020-SLLR-SLLR-1996-1-DAVID-V.-CHOKSY.pdf
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DAVID
V.
CHOKSY
SUPEREME COURT.
G.P.SDE SILVA, C.J.
RAMANATHAN, J. ANDWADUGODAPITIYA, J.
S.C. APPEAL NO. 114/95 – C.A. 297/94.
D. C. COLOMBO 99951/M.
28 JUNE AND 18 JULY, 1996.
Civil Procedure – Application for leave to appeal notwithstanding lapse oftime under section 765 of the Civil Procedure Code – Notice of date ofdelivery of judgment – Duty of Court – Section 184 (1) of Civil ProcedureCode – Prevented by causes beyond control from complying with sections754 and 756 of Civil Procedure Code.
The duty imposed by section 184(1) of the Civil Procedure Code to pro-nounce judgment in open court either at once or on some future day, ofwhich notice is given to the parties or their attomeys-at-iaw is a mandatoryduty. The duty of pronouncing judgment according to law was on the courtitself. There is no duty cast on the party to ascertain for himself the nextdate of judgment if such date has not been fixed in open court. The dutycast on the court to ensure that notice of the date of delivery of judgment isin fact given to the parties or their attorneys-at law is all the greater whenthere is an inordinate delay of 2 years and 8 months. The case had notbeen called for a period of about 2 years. In circumstances such as theseit would not be easy for even the attorney-at-law to ascertain the actualdate of delivery of judgment. There was the further significant fact thatthere was a crucial difference between the certified copy of the journalentry No. 22 of 15.06.93 issued to the defendant on 28.4.94 and the certi-fied copy of the same journal entry issued to the plaintiff in March 1996. Inthe certified copy issued to the plaintiff there are the following additionalwords appearing in the margin on the left hand side, ’Notice issued on theparties 18.6°. These words do not appear in the certified copy issued to thedefendant. The copy of the notice was however in the record.
There was no proof that the date of delivery of the judgment was notifiedeither to the defendant or his attorney-at-law . The presumption arisingfrom section 114 of the Evidence Ordinance is a rebuttable presumption.
It could rightly be said that the defendant was prevented from causes be-
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yond his control from complying with the provisions of sections 754 and756 of the Code.
APPEAL from judgment of the Court of Appeal.
Kanag-lswaran P.C. with M.A. Sumanthiran for Defendant-Appellant.
Chula De Silva P.C. with M.Maharoof and T. Ratnayake for Plaintiff-Re-spondent.
Cur.adv.vult.
August 26, 1996.
P.S. DE SILVA, C.J.
The Defendant made an application under section 765 of the CivilProcedure Code to admit and entertain the petition of appeal from thedecree notwithstanding lapse of time. The application was refused bythe Court of Appeal on the ground that he failed to satisfy the Courtthat he "was prevented by causes not within his control" from comply-ing with the provisions of section 754 and 756 of the Code. Hence theappeal to this court by the Defendant. Leave to appeal was grantedonly on the following question :- "Has the Appellant satisfied the courtthat the delay in appealing was due to causes not within his controlwithin the meaning of section 765 of the Code."
Journal entry (J.E.) No. 20 of 19.10.90 shows that the parties ten-dered documents and written submissions and that delivery of judg-ment was fixed for 15.01.91. J.E. No. 21 of 8.03.91 states, ‘By a mis-take the case was not called on 15.01.91 for delivery of judgment.Judgment is not ready. Call on 29.05.91 for judgment. J.E. No. 22 of15.06.93 states that the case will be called on 30.07.93 to deliver judg-ment and "to notice parties for that date. 'At this point it is necessaryto note a crucial difference between the certified copy of the journalentry No.22 of 15.06.93 issued to the Defendant on 28.4.94 and thecertified copy of the same journal entry issued to the Plaintiff in March1996. In the certified copy issued to the Plaintiff these are the follow-ing additional words appearing in the margin on the left hand side "No-tice issued on the parties 18.6." The absence of these words in thecertified copy issued to the Defendant is of the utmost significance forthe purposes of the present appeal. The importance of this discrep-ancy will be referred to later in this judgment.
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To continue with the journal entries, J.E. No. 23 of 30.07.93 states“Issue notices on the Attorneys-at-Law for the plaintiff and defendantfor 10.8.93." J.E. No.24 dated 10.08.93 states "Plaintiff present, De-fendant absent, notice Defendant for 17.9.93. Notice to Defendant is-sued through Fiscal, Colombo.The judgment to be placed in the safe."The next J.E. No. 25 dated 17.09.93 states that judgment has beenpronounced.
