SECTION 87(3) OF THE CPC. APPLICATION FOR ADJOURNMENT. DUTY OF THE JUDGE

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SECTION 87(3) OF THE CPC. APPLICATION FOR ADJOURNMENT. DUTY OF THE JUDGE



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



                                                                                    C.P.J.  Thomas,
                                                                                    410,Bullers Road,
                                                                                    Colombo 07.
C.A. Appeal No.1162/2003 (F)
                                                                                                Plaintiff-Appellant.
D.C. Ampara No.M/1459

                                                                                    Vs.

                                                                                    Ranjith Samarakoon,
C/o Kahatapitiya Dona Ashoka Neranjani, Nidahas Patumaga,
                                                                                    Yantampalawa,
                                                                                    Kurunegala.


                                                                                                Defendant-Respondent.

             

BEFORE                   :           A.W.A. SALAM,J.


COUNSEL                :           Wijaya Niranjan Perera for the Plaintiff-Appellant.

                                                W.  Dayaratne for the Defendant-Respondent.

Written Submissions
 Tendered on           :           10.01.2006
                                             .


DECIDED ON           :           26.06.2007.


                                                *      *****   *





ABDUL  SALAM,J.


This is an appeal preferred by the  plaintiff-appellant (hereinafter referred to as ‘the plaintiff’) in terms of  Section 88(2) of the Civil Procedure Code.  The background which led the plaintiff to lodge the present appeal arise on the dismissal of the plaintiff’s action by he learned District Judge on the day the matter was fixed for ex-parte hearing, against the defendant.

The plaintiff sued the defendant inter alia for damages in a sum of Rs.411,000/-.  Subsequently at least on ten occasions summons had been issued on he defendant for personal service bur without success, as the defendant was living abroad.  However immediately upon the return  of the defendant from abroad summons was issued by way of substituted service, returnable on  3.3.2003.  After service of summons by way of substituted service, as the defendant defaulted in responding to the summons as required by law and therefore the matter was fixed for ex-parte hearing against him for 21.7.2003.

On 21.7.2003 when the matter was taken up for ex-parte hearing, the plaintiff was absent and Mrs. Kamini Ratnayake the registered Attorney-at-Law of the plaintiff  submitted a letter from the instructed  Attorney and moved for a postponement  on the ground that the counsel was held up in Badulla/Passara Magistrate’s Court.  The learned District Judge without making any order on the  application for adjournment kept the case down  to be mentioned later in the course of the day.  The case was called once again at 12.10 on  the same day and as the plaintiff was absent and not being ready for trial, the learned District Judge dismissed the plaintiff’s action.  Thereafter, on behalf of the  plaintiff an application was made as per journal entry dated 18.9.2003 to have the order of dismissal vacated on the ground that the plaintiff had reasonable grounds to keep  away from  Court on the day the  matter was fixed for ex-parte  hearing.  According to the explanation offered by the plaintiff, he was absent on that day as his motor car was not road worthy.  In addition to that his counsel also has had a difficulty in attending Magistrate’s Court Amparai on that day as his services had been engaged in a specially fixed case in which he was opposed to a counsel travelling from Colombo.

The learned District Judge refused the application of the plaintiff to have the case restored to the trial roll on he ground that the plaintiff has not made the application for restoration of the case within a reasonable period of time and that he has failed to make out a case that warranted the order of dismissal of the action vacated.

Before venturing to consider the merits of the plaintiff’s appeal, in passing, I feel obliged to state that the plaintiff would not have been compelled to resort to luxury of having to invoke the appellate jurisdiction of this Court, against the order of the  order of the learned District Judge, had the discretion vested in he Court was rightly considered in favour of the plaintiff, when application was made for postponement on the first day, it was fixed for ex-parte hearing.    The learned District Judge  should have taken into consideration  the fact that the plaintiff had to travel from Colombo to Ampara and that his Counsel has had an  engagement in some other Court.  Even if the counsel was available on that day, yet  the ex-partetrial would not have reached its conclusion as the plaintiff was absent.  The learned District Judge has failed to appreciate that the registered Attorney has appeared for the plaintiff  in deference to Court and in the discharge of  her duties by the client moved for a postponement which the learned trial Judge should have considered favourably, as the discretion vested in him demanded such an order.

As regards the application made by the plaintiff, the learned District Judge has stressed that the delay of 48 days in the presentation of the application by the plaintiff under Section 88(2) is an obstacle in the way of the plaintiff to have the order of dismissal set aside.

In terms of Section 87(3) of the Code, the plaintiff is entitled to apply to have the dismissal set aside within a reasonable period of time.  When the matter of the application of the plaintiff to have the order of dismissal set aside, came up for hearing, the plaintiff had not been subjected to any cross-examination.   According to the proceedings maintained by the learned District Judge, the matter of the application has come up for support on 18.9.2003 and the learned Counsel of the plaintiff has made submissions on the uncontradicted position taken up by the plaintiff.  The affidavit of the plaintiff discloses that he is a businessman and had gone abroad immediately after the dismissal of the action and that he has taken steps to have the order of dismissal vacated almost immediately on his return.  The learned counsel who appeared at the ex-parte hearing had informed Court of his difficulty to appear as his services had been sought in a case where he was opposed to a Counsel travelling from Colombo.

Taking into consideration the matters urged in the petition and affidavit of he plaintiff, the learned District Judge should not have dismissed the application on the grounds attributed by him in his order dated 20.10.2003, which is appealed against.  In the circumstances, it is my considered view that justice could  only be met by setting aside the order of the learned District Judge dated 20.10.2003 and substituting it with the finding that the plaintiff has had reasonable  grounds for his default of appearance on that day.  Hence, the order of the learned District Judge dated 20.10.2003 is set aside on the uncontradicted affidavit of the plaintiff.  The learned trial Judge is directed to restore the case t the trial roll.

The trial Court will give priority to hear and conclude the exparte hearing and then notify the  decision of Court to the defendant.




JUDGE OF THE COURT OF APPEAL


Spk/-

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