129-NLR-NLR-V-43-JAMIS-v.-DOCHINONA.pdf
J A YETI LE KE J.—Jamis v. Dochinona.
527
Present : Jayetileke J.
JAMIS v, DOCHINONA.101—C. R. Balapitiya, 23,011.
Court of Requests—Judgment by default against defendant—Summons notserved—Application to set aside judgment—Defendant not bound tosatisfy the Court that he has a good and valid defence—Civil ProcedureCode, s. 823 (3).
Where, in the Court of Requests a defendant moves to set aside ajudgment entered against him by default on the ground that he wasnot served with summons, he is not bound to satisfy the Court he has agood .and valid defence on the merits of the case.
^^PPEAL from an order of the Commissioner of Requests, Balapitiya.
A. Rajapckse (with him O. L. de Kretser, Jnr.), for appellant.
R. C. Fonseka for plaintiff, respondent.
Cur. adv. vult.
September 7, 1942. Jayetileke J.:—v
The plaintiff instituted this action against the appellant for a declarationof title to a land called Yatagalakanda Addara Delgahawatta and fordamages. The Fiscal’s officer to whom the summons was entrusted forservice reported to Court that he served the summons on the appellanton being pointed out by the plaintiff. On the summons returnable datethe appellant was absent and the learned Commissioner fixed .tfle casefor ex parte hearing on January 27, 1942, on which date, after hearing theevidence of the plaintiff as to title and damages, he entered judgment inplaintiffs favour as prayed for in his plaint with Rs. -3 a month asdamages.
528
JAYETILEKE J.—Jainis v. Dochinona.
Three days later, the appellant moved to have the judgment vacatedon the ground that he was not served with the summons. The learnedCommissioner dismissed his application on the ground that undersection 823 (3) of the Civil Procedure Code he had to satisfy him not onlythat he had not received sufficient notice of the proceedings but also thathe had a good and valid defence on the merits of the case. He pointedout that in the appellant’s affidavit there was no indication as to whathis defence was.
I do not think that the order of the learned Commissioner can be sup-ported. Section 823 (3) applies when the defendant on being servedwith the summons fails to appear on the appointed date but appears laterand asks the Court to grant him the indulgence of defending the action.
The appellant does not ask for any indulgence under section 823 (3).He says that the summons was not served on him and that the. Courtacted without jurisdiction in entering judgment against him undersection 823 (2). I think he is right. Before entering judgment it wasthe duty of the Court to have called for proof that the person on whomthe summons was reported to have been served was the appellant.
I would set aside the order appealed from and all the proceedingssubsequent to January 20, 1942. The appellant is entitled to the costsof this appeal and the costs of the inquiry.
Appeal allowed-.