042-SLLR-SLLR-2007-V-1-ATTORNEY-GENERAL-v.-AUSLANKA-DEVELOPMENT-AND-CONSTRUCTION-COMPANY-LTD..pdf
CA
Velun Singho and another v Suppiah and others
(Sarath da Abrew. J.)
385
ATTORNEY-GENERAL
vAUSLANKA DEVELOPMENT AND CONSTRUCTIONCOMPANY LTD.
COURT OF APPEALWIJAYARATNE, J. (P/CA)
CA 789/1995 (F)
CA 790/1995(F)
DC COLOMBO 6449/M, 6195/MSEPTEMBER 22, 2006JANUARY 12, 2007
Civil Procedure Code – Section 75 (e), section 84, section 85, section 87(2) -section 143 Action dismissed – Counsel gone abroad – Not a personal ground -Claim in reconvention postponed – Application to purge default dismissed asearlier application was on the same ground.
The plaintiff-appellant (State) instituted two actions against the defendant-respondent. The State Counsel made an application for postponement of the trialon personal grounds – Counsel going abroad. This was refused by Court. Theclaim in reconvention inquiry was postponed as State was not ready.
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The application made under section 87(2) was refused by Court stating that, theapplication is made on the same facts as earlier, Court has no jurisdiction to makeany order on the same facts.
Held:
The District Judge completely misdirected herself on law when she statedthat Court had no jurisdiction to vacate the ex parte decree. The Court wasunmindful of the fact that it inquired into an application entertained by Courton specific provisions of section 87 vesting jurisdiction in the same Courtwhich entered decree ex parte to make an order either setting asideex parte decree or refusing to set aside same. There is a clear error of law.
The adjournment of the hearing of an action is governed by section 143and undisputedly it is the discretion of the Court to grant an adjournmentor not.
The correct procedure in terms of section 75(e) read with section 84 andsection 85 would have been to proceed with the hearing ex parte of theclaim in reconvention immediately upon the dismissal of the plaint. Insteadthe trial Judge had adjourned the hearing of same thereby placing thedefendant at an advantage against the plaintiff because even in the eventof defendant not been ready to proceed with his claim he gained anadjournment at the expense of the plaintiff who was caused prejudice andloss and damage in the process.
PerWijayaratne, J. (P/CA)
"This process which cannot by any measure of reasoning, be described orpresumed as judicious is a special circumstance of this case that warrants theinterference by this Court sitting in appeal over the matter in issue here.*PerWijayaratne, J. (P/CA)
"The fact that the plaintiff has made an application by way of motion 5 days earlierhas no mention whatsoever on the days proceedings and from the content it isapparent that the Counsel who objected to the application chose to keep mumabout this motion a copy of which was received by his client and the Court whichreceived the motion however minuted it much after the trial date."
If the fact of the plaintiff not being ready for hearing is not good ground forgranting adjournment of trial of the plaintiff's case, it should not justifiablybe considered as good ground for adjournment of hearing of the claim inreconvention.
APPEALS from two orders made by the trial Judge in the District Court ofColombo.
Case referred to:
(1) Colgate Palmolive Co. v Hemas (Drug) Ltd.
Sobitha Rajakaruna SSC for plaintiff-appellants.
Geoffrey Alagaratnam for defendant-respondent.
CA
Attorney-General vAuslanka Development and Construction
Company Ltd. (Wijavaratne. J. P/CA)
387
February 19,2007WIJAYARATNE, J. P/CA
The plaintiff-appellant instituted two actions relevant to these twoappeals against the defendant-respondent. Both actions, after the filingof defendants answer and the replications fixed for trial on the sameday on the understanding of the parties that the two cases beingamong the same parties and on similar facts, be tried together.However, the trial of the two cases had been postponed on twooccasion at the request of the Counsel for the plaintiff and the dateappointed for the trial also had been changed to suit the convenienceof the Counsel for the plaintiff and ultimately fixed for trial on
12.12.1994.
On 12.12.94 State Counsel appeared in Court and madeapplication for postponement of the trial on personal grounds of SeniorState Counsel who represented plaintiff. The President’s Counselrepresenting defendant objected to any adjournment being granted onthe basis that in terms of the Judicial Service Circulars, a Counselgoing abroad is not considered a personal ground.
