004-SLLR-SLLR-2009-V-1-REV.-SUMANATISSA-vs-HARRY.pdf
Rev. Sumanatissa vs. HarryCA
31
REV. SUMANATISSA
vsHARRY
COURT OF APPEALROHINI MARASINGHE. J.SARATH DE ABREW. J.CA 959/95 (F).
DC EMBILIPIT1YA 2930.FEBRUARY 27, 2009.MARCH 30, 2009.
Civil Procedure Code Section 87 (1) (2) (3) – Plaintiff absent – Trial date -Application to purge default – Reasonable time – reasonable grounds fornon appearance – liberal approach? – Subjective approach? – Record thepresence of parties – vital?
The plaintiff-appellant instituted action seeking inter alia for a judgmentto eject the defendant – respondent. As he was absent on the trial date,the action was dismissed. The plaintiffs application to purge the defaultwas also refused.
Held:
On an analysis of section 87 (3) of the Code the limiting factors wouldbe that the application to restore should be made within a reasonabletime and the plaintiff should satisfy Court that there were reasonablegrounds for non appearance.
In the instant case the application to purge the default was madewithin a reasonable time of 19 days.
The legislature in its wisdom had not set a rigid deadline as to whatperiod of time should construe within a reasonable time. This isa clear indication that in interpreting Section 87 (3) Court mustuse the yardstick of a subjective test rather than a less flexibleobjective test in determining what is reasonable.
Per Sarath de Abrew. J:
“Applying this liberal approach in determining whether the plaintiff hassatisfied Court in adducing reasonable grounds for non appearance,
32
Sri Lanka Law Reports
{2009)1 SRIL.R.
in my view, where necessary, Court is not precluded from having re-course to other salient feature in the case in hand to determine whetherthe plaintiff exhibited blatant and willful default, which features wouldperhaps tilt the balance in favour of the plaintiff. Special attention maybe given to the past history of the case with the past conduct of thedefaulter and his opponent being subject to scrutiny….”
In applying the subjective test as to whether the plaintiff affordedreasonable grounds for his non-appearance, in the absence of anyevidence to establish willful default and taking into considerationthe past history as to the conduct of parties the unchallengedaverments in the affidavit of the plaintiff-the evidence on oath ofthe plaintiff – the old age, infirmity and the status of the plaintiffand the unlikelihood of the plaintiff inventing the story as to thetrip to Colombo, any doubt arising out of the above should havebeen redressed in favour of the plaintiff.
Held farther:
Where the trial Judge proceeds to dismiss the action of the plaintiffdue to his non-appearance there is an implied duty cast on himto record in the journal as to the presence or absence of thedefendant. The trial Judge has failed to give due consideration tothis important aspect which would have had a vital bearing on theoutcome of the inquiry under Section 87 (3).
It may well be that the plaintiff may have been negligent in notensuring that his lawyer appeared in Court, and informed Courtof his illness. Negligence may in certain circumstances constitutereasonable grounds within the meaning of Section 87 (3).
APPEAL from a judgment of the District Court of Embilipitiya.
Cases referred to:-
Chandrawathie us. Dharmaratne 2002 1 Sri LR
CALA 154/91 DC Colombo CAM 3.10.1991
P. L. Gunawardene with K. W. E. Karaliyadda for substituted plaintiff- appellant.
P. Peramunagama for defendant – respondent.
Cur.adv.vult.
CA
Rev. Sumanatissa vs. Harry
(Sarath De Abrew, J.)
33
July 7, 2009SARATH DE ABREW, J.
The plaintiff-appellant (now deceased) had institutedaction in the District Court of Embilipitiya seeking, interalia, for a judgment to eject the defendant-respondent fromthe premises in suit which is morefully described inthe schedule to the plaint. The defendant-respondent(hereinafter sometimes referred to as the Respondent) filedanswer and the trial commenced on 28.10.93 and the partiesraised issues. Subsequently the trial was refixed for 07.07.94.On this date as the plaintiff defaulted from appearing incourt the learned trial Judge dismissed the action. On 26.07.94the plaintiff filed petition and affidavit in order to restorethe case and the application was fixed for hearing where theplaintiff gave evidence and marked two documents PI andP2 in order to purge the default. On 28.09.95 the learnedtrial Judge made order refusing to set aside the order ofdismissal made on 07.07.94. Being aggrieved by the saidorder the plaintiff-appellant has submitted this appeal to thisCourt in order to have the order of 28.09.95 set aside. Afterthe demise of the plaintiff subsequently, the present ChiefIncumbent of the temple concerned had been substitutedas the Substituted Plaintiff-Appellant (hereinafter sometimesreferred to as the Appellant).
