H. P. CATHIRINA and another, Appellants, M. A. JAMIS and others, Respondents

013-NLR-NLR-V-73-H.-P.-CATHIRINA-and-another-Appellants-M.-A.-JAMIS-and-others-Respondents.pdf


H. N. G. FERNANDO, C-J-—-Cathirina v. JamLs
1970 Present : H. N. G. Fernando, C.J., and Weeran/JfnlryfJ.P. CATHIRINA mid another, Appellants,
A. JAM IS and others, Respondents
S. C. 12J/G7 (I nt>j.)—D. C. Malar a, dG/2/P
Partition action—Failure o] a dejctulant to file statement of claim on due date—Dutyof Court nevertheless to issue notice to him of the date fixed for the trial—Inapplicability of s. So of Civil Procedure Co'lc—Partition .-Ic< (Cap. CD),ss. 21, 25, TO—Interpretation Ordinance—Scope of s. S (2).
■Where a clcfcmlnnt in n partition action fails to file a statement of claim ontin: line date, an ex parte hearing and disposal of his ease in terms of section Soof tho Civil Procedure Code is not authorised by section 79 of tho PartitionAct oil the ground of a casus omissus. In such n case section 24 of tho PartitionAct must bo rend with section 25 and tho Court is bound to give notico to thodefaulting defendant of tho date fixed for tho trial of tho ease, despite hisnbscnco on the day when the trial dato is fixed. An interlocutory decreeentered without such notice is liable to bo set aside nt tho instanco ofthe defendant.
If the trial of a caso is fixed for a day which turns out subsequently to bo apublic holiday, section S (2) of tho Interpretation Ordinance docs not renderthe next working day automatically the duo date of trial.
Appe ALS from an order of tho District Court, Matara.
N. E. Weeresooria, Q.C., with IF. D. Gtimtsekera, for the loth and ICthdcfcndants-appcllants.
//. IF. Jat/cicardene, Q.C., with A', It. M. Dalincatta, for tho plaintiff-respondent-.
Cur. adv. vidt.
January 1G, 1970. If. N. G. Hernando, C.J.—
The two appellants in this ease arc the loth and 16th defendants in apartition action. Summons had been served on botli these defendants,and according to the Journal Entry of -1th November, 19G5, which wasthe summons returnable date, tho lGth defendant was present in Courtwhen the ease was called.
On 4.11.G5 the parties who were present were given the date 20thJanuary 19GG to file their statements, but this date was subsequentlydeclared a Public Holiday, and the ease was called on 21st January 19GG,for the statements of parties, but no statements were then filed. On31st March 19GG the case was called again, because summons on tho 2nddefendant had not been served until sometime before that dato. On
lxniu—3
1*J 13SOO— 2.255 (6/70)
50H- X. G. I'ERXAXDO, C.T.—Cathirinn v. Jamia
this occasion sonic of the parties who had previously appeared on 4thNovember ]0G5 were given.time until the 131 h of July 10GG to-.file theirstatements. Those statements were not in fact filed, and the caseproceeded to trial 'between the plaintiffs and those'defendants who had-filed their statements. Judgment and decree were entered after trialon 10th August 10GG.
In September 1966, the loth and. LGth defendants made an application. that the decree be set- aside, and that- they be permitted to file"theirstatements of claim. The learned, judge then held an iiujuiryJnto this-application at -which ilie loth and; IGth defendants gave, evidence.
– The -15th defendant stated that she had in faet.be.cn present'in.Gdtirf. on 4th November 1965,; but had not then come forwarij••a£;slterdid.nbt>'hear herenanie being called. She further stated that slie'canie to knowjThatjhe date^Oth January"of claim, irrid,that she came to -Court.house closed she: then returned homeof a notice from' Court in order to*1 take-
•iS manifest that even if she did come to’ Court Xton–pGt.h^JiUniaryf.rj.she had giveii.no instructions for fhchling pf'a s.tat'emeHt';pn3tlV^j^y *-n^Court.
The 16th defendant also stated in evidence that she had come.to: Courton 20th January 1966 and found the Court house closed. Sh.eyadmitted.that she learned from other parties that time had -been>ftxtended.untih.10th August 1966 for the filing of statements, but she gave quite dubiousreasons for not, having filed any statement of claim.-
The principal ground relied on by these defendants injhcir appli- .
: cation to have the decree set aside was that the casc waa;0alled-on:21st ■sjanuary. 1966, which was not a date of which thev lv;i<] notice;->'S-* i
' ;> ' . . ‘
The learned District Judge was ofInterpretation-Ordinance justified the action of callingjhe.casojbn.21st .January.
The marginal note “ computation of time ” indicates the purpose of s. S;Sub-section (2) provides that where an act or proceeding,cannot be donoor taken in a Court on a due date because the Court is not .then open,then the act or proceeding shall be considered to be done or taken in. due.timeM done or taken on the next working day. In this way a party toan action Will not be in default by the failure to do or take an act orproceeding on the due date, if he takes the necessary step on the. nextworking day. But the section does not in my opinion cover situationsof a different nature. Thus, if t he trial of a case is fixed for a day whichtoms out subsequently to be a public holiday, the next working daydoes not automatically become the due date of trial. While no doubt
H. N. G. FERXAXDO, C.J.—Cathirina v. Jamia
51
there was a failure on the part of the appellants to file tlicir statementsof claim even on 21st January 19GG, the only consequence of that failurewas that there were in fact no statements of their claims.
