L. S. J. DE SILVA, Appellant, and T.T. DE SILVA, Respondent

094-NLR-NLR-V-77-L.-S.-J.-DE-SILVA-Appellant-and-T.T.-DE-SILVA-Respondent.pdf


554
De Silva v. De Silva
Present: Walgampaya, J., Weeraratne, J., and
Vythialingam, J.
S. J. DE SILVA, Appellant, and T. T. DE SILVA, Respondent.
S. C. 182/72 (Inty) —D. C. Kalutara 1149/D
Civil Procedure Code—Sections 85 and 86—Summons served ondefendant—Defendant absent and unrepresented—Case fixed for-ex parte trial—Defendant moves to vacate order for ex parte-trial before the date fixed for ex parte trial—Court vacates orderfixing the case for ex parte trial—Legality of such order.
In a divorce action summons was served on the defendant for22.5.72 but she was absent and unrepresented on that date and exparte trial was fixed for 14.6.72. On 5.6.72 the defendant filed paperssetting out the reasons for her absence on 22.5.72 and moved thatthe order for ex parte trial be vacated and that she be given adate to file her answer.
Held, (i) that it was not open to the defendant to show causefor her default before ex parte trial was held anddecree nisi was entered ;
(ii) that it is an imperative provision of law that wherethe defendant is in default the court should proceedto trial ex parte as the next step and enter decreenisi or dismiss the plaintiff’s action if he fails to provehis case.
“ The scheme of the ordinance is that, where thedefendant is absent on the day fixed for his appearance*and answer, trial ex parte should be held eitherimmediately or as the next step. ”
K.A. Perera Vs. H. E. Alwis, 60 N. L. R. 260 and EdirisingherVs. Gunasekere, 68 C. L. W. 110 not followed.
N. M. Sally Vs. M. A. Noor Mohamed, 66 N. L. R. 175 and TheBoard of Directors of Ceylon Savings Bank Vs. R. Nagodavitane,71 N. L. R. 90 followed.
D. R. P. Goonetilake for^the Plaintiff-appellant.
M. L. de Silva for the defendant-respondent.
Cur. adv. vult.
VYTHIALINGAM, J.—De Silva v. De Silva
555.
November 24, 1974. Vythialingam, J.—
The plaintiff filed this action against the defendant for a.divorce on the ground of malicious desertion and/or constructivemalicious desertion. Summons was served on the defendant for
but she was absent and unrepresented on that date andex parte trial was fixed for 14.6.72. On the following day thedefendant’s proctor filed his proxy and moved that the orderfor Ex Parte Trial be vacated and that a date be given to thedefendant to file her answer. The case was mentioned in openCourt on the following day and the defendant was ordered tofile proper papers and move.
On 5.6.72 the defendant filed petition and an affidavit settingout the reason for her absence on 22.5.72 and moved that theorder for ex parte trial be vacated and that she be given a dateco file her answer. Order was made to mention this matter on
the day fixed for the ex parte trial. Objection was takenby Counsel for the plaintiff and, after inquiry, the learned Judgereserved his order for 3.7.72. On that date he made order vacatingthe order fixing the case for ex parte trial and allowed thedefendant an opportunity to file answer and defend the action.
The plaintiff appeals against this order. The grounds on whichthe defendant sought to excuse her absence on 22.5.72 aresubstantially the same as those set out by her proctor in hismotion filed on 23.5.72. The reason was that there had beenradio and newspaper announcements that the cases fixed for22.5.72 would not be taken up, but would be postponed as it wasthe day fixed for the promulgation of the new RepublicanConstitution. The District Judge accepted this as true and thatthere were reasonable grounds for the default. He also statedthat it is a fact that on this date all cases were called andpostponed for a subsequent date. This is belied by the orderhe himself made in this case on that date, for he did not postponethe case but fixed the case for ex parte trial.
• Be that as it may, the objection taken up by learned Counselfor the plaintiff is a purely legal one. His submission is thatonce the case is fixed for ex parte trial owing to the absence ofthe defendant, the District Judge had no power to vacate it, butshould have gone on to hold the ex parte trial. It is only afterthat is done that the defendant can come in and show cause*why the decree nisi should not be made absolute. It is not opento the defendant to do so at any earlier stage in view of theexpress.provisions of section 85 of th^ Civil Procedure Code.
