ITTEPANA v. HEMAWATHIE

040-SLLR-SLLR-1981-1-ITTEPANA-v.-HEMAWATHIE.pdf


476
Sri Lanka Law Reports
(1981) 1 S. L. R.
ITTEPANA
v.
HEMAWATHIE
SUPREME COURT
ISMAIL J.. WEERARATNE, J., AND SHARVANANDA, J.
S.C. APPEAL NO. 74/80S.C. SPECIAL L.A. 90/80
A. Application No. 1791/79
C. Gampaha No. 19464/DOctober 8 and 23,1981
Matrimonial action —Divorce – Failure to serve summons – Vacating of decree nisi anddecree absolute — jurisdiction – inherent powers ex debito justitiae — S. 839 C.P.C.
The plaintiff sued his wife for a divorce on the ground of malicious desertion. Sum-mons was reported served on the defendant and a proxy was filed on her behalf. At thetrial the defendant was represented by her lawyer but she was absent. Decree nisi wasentered and later decree absolute. Later when the defendant wife appeared in Court inconnection with her maintenance case the plaintiff produced the decree absolute ofdivorce. The defendant wife claimed she had not been served with summons and deniedhaving filed proxy and filed papers in the District Court to have the divorce decree an-nulled on the ground of non-service of summons. The District Judge inquired into this,and held with the defendant wife and vacated the decree. The only defence put upby the plaintiff was that the District Judge had no jurisdiction to vacate the decree en-tered by him.
Held :
The principles of natural justice are the basis of our laws of procedure. The requirementthat the defendant should have notice of the action either by personal service or substi-tuted service of summons is a condition precedent to the assumption of jurisdictionagainst the defendant.
'Jurisdiction' may be defined to be the power of a court to hear and determine a cause,to adjudicate or exercise any judicial power in relation to it. When the jurisdiction of aCourt is challenged the Court is competent to determine the question of jurisdiction.An inquiry whether the Court has jurisdiction in a particular case Is not an exercise ofjurisdiction over the case itself. It is really an investigation as to whether the conditions ofcognizance are satisfied. Therefore, a Court is always clothed with jurisdicti6n to seewhether it has jurisdiction to try the cause submitted to It.
Failure to serve summons Is a failure which goes to the root of the jurisdiction of theCourt to hear and determine the action against the defendant. It is only by service ofsummons on the defendant that the Court gets jurisdiction over the defendant. If a de-fendant is not served with summons or otherwise notified of the proceedings againsthim, the judgment entered against him in those circumstances is a nullity. The procee-dings being void, the person affected by them can apply to have them set aside ex debitojustitiae in the exercise of the inherent jurisdiction of the court which is saved by S. 839of the Civil Procedure Code. Hence the District Judge acted within his jurisdiction Ininquiring into the question of non-service of summons.
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Cases referred to:
(D Ramasamy Pulle v. De Silva (1909) 12 NLR 298
Silva v. Silva (1910) 13 NLR 87
Van Twest v. Gunewardene (1930) 34 NLR 220
Pauiusz v. Perera (1933) 34 NLR 438
Craig v. Kanssen (1943) 1 All ER 108, 113
Kofi Forie v. Seifah (1958) AC 59
!7)Macfoy v. United Africa Co. Ltd. (1961) 3 All ER 1169
Sirinivasa Thero v. Sudassi Thero (1960) 63 NLR 31, 33
Hewage v. Bandaranayake (1967) 70 NLR 119
Perera v. Commissioner of National Housing (1974) 77 NLR 361
Albert v. VeeriahpillaiS.C. App. 73/80 – S.C. Minutes of 23.9.81
Thambirajah v. Sinnamma (1935) 36 NLR 442
James v. Dochinona (1942) 43 NLR 527
Marjan v. Burah (1948) 51 NLR 34, 41
Anisminic v. Foreign Compensation Commission (1969) 1 AH ER 208
Rodger v. Comptoir O' Excompte de Paris (1871) 3 PC 465
Mcpherson v. Mcpherson (1936) AC 177
Appeal from judgment of the Court of Appeal
Walter Jayawardene Q.C. with C. Ganesh and Miss K. Chelliah for the plaintiff-peti-tioner-appellant.
O. R. P. Gunatilleke with K. S. Tilakaratne for the defendant-respondent-respondent.
Cur. adv. vult.
