046-SLLR-SLLR-2006-V-1-LINGANATHAN-AND-ANOTHER-vs.-JAFFERJEE-AND-OTHERS.pdf
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Dr. Gamini Goonetilleke and Others vs. ,
The University of Colombo and Others (Sriskandarajah, J.)
353
LINGANATHAN AND ANOTHERVSJAFFERJEE AND OTHERSCOURT OF APPEAL,
SOMAWANSA, J (P/CA), ANDWIMALACHANDRA,J,CALA 176/2004,
DC COLOMBO 1917/L,
APRIL 29, 2005.
Civil Procedure Code, sections 87 (1),88 (2), 754(1) 754(2), and 754 (5)-Plaintiffsaction dismissed-No appearance for plaintiff-Application to purge defaultdismissed-ls this order a judgment or an interlocutory order?
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(2006) 1 Sri L R.
HELD:
In applying the provisions of sections 87 and 88 to the facts of the case, it isclear that a direct appeal would lie and there was no provision in law for leaveto appeal.
APPLICATION for leave to appeal from an order/judgment of the District Courtof Colombo.
Cases referred to
A. S. Sangarapillai and Brother vs. Kathiravelu-Sri Skantha LawReports Vol 2-99
Wijenayake vs. Wljenayake – Sri Skantha Law Reports Vol 5-28
Romesh de Silva, PC with S. Amerasekera for plaintiffs-petitioners-petitioners.
Sunil Cooray with Sisira Siriwardene for defendant-respondents-respondent.
Cur.adv.vult
July 01,2005
ANDREW SOMAWANSA, J. (P/CA)When this application for leave to appeal was taken up for inquiry counselfor the defendants-respondents took up a preliminary objection to themaintainability of this application on the basis that the order dated
marked X12 which is the order against which the plaintiffs-petitioners are seeking leave to appeal in the instant application, is anorder refusing to set aside the judgment dated 11.09.2002 by which theplaintiffs-petitioners action was dismissed for default in appearance in termsof Section 87(1) of the Civil Procedure Code and that therefore in terms ofSection 88(2) of the Civil Procedure Code the aforesaid order dated
marked X12 is liable to an appeal to the Court of Appeal
On the aforesaid preliminary objection taken by the defendants-respondents both parties agreed to tender written submissions and bothparties have tendered their written submissions.
Linganathan and another vs.
Jafferjee and others (Somawansa, J. (P/CA)
355
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The relevant facts are on the completion of pleadings the trial commencedand on an order made by this Court proceedings of the trial was stayed.Thereafter the case had been called in the District Court on severaloccasions and it was finally fixed for trial on 11.09.2002 on which date theplaintiffs-petitioners’ action was dismissed on the basis that there was noappearance for the plaintiff-petitioners. The plaintiffs-petitioners sought toset aside the said order of dismissal of their action on the basis that theirattorney-at-law had inadvertently taken down a wrong date as the date ofthe trial. At the conclusion of the inquiry the learned Additional DistrictJudge by his aforesaid order dated 07.05.2004 marked X12 dismissed theplaintiffs-petitioners’application.
It is contended by counsel for the plaintiffs-petitioners that it is imperativefor the plaintiffs-petitioners to maintain an application for leave to appealfor the reason that the order of the learned Additional District Judge markedX12 is being challenged mainly due to his failure to consider the affidavitsof the plaintiffs-petitioners on the basis that they were not challenged asper the proceedings dated 29.05.2003 and the learned Additional DistrictJudge has to be directed to make an order on the basis that the affidavitsare unchallenged. In the circumstances he submits that it is imperative forthe plaintiffs-petitioners to challenge the order of the learned AdditionalDistrict Judge marked X12 by way of leave to appeal rather than await afinal appeal in this regard. He further submits that due to the dismissal ofthe plaintiffs-petitioners’ action the injunction granted by Court preventingthe defendants-respondents from obstructing the plaintiffs-petitioners useof the road way has also come to an end which can cause untold hardshipto the plaintiffs-petitioners, if the plaintiffs-petitioners were to await thehearing of the final appeal.
I am unable to subcribe or agree that the aforesaid reason submitted byCourt would entitle the plaintiffs-petitioners to proceed with this leave toappeal application. At this stage it would be useful to consider the relevantprovisions of the Civil Procedure Code.
Section 87(1) “Where the plaintiff or where both the plaintiff and thedefendant make default in appearing on the day fixed for the trial, the courtshall dismiss the plaintiff’s action.
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Where an action has been dismissed under this Section, the plaintiffshall be precluded from bringing a fresh action in respect of thesame cause of action.
