COURT OF APPEALWEERASURIYA, J.
D.C. KANDY 2235/REFEBRUARY 23, 2001MAY 4. 2000JUNE 22, 2000AUGUST 29. 2000
Civil Procedure Code – S.8514). S.86(2)(3) – Exparte Decree – Applicationto purge default – Application made before service of decree -maintainability – strict compliance with mandatory requirements.
Exparte Judgment was entered in favour of the Plaintiff Appellant and adirection was made to serve the copy of the decree on the DefendantRespondent. It was contended that there is no application before Court interms of S.86(2) read with S.86(9) as the Defendant Respondent herselfcontended that she did not place her signature on the proxy and the affidavit.The District Court held that, it is a mere technicality and permitted theDefendant Respondent to file answer.
(i) On the admission of the Defendant Respondent there was no validproxy and a valid affidavit. In the circumstances there has been nocompliance with the mandatory requirements stipulated in S.86(3).
Per Weerasuriya, J.
“It is manifest that the application to purge the default had been madeprior to the service of the decree. However, it would appear that therequirement for the party to make the application within 14 days ofthe service of the decree does not preclude the Defendant to make anapplication before service of the decree and for the Court to inquireinto such application after decree was served."
APPEAL from the Judgment of the District Court of Kandy.
Coomaraswamy v. Mariamma(Weerasuriya, J.)
Cases referred to :
1. Sally v. Mohamed – 66 NLR 175
S. F. A. Cooray with C. Llyanage for Plaintiff Appellant.Vtdura Gunaratne for Defendant Respondent.
Cur. adu. vult.
November 17. 2000.
WEERASURIYA, J.This appeal arises from the order of the District Judge dated17. 11. 1993, vacating the exparte decree entered against thedefendant – respondent and permitting him to proceed with hisdefence.
The facts leading upto this appeal are briefly as follows:
The plaintiff – appellant by his plaint dated 01. 11. 1989,instituted action against the defendant – respondent, seekinghis ejectment from the premises described in the schedule tothe plaint and damages.
The defendant – respondent failed to appear before theDistrict Court on 14. 02. 1990 and upon the report from theFiscal of the Central Province that summons had been servedon the defendant – respondent, learned District Judge fixed thecase for exparte trial against the defendant – respondent for16. 02. 1990. The case was taken up for exparte trial on16. 02. 1990 and at the conclusion of the evidence of the plaintiff- appellant, judgment was entered in his favour and in terms ofSection 85(4), direction was made to serve the copy of the decreeon the defendant – respondent.
On 14. 03. 1990, defendant – respondent made anapplication by way of petition and affidavit seeking to vacatethe exparte decree. This matter was supported on 21.03. 1990and the plaintiff – appellant was directed to file objections on27. 04. 1990. Meanwhile, as evident from journal entry dated15. 05. 1990, Fiscal Kandy reported that a copy of the exparte
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decree was served on the defendant – respondent. On theapplication of the defendant – respondent, case was called on31. 05. 1990 and the plaintifT – appellant was directed to tenderobjections on 27. 06. 1990. In terms of journal entry No. 12dated 27. 06. 1990 upon the Tiling of objections, inquiry wasfixed for 20.08. 1990. Thereafter, at the conclusion of the inquiryon 18. 12. 1991, the impugned order was made allowing theapplication of the defendant – respondent.
At the hearing of this appeal, learned Counsel appearingfor the plaintiff – appellant contended that the defendant -respondent has failed to make an application under Section86(2) read with Section 86(3) of the Civil Procedure Codeseeking to set aside the exparte decree.
The contention that there is no application before Court interms of Section 86(2) read with Section 86(3) of the CivilProcedure Code was solely dependent on the evidence of thedefendant – respondent that her signature did not appear onthe proxy and the affidavit. The defendant – respondent whilstgiving evidence having being shown the proxy, stated that hersignature does not appear on the proxy. This position was furthercomplicated when she stated that signature appearing on theaffidavit is not her signature. It was her position that she hadnever gone before a Justice of Peace to sign an affidavit.
Therefore, the question arises whether the learned DistrictJudge could disregard this lapse of the defendant – respondentby describing it as a mere technicality and gloss over itssignificance. It would appear to be a non – compliance with amandatory requirement relating to the invocation of jurisdictionof the District Court to deal with the application of the defendant- respondent.
Section 86(2) of the Civil Procedure Code reads as follows:
"Where, within fourteen days of the service of the decreeentered against him for default, the defendant with noticeto the plaintiff makes application to and thereafter
Coomaraswamy o. Mariamma(Weerasuriya, J.)
satisfies court, that he had reasonable grounds for suchdefault, the court shall set aside theJudgment and decreeand permit the defendant to proceed with his defence asfrom the stage of default upon such terms as to costs orotherwise as to the court shall appear proper"
Section 86(3) reads as follows: .
"Every application under this section shall be made bypetition supported by affidavit."
The defendant – respondent on being shown the proxy andthe affidavit specifically stated that her signature does not appearon the proxy and the affidavit and that she had never gone beforea Justice of Peace to sign the affidavit.
Therefore, on the admission of the defendant – respondentthere was no valid proxy and a valid affidavit before the DistrictJudge. In the circumstances, there had been no compliancewith the mandatory requirement stipulated in Section 86(3) ofthe Civil Procedure Code.
The contention that there was no valid application beforethe District Judge was based on the ground that, the defendant- respondent has made the application seeking to vacate theexparte decree before the service of the decree.
In Sally v. Mohamed'11 it was held that where a case is fixedfor exparte trial in terms of Section 85 of the Civil ProcedureCode, the reasons for the default of the defendant cannot beconsidered by Court before the exparte tried is held.
It is manifest that the application to purge the default byway of petition and affidavit had been made prior to the serviceof the decree. However, it would appear that the requirementfor the party to make an application within 14 days of the serviceof the decree does not preclude the defendant to make anapplication before service of the decree and for the Court toinquire into such application after decree was served.
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However, inasmuch as the defendant – respondent has failedto comply with the imperative provisions of Section 86(3) of theCivil Procedure Code, the application for relief must necessarilyfail.
For the foregoing reasons, the order of the District Judgedated 17. 11. 1993 is set aside and this appeal is allowed withcosts.
DISSANAYAKE, J. – I agree.