Sri Lanka Law Reports
(1991) 1 Sri L.R.
MERCANTILE CREDIT LIMITEDV.
SISIRA KUMARA AND ANOTHER
COURT OF APPEALWIJEYARATNE J. AND GRERO J.
A. APPLICATION NO. 565/91WITH C.A./L.A. NO. 98/91
C. COLOMBOCASE NO. 5384/M
13 SEPTEMBER, 1991
Civil Procedure – Listing of documents – Applicability of Sections 121(2) and 175(2)of Civil Procedure Code to proceedings unit section 86/(2)
The provisions of sections 121(2) and 175/(2) of the Civil Procedure Code relating tolisting of documents do not apply to an inquiry under section 86(2) to set aside adecree for default. These provisions are applicable only to trials of actions by way ofregular procedure.
Mercantile Credit Limited v. Sisira Kumara and Another(Wijeyaratne, J)309
Cases referred to:
In re Abdul Aziz 1 NLR 196, 199
Pitche Bawa v. Meera Lebbe 2 C.L.R. 174
Subramaniam Chetty v. Soysa 25 NLR 344
Caspersz v. Ratnayake 67 NLR 505
APPLICATION for revision of order of the District Court of Colombo
Chula de Silva, P.C. with R. Deviligoda and C. Liyanapatabendi for plaintiff – petitioner.
K.S. Tiliekeratne for 2nd and 3rd defendants-respondents.
Cur. adv. vult.
10 October, 1991
The plaintiff-petitioner filed this action against the 2nd and 3rddefendants-respondents and another claiming a restricted sum of Rs.1,04,060/67 (together with interest thereon) in respect of a hirepurchase agreement.
As the defendants-respondents did not appear on summons, an exparte trial was held and an ex parte decree was entered againstthem.
After the decree was served on them they jointly filed a petition andaffidavit dated 25.5.90 to set aside the said ex parte decree on theground that summonses were not served on them.
For the purpose of obtaining summons for this inquiry, the plaintiff-petitioner has filed a list of witnesses and documents dated 30.1.91
The said application to set aside the ex parte decree came up forinquiry on 20.5.91 and the 2nd defendant-respondent gave evidence-in-chief and was being cross-examined when he was questionedwhether he had received a red coloured letter of demand and headmitted that he did receive one and that set out the amount to bepaid for the motor vehicle. When learned counsel for the plaintiff-petitioner sought to show this document to the 2nd defendant-respondent with a view to marking it in evidence, learned counselfor the defendant – respondent objected saying that it had not beenlisted. Learned counsel for the plaintiff-petitioner had submitted that
Sri Lanka Law Reports
(1991) 1 Sri L.R.
for an inquiry under section 86(2) it is not necessary to listdocuments and this requirement of listing applies only to trials inregular procedure.
On the other hand, on behalf of the defendants-respondents it wassubmitted that the term "action" has been defined in both sections5 and 6 of the Civil- Procedure Code. It was submitted that havingregard to these definitions this inquiry is an action and therefore alldocuments have to be listed 15 days before the trial as requiredby section 121(2) of the Civil Procedure Code.
The learned Additional District Judge by his order of the same date,i.e., 20.5.91, has upheld the objection. In his order he has statedthat this document does not appear in the list of documents filed bythe plaintiff-petitioner dated 30.1.91. He was of the view that thisdocument should be listed as required by section 121(2) and that itcannot be produced in evidence except with the leave of court givenunder section 175(2).
The plaintiff-petitioner has filed this application to revise and set asidethe said order dated 20.5.91.
This application is one made to court under section 86(2) of theCode to set aside a decree entered against the 2nd and 3rddefendants-respondents for default of appearance. Section 86(3)provides that such application should be made by a petitionsupported by an affidavit.
