022-NLR-NLR-V-05-CAROLIS-APPUHAMY-v.-SINGHO-APPU.pdf
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CAROLIS APPUHAMY v. 8INGHO APPU.
1901.
April 29 andMay S.
D. C.. Kandy, 14,056.
Ex parte trial.—Illness and absence of plaintiff on trial day—Dismissal of case—Motion to vacate order of dismissal—Power of Court to rescind orders■made ex parte—Bight of plaintiff to relief.
Defendant not appearing, the case was fixed for trial ex parte. Plaintiffwas absent and the trial was adjourned to another day, when too theplaintiff was absent. His case was dismissed. Two months afterwardshe filed affidavit averring that his absence on the trial day was due tosevere illness for more than six weeks, during which time he was quiteunable to attend to any business, and moved that the order of dismissalbe vacated.
Held that the District Judge had power to open or rescind any ordermade ex parte, on being satisfied that it was prejudicial to a party throughno fault of his.
Held further, that, whether the Court below had’ power or npt torescind its decree, the circumstances of the case justified the decree'being set aside by the Supreme Court and the case being remitted fortrial' in due course.
CTJON on a mortgage bond. Defendant did not appear, and
the case was fixed for ex parte hearing on 31st October.
1900. On that day plaintiff did not appear, and the trial wasadjourned for 30th November. On that day too plaintiff wasabsent. His proctor moved for a postponement, which wasrefused and the case was dismissed. Thereafter the plaintiffappeared and explained that owing to his illness and removal toColombo he could not attend Court on the 31st October and 30thNovember, and moved that the order of dismissal be vacated. Inhis affidavit he averred that he fell ill on 20th October and waslaid up till the 1st December. 1900; that during that period hewas suffering from bronchitis and severe asthma; that he wasunable to attend to any business and was removed while ill toColombo on 2oth October, where Dr. H. M. Fernando attendedon him; and that his proctor’s letter addressed to his usual placeof residence at Kotmale did not reach him till 3rd December.
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1901.
April 29 andMay 8.
The District Judge (Mr. J. H. de Saram) ruled as follows: —
“ I asked Mr. Beven whether he can point to any provision in“ the Procedure Code which enables me to allow this motion. He“ said he could not. I refuse the motion, as I am of opinion I have“ no power to grant it
■ v Plaintiff appealed.
Van Langenberg, for appellant.—The order dismissing the case-was wrong. The hearing should have been adjourned. Brampy v.Peris (3 N. L. R. 35). When an order ex parte has been madeto the prejudice of a suitor, the proper course is not to appeal butto apply to the Court to set it aside. The District Judge hasan inherent power to vacate an erroneous order, Muttiah v.Muttuswami (1 N. L. R. 25). Appellant was too ill to write to hisproctor. The case should be remitted to be proceeded with indue course.
Cur. a'dv. wit.
8th May, 1901. Lawrie, J.—
This action on a mortgage bond was brought as an- ordinarymoney suit, not under the chapter of the Code regarding mortgageactions.
The defendant did not appear and the Court ordered the case tobe put down for ex parte hearing. The plaintiff was absent andan extension of time was allowed, even then the plaintiff wasagain absent. The learned Judge dismissed the action.
TVo months afterwards the plaintiff filed an affidavit that hehad been continuously ill for some months and had been unableto attend Court on the days fixed for the ex parte hearing.
The judge does not say whether he considers the affidavitcredible or sufficient. He said he had no power to re-open hisdecree dismissing the action. Hence this appeal. As a rule, hehas power to .open or rescind his own orders made, not hi terpartes but ex parte, on being satisfied that the order- was made tothe prejudice of a party who was unable to attend in consequenceof illness or other circumstances over which he had no control.
Such power doubtless must be exercised with caution, and onlyon sufficient materials and within a reasonable time after the exparte decree or order was made.
I am inclined to the opinion that it was within the DistrictJudge's power to have rescinded the ex parte decree dismissingthe action, but whether he had that power or not, I think that inthe circumstances of this case the plaintiff may be allowedanother opportunity of adducing such ex parte proof as the judge-may think necessary.
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In the case of an action on a bond notarially attested, which is 1901.produced with the plaint and comes from the custody of the April 29 andcreditor, very little evidence is necessary, on the footing that thefacts stated in the affidavit are true. I would set aside both the Lawrie, J.refusal to re-open the decree and the decree itself, and I wouldremit- to the District Court for further proceedings scording tolaw.
Moncrbtff, J.—
I agree, on the footing that the facts stated in the-affidavit are true.
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