Perera v. Town Council, Maharagama
1976Present: Deheragoda, J., Wijesundera, J. todIsmail, J.
BALASURIYAGE SARANAPALA PERERA, Plaintiff-Petitioner
THE TOWN COUNCIL OF MAHARAGAMA, Defendant-
S.C. 32/74 (Inty.)—D.C. Mt. Lavinia 73325/M
Administration of Justice Law, No. 44 of 1973, section 53—Transfer ofcase from one District Court to another—Latter a newlyconstituted Court within whose jurisdiction case now fell—Absence of defendant on trial date—Decree entered ex-parte—Requirement that parties should have been given notice of thetrial in such Court.
This action was pending in the District Court of Colombo andhad come up for trial on several occasions, the parties beingrepresented on all dates and the plaintiff present. On 22nd June, 1973rafter issues were framed both parties moved for a postponementand the trial was refixed for 20th September, 19T3, on which dateit was once again postponed for 20th March, 1974.
On 1st January, 1974, the case was transferred to the newly consti-tuted District Court of Mt. Lavinia. A journal entry of 9thJanuary, 1974, stated that the case was to be called on 25th January,at Mt. Lavinia and that the Attorneys-at-Law be noticed forthat date. On 25th January, the case was called in the District Courtof Colombo and fixed for trial at Mt. Lavinia on the same dateas before. There was no record that any of the Attorneys was present.
On 20th March, 1974, the trial date, the plaintiff was presentbut the defendant, the Town Council, was absent and was notrepresented. Evidence was led ex parte and decree nisi enteredin favour of the plaintiff. The defendant made an applicationto the District Court to have the decree nisi set aside. Evidencewas given by the Attorney-at-Law for the defendant, and theChairman and Secretary of the Town Council in support of theapplication. They stated that no notice had been received thatthis case was to be heard at Mt. Lavinia. The learned trial Judgeaccepted the evidence led on beha’f of the defendant Town Counciland vacated the decree nisi and fixed the case for trial. Theplaintiff appealed from that order.
It was submitted at the hearing of the appeal on behalf of theplaintiff that inasmuch as the petition to vacate the decree nisiwas filed in the name of and by the Attorney-at-Law cor the defen-dant, the District Court could not have acted on it. No objectionwas taken at the inquiry to the form of the petition.
Held: (1) That the District Court of Mt. Lavinia should havegiven notice to the parties that the case was being taken up forhearing in that Court on a particular date.
DEHERAGODA, J.—Perera v. Town Council, Maharagama
(2) That the objection regarding the form of the petition couldnot be sustained as to uphold it now would cause grave injusticeto the defendant. The evidence led and the course the inquiry tookin the District Court would have been the same even if the petitionwas in the name of and by the Town Council and no prejudicehad been caused to the plaintiff.•
Case referred to:
Velupillai v. The Chairman, Urban District Council, 36 N.L.R. 464.^PPEAL from a judgment of the District Court, Mt. Lavinia.
H. W. Jayewardene, Q.C., with D. R. P. Goonetileke, for theplaintiff-appellant.
C. Ranganathan, Q.C., with T. B. Dillimuni, for the defendant-respondent.
Cur. adv. vult.
October 5, 1976. Deheragoda, J.
The facts relating to this appeal have been fully set out bymy brother, Wijesundera, J.
