presented before such court.
3- It is evident from the records of the judgment appealed against by cassation and other documents that the subject of the application which the Appellant presented before the first instance court was the rescission of the rent contract, eviction for personal need to occupy the property and the Respondent’s failure to pay the rent. This application is different from what is included in the reason of the contention, namely, the application for a judgment ordering the eviction of the rented property for the expiration of the rent contract, which was not previously presented by the Appellant before the first instance court, thereby rendering it as a new application which should not be presented before the Court of Appeal. Such Court may decide of its own accord not to admit such application in pursuance of the aforesaid Section 172 of the Procedures Law. Accordingly, this appeal becomes baseless.

Having reviewed the documents, heard the report read out by the Presiding Judge and heard the pleadings, and after due deliberation on the appeal by cassation which satisfied its formal requirements;
The facts, as revealed in the judgment appealed by cassation and other documents, may be summarised as follows. He Appellant brought the claim No (…) – civil – general – against the Respondent applying for a judgment ordering its eviction of the property the subject-matter of the litigation and delivery of such property to him, on the basis that by virtue of the rent contract dated 2.3.2005 and ending on 30.4.2007 the Respondent took on rent a warehouse located at the industrial area as a residence for its workers. Due to his need for the rented property he served notice on the Respondent on 1.2.2006 of his desire not to renew the contract and to evict the property. The Respondent refused so to do and failed to pay the rent for May 2007, prompting him to bring the claim. He court dismissed the claim. The Appellant lodged against the said judgment an appeal No 2004/2008 on which the court issued a judgment on 22.6.2008 upholding the appealed judgment. The Appellant then lodged an appeal by cassation against such judgment, which was presented before this Court at the deliberation chamber where it fixed a session for its consideration.

This appeal is based on a single reason, in which the Appellant contends against the judgment appealed against by cassation that it violated the law and erred in its application. He stated that the proper application of the law on the application presented by litigants is a duty of the judge alone. The judgment appealed against by cassation should have ordered the eviction of the property the subject-matter of the litigation in pursuance of Section 625 – Civil – for the expiration of the rent period and the notice served by the Appellant on the Respondent before such expiration of the former’s desire not to renew such contract. However, such judgment departed from such jurisprudence and founded its dismissal of the claim on the provision of Section 631 – Civil – without the need to apply such Section, which renders such judgment defective and necessitates its cassation.

This contention is inadmissible. The established principle is that adjudication should be of two levelsand, in order to avoid the exploitation of appeal as a means of ambushing the opposing litigant with an application not previously presented before the first instance court, Section 172 of the Procedures Law prohibits the admission of any new application before the appellate court, an made it mandatory on such court to decide of its own accord not to admit such application. Whereas such Section allows the alteration of the reason of the application or addition thereto, without changing the substance of such application, this is subject to the condition, beside the reason on which such application was based before the first instance court, that the intention of the claimant behind such alteration or addition is to ensure his right in the same application that presented before such court.It is evident from the records of the judgment appealed against by cassation and other documents that the subject of the application which the Appellant presented before the first instance court was the rescission of the rent contract, eviction for personal need to occupy the property and the Respondent’s failure to pay the rent. This application is different from what is included in the reason of the contention, namely, the application for a judgment ordering the eviction of the rented property for the expiration of the rent contract, which was not previously presented by the Appellant before the first instance court, thereby rendering it as a new application which should not be presented before the Court of Appeal. Such Court may decide of its own accord not to admit such application in pursuance of the aforesaid Section 172 of the Procedures Law. Accordingly, this appeal becomes baseless, and should be dismissed.