It cannot be said that this application is one made under ChapterXXIV of the Civil Procedure Code which provides for summaryprocedure. The Code itself (sec. 8) provides for all cases in whichproceedings may be taken by way of summary procedure. – In reAbdul Aziz (1). In the case of Pitche Bawa vs. Meera Lebbe(2) it washeld that the "summary procedure” laid down in Chapter XXIV canonly be adopted in cases to which it is expressly made applicableby the Code. There are several sections of the Code which expresslyprovide that summary procedure is to be followed as, for example,sections 284, 393, 478(2), 480, 481(2), 483(2), 485, 498, 524(1),530(1),537,556(2), 575(1), 583, 589, 591, 593, 595, 608(2)
and670. Even though section 86(3) provides that such an applicationhas to be by petition and affidavit, nevertheless it is not expressly
CAMercantile Credit Limited v. Sisira Kumara and Another
stated that the application has to be by way of summary procedure.
On a consideration of the matter it appears that this inquiry was heldin respect of an application under section 86(2) made in the courseof a regular action. The question arises whether the provisions ofsections 121(2) and 175(2) are applicable to such an inquiry.
The word "action" in section 121(2) can be given a wide meaninghaving regard to the definition of "action" in sections 5 and 6 of theCivil Procedure Code. The learned Additional District Judge in thiscase has held that this inquiry could be considered an "action" andhence the document should be listed under section 121(2).
In the case of Subramaniam Chetty vs. Soysa (3) where a Fiscal'ssale was set aside under section 282 of the Civil Procedure Codeand the purchaser sought leave to appeal to the Privy Council, thequestion arose whether these proceedings amounted to a “suit" or"action" within the meaning of section 4 of the old Appeals (PrivyCouncil) Ordinance No. 31 of 1909.
Bertram C.J. in the said case at page 348 stated as follows:-
"Now, in our Code of Civl Procedure, a very wide meaning isgiven to the word “action”. In section 5 an action is defined asa proceeding for the prevention of redress of a wrong. In section6 it is said that every application to a Court for relief or remedyobtainable through the exercise of the Court's power or authority,or otherwise to invite its interference, constitutes an action. Itseems clear to me, therefore, that this application to the Courtto set aside the sale instituted by a petition to the Court wasan action within the meaning of section 4."
Though the term "action" can be given such a wide meaning toinclude an inquiry under section 86(2), nevertheless sections 121(2)and 175(2) relating to the listing of documents apply only to actionsby way of regular procedure and not to this type of inquiry. Oneimportant factor is that these sections 121(2) and 175(2) appear inthe midst of the chapters dealing with the trials of actions in regularprocedure and they cannot be extended to this type of inquiry. HenceI am of the view that sections 121(2) and 175(2) do not apply tothis inquiry.
Sri Lanka Law Reports
(1991) 1 Sri L.R.
Support for this view is found in the case of Caspersz v. Ratnayake
which related to an inquiry where a legatee had filed a petitionagainst an executor under section 720 of the Civil Procedure Codefor the payment of a legacy and an inquiry was held thereon. Atthe inquiry held in the District Court the learned District Judgehad refused permission to call certain witnesses and also toproduce a document on the ground that they had not been listed.Basnayake C.J. in the said case at page 509 stated as follows: –
"In our opinion the learned District Judge not only placed himselfat a great disadvantage when he disallowed the petitioner'sapplication to place that evidence before the Court, but he alsoacted contrary to law.
The procedure laid down in section 721 of the Civil ProcedureCode is of a special nature and is not the 'regular' procedure,and the provisions of sections 121(2) and 175 are not thereforeapplicable to proceedings thereunder".
Likewise the proceedings under section 86(2) of the Civil ProcedureCode to set aside a decree for default is not the regular procedureto which sections 121(2) and 175(2) are applicable. Therefore thelearned Additional District Judge should have permitted this documentto be admitted and marked in evidence.
In passing I would like to mention that this document was sought tobe marked in cross-examination. In any event the proviso to section175(2) states that the requirement regarding listing is not applicableto documents produced in cross-examination. I
I therefore set aside the order of the learned District Judge dated
and permit the document to be marked in evidence.
GRERO, J -1 agree.
Order set aside.