JAYANERIS AND OTHERS
COURT OF APPEAL
C. AVISSAWELLA 481/L
JUNE 23rd, 1999.
AUGUST 31st, 1999.
NOVEMBER 5th, 1999.
Civil Procedure Code – Amendment No. 20 of 1977 – S.55( 1) Non service
of summons – Exparte order – Is it bad in Law ?
(1) Unless summons in form 16 in the 1st schedule to the C.RC. issues,signed by the Registrar requiring the Defendant to answer the Plaint,on or before a day specified in the summons and is duly served onthe Defendant, there cannot be due service of summons.
(il) Unless summons were served, all the consequences of default inappearance would not apply to them.
(iii) It was the service of notice of the application for interim injunctionthat had been served on the 1-3 Defendants. Interim Injunction hadbeen properly entered against them. But an exparte trial on thesubstantial matters referred to in the amended plaint could not havebeen ordered without due service of summons.
“There is no question of implying or presuming that the Defendantswere aware of the case filed, since statutory provisions apply to serviceof summons and unless the summons are duly served, the otherstatutory consequences for non appearance on serving of summons,would not apply to Defendants.”
Appeal from the Judgment of the District Court of Avissawella.
Case referred to :
1. Ameer vs. Raji (S.C. Appeal 88/94 – SCM 3.11.1994)
Sri Lanka Law Reports
12001] 2 Sri L.R.
Nimal Jayasinghe for 1* Defendant Appellant.
Bimal Rajapakse with Ajith Anawaratne for Plaintiff Respondent.
Cur. adv. vult.
May 26, 2000WIGNESWARAN, J.
Plaintiff-Respondents filed this action on 05.10.1988 fordeclaration of title to the land described in the schedule to theplaint damages, and costs. They also prayed for an enjoiningorder and interim injunction by filing plaint with affidavit.
After support by Counsel on 07.10.1988 notice ofapplication for interim injunction issued on the Defendants for
It was reissued again for 12.12.1988. On that dayit was reported that the Fiscal had served summons on the 1st,2nd and 3rd Defendants. But in fact there was no order to issuesummons nor were the draft summons tendered to Court on05.10.1988 with the plaint issued for service (page 107 of theRecord) nor summons served in fact. What was served was thenotice of the application for interim injunction tendered to Courton 07.10.1988 (page 109 of the Record) plus probably a copyof the plaint and affidavit also tendered to Court on 07.10.1988.Unfortunately the Fiscal Process Server had used the printedaffidavit form used for the service of summons and sent in hisreport as if summons had been served. This fact is brought outby the following facts:-
The case was filed on 05.10.1988 and a date for supportwas given for 07.10.1988 as stated above. But no orderwas made to issue summons on 05.10.1988 since therelevant part of the printed journal sheet remains blank.
The order made on 07.10.1988 was to issue notice ofapplication for interim injunction. There was no order madeto issue summons. (Vide Journal Entry 2).
Leelmvathie v. Jayaneris and Others
The summons tendered on 05.10.1988 with copies of plaintand affidavit are still in the original record. The precepttendered still remains unsigned by the Registrar. (Vide pages179 to 210 of the Record.)
The side entry under Journal Entry 2 also refers to the issueof notice only to the Avissawella Fiscal. There is no mentionof the issue of summons to the Fiscal.
The return to the Precept issued to Fiscal refers only to“notice” and not summons. The Precept regardingsummons is still in the record.
Thus Journal Entry 4 on 12.12.1988 had erroneouslyreferred to the service of summons and the Court had concludedthat summons had been served whereas only notice of theapplication for interim injunction had been served probably witha copy of the plaint and affidavit.
