031-SLLR-SLLR-2006-V-2-KANDASAMY-vs.-KANDASAMY.pdf
260
Sri Lanka Law Reports
(2006) 2 Sri LR.
KANDASAMYvs.
KANDASAMYCOURT OF APPEAL,
SOMAWANSA, J. (P/CA)
WIMALACHANDRA, J.
CALA 174/2004, (LG)
DC MT. LAVINIA2739/99/D.
MAY 20,2005.
Civil Procedure Code, sections 24, 82, 84, 143 and 144 amended by Law, No.20 of 1977, Section 91A – Defendant absent – Represented by an Attorney-at-
CA
Kandasamy Vs. Kandasamy (Wimalachandra, J.)
261
Law – Ex parte trial ? – Prepayment of costs – Failure to prepay – Consequences ?- Supreme Court Rules – Rule 46 – Certified copies not filed – Is it fatal ?
The plaintiff respondent instituted action against the 1st defendant and the2nd defendant-petitioner seeking a judgment for divorce against the 1stdefendant on the ground of adultery of the 1 st defendant with the 2nd defendant-petitioner and/or on the ground of malicious desertion and for an order to payalimony.
On the date of trial the 2nd defendant appeared in person and informedCourt that her attorney at Law has revoked his proxy. Court ordered the 2nddefendant to prepay costs on or before the next date and refixed the case forfurther trial on 06.05.2004. The 2nd defendant petitioner signed the case recordagreeing to make the payment of costs.
On the next date of trial the 2nd defendant was absent and had failed to makethe prepayment of costs. However her Counsel appeared and made anapplication for postponement as the 2nd defendant-petitioner was absent dueto unavoidable circumstances and also submitted that the 1st defendant haddied, hence the action cannot be proceeded with against the 2nd defendant-petitoner.
Court overruled the objection and fixed the case for ex-parte trial against the2nd defendant.
The 2nd defendant – petitioner sought leave to appeal against the said order.HELD:
In terms of section 84 and 144 the Court may fix a case for ex-parte trialupon the default or non appearance of the defendant, However at thetrial date if the defendant does not appear but an Attorney at Law appearsand acts and pleads on his behalf the defendant is deemed to haveduly appeared before Court.
If the court was of the view that the application made by the Counsel forthe 2nd defendant should be refused the court should have proceededwith the trial inter partes.
Held further:
There was no condition that the case would be fixed ex-parte if the costwas not paid on or before that next date and there was no agreementbetween the parties that the case would be fixed for ex-parte trial against
262
Sri Lanka Law Reports
(2006) 2 Sri LR.
Hie 2nd defendant, if the costs were not prepaid. Accordingly the Courtis not empowered to fix the case for ex-parfe trial if the defendant failsto pay costs where she has not consented to such an order.
Held further:
Although Rule 46 has a mandatory effect any omission can be rectifiedat a later stage with permission of Court. Failure to comply with the ruleis curable by subsequent compliance where the Court holds that initialcompliance was impossible by reason of circumstances which arebeyond the control of the applicant.
Though initially certified copies were not filed the petitioner had tenderedsame subsequently with permission of court.
APPLICATION for leave to appeal from an order made by the District Court ofMt. Lavinia; with leave being granted.
Case referred to:
De Mel Vs. Gunasekera 41 NLR 33
Perumal Chetty vs. Goonetilake 1908 Bal 2
Sohanlal and Another vs. Devachand, AIR 1957 Rajasthan II
Isek Fernando vs. Rita Fernando and Others 1999 3 Sri LR 29
Piyaseeli vs. Prematilaka 1986 1 Sri LR 47
Calistus Perera vs. Nawanage 1994 3 Sri LR 305
Francis Wanigaratne Vs. Pathirana 1997 3 Sri LR 231
Rasheed Ali vs. Mohamed Ali 1981 2 Sri 29
Kiriwantha vs. Navaratne 1990 2 Sri LR 393
Lasitha Kannuwanaarachchi for defendant-petitioner.
Sanjeewa Jayawardane for plaintiff-respondent.
Cur. adv. vult.
February 01,2006.
WIMALACHANDRA, J.The plaintiff-petitioner (hereinafter referred to as “the plaintiff) filed thisapplication for leave to appeal from the order of the learned District Judgeof Mount Lavinia dated 06.05.2004.
