Default of appearance- defendant was informed that the plaintiff was taking steps to withdraw the case
IN THE SURPEME COURT
Ushettige
Vinodanie Preethika Dayadarie Perera
of No. 532, Weligampitiya, Ja-Ela.
PLAINTIFF
SC Appeal: 80/2016
SC.HC.CALA.No: 286/2015 VS
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HCCA/NWP/K/61/2007(F) DC Chilaw Case No: 2017/2005 -M |
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Herathpathirannehelage Ranjan
Hera of Punchi Vileththewa, Mugunawatawana. DEFENDANT AND BETWEEN Herathpathirannehelage Ranjan
Herath of Punchi
Vileththewa,
Mugunawatawana. DEFENDANT-PETITIONER VS Ushettige Vinodanie Preethika
Dayadarie Perera of No. 532,
Weligampitiya, Ja-Ela. PLAINTIFF-RESPONDENT |
AND BETWEEN
Herathpathirannehelage Ranjan Herath
of Punchi Vileththewa, Mugunawatawana.
DEFENDANT-PETITIONER-
APPELLANT
VS
Ushettige Vinodanie
Preethika Dayadarie Perera of No.
532, Weligampitiya, Ja-Ela.
PLAINTIFF-RESPONDENT-
RESPONDENT
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AND NOW BETWEEN |
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Herathpathirannehelage Ranjan
Herath |
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of Punchi Vileththewa, |
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Mugunawatawana. DEFENDANT-PETITIONER- APPELLANT-APPELLANT
VS |
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Ushettige Vinodanie Preethika Dayadarie Perera of No. 532, Weligampitiya, Ja-E
la. PLAINTIFF-RESPONDENT- RESPONDENT-RESPONDENT
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Before : |
Priyantha Jayawardena PC, J |
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E. A. G. R. Amerasekera, J |
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Yasantha Kodagoda PC, J
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Counsel : |
Ikram
Mohamed PC with J. M. Wijesundara, Nadeeka Galhena and Charitha Jayawickrema
for the Defendant-Petitioner-Appellant-Appellant. |
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Dr. Sunil Cooray for the
Plaintiff-Respondent-Respondent-Respondent |
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Argued on : |
13th May, 2020 |
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Decided on : 1st of April, 2022
Priyantha Jayawardena PC, J
This is an appeal filed by the
defendant-petitioner-appellant-appellant (hereinafter referred to as the
“appellant”) against the judgment of the High Court (Civil Appeal) of the North
Western Province holden in Kurunegala, which affirmed the order of the District
Court of Chilaw refusing the appellant’s application made under section 86(2)
of the Civil Procedure Code as amended (hereinafter referred to as “the Code”)
to set aside the ex parte judgment
entered against him for failure to file the answer on the day fixed for filing
the same.
Facts of the case
The plaintiff-respondent-respondent-respondent
(hereinafter referred to as the “respondent”) had filed an action in the
District Court claiming a sum of Rs. five million (Rs. 5,000,000/-) as damages
from the appellant for seduction.
On the 14th of December
2005, which was the first summons returnable date, the Attorney-at-
Law for the appellant (hereinafter referred to as
the “instructing attorney for the appellant”) had filed a proxy on behalf of
the appellant and had moved for a date to file the answer. Accordingly, the
court had fixed the 01st of March, 2006 as the second date to file
the answer.
However, on the 01st of March 2006, when
the case was called to file the answer, the said instructing attorney had moved
for further time to file the answer. Hence, the court had fixed the 17th
of May, 2006 as the third date to file the answer.
When the case was called on the 17th of
May 2006, neither the appellant nor the respondent had been present in court.
Further, the said instructing attorney had informed court that the appellant
had not given instructions despite the several reminders and the registered
letter that was sent to the appellant requesting for instructions to proceed
with the trial.
