048-SLLR-SLLR-2005-V-3-CHANDRASENA-vs.-MALKANTHI.pdf
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CHANDRASENAvs
MALKANTHICOURT OF APPEAL.
SOMAWANSA, J. (P/CA).
WIMALACHANDRA, J.
CA 1300/2004 (REV).
DC MT. LAVINIA2711/D.
AUGUST 1,2005.
Civil Procedure Code, sections 59(1), 60(1), 61 and 839 — Summons to beissued by registered post — Is it mandatory ? – Summons served throughfiscal — Non appearance — Ex-parte — Purpose of issuing summons ?-Affidavitof fiscal — Is it sufficient evidence of service of summons ? – Prima facieevidence of the fact that summons was served ?
The plaintiff respondent petitioner instituted action against the defendantpetitioner respondent and, summons being served by the fiscal the respondentfailed to appear and, trial was taken ex-parte. Subsequently the decree nisiwas made absolute. The defendant respondent filed papers under section839 alleging that neither the summons nor the decree was served on her, andsought to set aside all proceedings. The District Judge allowed the application.The plaintiff petitioner moved in Revision. The defendent respondent contendedthat Court-had not-complied with the mandatory provisions of S 59(1).
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Chandrasena vs Malkanthi (Andrew Somawansa, J.(P/CA))
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HELD:
Per Somawansa, J. (P/CA):
“Service of summons through the fiscal personally is certainly the bettermode of service whereby the Court could be satisfied that summons/decree isserved on the defendant”.
The affidavit of the fiscal could establish this fact and the court couldthen safely act on this evidence on an affidavit.
The affidavit tendered by the fiscal in proof of service would bring in theprovisions contained in section 61 for it is provided that an affidavit ofsuch service shall be sufficient evidence of service of summons, andof the date of such service and shall be admissible in evidence and thestatement contained therein shall be deemed to be correct unless anduntil the contrary is proved.
Held further:
It is incumbent on the respondent to lead evidence in order to controvertand contradict the affidavit, the affidavit is prima facie evidence of thefact that summons was duly served.
The respondent had waived her right to place evidence to disprove theprima facie evidence of the fiscal's affidavit.
As there was no material placed before the District Judge to establish• that summons/decree was not served on the respondent, the District
Judge could not have allowed the application of the defendant-respondent-respondent.
“The order shocks the Conscience of Court’’
APPLICATION in revision from an order of the District Court of Mt. Lavinia.
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Cases referred to:
Babun Nona vs. Ariyasena — 58 L 575
Wimalawathie and Others vs. Thotamuna and Others 1998 3 Sri LR 1
Resmi Wimalaratne with Sarath Weerakone for plaintiff — respondent -petitioner.
Asoka Serasinghe for defendant-petitioner-respondent.
Cur.adv.vult.
November 03,2005.
ANDREW SOMAWANSA, J. (P/CA)This is an application in revision to revise and set aside the order of thelearned District Judge of Mt. Lavinia dated 19.04.2004 and all consequentialorders thereto and for a direction to the learned District Judge to hold aproper inquiry with regard to the application made by the defendant-petitioner-respondent and make an order thereon and to restore the plaintiff-petitioner to the status prior to the said order.
When the matter was taken up for hearing both parties agreed to tenderwritten submissions and accordingly both parties have tendered their writtensubmissions.
Before I consider the submission made by parties it would be interestingto consider the sequence of events that took place in the original Court.The plaintiff-respondent-petitioner (hereinafter referred to as the petitioner)instituted the instant action against the defendant-petitioner-respondent(hereinafter referred to as the respondent) and summons being served bythe Fiscal the respondent failed to appear in Court and the trial was takenup ex-parte and the decree nisi was also served on the respondent by theFiscal. As the respondent did not take any step to purge the default thedecree nisi was made absolute.
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The respondent filed papers in the District Court alleging that neitherthe summons nor the decree nisi was served on her at any time andmoved Court in terms of section 839 of the Civil Procedure Code to exerciseits inherent powers and to set aside all proceedings had. Both partieshaving agreed, tendered written submissions at the inquiry and the learnedDistrict Judge by her order dated 19.04.2004 allowed the application of therespondent. I am at a loss as to how the learned District Judge arrived atthis finding without any evidence placed before her and in view of theaffidavit filed of record affirmed by the Fiscal establishing that both summonsand the ex-parte decree was served on the respondent.
It is the contention of counsel for the petitioner that compliance with theprovisions contained in section 59(1) is mandatory and that in the instantaction summons have been issued through the Fiscal. However he submitsthat before summons could be issued through the Fiscal it is imperativethat in terms of section 60(1) summons should be served in compliancewith section 59(1) by registered post.
Section 59(1) of the Civil Procedure Code reads as follows:
“59(1) Summons shall ordinarily be served by registered post"
In the case of Babun Nona vs. Ariyasenari) it was held :
“The provisions of section 59 of the Civil Procedure Code regardingservice of summons on a defendant are imperative and can be satisfied .only if the summons is delivered or tendered to the defendant personally."
