SOERTSZ S/P.J.—Amarasekere v. Fernando.
1947Present: Soertsz S.P.J. and Canekeratne J.
AMABAJ3EKERE, Appellant, and FERNANDO, Respondent.iS. G. 42—D. C. (Inty.) Colombo, 17,216
Civil Procedure Code, ss. 85, 86-—Defendant absent—Ex parte trial—Evidence byaffidavit.
Evidence in support of the plaintiff’s claim at an ex parte trial should, as arule, be given orally, and affidavits should be resorted to only in exceptionalcases. Where evidence is given by affidavit, the affidavit should be tenderedin open Court and on the day fixed for ex parte hearing.
PPEAL from a judgment of the District Judge. Colombo.
A. Hayley, K.C., with M. M. K. Svbramaniam, for the defendant,appellant.
H. V. Perera, K.C., with J. Fernandopulle, for the plaintiff,respondent.
Cur. adv. wit.
December 5, 1947. Soertsz S.P.J.—
The sole question that arises on ths appeal is whether we ought toset aside the order of the District Judge making absolute a decree nisihe had entered against the appellant on the ground that he was notpesent on the date fixed for answer, and for the ex parte trial. I amquite unable to accede to Mr. Hay ley’s application asking us to admit adocument disclosed in an affidavit he produced before us. What isdisclosed there is more a matter affecting the ultimate merits of theplaintiff’s and the defendant’s cases and we are not concerned with thatquestion at the present stage.
The facts relevant for a proper consideration of the matter now beforeus are that the plaintiff sued the defendant to recover a sum of Rs. 8,077.28as money due to be paid to him The Court accepted the plaint andordered summons for October 4, 1946. About five weeks later theplaintiff’s Proctor moved that the -returnable date of the summons beadvanced “ as the defendant 'is resident in Colombo and there is nodifficulty in serving summons on him ”. This was allowed and the return-able date was advanced to September 20, 1946, and summons was takenout on September 16,1946, and was on September 21, 1946, reported tohave been duly served. The Proctor filed an affidavit of identity, andex parte trial was fixed for October 25, 1946. On September 26, 1946,the plaintiff’s Proctor filed an affidavit and moved that decree nisibe entered and decree nisi was entered returnable on October 25, 1946,which was the date that had been fixed for the ex parte trial. Decreenisi was issued on October 18, 1946, and was on October 25, 1946,reported to have been served and decree absolute was entered. OnNovember 9, 1946, the plaintiff’s Proctor applied for writ. It wasissued returnable on November 10, 1947. Property belonging to the
SOERTSZ S.P. J.—Amaraaekere v. Fernando
■defendant appears to have been seized almost immediately. But thisrapid progress in the case was, presently, interrupted. The defendantappeared with petition and affidavit on November 13, 1946, and movedto have the decree absolute set aside on the ground that neither summonsnor decree nisi had been served on him. As I have already indicated,the District Judge preferred the evidence of the process server and oftheplaintiff to that of the defendant and refused to set aside that decree.Mr. H. V. Perera says with much force that we ought not to interferewith a trial Judge's finding on a pure question of fact. Nor would we,unless we are clearly satisfied by an examination of all the circumstancesthat the evidence preferred is not as good as it may look on the face of it.This, in my view, is definitely the case here. The spoken word is in-consistent with probability. I do not mean to suggest that the merefact that the testimony of witnesses is improbable is a ground for re-jecting it. That must depend on the character of the witness and theoccasion on which the evidence is given and the nature of the evidencein the sense of its assessability by cross-examination and other tests.It is difficult to test bald statements such as “ I served the summons.He was standing at the gate at the time ” ; and “ I saw the summonsserved ; he was standing at the gate at the time ”. When we have todeal with such evidence, it is necessary to go behind the scenes, so tospeak, and in this case, directly we do that, strange things come to light.We find that a special process server was sought and obtained for servingthe summons after the date for that step had been advanced. There isno satisfactory explanation of why the date was advanced or a specialserver sought. It was suggested by Counsel at the hearing of the appealthat wheD delays and difficulties are thought likely a “ special ” is,generally, asked for, butthat, surely, cannot be the case here because inasking for the date of summons to be advanced the Proctor for theplaintiff declared that “ the defendant is resident in Colombo and thereis no difficulty in serving summons on him ”. Next, when we examinethe evidence of the process server and compare it with that of theplaintiff, we find unexplainable discrepancies, little straws that seem toindicate the direction of the wind. The process server says that “ the daybefore yesterday defendant spoke to me and asked me to give evidence.He met me and asked me to speak the truth. I did not tell the plaintiffProctor or plaintiff that he offered me a bribe ”, The plaintiff, however,says “ The Fiscal’s peon came and told me that defendant saw him andoffered him Ks. 100 to turn tables …. I did not offer himanything ”. The incorruptible “ special ”, in the end, testified on theside of the plaintiff pro deo, rejecting the defendant's offer of Es. 100.That is not all. The server says that on the day he served the decreenisi he “ asked him (i.e., the plaintiff) to come ; he said he had someurgent work ”. The plaintiff’s version is “ On the second day I did notgo with the Fiscal’s peon. He said he can serve it. If he asked meto go with him I would have gone ”, There are other contradictions•too. It is also a matter to be taken into account that a “ gentleman ”called Jinadasa, who is said to have been present when summons wasserved, was not called to support the plaintiff’s case. It would hardlyhave amounted to an attempt to paint the lily to call him to support
Dember v. Abdul Hafeel.
the plaintiff and the “ special ”. Then, there is the evidence of theplaintiff’s Proctor. It is calculated to show that the defendant was anelusive “ personage He would not admit the plaintiff’s claim ; norwould he produce hooks ; and one may presume that such a man wouldnot easily let judgment go against him without striking or, at least,trying to strike a blow, for even an ineffective blow would, if not defeatthe antagonist, at least delay him. In regard to the question why thedefendant who had been so nonchalant when summons and decree nisiwere served on him, bustled into activity when writ went to seize hisproperty, Mr. Perera submitted that this was a curious but not unknowntrait in the case of not a few litigants. That may be so. But in thiscase, in the circumstances I have referred to, I am unable to take thatview. Then, there is the fact that long before the date fixed for the ex•parte, hearing an affidavit supporting the plaintiff's case was submitted tothe Judge, and it was upon this affidavit that decree nisi was entered,evidently in Chambers. By itself this may be inconclusive for it issaid to be the practice in the District Court of Colombo to prove claimsex parte by affidavit. But I should wish to point out that, as a rule,this should be done only in accordance with the terms of the section ofthe Civil Procedure Code. At any rate, the affidavit should be tenderedin open Court and on the day fixed for the ex parte hearing. But, truly,now that nearly all the Courts have their stenographers on the Bench,it would be better that evidence in support of the plaintiff’s claim begiven orally, affidavits being resorted to only in exceptional cases.
An examination of all the matters before me satisfies me that thedefendant has made out a case for setting, aside the decree and givinghim the opportunity of defending the action. I have dealt with thisapplication in this detail, because I thought we ought to do so as we weredisturbing a finding of fact by so experienced a Judge. The defendantis entitled to the costs of this application here and below.
Cants Kura tnk J.—I agree.