Inaya v. Lanka Orix Leasing Company Ltd.
LANKA ORIX LEASING COMPANY LTD.
COURT OF APPEALEDUSSURIYA, J„
A. NO. 464/94 (F).
C. COLOMBO NO. 9399/MR.
JANUARY 24. 1998.
Civil Procedure Code — Section 86 (2) (3) – Form 75 — Ex parte judgment —Purge default – Proper affidavit – Oaths and Affirmation Ordinance S. 5.
After decree was served, the defendant-appellants filed petition and affidavit tohave the ex parte judgment and decree set aside. It was contended that therewas no proper application under sections 86 (2) – (3) as there was no properaffidavit; the defendant-appellants have made a declaration only and not adeclaration under the Oaths and Affirmation Ordinance. District Court upheldthe objection.
Section 5 – Oaths and Affirmation Ordinance provides that where theperson required by law to make an oath is a Buddhist, a Hindu or a Muslim(or some other religion) according to which oaths are not of binding force… he may instead of making an oath make an affirmation.
In the affidavit before Court the defendants being Muslims had failed tosolemnly, sincerely and truly declare and affirm the specific averments setout in the affidavit. The recital merely states that they make a declarationand in the jurat there is no reference as to whether the purported affidavitwas sworn to or affirmed to.
Per Jayasinghe, J.
“I am firmly of the view that technicalities should not be allowed to standin the way of justice, but. however, the basic requirements of the law mustbe fulfilled."
Sri Lanka Law Reports
 3 Sri L.R.
APPEAL from the judgment of the District Court of Colombo.
M. F. Miskin for defendants-appellants.
Romesh de Silva, PC. with Palitha Kumarasinghe and Anusha Fernando forplaintiff-respondent.
Cur. adv. vult.
March 11. 1999.
The plaintiff instituted action in the District Court of Colombo againstthe defendants for the recovery of a sum of Rs. 445,186 togetherwith interest at the rate of 36% from 1st July, 1989, and for therecovery of a further sum of Rs. 75,000 together with interest at therate of 36% from 22nd August, 1987, and for costs. The defendantsfailed to file answer. Thereafter, an ex parte trial was held and thelearned Additional District Judge entered judgment for the plaintiff asprayed for. After the decree was served on the defendants on4. 7. 1991 the defendants filed petition and affidavit to have the saidex parte judgment and decree of the learned Additional District Judgeset aside. At the inquiry counsel for the plaintiff raised a preliminaryobjection that there was no proper application under section 86 (2)read together with 86 (3) of the Civil Procedure Code on the basisthat there was no proper affidavit before Court. It was contended onbehalf of the plaintiff that the defendants-appellants have made adeclaration only and not a declaration under oath or affirmation. Thelearned trial Judge upheld the objection on the basis that the juratin the affidavit is defective in that the appellants have only placedtheir signatures in the presence of the Justice of the Peace and thatthere is no oath or affirmation. Accordingly, he refused the applicationof the appellant to have the ex parte judgment and the decree setaside.
The plaintiff-respondent drew the attention of Court to form 75 ofthe Civil Procedure Code. It sets out the format and the necessary
Inaya v. Lanka Orix Leasing Company Ltd. (Jayasinghe, J.)
elements required in an affidavit. According to which there shall bea recital stating that the declarant is a Christian or a non-Christian.In the case of Christian there shall be a declaration made under oathwhile in the case of a non-Christian there shall be an affirmation andthe jurat will also specify that the contents of the foregoing avermentsin the affidavit are sworn or affirmed to by the deponent before aJustice of the Peace. In the affidavit before Court the defendants beingMuslims had failed to solemnly, sincerely and truly declare and affirmthe specific averments set out in the affidavit. The recital merely statesthat they make a declaration and in the jurat, there is no referenceas to whether the purported affidavit was sworn to or affirmed to andmerely states that it was signed in Colombo in the presence of aJustice of the Peace. It is the contention of the plaintiff-respondentthat the said affidavit is not an affidavit in law as found in form 75and in the circumstances there was no proper application by thedefendants-petitioners to have the decree entered in the case setaside. It was submitted on behalf of the defendants that in terms ofsection 86 of the Civil Procedure Code, that upon an application beingmade under this section the affidavit tendered to Court becomesinsignificant and no reliance is placed thereon thereafter since thereis a burden cast on the petitioner to satisfy Court that there werereasonable grounds for default. I am unable to agree with this con-tention. The jurisdiction of Court is activated by a proper applicationto have the ex parte judgment and the decree set aside. This, thepetitioner has to do by way of an affidavit. If what the petitioner saysis sustainable then a mere statement giving reasons for the defaultwould satisfy the requirements of section 86 (2). The Court has tobe satisfied as to the accuracy of what is stated. This can be doneonly by sworn testimony. An affidavit satisfies this requirement. If thisCourt is to accept the argument of the petitioner then all that the Courthas to do is to exercise its jurisdiction on an unsworn testimony.
Section 5 of the Oaths and Affirmation Ordinance provides thatwhere the person required by law to make an oath is a Buddhist,a Hindu or a Muslim (or some other religion) according to which oathsare not of binding force … he may instead of making an oath, make
Sri Lanka Law Reports
 3 Sri L R.
an affirmation. If appears, therefore, that in the case of a non-Christianit is not compulsory that they should affirm. I am firmly of the viewthat technicalities should not be allowed to stand in the way of justice.But, however, the basic requirements of the law must be fulfilled. Inthe written submissions filed by the petitioners in the District Courtthe defendants have taken up the position that the affidavit tenderedto Court becomes insignificant and no reliance should be placedthereon since the petitioner is required to satisfy Court that he hasreasonable grounds for such default. The content of the submissionof the petitioner is that the validity or otherwise of the affidavit isnot material or relevant as the petitioner has in any event to satisfyCourt that he has reasonable grounds for such default. What thepetitioner failed to realise is that the application to have an ex partejudgment and decree set aside can be disposed of even without anyoral testimony. To this extent an affidavit sworn or affirmed accordingto law is necessary. If I understood the petitioner's written submissionscorrectly, then an affidavit drawn up according to law is unnecessary.
I am unable to subscribe to this submission. I see no reason tointerfere with the learned Additional District Judge's findings anddismiss the petitioner's application with costs fixed at Rs. 2,100.
EDUSSURIYA, J. – I agree.
INAYA v. LANKA ORIX LEASING COMPANY LTD.