As the appellant had failed to file the answer on
the 17th of May 2006, the learned District Judge had fixed the case
for ex parte trial. At the ex parte trial held on the 22nd
of May 2006, the respondent had given evidence. Thereafter, considering the
evidence given at the ex parte trial,
the learned District Judge had delivered an ex
parte judgment on the 05th of July 2006, in favour of the
respondent and awarded a sum of Rs. five million in damages as prayed for in
the plaint, and a decree had been entered accordingly.
Subsequently, the appellant had filed an application
in the District Court under section 86(2) of the said Code to set aside the
judgment and decree entered against him on the basis that he had reasonable
grounds for his default for not filing the answer on the answer due date.
During the inquiry held into the said application for
purged default, whilst giving evidence, the appellant had produced a letter
dated the 20th of February 2006, marked as “V1”, whereby the
respondent had allegedly instructed her registered attorney to withdraw the
action under reference instituted against the appellant.
The appellant in his evidence had further stated
that the said letter was given to him by the respondent and that the appellant
did not file his answer on the 17th of May, 2006 because he believed
that the said action would be withdrawn by the respondent’s instructing
attorney as per the instructions given to him in the said letter marked as
“V1”.
Therefore, the appellant stated that he had
reasonable grounds for his default in filing the answer and that the ex parte judgment entered against him
should be set aside in terms of section 86(2) of the said Code.
Furthermore, the appellant stated that the
respondent had not given any evidence during the aforesaid purged default
inquiry denying that she had given the said letter to her instructing attorney
requesting to withdraw the action. However, the proceedings of the purged
default inquiry revealed that the respondent’s lawyer had cross-examined the
appellant at length. This aspect is dealt with in detail under the subheading,
submissions of the respondent.
At the conclusion of the said inquiry, the learned
District Judge had delivered the order dated the 25th of March 2009,
refusing the appellant’s application for vacation of an ex parte judgment on the ground that he had failed to satisfy the
court that he had reasonable grounds for his default in terms of section 86(2)
of the said Code. Aggrieved by the above order, the appellant had appealed to
the High Court.
Judgment of the High Court
After hearing the parties, the High Court held that
the appellant had not satisfied the learned District Judge that he had
reasonable grounds for his failure to file the answer on the third date fixed
for filing the answer by court.
It was further held that, had the appellant believed
that the action would be withdrawn as per the said letter dated the 20th
of February 2006, he would have given instructions to his instructing attorney
of the same. Particularly since his instructing attorney had sought instructions
from him.
The court further observed that, notwithstanding the
said letter dated the 20th of February 2006, the respondent had not
withdrawn the action filed against the appellant on the 01st of
March 2006, when the case was called to file the answer for the second time.
Furthermore, although the appellant was made aware
of the fact that the court had granted a further date to file the answer by his
instructing attorney in writing and sought for instructions from the appellant,
he had nevertheless failed to give necessary instructions to his instructing
attorney.
Thereafter, the High Court held that it did not have
any basis to interfere with the District Court judgment as the defendant had
not given sufficient reasons for his default.
Appeal to the Supreme Court
Being aggrieved by the aforementioned judgment of the
High Court, the appellant appealed to this court and was granted special leave
to appeal on the following questions of law:
“
i.
Does the evidence adduced at the inquiry before
the District Court to vacate the ex parte
decree establish a reasonable ground for purging the default of the appellant
within the meaning of Section 86(2) of the Civil Procedure Code contrary to the
judgment of the Civil Appeal High Court and the order of the learned Additional
District judge?
ii.
Have the learned judges of the Civil Appeal High
Court erred in law in not considering the fact that the respondent had in fact
represented to the appellant that she had decided to withdraw the said action
and/or had given instructions to her Registered Attorney to withdraw the action
by the said letter dated 20/02/2006 marked “V1”, in interpreting the term
“reasonable ground” in section 86(2) of the Civil Procedure Code in the said
judgment?”
Furthermore, the learned counsel for the respondent
had raised the following question of law at the time special leave was
granted:
“As this is
not a revision application, can the quantum of damages awarded in the ex parte decree be contested in these proceedings
for purging default?”
