CPC 86(2)- RESULTANT DELAY BY REASON OF INTERVENING APPEALS-NEED TO REMEDY THE SITUATION-OBITER- FAILURE TO ADDUCE REASONS FOR THE DEFAULT- CONSEQUENCES

CPC 86(2)- RESULTANT DELAY BY REASON OF INTERVENING APPEALS-NEED TO REMEDY THE SITUATION-OBITER- FAILURE TO ADDUCE REASONS FOR THE DEFAULT- CONSEQUENCES

   

is always inordinate delay in the finaldispoThere sal of cases where the intervening right of appeal granted under 88(2) of the CPC is  exercised . These appeals are also usually listed and taken up for argument along with other appeals, unless accelerated. Timely intervention of the legislature has now become necessary to remedy this injustice.

The legislature therefore should take such a policy decision and lay down guidelines to enable the appellate courts to dispose of these appeals without much delay, as such appeals are relatively uncomplicated in nature, to facilitate the resolution of the substantial dispute.

This may be achieved at least by prescribing a minimum time limit for the conclusion of such appeals or to grant priority towards their disposal, over the other appeals of the Court of Appeal and the Provincial Civil Appellate High Courts.

.

                                                                

           CA Appeal No.  1020/96 F                 
            D.C. Pugoda  149/L              

            

            Pindeniyage Waralias Singho, 

            Singappuli Arachchige Martin Singho

            Plaintiff-Appellants

                 Vs

           Pindeniyage Ranasinghe,

           Defendant -Respondent.

.          
            Nizam Kariapper with M I M Iynullah for the Plaintiff- Appellants and Prince
            Perera   with Inoka Perera for the defendant- respondent.               

           Decided on    09.12.2010                                                          

Abdus Salam J.

This concerns an appeal by the plaintiff (appellant) against the order of the learned district judge, setting aside the judgment and decree entered exparte against the defendant (respondent) for default and permitting him to proceed with his defence as from the stage of default.

The factual background led to the appeal, leaving out unnecessary details are that summons was admittedly served on the defendant on 01.08.1994, commanding him to answer to the plaint on 01^st September 1994 and on that day the defendant neither attended court in obedience to the summons nor did he cause a recognized agent or an attorney-at-law to enter an appearance on his behalf. This resulted in the matter being fixed for expartehearing on 23 September 1994. Thereafter on the application of the plaintiff the ex parte hearing was adjourned and finally taken up on 8 November 1994 and decided in favour of the plaintiff. It is common ground that a copy of the decree was caused to be served on the defendant in terms of 85 (4) and the defendant duly made an application on 19 June 1995  to have his default explained under 86(2) of the CPC.

At the inquiry held into the application to purge default, the defendant gave evidence and closed his case. In the course of his evidence, a medical certificate dated 16 June 1996 issued by a native physician was produced subject to proof marked as vQ 1. At the close of the defendant’s case the document  vQ 1 admitted subject to proof was not tendered and/or read in evidence in keeping with the cursus curiae of our courts. By reason of the failure on the part of the defendant to tender and read vQ 1 at the close of the defendant’s case, the plaintiff was deprived of the opportunity to either acceptvQ 1 without further proof or to take exception to vQ 1.

The excuse of the defendant offered in his application needs to be referred to at this stage. In terms of paragraph 2 of the application and the corresponding paragraph in the affidavit, the defendant maintained that he developed a chest pain one day prior to 1st September 1994 which lasted for one week and it prevented him from attending court. Quite significantly, the defendant in his application made no mention of his having been treated by the native physician for his chest pain.

The evidence of the defendant offered in explanation of his default was somewhat contradictory to the application and briefly is that he developed a chest pain one week prior to the summons returnable date and he consulted the physician on 1 September 1994. Admittedly, he has made no mention of the case to the physician. According to the defendant, the medical certificate vQ 1 has been obtained on 16 June 1996 after he had been told by the court officials that such a certificate is necessary to obtain relief.

In terms of section 86 (2) of the CPC the defendant is required to make an application and thereafter satisfy court that he had reasonable grounds for his default. Therefore, the pivotal question that arises in this appeal is whether the defendant established that he had reasonable grounds for his default.

As far as the impugned judgment is concerned, reasonable grounds considered by the learned district judge are as follows.

The illness of the defendant as referred to in the application and the evidence of the defendant.

His employment.

Want of education and

Degree of imprudence.

The yardstick used by the learned district judge to ascertain as to whether the defendant had reasonable grounds to keep away from court, namely, the fact that he is a labourer without any educational background and prudence could not have constituted "reasonable ground" as contemplated in section 86 (2) of the CPC. In the circumstances, it is palpably clear that the learned district judge has fallen into a serious error by categorizing them as "reasonable grounds" falling within the ambit of section 86 (2). 

Quite noticeably, the defendant never took up his employment, educational standard and imprudence as excuses for his default. Nonetheless, the learned district judge in his over enthusiasm to treat the application of the defendant with a touch of mercy had come out with his own innovative theory to accommodate the defendant. In this exercise the learned district judge has been totally blind to the correct interpretation of the phrase "reasonable ground" and also unconsciously shown utter disregard to certain cardinal principles of law such as Ignorantia juris non excusat or Ignorantia legis neminem excusat (ignorance of the law does not excuse or ignorance of the law excuses no one). By reason of this principle no person who claims to be unaware of a law may escape liability for violating that law merely because he or she was unaware of its content due to lack of knowledge, education or prudence. The approach of the learned judge, if endorsed as being correct would result in a multitudes of possibilities of baseless applications being presented to district courtson the basis of ignorance of law.           