That section omitting words which are not material for the.present purpose is as follows : “ If thfe defendant fails to appear
on the day fixed for his appearance and answer and
If the Court is satisfied by affidavit of the process server statingthe facts and circumstances of the service or otherwise that the
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V YTHIALIN*GAM, J.—De Silva v. De Silva
•defendant has been duly served with summons and
if on the occasion of such default of the defendant the plaintiff-appears, then the Court shall proceed to hear the case ex parte
and to pass a decree nisi in favour of the plaintiffand
shall issue to the defendant a notice of every such decree nisi. ”
Section 86 affords an opportunity to the defendant, on the•decree nisi being served on him, to cure his default by satisfyingthe Court that there were reasonable grounds for the defaultupon which the decree nisi was passed. If he succeeds in doingso, then the decree nisi will be set aside and the case wouldbe proceeded with as from the stage at which the default wascommitted. If he fails to so satisfy Court, then decree absolutewould be entered. The question is whether it is open to thfedefendant to do so at a stage anterior to that which is providedfor in section 86, that is before the Court has proceeded to exparte trial and entered decree nisi. On this point there areconflicting decisions.
In the case of K. A. Perera v. H. E. Alwis (60 N. L. R. 260),H. N. G. Fernando J., Sinnethamby J. agreeing, held that whereon default of appearance of the defendant on the day fixed forhis appearance and answer, a date is fixed for ex parte trialunder section 85, the reason for the default of appearance maybe considered by Court before ex parte trial is held. This casewas followed by Abeysundera J. and Sri Skanda Rajah J. inEdirisinghe v. Gunasekera (68 C. L. W. 110). Abeysundera J.said at page 111: “We hold that the defendant was entitledat any time before the day fixed for ex parte trial to satisfy theCourt that there were reasonable grounds for his absence. ”
Basnayake C.J. and G. P. A. Silva J. took a different viewin the case of N. M. Sally v. M. A. Noor Mohamed (66 N. L. R.175) and held that where a case is fixed for ex parte trial interms of section 85 of the Civil Procedure Code, the reasonsfor the default of the defendant cannot be considered beforethe ex parte trial is held. Basnayake C.J., in refusing to followthe case reported in 60 N. L. R. 260, said : “ The Court has nopower to take a course of action other than that prescribed insection 85 of the Civil Procedure Code when the defendant failsto appear on the day fixed for -the subsequent filing of hisanswer ”. In the case of The Board of.Directors of Ceylon SavingsBank v. R. Nagodavitane (^1 N. L. R. 90), Siva Supramahiam J.with Tennekoon J. (as he then was) agreeing, agreed with theabove observations of Basnayake C.J. that the direction thatthe next step after the default of appearance was thg fixing oftrial ex parte and that it was imperative.
VYTHIALINGAM, J.—De Silva v. De Silva
657
The scheme of the ordinance is 'that, where the defendant isabsent on the day fixed for his appearance and answer, trialex parte should be held either immediately or as the next step.In the case of Wickremasinghe v. Mudiyanse et al (31 N. L. R.344), Garvin J. said at page 345 : “ The Code does not contemplatethe appointment of a day for the ex parte hearing of the plaintiff’s:ase ; it assumes that it will be heard immediately on the dayon which the defendant makes default (vide section 85). This,however, is not the only respect in which it has been foundImpracticable to adhere closely to the procedure in the Codeand it is now the inveterate practice to put off the ex partehearing for a day appointed by the Court. ”
Siva ■Supramaniam J. did not think that the fixing of a dayf<jr ex parte trial was a departure from the express provisionsof the Code, for he said in Nagodavitane’s case at page 92 : “ Thissection (85) does not require that the Court shall proceedimmediately to hear the case ex parte. One of the Dictionarymeanings of the word ‘ proceed ’ is ‘ make it one’s next step ’.The words ‘ shall proceed to hear the case ex pa^rte ’ thereforemean that the next step the Court shall take is to hear the caseex parte. The hearing need not necessarily be on the same day. ”The emphasis is not mine.
Affording the defendant an opportunity to purge his defaultcannot then also be the next step. Siva Supramaniam J. wenton to say : “ The direction, however; in regard to the next stepis imperative and the Court is not empowered to entertain anyapplication for relief from the defendant until the ex parte trialhas been held and decree has been entered in terms of section85 of the Civil Procedure Code. I agree, with great respect, withthe observation of Basnayake, C.J. in Sally v. Noor Mohamed(supra) that “ the Court has no power to take a course of actionother than that prescribed in section 85 of the Civil Procedure-Code when the defendant fails to appear on the day fixed for thesubsequent filing of his answer ”.