The substantial complaint of the appellants is that the trial was fixedfor 10th August 19GG without due notice to them. In the ease of theloth defendant, the learned trial Judge has not disbelieved her evidencethat she did come to the Court on 20th January 10G6 and found it closed,and tiiat she had thereafter waited in expectation of a notice from theCourt, and at this stage we must assume that tho evidence was true.This being so, the question which arises is whether the Court was boundto give notice to this defendant of the date fixed for the trial, even thoughshe had not filed a statement of claim.
Section 24 of the Partition Act (Cap. G9) provides that if the Courtso orders, notice of the date of trial shall be given in such manner atul tosuch persons as the Court shall specify. While the section docs confera discretion on the Court as to the persons to whom and the manner inwhich this notice is to bo given, there can be no doubt that the discretionmust be exercised in accordance with t lie principles of natural justice;and those principles require in this context that every person who wouldbo entitled to participate at the trial must in some manner receive noticeof the date of trial. In the ease of parties who are present or representedin Court when the date of trial is announced, tho announcement- itselfwould be notice to such parties. Hence the problem which arises in thepresent ease is whether the loth and lGtli defendants would, despitetheir absence when the trial date- was fixed, have been entitled toparticipate at the trial ; for, if so, the Court had a duty to give themnotice of the date.
In this connection tho learned Judge has relied on Menchinn Ha minev. James A-ppu 1. In that ease rof an action for a declaration of titleto land, the defendants had failed to file answer on the duo date, and thisCourt held that the proper courso then was that the case be set down forex 2>orle trial under s. So of the Civil Procedure Cotie. The decision wasto tho effect- in other words that a defendant who files no answer is notentitled to participate in a trial. But this penalty which attaches to thofailure to file answer is one plainly imposed by s. So.
In the ease of the- Partition Act however, there is no provisionwhich corresponds to s. S3 of the Code, and that section will thereforeapply only if section 79 of the Partition Act can he said to bringit into application on the ground that there is a situation .of a casusomissus.
The Partition Act, while it entitles a defendant to file a statement ofclaim and requires him to file a list of documents on which lie proposesto rely, does not declare that a party may not prove his rights at the trial
1 {1037) 30 N. L. H. 240.
52"H. N. G. FERNAXDO, C.J.—Cathirina u. Jamis
'unless he has previously filed a statement of claim and a list of documentsIf for instance a defendant relies solely on prescription, there is no-provision in. the Ordinance which expressly prevents, him from leadingevidence at the trial to establish his right. Instead s. 25, in Very wideterms provides that " the Court shall examine the title of each party andshall liear and receive evidence in support thereofIndeed,: it is not
^uncommon that a Partition Decree allots interests to defendants upon."the • evidence of the plaintiff, without evidence being tendered bysuch defendants, themselves.'i,
if" Iiaving'regard to the wide.terms of s. 25 and the'other cGhsiderationsnoted above, l am,unable to hold ‘that s. S5 of tho Code is applicable inthe case of a^pariition action. The requirement in sectioil SS^that.theres shall bean ex parte trial in the event of the failure of a dcfcnclantlto appeai,Tor to file.'answer is inconsistent with the rcqui>emehti ih' ^KSS of- the- Partition Act which I have mentioned. That being so, th<5 languageof s. 79 ofthe Act-.precludcs the application of s. S5 of t he (^dc in 'a ease•>ivhere a defendant fails to file a. statement of claim:?:
> For these reasons I must hold that the 15th defeiidant 'cbuld haveparticipated’at the trial and led evidence, at Iei^t.^.^tattlislj^^^scfi.p^;tive right. ' That being so, 'my discussion of the principle govWriing s . 24of the Act shows that she should have been given notice of-the dateof trial. '-.-.•'
– The case of the 16th defendant is different, for. the learhed Tudge hasheld that she was aware that the trial had been fixed. for 10th August,and there Was no excuse for her failure to attend Court, on, that .day.Nevertheless this defendant also was entitled to a notice from.Court as tothe date of trial, and she can at least technically complain that she wasnot given such notice. Since there will be in any event: a fre§h trial inconsequence of the. appeal of the 15th defendant,;theroiseeihs^to.be nopractical objection to allowing the 16tli defendaiit also to ■participate atthe trial..
; For these reasons the appeals are allowed and the Interlocutory decreeis set aside. • The District Judge will now entertaii) theHstatements ofclaim filed by the15th and 16th defendants, and will fix A fresh date oftrial. Further proceedings will thereafter be taken in due course. ..-Theorder for costs made by the District Judge on Sth;fJuly -1967: is.also set.aside.:'.,•:v ' .
I mate no order as to the costs of this appeal.
Wekkajiantry, J.—I figree.-
Appeals allowed