December 7,1981
SHARVANANDA, J.
The plaintiff-appellant instituted on 7.10.77 this action fordivorce a vinculo matrimonii against the defendant-respondent onthe ground of malicious desertion and for the custody of the onlychild Indranie. In accordance with the provisions of the Adminis-tration of Justice (Amendment) Law, No. 25 of 1975, which wasin operation at that time, summons was issued on 11.10.77. Therecord contains the following journal entries.
“(1) 21.10.77
Return to service of summons received.
15.11.77
Memorandum of appearance for defence tendered.
20.12.77
Mr. W. E. C. Perera, Attorney-at-Law, files his appoint-ment and also answer of the Defendant.
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10.10.78
Attorney-at-Law for Defendant moves for trial as answer
has already been filed.
Call case on 20.01.78 to fix date of trial.
24.01.78
Case not called on 20.01.78.
Called today to fix date of trial
Mr. K.S. Subasinghe, A/L for Plaintiff.
Mr. W.E.C. Perera, A/L for Defendant.
Trial 28.02.78.”
The case was taken up for trial on 28.2.78. According to therecord, Mr. Dharmawardena, Attorney-at-Law, instructed byMr. K. S. Subasinghe, Attorney-at Law, appeared for the Plaintiff,and Mr. Karunaratne, Attorney-at-Law, instructed by Mr. Perera,Attorney-at-Law, appeared for the defendant. The Plaintiffwas present, but the defendant was absent. It is recorded that"the Plaintiff as well as the Defendant in this case are seeking adivorce. There is no contest in this case". The plaintiff gave evi-dence and stated that the defendant deserted him on 10th Febru-ary 1964 and thereafter had not come back in spite of his at-tempts to bring her back and that she was guilty of malicious de-sertion. There was no cross-examination of the plaintiff. Mr. Karunaratne, Attorney-at-Law who appeared for the defendant, thenstated that the defence was not calling any evidence. At the con-clusion of the trial, the District Judge granted the prayer of theplaintiff and ordered decree nisi to be entered annulling the mar-riage. On 16th June 1978, decree absolute was entered. In October1978, the plaintiff contracted a second marriage and a child wasborn to him by that marriage in July 1979.
On 9th April 1979, the defendant filed petition and affidavitstating that no summons was served on her, that she did not filethe proxy or memorandum of appearance alleged to have beengiven by her to Mr. W. E. C. Perera and that she had given noinstructions to him to file answer or to appear for her. She prayedthat all proceedings be set aside and that the decree nisi and decreeabsolute be vacated and that she be allowed to defend the action.
The matter was taken up for inquiry on 9th April 1979. Thedefendant stated that she had not received summons in that caseand became aware of this action only when she appeared in theMagistrate's Court on 9th March 1979 in her maintenance case. AsMr. W. E. C. Perera was not an Attorney-at-Law practising in theDistrict Court of Gampaha and who had given his registered ad-
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dress as "No. 247, Hultsdorf Street, Colombo 12", the DistrictJudge, having ascertained that Mr. Karunaratne, Attorney-at-Law,who normally practised in that Court had not appeared in thatcase, issued notice on Mr. W. E. C. Perera and the plaintiff to appearin Court on 2.5.79. The notice sent by Court to Mr. Perera wasreturned udelivered with the endorsement that "there was no suchperson at the address given", but the notice was served on theplaintiff to appear in Court on 2nd May 1979. The plaintiff ap-peared in Court on that date and was represented by Mr. M. A.Dharmawardena, and the defendant was represented by Mr.R. M. P. Dharmawardena. The defendant testified that she had filedan action for maintenance against the plaintiff. As he had defaul-ted for eight months in the payment of maintenance, she had ap-peared in Court on 9.3.79 to claim the arrears. On that date, theplaintiff had appeared in Court and stated that he had obtaineda divorce and produced the decree absolute. She re-affirmed thatshe hadn't received any summons. She denied having signed anyproxy or other documents or that she gave any instructions toany Attorney-at-Law to file answer. Counsel who appeared forthe plaintiff said that he was neither cross-examining nor callingany evidence as it was his position that the .Court had no jurisdic-tion to vacate the judgment entered by it on 28.2.78.
The District Judge delivered his order on 8.5.79 acceptingthe unchallenged evidence of the defendant that no summonshad been served on her. He declared void and of no effect allsteps taken against the defendant. He set aside the decree nisi anddecree absolute and granted the defendant an opportunity to fileanswer.
