WIJEYEWARDENE J.—Khan v. Sally.
1939Present: Wijeyewardene and NihJll JJ.
KHAN v. SALLY et al.
69—D. C. Colombo, 3,026.
Liquid claim—Action on promissory note—Leave given to appear and defend—Failure to deposit money in time—Delay on the part of Proctor—CivilProcedure Code, s. 707.
In an action on a promissory note defendant was given leave to appearand defend on December 14, 1938, and ordered to file answer on givingsecurity ,i'n Rs. 200 by January 16, 1939.
When the case was called on January 17, it was found that the moneywas not deposited and judgment was entered for the plaintiff.
Held (in an application to set aside the judgment), that dilatorinesson-the part of the proctor which resulted in his failure to comply with anor'der of Court within the time fixed did not amount to proof of suchspecial circumstances as are contemplated by section 707 of the CivilProcedure Code.
^j^PPEAL from an order of the District Judge of Colombo.
N. E. Weerasooria, K. C. (with him M. J. Molligodde), for plaintiff,appellant.
' P. Tiyagarajdh (with him S. A. Marikar), for defendant, respondent.September 29, 1939. Wijeyewardene J.—
The plaintiff instituted this action under chapter 53 of the CivilProcedure Code for the recovery of a sum of money on a promissory note.The judge accepted the plaint and issued summons with a direction tothe defendants to appear in Court, within ten days of its service and obtainleave to defend the action. Service was effected on the first defendanton December 5, 1938, and on the second defendant on December 3, 1938.Mr. Kamer Cassim filed a proxy from both the defendants and theiraffidavit on December 14 and moved for leave to appear and defend theaction. The District Judge thereupon made the following order: —
. “ Allowed to file answer on giving security in Rs. 200 by January 16,1939. ”
The journal entry dated January 16, 1939, is as follows: —
Answer of the defendant filed.
Proctor will deposit Rs. 200 to-day.
When the case was called on January 17, it was found that the moneywas not deposited and the Judge entered judgment for the plaintiff.On the same day, but after judgment was entered, Mr. Kamer Cassimfiled an affidavit and a Kachcheri receipt for Rs. 200 dated January 17,1939, and moved to set aside the decree.
The relevant statements of fact made by Mr. Cassim in his affidavitare not disputed by the defendants. These statements show: —
(i.) that it was only on January 13 that Mr. Cassim “ tried to get an~ order to deposit ” ;
WUEYEWARDENE J.—Khan v. Sally.283
(ii.) that the record of the case “ was not available to Mr. Cassim onJanuary 13
(iiL) that on January 16, Mr. Cassim “ offered to hand over Rs. 200to the plaintiff’s proctor ” but the latter refused to accept it;
(iv.) that the order to deposit was not given to Mr. Cassim’s clerk bythe court clerk before 4.30 p.m. on January 16;
(v.) that the sum of Rs. 200 together with the order to deposit wassent to the Kachcheri on January 17.
On these facts the District Judge made an order under section 707of the Civil Procedure Code setting aside the decree and against thatorder the present appeal has been filed.
The scope of section 707 has been considered by this Court in a numberof cases. In Silva v. Goonesekeral, Wendt and' Middleton JJ. heldthat the failure on the part of the defendant’s proctor to inform thedefendant of the order of Court to furnish security before a certain datewas not a “ special circumstance ” within the meaning of section 707.In Latiff et al. v. Saibu ’, the plaintiff while filing the plaint under chapter 53of the Code applied to the Court and obtained a warrant of arrest and amandate of sequestration of the defendant’s property before judgment.The defendant had to appear in Court within five days of the service ofsummons on him and obtain leave to defend the action. The summonswas served on the defendant on March 19, 1926, and on the same day hewas brought under arrest before the Court. The defendant thereuponfiled an affidavit through his proctor who then applied for his releaseand the withdrawal of the mandate for sequestration. The Court grantedthe application on the defendant depositing a sum of Rs. 750 as security.As no application was made to Court for leave to appear and defend theaction the plaintiff’s proctor moved for judgment on March 25, and theCourt entered decree in favour of the plaintiff on March 30. The defend-ant and his proctor filed a joint affidavit stating that the defendanthad given the necessary instructions to the proctor to obtain leave toappear and defend and that the proctor drew the affidavit for the expresspurpose of basing such an application upon it but by pure oversightfailed to make the necessary application. On an appeal from the orderof the District Judge setting aside the decree, Garvin A.C.J. (withwhom Dalton J. agreed) said: “ This is not a case in which the defendanthas established the existance of special circumstances within the meaningof section 707. It is a hard case particularly when it is borne in mindthat there has already been deposited in Court a sum of money sufficientto meet any judgment which might be entered in favour of the plaintiff.However that may be, if the defendant is to succeed he must bring himselfwithin the provisions of section 707 to show that he is entitled to the reliefwhich he claims. This he has failed to do.
