DIAS J.—CheUiah V. Aron.
1948Present: Dias and Basnayake JJ.
CHELLIAH, Appellant, and ARON, Respondent.
S. C. 26—D. C. Colombo, 6,864jS
Civil Procedure Code, Chapter 53—Action on promissory note—Summary procedure—Defendant's affidavits—Leave to appear and defend unconditionally—Fixedfor inquiry—Defendant absent—Judgment for plaintiff.
Plaintiff sued defendant under Chapter 53 of the Civil Procedure Code andaffidavit was filed by defendant’s-brother on defendant’s behalf asking forleave to appear and defend unconditionally. The matter was fixed for inquirybut on that date the defendant was absent and his proctor asked for a post-ponement. The judge refused a postponement and entered judgment for theplaintiff.
Held, that the order entering judgment for the plaintiff was wrong.' TheJudge should have, in spite of the defendant’s absence, inquired into hisapplication for leave to defend on the affidavit before him.
■ -A.PPE.AL from a judgment of the District Judge, Colombo.
C. Renganathcm, for the defendant, appellant.
P.Navaratnarajah, for the plaintiff, respondent.
Cur. adv. vuU.
February 23, 1948. Dias J.—
The plaintiff-respondent sued the defendant-appellant in summaryprocedure to recover a sum of Rs. 1,005-50 alleged to be the balanceprincipal and interest due on a promissory note given by the defendant.
DIAS J.—ChtUiah v. Aron.
The Court ordered summons to issue under Chapter L11I of the CivilProcedure Code and directed the defendant to appear within ten daysfrom the date of the service of the summons. The summons was servedon the defendant at Talaimannar on June 25, 1946. Therefore the tendays allowed to the defendant would expire on July 4, 1946.
On July 1, 1946, that is to say before the time allowed to the defendanthad expired, the case was called in Court as the Fiscal had reportedthat summons had been served. As the time had not expired, theCourt ordered the case to be called on July 8, 1946, which probablywas the next date when the roll of summary cases would be called beforethe District Judge.
On that day the defendant’s proctor filed his proxy and a motion.The motion asks for two weeks time in which to file the defendant’saffidavit to appear and defend the action unconditionally. It waspointed out that the summons had been served on the defendant atTalaimannar where the defendant was then residing. This appears tobe an ex parte motion. There is nothing on the record to show thatit was made with notice to the plaintiff, or that the plaintiff in any wayacquiesced in it. The learned Judge made order calling for the defendant’saffidavit on July 22.
On July 22 an affidavit was filed, not from the defendant but whichwas sworn by his brother V. Sithambaranpillai. The Judge then madeorder fixing the matter for inquiry on August 20, 1946.
What was it that was fixed for inquiry? Obviously, it was defendant’sclaim to appear and defend this action unconditionally after the Judgehad studied the plaintiff’s affidavit and the affidavit filed on behalf ofthe defendant, and after hearing what the legal advisers of the partieshad to urge. This being a proceeding in summary procedure and onaffidavit evidence, there was no necessity whatever for the presence ofthe defendant who had filed no affidavit at that inquiry.
The journal entry dated August 20, 1946, reads as follows :—
“ Defendant is absent. His proctor tenders telegram which doesnot disclose any reason. Mr. Sivaprakasam (the proctor, for theplaintiff) objects to a postponement. I refuse a postponement.Judgment for plaintiff as prayed for.”
The telegram was from defendant from Talaimannar which reads:—“ Extend date. Unable to send affidavit today. Will post tomorrow. ’It is, therefore, obvious, that although the defendant’s proctor wellknew that there was no necessity for the defendant to be present or tofile an affidavit, and that the case had been specially fixed for inquiryon that day for a consideration of the affidavit which had been alreadyfiled, he moved for a date. In my opinion, in making that applicationfor another date, he acted wrongly.
