014-NLR-NLR-V-62-KANAGASABAI-Appellant-and-KIRUPAMOORTHY-Respondent.pdf
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Kanagasabai v. Kirupamoorthy
Present : Basnayake, C.J., and de Silva, J.KANAGASABAI, Appellant, and KIRUPAMOORTHY,
Respondent
8. C. 93—D. C. Jaffna, AW 179
Summary procedure—Service of interlocutory order on respondent—Duty of respondentto appear in person—Failure of Proctor to appear, by “ oversight ”—“ Accidentor misfortune ”—Proceedings where both parties appear—No provision forfiling written objections—Affidavits—Duty to comply with rules governing them—Civil Procedure Code, ss. 181, 377 (b), 383, 384, 389, 437, 696, 697, 698.
Where, in an application of summary procedure, the respondent fails toappear in person as required by the interlocutory order served on him undersection 377 (b) of the Civil Procedure Code, he must suffer the consequencesof his non-appearance. It is not open to him to say that he gave a proyvto a Proctor and that the Proctor failed to appear by an “ oversight Insuch a case, the failure of the Proctor to appear (assuming that he has a rightto appear) is not an accident or misfortune within the meaning of section 389.
Even in proceedings where both parties appear, section 384 of the CivilProcedure Code does not provide for the filing of written objections.
When affidavits are filed in the course of civil proceedings, it is the duty of•Judges, Justices of the Peace and Proctors to see that the rules governingaffidavits in sections 181, 437, &c., of the Civil Procedure Code are complied with.
J^PPRAT. from an order of the District Court, Jaffna.
H. W. Jayewardene, Q.C., with G. Panganathan. for Petitioner-Appellant.
S. Nadesan, Q.G., with A. Nagendra and D. W. Abeykoon, forRespondent- Resp onden t.
'Cur. adv. vult.
BASNAYA K E, C.J.—Kanagasabai t>. Kirupamoorthy
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October 30, 1959. Baska.ya.iee, C.J.—
The appellant made in the manner prescribed by section 697 of the CivilProcedure Code an application under section 696 of the Code that theaward made in a dispute between him and the respondent, referred toarbitration without the intervention of a court, be filed. In his petitionhe prayed—
(а)that the award dated 25th February 1958 be filed in court;
(б)that the award be enforced as a decree of court ;
that an interlocutory order in terms of section 377 of the CivilProcedure Code appointing a day for the determination of thematter of his petition be entered intimating that the respondentwill be heard in opposition on a day appointed by court why therespondent should not pay to the petitioner Rs. 49,070/50with legal interest thereon from the date thereof and deliver tothe appellant the vallam known as Namo Narayana.
The District Judge made the following f* Interlocutory Order ” uponthe appellant’s application :—
** This matter coming on for disposal before N. SivagnanasunderamEsquire, Additional District Judge, Jaffna, on the 19th June 1958in the presence of Mr. R. 1ST. Sivapiragasam, Proctor, on the part of thePetitioner, and the Affidavit of the .Petitioner dated 19th June 1958having been read.
“ It is ordered that the Award marked A dated 25th February1958 filed of record be made a rule of court and that the said Awardbe given effect to and enforced in terms of section 698 of the CivilProcedure Code as a decree of court—unless sufficient cause be shown tothe contrary—on the 7th August 1958.
“ It is further ordered that the 7th day of August 1958 be and thesame is hereby appointed for the determination of the matters in thesaid Petition contained and that the said Respondent be heard inopposition to the prayer of the same if he appear before this court onthe said day.
“ It is further ordered that the Respondent do pay to the Petitionerhis costs of, and occasioned by the Application. ”
On 7th August 1958 the respondent was absent although the inter-locutory order had been served on him. The District Judge made thefollowing order “ Award made rule of Court Later, on the same day,Proctor Selvarajah filed the proxy of the respondent and moved for adate for objections. The Judge thereupon made the following order :“ Notice plaintiff’s Proctor and move
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BASNAYAKE, C.J.—IZanagaaabai v. Kiru-pamoorthy
On 12th. August 1958 the respondent filed a petition in which heprayed—
(а)that the order dated 7th August 1958 making the Award a Rule
of Court be vacated ;
(б)that the respondent be allowed to file objections and defend the
application.