This Court granted leave on the following questions of law:
Where the defendant is absent, but is represented by an Attorney-at-Lawwho makes an application for the adjournment of proceedings
CA
Kandasamy Vs. Kandasamy (Wimalachandra, J.)
263
on behalf of the party he represents and if the Court decides torefuse such application, can the Court fix the case for ex-parte trialagainst the absent party ?
Where the Court allows a party’s application for postponement ofthe trial on the condition that he shall pre-pay costs before the nexttrial date, has the Court got the power to fix the case for ex-partetrial, against that party, if he fails to pre-pay costs as ordered byCourt?
Does the filing of the photocopies of the proceedings of the originalcase record of the District Court, which are not certified by tteRegistrar, but only certified by the registered Attorney-at-Law,amount to non compliance of Rule 46 of the Supreme Court Rules ?
Briefly, the facts relevant to this appeal are as follows:
The plaintiff instituted this action in the District Court of Mount Laviniaagainst the 1st defendant and the 2nd defendant seeking, inter alia, ajudgment for divorce against the 1 st defendant on the ground of adultery ofthe 1 st defendant with the 2nd defendant and/or on the ground of maliciousdesertion by the 1 st defendant, for an order directing the 1 st defendant topay permanent alimony in a sum of Rs. 5 million to the plaintiff and also foran order directing the 2nd defendant to pay a sum of Rs. 5 million asdamages to the plaintiff. When the case came up for trial on 12.01.2004,the 2nd defendant appeared in person and informed Court that her Attorney-at-Law has revoked his proxy. The learned District Judge ordered the 2nddefendant to pre-pay costs of Rs. 5,000/- to the plaintiff on or before thenext date of trial and re-fixed the case for further trial on 06.05.2004. The2nd defendant signed the case record agreeing to make the payment ofcosts on or before 06.05.2004, which was the next date fixed for thecommencement of the trial. On the next date of trial, the 2nd defendantwas not present in Court and failed to make the pre-payment of costs asdirected by Court. Her counsel however appeared in Court, and made anapplication for postponement as the 2nd defendant was absent due to anunavoidable circumstance and also submitted that the 1 st defendant hasdied, hence the action cannot proceed against the 2nd defendant. Thelearned District Judge overruled this objection and fixed the case forex-parte trial against the 2nd defendant. It is against this order that the2nd defendant has filed this appeal.
264
Sri Lanka Law Reports
(2006) 2 Sri L R.
I will now consider the first question for determination. When the casewas taken up for trial on 06.05.2004, the 2nd defendant was absent andthe Attomey-at-Law for the 2nd defendant moved for a postponement.However, the learned judge refused this application and fixed the case forex-parte trial.
The Court can fix a case for ex-parte trial either under section 84 orsection 144 of the Civil Procedure Code.
Section 84 of the Civil Procedure Code reads as follows:
“If the defendant fails to file his answer on or beforethe day fixed for the filing of the answer, or on or beforethe day fixed for the subsequent filing of the answer orhaving filed his answer, if he fails to appear on the dayfixed for the hearing of the action, and if the court issatisfied that the defendant has been duly served withsummons, or has received due notice of the day fixed forthe subsequent filing of the answer, or of the day fixedfor the hearing of the action, as the case may be, and if,on the occasion of such default of the defendant, theplaintiff appears, then the court shall proceed to hearthe case ex-parte forthwith, or on such other day as thecourt may fix.”
Section 144 of the Civil Procedure Code reads as follows:
“If on any day to which the hearing of the action isadjourned, the parties or any of them fail to appear, thecourt may proceed to dispose of the action in one of themodes directed in that behalf by chapter XII, or makesuch other order as it thinks fit.”
Section 24 of the Civil Procedure Code permits a party to make anyappearance or application in Court by an Attorney-at-Law.
The question that arises is whether the trial judge had followd the correctprocedure when the Attorney-at-Law for the 2nd defendant appeared inCourt and moved for a postponement. A party is entitled to decide whether
CA
Kandasamy Vs. Kandasamy (Wimalachandra, J.)