In the present case the failure to deposit the money by January 16,1938, was undoubtedly occasioned by the defendant’s proctor failingto take any steps until January 13. The defendant’s proctor who hasbeen practising his profession in Colombo for a number of years shouldhave known the difficulty of obtaining a record and securing an order* (1907) 1 Appeal Court Reports 100.* (1926) 8 C. L. Rec. 10.
WIJEYEWARDENE J.—Khan v. Sally.
to deposit at short notice at the beginning of the year when fhere is aconsiderable congestion of work owing to the closing of the offices of ,theCourt for the Christmas vacation. He must also have been aware thatthe office of the District Court would not be open on January 14 whie%.was a public holiday and on January 15 which was a Sunday. He shouldhave realized that he was taking a serious risk in delaying so long to takethe preliminary steps for the deposit of the money. If he chose to takesuch a risk he cannot plead for relief against the consequences of his ownby Judges of this Court in considering applications for relief made byCourt within the time fixed by the Court.
In this connection reference may be made to certain observationsby Judges of this Court in considering applications for relief made byparties to regular actions in respect of decrees passed against them upona breach of their undertaking to pay costs on a particular date.
In Punchi Nona v. Peiris the case was fixed for trial on October 16,1923, but as the defendants were not ready, the trial was refixed forDecember 20, 1923, on the defendants agreeing to judgment being enteredagainst them in the event of their failing to pay a certain sum by wayof costs before December 20. The defendants made default and whenthe case was called on December 20 the defendant’s proctor offered to paythe costs that day pleading that his clients were prevented by floodsfrom making payment before that date. The District Judge held thatthe defendants had committed a breach of their undertaking and enteredjudgment for the plaintiff. In appeal Bertram C.J. and JayawardeneA.J. affirmed the order of the District Judge and refused to entertain aplea for equitable relief. In the course of his judgment JayawardeneA.J. cited with approval the following extract from the judgment ofWest J. in Bulprasad v. Dharnidhar Sakharam":—
“ the admission of a power to vary the requirements of a decree oncepassed would introduce uncertainty and confusion …. and thecourts would be overwhelmed with applications for modification, onequitable principles of orders made on a full consideration of the casewhich they were meant to terminate. It is obvious that such a stateof things would not be far removed from a judicial chaos ”,
Dealing with the facts of the particular case before him JayawardeneA.J. said—
“The defendant says he was prevented by floods from paying thesum fixed as costs; but he had more than two months within whichto pay the amount and it could not be said that he was prevented byfloods from paying the sum he agreed to pay during the whole of thatperiod. Parties no doubt wait till the last moment to make thesepayments, but that is not a circumstance the Court can take intoconsideration, and if at the last moment they are prevented by accidentor otherwise from doing so, they must be prepared to take the con-sequences ”.
In Siman Sinno v. William Appuhamy3 the defendant was granted apostponement upon a consent order that he should pay the costs of theday on or before a certain day which was subsequently found to be a Sunday
1 (1924) 26 N. L. R. 411.
* Vide 10 Bombay 435.
(1925) 6 C. L. Rec. 99.
MOSELEY A.C.J.—Dhammananda Thero v. Dhammapala Thero.
Bertram C.J. and Schneider J. held that the' payment by the defendanton the following Monday was not a payment in compliance with theorder of Court and stated that impossibility of performance “ whetherthrough circumstances outside the control of the party affected orotherwise did not extend the time within which the payment may havebeen made
The present case is admittedly a hard case. I do not think, however,that Courts should encourage any laxity in the due compliance with anorder of Court unless of course the defendants can show that they areentitled to claim the benefit of such special circumstances as are con-templated by section 707. The defendants in this action failed to provethe existence of such circumstances.
I would therefore set aside the order appealed against and allow theappeal with costs. The plaintiff will also be entitled to the costs of theinquiry in the District Court.
Nihill J.—I agree.
KHAN v. sally et al