The plaintiff thereafter by his revision application dated 25thSeptember 1979 moved the Court of Appeal to have the orderof the District Judge set aside on the ground that the DistrictJudge had no jurisdiction to vacate his own order even if it wasestablished that summons had not been served on the defendant-,respondent. By its order dated 28.7.80, the Court of Appeal dis-missed the application with costs. The plaintiff has preferred thisappeal from that order.
Principles of natural justice are the basis of our laws of proce-dure. The requirement that the defendant should have notice ofthe action either by personal service or substituted service ofsummons is a condition precedent to the assumption of jurisdic-tion against the defendant.
At the hearing before us. Counsel for plaintiff-appellant accep-ted that a decree entered against a defendant who has had no
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notice of the action because of non-service of summons on himis a nullity. R-ut he argued that the District Court which enteredthe decree had no jurisdiction to vacate its own order or judgment.He submitted that in that event relief should be sought from theCourt of Appeal by way of revision or restitution integrum. Heurged that it is competent only for the superior Court to vacatesuch judgment and decree of the District Court, even though it is,in law, a nullity. He contended that on entering a decree, the Dis-trict Judge becomes functus and had no further jurisdiction to gointo the question whether summons had been served or not. He,however, qualified his proposition by the concession that thoughthe Judge cannot enter into a judicial inquiry to determinewhether summons was served or not, he could, without takingany independent evidence, peruse the record to check whethersummons had been served or not, and if the record disclosed thatthere had been no service of summons, he could declare the decreea nullity. His submission was that the jurisdiction of the DistrictCourt was confined to ascertainment of a fact that did not involvea finding by judicial inquiry in a contentious matter. He saidthat if there was a contentious matter between the parties, such aswhether summons had been served or not and the court is calledupon to address its judicial mind to that question, the Court can-not embark on a judicial inquiry but is bound by the decree al-ready entered. In support of his submission, he relied on the case ■of Ramasamy Pulle v. de Silva *1Silva v. Silva1,2!; Van Twest v.
Gunewardeneand Paulusz v. Perera *4). He wound up by say-ing that once an order or decree is entered, the Court becomesfunctus officio and cannot set aside or alter the order or decreeexcept in the limited circumstances specified in section 189 of theCivil Procedure Code. The rationale of his contention was that theDistrict Court had no inherent power to set aside a judgmentwhich it had delivered' without jurisdiction. He was referredto the following observation of Lord Green M. R. in Craig v.Kanssen
"Those cases appear to me to establish that a person who isaffected by an order, if it can properly be described as a nulli-ty, is entitled ex debito j'ustitiae to have it set aside. As far asprocedure is concerned, it seems to me that the Court in itsinherent jurisdiction can set aside its own order and it is notnecessary to appeal from it."
which has been approved by the Privy Council. – vide Kofi Forfiev. SeifahW Macfoy v. United Africa Co. Ltd. 1,7 K His reply wasthat this observation is correct as far as English law is concerned,but does not represent the legal position in Sri Lanka. According
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to him, the inherent powers of our original Courts are deficientto grant relief in such an instance. It is to be noted that thissalutary principle enunciated by Lord Greene has often beeninvoked and acted upon by our Courts. — vide Sirinivasa Them v.Sudassi Them Hewage v. Bandaranayake *91? Perera v. Com-missioner of National Housing *10 ^ Albert v. Veeriahpiiiai *11 *
in Ramasamy Pulle v. de Silva *1 *, no question of nullity wasinvolved. The Court had made order annulling adjudication undersection 140 of the Insolvency Ordinance after only one meeting ofcreditors, whereas there should have been two meetings beforesuch an order was made. When the District Court became aware ofthis irregularity, it set aside its earlier order. On appeal, the Sup-reme Court held that the District Court had, in the circumstances,no jurisdiction to set aside or review its earlier order which hadbeen made irregularly in the exercise of its jurisdiction.
In Si/va v. Silva & on a dispute between the appellant and therespondent as to who was entitled to 1/16th share of the landsought to be partitioned, the District Judge held that the appel-lant was entitled to that share. Preliminary decree for partitionwas drawn up in accordance with the judgment. There was noappeal against the decree. Subsequently, another District Judgemade order amending the preliminary decree by taking away the1 /16th share from the appellant and adding it to the respondent'sshare. The Supreme Court held that the District Judge had nopower to modify or amend the preliminary decree even if he wasof the opinion that the former decision was mistaken in fact orlaw. Here again there was no question of the original preliminarydecree being a nullity, in the sense that the District Court had nojurisdiction to enter the decree.
