025-SLLR-SLLR-1993-2-DE-MEL-v.-NETTASINGHE.pdf
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[1993] 2 Sri LR.
DE MELv.
NETTASINGHE
SUPREME COURT.
AMERASINGHE, J.
PERERA, J. ANDWIJETUNGE, J.
S.C. APPEAL NO. 68/92.
A. APPEAL NO. 1232/86.
C. GAMPAHA – 27299/LJULY 08, 1993.
Landlord and tenant – Service of summons on being pointed out – Requirementof affidavit of proof of service – Civil Procedure Code ss. 55 and 60.
Although there is no provision in the Civil Procedure Code making this imperative,where summons is served on a party on his being pointed out it is a salutarypractice that an affidavit should be filed verifying the service so as to make thealleged service valid in law.
Cases referred to :
Babun Nona v. Ariyasena 58 NLR 575.
Mohottihamy v. Podisinno 7 CWR 17.
APPEAL from the judgment of the Court of Appeal.
A. A. de Silva with R. L Goonewardena for plaintiff – petitioner – appellant.
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De Mel v. Nettasinghe (Fernando, J.)
333
D. H. Siriwardena for defendant – respondent respondent
Cur. adv. vult.
September 02, 1993.
PERERA J.
The Plaintiff – Petitioner – Appellant (herein after referred to as thePlaintiff – Appellant) instituted action in the District Court of Gampahaon 19.11.84 for ejectment of the Defendent – Respondent – Respond-ent (hereinafter referred to as the Defendent – Respondent) and forrecovery of arrears of rent in respect of premises No 267, GanemoliMawatha, Mabole, Kadawatha. Summons was issued on the Defendentreturnable on 23.05.85. According to the journal entry dated 17.05.85the Fiscal has reported to court that summons were served on theDefendent on his being pointed out by the Plaintiff. On the summonsreturnable date the Defendent – Respondent was absent and unrep-resented and the learned District Judge fixed the case for Ex – Partetrial on 21.07.85. The Ex-Parte trial was held on 21.07.85 at whichthe evidence of the Plaintiff – Appellant was recorded and the learnedtrial judge entered judgement ex parte for the Plaintiff – Appellantas prayed for in the plaint. (Vide 'D‘) There after the fiscal reportedto court that the decree was served on the Defendent – Respondent.Writ of execution was then obtained and the same was executedon 08.04.86 and vacant possession was handed over to the Plaintiff- Appellant.
In the meantime the Defendent – Respondent filed proxy, petitionand affidavit on 25.04.86 with notice to the Plaintiff – Appellant andmoved that the same be called on 2nd May 1986 in open court forsupport.
On the 2nd May 1986 the Plaintiff – Appellant was not presentdue to illness. But both parties were represented by counsel. Legalsubmissions were made by both Counsel. It was the contention ofCounsel for the Defendent – Respondent that his client has filed anaffidavit stating inter alia that he had not been served with summonsin this case. Further that according to the journal entry of 17th May1985 the fiscal has reported to court that summons was served onthe Defendent – Respondent on his being pointed out to the fiscalby the Plaintiff – Appellant. Counsel invited the attention of the court
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to the fact that the Plaintiff – Appellant had failed to file an affidavitin support of this fact. In the circumstances Counsel moved that theEx-Parte judgement entered in the case be vacated as there wasno material to satisfy the court that summons had been duly servedon his client.
Counsel for the Plaintiff – Appellant however submitted that therewas no provision in law which warranted the filing of an affidavitverifying this fact by either the fiscal or by the Plaintiff as contendedfor by counsel for the Oefendent – Respondent.
Having heard the submissions of both counsel the learned DistrictJudge vacated the Ex-Parte judgement entered against the Defendent- Respondent dated 25.07.85. The District Judge held that as thePlaintiff had not filed an affidavit stating that he had pointed out theDefendent to the fiscal for the purpose of serving summons, thesummons had not been duly served on the Defendent – Respondent.
The Plaintiff – Appellant appealed against this order to the Courtof Appeal. The Court of Appeal dismissed the Plaintiff – Appellant'sappeal on 20.07.92. The present appeal is from that judgement ofthe Court of Appeal.