Submissions of the appellant
The learned President’s Counsel for the appellant
submitted that, in terms of section 86(2) of the Civil Procedure Code, the
appellant must satisfy the court that he had “reasonable grounds” for such
default in order to get the judgment and decree entered against the appellant
set aside for default in filing the answer.
It was further submitted that the appellant did not
file the answer on the 17th of May, 2006 because he had believed that
the respondent would withdraw the said action instituted against him in view of
the said letter marked as “V1”. Therefore, it was submitted that he had
reasonable grounds for his default.
Further, it was contended that the term “reasonable
grounds” in the said subsection 86(2) of the said Code should be interpreted by
applying a subjective test in lieu of an objective one, which the District
Court and High Court had failed to do.
In support of the above submission, the learned
President’s Counsel cited Kala Traders (Pvt) Limited v Sanicoch Group
of Companies S.C. (C.H.C.)
Appeal No.08/2010 SC Minutes 02nd
October, 2015, where it was
held:
“Section 86(2) of the Code contemplates of a
liberal approach emphasising the aspect of reasonableness as opposed to a rigid
standard of proof … Much emphasis needs to be placed in interpreting Section
86(2) of the Code. Court must use the yardstick of a subjective test rather
than having resorted to an objective test in determining what is reasonable”.
It was further submitted that the respondent had
neither filed objections to the application made by the appellant under the
said section 86(2) nor given any evidence denying that she had given the said
letter to the appellant.
The learned President’s Counsel drew the attention
of this court to section 115 of the Evidence Ordinance and submitted that the
appellant is entitled to rely on the letter “V1” in terms of the said section.
Further, the respondent is estopped in law from denying the representation made
to the appellant by the said letter.
Thus, the appellant had urged reasonable grounds at the inquiry to set aside
the ex parte judgment and the decree.
Moreover, it was submitted that the District Court
had awarded damages as prayed for by the respondent although the loss suffered
was not established by evidence and that, therefore, the judgment entered for
payment of the said damages is contrary to law.
In support of the above submission, the learned
President’s Counsel drew the attention of this court to the cases of Mrs.
Sirimavo Bandaranaike v Times of Ceylon Limited [1995] 1 SLR 22 and Cisilin
Nona v Gunasena Jayawardana, SC Appeal No. 190/2012 SC Minutes 05th
May, 2016.
In the circumstances, it was submitted that the
aforesaid District Court order refusing to set aside the ex parte judgment and the decree, and the High Court judgment
should be set aside.
Submissions of the respondent
The learned counsel for the respondent submitted
that during cross-examination, the
appellant had admitted that he had three (03) original copies of the said
letter produced, marked as “V1”. Further, it was submitted that the appellant
had admitted that he had neither given the copies of the said letter to his
instructing attorney nor informed his attorney that the said action instituted
against him would be withdrawn by the instructing attorney of the respondent in
compliance with the said letter “V1”.
Thus, the counsel for the respondent contended that
the appellant had not believed that the said action would be withdrawn in
accordance with the said letter and that, therefore, the appellant had failed
to establish that he had reasonable grounds for his default.
Further, the respondent submitted
that, in any event, the said letter was dated the 20th of
February, 2006. However, the appellant’s instructing
attorney had appeared in court on the 1st of March, 2006, the date
fixed for filing the answer for the second time, and had moved for a further
date to file the answer without referring to the said letter “V1”.
Therefore, the counsel for the respondent submitted
that neither party to the said action had acted on the said letter marked as
“V1” and, hence, the appellant had no reasonable grounds for failing to file
the answer on the 17th of May, 2006.
Moreover, it was submitted that the appellant had
obtained the said letter from the respondent by using force on her and that she
had written the said letter under duress and had lodged a Police complaint
stating the same. As such, no court should act on a document that has been
obtained by using force and/or undue influence.
The learned counsel for the respondent further
submitted that the appellant has no right to canvass the quantum of damages
awarded in the ex parte judgment in a
purge default inquiry. Further, it was submitted that as section 88(1) of the
said Code states that “No appeal shall
lie against any judgment entered upon default”, the merits of the default
judgment cannot be considered in an appeal filed against an order either
refusing or allowing to vacate an ex
parte judgment and the decree.