In this respect it is also useful to consider the provisions contained inSection 60(1) and Section 61 of the Civil Procedure Code which reads asfollows:
“60(1) the court shall, where it is reported that summons could not beeffected by registered post or where the summons having been served andthe defendant fails to appear, direct that such summons be served personally
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on the defendant by delivering or tendering to him the said summonsthrough the Fiscal or the Grama Niladhari within whose division thedefendant resides or in any case where the plaintiff is a lending institutionwithin the meaning the Debt Recovery (Special Provisions) Act No. 2 of1990, through the Fiscal or other officer authorized by court, accompaniedby a precept in form No. 17 of the First Schedule. In the case of acorporation summons may be served personally by delivering or tenderingit to the secretary or like officer or a director or the person in-charge of theprincipal place of business of such corporation”.
“61. “When a summons is served by registered post, the advice ofdelivery issued under the Inland Post Rules, and the endorsement ofservice, if any, and where the summons is served in any other manner, anaffidavit of such service shall be sufficient evidence of the service of thesummons and of the date of such service, and shall be admissible inevidence and the statements contained therein shall be deemed to becorrect unless and until the contrary is proved”.
In the instant application objection is taken by the respondent that theCourt has not complied with the mandatory provisions of section 59(1) byissuing summons by registered post. In this regard one should not forgetthe fact that the main or only purpose of issuing summons to be served onthe defendant is to inform the defendant or make the defendant aware thatan action has been instituted against the defendant and if the defendantso desires to appear and defend the action instituted against him. Myconsidered view is that what was intended by the legislature in service ofsummons was to make aware or give notice of the action instituted againstthe defendant which is the essence of issuing summons either by registeredpost, through the Fiscal or the Grama Niladari or even the Police.
It appears that it is to this end that the provisions in section 60( 1) of theCivil Procedure Code has been brought in. In the light of the provisionscontained in section 60(1) service of summons through the Fiscal personallyis certainly the better mode of service whereby the Court could besatisfied that summons or the decree is served on the defendant forthe affidavit of the Fjscal establish this fact and the Court could safely act on
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this evidence on a affidavit. If the defendant canvasses this evidence thenthe burden is on the defendant to establish the contrary by disproving theaffidavit filed by the Fiscal, an officer of Court.
It is to be noted that the affidavits tendered by the Fiscal in proof ofservice of summons as well as the decree would bring in the provisionscontained in section 61 of the Civil Procedure Code for it is provided in thesaid section that an affidavit of such service shall be sufficient evidence ofthe service of summons and of the date of such service and shall beadmissible in evidence and the statement contained therein shall be deemedto be correct unless and until the contrary is proved. Accordingly if therespondent wishes to contradict the facts stated in those affidavits, it isincumbent on the respondent to lead evidence in order to controvert and orcontradict the affidavit. In the inquiry held by the learned District Judge noevidence whatsoever was led to establish non service of summons or.decree. In this respect I would refer to the decision in Wimalawathie andOthers vs. Thotamune and Others2 where it was held :
“ii. The affidavit of the process server is prima facie evidence of the factthat summons was duly served and there is a presumption that summonswere duly served.
Accordingly the burden shifts onto the defendants-petitioners to provethat summons was not served.
The defendant-petitioners have to begin leading evidence and oncethe defendants-petitioners lead evidence to prove that summons had notbeen served on them and establish that fact, the burden shifts back on tothe plaintiffs to rebut such evidence:
This can be done by calling the process server.
What has to be decided by court essentially is a question of fact”.
It appears that the respondent had waived her right to place evidence
before Court to disprove the prime facie evidence of the Fiscal’s affidavit.
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I would say the affidavit of the Fiscal filed of record is a stumbling blockto the objection taken by the respondent and there is no material whatsoeverplaced before the learned District Judge to establish that summons or thedecree was not served on the respondent. As stated above, I am at a lossas to how the learned District Judge arrived at her decision purely on thewritten submissions tendered by the respondent and I would say the ordermade by the learned District Judge is per se erroneous.
In view of the aforesaid circumstances I would hold that exceptionalcircumstances do exist for the petitioner to invoke the extraordinaryjurisdiction of this Court. Accordingly I have no hesitation in exercising theextraordinary jurisdiction of revision, for the order challenged has occasioneda failure of justice and is manifestly erroneous which goes beyond anyerror or defect or irregularity. I would say the order complained of is ofsuch a nature which shocks the conscience of this Court.
While allowing the revisionary application of the petitioner with costsfixed at Rs. 20,0001 set aside the order of the learned District Judge dated
19.04.2004.
WIMALACHANDRA, J. — / agree.
Application allowed.
Accordingly there was no evidence before the learned District Judge toreject the two affidavits. This is demonstrated by her observations in herorder which reads as follows :