PURGING DEFAULT

 In the halls of justice, voices echo clear,  

"The law aids those who keep their rights near.  

Not for the dormant, who silent repose,  

But for the vigilant, watchful of those.

Awake and aware, they claim what is theirs,  

While the sleeper loses, caught unawares.  

So rise and shine, let your rights be your light,  

For only the alert will win the legal fight."

APPLICATION TO PURGE DEFAULT-SECTION 86

 

 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.

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.

The appeal is dismissed with costs.

 

Judge of the Court of Appeal

 

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.

Submission

ed on:        30.06.2006

d on: 21.06.2007

 

 

 

 

 

 

 

 

WHAT IS REASONABLE GROUND UNDER 86(2) OF THE CPC. IMPRUDENCE AND ILLITERACY CANNOT CONSTITUTE SUCH A GROUND.

 

The notion that a laborer without educational background and prudence cannot constitute "reasonable grounds" as contemplated in section 86(2) of the CPC. The standard employed by the district judge to determine whether the defendant had reasonable grounds to keep away  from court, specifically, imprudence—is a misconception. It is evident that the district judge has committed a significant error by categorizing these factors as "reasonable grounds" within the meaning of section 86(2).The fact that a labourer without any educational background and prudence could not constitute "reasonable ground" as contemplated in section 86 (2) of the CPC.

The yardstick used by the district judge to ascertain as to whether the defendant had reasonable grounds to keep away from court, namely, the mental state of imprudence is a misconception. It is palpably clear that the district judge has fallen into a serious error by categorizing them as "reasonable grounds" falling within the ambit of section 86 (2).

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

Pindeniyage Waralias Singho and 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.

01.10.2010

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 01st 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 exparte hearing 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 v 1.

At the close of the defendant’s case the document v 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 v 1 at the close of the defendant’s case, the plaintiff was deprived of the opportunity to either accept v 1 without further proof or to take exception to v  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 V 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.

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

2.      His employment.

3.      Want of education and

4.      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 asIgnorantia 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 courts on 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 at default, 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 V1 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 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 defence notwithstanding 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 argument along 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.

Judge of the of the Court of Appeal

 

 

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.A. Appeal No.1162/2003 (F)    D.C. Ampara No.M/1459

 

C.P.J. Thomas, 410,Bullers Road, Colombo 07.

Plaintiff-Appellant.

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/-

Post

 

 

 

 

 

 

APPLICATION TO PURGE DEFAULT

 

 

 

 

 

 

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

 

 

C.A. No. 688/96 F

D.C. Mt. Lavinia 44/92M

Before        :        A.W.A. Salam, J.

Counsel      :        Jacob Joseph for 1st Defendant-Petitioner-

Appellant and K.W.A. Thisuni Jayawardane for the Plaintiff-Respondent- Respondent.

Written Submissions

tendered on        :        30.09.2010

Decided on :        26.05.2011

A.W.A. Salam, J.

This appeal arises from the refusal to set aside a judgment and decree entered consequent upon the default of appearance of the 1st  Defendant-Petitioner-Appellant (Appellant) on the day fixed for inter pates trial. As far as his appeal is concerned, the facts briefly are that on 11.2.1994 action No D.C. Mt. Lavinia 44/92M was  mentioned  to  fix  for trial. According to the journal entries, on 11.2.1994, it had been called in open Court and fixed for trial on 14.06.1994. Subsequently, when it was taken up for trial on 14.06.1994, the appellant was absent and as a result it was fixed for exparte hearing on for 29.7.1994. Eventually on 28.10.1994 the exparte trial against the appellant was taken up for hearing and concluded on the same day  in  favour  of  the  Plaintiff-

Respondent-Respondent

(Plaintiff). Afterward a copy of the decree was served on the defendant and he filed an application to purge his  default.  As  stated  above  the

 

learned District Judge dismissed his application by order dated 05.09.1996.

 

Briefly stated, in the application to purge default the appellant maintained that on 11.2.1994 she was represented by her registered Attorney-at-Law who later informed her that the trial was fixed for 14.10.1994. She further stated in her application that she came to Court on 14.10.1994 and upon having learnt that the case was not called she made inquiries at Registry and to realize that the trial had in fact been fixed for 14.6.1994 and concluded on the same day without her participation.

On a perusal of the journal entries maintained by the learned district judge it appears that the ex parte trial had  been  in  fact  taken  up  and concluded not on 14.10.1994 as stated by the appellant in her application but on 28.10.1994, namely two weeks thereafter. If the appellant had checked the record on

14.10. 1994, she ought to have realized that the exparte trial had not been taken up on the date that she had incorrectly been informed as the date of trial. This clearly shows that the appellant was not diligently prosecuting her cause before the learned district judge. Besides, this fact clearly shows that the version of the appellant relating to the explanation given against the default of appearance is totally unworthy of any credit.

Moreover, the reasoning adopted by the learned district judge to dismiss the application made to vacate the judgment  and  decree  entered  for default of appearance does not appear to me as illogical or faulty. Therefore, the appeal merits no favourable consideration. Hence, this appeal is dismissed.

There shall be no costs.