While agreeing with my brothers, Wijesundera, J. andIsmail, J. that this appeal should be dismissed, I too, wish toadd a few words on one aspect of the argument vehementlyurged on behalf of the appellant. It is the evidence cf the defen-dant’s attorney that when a few days before 20.3.1974 he lookedup the trial roll in the District Court of Colombo he discoveredthat the case had been transfered to the Court at Mt. Laviniaand that he was informed (we do not know by whom) that hewould receive a notice from Court. Basing his argument on thisevidence, learned Counsel for the plaintiff-appellant urged thatthere was lack of due diligence on the part of the defendant-council’s attorney in not having rushed to the Mt. LaviniaCourts to verify the date of trial. Lack of due diligence can beurged in this case only if the District Judge of Mt. Lavinianeed not have served notice on the parties informing them ofthe next date of trial, before resuming the hearing in that Court.It is the evidence of the defendant-Council’s attorney that nonotice was served on him of the next date of trial at the Mt.Lavinia Courts, although the journal entry states that noticeshad issued. I
I agree with my brother Justice Ismail’s view that section53 (5) of the Administration of Justice Law (which serves thepurpose of only a proviso to section 53 (3), although it isnumbered a sub-section) enabled the District Judge of Colomboto continue and complete the hearing of the case if he was soinclined. In those circumstances, it is my view that the DistrictCourt of Mt. Lavinia was under a duty to notice the parties
ISMAIL, J.—Perera v. Town Council, Maharagama
and to verify* whether the notices had been served beforeresuming the case there, as one could not have expected theparties to find out whether or not the District Judge of Colombohad decided in terms of gub-section (5) to continue to hear thiscase at Colombo. The mere fact that the defendant-Council’sattorney happened to inspect the trial roll of the District Courtof Colombo a few days before 20.3.1974 should not, therefore,be urged against him and an inference of lack of due diligencedrawn from it.
I, accordingly, agree that this appeal should be dismissed withcosts.
I have had the benefit of having read the judgment of mybrother Wijesundera, J. and find that I am in agreement with' him in the ultimate issue of this appeal for the reason given byhim. I would however respectfully add that consideration ofsection 53(5) of Administration of Justice Law, No. 44 of 73, isnecessary to put matters arising in this appeal in their correctperspective.
Section 53 (5) reads —
Where by virtue of the provisions of this Law, any areapreviously forming part of the jurisdiction of any DistrictCourt or Magistrate’s Court is excluded therefrom, and anyaction, proceeding or matter in that court on the daypreceding the appointed date ceases to be within the juris-diction of that Court by reason only of the exclusion of thatarea, such action, proceeding or matter may, notwithstandinganything in this Law, be heard and determined or continuedand completed by that Court as if such area had not been soexcluded from the jurisdiction of that District Court orMagistrate’s Court, as the case may be.
It will therefore be seen that what sub-section (5) really doesis to reaffirm the existence of courts under the old Law, whichhave been given a new lease of life by this Law, less thoseareas which may have been excluded for the purpose of creationof new courts under the Administration of Justice Law. Thus byvirtue of the provisions of this law the area, over which the newDistrict Court of Mt. Lavinia now has jurisdiction, has beenexcluded from the jurisdiction of the District Court of Colombo,and therefore this matter which was pending in the DistrictCourt of Colombo before this Law came into force can underthis sub-section (5) be heard and determined in the DistrictCourt of Colombo.
WIJESTXNDERA, J.—Perera v. Town Council, Mdharagama
When this sub-section was enacted it must be presumed thatthe legislature intended this sub-section to apply to certainparticular circumstances. This sub-section could not have beenintended to be a dead letter without.any application to any setof circumstances. Therefore it appears when one analyses theprovisions of the sub-section, what was really intended was thatcases similar to this which were originally heard in one courtbut had been transferred by the operation of sub-section (3)to a newly created court could be heard either in the originalcourt where it was filed or in the new court created by this Law.Therefore it appears to me that this case could under the provi-sions of section 53 (5) be continued to be heard in the DistrictCourt of Colombo.
Now section 53 (5) contemplates the immediate transfer ofjurisdiction from 1.1.74 of cases which fall within the jurisdic-tion of newly created courts to such new courts. This transferWould be automatic by operation of law. This being so, whenone considers section 53 (3) and section 53 (5) the litigant wouldbe placed in position of uncertainty as to which forum wouldhear and determine his case, in this particular instance whetherit is the District Court of Colombo or the newly created DistrictCourt of Mt. Lavinia. In this state of doubt and uncertainty itis necessary that parties to an action should have notice as to inwhich forum a particular case would be taken up in. In thiscase the District Court judge of Mt. Lavinia had thoughtit necessary to issue notice of the hearing of this case in theDistrict Court of Mt. Lavinia. Thus notice had issued thoughthere is no evidence to indicate that notice has been served onthe defendant. I am therefore of the view that this order toissue notice in this case was correctly made and in the interestsof justice. I agree that this appeal be dismissed with costs.