In Van Twest v. Gunewardenejudgment was entered of con-sent in pursuance of the warrant of attorney to confess judgment.Later it was contended that the decree was wrongly entered as thewarrant of attorney was bad. It was held that the District Courthad no jurisdiction to set aside its own decree. Here again therewas no question of the consent order being a nullity. Summonshad been duly served upon the Proctor as provided in the warrantof attorney and the Proctor had wrongly consented to judgment.
In Pauiusz v. Perera the District Judge had dismissed thepartition action on the grounds: (a) that the deeds produced be-fore him were copies and not the originals, and (b) that some ofthe documents that had been tendered in evidence had not beenfiled. After the order of dismissal had been made, it was broughtto the notice of the Court that the documents had been tendered
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to the clerk in charge of the record who had omitted to send themwith the record. After a consideration of the documents, the Dis-trict Judge was of the opinion that he would not have made theearlier order if the documents had been before him; he set asidehis earlier order dismissing the partition action and entered decreeon the basis of those documents. The Supreme Court held that tuDistrict Judge had, in the circumstances, no jurisdiction to v£his own decree, and that having dismissed the partition action,could not subsequently set aside his own order. Here again, thewas no question of absence of jurisdiction to make the originalorder in question. It was a case of the District Judge improperlydismissing the plaintiff's action. The Supreme Court alone was en-titled to vacate such order in the exercise of its appellate or revi-sionary jurisdiction.
In contradistinction to the above cases, the case of Thambirajahv. Sinnamma*12* brings out the distinction. In this case, afterfinal partition decree had been entered, the 1st defendant appliedto have the decree set aside on the ground that she had not beenserved with summons. The lower Court held that it had no juris-diction to set aside the interlocutory and the final decrees enteredin the case. On appeal, Maartensz J. following "the trend ofauthority" held that the lower Court had jurisdiction to set asidea decree on the application of a party to the suit who had notbeen served with summons. He sent the case back to the Commis-sioner of Requests to determine whether the 1st defendant hadbeen served with summons and to vacate the interlocutory and’final decrees if he found that summons had not been served onthe 1st defendant.
In the case of James v. Dochinona^1an ex-parte judgmenthad been entered against the defendant in the Court of Requests.Three days after judgment being so entered, the defendant movedthe Court to have the judgment vacated on the ground that he wasnot served with summons. The Supreme Court held that the Courthad acted without jurisdiction in entering judgment against thedefendant when he had not been served with summons. The judg-ment of the Supreme Court proceeded on the basis that the Courtof Requests hacj jurisdiction to inquire into the question whethersummons had been served or not, and that if it came to a findingthat there was no service, it had the power to vacate the earlier ex-parte judgment.
In Perera v. Commissioner of National Housing *1 an ex-parte judgment for ejectment of the defendant had been enteredagainst the defendant in the Court of Requests and the defendant
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was summarily ejected under writ of possession issued by theCourt. The defendant thereafter filed petition and affidavit andmoved that the judgment and decree entered ex-parte against herbe vacated as there was no service of summons on her. After in-quiry, the Commissioner of Requests found the Fiscal's officerwho gave evidence to be unworthy of credit and held that nosummons had been served nor any substituted service effected onthe defendant; he made order vacating the default judgment.However, the Commissioner made no consequential order to seethat the defendant was restored to possession of the premises. Itwas held by the Supreme Court that "the inherent powers of theCourt are wide enough to have enabled the Court to order theplaintiff to vacate the premises and restore possession to thedefendant". In the course of his judgment, Tennekoon C. J. statedthat "where there was neither personal service nor substituted ser-vice of summons on the defendant the Court was
without competence to proceed with the action. A judgment en-tered under such circumstances is void and can be challenged bothin the very Court and in the proceedings in which it was had andalso collaterally and it also follows that where such attack is madeon a judgment, if the lack of jurisdiction or competence of theCourt is not apparent in the record, extrinsic evidence would beadmissible to show that, in fact, the Court did not, at the time itgave judgment, have jurisdiction to do so — even to the extent ofcontradicting the record."
