CPC AMENDMENT NO 43 OF 2024
Civil Procedure Code (Amendment) Act,
No. 43 of 2024
Section 5, 9, 27, 55, 59, 60, 61, 66, 68, 70, 86(2), 653 have been amended.
71A inserted.
Form 7 of the 1st
schedule reintroduced with a new format.
Form 16A repealed and
replaced.
Form 17 repealed and
replaced.
[Certified on 02nd of August, 2024]
L.D.-O. 72/2021
AN ACT TO AMEND THE CIVIL PROCEDURE CODE
(CHAPTER 101)
BE it enacted by the Parliament of the
Democratic Socialist Republic of Sri Lanka as follows: -
1. This
Act may be cited as the Civil Procedure Code (Amendment) Act, No. 43 of 2024.
2. Section
5 of the Civil Procedure Code (Chapter 101) (hereinafter referred to as the principal
enactment) is hereby amended by the insertion immediately after the definition
of the expression decree, of the following new definition:-
electronic shall have the
same meaning assigned to it by the Electronic Transactions Act, No.19 of 2006;.
CHAPTER III
OF THE COURT OF INSTITUTION OF ACTION
Institution of actions: in what court.
9. Subject to the pecuniary or other
limitations prescribed by any law, action shall be instituted in the court
within the local limits of whose jurisdiction -
(a) a party plaintiff or a
party defendant resides; or
(b) the land in respect of which the
action is brought lies or is situate in whole or in part; or
(c) the cause of action arises; or
(d) the contract sought to be enforced was made.
Appointment of registered Attorney.
27.
(1) The appointment of a registered
attorney to make any appearance or application, or to do any act as aforesaid,
shall:-
(a) be substantially in such form
specified in Form No. 7 of the First Schedule to this Code and shall be filed
in court;
(b) contain an address at which service
of any process under the provisions of this Chapter may be served on such
registered attorney, instead of the party whom he represents;
(c)
include an electronic mail address and a mobile phone number to which service
of any process, notice or any other legal documents may also be served on a
registered attorney;
(d)
contain a memorandum substantially in the Form No. 16A of the First Schedule in
duplicate setting out the address, mobile phone number and the electronic mail
address, if any, of such party which shall be considered as the registered
address, the registered mobile phone number and the registered electronic mail
address, respectively of such party. The registered attorney shall with such
memorandum tender to the Registrar stamps to the value required to cover cost
of service of such notices or other legal document by registered post and the
registered attorney shall bear the cost of courier service or service through
electronic means;;
Service of summons
59. (1) (a) Summons shall ordinarily be served by
the process server, registered post or courier service.
(b)
Where the plaintiff wishes summons may also be served through electronic mail,
all necessary documents shall be submitted by the plaintiff to the relevant
court in electronic form.
(2) In the case of a company or a body corporate
summons may be delivered by the process server, registered post, courier
service or electronic mail if any to the registered office or to the principal
place of business of such company or body corporate.
(3) Where the defendant is a public officer, the
court may send summons by the process server, registered post or courier
service to the head of the department in which the defendant is employed, and
it shall be the duty of such head of department to cause the summons to be
served personally on the defendant.
(4) Where the court is prima facie satisfied that
the defendant is in the employment of another person, the court may send the
summons by the process server, registered post or courier service to the
employer at his place of business or, where the employer is a company or a body
corporate, to any secretary, manager or other like officer of the company or
the body corporate, and it shall be the duty of such employer or officer, as
the case may be, to cause the summons to be served personally on the defendant.
(5) Where a defendant appears in court in person
on summons being served on him in the manner referred to above, he shall
produce the national identity card or passport or any other mode of
identification as the court may deem fit.
(6) In this section-
head of department -
(a) when used with reference to a member of any
unit of the Sri Lanka Army, Navy or Air Force, means the Commanding Officer of
that unit;
(b) when used with reference to a person employed
in a local authority, where the local authority is a Municipal Council, means
the Municipal Commissioner of that Council and where the local authority is an
Urban Council or a Pradeshiya Sabha, means the Chairman or the Secretary of
that Council or Sabha;
(c) when used with reference to any other public
officer means the head of the department of Government in which such person is
employed; and
national
identity card means the identity card issued to such person under the
Registration of Persons Act, No. 32 of 1968..
(2A)
(a) Where a party is represented by a registered attorney, such attorney shall
in the appointment, state the national identity card number, passport number or
any other mode of identification, as the case may be, of the party and shall
also make an endorsement thereon certifying the identity of such party. Where
the party is a company or a body corporate the appointment shall be made under
the seal of such company or a body corporate as the case may be.