In the circumstances, it was
submitted that the appeal should be dismissed.
Has the appellant satisfied the court that
he had reasonable grounds for his default?
In the instant appeal, one of the questions of law
that needs to be considered is whether the appellant had satisfied the learned
District Judge that he had reasonable grounds for his default in terms of
section 86(2) of the said Code.
In order to consider the above, it is necessary to
consider the relevant provisions in the said Code.
Section 73 of the said Code
states:
“If the defendant does not admit the plaintiff’s claim, he shall himself,
or his registered attorney shall on his behalf, deliver to the court a duly
stamped written answer.”
Therefore, it is incumbent on the appellant to file
his answer if he is denying the claim of the Plaintiff.
Further, section 84 of the said
Code states:
“If the defendant fails to file his
answer on or before the day fixed for the filing of the answer, or on or before the day fixed for the subsequent
filing of the answer or having filed
his answer, if he fails to appear on the day fixed for the hearing of the
action, and if the court is satisfied that the defendant has been duly served
with summons, or has received due notice of the
day fixed for the subsequent filing of the
answer, or of the day fixed for the hearing of the action, as the case may
be, and if, on the occasion of such default of
the defendant, the plaintiff appears, then the
court shall proceed to hear the case ex parte forthwith, or on such other day as the court may fix.” [Emphasis added]
Thus, section 84 of the said Code requires a
defendant to file his answer on the day fixed by the court for filing the same
or the subsequent date fixed for filing the answer. Moreover, the said section
confers power on the court to fix the case for ex parte trial if the defendant fails to file his answer on the
date fixed or the subsequent date fixed for answer, if the court is satisfied
that the defendant has been duly served with summons, or has received due
notice of the day fixed for the subsequent filing of the answer.
In the instant appeal, it is common ground that on
the 14th of December, 2005 which was the summons returnable date,
the appellant’s instructing attorney had filed the proxy on behalf of the
appellant and moved for a date to file the answer. Accordingly, the court had
fixed the 1st of March, 2006 as the second date to file the answer.
However, on the 1st of March, 2006 the instructing
attorney for the appellant had once again moved for further time to file the
answer. Consequently, the court had given a further date to file the answer and
fixed the 17th of May, 2006 as the third date to file the answer.
As stated above, on the 17th of May 2006,
the appellant had been absent in court and the instructing attorney for the
appellant had informed the court that the appellant had not given instructions
to proceed with the case, although he had sought instructions from the
appellant.
If a client fails to give instructions to proceed
with a case, a registered attorney is entitled to inform court that he does not
appear for the defendant on that occasion, even though he has filed the proxy
for the party. Otherwise, his appearance in court will ipso facto be an appearance for his client. When such a matter is
brought to the notice of court, it should be recorded forthwith as a journal
entry in the case record by the learned District Judge and the case should be
fixed for ex parte trial unless the
defendant is present in court and moves for a date to defend the action.
It is pertinent to observe that such a practice
would prevent disputes arising thereafter in respect of whether there was or
was not an appearance for the relevant party. It further prevents the
subsequent raising of allegations against the instructing attorney.
Any such statement by the registered attorney is
admissible in the inquiry held under section 86(2) of the said Code. In the
current context, the appellant not only did not dispute the said statement of
the registered attorney but also admitted that he did not give the necessary
instructions to his registered attorney.
In the instant case, the appellant’s answer had not
been filed in court even on the third date fixed for filing the same.
Accordingly, the court had acted in terms and under section 84 of the said Code
and fixed the case for ex parte
trial.
