CEYLON PETROLEUM CORPORATION
COURT OF APPEAL.
A. 37/88 (F)
C. CHILAW 22750OCTOBER 10, 1996.
Civil Procedure Code – Cap. L111, Section 705(3) Form 19 – Irreconcilable -Leave lo appear and defend unconditionally – Reasonableness and justifiabilityof the defence – Triable Issues – Notice of dishonour – Section 48 of the Bills ofExchange Ordinance.
The plaintiff-respondent sued the defendant-appellant for the recovery of acertain sum of money by way of summary procedure.
Summons in conformity with Form 19 was served on the defendant-appellant on16.3.87, The defendant-appellant appeared in Court on 1.4.87. Court grantedtime to the defendant-appellant.The affidavit of the defendant was filed on26.10.87 – praying for leave to appear and defend unconditionally. The affidavitalso set out Ihe defence that there had been no notice of dishonour given to thedefendant. The plaintiff-respondent objected to the affidavit on the ground that itwas filed out of time. The District Court held with the plaintiff-respondent. Onappeal –
The summons was served on 16.3.87, proxy was filed on 1.4.87. The periodof time in between was 17days. The first day, Sundays and Public Holidays wouldhave to be excluded (There were two Sundays). The application was not out oflime.
S 705 (3) states that the day to be inserted in the Notice as Ihe day for Ihedefendant's appearance shall be as early as can be conveniently named, thispresupposes the fixing of a date for appearance.
Form 19 refers to obtaining of leave from Court within … days. Thus theprovisions are contradictory due to S 705 (3) referring to a particular date andForm 19 referring to a particular period (in this instance 14 days).
No proper notice or summons as required by S 705 (3) could be served ifS 705(3) and Form 19 were both to be conformed to. Both provisions cannotbe reconciled.
Per Weerasekera, J:
"Even if there had been a delay to come to Court within the stipulated time, thediscretion of Court to entertain the defendant's affidavit was never fettered if thedefence put forward was reasonable and it was in the interests of justice to allowsuch an application for leave to appear and defend unconditionally".
It is seen that the Notice of dishonour had not been given to the defendant-appellant. Whether there was a lawful notice of dishonour is a triable issue.
Appeal from the judgment of the District Court of Chilaw
Cases referred to:
Perera v. Karunanayake 67 NLR 23.
Nanayakkara v. Paiva 64 NLR 193.
Esquire (Garments) Industry Ltd., v. Sadhwani (Japan) Ltd., 1983 2 SLR 242.
Thilak Gunawardene with Nalinda Premachandra for defendant-appellant.
Bimat Rajapakse for plaintiff-respondent.
Cur. adv. irult.
October 10, 1996.
This is an appeal from the order of the learned District Judgedated 16,03.88 refusing the application of the defendant-appellant forleave to appear and defend unconditionally.
The plaintiff-respondent sued the defendant-appellant for therecovery of a sum of Rs. 576,744/34 by way of summary procedure.
Summons in conformity with form 19 in the schedule to the CivilProcedure Code was served on the defendant-appellant on 16.03.87.The defendant appeared in Court on 01.04.87. The Court grantedtime to the defendant-appellant and subsequently further time wasgranted. The affidavit of the defendant-appellant dated 23.10.87 wasfiled on 26.10.87. In para ten of the affidavit the defendant-appellantprayed for leave to appear and defend unconditionally. The affidavitset out the defence that there had been no notice of dishonour givento the defendant-appellant. The plaintiff-respondent moved for time toconsider the affidavit and thereafter on 01.02.88 objected to theaffidavit on the ground that it had been field out of time. Subsequentlywritten submissions were filed and the order appealed from wasthereafter made on 16.03.88 in regard to the question as to whetherthis application for leave to appear and defend unconditionally hadbeen made out of time.