The material part of section 184 (1) of the Civil Procedure Code
provides : "The Courtshall, pronounce judgment in open
court, either at once or on some future day, of which notice shall begiven to the parties or their proctors at the termination of the trial".There is no doubt that the provisions of section 184 of the Civil Proce-dure Code are mandatory. As stated by Atukorale, J., in Gunawardenav Ferdinandis(1) “They are so designed as to ensure that the partiesto an action receive due notice of the date of pronouncing judgment sothat they may avail themselves of the opportunity of exercising therights which the law confers on them on the judgment being pronounced."
The question that arises for decision on this appeal is whetherthere is any evidence to show that notice of the delivery of the judg-ment on 17.09.93 was given to the defendant or his attorney-at-law.Mr. Chula de Silva for the Plaintiff submitted that there is ample evi-dence to establish that the court has complied with section 184 (1) ofthe Civil Procedure Code. Mr. de Silva relied strongly on the marginalnote made in J.E. No. 22 of 15.06.93 which states, "notice issued tothe parties". Counsel also placed much reliance on the copy of thenotice sent by the Registrar of the District Court to the defendant dated
The copy of this notice remains in the record. Mr. de Silvaalso pointed out that the record does not show that the notice issuedon the defendant has been returned undelivered. In support of his con-tention, Counsel referred us to the presumption under section 114 ofthe Evidence Ordinance, namely that the court may presume that judi-cial and official acts have been regularly performed. Finally, Mr. deSilva stressed that there is no affidavit from the attorney-at-law for theDefendant stating that he was not served with notice.
On the other hand, Mr. Kanag-lsvaran urged that there is no proofthat notice of the date of delivery of judgment was despatched to or
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received by the defendant or his attorney-at-law. The defendant in hisaffidavit has denied the receipt of a notice informing him of the date ofdelivery of the judgment. The absence of an affidavit from the attor-ney-at-law of the Defendant is no doubt a point in favour of the plain-tiff.
In considering the rival contentions advanced on behalf of the par-ties, there is one salient and striking feature in this case, namely adelay of no less than 2 years and 8 months in delivering the judgment.Whatever may be the reason for this deplorable delay, it has an impor-tant bearing on the issue before us. As observed by Atukorale, J., inGunawardena v Ferdinandis {supra) "The duty of pronouncing judg-ment according to law was on the court itselfThere is in my
view no duty cast on a party to ascertain for himself the next date ofjudgment if such date has not been fixed in open court."The duty caston the court to ensure that notice of the date of delivery of judgment isin fact given to the parties or their attorneys-at-law is all the greaterwhen there is an inordinate delay of 2 years and 8 months. In circum-stances such as these, it would not be easy for even the attorney-at-law to ascertain the actual date of delivery of judgment. It would ap-pear that the case has not been called for a period of about 2 years.There is the further significant fact that there is a discrepancy in thecertified copies of J.E. No.22 dated 15.06.93 issued to the defendantand the plaintiff (and referred to above). In these circumstances I findmyself unable to take the view that notice has in fact been despatchedto the defendant despite the fact that a copy of notice remains in therecord. J.E.No. 23 of 30.7.93, where the court made order to issuenotice on the attorney-at-law for the Plaintiff and defendant rather sug-gests that the court itself was not satisfied that notice has gone out onthe defendant. The next date on which the case was called was 10.08.93and on this date the Plaintiff was present but not the Defendant. On ascrutiny of the material on record it seems to me that there is no proofthat the date of delivery of the judgment was notified either to theDefendant or his attorney-at-law. The presumption arising under sec-tion 114 of the Evidence Ordinance is of course a rebuttable presump-tion.
The position then is that the court failed in its duty to give noticeto the Defendant or his attorney-at-law of the date of delivery of judg-
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ment as required by section 184(1) of the Civil Procedure Code. In thisview of the matter it could rightly be said that the Defendant was "pre-vented from causes not within his control "from complying with theprovisions of section 754 and 756 of the Code. Thus the Court of Ap-peal was in error in taking the view that the Defendant has failed tosatisfy the court in regard to the condition set out in the first proviso tosection 765 of the Code.
For these reasons, the appeal is allowed, the judgment of the Courtof Appeal is set aside and the Court of Appeal is directed to "admitand entertain" the petition of appeal of the defendant and to take stepsaccording to law.
In all the circumstances I make no order as to costs of appeal.RAMANATHAN, J. -1 agree.
WADUGODAPITIYA, J. -1 agree.
Appeal allowed.