Section 86(2) of the said Code sets out the recourse
available to the defendant who has had an ex
parte decree entered against him:
“Where, within fourteen days of the service of the decree entered
against him for default, the defendant with
notice to the plaintiff makes application to and thereafter
satisfies court, that he had reasonable grounds for such default, the court
shall set aside the judgment and decree and permit the defendant to proceed
with his defence as from the stage of default upon such terms as to costs or
otherwise as to the court shall appear proper.” [Emphasis added]
In
the case of Mrs. Sirimavo Bandaranayike v Times of Ceylon [1995] 1 SLR 22,
it was held;
“Insofar as a remedy in the District Court is concerned, the general
rule would apply that the judge is functus officio, and cannot review its own
judgment. However, section 86 makes an exception, by conferring jurisdiction on
the District Court to set aside a default judgment if it was flawed in
procedural respects – but not on the merits. The necessary implication of the
grant of that jurisdiction is that the District Court is not competent to
review a default judgment on the merits. That is, beyond question, the
long-established practice of the District Court.”
The abovementioned provision confers jurisdiction on
the District Court to set aside an ex
parte judgment and a decree.
In the case of The Ceylon Brewery Ltd. v Jax Fernando,
Proprietor, Maradana Wine Stores, [2001]
1 SLR 270, it was held that the jurisdiction of the court in respect of a
section 86(2) inquiry is subject to two conditions being satisfied. Firstly,
the application should be made by the defendant within fourteen days of the
service of the decree on the defendant. Secondly, the defendant must satisfy
the court that he had reasonable grounds for the said default. Accordingly, the
learned judge must reach a finding on whether the defendant had reasonable
grounds for his default based on the evidence led at the inquiry held under
section 86(2) of the said Code. Once the said conditions are satisfied, it is
imperative that the court vacate the ex
parte judgment.
Further, in terms of section 86(2), it is evident
that the burden of proof lies on the party in default to satisfy the court that
he had reasonable grounds for such default. In Rani Lokugalappaththi v H. H. D.
De Silva, SC/Appeal No/117/2013 SC Minutes 02nd October, 2015,
it was held that:
“It must be noted that the burden of proof cast upon an Applicant who
makes an application under section 86(2) of the Civil Procedure Code is not
similar to a proof of balance of probability. It is much less than that. What
is required under Section 86(2) is that to adduce ‘reasonable grounds for
default’ to the satisfaction of Court”.
The sole explanation of the appellant during the
inquiry held under section 86(2) of the said Code was that the defendant did
not file his answer on the 17th of May, 2006 because he believed
that the said action instituted against him would be withdrawn by the
respondent’s instructing attorney in compliance with the instructions given in
the said letter “V1”. Therefore, the appellant had stated that he had
reasonable grounds for his default in terms of section 86(2) of the said Code.
During the said inquiry, the
appellant had produced an original of the said letter dated 20th of
February 2006, marked as “V1”, by which the
respondent had instructed her registered attorney to withdraw the said action
instituted against the appellant.
Further, during cross-examination at the said
inquiry the appellant had admitted that he had known that the court had fixed
the 01st of March, 2006 as the second date to file the answer.
Moreover,
the appellant admitted that the respondent had given him three (03) original
copies of the said letter before the 01st March, 2006. Further, he
admitted that he had failed to inform his instructing attorney of the receipt
of the said letter or the contents thereof.
In particular, the appellant admitted at the said
inquiry that his instructing attorney had by registered letter, informed him
that the court had fixed the 17th of May, 2006 as the third date to
file the answer and had requested the appellant’s instructions before the said
date to proceed with the case. He has further admitted that, after receiving
the said letter, he had neither contacted his instructing attorney nor given
instructions that were required to proceed with the said action.
Furthermore, the appellant admitted that, after
receiving the said letter, he had not taken any steps to verify whether the
said action instituted against him had been withdrawn on the 1st of
March, 2006.
It is evident from the above facts that the
appellant had received the said letter dated the 20th of February,
2006 marked as “V1” before the 01st of March, 2006, which was the
second date fixed by the court for filing the answer. Therefore, had the
appellant believed that the said action would be withdrawn as per the said
letter, he would have informed his instructing attorney before the 01st
of March, 2006 that the said action would be withdrawn.