The question that arises for consideration in this appeal iswhether the District Judge of Mt. Lavinia was correct in settingaside the decree nisi entered by him and fixing the case for trial.It involves the consideration of section 53 (3) of the Administra-tion of Justice Law, and has been argued at length.
The plaintiff-petitioner sued the defendant-respondent in theDistrict Court of Colombo to recover a sum of Rs. 39,450.50 asdamages for breach of contract. The respondent denied liabilityand the case was fixed for trial on 21.10.71. From then on thecase was postponed on many occasions, and on the 22nd ofJune 1973, after the issues were framed both parties, so the recordreads, one of whom was a Town Council, moved for a postpone-
WIJESUNl'ERA, J.—Perera v. Town Council, Maharagama
ment. Accordingly the trial was fixed for the 20th September,1973. On that date too the trial was once again postponed forthe 20th March, 1974. On all those dates the parties wererepresented and, the plaintiff-petitioner was present. On the 1stof January, 1974, the case was transferred to the newly constitu-ted District Court of Mt. Lavinia. A journal entry dated 9th ofJanuary, 1974, states that the case is to be called on the 25th ofJanuary, 1974, at Mt. Lavinia, and the attorneys to be noticedfor that date. On the 25th of January the District Judge hadcalled the case and fixed the trial at Mt. Lavinia for the samedate as before. But there is no record that any of the attorneyswas present. On the 20th March the plaintiff-petitioner waspresent but the defendant-respondent was absent and notrepresented, and so evidence was led ex parte and decree nisientered in the favour of the plaintiff-petitioner. By petition datedthe 28th March, 1974, supported with an affidavit by him, theattorney for the defendant-respondent applied to the DistrictCourt to have the decree nisi set aside. At the inquiry into thisapplication the attorney, the chairman, and the secretary of thedefendant Town Council gave evidence. The plaintiff-petitionercalled no evidence and the District Judge vacated the decree nisiand fixed the case for trial. The plaintiff-petitioner nowappeals from that order.
The learned attorney for the plaintiff-petitioner submitted thatthere was no application by the defendant-respondent to havethe decree nisi vacated. He submitted that the petition was inthe name of and by the attorney and therefore the DistrictCourt could not have acted on it. The petition filed in the DistrictCourt bears *th# caption of the case and below that appears :—
“ D. de S. Kurukulasooriya, Attorney-at-Law, 61/1, AustinPlace, Colombo 7. Petitioner. ”
It is signed by the attorney. No objection was taken to thepetition in the form it was. At the inquiry the attorney, thechairman, and the secretary of the defendant council gaveevidence. They stated that no notice was received that the casewas to be heard at Mt. Lavinia. The chairman and the secre-tary were expecting the case to be taken up in Colombo, andstated that the attorney acted in their behalf in making thatapplication. The secretary admitted receiving a notice to producesome documents at the Mt. Lavinia courts for the 20th March,1974. But he said that he passed it over to the revenue inspector.The plaintiff-petitioner himself and the court treated it as anapplication on behalf of the defendant-respondent. It has tobe kept in mind that the party who has to purge the default is a
W1JESUNDERA, J.—Per era v. Town Council, Maharagama
corporation and its failure to appear can only* be explainedthrough its officers like the chairman and the secretary andthrough its agents like the attorney, unlike in the case of anatural person. Even if the petition wa*s in the name of, and bythe council there could have been no change in the evidenceelicited and the course the inquiry took. Hence this is no doubtan error but not one that has caused any prejudice to theplaintiff-petitioner. It was ignored in the lower court. To upholdthe objection now would be to cause a grave injustice to thedefendant-respondent.
The learned District Judge vacated the decree nisi becausehe accepted the evidence of the attorney and the other twowitnesses that they thought that the case was to be taken up inthe District Court of Colombo and they received no noticeof the removal of the case to Mt. Lavinia. It was the submissionthat the order made by the District Court of Colombo postponingthe case for the 20th March is deemed to be an order of theDistrict Court of Mt. Lavinia made under the Administration ofJustice Law and therefore no notice was necessary and noquestion can now arise of notice having been served or received.