At the hearing of the present appeal learned Counsel for thePlaintiff – Appellant strenuously urged that there was no provision inthe Civil Procedure Code which required the Plaintiff to file affidavitin support, where service of summons had been effected by thefiscal on the Defendent on being pointed out by the Plaintiff. Counselinvited the attention of court to Section 55 (1) of the Civil ProcedureCode and submitted that this provision did not require the filing ofsuch an affidavit. It was his submission that the words in the sectiononly required the Fiscal to” cause the same to be duly served onthe Defendent or on each Defendent if more than one and
return the same and the execution there of to
the court duly verified by him".
Counsel also in support of his argument adverted to Form No :17 which was the form of precept to the fiscal to serve summons,and urged that the precept only required the fiscal to certify to courtin what manner he has executed the precept returning the summonsattached to his certificate as an exhibit. It was Counsel's submission
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De Mel v. Nettasinghe (Fernando, J.)
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therefore that there was no specific requirement in the Civil ProcedureCode for either the fiscal or the plaintiff to file such an affidavit.Counsel urged that the learned District Judge was therefore in errorwhen he set aside the Ex – Parte judgement on the ground that therehad been a failure on the part of the Plaintiff to file an affidavit tothe effect that he had pointed out the Defendent to the fiscal to enablethe latter to serve summons on him. It was Counsel's submissionthat the report of the Fiscal to court that summons had been served,sufficed to satisfy the court that summons had been duly servedon the Defendent.
Counsel for the Plaintiff – Appellant further submitted that thelearned District Judge had also misdirected himself when he vacatedthe Ex – Parte judgement on the notice returnable date without aninquiry and satisfying himself that the summons had not been dulyserved on the Defendent.
I have given careful consideration to Counsel's submissions andI agree that there is no specific provision in law which requires thefiling of an affidavit by a Plaintiff who claims to have pointed outa Defendent to the fiscal for the purpose of serving summons onhim. The court has however to be mindful of the fact that the objectiveof service of summons on a Defendent it to give notice to the partyon whom it is served of a pending suit against him, so that he mightbe aware of and be able to resist such suit, if he wishes so to do.The Court mu6t therefore be perfectly satisfied that summons hasbeen duly served on the Defendent. As in the instant case wheresummons has been served by the fiscal on a person unknown tohim but on being pointed out, it is imperative that the court shouldact with even a greater degree of care and caution. In the presentcase there was no proof whatsoever that the correct person had beenpointed out to the Fiscal for service of summons. In other words therewas no material before the court that summons had been servedon the Defendent-Respondent in person as required by Section 60of the Civil Procedure Code. In the circumstances the subsequentsteps taken in this case could not be justified on any legal basis.In Babun Nona v. Ariyasena (1) the Supreme Court has held that theprovisions of Section 60 of the Civil Procedure Code regarding serviceof summons on a Defendent are imperative and can be satisfied onlyif the summons is delivered or handed to the Defendent personally.
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In the case before us an affidavit has been filed by the Defendentstating inter alia that neither the summons nor the decree has beenserved on him. In his affidavit the Defendent -Respondent has setout several facts which lend credibility to this statement. In such asituation it is prudent, although there is no specific legal requirement,for the person who pointed out the Defendent to the fiscal, to filean affidavit identifying him as the correct person. In Mohottihamy v.Podisinno (2) De Sampayo J has observed that “the practice of thecourt is and ought to be that when a person is being served withsummons on being pointed out by a party there should be an affidavitverifying that fact, so as to make the alleged service valid in law".I am very much in agreement with this view expressed by DeSampayo J. and I hold that this is a very salutary practice whichmust necessarily be followed in such a situation in the interests ofjustice."
On the question raised by counsel in regard to the failure on thepart of the learned District Judge to hold an inquiry into this matterI wish to observe that Counsel who appeared for the Plaintiff -Appellant on 2nd May 1986 has not made any application to courtto fix this matter for inquiry but was content to make a legal sub-mission on which an order was made by the learned District Judge.Counsel merely made the submission that there was no requirementin law for the Plaintiff to file such an affidavit. Having regard to theuncontroverted material set out in the affidavit of the Defendent -Respondent, I am of the view that the failure on the paij of the DistrictJudge to hold an inquiry has in no way caused prejudice to the Plaintiff- Appellant.
There is thus no justification to interfere with the order of thelearned District Judge for the reasons set out above I affirm the orderof the Court of Appeal. The order of the District Judge dated 25.07.85vacating the ex parte judgement will therefore stand.
The appeal is dismissed with costs.
AMERASINGHE J – I agree
WIJETUNGA J – I agree
Appeal dismissed.