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BRA.MPY v. PERIS.
D. C., Colombo, 9,016.
Ex parte trial—Notice to defendant in default—Right of defendant to cross-examine at ex parte trial—Evidence—Adjournment.
Where a defendant takes time to answer but fails to answer onthe appointed day, the Court may fix the case for ex parte hearing.At such hearing the defendant has, under the Civil Procedure Code,no right to cross-examine the plaintiff or his witnesses.
If the Court is dissatisfied with the evidence adduced at an exparte trial it should, in an order, point out in what respects theevidence already recorded is defective and then adjourn either to aday named or sine die. The plaintiff may put the cause on the rollwhen he is able to supplement the defective evidence.
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' I 'HE land wliich formed the subject of dispute in this case wasbequeathed by a husband and Wife to Peris and Juan. Afterthe death of the testators their executor entered into possession ofthe land and sold the same to the plaintiff, for the purpose of defray-ing the expenses incurred by the executor in proving the will. Afterthe sale the plaintiff was put in possession, but Peris ejected himfrom the land and cultivated it on the strength of his title as legatee.Tbe plaintiff now sued Peris in ejectment, praying for a declarationof title.
On the returnable day of summons the defendant obtained timeto file answer, but he failed to file it, and the case was fixed for exparte hearing on the motion of the plaintiff.
At the. ex parte hearing the defendant appeared and cross-examined the plaintiff and his witnesses. The District Judge,after referring to the proceedings in the testamentary case, declinedto uphold the sale to the plaintiff by the executor and dismissed hisaction-
The plaintiff appealed.
Morgan, for appellant.
26th October, 1897. Lawrtr, A.C.J.—
The defendant appeared by a proctor in the District Court, andof consent he "got time till the Kith August to file answer.
He failed to do so.
On 18th August, on plaintiff’s motion, a day was fixed for theex parte hearing, of which notice was given by the Court to thedefendant.
Why this notice was given I do not know.
* Of course a defendant who has not answered may, like all therest of the world, attend a public court, but he has no right to takepart in an ex parte hearing.
If he is cited and takes part the hearing ceases to be ex parte andbecomes inter partes.
I am aware that in proceedings under the old Rules and Ordersof 17th June, 1844, the practice was to allow a defendant in defaultto cross-examine the plaintiff and the witnesses at aa ex parte trial(see obiter dicta in the cases reported in Austin, p. Ill, and 1 Lorenz,p. 170), but I am not prepared to concede that these cases are ofauthority in interpreting our Code.
In my opinion the defendant ought not to have been allowed tocross-examine at the ex parte hearing: I am of the opinion thathe must adduce some proof. He must 'make out a fair primdfacie case. I wonder why in such cases the plaintiff does
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not more frequently call the defendant, (and from his lips get anadmission of indebtedness ; but whatever be the evidence it mustbe sufficient to satisfy the Judge, who is not bound to give a decreeuntil he is satisfied. If he is dissatisfied, he should in an order pointout in what respects the evidence already recorded is defective andthen adjourn either to a day named or sine die.
The plaintiff may put the cause on the roll when he is able tosupplement the defective evidence.
In this case the plaintiff proved he had paper title ; the objectionsto that title could not be tried until pleaded by the defendant, whowas wilfully in default.
I am of opinion that the dismissal of this action was wrong. Iwould set aside and remit to the District Court to pass a decree nisiof which the defendant is entitled to notice by section 85.
These are ex parte proceedings. The plaintiff must bear his owncosts.
In this case plaintiff sued averring that a land specially devisedto defendant had been sold by the executor in July, 1894, to him,the plaintiff, as the defendant had failed to contribute to the executordefendant’s share of the expenses incurred in the testamentaryproceedings, but that defendant in July, 1895, had taken forciblepossession of the land ; and he prayed ejectment of defendant andrestoration to possession and costs.
Defendant appeared and moved for time to file answer, but failedto file any, and the case was set down for ex parte trial with noticeto defendant thereof in accordance with the practice in that Court,that when for such a reason as here an ex parte trial does not takeplace in ordinary course notice of the fixture is given tothedefendant.Defendant appeared personally at the ex parte trial.
The executor gave his evidence of his sale to plaintiff and wasnot cross-examined. Plaintiff gave his evidence that he was placedin possession of the land on the date of his purchase, but that theland was then under cultivation by defendant, who took the crop,and that when plaintiff on 9th July, 1895, went to the land to putup a dam and prepare it for cultivation, defendant refused to allowhim to do so. Defendant cross-examined him and elicited that,plaintiff was only 22 years of age and in employment at Rs. 2 orRs. 2*50 per month, and paid the Rs. 150 for the 1 d, Rs. 100 outof his savings and Rs. 50 by money givenus master, a
relative of the executor.
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The District Judge, after perusal ex mero motu of the testamentaryproceedings, held that the executor had no right to sell the land,and that there was reason to suspect the plaintiff was but a nominalpurchaser for either the executor or his relative or for both of theland at an under-value, and he dismissed plaintiff’s action- Ishould be glad if to shorten the work of our Courts it were ruled thatin oases of default of pleadirgs the procedure at an ex parte trialshould be no more than in England under Order 27, rules 7 and 8—that judgment should be entered (final) for the land, and (inter-locutory) that the plaintiff do recover against the defendant thevalue of the (as here) damages to be assessed, which judgment ismade final on the assessment. But section 85 requires that ifdefendant shall fail to file his answer on the day fixed therefor andplaintiff then appears, the Court shall hear the case ex parte and enteronly a deoree nisi.
No doubt it was always recognized by us in our former practicethat at such a hearing defendant might appear and cross-examinowith a view to make the Court so dissatisfied with proof led thatit would require further proof, and even dismiss the action if theevidence adduced does not sustain the claim. But in my opinionplaintiff on the occurrence of any doubt in the mind of the Judgeas to his right to judgment should have opportunity given him todispel that doubt ere his action were finally dismissed to the absoluteextinction of his claim for ever, and I cannot see he had thatopportunity here given him.
I agree that the dismissal should be set aside and decree nisientered for the plaintiff.
As to the considerations which influenced the Acting DistrictJudge, I do not see it to be prima facie apparent that plaintiff’stitle to the land was the result of any mal-practice on the part ofthe executor of which plainitff was cognizant. No doubt if theexecutor has injured the estate he can be made personally responsiblefor it by the heirs or devisees. At present I do not see defendantever took title by assent of the executor to the bequest, for he soldthis land to pay expenses of the administration.
BRAMPY v. PERIS