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Present: Akbar J.
CANNON v. TELESINGHE.350—C. B. Chilaw, 23,723.
Court of Requests—Absence of defendant—Appearance of Proctor—Judgment by default—Civil Procedure Code, s. 823 (2).
In a Court of Requests where the defendant is absent but his-Proctor appears for him the Commissioner should not proceed asin a case of default.
PPEAL from an order of, the Commissioner of Requests,.Chilaw.
Samarawickrama, for the defendant, appellant.
Ranawaka, for plaintiff, respondent.
February 25, 1929. Akbar J.— '
This appeal raises a question of law on the proper construction ofsection 823 (2) of the Civil Procedure Code. On the date of trialthe defendant was absent, but he was represented by his Proctor-on the record. At the instance of the Counsel for the plaintiff, theCommissioner has- ruled that the defendant’s absence on the trialdate entitled him to enter judgment by default against the defendant.The sub-section states that “ if, upon the day fixed for the hearingof the action, the defendant shall not appear or sufficiently excuse
his absence, the Commissionermay enter judgment by
default against the defendant.”
By section 801 it is laid down that the subsequent sections underChapter LXVI. are to be taken as limiting and controlling theapplicability of the general provisions, contained in the precedingsections, to Courts of Requests only so far as such provisions areeither expressly or impliedly applicable to such Courts. Section 24of the Civil Procedure Code authorizes a Proctor duly appointed toappear for his client and do any act which his client is required to do,unless there is an express law to the contrary; This section would,therefore, apply to Courts of Requests. Primd facie, therefore, thewords “ the defendant shall not appear or sufficiently excuse hisabsence ” can only mean the defendant shall not appear in personor by Proctor or sufficiently excuse his absence when he does notso appear. On the ground of convenience, a defendant mightprefer to contest a case and instruct his Proctor to cross examinethe witnesses for the plaintiff on certain lines, and absent himself'
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from Court, being perfectly content to rest his case on the plaintiff'scase alone, subject to cross-examination by his Proctor. Mr.Ranawaka, however, referred me to a case reported in 3 Browne'sReports 1. It is true that Browne A.J. construed the word“ appearance ” as meaning “ being personally present,” but it willbe seen from his judgment that his remarks are really obiter.
I, therefore, prefer to follow the later judgment of HutchinsonC.J. reported in 4 Baiasingham’s Reports 2, where he expresslyheld the contrary. There is an authority in similar terms reportedin 1 Supreme Court Reports, p. 67.
I, therefore, set aside the order of the Commissioner giving judg-ment for the plaintiff, and send the case back for trial in due course.The appellant will get his costs of appeal.