015-SLLR-SLLR-2003-1-DHARMASENA-AND-ANOTHER-v.-THE-PEOPLE-‘-S-BANK.pdf
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Sri Lanka Law Reports
[2003] 1 Sri L.R
DHARMASENA AND ANOTHER
v.THE PEOPLE'S BANK
SUPREME COURTFERNANDO, J.
WIGNESWARAN, J., ANDWEERASURIYA, J.
SC LA 10/2002
COMMERCIAL HIGH COURT (CIVIL)CASE No. 13/2002 (1)
11TH SEPTEMBER 2002
Civil Procedure Code – Section 84 of the Code – Failure to file proxy or enteran appearance on summons returnable date – Pre-requisites for ordering exparte trial – Natural justice.
The plaintiffs (“the petitioners”) filed action against the defendant (“the respon-dent”) on 1.2.2002. Notice of interim injunction was granted and summons wasissued returnable 5.4.2002. Summons was actually served on the defendant
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Dharmasena and Another v. People’s Bank, (Fernando, J.)123
only on 3.4.2002. On 5.4.2002 an attorney-at – law appearing on behalf of thedefendant stated that the proxy was not ready. The judge gave a date forproxy, objections and answer to be filed namely, on 10.5.2002. The plaintiffsraised no objection; nor applied for ex parte order on 5.4.2002.
On 29.4.2002 the plaintiffs moved for an order for ex parte trial on the groundthat the defendant failed to appear on 5.4.2002 and the defendant's attorney-at-law who was not duly authorized was not entitled to move for time. On10.5.2002 the judge refused that application.
Held:
There was proof that the defendant had been duly served with summons asrequired by section 84 of the Civil Procedure Code (“the Code”). Hence theorder granting time on 5.4.2002 and the refusal of the application for ex partetrial on 10.5.2002 were correct.
Per Fernando, J.
‘The Code must be interpreted as far as possible, in consonance with the prin-ciples of natural justice, and the court can only be satisfied that summons hadbeen “duly served” where the defendant has been given a fair opportunity ofpresenting his case in his answer. If not, the court has the power to give fur-ther time for answer even if the defendant does not ask.”
APPLICATION for leave to appeal from the order of the High Court
Kuvera de Soysa with Malini Rajapaksha for plaintiffs – petitioners.
M. Ronald Perera for respondent
Cur.adv.vult
September 11,2002
FERNANDO, J.
The Plaintiff-Petitioner (“the Plaintiff’) filed action against theDefendant-Respondent Bank (“the Defendant”) on 1.2.2002. Noticeof interim injunction was granted and summons was issued, return-able on 5.4.2002. Summons was actually served on the Defendant
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only on 3.4.2002. On 5.4.2002 an attorney-at-law appeared onbehalf of the Defendant and stated that the proxy was not yet ready.Without any further inquiry the learned trial Judge gave a date forproxy, objections and answer to be filed, namely 10.5.2002. ThePlaintiff neither objected nor moved for ex parte trial on 5.4.2002.On 29.4.2002 the Plaintiff filed a motion seeking an order for exparte trial. On 10.5.2002 the learned trial Judge refused that appli-cation.
Learned counsel for the Plaintiff submitted that where adefendant does not apper in person or by an authorized represen-tative, and is not represented by an attorney-at-law holding a vaildproxy, an attorney-at -law is not entitled to appear on behalf of theDefendant and move for time to file proxy and answer, and ex partetrial must be ordered.
The principal question is whether the order of 5.4.2002 wascontrary to the provisions of section 84 of the Civil Procedure Code,which insofar as this case is concerned, provides that “if the defen-dant fails to file his answer on or before the date fixed for the filingof the answer… and if the court is satisfied that the defendant hasbeen duly served with summons….the court shall proceed to hearthe case ex parte…" The first point to note is that this section doesnot apply to a default in filing proxiy. Secondly, exparte trial can beordered only if the court is satisfied that the defendant has beenduly served with summons. The question then is whether the courtshall proceed to hear the case ex parte even where the summonsis served so soon before the date for answer that it is not reason-ably possible for the defendant to prepare and file his answer. TheCode must be interpreted, as far as possible, in consonance withthe principles of natural justice, and the court can only be satisfiedthat summons has been “duly” served where the Defendant hasbeen given a fair opportunity of presenting his case in his answer.If not, the court has the power to give further time for answer evenif the Defendant does not ask. In this case summons was served atsuch short notice that the Defendant hardly had time even to granta proxy to an attorney-at-law. An attorney-at-law having actualauthority to appear was entitled to move for further time to file aproxy, and any irregularity in that regard was cured by the subse-quent filing of a proxy within the time granted by the court. .
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Augustine Perera and others v Richard Pathirana,
Minister of Education and others (Fernando, J.)
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The orders made on 5.4.2002 and 10.5.2002 were correct.There is no question of law for determination, and leave to appealis refused without costs.
WIGNESWARAN, J.-I agree
WEERASURIYA, J.-I agree.
Leave to appeal refused.