When the Administration of Justice Law came into operationon the 1st of January, 1974, the cases that were pending in theDistrict Court of Colombo stood removed to the appropriatecourt by virtue of the provisions of section 53 (3) of the Law. Anew District Court of Mt. Lavinia, established under the Lawexercises jurisdiction over some areas which formed part of thejurisdiction of the District Court of Colombo. The parties to thisaction reside and the cause of action as averred on the plaintarose within the jurisdiction of the new court, and consequentlythe appropriate court for this case is the new District Court ofMt. Lavinia. Then this sub-section provides that the DistrictCourt of Mt. Lavinia “ shall have jurisdiction to hear anddetermine the case ” and that all judgments and orders givenor made by the District Court of Colombo shall have the sameforce and effect as if they were given or made by the newDistrict Court and under the Law. The learned attorney for thedefendant-respondent submitted that the order postponing thecase is not an order contemplated in the sub-section, and it wasnecessary for the District Court of Mt. Lavinia to have givenfresh notice and refixed the case. He submitted that that wordin the context meant a decision in the nature of a judgmentand drew our attention to the defiinition of that word in theCivil Procedure Code, section 5. The Law does not define thatword in chapter I. It is defined in the chapter on AppealsProcedure. That definition has no application here. Equally the
WIJESTINI5ERA, J.—Perera v. Town Council, Maharagama
definition of that word for the purpose of the Civil ProcedureCode cannot have any application in interpreting the words inthe Law. It is further significant that the same term “ judgmentsand orders given or made ” occurs in all the sub-sections tosection 53. The intention of the legislature appears to be thatall the cases pending in the various courts of the island on the31st December, 1973, should be removed to the appropriate courtto enable that court to continue with the proceeding or actionfrom where it was on the 31st December. This cannot beachieved if the word order meant or means only a decision inthe class of a judgment. It would be a special meaning. Wherea special meaning was intended to be given the Law has definedit, e.g., the definition of the word order in section 356 of the Law.In any action or proceeding from the moment of its institutionthere are decisions made or directions given or other acts doneby a court. If the restricted meaning be adopted there will be aclass of “judgments and orders” in the cases removed havingthe same force and effect “ as if delivered or made under theLaw ”, and another class of acts or orders not having that samelegal effect. This is incompatible. Then it seems to me that therestricted meaning cannot be given to that word. It includes allthat which a court is called upon to perform during the courseof a case from the moment of institution up to its final termina-tion. Hence the order fixing the case for trial is an order withinthe meaning of the sub-section and has the same force and effectas if made by the District Court of Mt. Lavinia and under theLaw. Then there was no positive requirement that notice hadto be given in the sub-section. But for any court to have proceed-ed to trial where a case had been removed from Colombo to Mt.Lavinia, without adequate notice to the parties would be todefeat the purpose set. ont in section 2(b) of the Law, viz.,“fairness in the administration”.
However in this case the court did direct that notice be givenand rightly so. The question before the District Court whenthe application to vacate the decree nisi was made was whetherthe court was satisfied that the notice was not received and thatweis reasonable ground for default. There was a new system ofcourts and a new District Court of Mt. Lavinia established.There were no courts functioning from the 1st to the23rd January, 1974. The Court listened to the evidence and “ inthe circumstances of the case ” the court vacated the decree nisiand fixed the case for trial. It was not subject to any terms andconditions. Any other order would have denied the defendant-respondent the right to contest the action, and “ it would appearas if the shortcomings of his legal adviser (at that time), thepeculiarities of law and procedure, and (the establishment of a
Caledonian Estates Ltd. v. Hillman
new system of courts) have all combined to deprive him of hisdefence and I for one refuse to be a party to such an outrageupon justice.” per Abrahams, C. J. in Vellupillai v. TheChairman, Urban District Council, 36 l^.Li.R. 464, at page 465.
I dismiss the appeal and affirm the order of the District Courtsetting aside the decree nisi and fixing the case for trial. Thedefendant-respondent will be entitled to the costs of this appeal
BALASURIYAGE SARANAPALA PERERA, Plaintiff-Petitioner and THE TOWN COUNCIL OF M