We find that Summons was served on 16.03.87 and the proxy wasfiled on 01.04.87. The period of time in between was 17 days. Evenso as decided in Perera v. Karunanayakethe first day would haveto be excluded and as decided in Nanayakkara v. Paiva 121 Sundaysand Public Holidays would also have to be excluded. There were twoSundays within this period. Three days then would have to bededucted. Thus the defendant should be deemed to have come intoCourt on the 14th day.
Furthermore Section 705(3) of the Civil Procedure Code states as
“The day to be inserted in the notice as the day for thedefendant’s appearance shall be as early a day as can beconveniently named …” This presupposes the fixing of a date forappearance. Form 19 refers to obtaining of leave from the Court“within… days”. In this instance it was 14 days. Thus theprovisions are contradictory due to Section 705(3) referring to aparticular date and Form 19 referring to a particular period (in thisinstance 14 days).
It is our view therefore no proper notice or summons asrequired by Section 703 could be served if the provisions ofSection705(3) and Form 19 were both to be conformed to. Bothprovisions cannot be reconciled. In any event there is no specificmention of what the notice means in Section 705(2). What thereforeappears to have been contemplated by law was summons in terms ofForm 19. A series of judicial decisions confirm this. In any event weseriously question as to whether the summons that was served in thiscase was in accordance with Form 19. The summons in this instanceexcluded the day of service which was not in conformity withForm 19. Therefore the objection that the application to appear forleave and to defend unconditionally was made out of time does notseem to be sustainable in the light of Court granting time on01.4.1987 which was the 14th day in terms of the law.
We are of the view that proforma without any judicial evaluation thelearned District Judge had proceeded to refuse the application of thedefendant-appellant only on a technical ground that the defendantdid not come into Court within 14 days of service of summons.
Even if there had been delay to come into Court within thestipulated time the discretion of Court to entertain the defendant’saffidavit was never fettered if the defence put forward by thedefendant was reasonable and it was in the interests of justice toallow such an application for leave to appear and defendunconditionally. A series of decisions of the Appellate Courts havefound that it was not whether the affidavit was filed within time or notwhich was important but reasonableness of the defence and itsjustifiability.
How does one determine the reasonableness and/or justifiability ofthe defence is the next question. What material is there before Courtexcept the affidavit even if filed out of time? It is for this reasonapparently that the question as to whether the defence wasreasonable and justifiable has been an over riding considerationwhen such an application was examined. In an application for leaveto appear and defend the prime consideration should be not merelythe mathematical or arithmetical computation of time, but whetherwhat is set out in the affidavit is reasonable and whether it isjustifiable. The learned District Judge regrettably has failed toappreciate this aspect. He has failed to consider the affidavit,submissions and documents. If he did so he would have seen thatnot only are the provisions of Section 703 and 705(3) and Form 19irreconcilable but that the defence taken up in this case wasreasonable and that the justice of the case demanded that thedefendant be allowed leave to appear and defend. It seems that thelearned District Judge was unaware of a recent decision of HisLordship the Chief Justice which said that the question that has to bedetermined is whether the affidavit disclosed a triable issue. VideEsquire (Garments) Industry Ud. v. Sadhwani (Japan) Ltd.(3’.
On an examination of the affidavit and the submissions we find thatthey disclose a defence, in that, notice of dishonour had not beengiven to the defendant-appellant. In our view the question whetherthere was a lawful notice of dishonour in fact given is a triable issue.(Vide Section 48 of the Bills of Exchange Ordinance)
It is therefore our view that even if there was a lapse of time inmaking an application for leave to appear and defend, the affidavitdisclosed a triable issue, The defendant-appellant therefore shouldbe granted permission to appear and defend unconditionally.
The order of the learned District Judge dated 16.03.88 is herebyset aside. Application for leave to appear and defend unconditionallyis allowed. The plaintiff-respondent will pay costs in the lower Court,and costs in this Court fixed at Rs. 325/-
WIGNESWARAN, J. -1 agree.
FERNANDO v. CEYLON PETROLIUM CORPORATION