The Journal Entry 4 does not state whether 1st to 3rdDefendants were present in Court on 12.12.1988. A calling datewas given for 19.06.1989. On that day the proxy of the 1stDefendant only was filed and a date (17.07.1989) was given tofile objections to the application for interim injunction. The 2ndand 3rd Defendants were absent. Interim injunction wastherefore granted against them. A date was also obtained foramended plaint viz. 17.09.1989. Thus two dates were given.One for the filing of objections to the only process served on the1st Defendant (17.07.1989) and the other for the filing ofamended plaint (17.09.1989). There is nothing on the recordto show that summons with a copy of the original plaint andaffidavit was served on the Defendants. In fact they are still inthe record.
The case was not called on 17.07.1989.
17.09.1989 being a Sunday the case was called on
(Vide Journal Entry 6). Amended plaint was filedon that date. The amended plaint sought to include two other
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 2 Sri L.R.
Defendants viz. 4th and 5th Defendants. Summons was issuedon them for 27.11.1989. Inquiry into the application for interiminjunction was also fixed for the same date, the 1st Defendanthaving filed petition and affidavit in objection to the issue of theinterim injunction.
Summons returnable date for the 4th and 5th Defendantsand the inquiry date was postponed for 26.03.1990. But interiminjunction was granted on that day since the 1st Defendant wasnot present.
Though summons was served on the 4th Defendant he wasabsent on 26.03.1990 and therefore ex-parte trial was fixedagainst him for 08.10.1990. Reissue of summons was orderedagainst the 5th Defendant on his proper address being furnished.(Vide Journal Entry 8). The name of the 5th Defendant wascorrected and summons was reissued on him. (Vide JournalEntry 9). Again summons on the 5th Defendant was reissued for
Substituted service of summons was authorisedon the same date (08.10.1990 – Vide Journal Entry 10). The5th Defendant, after substituted service, was absent on
(Vide Journal Entry 12). The case was scheduledto be called on 20.02.1991 to fix it for trial.
On 20.02.1991 the 1st to 5th Defendants were absent. Ex-parte trial was therefore fixed for 08.03.1991.
Ex-parte trial took place on 08.03.1991. Order was madeon 27.03.1991 entering judgment as prayed for by the Plaintiff.Copy of the decree was ordered to be served on the Defendantsfor 08.05.1991. Further date was given for 11.09.1991.
On 11.09.1991 it was reported that copy of the decree hadbeen served on 1st, 3rd and 4th Defendants. It was not served on2nd and 5th Defendants. Therefore their copies of decree werereissued for 14.10.1991 and thereafter for 16.03.1992.
On 11.09.1991 the Is* and 4th Defendants moved for a dateto file objections. They filed their objections on 17.09.1991 witha motion prior to the next date (viz. 14.10.1991).
Leelawathie v. Jayaneris and Others
Copies of decree were not served even on 16.03.1992.Substituted service was therefore ordered (Vide Journal Entry25) for 13.07.1992 and again for 30.11.1992. Service bysubstituted means having been effected and the 2nd and 5thDefendants not being present on 30.11.1992 the decree wasconfirmed against them. Inquiry into the objections filed by the1st and 4th Defendants was fixed for 25.01.1993. Writtensubmissions were thereafter filed and order dated 09.03.1993was made by the Additional District Judge, Avissawella refusingthe application of the 1st and 4th Defendants to set aside the ex-parte order made against them.
This is an appeal against the said order dated 09.03.1993.
Mr. Nimal Jayasinghe on behalf of the 1st Defendant-Appellant has submitted as follows:-
The ex-parte was fixed because answer was not filed. (Videorder dated 27.03.1991 at page 108 of the Brief). Butobjections to the issue of interim injunction had been filed.In this case application for interim injunction was throughplaint and affidavit and not by separate petition and affidavit.
In Ameer Vs. Raji111 it was held that the statement ofobjections filed in that case could be taken to have beensubstantially an answer. In this case too the salient featuresof an answer were contained in the statement of objectionsfiled.
He moved for the vacation by this Court, using its revisionarypowers of the orders dated 09.03.1993 and 27.03.1991.