At the hearing of the Appeal both parties filed writtensubmissions and agreed to abide by the order made thereon.
I have perused the entirety of the written submissions thusfiled, the journal entries, proceedings and other documentsin the trial case at D. C. Embilipitiya.
The facts briefly are as follows: According to the evidenceof the plaintiff, on the day in question, namely 07.07.94,the plaintiff priest suffering from a diabetic condition, hadfelt faintish the previous day and had decided to travelto Colombo from Embilipitiya in a vehicle to seek specialisttreatment from one Dr. Wijesuriya. He had left around
34
Sri Lanka Law Reports
[2009] 1 SRIL.R.
Having obtained a medical certificate (marked P2) on12.07.94 from the consultant physician, the plaintiff hadfiled petition and affidavit on 26.07.94 to purge the defaultand restore the case. After due inquiry, at which the plaintiffpriest had given evidence and was duly cross-examined, anddocuments PI, and P2 were marked subject to proof, thelearned trial Judge had delivered order on 28.09.95 refusingto set aside the order of dismissal. The impugned order hasbeen made under section 87 (3) of the Civil Procedure Code.
Section 87 of the Code reads as follows:
“87 (1) Where the plaintiff or where the plaintiff andthe defendant make default in appearing on the day fixed fortrial, the Court shall dismiss the plaintiffs action.
Where an action has been dismissed under thissection, the plaintiff shall be precluded from bringing a freshaction in respect of the same cause of action.
The plaintiff may apply within a reasonable time fromthe date of dismissal, by way of petition supported by affidavit,to have the dismissal set aside, and if on the hearing of suchapplication, of which the defendant shall be given notice theCourt is satisfied that there were reasonable grounds for thenon-appearance of the plaintiff, the Court shall make order
5 a.m. and returned to Embilipitiya the same day afternoonafter obtaining medicine from Dr. M. A. Wijesuriya, consultantphysician, to which effect he had produced the medicalprescription marked PI. Prior to leaving Embilipitiya theplaintiff priest had made arrangements to despatch anotherpriest from the temple to meet the lawyer of the plaintiffto inform of the illness of the plaintiff and obtain a date.Apparently this had not been conveyed to Court as the journal
as to the presence of the defendant or his counsel.
This journal entry is silent
entry of07.07.94 reads
CA
Rev. Sumanatissa vs. Harry
(Sarath De Abrew, J.)
35
setting aside the dismissal upon such terms as to costs orotherwise as it thinks fit, and shall appoint a day forproceeding with the action as from the stage at which the dis-missal for default was made. ”
On an analysis of section 87(3) of the Code, the limitingfactors would be that the application to restore shouldbe made within a reasonable time and that the plaintiffshould satisfy Court that there were reasonable grounds fornon-appearance. In the instant case the application topurge the default has been made within a reasonable time of19 days. The legislature in its wisdom had not set a rigiddeadline as to what period of time should construe within areasonable time. This is a clear indication that in interpretingsection 87(3) of the Code, court must use the yardstickof a subjective test rather than a less flexible objectivetest in determining what is reasonable. A broad and flexibleinterpretation should therefore be given to the wordreasonable. Employing this liberal approach in determiningwhether the plaintiff has satisfied Court in adducingreasonable grounds for non-appearance, in my view,where necessary, Court is not precluded from havingrecourse to other salient features in the case in hand todetermine whether the plaintiff exhibited blatant andwillful default, which features would perhaps tilt thebalance in favour of the plaintiff. Special attention maytherefore be given to the past history of the case with thepast conduct of the defaulter and his opponent being subjectto scrutiny, and whether the defaulter derived any undueadvantage as a result of the default, and last but not theleast, the effect of such default on the daily functioning of theCourt concerned on that particular day.
In this respect, in Chandrawathie vs DharmaratnS11it has been held that our Courts have extended a liberalattitude in analyzing the evidence and pleadings in cases ofdefault of the plaintiff under section 87(3) of the Code. This isall the more significant as the provisions contained in section
36
Sri Lanka Law Reports
12009] 1 SRJL.R.
87 (2) and 88( 1) of the Code debar a fresh action and subsequentappeal respectively where judgments are entered upondefault which would deny the defaulting litigant any furtheropportunity to vindicate his rights under our civil law unlessand until he succeeds in purging his default. This is all themore reason why our Courts should be more circumspectin refusing relief to defaulting litigants unless the verycircumstances relating to the default demand otherwise.
