REQUIREMENT TO GIVE NOTICE TO THE PARTIES AS TO THE DATE OF JUDGMENT Case filed on 28-07-92. Trial concluded on 23rd June 1997. Order fixed for 13-01-98 instead of judgment. On 24-03-98 judge was appointed as an ADJ to write the judgment despite his transfer. Case record dispatched on 19-05-98, to the ADJ. The matter had been mentioned on 02-06-98, 11-08-98, 24-09-98, 05-11-98, 14-12-98, 25-01.1999, 30-03-99, 20-05-99, 30-06-99, 30-09-99, 17-12-99, 31-01-00, 23-03-00 and on 24-04-00. No journal entries maintained from 02-06-98 to 24-04-00 as to any of the parties were present or represented when the matter was so mentioned.

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REQUIREMENT TO GIVE NOTICE TO THE PARTIES AS TO THE DATE OF JUDGMENT

      Case filed on 28-07-92. Trial concluded on 23rd June 1997. Order  fixed for 13-01-98 instead of judgment. On 24-03-98  judge was appointed as an ADJ to write the judgment despite his transfer. Case record dispatched on 19-05-98, to the ADJ. The matter had been mentioned on 02-06-98, 11-08-98, 24-09-98, 05-11-98, 14-12-98, 25-01.1999, 30-03-99, 20-05-99, 30-06-99, 30-09-99, 17-12-99, 31-01-00, 23-03-00 and on 24-04-00.  No journal entries maintained from 02-06-98 to 24-04-00 as to any of the parties were present or represented when the matter was so mentioned.

Finally on 03-07-00 court has pronounced the judgment  in the absence of the parties and their attorneys at law.  On 12-09-03 plaintiff moved that a copy of the decree be caused to be served on the defendant petitioners, on the misapprehension that the trial had been held exparte against them. Notice of decree served on the defendant on 06-01-04 and writ of execution issued.  When the matter was mentioned on 27-01-04, the court having observed that there was no necessity for a copy of the decree to be served on the defendant made order that the copy of the application relating to the execution of the decree be served on the defendant petitioners as more than one year had elapsed between the date of the decree and the application for its execution.
Sec. 184 of the CPC enacts that after the conclusion of the trial the judgment has to be pronounced at once or on some future day, of which notice shall be given to the parties or their registered attorneys at the termination of the trial and it is mandatory to give such notice. Plaintiff company lost track of the case to the extent of entertaining the misapprehension that the trial had been held ex parte against the defendant.  Had the judgment been delivered in favour of the defendant petitioners, the plaintiff would not have been in a better position than the defendant petitioners in relation to the exercise of the right of appeal.
The inordinate delay in delivering the judgment, the confusion created in the mind of the court as to the nature of the trial which had resulted in the defendant petitioners to be served with copies of decree and the fact that court had not fixed the matter for judgment on 24-04-00 warrant  the conclusion that the steps taken in this case in the Court of first instance from 03-07-00 to 27-01-04 be declared null and void. District Judge directed to re-deliver the judgment with due notice given to the parties or their registered attorneys in terms of section 184(1) of the Civil Procedure Code.

David Vs Choksy 1996 1 SLR 302


A.W.Abdus Salam, J.
This is an application for revision filed by the 1st and 3rd defendant-petitioners (hereinafter sometimes referred to as the "1st defendant" and “3rd defendant" or jointly referred to as the "defendant-petitioners) to revise and set-aside the undated judgment of the learned additional district Judge of Colombo pronounced according to the Journal entry No 55 on 03-07-00.

The sequence of events that led to the filing of the present application begins with the institution of action by the plaintiff-respondent (hereinafter referred to as the plaintiff) as far back as on 28-07-92.  In the said action the plaintiff sought judgment against the defendant petitioners and another person arising from a hire purchase agreement. Subsequent to the filing of the answer by the defendant petitioners, trial was held interpartes between the plaintiff and the defendant petitioners.  After the conclusion of the trial on 23rd June 1997, the learned trial Judge made order to have the case mentioned on 30-07-97 for the documents and written submissions of the parties.  The timeframe granted for documents and written submissions has been extended from time to time on nine occasions.  Eventually upon the receipt of the written submissions and documents of the defendant- petitioners on 04-12-97, the matter has been by an oversight fixed for order on 13-01-98 instead of judgment. 

