t 270 )
RATWATTA v. APPUHAMI el al.
G. R., Kandy, 6,766.
Rules of procedure—Delivery of answer by post—Civil Procedure Code,
Where a defendant took time to file answer and transmitted hisanswer to the Commissioner by post, held, that the answer shouldnot have been sent to the Commissioner, but to the Chief Clerk, andthat there was no irregularity in sending it by post.
Section 809 of the Civil Procedure Code requires a defendant todeliver to the Chief Clerk an answer in writing duly stamped, anddelivery through the post is sufficient.
HIS was an appeal by the defendants against an order of the
Commissioner rejecting their answer, which was sent bypost, and refusing to set aside a judgment entered by default.The judgment of the Supreme Court fully sets out the facts.
Bawa, for appellants.
Maartensz, for respondent.
2nd December, 1898. Laweie, J.—
On the day fixed for the appearance of the defendants the firstdefendant appeared and stated that he and his sister did not admitthe claim, but had a defence.
The Commissioner fixed the 15th July as the day for filing answer.
On the 15th the Commissioner received by post an answer witha proxy to a proctor, and a letter from the proctor that he wouldtransmit the sum admitted in the answer.
The Commissioner filed answer, proxy and letter in the record,but he recorded that he rejected it, and on the same day in Courtheld that there had been no appearance and entered judgmentby default.
The first and second defendants on 28th July filed affidavit andprayed that judgment by default be set aside, and that they beallowed to enter into their defence.
This was disallowed. Against this disallowance the presentappeal is taken.
In my opinion, the application to set aside decree by defaultmust be allowed and the decree set aside ; the answer already filedmay be taken to be answer of first and second defendants, and thecase is remitted for trial.
( 271 )
In this case plaintiff sued in Kandy his paraveni tenants resid-ing in other districts for damages for breach of duty which plaintiffaverred should have been performed in Kandy.
It may be that the Court in Kandy has jurisdiction, but it wouldbe hard if defendants were obliged to go personally to Kandy atevery step of the action.
The defendants should not have sent the answer to the Com-missioner, but to the Chief Clerk. I see no irregularity in sendingit by post. Section 809 requires a defendant to deliver to theChief Clerk an answer in writing duly stamped, and I am of opinionthat delivery through the post is sufficient. Every appeal whichreaches the Supreme Court reaches it by the hand of the postman.Rules of process and procedure are surely meant for the maintenanceof justice and order. They must not be turned into means ofoppression. It would be oppression to force the personal deliveryof an answer by defendants who live at a great distance. At thetrial, I hope the claim plaintiff makes for so many journeys andservices will be carefully scrutinized. The defendants are entitledto the costs of this appeal.
December 2.Lawsjx, J.