With the above guidelines in mind I now approach theproblem. For the following reasons enumerated below I aminclined to take the view that the learned trial Judge has erredin law in refusing to set aside the dismissal on default.
The evidence discloses that the plaintiff was an elderlypriest around 80 years of age with a severe diabetic condition.According to his uncontroverted evidence, on 06.07.94 hehad felt faintish and decided to rush to Colombo to seekspecialist treatment from his regular consultant physician.He had taken steps to send another priest to inform hislawyer to obtain a date. This apparently had not beenconveyed to Court due to some undisclosed reason. Theailing plaintiff priest was well within his rights to decide onthe best course of action with regard to his ailment. This wasthe first time he had defaulted on the grounds of ill health.The learned trial Judge need not have embarked on a voyageof discovery to determine whether the plaintiff was justified ingoing to Colombo to seek treatment. The issue in contentionshould have been whether the plaintiff was medicallyunfit to appear before Court, irrespective of whether he wasjustified in seeking specialist treatment in Colombo or not.Even though marked subject to proof, the medical prescriptionPI and the medical certificate P2, the unchallengedaverments in the plaintiffs affidavit dated 26.07.94 andthe evidence on oath of the plaintiff, in my view, applying asubjective test, and in view of the lack of any evidence toestablish willful default, would have constituted reasonablegrounds for the non appearance of the plaintiff. Taking into
CA
Rev. Sumanatissa vs. Harry
(Sarath De Abrew, J.)
37
consideration the old age, infirmity and the stature of theplaintiff as a Chief Incumbent of a temple, the unlikelihoodof the plaintiff inventing the story as to the trip to Colombo,any doubt arising out of the above should have been resolvedin favour of the plaintiff.
Further, paragraph 06 of the petition and affidavit of theplaintiff dated 26.07.94 allege that the defendant too wasabsent and moved for a date. This has not been challengedby the defendant when the plaintiff was. cross-examined.The journal entry of 07.07.94 is silent as to the presence orabsence of the defendant. Section 87(1) of the Code providesfor a situation where the plaintiff or where both the plaintiffand the defendant make default in appearing. Under thecircumstances, where the trial Judge proceeds to dismiss theaction of the plaintiff due to his non appearance, there is aimplied duty cast on him to record in the journal entry or theproceedings as to the presence or absence of the defendant.In the impugned order of 28.09.95 the learned trial Judgehas failed to give due consideration to this important aspect,which would have had a vital bearing on the outcome of theinquiry under section 87(3) of the Code.
An illuminating insight as to the past conduct of theparties is afforded on perusal of the journal entries where thefollowing matters are also disclosed:
The defendant had moved for postponement on fouroccasions for various reasons and was granted dates -namely 15.11.90, 30.05.91, 10.10.91 and 06.05.92.
The only two occasions the plaintiff defaulted, the casehad been dismissed on both occasions – namely 22.07.92but restored on 07.07.93 and finally on 07.07.94.
The circumstances enumerated above tilt the decision infavour of the plaintiff.
Therefore in applying the subjective test as to whetherthe plaintiff afforded reasonable grounds for his non-
38
Sri Lanka Law Reports
[2009] 1 SRJL.R.
appearance, in the absence of any evidence to establishwillful default, and taking into consideration the past historyas to the conduct of the parties concerned I hold that thelearned trial Judge had failed to exercise a reasonablejudicial evaluation of the material at his disposal in refusingto restore the case. It may well be that the plaintiff may havebeen negligent in not ensuring that his lawyer appeared inCourt and informed Court of his illness. Negligence may incertain circumstances constitute reasonable grounds withinthe meaning of section 87(2) of the Code.
The learned counsel for the Respondent contended that noproper notice had been given of the application of the plaintiffto restore the case. However the journal entry of 14.10.94discloses that notice had been given before the inquiry whichcommenced on 19.10.94. No prejudice has been caused to theDefendant-Respondent who had been represented by counselat the inquiry and the plaintiff himself had been subject tolengthy cross-examination.
In view of the foregoing reasons, I set aside the impugned orderof the learned District Judge of Embilipitiya dated 28.09.95and further make order that this case be sent back to theDistrict Court of Embilipitiya to recommence trial from thestage it had been dismissed. The Registrar is directed to senda copy of this order along with the original record forthwith tothe District Court of Embilipitiya. In all the circumstances ofthis case I make no order as to costs.
Appeal is therefore allowed.
MARASINGHE, J. – I agree.
Appeal allowed
Case sent back to recommence trial.