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Present : Lascelles C.<T. and Middleton J.
SENANAYAKE v. COOEAY.123—D. C. Ratnapura, 1,763.
tions—Civil Procedure Code, ss. 85 and 86.
On the day fixed tor the trial of – a case the defendant was absent,and his proctor on the record, who was present in Court, stated hehad no instructions.
Held, that the physical presence of the proctor in the Court,coupled with what he said on the trial day, did not constitute anappearance for the defendant which would give the proceedings thecharacter of an inter partes trial which would enable the Judge toenter final decree.
Middleton J.—It is somewhat difficult to say . in such a casewhat is the principle upon which a Court should act in decidingwhether there is . an appearance or not, but I think each case mustbe determined upon its own circumstances.
fjpHE facts are fully set out in the judgment.
van Langenberg (with him Sampayo, K.C.), for the first defendant,appellant.—The mere mention by the proctor that he had noinstructions does not constitute an appearance. Mohamado Lebbev. .Kiri Banda.1
Bawa (with him Samarawickrame and Jayatilehe), for the plaintiff,respondent.—The proctor was present in Court, and said he had noinstructions. That is an appearance. See Oargial et al. v. Soma-sundram,2 Perumal Ohetty v. Goonetilleke.3
van Langenberg, in reply—In Gargial et al. v. Somasundram1 andin Perumal Chetty v. Goonetilleke3 the proctor applied for a postpone-ment; the proctor, therefore, appeared for his clients in those cases.
Cur. adv. vv.lt.
August 30, 1911. Middi.eton J.—
This was an action for declaration of title, damages, and injunc-tion in respect of a half share of plumbago land against the firstdefendant, the plaintiff allotting to the second defendant the otherhalf share in the land.
1 (1907) 3 Bal. 300; 2 A. C. R. 169.* (1905) 9 N. L. &. 26.
» (1908) i Bal. 2.
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Upon the acceptance of the plaint, the Court ordered an injunctionto issue returnable forthwith, and on March 8, 1910, it was orderedto be issued, but I can find no copy of it or any proof that ft wasserved on the first defendant in the record.
The first defendant’s answer, denied the title of the plaintiff, andalleging title in himself sought the dismissal of the action,9 andclaimed damages in reconvention for unlawful restraint from miningfor plumbago. The replication, ft was alleged, did not traverse the7th paragraph of the answer.
On April 25, 1911, an application by the proctors on both sidesfor an adjournment of the trial day was refused, 'and the case cameon for trial on May 4. On that date the first defendant was absent,and his proctor on the record, who was present in Court, stated hehad no instructions, but the District Judge proceeded to hear theplaintiff’s case, and entered a final judgment for the plaintiff asclaimed.
On May 17, 1911, an application and affidavit by the first defend-ant were filed, and motion made to set aside the decree ” from thestep of default,” and notice having been served on the plaintiff thequestion was discussed, and the first defendant cross-examined onhis affidavit on July 5, and the application to re-open the judgmentdismissed with costs on July 6. Against that order the first defend-ant now appeals, and the main question for our decision is whetherthe physical appearance of the first defendant’s proctor in the Court,coupled with what he said on the trial day, constituted technicallyan appearance for the first defendant, which would give the pro-ceedings the character of an inter 'partes trial, and so enable theDistrict Judge to enter a final decree.
The cases of Gargial et aZ. v. Somasundram Ghetty1 and AhamaddLebjbe v- Kiri Banda2 were cited by counsel, and ft seems to me thatthose cases are quite reconcilable, and afford good bases for thedecision of the question now before us. In the former case thecircumstances as detailed by Chief Justice Layard showed that aproctor whose position was questioned did in fact and law appear,while in the latter it was clear that he did not. It is somewhatdifficult to say i!n such a case what is the principle upon which aCourt should act in deciding whether there is an appearance or not,but I think each case must be determined upon its own circum-stances. In the present case it seems to me that the first defendant’sproctor was casually present in Court, but., probably through hisclient’s negligence, without any instructions to represent his olientat the trial, and I would hold that is not an appearance so* as to makethe trial an inter partes one,- and enable the Court to enter finaljudgment.
I think also that the application to the District Court decided onJuly 6 was rather an application to set aside the judgment entered,» (1905) 9 N. L. J*. 96.2 (1907) 2 A. C. R. 170.
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bn the ground that it was wrongly entered in a final character, thanan application to set. asi'de a deoree nisi, which the learned counselfor the respondent argued was the case. It is true, I think, that theaffidavit made by the first defendant, or his cross-examination bn it,does not afford by any means a sufficient excuse for his absence, orhis failure to instruct his counsel to appear for him and summon thewitnesses mentioned in his list. I think also it is clear, from thepleadings and on the evidence adduced for the plaintiff, that it wasan extremely hazardous thing for the District Judge to enter a finaljudgment for the plaintiff in a matter of title to immovableproperty as he did. In my opinion,, therefore, the appeal shouldbe allowed, and the order and judgment of the District Court setaside, with the direction to try the case de novo.
The first defendant ought to have the costs of his appeal, but Iwould order him to pay his own costs of the application and all theplaintiff’s costs incurred by the abortive trial on May 4 as betweenproctor and client, as he' has adduced no sufficient reascin why he didnot instruct his proctor to appear and defend his case on the day heknew was fixed for the trial of the case. As regards the injunction,although .it was prayed for in the plaint, and apparently granted as amatter of course, it seems to me that if it was granted there shouldhave been a copy of it with proof of service on the first defendantto be found in the record, and in the absence of this it is difficult tosay if it was in fact issued. The Argument ad misericordiam on theground of the magnitude of the damages accumulated against himon the judgment may therefore have some foundation. .
I take occasion also to suggest, with reference to the learned Judge’sobservations on the character of the defendant, that although it isinevitable that a District Judge who has been long stationed in onedistrict must become acquainted with the idiosyncrasies of thelitigants frequenting his Court, it is advisable not to introduce intoa judgment facts within his knowledge applying to them, whichhave not been specifically elicited in evidence in the particular casebefore him. The appeal is allowed.
I entirely agree in the judgment and order poposed by mybrother Middleton.
SENANAYAKE v. COORAY