Chandrawathie v. Dharmaratne and Another
(Shirani A. Bandaranayake, J.)
The next matter to be considered is whether the affidavit of theregistered attorney that was filed with the petition, satisfies the re-quirements of section 87 (3). Learned President's Counsel for theappellant contended that a valid affidavit of the plaintiff in support ofthe averments of the petition is an essential component of an ap-plication under section 87 (3) and that the affidavit of the registeredattorney does not satisfy this requirement.
I am in agreement with the learned President's Counsel for theappellant that the affidavit filed by the 1st respondent is not in bocompliance with sections 168 and 438 of the Civil Procedure Code.However, I am unable to agree with the learned President’s Counselthat the affidavit filed by the registered attorney of the 1st respondentcannot be considered in terms of section 87 (3) of the Civil ProcedureCode.
Section 87 (3) provides for the Court to consider setting aside adismissal due to the non-appearance of the plaintiff. For this purpose,the plaintiff would have to satisfy the Court that there were reasonablegrounds for his non-appearance in Court. The process for invokingthe jurisdiction of this Court in this regard is by way of petition 90supported with affidavit. Although it is mandatory that the plaintiff mustmake his application by way of petition supported by affidavit, section87 (3) does not specify that the affidavit must be that of the plaintiff.
The only requirement according to section 87 (3) is that there shouldbe an affidavit which supports the petition of the plaintiff, in order toset aside the dismissal.
Section 181 of the Civil Procedure Code, refers to the kind ofstatements that an affidavit can contain, which is in the following terms:
"Affidavits shall be confined to the statements of such facts asthe declarant is able of his knowledge and observation to testify 100to, except on interlocutory applications in which statements of hisbelief may be admitted, provided that reasonable grounds for suchbelief be set forth in the affidavit."
Sri Lanka Law Reports
[2002] 1 Sri L.R.
Section 181 is specific that the affidavit must contain statementsof such facts which the declarant is able to testify of his ownknowledge and observations. In Simeon Fernando v. Goonesekersi1)it was held that,
. . an affidavit must be confined to a statement of suchfacts as the declarant is able of his own knowledge andobservations to testify to."110
A similar view has been taken in Samarakoon v. Ponniah® andKanagasabai v. Kirupamoorth/3).
The only exception to this provision is with regard to interlocutoryapplications in which section 181 provides that statements of thedeclarant's belief must be set forth in the affidavit. This position wasconfirmed in Damayanthi Abeywardene and another v. HemalathaAbeywardene and otherdA) where it was held by S. N. Silva J., (ashe then was) in the following terms (at page 278):
"The rule in section 181 which confines an affidavit to 'a state-ment of such facts as the declarant is able of his own knowledge 120and observation to testify to' is intended to restrict the contentsof affidavits to direct evidence as prescribed in section 60 of theEvidence Ordinance. By necessary implication it excludes hearsayfrom such affidavits. The only exception is that in interlocutoryapplications a statement of what is believed, as to the relevantfacts, may be included. This exception is subject to a provisothat reasonable grounds for such belief should also be set forthin the affidavit”.
The rule in section 181 of the Civil Procedure Code,' therefore,is that the affidavit should contain only direct evidence. Referring to 130the kind of direct evidence that is expected in an affidavit under section181 of the Civil Procedure Code, S. N. Silva J., (as he then was)said in Damayanthi Abeywardene and another v. HemalathaAbeywardene and others (supra, at page 279):
Chandrawathie v. Dharmaratne and Another
(Shirani A. Bandaranayake, J.)
“That is, a statement of such facts as the declarant is ableof his own knowledge and obervations to testify to, in relationto the matters set out or alleged in the petition."
The 1st respondent's action was dismissed on 01. 03. 1989, andon 03. 03. 1989, the 1st respondent filed a petition informing the Courtof the circumstances relevant to the default. He stated that when the 140case came up for trial previously on 03.10.1988, he had not attendedCourt as he was indisposed. His registered attorney, who was presentin Court on that day, had taken down the next date as 03. 03. 1989and informed the 1st respondent accordingly. On 03. 03. 1989, the1st respondent came to know that his case was fixed for trial noton 03. 03. 1989, but on 01. 03. 1989.
In these circumstances, it is clear that the facts relevant to thedefault were within the knowledge of the registered attorney and notof the 1st respondent. The wrong date was taken by the registeredattorney on 03.10. 1988 and it is not disputed that the 1st respondent isowas not in Court on that day. In such a situation, the 1st respondentcannot testify to these matters of his own knowledge and observationas required by section 181. The affidavit of the registered attorneyshould therefore be considered sufficient to explain the facts relevantto the default.
For the aforementioned reasons, I dismiss the appeal and affirmthe judgment of the Court of Appeal.
There will be no costs.
S. N. SILVA, CJ. – I agree.YAPA, J. – I agree.
Appeal dismissed.