Judge of the Court of Appeal NT/-

 

 

 

DELAYED APPLICATION TO PURGE DEFAULT

In the Court of Appeal of the Democratic Socialist Republic of Sri Lanka

CA APPEAL No: 966/96F

DC Embilipitiya: 4272/RE

Before: A W A Salam J

 

Parties absent and unrepresented Decided on: 03.11.2010.

 

A W Abdus Salam, J

This appeal arises from the order dated 28 February 1996. By the said order the learned district judge, refused the application of the defendant-appellant to set aside the judgment entered for default.

The facts that led to the present appeal are that the defendant-appellant having participated at the trial kept away from appearing in court at the subsequent stage of the trial. This led to the case being heard without the participation of the defendant- appellant. Thereafter, you need an application to have the judgment entered for default, set aside after 11 months. Quite apart from the delay in making the application, the learned district judge was also not satisfied with the explanation given for the default. The reason given by the defendant-appellant for not attending court was the promise held out by the plaintiff- respondent to withdraw the case. This in any event was not plausible reason for the defendant-appellant to keep away from Court.

In the circumstances, I do not see any merits in the appeal of the defendant- appellant.

Hence, the appeal stands dismissed without costs.

Judge of the Court of Appeal

 

 

 

 

 

 

 

 

 

 

 

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

 

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.    1020/96F

D.C. Pugoda 149/L

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 01st 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 exparte hearing 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 D 1. At the close of the defendant’s case the document D 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 D 1 at the close of the defendant’s case, the plaintiff was deprived of the opportunity to either accept D 1 without further proof or to take exception to D 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 D 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 courts on 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 at default, 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 V1 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 full.

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 defence notwithstanding 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 argument along 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/-

 

REVISION APPLICATION TO PURGE DEFAULT. REVISIONARY POWERS OF COURT CAN NOT BE INVOKED TO SET-ASIDE A JUDGEMENT AND DECREE ENTERED EXPARTE IF NO PALPABLE ERRORS OR SERIOUS INJUSTICES HAD BEEN CAUSED. ARBITRATION CLAUSE. HOTEL GALAXY (PVT) LTD. AND OTHERS v. MERCANTILE HOTELS MANAGEMENT LTD. SLR - 1987 Vol.1, Page 5

 

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

 

Case No. CA 1502/2000 (Revision)

D.C. (Matara). 7253 M

In the matter of an application

in Revision under Article 138

of the Constitution

15.02.2008

 

A.W. Abdul Salam J

The plaintiff-respondent filed action against the defendant petitioner by plaint dated 20.02.1997. The defendant petitioner entered its appearance by duly filing its proxy. In the meantime, the plaint was amended and accepted by court. Due to the failure on the part of the defendant petitioner to file answer, the trial was fixed for ex parte hearing. At the conclusion of the ex parte hearing, the learned district judge entered judgment on 23.11.1998, as prayed for in the plaint. A copy of the decree entered in terms of the judgment was caused to be served on the defendant petitioner on 25.01.1999.

Subsequently the defendant petitioner applied on 08.02.1999 to have the said judgement and decree vacated inter alia on the grounds that the district court did not have jurisdiction to entertain the plaint and therefore the plaintiff could not have maintained the action nor obtained reliefs. The position of the defendant petitioner is that clause 35 of the agreement that was put in suit  provided for arbitration and the action was not properly constituted as the plaintiff respondent failed to have recourse to arbitral proceedings.

 

The application made by the defendant petitioner was inquired into by the learned district judge and order was delivered on 06.09.1999 refusing to set aside the impugned judgment. The present application has been made by the defendant petitioner to have the said judgement revised in terms of article 138 of the Constitution.

 

The procedural law setting out the remedial measures against a judgment entered ex parte, is found in section 86 (2) of the Civil Procedure Code. It clearly lays down that where within 14 days of the service of the decree entered ex parte for default; the defendant is at liberty to make an application to court to have the said judgement and decree set aside. In order to achieve this, the defendant is required to satisfy court that he had reasonable grounds for such default. Admittedly in this matter the defendants petitioners opted not to have recourse to section 86 (2) of the civil procedure code.

The basis, on which the defendant petitioner made application to have the judgement and decree set aside, was the alleged lack of patent jurisdiction to entertain the plaint and to proceed to determine the matter. The foundation of its argument is the existence of an arbitration clause in the agreement sued upon, which mandated that any dispute arising on the agreement should be referred to arbitration, as a condition precedent to the institution of proceedings.

The learned district judge has refused this application for several reasons. Having mentioned that the defendant petitioner failed to satisfy court that he had reasonable grounds for such default to have the judgement and decree set aside, the learned district judge went on to state that even on the preliminary objection concerning the non-compliance of the arbitration clause (35) the defendant petitioner is yet unable to succeed in its application, for the multitude of reasons stated in his said order.

There is no doubt that a judgment entered ex parte can be challenged in revision on its merits. The revisionary jurisdiction of this court as embodied in article 138 of the constitution extends to reversing or varying an ex parte judgment on the ground of manifest error or being perverse. However, it has to be borne in mind that such powers do not warrant its exercise if the impugned judgement does not prejudice the substantial rights of the parties or occasion a failure of justice.