265
he should be present in Court or be legally represented in Court in terms ofsection 24 of the Civil Procedure Code. In the case of De Mel Vs.Gunasekera(1> it was held that if an advocate appeared and moved for apostponement then the proceedings should be considered as inter-partes,In Perumal Chatty Vs. Goonetilleke(2> the Supreme Court observed thatthere is no requirement for the defendant to appear personally and it issufficient if he is represented by his proctor.
In terms of section 54 and section 144, the Court may fix a case for ex-parte trial upon the default or non appearance of the defendant. However,on the trial date if the defendant does not appear but an Attorney-at-Lawappears on his behalf and acts and pleads on his behalf, the defendant isdeemed to have duly appeared before Court.
When sections 84 and 144 of the Civil Procedure Code are read withsection 24 of the Code, it appears that it is not necessary for a defendantto be present in person, but he is deemed to have duly appeared beforeCourt when he is represented by the registered Attorney-at-Law or anAttorney-at-Law on the instructions of his registered Attorney-at-Law.
The Indian Civil Procedure Code has identical provisions. (Order III Rule1 of the Indian Civil Procedure) in the Indian case of Sohanlal and Anotherl/s. Devachandl3> Modi, J. held that the presence of counsel for a party isequivalent to that of the party himself according to the scheme envisagedin our Civil Procedure Code subject to the limitation, namely, where counselfor a party pleads no instructions to Court, his mere physical presence isof no avail.
At 15 Modi, J. made the following observations:
“A party when he has engaged counsel by a properwriting and has briefed him for the case, the latter isperfectly competent in law to represent the party in Courtand act and plead on his behalf and the personalappearance of the party is not necessary and cannot beinsisted upon unless by virtue of a specific provision oflaw the Court calls upon the party to appearpersonally.
We are further of opinion that the party concernedwhether he be plaintiff or defendant or appellant orrespondent who has already arranged for his due
266
Sri Lanka Law Reports
(2006) 2 Sri L R.
representation in Court through a duly instructed pleader,need not be called upon also to assign sufficient reasonfor his own absence at the hearing, the reason beingthat the party has made all reasonable arrangements forhis representation in Court, and he should not stand tobe penalised for his own absence in such circumstances.”
In these circumstances, I am inclined to agree with the submissionmade by the learned Counsel for the 2nd defendant that the appearance ofthe registered Attorney or the counsel on the trial date constitutes a validappearance on behalf of the particular party, and in such circumstancesthe Court cannot fix the case for ex-parte trial as it was done in the casebefore us.
In the instant case, when the case was taken up for trial on 06.05.2004the 2nd defendant was absent and his counsel moved for a postponement,However, the learned trial judge refused the application made by the counselfor the 2nd defendant and fixed the case for ex-parte trial due to the non-appearance of the 2nd defendant.
The learned judge in her order has stated as follows:
In my opinion, if the learned judge was of the view that the applicationmade by the counsel for the 2nd defendant should be refused, the learnedjudge should have directed to proceed with the trial inter-partes.
In the case of Isek Fernando Vs. Rita Fernando and Another it washeld that:
Perusal of Section 24 of the Civil Procedure Codedemonstrates the fact that an appearance of a partymay be by an Attorney-at-Law. When a client requestsan Attorney-at-Law to make an application it is anapplication the Attorney-at-Law makes on behalf of theparty he represents for the due administration of justice.
When Court decides to refuse an application made bycounsel for the adjournment of proceedings the Court
CA
Kandasamy Vs. Kandasamy (Wimalachandra, J.)
267
has only one option-inform the counsel that he shouldproceed with the trial inter-partes.
Appearance may be by the party in person or by hiscounsel or his registered Attorney, and where thedefendant is absent but is represented by counsel or byAttorney-at-Law and the Court is satisfied on theevidence adduced by the plaintiff, Court must enter afinal judgment and not an order Nisi. Judgment mustbe considered as being pronounced inter'partes and notex-parte.
The trial Judge erred in law by deciding to hold an ex-parte trial offending section 84 read with section 24 ofthe Civil Procedure Code.