However, the appellant had admitted that he did not
inform his instructing attorney about the said letter. As a result, his
instructing attorney had appeared in court on the 01st of March,
2006 and moved for a further date to file the answer.
It is also significant to note that, after the 1st
of March, 2006, the appellant’s instructing attorney had informed the appellant
by registered letter that he was required to file the answer on the 17th
of May, 2006. Therefore, the appellant had become aware that the said action
had not been withdrawn as per the said letter of the respondent produced marked
as “V1”.
Further, the appellant had admitted that he neither
inquired from his instructing attorney nor the Court Registrar whether the said
action had been withdrawn by the respondent. From the date of receiving the
letter marked as “V1” on the 01st of March, 2006 until the 17th
of May, 2006, the appellant had not taken any steps to verify whether the action
instituted against him had been withdrawn.
It is useful to consider if the defendant was
entitled to rely on the letter marked as “V1” alleged to have been written by
the plaintiff as a reasonable ground for not filing the answer on the 17th
of May, 2006 which was the third date fixed for the answer. It was submitted by
the appellant that the said letter amounted to an agreement between the parties
not to file an answer.
In an action filed under regular procedure, the
defendant shall file his answer on the day fixed for answer, or obtain further
time to file his answer, either personally, through a registered attorney, or
by his recognized agent referred to in section 24 of the said Code, if he does
not admit the plaintiff’s claim. The wording of section 73 and section 84 when
read together contemplate that a court can grant more than one extension of
time. Accordingly, if further time is
granted to file the answer, the defendant shall file the answer on the subsequent
day fixed for filing of the answer. Granting of an extension of time is within
the discretion of the court and such discretion shall be exercised
judicially.
The Civil Procedure Code as amended stipulates the
procedure applicable to regular actions and summary actions. It stipulates the
procedure that should be followed by the court as well as the parties. The
procedural law facilitates the administration of justice and to adjudicate
cases by applying substantive law. Although some requirements in procedural law
are directory, the others are mandatory. If a specific step in a procedural law
is mandatory it cannot be circumvented by the consent of parties. The word
“shall” used in section 73 of the said Code makes it mandatory for the
defendant to file an answer if he does not admit the plaintiff’s claim.
Accordingly, the mandatory requirement imposed by
section 73 of the said Code on the appellant to file his answer on the date
fixed by the court could not have been circumvented by an agreement of the
parties, as fixing a date for an answer is a judicial act.
Further, parties by agreement cannot circumvent the
procedure stipulated by a statute unless the statute provides for such an
agreement. Furthermore, such practices or arrangements would adversely affect
the administration of justice.
Moreover, such agreements would be against public
policy. In any event, parties cannot interfere with a judicial act that is
required to be performed under the law.
Such agreements or arrangements are quite different
from agreements to settle cases by the parties. Even in an arrangement to
settle a case in court, the court has a duty and a right to consider whether
such an arrangement is according to law and is in the interests of all the
parties concerned, as entering into such settlement in court would become a
judicial act.
Although courts should encourage settlement of
disputes, common law prohibits a court from entering a consent decree under the
guise of a judicial act if it violates the law or public policy. In the
circumstances, the duty to file an answer subsequent to an order made by a
court cannot be circumvented by consent of the parties as it amounts to a
violation of the said provisions of the said Code and the judicial order
granting a date to file the answer.
The learned President’s Counsel for the appellant
drew the attention of court to section 115 of the Evidence Ordinance and
submitted that the learned District Judge should have allowed the application
for vacation of the ex parte judgment
as the appellant relied on the letter marked “V1” and acted according to the
contents of the said letter.
Section 115 of the Evidence
Ordinance states:
“When one person has by his declaration, act, or omission intentionally
caused or permitted another person to believe a thing to be true and to act
upon such belief, neither he nor his representative shall be allowed in any
suit or proceeding between himself and such person or his representative to
deny the truth of that thing”.
In light of the above, the learned President’s
Counsel for the appellant stated that the respondent is estopped in law from
denying the representation made to the appellant by the said letter.