The facts relating to the judgement in the case of Bandaranaike vs Times of Ceylon Ltd 1995 (1) SLR 22 are different from the facts of this case and cannot be applied to grant relief to the defendant petitioner. In the case of Bandaranaike vs Times of Ceylon Ltd, the ex parte decree had been entered against Times of Ceylon Ltd without a scrap of evidence to the effect that a cause of action had accrued to the plaintiff to sue the defendant for the alleged defamatory statement. Obviously, the defamatory publication complained of in that case originated from a business undertaking of the Government. The alleged derogatory comment of the plaintiff in that case had been made by Mr. E. L. Senanayake the then Minister of Agriculture and Lands attributing to the plaintiff respondent (Mrs Bandaranaike) that she had revalued her lands in order to obtain enhanced compensation from the Land Reform Commission. It was in these circumstances the judgment and decree entered ex parte against the defendant (Times of Ceylon Ltd) was set aside when there was not a scrap of evidence that defendant was responsible for the defamatory publication. The learned district judge in that case quite surprisingly made no findings as to the question of publication.

The Supreme Court in the said case commented in a remarkable manner as to the duty of the Attorneys-at-Law not to mislead, deceive, or permit a client to mislead or deceive in any way the Court before which they appear[1].

 

No doubt in an ex parte trial, as has been laid down in the case of Bandaranaike (supra) the judge must act according to law and ensure that the relief claimed is due in fact and in law, and must dismiss the plaintiff's claim if he is not entitled to it and he must not enter an ex parte judgment without a hearing and an adjudication.

In the matter under revision, the defendant petitioner having filed its proxy, for reason of its own had refrained from filing answer. Upon receipt of summons, if the defendant petitioner thought it fit, could have either traversed the jurisdiction in the answer or even filed a motion and moved for the rejection/dismissal of the plaint as the case may be.

The learned district judge in his order has dealt with the requirement of having to inform the permanent secretary to the Ministry of Local Government on Housing of any dispute arising on the agreement. In fact, the dispute had been referred to the said permanent Secretary. According to the learned district judge in terms of clause 35 of the relevant agreement, no party has invited the secretary concerned to arbitrate on the dispute. In any event, the failure to refer the dispute for arbitration does not have the effect of taking away the jurisdiction of the court.

As has been held in the case of HOTEL GALAXY (PVT) LTD. AND OTHERS v. MERCANTILE HOTELS MANAGEMENT LTD. SLR - 1987 Vol.1, Page 5, the Arbitration clause 35 in document marked as X, does not appear to be a condition precedent known as a Scott v. Avery clause, which bars the institution of a suit without prior recourse to arbitration.

In any event, subsequent to the entering of judgment and decree against the defendant the chairman of the defendant by the affidavit[2] has specifically stated that the defendant is unable to satisfy the decree due to want of sufficient funds. He has further stated in the affidavit that the defendant has requested funds from the Port Development Authority and that steps would be taken to satisfy the decree immediately upon the receipt of the said funds requested from the said Authority.

In the light of the circumstances enumerated above I am not inclined to think that the revisionary powers of this court should be invoked to set-aside the judgement and decree entered against the defendant petitioner as no palpable errors or serious injustices had been caused as a result of the impugned judgement and decree entered ex parte against the defendant petitioner.

Consequently, the revision application filed by the defendant petitioner stands refused subject to costs.

SGD/-

Judge of the Court of Appeal.

 

*****************

 

[1]     See rule 51 of the Supreme Court 1988 (Conduct of and Etiquette for lawyers)

[2]     Page 6 of the document marked as X.

 

 

 

 

Application to purge default Summons duly served on the principle officer of the company

In the Court of Appeal of the Democratic Socialist Republic of Sri Lanka

C A 813/96 F

DC Mt;Lavinia: 99/95 Special Auto Grease Private Ltd, 208, Galle Road, Ratmalana.

Before        : A.W.A. Salam,J.

 

Counsel      : Parties absent and unrepresented. Decided on: 29.04.2010

 

A.W. Abdus Salam,J.

 

The defendant-appellant has preferred this appeal to have the judgment of the learned Distinct Judge dated 23.9.1996 set aside. By the impugned judgment the learned District Judge refused the application made by the defendant-appellant to have the judgment and decree entered against him set aside and permit him to file answer and proceed with his defence.

At the inquiry held into the application of the defendant- appellant it was admitted that the summons had been served on one Mendis who was the foreman attached to the motor car servicing section. In terms of Section 471(b) of the Civil Procedure Code read with Section 442(b) of the Companies Act No.17 of 1982 the learned District Judge came to the conclusion that summons has been duly served on the defendant-appellant as it has been handed over to the principal officer of the company at its registered address.

The finding of the learned District Judge as to the service of summons on the defendant-appellant is consistent with the

  evidence led at the inquiry and the fiscal report filed in the case. Therefore, this Court is of the view that the petition of appeal does not contain any meaningful grounds to set aside the impugned judgment. Therefore, the defendant-appellant is unable to succeed this appeal. Appeal dismissed without costs.

 

Judge of the Court of Appeal