MRS. SIRIMAVO BANDARANAIKE
. v.TIMES OF CEYLON LIMITED
M.^D. H. FERNANDO, d.
DHEERARATNE, J. ANDRAMANATHAN, J.
S.C. APPEAL 20/91
A. NO. 515/84
C. COLOMBO 81692/MJANUARY 19, 1995.
Revision – Has Court of Appeal jurisdiction by way of revision to reverse or varyan ex parte judgment entered against a defendant in default of appearance? -Duty of court in an ex parte trial – Duty of counsel – Sections 84, 85, 87, 88, 753,754 of the Civil Procedure Code.
The Times of Ceylon Limited (defendant-respondent) published severalnewspapers including the Times of Ceylon. On 2.8.1977 the businessundertaking of the defendant “having its registered office at No. 3 Bristol Street,Fort, was vested in the Government under and in terms of the BusinessUndertakings (Acquisition) Act, No. 35 of 1971 and a Competent Authority wasappointed under that Act to administer the business undertaking. The “SundayTimes” of 4.12.77 reported that Mr. E. L. Senanayake, then Minister of Agricultureand Lands had stated that the plaintiff-respondent (the plaintiff) had revalued herlands in order to obtain enhanced compensation from the Land ReformCommission.
On 18.9.1978 the plaintiff filed action in the District Court of Colombo against thedefendant alleging that this and a related statement were defamatory of her. TheGovernment takeover was not disclosed. The defendant did not appear on thesummons returnable date (17.11.78) and – ex parte trial was fixed for 10.1.79. On10.1.79 witness Dr. K. L. V. Alagiyawanna gave evidence and produced theSunday Times of 4.12.77 but neither did he say that the defendant published nordid he mention that the Government had taken over the defendant's undertaking.The name of the printer and publisher was stated in newspaper marked inevidence as "printed and published by the Competent Authority, Republic of SriLanka successor to the business undertaking of Times of Ceylon Ltd…” Howeverthe trial judge entered judgment against the defendant on 29.1.79. On 17.4.79 thedraft decree was tendered to the District Court and signed. There was no journalentry that the copy of the decree was served on the defendant. On 29.12.80 theplaintiff applied for execution. The Court ordered notice on the defendant and theFiscal reported on 13.2.81 there was no such establishment. Notice was re-issuedand a copy was sent to the Competent Authority. The Fiscal reported on 17.3.81that notice was pasted on the front door of the building of Times of Ceylon Ltd.and also served on the defendant at No. 9, Castle Street, Borella. The defendantfiled objections stating that no summons or decree was served and praying thatproceedings be set aside and that permission to file answer and defend theaction be allowed. On 12.3.82 the Court upheld the objections and set aside theex parte judgment and decree and ordered summons to re-issue on thedefendant. This order was affirmed by the Court of Appeal on 13.8.82. On appealto the Supreme Court, the Supreme Court allowed the appeal and set aside theorders of the District Court and Court of Appeal by the judgment reported in(1948) 1 Sri LR 178. Thereupon on 18.4.84 the defendant applied to the Court forrevision of the ex parte judgment. The Court of Appeal by its judgment deliveredon 11.12.90 held that the defendant had nothing to do with the impugnedpublication and there had been a failure of justice and set aside the judgmentand dismissed plaintiff's action. In the meantime plaintiff had recovered the sumof Rs. 750,000/- from the defendant. The Court of Appeal ordered the plaintiff torepay this sum to the defendant but refused defendant's claim for interest. Leaveto appeal to the Supreme Court was granted on the following questions.
Whether the remedy of revision is available in law to the (defendant) havingregard to all the facts and circumstances of this case?
Whether the Court of Appeal had jurisdiction to revise the order of thelearned District Judge entering judgment ex parte in favour of the plaintiff, whichorder (it is claimed) had been restored by the Supreme Court and had becomeres adjudicata between the parties?
Held: (Ramanathan, J. dissenting)
Judgment had been entered when there was not a scrap of evidence thatdefendant was responsible for the defamatory publication and no finding hadbeen made on the question of publication.
