020-NLR-NLR-V-67-E.-VELUPILLAI-Appellant-and-C.-SIVASITHAMPARAM-Respondent.pdf
1961Present: H. N. 6. Fernando, J., and Tambiah, J.E. VELUPILLAT, AppeUant, and C. SIVASITHAMPARAM,
Respondent
8. G. 593159—D. C. Jaffna, 1069/M
Default in filing amended answer—Power of Court to fix case for ex parte trial—Scope—■
Civil Procedure Code, ss. 85, 93.
There is no section in the Civil Procedure Code which empowers the Court tofix a case for ex parte trial because of default of the defendant to comply withan order of the Court to file an amended answer in reply to a plaint which isamended in terms of section 93. In such a case, the penal provisions of section85 are not applicable.
Appeal from a judgment of the District Court, Jaffna.
Nadesan, Q.C., with S. Sharvananda, for defendant-appellant.
H. W. Jayewardene, Q.C., with S. Shanmugalingam, for plaintiff-respondent.
Cur. adv. vult.
June 21, 1961. H. N. G. Fernando, J.—
The plaint in this action was filed on 6th November 1958 and answerwas filed thereafter. On 19th June 1959 the plaintiff’s counsel moved tofile an amendment to the plaint. Counsel for the defendants statedthat he had no objection and also that he did not move for costs. TheDistrict Judge ordered amended plaint to be filed on 16th July 1959.Ultimately an amended plaint was filed on 20 th July 1959 on whichdate the Judge presumably in the presence of the Proctor for the defend-ants made order “ amended Answer on 25.8.59 ”. On the last-mentioneddate neither the defendant nor his Proctor was present in Court, andthe learned Judge fixed the case for ex parte trial on the 10th of September1959. Trial was held ex parte on 10th September 1959 but was adjournedfor addresses (? the address of plaintiff’s counsel) to 7th October 1959-On October 5th 1959 the defendant moved the Court to vacate the ordersetting down the case for ex parte trial and asked that he be allowed tofile answer and take part at the subsequent trial.
I would uphold the contention for the appellant that section 85 of theCivil Procedure Code contains no reference to the failure of a defendanto comply with an order of the Court to file an amended answer in replyto a plaint which is amended in pursuance of section 93. While beingaware that the practice relating to amendment of pleading is not exactlythat which section 93 contemplates, namely that the Judge himselfshould consider and incorporate proposed amendments, it does seemthat a departure from the strict requirements of section 93 can createavoidable difficulties. In fact the difficulties which have arisen in thisparticular case have been due partly to the circumstance that the learnedJudge accepted without demur an amended plaint in which the plaintiffsets out a cause of action quite distinct from that which was pleaded inhis original plaint. If it is a practice thus to accept an amended plaintwithout consideration of the question whether the amendment is inorder or not, it should also be the practice invariably to afford to adefendant the opportunity to raise objections to the amendments.
The learned District Judge fixed the case for ece parte trial because ofdefault of the defendant in complying with the order to file an amendedanswer. There is no section in the Code which empowers the Court tomake such an order, and a defendant might well be content to go to trialwith his original answer unamended. Since he was not bound to filean amended answer there was no such default as would bring the penalprovisions of section 85 into operation, and the only lawful order theJudge could have made on 25th August 1959 was to fix a date for trial.That being so the ex parte trial was wrongly held and the decree passedthereon has to be set aside in exercise at least of the powers of this Courtin revision.
Although as I think the proper step would have been to fix the date oftrial and although this step must now be taken, when the record returnsto the District Court the defendant will not be precluded from moving toamend his answer on such terms as the Court may consider appropriate.The defendant is partly at least to blame by his absence on 25th August1959, for the fact that ex parte trial was ordered. In those circumstancesI would order that the defendant must bear the costs of 25th August1959 and of the Inquiry held on 18th November 1956.
The plaintiff must pay to the defendant the costs of this appeal.
Tambsah, J.—I agree.
Decree set aside.