(b)
In the event a person who resides outside Sri Lanka is unable to meet his
registered attorney to sign the appointment under subsection (1), such
appointment shall be signed in the presence of any of the following authorized
persons who shall certify the identity of such person: -
(i) an Attorney-at-Law, a solicitor, a lawyer or
a Notary of the country where such party resides; or
(ii) the High Commissioner, the Ambassador, a
diplomatic officer or a consular officer of the Sri Lankan High Commission,
Embassy or Consular Office in the country in which such party resides.
(b) In the case of any delay or any difficulty to
produce the original of the appointment within the specified time, a copy of
the original in electronic form may be produced in court subject to production
of the original of such appointment within a reasonable time as the court may
direct..
(2) (a) Where a
party who appoints a registered Attorney is a natural person, a memorandum
nominating a legal representative for the purpose of the legal proceedings in
the event of the death of such party before the final determination of the
proceedings, shall also submitted.
(b) The
memorandum referred to above shall, substantially be in the form specified in
Form No.7A of the First Schedule hereto.
(c) The
provisions of section 393 shall apply in regard to the nomination of such legal
representatives and filing of such memorandum.
(3) When an
appointment under subsection (1) is filed, an appointment of a registered
attorney shall be in force until -
(a) revoked by
the client in writing with the leave of the court and after notice to the
registered attorney in writing signed by the client and filed in court;
(b) revoked by
the registered attorney-
(i) in writing
signed by the client and filed in Court;
(ii) with leave
of the court having given thirty days’ notice to the client;
(c) the client
dies;
(d) the death or
incapacity of registered attorney; or
(e) all
proceedings in the action are ended and judgment satisfied so far as regards
the client.
(4) No Counsel
shall be required to present any document empowering him to make any appearance
or application or to do any act. The Attorney-General may appoint a registered
attorney to act specially in any particular case or to act generally on behalf
of the State.
CHAPTER 105
CIVIL PROCEDURE
CODE
Summons.
55.(1) Upon the
plaint being filed and the copies of concise statements required by section 49
presented, the court shall order summons in the form No. 16 in the First
Schedule to issue, signed by the Registrar of the court, requiring the
defendant to answer the plaint on or before a day to be specified in the
summons, such day, being a day not later than three months from the date of the
institution of the action in court.
(2)(a)
Every party to an action, not appearing by a registered attorney, shall on or
before the date specified in the summons deliver to the Registrar a memorandum
substantially in the Form No. 16A in the First Schedule in duplicate setting
out the address, mobile phone number and the electronic mail address if any,
which shall be considered as the registered address, the registered mobile
phone number and the registered electronic mail address respectively of such
party for the service of the notices or any other legal document required to be
served on such party under the provisions of this Code unless otherwise provided.
Every party shall inform the Registrar forthwith of any change in the address,
the mobile phone number or the electronic mail address.
(b)
Every party shall with such memorandum tender to the Registrar stamps to the
value required to cover cost of service of such notices or other legal document
by registered post. He shall bear the cost of courier service or service
through electronic means.
(3) Where a party appears by a registered
attorney, the address, the mobile phone number and the electronic mail address
of the registered attorney contained in his appointment under section 27 shall
be deemed to be the registered address, the registered mobile phone number and
the registered electronic mail address of such Attorney-at-Law so long as the
appointment is in force.
(4) Any notice or other legal document required
to be served on any party shall be deemed sufficient service if served by
registered post or courier service or through electronic means-
(i) on such party on the registered address, the
registered mobile phone number or the registered electronic mail address of
such party; or
(ii) on such registered attorney, where a party
appears by a registered attorney and such appointment is in force, on the
registered address, the registered mobile phone number and the registered
electronic mail address of such registered attorney.
(5) The Registrar shall file one copy of the
memorandum substantially in the Form No. 16A furnished to him as part of the
record of the case and keep and maintain the other copy by way of a separate
ledger..
[
new section inserted in place of 55 (2) by Act No 43 of 2024]
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.
[
section 60 repealed and new section inserted by section 7 of Act No 43 of 2024]
Proof of service
61. When summons are served by-
(a) registered post or courier service, the
registered post article receipt or proof of delivery of courier service;
(b) electronic mail, the proof of sending of the
electronic mail by the Registrar and filed as part of the case record;
(c) publication in newspapers, copies of such
publications; or
(d) in any other manner, an affidavit of such
service, shall be sufficient evidence of the service of the summons and of the
date of such service, and shall be admissible in evidence and the statements
contained therein shall be deemed to be correct unless and until the contrary
is proved.
[
section 61 repealed and new section inserted by section 8 of Act No 43 of 2024]
Service on agent or affixing on immovable property
66.
In an action to obtain relief or compensation for wrong in respect of an
immovable property or connected thereto, if the service cannot be made on the
defendant in person, it may be made on any agent of the defendant in charge of
the property and in cases where such agent cannot be found the court may direct
that the summons shall be affixed at some conspicuous part of such property.
[
section 66 repealed and new section inserted by section 9 of Act No 43 of 2024]
Service on
defendant in jail
68. (1) If the defendant be in jail, the summons
shall be delivered by the process server to the officer in charge of the jail
in which the defendant is confined, and such officer shall cause the summons to
be served personally on the defendant and obtain an acknowledgement of receipt
of the summons by the defendant.
(2) The precept shall be returned through the
process server to the court from which it is issued, with a statement of the
service endorsed thereon, and signed by the officer in charge of the jail.
(3) Where any defendant is in prison on the
summons returnable date the officer in charge of the prison shall produce the
defendant to the Court.
[
section 68 repealed and new section inserted by section 10 of Act No 43 of
2024]
70.
CHAPTER 105
CIVIL
PROCEDURE CODE
Order
granting leave for service of summons out of Sri Lanka.
70.
Every order granting leave to effect service of summons out of Sri Lanka shall
direct the mode by which such service shall be effected, and also direct that
the defendant shall on or before the date specified in the summons, such date
being a date not later than six months from the date of the order for service
outside Sri Lanka, file his answer and comply with the other requirements of
section 55.
Such
service can be effected by courier service or by any legal firm authorised by
the laws of such country where the defendant resides and the proof of personal
service of summons shall be submitted to the court.
[
section 70 amended by section 11 of Act No 43 of 2024]
CHAPTER
VIIIA SERVICE OF ORDERS
Chapter VIIIA
enactment
Communication of Orders
71A.
The Court may, in addition to the service of documents, direct the Registrar to
communicate any order of court including an enjoining order, an injunction, an
interim injunction, a sequestration order and an interim order to the parties
concerned by way of electronic or telephone devices.
[ Chapter
VIIIA inserted by Section 12 of Act No 43 of 2024]
CHAPTER
105
CIVIL
PROCEDURE CODE
If defendant excuses his default, any order or
judgment to be set aside.
86.
(2) (2) Where,
(a) at anytime after the case is fixed for
ex-parte
trial
against the defendant for default; or
(b) any time after the decree is entered against
him for default but without the service of the decree on him; or
(c) 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 did not
receive the summons or that he had reasonable grounds for such default, the
court shall set aside the order fixing the case for ex-parte trial, the
judgement and decree as the case may be 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 deem fit.
[ section 86(2) repealed and new section inserted by section 13 of Act No 43 of 2024]
(2A)
At any time prior to the entering of judgment against a defendant for default,
the court may, if the plaintiff consents, but not otherwise, set aside any
order made on the basis of the default of the defendant and permit him 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 fit.
(3)
Every application under this section shall be made by petition supported by
affidavit.
CHAPTER
105
CIVIL
PROCEDURE CODE
Of
sequestration before judgment.
653.
If a plaintiff in any action, either at the commencement thereof or at any
subsequent period before judgment, shall, by way of motion on petition
supported by his own affidavit and viva voce examination (if the Judge should
consider such examination necessary) satisfy the Judge that he has a sufficient
cause of action against the defendant, either in respect of a money claim of or
exceeding two million rupees or because he has sustained damage to that amount,
and that he has no adequate security to meet the same, and that he does verily
believe that the defendant is fraudulently alienating his property to avoid
payment of the said debt or damage; and if he shall at the same time further
establish to the satisfaction of the Judge by affidavit or (if the Judge should
so require) by viva voce testimony such facts that the Judge infers from them
that the defendant is fraudulently alienating his property with intent to avoid
payment of the said debt or damage, or that he has with such intent quitted Sri
Lanka leaving therein property belonging to him, such Judge may order a mandate
(form No. 104, First Schedule) to issue to the Fiscal, directing him to seize
and sequester the houses, lands, goods, money, securities for money and debts,
wheresoever or in whose custody so ever the same may be within his district, to
such value as the court shall think reasonable and adequate and shall specify
in the mandate, and to detain or secure the same to abide the further orders of
the court.
Explanation
Sequestration
of immovable property has the effect of sequestering all rents and profits
which proceed there out, pending the sequestration.
Form No. 7 to
the 1st schedule is repealed and following new form is substituted thereof.
