T. S. FERNANDO, J.—Nanayakkara v. Jf'aleel
1957 PreserU: Weerasooriya, J., and T. S. Fernando, J.
NAJSTAYAKKARA, Petitioner, and T. S. M. FALEEL and wife,
8. 0. 507—Application for restitutio in integrum in D. C. Colombo,
Civil Procedure—Ex parte trial—Absence of both parties—Appropriate order for theCourt to make—Civil Procedure Code, ss. 84, 88, 823 (4).
Where, in an action in the District Court, both parties are absent on the datefixed for ex parte hearing of the trial, the appropriate ordor for the Court tomake is an order dismissing the action. In such a case, it is open to any partyprejudiced to move the Court that made the order in an attempt to have itvacated.
^APPLICATION for restitutio in integrum.
G. Weeramantry, with. N. R. M. Daluwatte, for the plaintiff-petitioner.
G. Barr~Kumarakulasinghe, for the defendants-respondents.
Cur. adv. vult.
February 7, 1957. T. S. Feknajtdo, J.—
The petitioner who is the plaintiff instituted this action for the recoveryof a sum of Rs. 1,500 alleged to have been borrowed from her by thedefendants, the respondents to this application. On 31st August, 1956,the summons returnable date, both defendants were absent althoughsummons had been served on them. Accordingly, on that date, the casewas set down for trial ex parte on 28th September, 1958. On that day,when the case wa3 called neither the plaintiff nor her proctor was presentin court. The defendants themselves were absent. The learned judgethereupon made the following order:—“ Enter D. N. dismissing plain-tiff’s action ”. The record bears a journal entry to show that decreenisi was entered on this day and the decree nisi it self signed by the District
T. S. FERNANDO, J.—Nanayakkara v. Faleel
Judge on the 28th September is contained in the record. The decreenisi actually entered was one adapted from the printed form in use fordecrees nisi in terms of section 84 of the Civil Procedure Code, the modifi-cations in the form being necessitated by the fact that on the trial datein this case the defendants themselves were neither present nor represented'by proctor.
The decree nisi contains a recital that the court had decreed that theaction be dismissed unless sufficient cause is shown to the contrarywithin fourteen days from the date of the decree nisi, viz., 28thSeptember,1956. On 10th October, 1956, i.e., within fourteen days of the decreenisi, the proctor for the plaintiff, without any notice given to the defen-dants, appeared before the District Court and stated to the learned'District Judge who had ordered the decree nisi to be entered that he waspresent in the “ D ” Court (a Court presided over by one of the additionalDistrict Judges) and moved that the order for the dismissal of the plain-tiff’s action be vacated and another date be granted for ear parte trial.The learned District Judge thereupon directed the plaintiff’s proctor tofile an affidavit Although it should have been possible for the proctorto have filed an affidavit within fourteen days of the date of the decreenisi, an affidavit by him was filed only on 27th October, 1956. In thiaaffidavit the proctor has stated that he was under the impression that the-ex parte trial fixed for 28th September, 1956, would be held in the “D”Court and that he was present with the plaintiff in that court. He has-added that when he discovered that the case was listed for trial in the “ A ”Court he “ went into that Court but found that the case had been calledand the order for dismissal made ”. The inference to be drawn from thisaffidavit is that the proctor discovered on 28th September, 1956, itselfthat the action had been dismissed. In the circumstances it is difficultto appreciate why he waited till 12 days had expired to move the Courtto vacate the decree nisi. It is more difficult to understand why he tooka further 17 days to submit his affidavit to the Court. When the affidavitwas finally submitted to Court on 27th October, 1956, and the motion forthe vacation of the decree nisi renewed, the learned District Judgerecorded that he had no power to vacate the order as the decree nisi hadalready become absolute on the expiry of the fourteen days specifiedtherein.
No appeal was preferred against either the order of 28th September orof 27th October, but instead on the 26th November, 1956, the plaintiffmoved this Court by way of an application for restitutio in integrum.and seeks to obtain an order vacating the decree absolute and a directionto the District. Court to refix the case for ex parte trial.