However, as the aforementioned facts show that the
appellant has not acted on the letter marked and produced as “V1”, section 115
of the Evidence Ordinance has no application to the instant appeal.
Moreover, the said section has no application for
acts performed contrary to public policy. In the present context, as stated
above, the said letter was an attempt to circumvent the course of the
administration of justice. When an agreement or undertaking is tainted with
illegality, such agreement or undertaking cannot be enforced through courts.
A similar view was expressed in the case of Jayasuria
v Kotalawala 23 NLR 511, wherein the defendant was in prison when he
was sued on a bond. Being deceived by the plaintiff, he made no effort to
appear in the action and judgment was entered for the plaintiff. He moved to
reopen judgment. The reason given by him as to why the defendant did not appear
in the action was not that he was prevented by misfortune from appearing to
show cause, and as such, it was held that his proper remedy was to apply for restitutio in integrum or seek damages
for fraud.
In
the current circumstances, the facts establish that the appellant’s default was
effectuated by his own inaction and lack of due diligence in respect of his
duty to file the answer on the date fixed by court.
Further, a defendant is entitled under section 86(2)
to adduce evidence to prove that he was prevented from appearing in court by
reason of accident or misfortune or not having received due information of the
proceedings about the case. However, in the instant appeal, the appellant had
failed to discharge the burden of satisfying the court that he had reasonable
grounds for his default in terms of section 86(2) of the said Code.
The above conduct of the appellant demonstrates that
he was negligent in instructing his instructing attorney to file his answer on
the 17th of May, 2006.
Can the legality of the quantum of damages
awarded in the ex parte decree be
contested in proceedings for the vacation of the said ex parte decree?
Learned President’s Counsel for the appellant
submitted that the District Court had awarded damages as prayed for by the
respondent although the loss suffered was not established by evidence and that,
therefore, the judgment entered for payment of the said damages is contrary to
law. In support of the above submission, the learned President’s Counsel drew
the attention of the court to the cases of Mrs. Sirimavo Bandaranaike v Times of Ceylon
Limited (supra) and Cisilin
Nona v Gunasena Jayawardana (supra).
In the circumstances, it was submitted that the
aforesaid District Court order and High Court judgment should be set aside.
In response to this submission, the learned counsel for
the respondent raised the following question of law at the time special leave
was granted:
“As
this is not a revision application, can the quantum of damages awarded in the
ex parte decree be contested in these proceedings for purging default?”
A plain reading of section 86(2) shows that the
scope of an inquiry under section 86(2) of the said Code is only limited to
satisfy court that the defendant had reasonable grounds for such default.
Further, if the defendant satisfies court that the defendant had reasonable
grounds for such default, the word “shall” used in the said section makes it
mandatory for the court to set aside the ex
parte judgment and decree entered against the defendant and permit him to
proceed with the case.
In this context, it is necessary to consider whether
the District Court has the jurisdiction to consider the legality of the ex parte judgment and the decree entered
against the defendant at an inquiry to vacate an ex parte order and set it
aside if the judgment is contrary to law. In other words, whether a defendant
is entitled to invite the District Court to reconsider the ex parte judgment under the pretext of vacation of an ex parte judgment. If the answer to the
above is in the affirmative, even if the defendant failed to satisfy court that
he had reasonable grounds for his default, he should be entitled to get the ex parte judgment set aside on the basis
that the said judgment is contrary to law.
In this regard, it is useful to consider the
judicial power of a District Court to re-consider a judgment delivered by the
same court. Once a judgment is delivered by a court, it becomes functus as far
as the legality of the judgment is concerned, and it cannot re-open the case.
However, section 189 of the said Code has conferred
jurisdiction on the court to correct any clerical or arithmetical mistakes in
any judgment or order or any error arising therein from any accidental slip or
omission, or to make any amendment which is necessary to bring a decree into conformity
with the judgment.