The Court observing that plaintiff has been given two adjournmentson application by the Counsel for the plaintiff, accepting the objectionsof the Defence Counsel based on J.S.C. Circular refused theapplication for adjournment and dismissed the plaintiffs actions subjectto costs. When the Counsel for the defence mentioned that the claimin reconvention too is fixed for trial.lt was noted that the State Counselrepresenting the plaintiff is not ready for the trial of the claim inreconvention, adjourned the trial of the claim in reconvention andappointed another day for exparte trial of the same. However theCourt has not recorded anything in relation to the fact whether theCounsel for the defendant was ready to proceed with the trial of theclaim in reconvention exparte or not, before adjourning the same onthe footing that the Counsel for the plaintiff is not ready stating that theadjournment is for the above reasons. kx5j€§ ®k>).
The plaintiff then made an application in terms of section 87(2) ofthe Civil Procedure Code supported by the affidavits which included anaffidavit from the Senior State Counsel concerned dated 23.04.1994.The same was objected to by the defendant by its statement of
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objections which was countered by the plaintiff by a statement supportedby further affidavits of the Senior State Counsel dated 24.04.1995.
When the matter came up for inquiry the learned additional DistrictJudge made order dated 11.12.1995 stating that the application ismade on the same facts as averred on 12.12.94 and considered by theCourt which made order dismissing plaintiff action and therefore theCourt did not have jurisdiction to make any order on the same fact andvacate that order dismissing the plaint. Aggrieved by the said order, theplaintiff preferred these appeals in the two respective cases.
When the appeals are taken up for argument both Counselrepresenting respective parties agreed on facts which are matters ofrecord and further agreed that in view of similarity of facts and the lawrelevant to both matters are the same and as matters between thesame parties, both appeals be argued together and one judgmentshould be binding on both cases. Thereafter they made submissionsin writing.
It is observed that all the submissions made are on the order ofdismissal of the plaint on 12.12.94 and nothing is mentioned on theorder appealed from i.e. the order dated 11.12.1995 refusing to vacatethe exparte decree made on the basis of lack of jurisdiction of Court. Itshould be noted first and foremost that the learned Additional DistrictJudge has completely misdirected herself on law. When she statedthat Court had no jurisdiction to vacate the decree exparte. The Courtwas obviously unmindful of the fact that it inquired into an applicationentertained by Court on specific provisions of section 87 of the CivilProcedure Code vesting jurisdiction in the same Court which entereddecree exparte, to make an order either setting aside the decreeexparte or refusing to set aside the same. The refusal to set aside thedecree exparte not on facts, but on grounds that Court lackedjurisdiction therefore is a clear error of law and accordingly set aside inappeal.
The learned trial Judge, refused to vacate exparte decree not upona consideration of relevant facts, but on an erroneous basis of lack ofjurisdiction only. It is therefore necessary to consider the application ofthe plaintiff-appellant on its merits.
Perusal of the proceedings and the order dated 12.12.94 it isapparent that the facts of the trial being adjourned twice before and
CA
Attorney-General vAuslanka Development and Construction
Company Ltd. (Wijayaratne. J. P/CA)
389
travel abroad is not considered a personal ground in terms of JSCCircular are two main factors that received consideration of the trialjudge. It is conceded that the adjournment of the trial was sought on'personal grounds' of the Senior State Counsel who was said to havetravelled abroad "for the participation as an official of the Sri Lanka" ofthe contingent of participants at 12th World Karate Championship-Malaysia on the approval by the Minister – Vide copy of letter of SeniorAsst. Secretary to the Ministry of Youth Affairs … etc, dated 28.11.94marked $ and produced along with the application.
The adjournment of the hearing of an action is governed by theprovisions of section 143 of the Civil Procedure Code and undisputedlyit is the discretion of the Court to grant an adjournment or not. In thecase of Colgate Palmolive Company v Hemas (Drugs) Ltd.W and
another.