'Jurisdiction' may be defined to the power of a Court to hearand determine a cause, to adjudicate or exercise any judicial powerin relation to it. When the jurisdiction of a Court is challenged, theCourt is competent to determine the question of jurisdiction. Aninquiry whether the Court has jurisdiction in a particular case isnot an exercise of jurisdiction over the case itself. It is really aninvestigation as to whether the conditions of cognizance aresatisfied. Therefore, a Court is always clothed with jurisdiction to .see whether it has jurisdiction to try the cause submitted to it.
"Jurisdiction naturally divides itself into three heads. In orderto the validity of a judgment, the Court must have jurisdictionof the persons, of the subject matter and of the particular ques-tion which it assumes to decide. It cannot act upon persons whoare not legally before it, upon one who is not a party to thesuit…., upon a defendant who has nerver been notified of theproceedings. If the Court has no jurisdiction, it is of no conse-quence that the proceedings had been formally conducted, forthey are coram non judice. A judgment entered by such Courtis void aqd a mere nullity." (Black on Judgments – P.261)
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Failure to serve summons is a failure which goes to the root ofthe jurisdiction of the Court to hear and determine the actionagainst the defendant. It is only by service of summons on thedefendant that the Court gets jurisdiction over the defendant. If adefendant is not served with summons or is otherwise notified ofthe proceedings against him, judgment entered against him in'those circumstances is a nullity. And when the Court is madeaware of this defect in its jurisdiction, the question of rescindingor otherwise altering the judgment by the Court does not arisesince the judgment concerned is a nullity. Where there is no act,there can be no question of the power to revoke or rescind. Onecannot alter that which does not exist. The exercise of power todeclare such proceedings or judgment a nullity is in fact an originalexercise of the power of the Court and not an exercise of thepower of revocation or alteration. The proceedings being void, theperson affected by them can apply to have them set aside exdebito justitiae in the exercise of the inherent jurisdiction of theCourt. Nagalingam J. in Marfan v. Burah stated the legalposition thus;
"It was however urged that the District Court had no in-herent power to vacate its own decree or order in the same pro-ceedings and that the only jurisdiction it possesses in regard tosuch matters is what is conferred upon it by the Civil ProcedureCode and no other. But this is a principle that is applicable onlywhere the Court is called upon to set aside its decree. It doesnot extend to cases where it is sought to prove that the decreewas obtained by fraud, collusion and therefore a nullity — aright expressly granted by section 44 of the Evidence Ordi-nance." (Section 44 adds 'incompetency of Court' as anotherground rendering the decree a nullity)
In Anisminic v. Foreigh Compensation Commission *15*, theHouse of Lords held that an ouster clause did not operate on deci-sions outside the permitted jurisdiction because they are a nullity,and that the Courts, when they decree that a decision is nullity, arenot disregarding the preclusive clause. The' principle of the deci-sion is that the ouster clause would not prevent a determinationof the tribunal being set aside by Court if it was outside the tri-bunal's jurisdiction. Nullity is the consequence of all kinds of-jurisdictional errors, e.g. breach of natural justice. As Lord Reidobserved at p. 213:
"There are many cases where although the tribunal hadjurisdiction to enter on the inquiry, it has done or failed to dosomething in the course of the inquiry which is of such a nature
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that its decision is a nullity. It may have given its decision inbad faith; it may have made a decision which it had no power tomake; it would have failed in the course of the inquiry to com-ply with the requirements of natural justice."
Every Court, in the absence of express provision in the CivilProcedure Code for that purpose, possesses, as inherent in itsvery constitution, all such powers as are necessary to undo awrong in the course of the administration of justice.
Section 839 of the Code preserves the inherent power of theCourt "to make such orders as may be necessary for the ends ofjustice or to prevent abuse of the process of the Court". Thissection embodies a legislative recognition of the inherent powerof the Court to make such orders as may be necessary for theends of justice. The inherent power is exercised ex debito justitiae. to do that real and substantial justice for the administration ofwhich alone Courts exist.