The learned District Judge who made the 'order dismissing thedefendant’s action was not the same Judge who had made the earlierorders in the case. It may be that in the hurly burly of the motionroll in a busy Court, the learned Judge failed to note that the case hadbeen fixed for the consideration of the affidavit evidence which was
DIAS J.—CheUiah v. Aron.
already before him, and that in spite of the application of the defendant’sproctor for a date there was no necessity to postpone the considerationand decision of a simple matter, i.e., whether the defendant was to beallowed to defend the action unconditionally, or whether he was to beput on terms—see the observations of Garvin A. C. J. in Ramanalhcmv. Fernando.1
This is not a case where, because the defendant’s proctor by refusingto participate in the inquiry, it was impossible for the Judge to actotherwise than but give judgment against the defendant. All thematerial which the defendant relied on in support of bis claim to appearand defend unconditionally was before the Court. If the affidavitfiled for the defendant disclosed a good defence, it was the duty of theCourt to give him unconditional leave to defend the action. On theother hand, if there was something in the papers before him to throw adoubt on the bona fides of the defendant, he would not give judgmentfor the plaintiff, but allow the defendant to defend on terms, eg., ongiving security, or on bringing into Court the sum claimed or some portionthereof.
I do not think the defendant is debarred from relief because he didnot obtain leave to defend on or before July 4, 1946. In the first place,that was not the ground on which judgment was entered against thedefendant. In the second place, the authorities show that even incases where the defendant appeared before the Court after the timelimit fixed but before decree was entered, it is open to the Court to considerhis application for leave to appear and defend—see Arunasalam Chettyv.Assena Marikar2 ; Davits and Co. v. Mathes Per era3; UlajanalhanChetly v. Vavassa4 ; Muttiah Chetty v. Arumugam 5 ; Meyappa Chettyv. Kretser 6 ; Silva v Ludvis 7. In the third place, when the case was calledin Court on July 1, 1946, the time limit had not expired. The DistrictJudge directed the case to be called on July 8, and on that day thedefendant’s proctor filed proxy and asked for time, giving as his reasonthat his client was in a distant place. This application was allowedfor July 22, and on that day the proctor filed the affidavit on which thedefence relied. There is nothing to show that the proctor for the plaintifftook any steps to bring to the notice of the Court that the defendant wasout of time. I think it is too late at this stage for the plaintiff to urgethat the defendant being out of time, that, therefore, the order of theDistrict Judge is right.
In my opinion the order appealed against should be set aside and thecase sent back to the District Court to enable the Judge to hold theinquiry which was ordered on July 22, 1946, i.e., whether on the materialbefore the Court the defendant should be allowed to appear and defendthis action unconditionally or on terms. As it was the act of thedefendant’s proctor in asking for an unnecessary postponement whichcaused all this trouble, I agree to the order of my brother Basnayakein regard to costs.
1 (1930) 31 N. li. R. at p. 498.4(1897) 3 N. L. R. at p. 53.
* (1901) 2 Browne 295.1(1903) 6 N. L. R. at p. 305.
» (1899) 2 Browne 297.6(1915) 3 B. N. C. 28.
’ (1920) 7 C. W. R. 186.
BASNAYABZE J.—Fernando v. Samarasekere
The facts of this case are stated in the judgment of my brother Dias.On August 20, 1946, the learned District Judge should, after he refusedthe application for a postponement, have considered the motion andaffidavit filed by the defendants Proctor on July 22, 1946, and givenhis decision thereon.
I agree that the order appealed against should be set aside and thecase sent back for consideration for the defendants’ application forleave to appear and defend and for any further proceedings that maybe necessary thereafter.
This action was instituted on April 9,1946, under Chapter Liil of
the Civil Procedure Code, which is designed for the speedy adjudicationof the class of claims specified in section 703 of that Code. Summonswas served on the defendant on June 25, 1946, but even on August 20,1946, he was unable to furnish his affidavit. After nearly three monthsthe action is still at the initial stages. The defendant’s lack of diligenceis responsible for the delay.
I wish to mark my disapproval of the tardiness by ordering that theappellant do pay the respondent the costs of this appeal and the costsof the proceedings on August 20, 1946, in the District Court.