Justice Jayasinghe who delivered the judgment is this caseat 33 made the following observations:
“When a client requests an Attorney-at-Law to makean application it is an application the Attorney-at-Lawmakes on behalf of the party he represents for the dueadministration of justice. Court will disallow anapplication only upon being satisfied that the applicationis not tenable in the circumstances. This is discretionaryand must be founded on sound reasoning. When courtdecides to refuse an application made by counsel for theadjournment of proceedings the Court has only oneoption. Inform the counsel that he should proceed withthe trial. If he decides to allow the application he canmake good the inconvenience caused to the other partyby the payment of appropriate costs. If the judge decidesto refuse the application then he is left with no option butto proceed with the trial as inter-partes."
In these circumstances, the learned Judge erred in law by fixing thecase for ex-parte trial without following the correct procedure which wouldhave been either to allow the application made by the coui isel for ii ie 2i iddefendant or to refuse the application and direct to proceed with the caseinter-partes.
2- CM 8099
268
Sri Lanka Law Reports
(2006) 2 Sri L R.
It appears from the above mentioned journal entry that the 2nddefendant’s registered Attorney-at-Law has revoked the proxy and therewas no legal representation for the 2nd defendant. The Court has thepower in terms of section 84, 91A and 143 to grant a postponement insuch an event. When such postponement are granted, the court can ordercosts for the opposing parties and can also impose terms. It is to beobserved that the Court has not imposed conditions, in the instant casesuch as that the case would be fixed for ex-parte trial if the costs orderedby the Court is not paid on or before the next date of trial. More over suchconditions are imposed with the consent of the parties.
It was held in the case of Piyaseeli vs. Prematilleke,5) that, “an orderthat the action would be dismissed if the plaintiff failed to pay nominatedcosts before a fixed date and time if made without consent of the partiesdoes not entitle the Court to dismiss the action where such costs are notpaid as stipulated.”
In the case of Calistus Perera Vs. Nawanage<6) the Supreme Courtconsidered whether a trial judge who allows a party’s application for apostponement of the trial, on the terms that he shall pre-pay costs beforethe next date of trial, has the power to make and implement an order thatjudgment will be entered against him if he fails to pay those costs, evenwhere he has not consented to such order. Justice Mark Fernando afteranalysing the relevant sections 82, 91A and 143 of the Civil Procedure
Accordingly the order made by the Judge fixing the case for ex-partetrial is set aside.
With regard to the second question for determination, the learned counselfor the plaintiff submitted that the 2nd defendant has signed the caserecord agreeing to the order of prepayment of costs and thereby waivedthe right to be heard if she defaulted in the payments of the said costs asdirected and agreed upon.
The relevant part of the journal entry No. 45 dated 12.01.2004 readsthus :
CA
Kandasamy Vs. Kandasamy (Wimalachandra, J.)
269
Code and after considering all the relevant authorities held that; sections82 and 143 of the Civil Proceduere Code confer only a judicial discretionand the scope of that discretion-even if seemingly unfettered – is limited bythe purpose for which it was conferred ; to compensate for the expense,delay and inconvenience occasioned by the postponement; but not toaffect the substantive rights of the parties in the subject matter of thelitigation. Section 91A introduced by Law No. 20 of 1977 does not grant,even by implication, a power to the Court to dispense with adjudication.The section is a general provision intended to deal with various acts andsteps in the proceedings. It was further held :
"Nowhere does the Code confer on a judge the power togive judgment against a party merely because he fails to paycosts without an adjudication on the merits becauseadjudication is the essence of judicial duty, the purpose forwhich courts exist.
Where the court allows a party’s application for apostponement of the trial on the terms that he shall pre-paycosts before the next trial date* the court has no power toimplement an order that judgment will be entered against himif he fails to pay those costs where he has not consented tosuch order.”
The learned counsel for the plaintiff relied on the case of FrancisWanigasekera Vs. Pathirana(T) for his contention that an agreement topre-pay costs on or before a particular date and the signing of the caserecord, it becomes incumbent on the party signing the case record, toduly pay the same, or to suffer the necessary consequences of forfeitingthe right to be heard. The learned counsel submitted that it was perfectlyjustified in law for the learned Judge to fix the case for ex-parte trial uponthe 2nd defendant failing to pay the costs, as undertaken by her.
The facts in Francis Wanigasekera's case (supra) are different from thefacts in the case before us. In that case the 2nd defendant-appellant agreedto the prepayment order.
