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December 3and 4.
THE CEYLON GEMMING AND MINING COMPANY v.
D. C., Colombo, 6,987.
Decree absolute for default—Appeal—Civil Procedure Code, s. 87—Extension of time to file answer—Default of defendant due to Courttaking time to consider its order on motion to take plaint off the file.
Where a defendant appeared on the day appointed in a decreenisi for showing cause, and the Court not being satisfied with thecause shown entered an order making such decree absolute, held,per Bonser, C.J., and Wither*, J., that an appeal lay to thedefendant from such order.
Judgment in Silva v. Orero (1 N. L. R. 67) commented upon.
Lawrie, J.—In the circumstances of the case, the order appealedfrom was not one making absolute a decree nisi, but one refusingto set aside a decree nisi.
Where a defendant took fourteen days’ time to file his answer,and on the last day on which he became entitled to file answer hemoved that the plaint be taken off the file, and the Court havingtaken time to consider the defendant’s motion refused it some daysafter, held, per Lawrie, J., that the fact that the Court took time toconsider its order should not prejudice the defendant, and he shouldhave been allowed to file his answer on the day on which his motionto take the plaint off the file was refused.
'J'HE facts of the case appear in the judgment of Bonser, C.J.
Van Langenberg, for appellant.
Dornhorst, Wendt, and De Saram, for respondent.
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4th December, 1806. Bonser, O.J.—
This is an appeal from an order of the District Judge of Colombodisallowing an application to set aside a decree nisi and making thedecree absolute. Mr. Dprnhorst, who appeared for the respondent,took a preliminary objection that an appeal would not lie. Theappeal came originally before my brother Lawrie and myself ; butthetfe being a question as to the construction of sections 86 and 87of the Civil Procedure Code, I thought it right to have the caseargued before the Pull Court.
The facts of this case—in so far as it is necessary to go into themin order to dispose of this preliminary objection—are as follows :—The defendant had time until the 7th March to put in his answer.On the morning of that day he moved that the plaint be taken offthe file. The Judge did not make an order on that motion on thatday, but reserved judgment. It appears by the affidavit of thedefendant’s prootor that he had the answer ready on that day to befiled, but pending the decision of the Judge he thought it unnecessaryto incur the expense of filing the answer. In the course of a day ortwo the District Judge made his order refusing the application.Thereupon the defendant tendered this answer, but the DistrictJudge held that he was out of time, and the plaintiff having movedthat the action should be set down for ex parte hearing, he made anorder that the case should be heard ex parte on the ground that thedefendant was in default for not filing answer within the timeallowed him. The defendant did not appeal against that refusal,but (as I conceive quite properly) waited till the decree nisi was'served upon him. The decree nisi was in the ordinary form. Itcalled upon the defendant to attend on a day named to show causewhy the decree nisi should not be made absolute, and notice of suchdecree was duly served upon him. He attended in accordance with-that notice and submitted the reasons, which he contended werereasonable grounds for not filing his answer within the time. TheActing District Judge was not satisfied that the grounds werereasonable, and accordingly made the decree absolute.- From thatorder, refusing to set aside the decree nisi, this appeal has beenbrought.
Now, the procedure with reference to the penalties for defaultin entering appearance, or for other default in the course of anaction, is contained in sections 86 and 87 of the Civil ProcedureCode. It appears to me to be shortly this. If the defendant,taking the ordinary case of defendant not appearing to theaction, does not appear, the Court makes a decree nisi againsthim. A copy of that decree is served upon him with a noticethat he is to attend and explain, if he can, the reasons for
December 3.and 4
December 3and 4.
Bonseb, 0. J.
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not appearing. These reasons may be various. It may be that hewas never served with the summons ; it may be that some inevitableaooident prevented him from attending. Many things may occurwhich would afford a satisfactory explanation of non-appearance.The defendant either appears in accordance to the notice, or he doesnot. If be appears, then the Judge hears his explanation, and decideswhether it is satisfactory or not. If it is satisfactory the Court setsaside the decree, and orders the case to be proceeded with in the.ordinary way. If the Judge finds the reasons to be unsatisfactory,then he makes the decree absolute. But if the defendant does notappear in answer to the notice, then, without more, the decree is madeabsolute. But it may be that there is some satisfactory explanationforthcoming for his not attending in obedience to the notice; itmay be that he was never served with the notice, or it may be thatan inevitable accident prevented his attending to place before theCourt the' reasonable grounds whioh he had for not appearing in thefirst instance. . Section 87 provides that notwithstanding the decreehas been made absolute, the defendant may still come before theCourt and explain, if he can, his reasons for not obeying the notice.If he satisfies the Court that he was prevented from appearing toshow cause against the notice for making the decree absolute byreason of accident, or misfortune, or by not having received “ due‘‘ information,” the Court will set aside the decree in that case also,,and will let him-in to allege , the reasons whieh he had for non-appearance in the first instance. Section 87 provides that “ no“ appeal shall lie against any decree nisi or absolute for default.”There has been some difference of opihion as to the meaning of thewords “ absolute for default.” It would be presumptuous for meto say that these words are clear. Some members of this Court—whose opinions are entitled to the greatest respect—have held thatthey have one meaning, other members that they have anothermeaning. For my own part, I cannot help thinking—though indiffering from my brother ^Withers, I do so with misgiving—that thetrue construction of “ decree absolute for default ” is that the decreeis made absolute in consequence of the defendant not having attendedto show cause against the decree being made absolute, on notice.In the case of Silva v. Grero (1 N. L. R. 67) my brother Witherswas of opinion that the decree absolute for default meant a decreeabsolute irrespective of whether the party appeared in obedienceto the notice or not. Mr. Acting Justice Browne seems to havetaken a different view, and my brother Lawrie, although he agreedwith the judgment, yet,in his reasons, expressly reserved the question
