Habebu Mohamedu. v. Lebbe Marikar
1947Present: Wijeyewardene S.P.J.
HABEBU MOHAMEDU, Appellant, and LEBBE MARIKAR
et al., Respondents.
S. C. 123—C. R. Kandy, 1,845.
Court of Requests—Summons—Tamil-speaking defendant—served in English—Judgment by default—Set aside—Order not appealable—Civil ProcedureCode, ss. 55, 801, 806, 823 (2)—Courts Ordinance, ss. 36, 78.
A summons served on a Tamil-speaking defendant in a Court ofRequests need not be in Tamil. It is sufficient if it is in English.
An order made by a Commissioner of Requests setting aside a judgmententered for plaintiff by default is not an appealable order.
An action brought in the Court of Requests for recovery of damagesfor wrongful possession of a land involves " the right to possession of aland,” and, in case of default of appearance of the defendant, theCommissioner must fix the case for ex parte hearing in terms of theproviso to section 823 (2) of the Civil Procedure Code.
WUEYEWARDENE S.P.J.—Habebu Mohamedu v. Lebbe Marikar. ' 371^ PPEAL. from a judgment of the Commissioner of Requests, Kandy.
H. W. Thambiah (with him S. Sharavananda), for the plaintiff,appellant.
S. R. Wijayatilake, for the defendants, respondents.
July 28, 1947. Wijeyewardene SJP.J.—
Cur. adv. vult.
The plaintiff claimed in this action a sum of Rs 300 as damagessuffered by him by reason of the defendant’s wrongful possession of aland described in the schedule at the foot of the plaint. The Court issuedsummons returnable on August 23, 1946. On that date the defendantswere absent though it was reported that they were served with summons“ on being pointed out ”. On August 30, 1946, the plaintiff filed anaffidavit stating that he pointed out the defendants to the process serverfor service of summons, and the Court, thereupon, entered judgmentby default against the defendants. On September 12, the defendantsfiled an affidavit and moved to have the judgment set aside on thegrounds, (1) that they were not served with summons and (2) that “thesummons issued had been in the English language and is not in conformitywith the provisions of the Civil Procedure Code ”. They stated, further,that they were not in possession of any land belonging to the plaintiff.At the inquiry evidence was led to show that the first defendant did not“ know English ”, and the second defendant could not “ read or writeTamil or English ”. The Commissioner held against the defendants withregard to the service of summons but set aside the judgment entered bydefault, as the summons served on each of the defendants was in English.The plaintiff appeals against that order.
I am unable to uphold the view of the Commissioner that the summonsserved on a Tamil-speaking defendant under section 806 of the CivilProcedure Code should be in Tamil. That section states merely that thesummons shall state “ therein the names and residence of the parties,the substance of the claim and the number of the case ” and “ shall bein form No. 16 in the First Schedule ”. The section does not provide for atranslation. That section applies to Courts of Requests, and by reasonof section 801, the earlier general provisions in the Code regardingsummons would not be applicable to Courts of Requests where suchgeneral provisions are inconsistent with the special provisions of section806. A Bench of Three Judges expressed the view that even section 55which is one of the sections containing the “ general provisions ” referredto in section 801 did not require the duplicate of the summons to be inany language other than English (see Victoria v. The Attorney-General ’).In view of the contrary opinion favoured in certain decisions, I directedthe Registrar to ascertain the practice followed in the Courts of Requests,Colombo, Galle, Kegalla, and Kandy. From the replies received, it isfound that in Colombo a translation of the summons is not served on the
1 (1920) 22 Hew Law Reports 33
372 WIJEYEWARDENE S.P.J.—Habebu Moham.edu v. Lebbe Marikar.
defendant; in Kandy and Galle no translation is served “ but therehave been instances in which this has been done when the (plaintiffs)Proctor submits the summons in the language of the defendant InKegalla a somewhat strange practice seems to have grown up. There, aSinhalese translation of the summons is served on a Sinhalese-speakingdefendant but the Tamil-speaking Tamil or Moor is served only with asimmons in English.
I hold that the summons served on the defendants need not have beenin Tamil.
There are however other matters to be considered. Though theplaintiff’s claim is one for recovery of damages, it involves “the rightto possession of a land The plaintiff cannot succeed in his claim fordamages unless his right to the possession of the land is proved by him oradmitted by the defendants. The affidavit of the defendants states thatthe defendants are not in possession of any land belonging to the plaintiff.The Court would have to decide (a) whether the plaintiff was entitled tothe land, (b) whether the defendants were in wrongful possession of thatland, and (c) what damages have been caused to the plaintiff. In suchcircumstances, even where the defendants are absent, the Commissionermust fix the case for ex parte hearing and then give judgment “ on suchmerits as justice shall require, and without reference to the default thathas been committed ”—vide Proviso to section 823(2). The Com-
missioner did not follow that procedure in this case. It was urged by theappellant’s Counsel that, in these circumstances, the proper order to bemade would be to send the case back for the Commissioner to hearevidence ex parte. But, in S. C. No. 154, C. R. Badulla, 1,444 (vide S. C.Minutes of May 30, 1913), when a similar question arose, de Sampayo J.vacated the judgment by default and sent the case back directing theCommissioner “ to allow the defendant to file answer and enter upon hisdefence” (see also Amarasekere v. Mohamadu Uduma').
In this case, moreover, the journal entries do not show that the plaintiffwas present on the summons returnable date. The Commissioner couldhave dismissed the plaintiff’s action in spite of the default of the defend-ants, if the plaintiff did not “ sufficiently excuse his absence ”—videsection 823 (1).
Though the point was not argued before me, I cannot ignore thequestion whether the order appealed against is an appealable order.This question has to be answered in the negative in view of the provisionsof sections 36 and 78 of the Courts Ordinance (see Baron Appuhamy v.Tivanahamy* and Perera et al. v. Silva et al.z).
I dismiss the appeal with costs.
1 (1929) 31 New Law Reports 36.1 (1938) 40 New Law Reports 149.
* (1940) 42 New Law Reports 143.
HABEBU MOHAMEDU, Appellant, and LEBBE MARIKAR et al., Respondents