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Present: Wood Renton J.
KANDAPPA v* MARIMUTTU.
179—C. R. Batticaloa, 15,872.
Court of Requests—Defendant absent—Statement by proctor that he had nodefinite instructions—Judgment by default—Civil Procedure Code,*823(2).
In an action in the Court of Requests to recover a sum of money,the defendant was absent at the date of trial. The defendant’sproctor, who did hot come to Court solely for the purpose of the trial,but who was in Court when the roll for the day was called, in con-nection with other cases as well, mentioned, when the case wascalled, that the defendant had asked him to appear in the case, buthad given him no definite instructions. The Commissioner thereforegave judgment for the plaintiff, treating the case as one in whichthere was default of appearance on the part of the defendant.Held, that the Commissioner was right.
Wool) Renton J.—It appears to me that cases of this kind turnvery largely on questions of fact, and it is not desirable, nor do Ipropose to attempt, to lay down any general rule in disposing ofthe appeal.
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'J’HE facts appear sufficiently from the judgment.
Vernon Grenier, for the defendant, appellant.
J. W. de Silva, for the plaintiff, respondent.
Cur. adv. vult.
July 14, 1911. Wood Renton J.—
It appears to me that cases of this kind turn very largely onquestions of fact, and it is not desirable, nor do 1 propose to attempt,to lay down any general rule in disposing of the appeal. Theplaintiff-respondent sued the defendant-appellant in the Court ofRequests of Batticaloa for a sum of Rs. 120, the value of eightamunams of paddy, which he alleged the appellant had agreed togive as ground share for the use and occupation of a certain field.The defendant-appellant filed answer, admitted that he had cultivatedthe respondent’s field, but especially denied that he had to give eightamunams of paddy as alleged in the plaint, and said that what heagreed to give was five amunams. On the day of trial the appellantwas not himself present in Court, although it was admitted that hehad been duly informed of the date of trial. The learned Commis-sioner of Requests, acting under the provisions of section 823, sub-section (2), of the Civil Procedure Code, thereupon gave judgmentin default in favour of the respondent. A few days later theappellant’s proctor filed an affidavit, and moved to have the casere-ppened. The Commissioner, after cause had been shown on bothsides, disallowed the application, and the present appeal is broughtfrom the order of disallowance. As the record itself did not containa full statement of what had transpired on the day when judgmentby default was entered, I directed the Registrar of the SupremeCourt, at the last hearing of the appeal, to refer the matter to theCommissioner of Requests by whom the case was decided, and whoappears now to be acting as an Assistant Settlement Officer. Inhis reply he states that, as far as he can remember, the proctor didnot come to Court solely for the purpose of the trial, but was inCourt, when the roll for the day was called, in connection with othercases as well. When the case in question was called, he rose andmentioned that the defendant had asked him to appear in the case,but had given him no definite instructions. “ The attitude assumedby him,” says the learned Commissioner of Requests, “ was that inthe absence of such instructions he was not prepared to take anyfurther steps in the case. He did not even apply for a postpone-ment.” On these facts I am not prepared to say that the learnedJudge was wrong in holding, as he did, that there had been defaulton the part of the appellant, and that the respondent was entitledto judgment. The present case is different from that of Gargial p.Somasundram jChetty,* where the defendant’s proctor appeared on1 (1906) 9 N. L. B. 20*
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the day of trial and moved for a postponement, thereby doing anact in the cause itself. It is very much more analogous to that ofMohamadu Lebhe r. Kiri Banda,1 where the proctor was merelyphysically present. I think, therefore, that the Commissioner ofRequests was right in treating the case as one where there had beena default of appearance, and I do not see anything in the affidavitfiled on behalf of the appellant in support of the motion in the Courtof Requests to account for that default satisfactorily. The appealmust be dismissed with costs.
KANDAPPA v. MARIMUTTU