DE SILVA J —J5futuioa v. Albert.
1946Present: de Silva J.
MUTUWA et al., Appellants, and ALBERT, Respondent.
269—C. R. Matale, 8,586.
Court of Requests—Appearance of defendants on day specified in summons—Duty of Court to call upon them to admit or deny plaintiff's claim-—CivilProcedu/re Code, s. 809.
Where, in an action in a Court of Requests, some of the defendantsappeared on the day specified in the summons but did not want to fileanswer—
Held, that the defendants should have been called upon to eitheradmit or deny the plaintiff's claim in accordance with the provisions ofsection 809 of the Civil Procedure Code.
PPEAL from an order of the Commissioner of Requests, Matale.
T. Samarawickreme (with him Ivor Misso), for the defendants,appellants.
S. R. Wijayatilake, for the plaintiff, respondent.
March 6, 1946. de Silva J.—-
In this case there has been an entire failure to observe the procedurelaid down in section 809 of the Civil Procedure Code.
The plaintiff instituted this action against four defendants to recovera sum of Rs. 198 alleged to be due to him as his share of certain treeswhich had been cut down by the defendants. Summons was served onthe first, third and fourth defendants and they appeared in Court onDecember 14, 1944. The record shows that on this day the first, thirdand fourth defendants were present and did not want to file answer.
Section 809 provides that on the appearance of the defendants, theyshould be called upon to admit or deny the plaintiff’s claim. If theyadmit the claim the Commissioner should record such admission andshall require the defendants to sign the record. If on the other handthey deny the claim, they should be called upon to plead to the sameforthwith or within such time as the court on cause shown may allow.This procedure has not in this case been followed by the Court becausethey have not been called upon to either admit or deny the claim.
In the circumstances I set aside the order and send the case back forproceedings in due course according to the procedure provided by theCode. What I have stated above applies to the second defendant as well.The appeal is allowed with costs.
MUTUWA et al, Appellants, and ALBERT , Respondent