APPLICATION TO PURGE DEFAULT-SECTION 86

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APPLICATION TO PURGE DEFAULT- Attorney-at-Law who appeared for the defendant on the 09.03.95, had taken a  wrong date - Inability of the defendant could have corroborate his version either in the form of an affidavit of the Attorney-at-law or viva voce evidence.Absence of any explanation as to why he was not able to tender an affidavit from the Attorney-at-law concerned or to call him as a witness to testify, further weakens his position.



 Abdul Salam,J.
The plaintiff respondent (hereinafter referred to as the plaintiff) instituted action on 23.10.1992, against the defendant appellant (hereinafter referred to as the defendant) seeking inter alia, a declaration to the effect that he is the owner of the property described in the schedule to the plaint and that he be given peaceful possession of the said property, thereby ejecting the defendant and all those who hold under him.

In so far as the facts relevant to this judgment are concerned, the date for the filing of the answer had been extended from time to time and it was finally due on the 27.6.1995.  Apparently, as the defendant failed to file his answer on the day it was noted by the learned district judge to be the final date of extension, the court proceeded to hear the case ex parte on the day it was fixed for such purpose. Subsequently, the matter was in fact heard ex parte and judgment was entered as prayed for in the plaint. Admittedly, the decree entered in the case has been served on the defendant on January 8.1996 and defendant thereafter made an application on January. 23. 1996, to excuse his default .

The plaintiff objected to the application of the defendant made under section 86 (2) of the civil procedure code.  The matter of the application made under section 86 (2), proceeded to inquiry at the conclusion of which the learned district judge, refused the application of the defendant to have the judgment and decree entered ex parte set-aside. The present appeal has been made by the defendant against the order of the learned district judge, refusing to set-aside the judgment and decree entered ex parte against the defendant.

At the inquiry into the application under section 86 (2) of the civil procedure code, the defendant testified on oath and  attempted to satisfy court that he had reasonable grounds for such default. The position taken up by the defendant in his evidence was that he was present in court on 9th March 1995 and he heard the next date being announced as 27th July 1995. The defendant further stated that he clarified the date from the lawyer as well. He stated that on the 20th he came to court and found out that the trial has been taken up and concluded on 17.07.1995. The defendant asserted that he maintained a diary during this period and took down the extended date for the filing of answer as 27th  July 1995. 

The learned district judge by his order dated 18th February 1999, held that the defendant has failed to prosecute his cause with due diligence and his version that the date was mistaken by him is untenable.   Consequently, the learned district judge refused the application of the defendant. The present appeal has been preferred by the defendant against the order refusing to set-aside the judgment entered upon default in terms of section 88 (2) of the civil procedure code.

As far as the application of the defendant to purge his default is concerned, the matter that came up for adjudication is the existence of any reasonable grounds for such default.

It is useful at this stage, to pay particular attention to the contents of the affidavit appended to the application of the defendant. In the said affidavit, the defendant states that he was present on every day the case was called in court.  He further states that on 9th of March 1995, when the answer was filed, he was present in court and his lawyer wrote down the date of trial as 27 .07.1995 and gave it to him. The original version of the affidavit[1] of the defendant is copied below for easy reference.

fuu kvqfõ 1995’03’09 jk osk W;a;rh bosrsm;a l, wjia:dfõ úNd.hg .kakd oskh 1995’07’27 jk osk f,i udf.a kS;S{jrhd igyka lr f.k tu oskh ug o úNd. oskh f,i ,nd os we;’

 As opposed to the contents of paragraph 4 of the affidavit of the defendant quoted above, his evidence on oath was that he himself heard the date being announced as 27 July 1995.

As regards the step that was taken on 9th  March 1995, the defendant in paragraph 4 of the affidavit categorically states that the answer was filed by his lawyer and the matter was fixed for trial on the 27th of July 1995. As opposed to this, his evidence in court was that no answer was filed on that day and the date for the filing of the answer was extended until 27th July 1995..


On a  perusal  of the Journal Entry number 22 dated 27.06.1995, it is quite clear that the matter has been fixed for exparte hearing due to the failure on the part of the defendant to file his answer. In this respect the contradiction that arises as regards the averments in the affidavit and the evidence of the defendant, is of such magnitude which calls for the finding, the learned district Judge has arrived at. Further the confusion that arises on the evidence of the defendant leads to a serious doubt as to whether the defendant was in fact present on 09.03.1995.

In the affidavit, the defendant has further stated that between 09.03.1995 and 27.07.95 he visited the office of his lawyer to check the correctness of the trial date given to him as 27.07.1995. However, in his evidence on the oath, he failed to state anything regarding his visit to the lawyer’s office, to check the correctness of the trial date.

In the light of the contradiction mentioned above, I regret my inability to agree with the learned counsel of the defendant that the findings of the leaned District judge, of the lack of credibility of the defendant is unsupported by any evidence. The contradictions  between various averments  in the affidavit and the evidence of the defendant lead to the conclusion that the defendant has had no reasonable grounds for his failure to file his answer, on the 09.03.1995,  which was the final date fixed for that step.

In any event, if the Attorney-at-Law who appeared for the defendant on the 09.03.95, had taken a  wrong date, the defendant could have corroborated his version either in the form of an affidavit of the Attorney-at-law or viva voce evidence. In the absence of any explanation as to why he was not able to tender an affidavit from the Attorney-at-law concerned or to call him as a witness to testify, further weakens his position. 

For the foregoing reasons, I am of the opinion that the finding of the trial judge should not be disturbed, as he has heard the defendant giving evidence on that matter and formed an opinion that the version of the defendant is totally unreliable.

For the foregoing reasons the appeal is dismissed with costs.



                                    Judge of the Court of Appeal

                                       END
FURTHER DETAILS

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

C.A.Appeal No. 482/99(F)
DC.Kandy case No. 17250/L
                                                            Jayatilleke Mudiyanselage
                                                            Wijekoon, Murapola, Kolabissa.

                                                            Defendant-Appellant.

                                                            -vs-

Weerasinghe Jayatilleke Mudiyanselage Jayatilleke
of Ududeniya, Marassena.


Plaintiff-Respondent.                                                          
Before:                                   A.W.A. Salam,J.
Counsel:                                Riza Muzny for the Defendant-Appellant.
H.Withanachchi for the Plaintiff-Respondent.
Written Submission
Tendered on:                        30.06.2006

Decided on:                         21.06.2007   

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