105-NLR-NLR-V-74-D.-K.-RANASINGHE-Appellant-and-N.-A.-ALGIN-and-another-Respondents.pdf
440
Ranasinghe u. Algin
Present : Sirlmana, J., and Samsrawickrama, J.K. RANASINGHE, Appellant, and N. A. ALGIN and another,
Respondents
S. O. 49/69 (Inly)—D- C. Badulla, 429S/B
Civil procedure—Postponement—Application for postponement on behalf of a partyon basis of a medical certificate—Finding by Court on a subsequent date that themedical certificate u;as not genuine—Whether order for ex parte trial may bemade.
Whore, when a coso comes up for trial, the defendant is absent and hisProctor tandem a medical cortificato about the defendant’s illness and appliesfor a postponement, but there is no agreement as to what should take placoif it is found at somo futuro date that the medical certificate is not genuino,an order for ex parte trial should not bo made if it is found on a subsequentdate that tho medical cortificato was not genuine.
SIRIMANE, J.—Jianasinghe V. Algin
44T
Appeal from an order of the District Court, Badulla.
Bala Nadarajah, with K. K. Palhmanalhan, for the 1st defendant-appellant.
Nimal Senanayake, with Miss S. M. Senaralne, for the plaintiff-respondent.
2nd defendant-respondent unrepresented.
September 10, 1971. Sibimanb, J.—
This was a divorce case in which the plaintiff (who is the husband),,sued his wife, the 1st defendant-appellant, for a divorce on the ground ofadultery.
After several dates, when tho case came up for trial on tho 3rdof October, 196S, tho 1st defendant was absent and her Proctor movedfor a date tendering a medical certificate from an Ayurvedic Physician.He did not say that in the event of his application being refused he woiddbo unable to carry on with whatever evidence he had, or that ho was notappearing.
When the genuineness of the medical certificate was challenged, theCourt issued a commission to the J. M. O. to examine the 1st defendant.Such a step is really effective only if the J. M. O.’s finding can be ascer-tained on the very same day. There was no agreement as to what shouldtake placo if it was found at some future date that the medical certificatewas in fact a frivolous one.
Tho learned District Judgo having issued this commission, held aninquiry on the 13th of November, 1968, and by his Order dated 20thNovember, 19GS, held that the medical certificate tendered by the 1stdefendant was not a genuine one. He then fixed the case for ex partetrial.
In the circumstances of this case wo are unable to say that tho 1stdefendant agreed either expressly or by implication to her defencebeing struck off in the event of her application for a postponement beingrefused. Wo set aside tho Order setting down the case for ex parle trial.Tho case can now be fixed for trial on a date as early as possiblo, as thisis a very old case.
The order for costs made in favour of tho plaintiff on the 20th ofNovember, 1968 will stand.
There will be no costs of this appeal.
Saaierawickbaiie, J.—I agroo.
Order set- aside.