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whether an appeal could lie hi a case like the present. Mymisgiving ,is somewhat lessened by observing that in the caseof Natchiappa Chetty v. Muttukangany (2 O. L. R. 110), wherejudgment was delivered by my brothers Lawrie and Withers, itwould seem that the Court did make a distinction between an ordermade absolute after argument and an order made absolute in defaultof appearing on notice to show cause. But in neither of the casesreferred to does it appear that the attention of the Court was calledto the concluding words of section 87, which are as follows :■—“ The order setting aside or refusing to set aside the. decree shall be“ accompanied by a judgment adjudicating upon the facts and“ specifying the grounds upon which it is made, and shall be liable“ to an appeal to the Supreme Court.” Mr. Dornhorst argued that-provision only refers to an order refusing to set aside a decreeabsolute, but the Ordinance does not say so.. There is only onedecree made, and that decree is made in the first, instance condi-tionally, and subject to its being set aside or subsequently made.absolute.- But it is one and the same decree, and for my own partI do not think that we are bound to read that clause as thoughthe word “ absolute ” were inserted after the word “ decree.”Certainly, the reason of the thing is in favour of allowing this Courtto review the reasons given by the District Judge as well for refusingto set aside a decree nisi as for refusing to set aside a decree absolute,and I am of opinion therefore that we ought to adopt .a benevolentconstruction of this provision, and not place the rigid constructioncontended for by Mr. Dornhorst, which would in many cases amountto denial of justice to a defendant. This construction is notinconsistent with the words in the 87th section. “ No appeal shall“ lie against any decree nisi or absolute for default.” I understand,these words to be merely an affirmation of a principle well recognizedin procedure : that is to say, that if a party does not appear, and anorder is made- against him for non-appearance, he cannot go directto a Court of Appeal. He must apply to the Court below andendeavour to get himself right with that Court in the first instance.
I think therefore that the preliminary objection should be over-ruled. We reverse the order of the Acting District Judge refusingto set aside the decree nisi, and we set the decree nisi aside on theseterms : that the defendant must go to trial at the earliest date thatthe District Judge fixes for the trial. We leave it to the DistrictJudge to fix that date, but.he will fix as-early a date as the state ofbusiness of his Court Will permit. * The defendant must file answerwithin three days from the receipt of this record by the Court below*and must not apply for any postponement of the trial.
December 3and 4.
Bonsbb, C. J.
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December 3■ and 4.
In this case the defendant was served with summons. Heentered appearance by a proctor and obtain fourteen days’ t.img.to file answer. On the 7th of March, the day on which answer wasdue on affidavit, he moved that the plaint be taken off the fileon the ground that the plaintiff company had no locus standi.The Court took time to consider the motion, and on the 11th madean order refusing it, and also refused to allow the defendant to fileanswer on the ground that the fourteen days had expired, andthen the District Judge fixed the case for ex parte hearing. This. in my opinion is a wrong order. The defendant having movedthat the case he taken off the file could not consistently file answeron the 7th of March. If the Court on that day had refused thatmotion I assume that the defendant would then have field hisanswer. The fact that the Court took time to consider its orderought not < to prejudice the defendant on the well-kn^wn maximactus curiae neminem grovabit. Against the order fixing the casefor ex parte hearing the defendant might have appealed. Hereceived notice of the decree nisi, a notice which invited him toshow cause why it should not be made absolute. He showed causeand moved the Court bo set aside the decree nisi. In my opinionthe 87th section prescribes the procedure in such a case. The-District Judge ought to have made an order setting aside or. refusing to set aside the decree, and should have accompanied itby a judgment adjudicating upon the facts and specifying thegrounds upon which it was made. Such an order is liable to anappeal to this Court. Instead of making a separate order of thiskind the District Judge made this decree nisi absolute. But hisomission to adjudicate on the facts and to specify the grounds ofhis refusal to set aside the decree nisi must not prejudice thedefendant, on the same principle that an act of the Court shallprejudice no man. Our present decision is not, I think, contraryto the enactment that no appeal shall lie against any decree nisior absolute for default. I do not regard this as an appeal against .a decree absolute for default, but as an appeal against an orderrefusing to set aside a decree nisi.
My colleagues have persuaded me that there is an appeal froman inter-partes order making ,a decree absolute. I am all themore glad to join in the present judgment, as it gets rid of theanomaly forcibly pointed out in argument by Mr. Pereira in thecase of Silva v. Orero.
THE CEYLON GEMMING AND MINING COMPANY v. SYMONS