On 13-01-98 when the matter was mentioned for order it was observed by the learned judge that the judgment was due from his predecessor whose appointment was required to be made by the judicial service commission for the limited purpose of writing the judgment.  Accordingly steps having been taken the judicial service commission by appointment dated 24-03-98 had appointed the learned judge before whom the trial had been held as an additional district Judge of Colombo to write the judgment.

The case record has been thereafter dispatched on 19-05-98, to the judge who had been appointed to prepare the judgment. Thereafter the matter had been mentioned on 02-06-98, 11-08-98, 24-09-98, 05-11-98, 14-12-98, 25-01.1999, 30-03-99, 20-05-99, 30-06-99, 30-09-99, 17-12-99, 31-01-00, 23-03-00 and on 24-04-00.  It is quite unfortunate that no entry has been made in the journal entries maintained from 02-06-98 to 24-04-00 as to whether any of the parties were present or represented when the matter was so mentioned.

It appears that the parties and their attorneys at law had lost track of the matter due to the inordinate delay in delivering the judgment. Finally when the matter had been mentioned on 03-07-00 court has pronounced the judgment written by the trial judge in the absence of the parties and their attorneys at law.  Quite surprisingly the plaintiff thereafter on 12-09-03 moved that a copy of the decree be caused to be served on the defendant petitioners, on the misapprehension that the trial had been held exparte against them. Accordingly, notice of decree had been served on the defendant petitioners on 06-01-04 and writ of execution had been issued against the 1st defendant.  However when the matter was mentioned on 27-01-04, the court having observed that there was no necessity for a copy of the decree to be served on the defendant petitioners had made order that the copy of the application relating to the execution of the decree be served on the defendant petitioners as more than one year had elapsed between the date of the decree and the application for its execution.

The present revision application has been filed by the petitioner on the basis that they had no knowledge of the date of judgment and that they came to know of the judgment and decree entered against them only upon the service of a copy of the decree.

In terms of section 184 of the Civil Procedure Code after the conclusion of the trial the judgment has to be pronounced at once or on some future day, of which notice shall be given to the parties or their registered attorneys at the termination of the trial.

In the case of David Vs Choksy 1996 1 SLR 302 it has been held that the duty cast  by section 184 (1) of the Civil Procedure Code to pronounce judgment either at once or on some future day, of which notice is given to the parties or their attorneys at law is mandatory.  

In this case the plaintiff company was also not represented on the day the judgment had been delivered.  Further the plaintiff company had lost track of the case to the extent of entertaining the misapprehension within itself that the trial had been held ex parte against the defendant petitioners.  Had the judgment been delivered in favour of the defendant petitioners, the plaintiff would not have been in a better position than the defendant petitioners in relation to the exercise of the right of appeal.

Taking into consideration the inordinate delay in delivering the judgment, the confusion created in the mind of the court as to the nature of the trial which had resulted in the defendant petitioners to be served with copies of decree and the fact that court had not fixed the matter for judgment on 24-04-00 warrant  the conclusion that the steps taken in this case in the Court of first instance from 03-07-00 to 27-01-04 be declared null and void and hence vacated.

Accordingly the steps taken from 03-07-00 to 27-01-04 are declared null and void.  The learned district Judge is directed to re-deliver the judgment with due notice given to the parties or their registered attorneys in terms of section 184(1) of the Civil Procedure Code.

There shall be no order for costs.

          Sgd.
      Judge of the court of appeal


                      END OF THE JUDGMENT


OTHER DETAAILS
C.A. Revision Application No.515/2004
D. C. Colombo No. 41057/MHP
                                                                       
                       


                                                 Kavisinghage Dharmapala
                                                                           Senadeerage Wijepala of
               1st & 3rd Defendant-Petitioners
                                                                             Vs.

                                                                        Mercantile Credit Limited,
                                                                        Plaintiff-Respondent

                                   
Dr Jayatissa de Costa with Chinthaka Siriwansa for the 1st and 3rd defendant-petitioners and Padma Bandara with P.Somaratne for the plaintiff-respondent.
Decided on: 28.04.2008

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