104-NLR-NLR-V-19-CASSIM-v.-ABDEEN.pdf
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Present: De Sampayo J.
CASSIM t>. ABDEEN.
418—C. R. Hambantota, 3,314.
■ Court of Request*—Answer not filed on due date—Defendant present inCovert and not stating his answer viv& voce—Power of Court toenter judgment without palling upon plaintiff to lead evidence.
Where in an action in the Court of Bequests to recover moneythe defendant did not on the due date file answer, or though presentin Court did not state his answer oivd voce when called upon by theCourt to do so,—
Held, that the Commissioner had power to enter judgment forplaintiff without calling upon plaintiff to lead evidence to supportbis case. The provisions of section 85 of the Civil Procedure Codefas to ex parte trialand decreenisi)do not applyto Courts of
Bequests.
rjlHE facts are set out in the judgment.
Bartholomeusz, for defendant, appellant.—Default in filing answeris not the same as default in appearance. The special rulesapplicable to Court of Bequests trials do not make provision fora default in filing answer. The Commissioner should have takenevidence in support of plaintiff’scaseand entereddecree nisi
under section 85 of the Civil Procedure Code.
f
P. M. Jayawardene, for plaintiff, respondent.—Section 85 ot theCivil Procedure Codedoes notapplyto trials inthe Court
of Bequests. Evidenceshould hecalled only if thecase is one-
conoerning title to land, or if such evidence is necessary in theopinion of the Court. The action was one to recover money. "
December 19, 1916. De Sampayo J.—
This appeal raises an important point of practice in the Court ofBequests. The plaintiff sued the defendant to recover a sum ofmoney. The defendant appeared to the summons and obtained timoto file answer till October 28, 1916. On this day the defendantapplied for further time, as he had retained a proctor of Matara,and wanted to file answer through the proctor. The plaintiffobjected to further time being granted. Thereupon the Commis-sioner disallowed the application, and called upon the defendant tofile a written answer that day or to- state his answer vivd voce to>
1916.'
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1916.
JDb SampayoJ.
Caaaim v.Abdeen
the Court. But the defendant refused to adopt either course, andthe Commissioner had no alternative hut to enter judgment for theplaintiff as prayed.
It is objected that the Commissioner had no right to enter judgmentwithout evidence in proof of plaintiff’s claim. Mr. Bartholomeusz,for the defendant-appellant, went further, and contended that, evenif such evidence were taken ex parte, the Court could only entera decree nisi as provided by section 80 of the Civil ProcedureCode. But the Ordinance No. 12 of 1895 expressly declares thatsection 85 of the Civil Procedure Code shall not apply to Courts ofRequests. In my opinion this can only mean that the requirementsof section 85 with regard to ex parte trial as well as decree nisi neednot and should not be allowed. The Code, as amended by OrdinanceNo. 12 of 1895, appears to me to provide for summary and speedydisposal of actions in the Court of Requests, and, in case of defaultof defendant in appearing or filing answer, to dispense with anyevidence in verification of the plaintiff's claim, except where title toland is concerned, or where, in the discretion of the Court, suchverification is considered necessary. In this case the Commissionerdid not advise himself that the plaintiff should be called upon toestablish a primd facte case, and I think it was within his power toenter judgment forthwith. This opinion is somewhat in conflictwith th.e‘ decision in Mohandirima v. Ulcku Mentka, 329—C.R. Randy,
1where Ennis J. in a similar case thought that, as there wasno special rule applicable to default in filing answer as distinguishedfrom default in appearance, the defendant should be deemed to havedenied the claim, and the plaintiff required to establish a piimd faciecase. With great respect, I am unable to assent to this proposition,but in any event that case is distinguishable, inasmuch as in thepresent case the Commissioner offered to take down from thedefendant’s mouth his defence, whatever it might be, and as thedefendant refused to state anything, I cannot see that he- canreasonably be deemed to have denied the plaintiff’s claim.
The appeal is dismissed, with costs.
Appeal dismissed. i
i S. C. Min., Oct. 13, 1916.