Wimalawathie and others v. Thotamuna and others
WIMALAWATHIE AND OTHERS
v.THOTAMUNA AND OTHERS
COURT OF APPEALRANARAJA, J„
A. NO. 20/96 (F)
C. COLOMBO NO. 16239/LMARCH 04TH, 1997
Ex-parte trial against the defendants – Allegation that the Process Server fileda fraudulent affidavit – on whom lies the burden of proof – Civil Procedure Code- S. 84, 86, 88.
Applications to set aside ex-parte decree are proceedings incidental to andnot a trial proper. The inquiry must be conducted on principles of fairness.
The affidavit of the Process Server is prima facie evidence of the fact thatsummons was duly served and there is a presumption that summons wasduly served.
Accordingly the burden shifts onto the defendant to prove that no summonshad been served.
The defendants have to begin leading evidence and once the defendant'slead evidence to prove that summons had not been served on them andestablish that fact, burden shifts back onto the plaintiffs to rebut theevidence.
This can be done by calling the Process Server.
What has to be decided by court is essentially a question of fact.APPEAL from the judgment of the District Court of Colombo.
Case referred to:
1. Sangarapillai v. Kathiravely – Sri Kantha Law Reports Vol. II page 99.
A. K. Premadasa PC with Gamini Tillekeratne for plaintiff-appellant.
Wijedasa Rajapakse with Dhammika Abeygunawardena and Kuvera de Soysa forthe defendant respondent.
Cur. adv. vult.
Sri Lanka Law Reports
 3 Sri LR.
March 04, 1997.
DR. RANARAJA, J.
This is an appeal from the order of the learned Additional District Judgedated 22. 2. 96. By that order the Additional District Judge set asidethe ex-parte decree entered against 1st and 2nd defendants.
The learned counsel for the 3rd plaintiff-appellant submitted thatthe learned Additional District Judge was in error in accepting (1) theevidence of the 1st and 2nd defendants despite the contradictionsin their evidence, (2) the documents marked XI and X2, producedby the 1st and 2nd defendants.
The plaint against the defendants was filed on 9. 5. 93. Court madeorder directing summons to issue on the defendants. On 28. 7. 93,the fiscal reported that summons had been served on 1st, 2nd, 3rdand 6th defendants. Accordingly, court directed the trial against the1st and 2nd defendants be taken ex-parte. On 28. 9. 93, the 1stand 2nd defendants filed petition and affidavit stating that the ProcessServer had submitted a fraudulent affidavit to the effect that summonshad been served on them and the matter be inquired into. On10. 12. 93 court made order directing that the petition of the 1st and2nd defendants against the Process Server be inquired into after theapplication to set aside the ex-parte judgment. It is to be noted, thatthe Court had directed notice to issue on the Process Server andon his failure to appear in Court, a warrant has been issued on him.
It was the case of the 1st and 2nd defendants that they had leftfor Kataragama on 30. 6. 94 and returned on 3. 7. 94. Thereforeit was submitted the Process Server could not have served summonson them, as reported on 2. 7. 93. They also submitted that they livedat No. 40, Stafford Avenue, Colombo 6, outside the jurisdiction of theDistrict Court of Colombo and therefore the Process Server had actedbeyond his powers in serving summons on the defendants. In supportof the fact that they were away from Colombo on the relevant date,they produced documents marked XI and X2 and called an employeeof Palm Paradise Cabana Hotel, Tangalle, to prove those documents.The learned District Judge having considered the evidence led by the1 st and 2nd defendants had decided to set aside the ex-parte judgmententered against them.
Wimalawathie and others v. Thotamuna apd others(Dr. Ranaraja, J.)
Where a defendant seeks to have an ex-parte decree enteredagainst him set aside, the burden of proof that no summons wasserved, lies squarely on him, (Vide Sangarapillai v. Kathiravely,1))It is relevant to note that applications to set aside ex-parte decreeare proceedings incidental to and not a trial proper. No specificprocedure is laid down in the Civil Procedure Code as to how suchinquiries should be conducted. However they must be conducted onprinciples of fairness. The affidavit filed by the Process Server is primafacie evidence of the fact that summons was duly served on thedefendants mentioned therein and there is a presumption that summonswas duly served. Accordingly, the burden shifts on to the defendantsto prove that no summons had been served. The defendants haveto begin leading evidence. Once the defendants lead evidence to provethat summons had not been served on them and establish that fact,burden shifts back on to the plaintiffs to rebut that evidence. Thiscan be done by calling the Process Server to give evidence that hehad served summons on the defendants.
In the instant case, the plaintiffs had instituted action against thedefendants. There was a report to the effect that summons had beenserved on them. However soon after the matter was fixed for ex-partetrial against the defendants, they had sought contempt proceedingsagainst the Process Server. In those circumstances there was a dutycast on the plaintiffs to call the Process Server to establish, as reportedin his affidavit filed of record, that he had served summons on thedefendants and it was done within the jurisdiction of the District Courtof Colombo. The plaintiffs have failed to do so.
What has been decided by the learned Additional District Judgewas essentially a question of fact. The 1st and 2nd defendantsthemselves gave evidence. The plaintiffs have neither given evidencenor led any evidence in rebuttal. In the circumstances, the learnedAdditional District Judge was entitled to hold that the defendant hadsatisfied Court that there were reasonable grounds for default andset aside the ex-parte decree. Accordingly I see no error in the orderof the learned Additional District Judge which is affirmed. The appealis dismissed with costs fixed at Rs. 2,500/-.
WIMALAWATHIE AND OTHERS v. THOTAMUNA AND OTHERS