093-NLR-NLR-V-71-K.-KATHIRESU-Appellant-and-V.-SINNIAH-and-another-Respondents.pdf
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Kathiresu v. Sinniah
1968 Present : H. N. G. Fernando, C.J., and Pandita-Gunawardene, J.K.KATHIRESU, Appellant, and V. SINNIAH and another,
Respondents
S. C. 436/66 (F)—D. C. Jaffna, 2006/L
•Civil procedure—Non-appearance of Proctor and client on account of Proctor'smistake—Effect on decree nisi.
Where a Proctor and his client (the plaintiff) were absent on the trialdate because the Proctor had by mistake takenj down the date of trial as18th August, when in fact the trial was fixed for? 1 Oth August—
Held, that the decree nisi which | was | entered on account of thenon-appearance should be set aside.
Appeal from an order of the Distriot Court, Jaffna.
V. Arulambalam, for the Plaintiff-Appellant .-
S'. Sharvananda, for the Defendants-Respondents.
E N. G. FERNANDO, C. J.—Kathiresu v. Sinniah .
451
December 15, 1968. H. N. G. Fernando, G.J.—
The affidavit and the evidence are to the effect that the Proctor andthe plaintiff himself were absent on the trial date because the Proctorhad by mistake taken down the date of trial as 18th August, when infact the trial was fixed for 10th of August. It is clear from the orderof the District Judge that he has accepted this evidence as correct.He nevertheless refused to set aside the decree nisi because he relied oncertain decisions in which the failure of a party to appear was due tohis own negligence. Counsel for the plaintiff has now referred us to acase reported in 16 Times of Ceylon Reports, page 119, in which the onlyreason for non-appearance was a mistake made by the parties’ Proctor.The present case is on all fours with that.
We allow the appeal and send the case back to the District Court.The District Judge will then fix a date, on or before which, theplaintiff will deposit a sum of Rs. 150 as costs of the past proceedings.If this amount is duly paid the District Judge will set aside thedecree appealed from and set the case down for trial. If the costs are notpaid before the fixed date, the decree under appeal will stand affirmed.
Pandita-Gunawabdene, J.—I agree.
Appeal allowed.