The plaintiff may apply within a reasonable time from the date ofdismissal, by way of petition supported by affidavit, to have thedismissal set aside, and if on the hearing of such application, ofwhich the defendant shall be given notice, the court is satisfied thatthere were reasonable grounds for the non-appearance of the plaintiff,the court shall make order setting aside the dismissal upon suchterms as to costs or otherwise as it thinks fit, and shall appoint aday for proceeding with the action as from the stage at which thedismissal for default was made.”
Section 88(1) “No appeal shall lie against any judgment entered upondefault.
(2) The order setting aside or refusing to set aside the judgment enteredupon default shall be accompanied by a judgment adjudicating uponthe facts and specifying the grounds upon which it is made, andshall be liable to an appeal to the Court of Appeal.”
In the instant action the order dated 11.09.2002 had been made interms of Section 87(1) of the Civil Procedure Code and the order dated
marked X12 has been made in terms of Section 88(2) thereforethe order marked X12 was liable to an appeal to the Court of Appeal andthe remedy sought by the plaintiffs-petitioners is misconceived in law. Inapplying the provisions contained in Sections 87 and 88 of the Civil ProcedureCode to the facts of the instant action, it is clear that a direct appeal wouldlie from the order marked X12 and there was no provisions in law for leaveto appeal as sought by the plaintiffs-petitioners.
Applicability of Section 88(2) was fully considered by the Court of Appealin the decision in A. S. Sangarapillai and Bros. vs. Kathiraveh/') whereinit was held that an order made under Section 88(2) of the Civil ProcedureCode gives rise to a direct appeal and not leave to appeal. The facts of thatcase were as follows : The plaintiff filed action to eject the defendant from
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Linganathan and another vs.
Jafferjee and others (Somawansa, J. (P/CA)
357
certain shop premises. On the summons returnable date the defendantdid not appear and the case was taken up ex parte and thereafter judgmentand decree were entered in favour of the plaintiff. After the writ was executedthe defendant filed an application to set aside the ex parte judgmententered against him for default on the ground that summons were notserved on him. After inquiry order was made setting aside the judgmententered against the defendant for default of appearance and allowing thedefendant to file answer and also restoring possession to the defendant.Against this order the plaintiff filed a leave to appeal application and revision.Certain preliminary objections were taken to this application one of whichwas that leave to appeal is not available as the order complained of was anappealable order and therefore notice of appeal should be filed. At page103 per Siva Selliah, J :
“In the instant case I am of the view that the determination ofthe District Judge made on 01.09.1983 setting aside thejudgment entered against the defendant for default of appearancedue to non-service of summons and allowing him to file answeris an ‘order’ made under Section 88(2) of the Civil ProcedureCode and that due to the special provision contained thereinand the in-built safeguard provided thereby and considering thetenor of the judgments of Vaitilingam, J and Abdul Cader, J and
O.S. M. Seneviratne, J quoted above, I hold that a direct appealis provided for in the circumstances and that an application byway of leave to appeal does not lie”.
Again in Wijeyanayake vs. Wijeyanayak42) the facts were: the defendantmade an application to set aside the exparfejudgment entered i n favourof the plaintiff on the ground that summons had not been served on him,the learned District Judge made order refusing to set aside the ex partejudgment and decree and against this order the defendant preferred aleave to apeal application to which a preliminary objection was taken onthe basis that the remedy sought by the defendant is mosconceived inlaw. At page 29 per Palakidnar, J :
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‘The section referred to above sets out clearly andunambiguously the right of appeal given to a party in eitherevent. The order though so described is accompanied byjudgment adjudication upon the facts. Thus any misconceptionwith regard to the appealibility of the order under Sec. 88(2) isclearly removed. It is a final order accompanied by a judgmentdeciding the rights of the parties in a conclusive way within thecontemplation of the term judgment set out in Section 754(1)of the Civil Procedure Code. An order as interpreted in Section754(5) is a final expression of any decision action which is nota judgment. In the instant case statute requires that the orderhas to be accompanied by a judgment adjudication on thefacts. Thus it is clearly a judgment as defined in Sec. 754(5).”
The right of appeal is given by the words ‘shall be liable to appeal’. Thusone cannot conceive it to be an order to appeal from which leave from theCourt of Appeal should be first had and obtained as set out in Section754(2) of the Civil Procedure Code. The remedy sought is thereforemisconceived. In the circumstances the reason adduced by counsel forthe plaintiffs-petitioners cannot override the specific provisions set out inthe Civil Procedure Code.
For the foregoing reasons, irrespective of the merits of this applicationas there is no statutory provisions for leave to appeal against the orderdated 07.05.2005 marked X12 the instant application cannot be maintainedor proceeded with and has to be dismissed. Accordingly the applicationfor leave to appeal made by the plaintiffs-petitioners is dismissed withcosts fixed at Rs. 5000.00.
WIMALACHANDRA, J. — I agree.Application dismissed.