Under section 86(2) CPC, the burden lies on the defaulting party to demonstrate a valid and bona fide excuse for nonappearance. Mere negligence, confusion, or contradictory explanations cannot constitute reasonable grounds.

-

Headnote drawn by "GALLELAWBLOGGER"

Balangoda Plantations PLC v. Land Reform Commission

Civil Procedure, Section 86(2) Civil Procedure Code, Default of Appearance, Reasonable Excuse, Abuse of Process, Setting Aside Ex parte Orders

The Plaintiff, Balangoda Plantations PLC, instituted proceedings in the District Court to restrain the Land Reform Commission (LRC) from handing over the Agratenna division of Ury Estate, which had been leased to the Plaintiff, to the National Gem and Jewellery Authority for gemming purposes. When the matter was called on 21.10.2008, the 1st Defendant (LRC) failed to appear, and the case was fixed ex parte. The LRC later applied under section 86(2) of the Civil Procedure Code to have the order vacated, claiming its legal officer had mistakenly gone to Court No. 8 instead of Court No. 1 on account of confusion in the case number and advice from a court clerk.

The District Court refused to set aside the ex parte order, holding that no valid excuse had been shown. The Civil Appellate High Court of Colombo reversed, allowing the LRC to proceed with its defence. On further appeal, the Supreme Court considered whether the High Court erred in law by setting aside the District Court’s order.

Held (Menaka Wijesundera J., Thurairaja PC J. and Wickremasinghe J. concurring):

Under section 86(2) CPC, the burden lies on the defaulting party to demonstrate a valid and bona fide excuse for nonappearance. Mere negligence, confusion, or contradictory explanations cannot constitute reasonable grounds.

The LRC’s explanations were contradictory: the legal officer claimed she was misdirected by a court clerk, while her own clerk asserted they mistook the case number “171/08” as indicating Court No. 8. No evidence was led to substantiate the claim of misdirection.

The summons clearly directed the parties to appear in Court No. 1, and the LRC, represented by an attorney of long experience, failed to act with due diligence.

Allowing such excuses would amount to an abuse of process and undermine the certainty of judicial procedure.

Appeal allowed. Judgment of the High Court set aside. Order of the District Court refusing to vacate the ex parte order is affirmed.


*NOTE BY THE BLOGGER

1. Change to Section 88(2):

Before the amendment, Section 88(2) of the CPC allowed “the order setting aside or refusing to set aside the judgment entered upon default” to be appealed but did not require leave (permission) in all cases. After Amendment No. 5 of 2022, subsection (2) is repealed and substituted by:

“(2) The order setting aside or refusing to set aside the judgment entered upon default shall accompany the facts upon which it is adjudicated and specify the grounds upon which it is made, and shall be liable to an appeal to the relevant High Court established by Article 154P of the Constitution, with leave first had and obtained from such High Court.” 

So now, if someone wants to appeal an order that sets aside (or refuses to set aside) a default judgment, they must obtain leave (permission) from the High Court before proceeding with the appeal.

2. Retains Section 88(1):

The amendment does not change the principle that no appeal lies against any judgment entered upon default (section 88(1)). That means the default judgment itself is not directly appealable. 

3. Effect on Section 86(2):

While section 86(2) (dealing with purging default, etc.) was not directly changed by this particular amendment, the effect of requiring leave in Section 88 means that after a default judgment and after an application under section 86 to set aside or vacate default, if the court makes an order (either setting aside, i.e., allowing the case to proceed,  or refusing), that order is now appealable only with leave. In short, one must first apply to the High Court for leave to appeal that order.


READ JUDGMENT ONLINE

Comments

Post a Comment

Popular posts from this blog

constructive trust - synopsys of a presentation

-
Image
  TRUST - A presentation -  October 29, 2016 786 GALLELAW BLOGGER   [ many authorities cited in this document have been hyperlinked by the blogger to save the precious time of the reader]     "Constructive trust serves as the guardian of the oppressed when the rigidity of written law hinders the pursuit of justice. It embodies the flexibility and moral conscience of the legal system, ensuring that equity prevails where legal technicalities may fall short. By recognizing the rightful claims of those unjustly deprived, constructive trust provides a path to fairness and restores balance, offering hope and remedy to those wronged by the limitations of formal law." - GALLELAWBLOGGER     October 29, 2016   TRUST – synopsis of a presentation made to the District Judges on 24.8.2002 by A W A Salam at the auditorium of the Office of Judicial Service Commission presided over by Justices Udalagama Director of SLJI  ...
Read more

EQUITY SAVES A MAN AND HIS RESIDENCIAL HOUSE- CONSTRUCTIVE TRUST SUPREME COURT RECENT JUDGMENT ARJUNA OBEYSEKERA J

-
Image
  The plaintiff sued the 1st and 2nd Defendants for a declaration of title to the subject matter of the action and ejectment of a landed property. In the amended answer, the 2nd defendant admitted the execution of several deeds affecting the subject matter including one in favour of Odayan Kureishan, but claimed that Kureishan, the 1st defendant, and subsequently the plaintiff, came to hold the property in trust for him [ the 2nd Defendand]​​  The main issue was whether the beneficial interest in the property had been transferred to Odayan Kureishan or if the property was being held in trust for the 2nd  defendant by Kureishan, the 1st defendant, and subsequently the plaintiff. Essentially, the court had to determine if these transactions were actual sales or just loans with the second defendant still owning the property.  The District Court decided that the beneficial interest in the property had not been transferred to Odayan Kureishan. The court held that the prop...
Read more

some selected

-
Image
  Terms of Service · Privacy · Content Policy All Blogs MANAGE GALLELAW BLOGGER 1 minute ago PEIRIS AND ANOTHER v. PERERA AND ANOTHER Sri Lanka Law Reports 2002 - Volume 2 , Page No - 128 *PEIRIS AND ANOTHER v. PERERA AND ANOTHER* *(The blogger's understanding of the judgment is summarized as follows)* *CLICK ON ME* The defendants filed a petition seeking permission to appeal against the orders issued by the District Judge on January 19 and January 24, 2001. They also requested a stay of proceedings in DC Panadura case No. 2794/spl. Initially, the court granted a stay order on January 31, 2001, but later refused to extend it on April 6, 2001, as the dispute involved a right of way. The situation arose from the following facts: The District Judge, through his o...  read more GALLELAW BLOGGER 5 days ago Having exercised jurisdiction the Magistrate is not permitted to revisit the question of breach of peace. The Magistrate is clothed with the jurisdiction to ent...
Read more