This view was expressed in Muttu Raman v Mohammadu 21
NLR 97, at page 98, where it was held; “A Court has no jurisdiction to
alter or amend its decree, except in conformity with the provisions of section
189 of the Code, in order to bring the decree into harmony with the judgment or
to rectify a clerical or arithmetical error.”
Further, in Deonis v. Samarasinghe et al 15 NLR 39
at 41, Charles Bright & Co., Ltd v. Sellar (1904) 1 K.B. 6 was
cited with approval, wherein it was held that a court cannot correct a mistake
of its own after the judgment has been perfected, even though the error is
apparent on the face of the judgment.
The exception to this rule is set out in section 86
of the said Code, which allows for an ex
parte judgment and the decree entered against the defendant to be set aside
if the defendant satisfies the court that he had reasonable ground for default.
However, in such instances, the court has no power whatsoever to consider the
legality of the ex parte judgment.
Thus, a court that delivers an order or a judgment
cannot sit in appeal to review its own order or judgment.
Further, section 88 of the said
Code states:
“(1) No appeal shall lie against any judgment entered upon default.
(2) The order setting aside or refusing to set
aside the judgment entered upon default shall be accompanied by a judgment
adjudicating upon the facts and specifying the grounds upon which it is made,
and shall be liable to an appeal to the Court of
Appeal.”
In the circumstances, the scope of the inquiry under
section 86(2) of the said Code should be considered in the light of section 88
of the said Code.
It is clear that when the legislator has
specifically excluded the right to appeal against a judgment entered upon
default, the question of whether the same court could review its own judgment
cannot arise. In this regard, the doctrine of “quando aliquid prohibetur ex directo” which states that when
anything is prohibited directly, it is not possible to do it indirectly, is
applicable. Thus, when section 88(2) of the said Code acts as an ouster clause
for appeals in respect of default judgments, it is not possible in law to use
an inquiry for ex parte vacation as a
means of appeal against an ex parte
judgment.
Thus, in an inquiry under section 86(2) of the said
Code, the court is not conferred with the power to consider the legality of an ex parte judgment delivered by the said
court. However, if a court comes to a finding that there were reasonable
grounds for default by the defendant, it is incumbent on the court to set aside
the judgment and decree and permit the defendant to proceed with his
defence.
However, though it is not possible to canvass the
legality of the ex parte judgment in
an inquiry held under and in terms of section 86(2) of the said Code, a
defendant who is served with an ex parte
judgment is not without a legal remedy. He can canvass the merits and legality
of such a judgment either by invoking the revisionary jurisdiction of an
appropriate court or by way of an application for restitutio in integrum under Article 138 of the Constitution.
In
the case of Mrs. Sirimavo Bandaranayike v Times of Ceylon (supra), it was held:
“No specific remedy has been provided to correct errors in respect of
the substance of an ex parte default judgment. Section 88(1) confers no remedy,
but merely excludes an appeal; from that exclusion it is not permissible to
infer an exclusion of revision as well. On the contrary, the express exclusion
of an appeal justifies the inference that it was intended to permit other
remedies, such as revision.
I
am therefore of the view that a default judgment can be canvassed on the merits
of the Court of Appeal, in revision, though not in appeal, and not in the
District
Court itself.”
Further, it is important to note that sections 86
and 88 were amended by section 23 of Law No. 20 of 1977 and, therefore, the
judgments that were decided on the repealed sections 86 and 88 of the said Code
have no application in interpreting the present sections 86 and 88 of the said
Code.
Thus, a defendant who was served with an ex parte decree cannot invoke section
86(2) of the said Code to revisit an ex
parte judgment and if he is unsuccessful in his attempt to set aside the ex parte judgment in such proceedings,
to file an appeal under section 88(2) of the said Code to canvass the order
refraining to vacate the ex parte judgment.
In the circumstances, I affirm the judgment of the
High Court, which upheld the order of the District Court.
The appeal is dismissed. I order no
costs.
Judge of the Supreme
Court
E. A. G. R. Amarasekera, J
I
agree. Judge
of the Supreme Court
Yasantha Kodagoda PC, J
I agree. Judge of the Supreme Court
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