A grave injustice would be caused to the defendant-respondent ifshe has been divorced without any knowledge of the proceedingsagainst her. Her status and right of maintenance have been affected.The Court possesses inherent power to rectify such injustice onthe principle actus neminem gravabit (an act of the Court shallprejudice no person). This principle has been stated by LordCairns in Rodge v. Comptoir D'Escompte de Paris ^1to be:
"One of the first and highest duties of all Courts is to take carethat the act of the Court does no injury to any of the suitors,and when the expression 'the act of the Court' is used, it doesnot mean merely the act of the primary Court, or of any inter-mediate Court of Appeal, but the act of the Court as a whole,from the lowest Court which entertains jurisdiction over thematter up to the highest Court which finally disposes of .thecase. It is a duty of the aggregate of those tribunals, if I mayuse the expression to take care that no act of the Court in thecourse of the whole of the proceedings does an injury to thesuitors in the Court."
Thus, when a complaint is made to Court that injustice has beencaused by the default of the Court in not serving summons, it isthe duty of the Court to institute a judicial inquiry into thecomplaint and ascertain whether summons had been served or not,even going outside the record and admitting extrinsic evidence,and if it finds that summons had not been served, it should declareits ex-parte order null and void and vacate it. The contention of
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Counsel for the appellant fetters or impedes the Court fromperforming this paramount duty.
Counsel for the plaintiff-appellant referred us to Mcphersonv. Mcphersonwhere the fact of re-marriage was treated as adecisive factor against ex parte proceedings being set aside. Thefacts in that case were, the wife had due notice but made noanswer and a decree nisi was pronounced, which was later madeabsolute, some time after the period of appeal had expired, thehusband re married, the wife then commenced an action againsther former husband to set aside the decrees on the ground that hehad committed perjury, she later alleged that the trial of thedivorce action was a nullity, not being a trial in open Court. Itwas with the latter point only that the Privy Council was con-cerned. The Privy Council held that the decrees were voidable, butnot void. Apart from the alleged exclusion of the public, the pro-ceedings were regular, and the wife, if so minded, could have filedanswer and contested the petition. Where there was a defect inprocedure which had not caused a failure of natural justice, theresulting order is only voidable. The Court held on the facts ofthat case.that "the order absolute cannot be touched after thetime for appeal therefrom has passed and a new status has beenacquired, or, as in this case, after the respondent having re-marriedis entitled to the protection afforded by section 57 of the Matri-monial Causes Act, 1857. It follows in Their Lordships'judgmentthat the appeal fails, the order absolute, although originally voida-ble, having become unassailable by the time the appellant's claimwas made". It was too late, and by herself re-marrying, the wifehad adopted the decree. If a party waives or acquiesces in the irre-gularity, he cannot afterwards complain of it. In my view, thesame conclusion would not have been reached by the JudicialCommittee if the facts had been that the proceedings had neverbeen brought to the notice of the wife, as in the case we areconsidering.
It is to be noted that it was never the position of the plaintiffthat even though the defendant had not been served with sum-mons, she had become otherwise aware of the proceedings againsther and had acquiesced in or waived the irregularity or failure,in which event there would not have been any failure of naturaljustice.
Mr. Jayawardene addresses us also on the facts and stated thatthe Court below ihas not paid sufficient consideration to thestatutory presumption created by section 404 of the Administra-tion of Justice (Amendment) Law, No. 25 of 1975.
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Section 400(1) of that Law provides that "summons shallordinarily be served by* registered post" and section 404 providesthat "when a summons is served by registered post, the advice ofdelivery issued under the Inland Post Rules and the endorsementof service, if any, shall be sufficient evidence of the service ofsummons and of the date of such service, and shall be admis-sible in evidence, and the statements contained therein shall bedeemed to be correct, unless and until the contrary is proved".
The copy of the summons alleged to have been served on thedefendant gives the address as "575/12, Baseline Road, Colombo".The advice of delivery exhibits a signature "W. Hemawathie",alleged to be the signature of the addressee. The defendant Hema-wathie has stated on oath that she did not receive the summons.She was not cross-examined on her denial and no effort has beenmade to prove that the signature appearing on the advice of deli-very is that of the defendant, and no evidence has been led toshow that the address referred to in the aforesaid copy of the sum-mons was the correct address of the defendant at the time. Theadvice of delivery further does not carry the name of the road northe number of the premises. In the circumstances, the presumptionunder section 404 cannot be drawn. In any event, the defendantby her sworn testimony has deposed that she had not been servedwith summons. She has not been contradicted.
For the reasons stated above, the appeal fails, and is dismissedwith costs.
Ismail, J.I agree.
Weeraratne, J.I agree.
Appeal dismissed.