In preparing this application the plaintiff’s legal advisers appear to haveassumed that the order made by the District Judge on 28th September,,1956, was an order in terms of section 84 of the Civil Procedure Code,,but her counsel appearing before us abandoned that position—as itappears to us, correctly—and submitted that section 84 was inapplicable-to a case where both plaintiff and defendant were absent from court onthe day of trial and therefore a decree nisi in terms of that section couldnot have been entered by the District Judge. I agree with this submission.
T. S. FERNANDO, J.~Nanayahkara v. Faleel
as well as with the further submission that section 88 of the Code is alsoinapplicable to this case as that section does not provide for the orderthe Court should make when both parties to a case are absent on the dateof trial. It does not appear that the Code contains any specific provisionas to the course to be followed when both parties to an action are absentfrom court on the date of the trial. It does not however follow that theCourt is powerless to make an appropriate order. There is always, inmy opinion, inherent power in a court in circumstances similar to thosein the present case to make such order as may be necessary in the interestsof justice. In the case of Garolis Appuhamy v. Sinho Appu1 where onthe date fixed for trial ex parte the plaintiff and the defendant were bothabsent, the District Judge made order dismissing the action. It will benoted that the judge did not order a decree nisi to be entered. Twomonths after the dismissal of the action the plaintiff filed an affidavitstating that he had been prevented from attending court on the datefixed for trial on account of his prolonged illness. The District Judgeheld he had no power to reopen his decree dismissing the action. An appealwas preferred to the Supreme Court, and Lawrie J. in the course of hisjudgment stated:—
“ As a rule, he (the district judge) has power to open or rescind hisown orders made, not inter partes but ex parte, on being satisfied thatthe order was made to the prejudice of a party who was unable to attendin consequence of illness or other circumstances over which he had nocontrol. Such power doubtless must be exercised with caution, andonly on sufficient materials and within a reasonable time after theex parte decree or order was made. ”
In the absence of any specific provision in that behalf in the CivilProcedure Code, it seems to me that where both parties to an action areabsent on the date fixed for ex parte hearing of a trial the appropriateorder for the Court to make is an order dismissing the action as was donein the case of Garolis Appuhamy v. Sinho Appu (supra), leaving it opento any party prejudiced to move the Court that made the order in anattempt to have it vacated. I believe that it is the usual order made inthe District Courts in such circumstances. It is of interest to note thatthe Code makes specific provision for a judgment to be entered dismissingan action in a Court of Requests where neither party to the action appearson the date fixed for trial—vide section 823 (4). While the more appro-priate order that might have been made in the present case appears to meto be one dismissing the action, it is not possible to contend that theCourt had no power to order that* a decree nisi be entered. Even other-wise, no prejudice seems to have been caused to the plaintiff by theorder actually made in the case since the excuse put forward by herproctor for not having appeared on the date fixed for the ex parte trialis not one that could have been entertained even had the order in thefirst instance been one dismissing the action and the plaintiff had there-after moved the Court to set it aside on the ground of that excuse.Learned counsel for the petitioner has urged that the District Judge acted
1 (1901) 5 N. L. B. 75.
SANSONI, J.—Kalandankutty v. Wanasinghe
-wrongly in entering a decree nisi and that he should have on 28th Sep-tember, 1956, postponed the trial for another date as appears to havebeen done in the ease of Carolia Appuhamy v. Sinho Appu (supra).I am quite unable to agree that the Court is obliged—as has been urged—where parties are absent to postpone the trial. The plaintiff and herproctor have themselves to blame for the situation in whioh the plaintiffnow finds herself. It is impossible to maintain that circumstances arepresent in this case which would entitle this Court to grant relief by wayof restitutio in integrum. I would dismiss the application with costs.
“Weebasooeiya, J.—I agree.
B. NANAYAKKARA, Petitioner, and T. S. M. FALEEL and wife, Respondents