086-NLR-NLR-V-59-H.-K.-SENEVIRATNE-Appellant-and-J.-T.-GUNARATNE-Respondent.pdf
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Scncviratne v. Ounaratne
■ 1956Present:T. S. Fernando, J.
H. K. SENEVIRATNE, Appellant, and J. T. GUNARATNE, -.Respondent
'' S. C. 70—G. R. Colombo, 58,127-.
Civil Procedure Code—Section 823 (3)—Default of appearance of defendant—Opening. up of judgment by default.■.. ■ ‘•
. A judgment by default entered against a defendant on account of his failureto appear on the data of trial may bo opened up under section $23 (3) of tho
• Civil Procedure Code if the Commissioner is satisfied that the defendant has agood and valid defence on tho merits of the case and that he was preventedfrom appearing in due time for tho reason that his Proctor had by bona fidemistake noted a wrong date'as tho date of t rial.-" 1
1 {1944) 45 N.D. R. 457.
T. S. FERXAXDO, J.—Senevirctlnc v. Ounnralne
383
-^^-PPEAL from a judgment of the Court of Requests, Colombo.
H. IK. Jayewardene, Q.G., with C. E. J fend is, for the defendant-appellant.
2V. G. J. Rustomjee, with P. Nagideswarcim, for the plaintiff -respondent.
' Cur. adv. vult.
August 9, 195(3. T. >S. Fkr.vaxbo, J.-—-..
On (lie day fixed for the trial of this case, viz., 6th December 1955,the defendant and his proctor were both absent, and after ex partoproceedings judgment was granted in favour of the plaintiff. Decreewas also entered the same day.
On the next day, viz., 7th December 1955, an affidavit of the defendant’sproctor was filed and he moved that the decree be vacated and the caserefixed for trial. The substance of the affidavit was that on the dateon which he filed the defendant’s answer, which was the same day onwhich the date of trial was fixed, he had by some mistake noted the dateof trial as (lie Sth December, instead of the Gth December.
This affidavit of the defendant’s proctor was not challenged on behalfof the plaintiff at anj^ time, and the learned Commissioner himselfexpresses no doubt that the defendant’s proctor made a bona fide mistakeas to the date.
– Counsel for the plaintiff contended before the Commissioner that thedecree could not be set aside as the defendant had not shown that hehad a good and valid defence on the merits of the case. In regard tothis contention, the learned Commissioner has stated that the answerdiscloses a defence, and although counsel appearing before me for the ■plaintiff has sought to canvass the correctness of this statement, it seemsto me that at this stage of the proceedings it is not possible for me onsuch material as is before me to disagree with the Commissioner’s –statement.
Although the learned Commissioner was satisfied that the defendanthad a good and valid defence on the merits of the case, he refused tovacate the decree on the ground that the defendant was negligent in ■not getting ready for the trial, even if the date of trial was assumed tobe the Sth December. Section S23 (3) of the Civil Procedure Code doesnot require a defendant to satisfy the Commissioner that he was makingevery preparation for the trial before he claims a setting aside of thejudgment.entered against him. Apart from this consideration, the only •reason for stating that the defendant was not getting ready for trial onthe Sth December was the fact that he had filed no list of witnesses and.
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T. S. FERXAKDO, J.^rScneviralne v. -Ounaralne ..
documents as required by section 820 (2) of the Civil Procedure Code.From the failure.of a defendant to file a list of witnessed and documentsit does not necessarily follow that he was not getting ready for the trial.
– In these circumstances, as' it is not disputed that the defendant’sproctor made a bona fide mistake as to the date of trial, the learnedCommissioner should have permitted the defendant an opportunity ofcontesting the case. I would therefore set aside the order ‘ of thoCommissioner of Requests made on 21st February 1956 refusing to setaside the decree entered on 6th December 1955, and substitute thereforthe following Order:—.’..
The judgment and decree entered on Gth December 1955 are set asideand the case is to be set down for trial on a date to be fixed by theCommissioner of Requests. The defendant will pay to the plaintiff thecosts of 6th December 1955. The defendant will be entitled to thecosts of this appeal.
Decree set aside.