Mr. Bimal Rajapakse appearing for the Plaintiff-Respondentshas countered as follows:-
1. Ex-parte was fixed since even the Attomey-at-Law for the1st Defendant was absent on 20.02.1991. None of theDefendants were present.
Sri Lanka Law Reports
120011 2 Sri L.R.
The case of Ameer Vs. Raji (Supra) can be distinguishedsince the objections filed has not sought the dismissal ofthe action brought.
It was incumbent on the part of the 1st Defendant-Appellantto have filed answer in terms of Section 55( 1) of the CivilProcedure Code in existence then.
These submissions of both Counsel would presently be
Section 55( 1) of the Civil Procedure Code as amended by
Law No. 20 of 1977 read as follows:-
“55(1) Upon the plaint being filed, and the copies orconcise statements required by Section 49 presented,the court shall order summons in the form No. 16 inthe First Schedule to issue, signed by the Registrar ofthe court, requiring the defendant to answer the plainton or before a day to be specified in the summons.
The summons, together with such copy or concisestatement each translated into the language of thedefendant where his language is not the language ofthe court, attached thereto, shall be delivered undera precept from the court in the form No. 17 in the saidSchedule, or to the like effect, to the Fiscal of the courtor to the Fiscal of a court of like jurisdiction within thelocal limits of whosejurisdiction the defendant resides,who shall cause the same to be duly served on thedefendant, or on each defendant, if more than one,and shall as hereinafter provided, return the sameand the execution thereof to the court, duly verifiedby the officer to whom the actual service thereof hasbeen entrusted.”
Unless summons in the Form No. 16 in the 1st Schedule tothe Civil Procedure Code issues, signed by the Registrarrequiring the Defendant to answer the plaint on or before a day
Leelawathle v. Jayaneris and Others
specified in the summons and is duly served on the Defendantthere cannot be due service of summons. In this case the originalsummons with attached copies of plaint and affidavit tenderedwith the original plaint dated 05.10.1988 to be issued againstthe 1st – 3rd Defendants are still in the Record unsigned by theRegistrar. (Vide pages 179 to 209). They had been duly tenderedon 05.10.1988 with the original plaint as per Court Seal of thatdate. What had been served on 1st – 3rd Defendant were noticesthat issued under the hand of the Registrar on 07.10.1988.Hence there had been no service of summons on the Is* – 3rdDefendants. Unless summons were served on them, all theconsequences of default in appearance would not apply to them.There is no question of implying or presuming that theDefendants were aware of the case filed, since staturoryprovisions apply to service of summons and unless thesummons are duly served the other statutory consequences fornon-appearance on serving of summons, would not apply toDefendants.
As for the 4th and 5th Defendants the summons appear tohave been served (Vide pages 159 – 164). The latter had beenserved by substituted service.
After service of notice, the 2nd and 3rd Defendants were absenton 12.12.1988. Therefore interim injunction had been enteredagainst them. Since the 1st Defendant having filed objections tothe issue of interim injunction was absent on 26.03.1990,interim injunction had been entered against him too.
Thus it was the service of notice of the application for interiminjunction that had been served on the 1st to 3rd Defendants.Interim injunction had been properly entered against them. Butan ex-parte trial on the substantial matters referred to in theamended plaint could not have been ordered without dueservice of summons.
I therefore set aside the ex-parte order made against the 1stto 3rd Defendants on 27.03.1991 and the subsequent order
Sri Lanka Law Reports
120011 2 Sri L.R.
dated 09.03.1993 refusing to set aside the ex-parte order.Judgment entered against the 4th and 5th Defendants will remainunaffected.
The Court shall now issue summons against the 1st to 3rdDefendants and give them an opportunity to file their answerand proceed according to law therefrom.
Parties shall bear their own costs.
District Court directed to Issue summons against the 1 – 3rddefendants and give them an opportunity to file answer andproceed according to law therefrom.
LEELAWATHIE v. JAYANERIS AND OTHERS