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Present : Dalton J.
AMARASEKERE v. MOHAMADU UDUMA.
96—0. R. Dandagamuwa, 515.
Court, of Requests—Action for rent and ejectment—Interest in hind—
. PriraS. facie proof of plaintiff's case—Judgment hy default.
In an action in the Court of Bequests for bouse rent audejectment, judgment by default cannot be entered against thedefendant without prim# facie proof of the plaintiff's claim.
PPEAL from an order of the Commissioner of Requests.Dandagamuwa.
Deraniyagalafor defendant, appellant.
L. A. Rajapakse (with Wendt), for plaintiff, respondent.
-Tune 24, 1920. Dat.tox T.—
This is an appeal from an order of the Commissioner who refusedthe application of the defendant in the action to reopen the caseand to set aside the judgment which had been obtained against himhv default. His application to have the judgment set aside wasbased upon the allegation that summons had not been served upon
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him, that the house in respect of which rent and possession were 1M9.claimed by plaintiff had not been occupied by him since December) jja^ton j.1927, that he had paid the rent due up to that date, and that he had —a good and valid defence on the merits of the case. At the inquiry man£e *the Commissioner found as a fact that the summons had been duly Mohamaduserved and he refused the application.
A fresh nfttter has now been raised before me in the argument onthe appeal for the first time, namely, that inasmuch as the Com-missioner failed to comply with the provisions of section 823 (2) hisjudgment cannot stand. The plaintiff’s action is to recover rentfor and possession of certain premises, a right to the possession ofland was in dispute, and therefore by sub-sectibn (2) the Commissionercannot enter judgment by default without hearing evidence insupport of plaintiff’s claim. He failed to take any evidence at all,nor did he direct plaintiff to adduce any evidence, treating the caseas one apparently that came under the first part of the sub-sectiou.
After hearing the evidence, the Commissioner may give “ suchjudgment ” as justice shall require, and it is “ such judgment ’’that may be reopened under the provisions of sub-sectibn (8). Theground now urged for setting aside the judgment is not one that isprovided for in sub-section (3), but it is urged that the judgmententered does not for the reason I have given come within themeaning of the words “ such judgment ” as used in sub-section (3).
If not, what is defendant’s remedy? The matter is not withoutconsiderable difficulty. There is however a precedent in a similarease which I propose to follow. In Meectin v. Meedin 1 Middleton J.set aside the judgment of the Commissioner which had been obtainedwithout the Court hearing any evidence in support of plaintiff’sclaim. He held that the requirements set out in the proviso to.sub-section (2) are substantive law and cannot be waived as a matterof procedure. With that conclusion I agree, although I must admitI should have some difficulty in deciding what is defendant’sremedy in case of failure to observe the law as laid down in theproviso. I shall however follow the precedent, set aside the judg-ment, and send the case back for the admission of defendant’sanswer, but on the following conditions:—Defendant must pay toplaintiff the sum of Rs. 50 (the sum agreed to by Counsel) as theamount of costs the plaintiff' has wasted in the lower Court as aresult of defendant’s default, and also file his answer; payment'andfiling of answer to be within fourteen days of the record reachingthe lower Court. If he fails to comply with either of these conditionsthe judgment obtained against him will stand, and his appeal will bedismissed with costs; if he comply with them both within the timelimited the judgment will be set aside, but without-costs.
1 o A . C. R. 42.
AMARASEKERE v. MOHAMADU UDUMA