The plaintiff's lawyers, unfortunately, failed to teli the trial judge that thedefendant was not responsible for the impugned publication, despite their duty tocourt (now stated in Rule 51 of the Supreme Court (Conduct of and Etiquette forAttorneys-at-Law) Rules 1988) not to mislead or deceive or permit a client tomislead or deceive in any way the Court before which they appear.
The decision of the Supreme Court of 1.2.84 had the effect of restoring theex parte judgment, but the Supreme Court did not expressly affirm or approve thejudgment. None of the Courts considered the legality or propriety of thejudgment.
Even in an ex parte trial, the judge must act according to law and ensure thatthe relief claimed is due in fact and in law, and must dismiss the plaintiff's claim ifhe is not entitled to it. An ex parte judgment cannot be entered without a hearingand an adjudication.
The revisionary jurisdiction of the Court of Appeal in Article 138 of theConstitution extends to reversing or varying an ex parte judgment against thedefendant upon default of appearance on the ground of manifest error orperversity or the like. A default judgment can be canvassed on the merits in theCo*rt of Appeal in revision, though not in appeal and not in the District Courtitself.
The judgment of the Supreme Court holding that the defendant had failed topurge its default does not amount to an affirmation of such ex parte judgment, soas to preclude the exercise by the Court of Appeal of its revisionary jurisdiction.
Section 85(1) requires that the trial judge should be “satisfied" that theplaintiff is entitled to the relief claimed. He must reach findings on the relevantpoints after a process of hearing and adjudication. This is necessary where lessthan the relief claimed can be awarded if the Judge's opinion is that the entirety ofthe relief claimed cannot be granted. Further, sections 84, 86 and 87 all refer tothe judge being “satisfied" on a variety of matters in every instance; suchsatisfaction is after adjudication upon evidence.
Section 88 must be read with section 753 of the CPC. The fact that section88(1) bars an appeal against an ex parte default judgment restricts the right ofappeal conferred by section 754 of the CPC but does not affect the revisionaryjurisdiction by section 753, if anything it confirms that jurisdiction. From the factthat section 88(2) confers a right of appeal, one cannot possibly infer anexclusion of revisionary jurisdiction on the same matter.
Insofar as a remedy in the District Court is concerned, the general rule is thatjudge is functus officio and cannot review its own judgment. However, section 86
makes an exception, by conferring jurisdiction on the District Court to set aside adefault judgment if it was flawed in procedural respects – but not on the merits.The necessary implication of the grant of that jurisdiction is that the District Courtis not competent to review a default judgment on the merits. There are two distinctissues. The first is whether the ex parte default judgment was procedurally properand this depends on whether a condition precedent had been satisfied namelywhether a proper order for ex parte trial had been made and whether thedefendant had failed to purge his default. The second is whether, apart from thatdefault, the ex parte default judgment was on the merits i.e. in respect of itssubstance, vitiated by lack of jurisdiction, error and the like.
Cases referred to:
Rustom v. Hapangama (1978 – 79) 2 Sri LR 225.
RasheedAli v. Mohamed AH (1961) 2 Sri LR 29.
Ranasinghe v. Henry (1896) 1 NLR 303.
Amadoris v. Mendis (1902) 7 NLR 333.
Municipal Council of Colombo v. Munasinghe (1968) 71 NLR 223, 225.
Beebee v.Mohamed (1965) 68 NLR 36, 38.
Sabapathy v. Dunlop (1935) 37 NLR 113.
Krishen v. Kumar AIR 1954 Jammu & Kashmir 67.
Eknath v. Gov/'ndAIR 1942 Bombay 344.
Gwalior Municipality v. Motilal AIR 1977 Madhya Pradesh 182.
Velupillai v. Sivasithamparam (1961) 67NLR 80.
Mamnoor v. Mohamed (1922) 23 NLR 494.
Perera v. Nawanage S.C. 75/94 SCM 14.10.94.
Amerasekera v. Mohamadu Uduma (1929) 31 NLR 36.
Meedin v. Meedin (1909) 5 A.C.R. 42.
Banda v. Guneratne (1891) 1 SCR 75.
Brampy v. Peris (1897) 3 NLR 34, 36.
Sinnathamby v. Ahamadu (1913)2 BNC 13.
Gargial v. