TAMBIAH, J,—-Xtinffih&my v^Don Bastion.
Certain preliminary objections ware raised by counsel for the respondent.
She contended that the order of the learned Commissioner is not a<: hoal judgment ” or ,f an order having the effect of a final judgment ”,within the meaning of section-36 of the -Courts -Ordinance (Cap. 6)and, therefore, the appellant has no right of appeal. She further con-tended that this is an order for default of appearanoe within the meaningof section S23 (6) of the Civil Procedure Code, and, therefore, no appeallies. It is convenient to consider these objections last.
The journal entry of 3rd July, 1961, referred to earlier, clearly showsthat the answer was to he filed only after the Survey Report and Commis-sion issued to the Surveyor were returned. After the Commission wasreturned, it was the duty of the learned Commissioner of Requests tohave fixed a date for filing answer in terms of seotion 809 (3) of theCivil Procedure Code (Cap. 107), which enacts, inter alia, that:
“ If the defendant shall deny the claim, he shall be called uponto plead to the same forthwith, or within such time as the Court oncause shown may allow. ”
Since the learned Commissioner had not fixed the date for filinganswer, the defendant could not have filed his answer. The learnedCommissioner, in the course of his order, states “ Then a date wasgiven for the return of the Commission and on that date, on 16/10/61,when parties were to be informed of the return of the. Commission,, thedefendant was absent. Now the position is that the defendant shouldhave been present on all dates on which the case Was called, if she wasvigilant about the action. On 16/10/61, she being absent, the Courtcould not inform her a date to file answer. She Was in default of appear-ance on that day and I do not think that there would have been anypurpose in the Court giving a date to file answer to a party who was .:absent and who would not have noticed such information. ”
I am unable to find any provision in the Civil Procedure Code whichstates that, on the date the Commission was due, the defendant shouldhave been present. Even if the defendant was absent on the 16th ofOctober, 1961, had. the learned Commissioner of Requests fixed a dateto file an answer, the defendant might have found out the date whenanswer is due by referring to the journal entries even on a later date.The learned Commissioner's failure to perform a statutory duty hasresulted in a denial of natural justice to the defendant. I hold thatall proceedings from the 16th of October, 1961 are illegal and null andvoid.
The defendant quit® proparly made an application to the learnedCommissioner of Requests to rectify an order, made ex parte, withoutproper notice to her. Indeed, tire ordinary principle is that, whereparties are affected by an order of which they have had no notice, andwhich had been made behind their back, they must apply in thefirst instance to the court which made the ex parte prdar to rescindthe order, on the ground that it was improperly jessed against them.
TAMBIAH, J.—Dingihamy v. Don Bastion
(vide Gargial v. Somasundercm Chetty V Sayadoo Mohamado v. MavlaAbubahar2). In the instant case, therefore, the learned Commissionerof Requests has erred in refusing to vacate his order.
What is the test to be applied to find out whether a particular orderis an order having the effect of a final order within the meaning of section36 of the Courts Ordinance 1 The question is by no means easy toanswer. In Vairaven Chetty v. TJTcltu Banda3 Jayewardene A.J. (ashe was then) was of the view that “ a judgment or order which canbe considered by a Court of Appeal at a later stage of the proceedings—that is, when the case is finally decided—does not fall within theterm “ final judgment But it is not possible to say that any orderwhich can never be so brought up in appeal is not a final judgment.
The above dictum of Jayewardene A.J. in Vairaven Chetty’s case(supra), received the express approval of Garvin S.P.J., (as he thenWas) in the later case of Marilcar v. Dharmapala Unnanse4. In theinstant case, I am of the opinion that the order of the learned Commis-sioner of Requests, refusing to set aside his order and fixing the casefor ex parte order and making the order nisi absolute, is a final'orderfrom which an appeal lies to this Court. If the defendant does notappeal from this order, he will not be in a position to canvass it inany other proceeding. Even if the defendant had no right of appeal,I would have acted in revision and set aside the orders of the learnedCommissioner of Requests.
Further objection was taken by the counsel for the respondent thatsection 823 (6) of the Civil Procedure Code is a bar to the hearing of thisappeal. This section is only a bar to an appeal against any judgmententered under section 823 (2) of the Civil Procedure Code and thus ithas no application where a judge has proceeded with a case withoutservice of summons on a defendant (vide Jamis v. Dochinona 5) or wherethe peremptory provisions of the Civil Procedure Code enjoining anessential step taken by a judge to ensure the administration of theprinciples of natural justice are flouted, as for instance, where a partywas not given notice of a date of trial- (vide Charles Singho v. SimeonSingho 6), or where a judge has not fixed a date to file answer andproceeds to hear the case.
For these reasons, I set aside the order of the learned Commissionerof Requests, dated 16th July, 1961, fixing the date for ex •parte trialand all subsequent orders. I remit this case before another Commissionerof Requests, who, after fixing a date to file answer, will proceed fromthat stage.
Since the defendant herself had not been vigilant, I order no costsin her favour, in the lower court, but she -is entitled to the costsof this appeal.
Order set aside.
(1905) 9 N. L. B. 26 at 28—per Layard G.J. * (1934) 36 N. L. R. 201 at 203.
(1926) 28 N. 4 R. 58.5(1942) 43 N. L. R. 527.
(1924) 27 N. L. R. 65 at 67.«(1945) 46 N. L. R. 418.