Perera v. Alwis
1957 Present; H. N. G. Fernando, J., and Sinnetamby, J.K.A. PERERA and another, Appellants, and H. E. ALWIS andanother, Respondents
8. 0. 91 (Inty.)—D. G. Kandy, 6405jM. R.
Civil Procedure Code—Sections 83, 86 (2)—Default of appearance of defendant—Ex parte trial—Procedure,
Where, on default of appearance of defendant on the day fixed for appearanceand answer, a date is fixed for er parte trial in purported pursuance of section 85of the Civil Procedure Code, the reasons for the default of appearance may beconsidered by Court before the ex parte trial is held.
jAjPPEAL from an order of the District Court, Kandy.
T. B. Dissanayake for the 1st and 2nd defendants-appellants.
P. Somatilakam, for the plaintiff and 3rd defendant, respondents.
Cur. adv. vult.
'H. N. G. FERNANDO, J .—Perera v. Alwis
February 7, 1957. H. N. G. Febkando, J.—
In this action for the recovery of certain monies alleged to be dueupon a contract of service, summons was served on the three defendantsreturnable on 29th February 1956. They failed to appear on that dateand the District .Judge made order fixing 13th March 1956 for ex partetrial.
On 8th March, a proxy was filed on behalf of the first two defendants’who are the present appellants, together with an affidavit setting outreasons for the non-appearance of the appellants on 29th February and apetition requesting the vacation of the order for an ex parte trial. TheJudge’s order upon this petition was “ Mention on 13th March ”, On thislatter date, the Proctor for the appellants moved that the order forex parte trial be vacated and that leave be allowed to file answer. Thelearned Judge refused this application in these words :■—“ To substan-tiate these averments in the affidavit defendants have not even come toCourt today. To my mind the application made by the defendants isnot bona fide ’ ’. Trial was therefrom held ex parte and decree was enteredin favour of the plaintiff.
The ground upon which the application of the appellants was heldnot to be bona fide is clearly not maintainable. The order of the 8thMarch had been only “ Mention on 13th March”, and was no indicationto the appellants that their petition of 8th March would be taken up forinquiry on 13th March or that their presence was required on that day ;it was on the contrary the familiar means of indicating that an orderfixing a date for consideration of the appellants’ petition would be madeon 13th March. Counsel for the respondent concedes that the absenceof the appellants on 13th March did not justify the refusal of their appli-cation, but he has attempted on other grounds to support the decisionof the Judge to hold the ex parte trial.
The order of 29th February was made by the Judge in purportedpursuance of section 85 of the Code as the defendants had failed to appear“ on the day fixed for appearance and answer ”. The section providesthat in that event “ the Court shall proceed to hear the case ex parte andpass a decree nisi ”, and that notice of the decree nisi shall issue to thedefendant. Section 86 (2) then provides that, if on the day appointedin the decree nisi for showing cause (against the decree being madeabsolute), the defendant satisfies the Court that there were reasonablegrounds for his default of appearance, the decree will be vacated and thecase proceeded with as from the stage of the default. In effect the Codecontemplated that a decree nisi after ex parte hearing would be enteredso expeditiously that there would be neither time nor opportunity for theabsent defendant to intervene before entry of the decree : hence the onlyappropriate form of relief was the provision in section 86 (2) for showingcause against the decree being made absolute. But the provision in theCode for an immediate ex parte trial has not been adhered to in recenttimes, and an “inveterate practice”, recognised by this Court (VideWickremesuriya v. Mudianse et al.J), has been established whereby the
1 (1930) 31 N. L. B. 344.
Bandara Menika v. De Silva
ffl'/parte, hearing is put off for a day appointed. In the result there is innearly every case, between the date of default of appearance and the dayappointed for trial, an interval during which there is actually time andopportunity for the defendant to explain his absence on or before the datefixed for the ex parte trial. The question which arises is whether, despitethe availability of the time and opportunity, an ex parte trial, whichmight well turn out in the event to be abortive, need necessarily be heldbefore the reasons for default of appearance are considered.
The power of the Court to make an order fixing a date for the ex partetrial is an inherent one, derived not from the Code but from the “ invete-rate practice ” ; equally inherent would be the power to vaoate such anorder on appropriate grounds, and no grounds can be more appropriatethan those on which a decree nisi may be set aside in the course of strictadherence to the provisions of the Code. Indeed the learned trial Judgewould undoubtedly have considered whether or not to exercise thatinherent power, but for his mistaken assumption that the absence of theappellants from Court on 13th March showed a lack of good faith ontheir part.
We hold therefore that the ex parte trial should not have been heldbefore consideration was given to the appellant’s petition filed on 8thMarch 1956. The decree nisi is set aside and the case will be remittedto the District Court for consideration of that petition and for an orderto be made thereon. A second trial ex parte, will be held only if theprayer in that petition is not granted by the Court. The plaintiff willpay to the appellants the costs of this appeal and will bear their owncosts of the former ex parte proceedings.
Sinnetamby, J.—I agree.
Decree set asiie.
K. A. PERERA and another, Appellants, and H. E. ALWIS and another, Respondents