CIVIL PROCEDURE AMENDMENT NO 43 OF 2024

 

defult of appearance - An overview by GalleLaw Blogger on the amendment 43 of 2024 to section 86, 87 and 88 to the CPC 

VACATION OF exparte ORDERS, JUDGMENTS AND DECREES.

The Civil Procedure Code (Ordinance No. 2 of 1889) governed case procedures in the Original and Appellate Courts for nearly 85 years, from 1889 until 1974, when it was replaced by the Administration of Justice Laws No. 44 of 1973 and No. 25 of 1974. During a brief period from 1974 to 1977, the Civil Procedure Code was superseded by the AJL. However, in 1977, the Civil Procedure Code of 1889 was reinstated by the Civil Courts Procedure (Special Provisions) Law No. 19 of 1977.

Section 86 of the Civil Procedure Ordinance outlined the procedures for setting aside a decree *nisi* (a provisional judgment) under the CPC ordinance. Under Section 86(2), if a defendant provides reasonable grounds for the default, the court was empowered to set aside the decree and resume the case from the stage at which the default occurred.

AMENDMENTS TO SECTION 86

The Civil Procedure Code (Amendment) Act No. 53 of 1980 introduced significant changes to Section 86. It repealed subsection (1) of Section 86 and added a new subsection, 2A, which granted the courts, the discretion to set aside orders made due to the defendant’s default, if an application is made before judgment, provided the plaintiff consented. This ensures a balance between finality in court proceedings and justice for parties who default due to circumstances beyond their control. 

SECTION 86(2A)

Section 86(2A) allows the court to set aside any order made due to the defendant's default before judgment is entered, but only with the plaintiff’s consent. This provision introduces a discretionary power for the court to either grant or deny the defendant’s request to vacate an order based on the specific circumstances of the case. 

PRACTICAL APPLICATION

Courts have typically honored the plaintiff's consent and have not exercised it’s discretion to deny applications of defendants seeking to vacate orders due to default. Section 86(2A) offers defendants a second chance to proceed with his case if the plaintiff agrees and the court deems it fair, potentially with conditions attached such as costs etc.

Exercising discretion under Section 86(2A) can enhance court efficiency by reducing unnecessary revision applications and appeals, thus conserving judicial resources and promoting effective justice administration.

CONSEQUENCES OF THE PLAINTIFF'S DEFAULT

Section 87 of the Civil Procedure Code, introduced by Act No. 20 of 1977, mandates that if the plaintiff or both parties fail to appear on the trial date, the court must dismiss the plaintiff’s action. Unlike Section 86(2A), Section 87 does not allow a judicial discretion; the dismissal is mandatory.

If the plaintiff is absent and the defendant is present having made a counterclaim, the court must dismiss the plaintiff’s action and may proceed to hear the counterclaim *ex parte*. The plaintiff can apply to vacate the *ex parte* order before judgment with the defendant’s consent, under similar conditions as spelled out in Section 86(2A).

AMENDMENTS TO SECTION 88

The Civil Procedure Code (Amendment) Act No. 5 of 2022 is a significant milestone. It removed the unrestricted right of appeal against orders  entered under Sections 86 and 87 and rendered such orders appealable to the provincial High Courts exercising civil appellate jurisdiction with the leave of court had and obtained. The amendment necessitates the district judges to provide well-reasoned out orders under Section 88, making it more difficult for plaintiff or defendant as the case may be,  to obtain leave to appeal, thereby promoting finality and judicial efficiency.

THE MODE OF MAKING AN APPLICATION TO PURGE DEFAULT BY A DEFENDANT. 

 Section 86 as amended by Act No 43 of 2024 outlines specific scenarios under which a defendant can apply to have an order, judgment, or decree set aside after he has defaulted in a civil case. This is a stepbystep explanation of each clause, including the legal changes made: 

Clause (a): Application After Case is Fixed for *Ex Parte* Trial. 

Explanation: This clause allows the defendant to apply to the court *at any time* after the case has been fixed for an *ex parte* trial due to his default.