No. 7 [Section 27]
FORM OF
APPOINTMENT OF A REGISTERED ATTORNEY
Know all
men by these
presents that I/ we… ,
holder of National
Identity card
bearing no……………………………………..
………………………………………………………………………………….
have nominated, constituted and appointed, and do hereby nominate constitute and appoint ……….…………………………………Attorney-at-Law to be
my/our registered Attorney and
for ………………………………….. and in…….
……………………………………………… name and behalf
before the …………………………………………. to appear and therein to
(sue or defend, as the case may be, showing what the action is) And to receive
and to take all moneys that may be paid to him by the said in the said action, and to move for and
obtain in his name any order or orders from the said Court for any payments of
any sum or sums of money that may be deposited therein in respect of ……………………………………,
and to give all necessary receipts, releases and discharges therefor. And if
need be, to refer the case to the award and decision of arbitrators and to name
an arbitrator for , and for that purpose
to sign any motion, submission, or bond; or, if necessary to allow and consent
to a judgement being entered
against …………………………….. as
to ……………………………. said Attorney-at-Law shall appear fit and proper; and
against any judgment, order, sentence, or decree interlocutory or final of the
said Court to appeal to the High Court, Court of Appeal or Supreme Court; and
every bond or
recognizance whatsoever necessary
in the course of proceedings for the prosecution of such appeal for and in name and as act to sign, and upon any
judgement or order of the said
…………………………… Court to proceed to execution against the
person and property
of the said
………………………
And ……………………… do
further authorize and empower said
Attorney-at-Law, to take and use all lawful ways and means, and to do and
perform all such acts, matters and things as may be necessary in and about the
premises which being personally
present might or could lawfully do, and, if necessary, one or more Attorney or
Attorneys-at-Law or counsel, to appoint, and again at pleasure such appointment
to revoke, and further promise and agree to release all kinds of
irregularities, and to ratify, confirm, and allow all and whatsoever the said
Attorney-at-Law or his substitute or substitutes, or the said counsel, shall do
herein.
.………………………
Signature/s
Witness …………………………. hand at ………………………on this …………….day of ………………20…
I certify that I
am satisfied with the identity of the said ………….………………..(name/s) according to
the National Identity Card/Passport/ Senior Citizen Identity Card/Driving Licence bearing number ………………………………. and he/she/they signed before me on
.................................................
………………………….…………
Signature of the
registered Attorney/ Attorney-at-Law/Solicitor/Notary/
Ambassador/High
Commissioner/ Diplomatic Officer/Consular Officer.
(Seal)
……………………………….
Signature of the
registered Attorney (Seal).;
Address:
Phone numbers:
Office :
Mobile :
Electronic mail Address:
Fax Number:
Form No. 16A
thereof is repealed and the substitution
therefor of the following form :-
No. 16A [Sections 27 and 55]
MEMORANDUM OF
REGISTERED ADDRESS / REGISTERED MOBILE PHONE NUMBER / REGISTERED ELECTRONIC
MAIL ADDRESS
In the
Commercial High Court / District Court / Primary Court of …………………
Case No. :
I,…………………………………………….(the
Plaintiff/ Defendant/Petitioner/Respondent/Party seeking to be added/
substituted) hereby furnish my address/ mobile phone number/ electronic mail
address for the service of the notices and all other legal documents required
to be served on me under this Code.
I undertake to
inform the Registrar of any change of the registered address/registered mobile
phone number/ registered electronic mail address forthwith by submitting
another memorandum in the same form.
Address:
Mobile Phone
Number: Electronic mail Address: Fax Number:
……………………..
Signature
Plaintiff/Defendant/Petitioner/
Respondent/ Party Seeking to be added/ substituted.;
(3) Form No. 17 thereof is repealed and the substitution therefor of the following
form:-
No. 17 [Sections 60, 71A] FORM OF PRECEPT TO
PROCESS SERVER TO SERVE
SUMMONS OR
ORDERS
To the Fiscal /
Authorized Officer / Grama Niladhari of the
……………………………….
Court/Division of
………………………………………..
Serve forthwith
the summons in the above-named action, which, with duplicates, is herewith
transmitted to you, upon each of the persons to whom it is directed, and leave
with or tender to each such person a duplicate summons and one of the copies of
(or concise statements presented with) the plaint, which accompany the summons.
And certify to this Court on or before the …………. day of …………..20……, in what
manner you have executed this precept, returning the summons attached to your
certificate as an exhibit.
By order of
Court,
(Signed) ,
Registrar.
The……..day of
……………20....
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