Sri Lanka Law Reports
[2003) 2 Sri L.R
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
A NO. 363/97/F
C. BADULLA 97/86OCTOBER 4, 1999 ANDJANUARY 18, 2000 ANDFEBRUARY 3, 2000
Civil Procedure Code, section 86(2) – Ex-parte judgment – Decree served ondefendant – Should an application to purge default be made with notice to theplaintiff?
The language used in section 86(2) does not seem to suggest that thedefendant is required to give notice of his application to the plaintiffsimultaneously with the filing of such application.
In the absence of a requirement the notice must accompany the filingof application in court or words with similar import conveying a mean-ing indicative of a specific time frame, one would be justified in assum-ing that the defendant is at liberty to give notice of such applicationeven subsequently.
APPEAL from the judgment of the District Court of Badulla
Karunadasa v Rev. Phillips (Weerasuriya, J.)
Cases referred to:
Ceylon Brewery Ltd., v Jax Fernando – (2001) 1 SriLR 270
Sri Lanka General Workers Union v Senanayake – (1996) 2 Sri LR 268at 273
Edward v de Silva — 46 NLR 342 at 344
D.W. Abeykoon PC with W.G. Deen for defendant-appellantL.C. Seneviratne PC with S. Samarasekera for plaintiff-respondent
August 4, 2002WEERASURIYA, J.
This is an appeal arising from the order of the District Judge 01dated 02.11.1987, dismissing the application of defendant-appel-lant made in terms of section 86(2) of the Civil Procedure Code,seeking to vacate the ex parte decree.
The facts leading upto that application are briefly as follows:
The plaintiff-respondent instituted action against the defen-dant-appellant seeking a declaration of title to the land morefullydescribed in the schedule to the plaint, ejectment of the defendant-appellant therefrom and damages.
On 30.05.1986, upon the report of the fiscal that summons 10had been served on the defendant-appellant, court made orderdirecting the defendant to file proxy and answer on 29.08.1986. On
Mr. Dimbulana filed proxy on behalf of the defendant-appellant and court directed him to file answer on 02.11.1986. On
a final date was granted to the defendant-appellant tofile his answer on 20.02.1987. On this day, upon the failure of thedefendant to file his answer, case was fixed for ex parte trial for
Thus, case was taken up for ex parte trial on
and at the conclusion of the plaintiff’s evidence, decreewas entered in favour of the plaintiff-respondent. Thereafter, upon 20the service of the decree, the defendant-appellant filed an applica-tion by way of petition and affidavit seeking to vacate the ex partedecree entered against him. The plaintiff-respondent objected to
Sri Lanka Law Reports
(2003] 2 Sri L.R
the said application on the ground that notice of such applicationhad not been given to him as required by section 86(2) of the CivilProcedure Code. Learned District Judge after hearing submissions,upheld the objection raised by the plaintiff-respondent and dis-missed the aforesaid application of the defendant-appellant withcosts.
At the hearing of this appeal, both parties preferred to tenderwritten submissions in lieu of oral submissions.
The only matter that arises for determination in this appeal is,whether the learned District Judge was correct in upholding theobjection raised by the plaintiff-respondent that, defendant-appel-lant had failed to comply with the mandatory provision that an appli-cation in terms of section 86(2) must be made with notice to theplaintiff-respondent.
Section 86(2) of the Civil Procedure Code is in the following
“86(2) – Where, within fourteen days of the service ofthe decree entered against him for default, the defen-dant with notice to the plaintiff makes application toand thereafter satisfies court, that he had reasonablegrounds for such default, the court shall set aside thejudgment and decree and permit the defendant to pro-ceed with his defence as from the stage of default uponsuch terms as to costs or otherwise as to the courtshall appear proper”
In the case of Ceylon Brewery Ltd. v Jax Fernando1 it washeld that section 86(2) of the Civil Procedure Code is the provisionwhich confers jurisdiction on the District Court to set aside defaultdecree and that jurisdiction depends on two conditions being satis-fied. One condition is that the application should be made withinfourteen days of the service of the default decree on the defendant.
In the instant case, admittedly the defendant-appellant filedthe application seeking to purge his default within 14 days of ser-vice of the decree. The question that arises for consideration iswhether the non-compliance of the requirement to give notice ofsuch application to the plaintiff is necessarily fatal.
CAKarunadasa v Rev. Phillips (Weerasuriya, J.)143
It was observed in Sri Lanka General Workers Union vSenanayake2
“that where the requirement goes to jurisdiction, it isunquestionably mandatory and the failure to invoke thejurisdiction of a court or tribunal within the prescribedtime limit generally results in the court or tribunal lack-ing the power to deal with the matter.”
The following observations of Soertsz, A.C.J. in Edward v deSilva3 is relevant in examining this question.
“Some of those rules are so vital, being of the spirit ofthe law, of the very essence of judicial action, that afailure to comply with them would result in a failure ofjurisdiction or power to act and that would render any-thing done or any order made thereafter devoid of legalconsequences. The failure to observe other rules, lessfundamental as pertaining to the letter of the law, andthe matters of form would not prevent the acquisition ofjurisdiction or power to act, but would involve exerciseof it in irregularity.”
The language used in section 86(2) does not seem to sug-gest that the defendant is required to give notice of his applicationto the plaintiff simultaneously with the filing of such application. Inthe absence of a requirement that notice must accompany, the fil-ing of application in court or words with similar import conveying ameaning indicative of a specific time frame, one could be justifiedin assuming, that the defendant is at liberty to give notice of suchapplication even subsequently. Therefore, the failure to give noticeto the plaintiff, simultaneously with the filing of the application wouldnot amount to a defect which is necessarily incurable.
For the above reasons, I set aside the order of the DistrictJudge dated 02.11.1987 and direct him to proceed to inquire intothe application of the defendant-appellant and make an appropriateorder in accordance with the law.
This appeal is allowed with costs.
DISSANAYAKE, J.I agree.
KARUNADASA v. REV. PHILLIPS