Legal Change: The law provides the defendant an opportunity to request that the court set aside the order fixing the case for *ex parte* trial, if they can show they had reasonable grounds for their default or that he had not been served with summons. 

Clause (b): Application after decree is entered but before service of decree. 

Explanation: This clause allows the defendant to apply to the court *at any time after* the decree (final decision) has been entered against him due to default, but before the decree has been formally served on him. 

Legal Change: The law provides the defendant with the chance to have the decree set aside before it is officially served, provided the defendant can demonstrate to the court that he did not receive summons or had reasonable grounds for his default. 

Clause (c): Application within fourteen days of the decree being served. 

Explanation: This clause allows the defendant to apply to the court *within fourteen days* after he is served with the decree.

Legal Change: The law specifies a strict timeframe (14 days) within which the defendant must act if they wish to challenge the decree after it has been served. The defendant must notify the plaintiff of the  application and satisfy the court that he either did not receive the summons or had valid reasons for his default.

 Common Procedure and Court's Discretion:

Application Process:  In all these scenarios, the defendant must give notice to the plaintiff when making the application to the court.

Court's Decision:  If the defendant satisfies the court that they had reasonable grounds for defaulting or that he did not receive summons the court is required to set aside the order fixing the case for *ex parte* trial, the judgment, or the decree, as the case may be. 

In case of clause (a) the court basically sets aside the order for exparte trial. 

In case of clause (b) the court basically sets aside the exparte proceedings, Judgment and decree as the case may be. 

In case of clause (c) namely within 14 days of the service of the decree the court sets aside the exparte proceedings, Judgment and decree as the case may be. 

Under all 3 instances the party at default is expected to prove one the 2 situations, i.e either he was not served with summons or he had reasonable grounds for his default. If the defendant fails to prove at least one of the grounds then the application to set aside the order for exparte trial, judgment or judgment and decree would be refused. 

Section 87 deals with the dismissal of the plaintiff’s action for non-appearance. 

Section 87 

Dismissal for Non-Appearance:

If the plaintiff fails to appear on the scheduled trial date, or if both the plaintiff and the defendant are absent, the court is mandated to dismiss the plaintiff's action. This dismissal is automatic and serves as a consequence of the plaintiff's failure to attend the trial. 

Bar on Refilling the Same Case:

After an action is dismissed under this section, the plaintiff is prohibited from filing a new lawsuit on the same cause of action. This provision prevents the plaintiff from attempting to litigate the same issue again, thereby promoting judicial efficiency and finality.

Opportunity to Set Aside Dismissal:

The plaintiff does have a pathway to remedy this dismissal. Within a reasonable timeframe after the dismissal, the plaintiff can apply to the court to have the dismissal set aside. This must be done through a formal petition, supported by an affidavit explaining the reasons for their nonappearance.

The defendant must be informed of this application. If the court, upon reviewing the application, is satisfied that the plaintiff had valid reasons for their absence, it may decide to set aside the dismissal.

The court may impose certain conditions, such as payment of costs or other terms it deems appropriate, before allowing the case to continue. The case will then proceed from the point at which it was dismissed.

Consequences of the dismissal of the plaintiff’s action.

No Refiling Allowed: Once dismissed, the same case cannot be brought before the court again, reinforcing the principle of finality in litigation.

Relief Option: The plaintiff can seek to have the dismissal overturned by providing a reasonable explanation for their absence, but this is subject to court approval and may come with additional conditions.

 Civil Procedure Code (Amendment) Act 5 of 2022 passed on 17th February 2022 is a important mile stone in the 12 decades of the existence of the civil procedural Law. By this Act section 88 was amended to serve a deserving cause.

Prior to the introduction of Act No 5 of 2022 an order made under section 86 or 87 was appealable as of right. The right of appeal conferred to challenge an order under section 86 or 87 was time consuming and resulted in the appellate courts inundating with long drawn out appeals. Hence, by Act no 5 of 2022 the unrestricted right of appeal was withdrawn and the Legislature striking a remarkable balance introduced the following section.