In the respondent’s affidavit, which is undated, filed along with theapplication the respondent stated—
“(a) I had granted a proxy to Messrs. Selvarajah and Mahesan,Proctors, to appear for me on 7.8.58 and obtain time to fileobjections to the application ;
(6) Mr. Selvarajah, who was a partner of the said firm of Proctors,was present in court on 7.8.1958 but by an oversight he failedto tender the proxy and obtain a date to file objections whenthe case was called ;
Soon thereafter he realised that the case had been called and that
he had failed to file the proxy ;
Immediately he applied to court and tendered the proxy and
applied to have the order making the Award a Rule of courtvacated and that a date be granted to file objections. ”
On let October 1958 the District Judge held an inquiry into the res-pondent’s petition. No evidence was taken but the respective counselfor the appellant and respondent addressed the Judge. Counsel for theappellant submitted—
(а)that the application was not in accordance with the provisions of
section 389 ;
(б)that the application was not of the same date as the respondent’s
affidavit and that it was only supported by the Proctor’saffidavit;
that on 7.8.58 the respondent was absent and there was no Proctor
for him on record ;
that it was after the award was made absolute that the proxy was
filed and the present application made.
Counsel for the respondent submitted that the interlocutory order servedunder section 377 (6) is not a proper interlocutory order complying withform 66 of the Code.
The District Judge allowed the respondent’s application and set asidehis order of 7th August 1958. This appeal is from that order.
Learned counsel for the appellant did not challenge the correctness ofthe procedure adopted by the District Judge in making his order on theappellant’s application.
BASNATAICE, C.T.—Kanagasabai v. ICirupamoorthy
57
The District Judge made an interlocutory order under section 377 (6)which was duly served on the respondent but he did not appear. Nowsection 383 states what the Judge is to do if the respondent does notappear and the petitioner appears on the day appointed in an order madeunder section 377. It provides—
** … if the court is satisfied by the affidavit of the serving
officer, stating the fact of the service, or by oral evidence, that the orderhas been duly served upon the respondent in time reasonably sufficientto enable him to appear, then if the order is an order nisi made under{a) of section 377, the court shall make it absolute, and shall pass noother order adverse to the respondent, but otherwise it shall makesuch order within the prayer of the petition as it shall consider righton the facts proved : ”
The requirement of the interlocutory order was that the respondentshould “ appear ” not by Proctor but in person. The respondent failedto compty with that order. The learned Judge was right in makingorder on 7th August 1958 granting the petitioner his prayer. Once theorder under section 383 was made the District Judge had no power toset it aside except in the circumstances stated in section 389. Thatsection provides :
“ No appeal by a respondent shall lie against any final order whichhas been made, in the case of the respondent’s non-appearance, on thefooting of either an order nisi or an interlocutory order in the matterof a petition ; but it shall be competent to the court, within a reason-able time after the passing of such order, to entertain an applicationin the way of summary procedure instituted by any respondent againstwhom such order has been made, to have such final order set asideupon the ground that the applicant had been prevented from appearingafter notice of the order nisi or interlocutory order by reason of acci-dent or misfortune, or that such order nisi or interlocutory order hadnever been served upon him. And if the ground of such applicationis duly established to the satisfaction of the court, as against the ori-ginal petitioner, the court may set aside the final order complained ofupon such terms and conditions as the court shall consider it just andright to impose upon the applicant, and upon the final order being soset aside, the court shall proceed with the hearing and determinationof the matter of the original petition as from the point at which thefinal order so set aside was made. ”
The affidavit of the respondent does not show that he was preventedfrom appearing after notice of the interlocutory order had been served onhim on any of the grounds mentioned in the section. In fact it wouldappear that he was not prevented from appearing. He deliberatelyrefrained from appearing because he had given a proxy to his ProctorsSelvarajah and Mahesan to appear for him. That is not a groundon which section 389 empowers the District Judge to set aside the finalorder made by him. Where, as in this case, the party is required to
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BASNAYAKE, C.J.—Kanagctsabai v. Kirupamoorthy
appear ixx person and he does not do so then he must suffer the conse-quences of his non-appearance. It is not sufficient to say that he gave aproxy to a Proctor and that the Proctor failed to appear by an“ oversight The Proctor's explanation is as follows :
“3. When the case was called I had by an oversight failed to tenderthe proxy and apply for a date to file objections.