The reason for the assumption that everyone knows the law should be focused to examine the propriety of the impugned order. As summed up by Chief Justice Ellenborough in 1802, “every man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried and it would be urged in almost every case". 

For reasons stated above I propose to confine myself only to the ground of illness as urged by the defendant, as an excuse for his default.

An application to set aside a decree entered for default is heard  interpartes. As such it is the duty of court to give reasonable weightage to the versions of both parties. It would be unreasonable to grant relief to a defendant atdefault, by stepping beyond the bounds of section 86(2). 

As far as the defendant is concerned he has been served with summons to appear in court after one  month notice. He has not taken any steps to consult a lawyer during that period nor has he taken any meaningful step to keep the court abreast of the difficulty he claims to have encountered.

In the instant case, summons had been served on the defendant on 1 August 1994 and made returnable on 1 September 1994. However, the ex parte trial had begun on 25 January 1995. The judgment was delivered on 25 January 1995. It would therefore be seen that between the service of summons and the pronouncement of judgment there was interval of almost 6 months. 

In other words the defendant has had a period of almost 6 months to make an application under section 86(2)A of the CPC as amended by section 3 of Act No 53 of 1990 to make an application to set aside the order fixing the matter for ex parte trial. Even if it is to assume that the plaintiff would have objected to such an application, yet the fact remains that the defendant had never contemplated to invoke section 86 (2). This  shows the lack of diligence and enthusiasm on the part of the defendant to assert his rights. 

The defendant in any event had the legitimate legal right to wait till the service of the copy of decree to make his application to set aside the decree. Let us now look at whether the defendant has established a reasonable ground to set aside the decree.

The defendant has fallen ill one week prior to the summons returnable date. But he has gone to the native physician only on the summons returnable date, namely on 01.09.1994. However, according to the medical certificate the defendant was unable to attend court on 30.08.1994 and he has been recommended leave for two weeks from 30.08.1994. Undoubtedly the recommendation for leave should be viewed as totally different from being unable to attend court. In other words when leave is recommended it does not necessarily mean that someone is unable to attend court. Generally leave  is recommended by physicians to excuse one from attending to  employment related affairs. Therefore even if the medical certificate is accepted, there is no recommendation that the defendant was unable to attend court on 1 September 1994. On that account alone the learned district judge should have rejected the medical certificate as being a document incapable of accounting for the absence of the defendant.

The next question that arises for consideration is the extent which the medical certificate has been proved by the defendant. The defendant has not called the native physician to testify on his behalf, even though vQ1 was marked subject to proof. Besides, he has failed to tender and  read the medical certificate in evidence. If it was done the plaintiff would have had the opportunity to re-insist on the proof of the medical certificate. As such the medical certificate should have been rejected in toto. 

When the medical certificate is rejected then what remains to be considered is the bare statement of the defendant that he suffered a chest pain on 01.09.1994. This bare statement is not at all convincing,   when considered in the light of the degree of callousness, lethargy and inaction of the defendant. 

As such the learned district judge’s finding that the defendant had reasonable ground to keep away from court on the summons returnable date appears to be tainted with serious misdirection on the construction of the phrase "reasonable grounds" as used in section 86 (2) and had ended up in a serious miscarriage of justice, as far as the plaintiff is concerned. Such misdirection in accepting the evidence of the defendant has ended up in a travesty of Justice. For reasons enumerated above, it is my considered view that the impugned order deserves to be interfered with in the excise of the appellate jurisdiction of this court and thus set aside with no hesitation. 

It may be useful to observe at this stage that to send this case back for fresh inquiry may not meet the ends of justice, as the irresistible conclusion on the evidence placed would in any event demands the refusal of the application of the defendant to proceed with his defence. Further a fresh inquiry will place the defendant once again at a tremendous undue advantage of having a second bite of the cherry, as it will facilitate him to go through a fresh inquiry in the original court once again followed by a usual time consuming statutory appeal, resulting in the denial of justice. 

Even though it may not be relevant, it is useful to have it placed on record that judicial discretion vested in a judge to allow a defendant to proceed with his defencenotwithstanding his default on proof of reasonable grounds should be looked at and exercised as a judicial discretion which allows a judge to do, not what he  likes but what he ought. 

Before I part with this judgment, I feel obliged to point out the inordinate delay that always takes place in the final disposal of suits where intervening right of appeal granted under 88(2) of the CPC is exercised. These appeals are also usually listed and taken up for argumentalong with other appeals, unless they are accelerated. To remedy this injustice, timely intervention of the legislature has now become necessary. The legislature therefore should take such a policy decision and lay down guidelines to enable the appellate courts to dispose of these appeals without much delay, as such appeals are relatively uncomplicated in nature, to facilitate the resolution of the substantial dispute. This may be achieved at least by prescribing a minimum time limit for the conclusion of such appeals or to grant priority towards their disposal, over the other appeals of the Court of Appeal and the Provincial Civil Appellate High Courts. 

Having made the above observation, I am compelled to set aside the impugned order and allowed the appeal of the plaintiff. The impugned order is thus replaced with an order dismissing the application of the defendant made under section 86 (2) of the CPC. The learned district judge is directed to enter decree accordingly.

The plaintiff is entitled to costs of the inquiry in the lower court and before this court.

Sgd.

Judge of the Court of Appeal

Kwk/-

          I do hereby certify that the foregoing is a true copy of the judgment dated 09.12.2010 filed of record in C.A. Appeal No. 1020/96F.

Typed           by      :

Compared with      :

                                                          Chief Clerk- Court of Appeal