The amendment imposes a responsibility on district judges to issue well-reasoned and thoroughly considered orders under Section 88, whether in favor of the plaintiff or the defendant. The intent behind this requirement is to make it more challenging for parties to obtain leave to appeal such orders. By ensuring that these orders are carefully crafted and justified, the likelihood of obtaining leave to appeals is reduced, thereby promoting finality and efficiency in judicial proceedings. 

Prior to the introduction of Act No 5 of 2022 an order made under section 86 or 87 was appealable as of right. The disposal of the exercise of right of appeal conferred to challenge an order under section 86 or 87 was time consuming and resulted in the appellate courts inundated with long drawn out appeals but incidental appeals in nature. Hence, by Act no 5 of 2022 the unrestricted right of appeal was withdrawn and the Legislature striking a remarkable balance introduced the following section.

The amendment imposes a responsibility on district judges to issue well-reasoned and thoroughly considered orders under Section 88, whether in favor of the plaintiff or the defendant. The intent behind this requirement is to make it more challenging for parties to obtain leave to appeal such orders. By ensuring that these orders are carefully crafted and justified, the likelihood of obtaining leave to appeals is reduced, thereby promoting finality and efficiency in judicial proceedings.

Duty Cast on the Legal Profession

It is incumbent upon legal professionals to thoroughly review applications made against orders fixing cases for *ex parte* trial. Lawyers have a responsibility to consent to the vacation of such orders in appropriate cases, thereby saving the valuable public resources and avoiding unnecessary, protracted inquiries. By doing so, they contribute to the efficient administration of justice and uphold the integrity of the legal process.

Duty of the District Judges 

For the first time in the history of the civil procedure Laws, extending to a period of nearly two and a half centuries Provision has been made empowering the fiscal to obtain the signature of the recipient of the summons. The Registrars of Court may exercise close supervision on the service of summons and instruct the officers concrned to obtained the signature acknowledigng the receipt of summons as the service of summons or non service can easilly be verified by the written acknowledgment. 

Section 60 as amended by 43 of 2024 is copied below..

Service by the process server

60.  (1) (a) Where the summons are served by the process server, the summons shall be accompanied by a precept in the Form No. 17 of the First Schedule.

(b) (i) The process server may, upon the summons being served on the defendant, obtain the signature or the thumb impression of such defendant on the precept as acknowledgment of the service of summons.

(ii)  The process server shall return the precept to the court, together with a report setting out the manner in which the summons was served on the defendant containing particulars relating to the identity of the person, date, time and place the summons were served. The report shall also state whether defendant, placed or refused to place his signature or thumb impression, on the precept as acknowledgment of the service of summons. 

(iii)    The refusal by any defendant to place the signature or thumb impression, as the case may be, on the precept shall not be considered as an invalidation of the service of summons.

(2)     If the service referred to in the preceding provisions of this section cannot by the exercise of due diligence be effected, the court may having obtained an affidavit from the plaintiff stating that to the best of his knowledge the defendant resides in the captioned address and not living outside Sri Lanka, order the process server to affix the summons at some conspicuous part of the house in which the defendant ordinarily resides or in the case of a company or a body corporate, at the registered office or at the usual place of business or office of such company or a body corporate and in every such case the summons shall be deemed to have been duly served on the defendant.

(3)    The Court may authorise the process server to serve the summons outside the local limits of the court as directed by the court.

 (4)    Where it is reported by the process server that the summons could not be affected personally on the defendant on the last known address given by the plaintiff and the plaintiff informs Court by filling affidavit that the plaintiff is unaware of the place where the defendant resides, the court upon being satisfied on the contents of such affidavit, order that the summons be served by way of publication in newspapers in all three languages as the court may in each case direct.

(5)   For the purpose of this chapter- “process server” means a fiscal, a

deputy  fiscal,  an  officer authorized by the Judge or Registrar of the court to serve documents of the court within the local limits or outside the local limits of the court as directed by the court, or the Grama Niladhari within whose division the defendant resides.”.

[above is only an opinion expressed by the Blogger and not an authoritative statement. The Legislation is expected to be interpretated by Courts in due course as and when it becomes necessar]