The Supreme Court held
"an order fixing the trial or reusing grant of an adjournment is atypical exercise of pure discretionary power and would beinterfered with by a Court sitting in appeal only in exceptionalcircumstances."
Accordingly my task will be to ascertain whether there areexceptional circumstances that warrant interference by this Courtsitting in appeal and in such exercise it is prudent to consider whetherthe trial Judge used his discretion judiciously and in keeping with thepractices of the Court.
In examining the order dismissing the plaint itself, it is clear that thepractice of the Court in granting adjournments was to considerconvenience of the Counsel and the fact of a party not being ready fortrial on the date appointed. In this particular instance of Junior Counselfor the plaintiff seeking adjournment was on the basis of inconvenienceof the Senior Counsel for the plaintiff occasioned by his travel abroadas an official of the Sri Lanka contingent of participant of an eventtaking place in Malaysia. Though the application was categorized as a"personal ground application" it is not a 'personal ground' in its strictsense as regulated by rules.
The fact that the plaintiff has made an application by way of motiondated 06.12.1994 has no mention whatsoever on the days of
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proceedings and from the content of the proceedings it is apparent thatthe Counsel who objected to the application chose to keep mum aboutthis motion a copy of which was received by his client and the Courtwhich received this particular motion however minuted it much after thetrial date (Vide JE No. 29 dated 04.01.1995 in case No. 6195/M andJE No. 27 of the same date in case No. 6449/m). The fact of theplaintiff-appellant seeking an adjournment by way of motion has notbeen brought to the notice of the trial Judge obviously due to theregistry of the Court not keeping to the due practice of submitting suchapplication to the Judge in due course.
The learned District Judge considering the objection of the Counselfor the defendant considering such grounds of objection appear tohave accepted the same in the exercise of his discretion in refusing theadjournment, however did not consider such grounds with regard tothe adjournment of the trial ex parte of the claim in reconvention of thedefendant. He did not even record whether the defendant was readyto lead evidence in support of his claim in reconvention. On the face ofthe order it appears that the trial Judge has adjourned the hearing ofthe claim in reconvention on ground that the Counsel who representedthe plaintiff is not ready for trial of claim in reconvention either.
To me this appears as an instant of the trial Judge exercising hisdiscretion in a manner which is not judicious, because, if the fact of theplaintiff not being ready for hearing is not a good ground for grantingadjournment of trial of the plaintiffs case, it should not justifiably beconsidered as a good ground for adjournment of hearing of the claimin reconvention. Further the adjournment of the hearing of the claim inreconvention was granted even without ascertaining whetherdefendant is ready for the hearing. The days proceedings are silent onsuch fact. The Counsel for the defendant who strenuously objected theapplication of the plaintiff for an adjournment, does not appear to haveat least indicated to Court whether he is ready to proceed with theprosecution of his claim in reconvention. The correct procedure interms of the provisions of section 75(e) read with sections 84 and 85of the Civil Procedure Code would have been to proceed with thehearing exparte of the calm in reconvention immediately upon thedismissal of the plaint. Instead the learned trial Judge adjourned thehearing of the same and thereby placing the defendant at anadvantage against the plaintiff because even in the event of defendantnot being ready (which facts were not ascertained by court) to proceed
CA
Attorney-General vAuslanka Development and Construction
Company Ltd. (Wiiavaratne. J. P/CA)
391
with his claim, he gained an adjournment at the expense of the plaintiffwho was caused prejudice and loss and damage in the process.
This process which cannot lay any measure of reasoning, bedescribed or presumed as judicious is a special circumstances of thiscase that warrant the interference by this Court sitting in appeal overthe matter in issue here.
In all the circumstances of this case, I am of the view that thelearned District Judge has not used his discretion in refusing to grantthe adjournment, judiciously and in the interest of justice it is necessarythat this Court sitting in appeal should set aside the order dated12.12.94 dismissing plaintiffs action.
In the result the appeals are allowed and the order dated 12.12.94and the order refusing to vacate order dismissing plaintiff's action anddated 11.12.1995 are both set aside and vacated. Further order ismade that the two actions should proceed from the stage before thedismissal of the plaintiffs action, according to law.
Appeal allowed.