•In K. A. Perera’s case (supra), H. N. G. Fernando J. recognisedthat this was the scheme of the Ordinance for he said atpa^gS 261 : “ In effect the Code contemplated that a decree nisiafter ex-parte hearing would be entered so expeditiously thatthere would be neither time nor opportunity for the absentdefendant to intervene before entry of the decree : hence, the6nly appropriate form of relief^was the provision in section 86 (2)for showing cause against the decree being made absolute But.he thought that because of the “ inveterate practice ” of fixing adate for ex parte trial the defendant'should be allowed to avail1himself of J;he time and opportunity thus provided to show causeand thus avoid a trial which might well, prove to be abortive. Hea#lso thought that this “inveterate practice ” was derived not.from the Code but from the inherent powers of Court and that
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VYTIHALIN'GAM, J.—De Silva v. Da Silva
“ equally inherent would be’the power to vacate such an orderon appropriate grounds, and no grounds can be more appropriatethan those on which a decree nisi may be set aside in the courseof strict adherence to the provisions of the Code. ”
For one thing, as I have shown, the fixing of a date for ex-partetrial is derived not from the inherent powers of Court, but fromthe imperative provisions of the Code as the next step, and foranother the inherent powers of Court cannot be invoked toviolate the express provisions of the Code-vide Ka.ma.la v.Andris (41 N. L. R. 71). So that where the Code states that thenext step shall be an ex parte hearing, the Court cannot in theexercise of its inherent powers, take some other step. Moreover,the inconvenience of an abortive trial is only apparent*and notreal. The evidence led in an ex parte trial is of the barestminimum and seldom takes more than a few minutes. In somecases this is done by means of an affidavit, a practice approvedof in Amerasinghe v. Weeraratne (44 N. L. R. 383) but frownedupon, except in exceptional circumstances, in Amerasekera v.Fernando (49 N.L.R. 60).
On the other hand, a far greater difficulty would be created bya departure from the strict provisions of the Code. Where adefendant is permitted to appear and show cause for his defaultbefore entering the decree nisi, then if the Court holds that hehad no reasonable grounds for the default it would proceed to exparte trial and enter decree nisi. In terms of section 85 this hasto be served on the defendant and he can come in and again showcause as to why the decree nisi should not be made absolute, andthe Court would probably have to go through the same inquiryall over again.
It is true that a decision on a matter at one stage of a proceed-ing is binding between the same parties at every subsequentstage of the case, Nagalingam v. Ledchumipillai (55 N. L. R. 280).But here, in spite of that, the express provisions of section 86have to be complied with. This difficulty seems to have bgenenvisaged in Edirisinghe’s case (supra). In that case, afterinquiry, the Judge refused the application because he was of theview that on his own showing the defendant’s absence was notdue to any unavoidable cause. But the District Judge went onto say that the application was premature and that the defendantwould be entitled, only after the decree nisi was entered, >oshow cause. The Supreme Cour*t held that the District Judge"was wrong in taking this view? But to avoid the difficultycreated by section 86, the Supreme Court directed that no furtheropportunity should be given to the defendant to shojv cause forhis absence on the summons returnable date. But this directionwas quite contrary to the express provisions of se.ction 86 andwas therefore not justified in law.
Fernando v. Jaward
659
For these reasons I hold that it was not open to the defendantto show cause for her default before ex parte trial was held and■decree nisi was entered, and that it is an imperative provision oflaw that where the defendant is in default, the Court shouldproceed to trial ex parte as the next step and enter decree nisi ordismiss the plain tiff’s action if he fails to prove his case. Theorder dated 3.7.1972 made by the District Judge is set aside andhe is directed to proceed to ex parte trial. If, thereafter decreenisi is entered against her, it will be open to the defendant topurge her default at that stage. The provisions of section 85apply to divorce proceedings as well—Annamah v. Subra-maniam (53 N. L. R. 547) and Christina v. Cecilin Fernando(65 N-L.r'. 274).
There will be no order for costs either here or in the Courtbelow.
"Walgampaya, J.—I agree.
Weekaratjve, J.—I agree.
Order set aside.