“4. Soon thereafter I realised that the case had been called and thatI had failed to file the proxy. ”
Even if in the instant case the Proctor’s appearance had been sufficientcompliance with the interlocutory order served on the respondent, andI do not think it is, his failure to be attentive to the proceedings in courtand appear when the case was called is not a ground which comes withinthe expression “ accident or misfortune ” in the section. Besides it mustbe remembered that the interlocutory order served on the respondentstated that 7th August was appointed for the determination of the mattersin the petition of the appellant and that the respondent would be heardin opposition to the prayer if he appeared before the court on that day.The respondent was therefore ill-advised in not being present in personand his Proctors were wrong in assuming that they need not do anythingmore than file the respondent’s proxy and obtain a date to file objections.They should have known that the notice stated that the respondent wouldbe heard in opposition to the prayer of the petitioiier if he appeared beforethe court on 7th August.
The practice of Proctors not being prepared with their cases on theappointed day is becoming far too common and should stop. It not onlyinvolves their clients in additional expense but also prolongs legal pro-ceedings and adds to the work of the court. The Civil Procedure Codedoes not provide for the filing of written objections. Section 384 reads :
“ If on such day both the petitioner and the respondent appear, theproceedings on the matter of the petition shall commence by the res-pondent in person, or by his proctor, stating his objections, if any, tothe petitioner’s application ; and the respondent shall then be entitledto read such affidavits or other documentary evidence as may be ad-missible, or by leave of the court to adduce oral evidence in supportof his objections, or to rebut and refute the evidence of the petitioner ; ’*
The procedure which the respondent’s Proctor meant to adopt on7th August is not warranted by the Code.
The learned Judge’s order in the instant case was—“ Award made arule of Court. ” It is not clear why he used this phraseology. Section 698provides that the order to be made is that the award be filed. Upon thatorder being made the award takes effect as an award made under theprovisions of Chapter LI. Judges of first instance should studiouslyobserve the requirements of the Code in making their orders.
Before I part with this judgment I wish to point out that the respon-dent’s affidavit is undated. It is the duty of the Justice of the Peace-
H. N. G. FERNANDO, J.—Karuppan v. S. J. Police, Pindeniya
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before whom an affidavit is sworn to see that the jurat is properly made.It reads : ** Affirmed to the truth and correctness hereof and signed at…. this …. day of August 1958. ** This is not the only
defect in this affidavit. It violates the rule governing affidavits in section181 of the Civil Procedure Code. That section provides :
“Affidavits shall be confined to the statement of such facts as thedeclarant is able of his own knowledge and observation to testify to,except on interlocutory applications, in which statement of his beliefmay be admitted, provided that reasonable grounds for such belief beset forth in the affidavit. ”
Paragraphs 4, 5 and 6 are not matters within the declarant’s ownknowledge because they relate to what took place in court at a time whenhe was not there. The affidavit does not show that it was made beforea Justice of the Peace within the local limits of whose jurisdiction thedeponent was at the time residing (s. 437 Civil Procedure Code). I havereferred to these matters to ensure that Judges, Justices of the Peace, andProctors will in future see that affidavits filed in civil proceedings fulfilthe requirements of the Code.
The order made by the District Judge on 1st October 1958 is set asideand the order that the award be filed is affirmed. The appellant isentitled to costs both here and below.
de SmvA, J.—I agree.
Order set aside.