However, in the instant case there was no condition that the case wouldbe fixed ex-parte if the cost was not paid on or before the next date, andthere was no agreement between the parties that the case would be fixed
270
Sri Lanka Law Reports
(2006) 2 Sri L R.
for ex-parte trial against the 2nd defendant if the exists were not pre-paid.Accordingly, the Court is not empowered to fix the case for ex-parte trial if thedefendant fails to pay costs where she has not consented to such an order.
In any event the law with regard to this question has been now settledby the decision in the Supreme Court case of Calistus Perera vs.Nawanage (Supra) where it was held that the trial judge had no jurisdictionto give judgment for the plaintiff merely because the defendant has failedto pre-pay the costs ordered without the defendant’s consent.
In the circumstances, I am of the view that the learned District Judgeerred in law when she decided to fix the case for ex-parte trial as againstthe 2nd defendant for non-payment of prepaid costs.
The next question for decision in this appeal is whether the filing ofphotocopies of the proceedings of the original case record of the DistrictCourt which are not certified by the Registrar, but only certified by theregistered Attorney-at-Law amounts to non-compliance of Rule 46 of theSupreme Court Rules.
Rule 46 of the Supreme Court Rules is identical to Rule 3 of the Courtof Appeal (Appellate Procedure) Rules 1990.
The learned counsel for the plaintiff submitted that the documentsmarked P1, P4, P5, P6 and P10, which are annexed to the 2nd defendant’sapplication, are not duly certified copies certified by the Registrar of theDistrict Court of Mount Lavinia.
The learned counsel for the 2nd defendant submitted that the 2nddefendant did not receive the certified copies although she applied for thesame. An application for leave to appeal has to be filed within 15 days ofthe impugned order. Therefore it often happens that the parties may not beable to obtain certified copies of the documents, may be due toadministrative difficulties, to be filed along with the application. It is to benoted that the 2nd defendant had sought the permission of Court to tenderthe certified copies as soon as they were made available to the 2nddefendant. (Vide paragraph 14 of the petition). The 2nd defendantsubsequently obtained the certified copies and made them available toCourt when the matter was supported on 31.05.2004. It is to be observedthat he had filed a motion on 28.05.2004 and tendered to the Registrythe certified copies of the documents marked as P2, P3, P7, P8, P9and P10.
CA
Kandasamy Vs. Kandasamy (Wimalachandra, J.)
271
It was held in the case of Rasheed AH Vs. Mohamed Ali(8) that theCourt does not expect a person to do the impossible and in a situationwhere the parties are left no time to obtain documents as required by Rule46.in view of the great urgency of the matter the Court may permit thepetitioner to comply with the requirement subsequent to filing of the petition.Although the Rule 46 has a mandatory effect any omission can be rectifiedat a later stage with permission of Court.
In the instant case the 2nd defendant mentioned in her petition that dueto reasons beyond her control certified copies could not be obtained intime and hence sought the permission of Court to tender them subsequently.
In the case of Kiriwantha Vs. Navaratne® the Supreme Court held that“a failure to comply with the rule is curable by subsequent compliancewhere the Court holds that initial compliance was impossible by reason ofcircumstances which are beyond the control of the applicant." MarkFernando, J. who delivered the judgment made the following observations:
“The weight of authority thus favours the view thatwhile all these rules (Rules 46,47,49.35) must be compliedwith the law does not require or permit an automaticdismissal of the application or appeal of the party indefault. The consequence of non-compliance (by reasonof impossibility or for any other reason) is a matter fallingwithin the discretion of the Court, to be exercised afterconsidering the nature of the default, as well as excuseor explanation therefor, in the context of the object ofthe particular Rule.”
In the circumstances, the 2nd defendant is not guilty of non compliancewith Rule 3(1) of the Court of Appeal Rules and there is no irregularitywhich would disable the 2nd defendant from maintaining this application.
For these reasons I have given I allow the appeal and set aside theorder of the learned District Judge dated 06.05.2004. The 2nd defendant isentitled to a sum of Rs. 10,000 as costs of this appeal.
ANDREW SOMAWANSA, J. (P/CA) — / agree.
Appeal allowed.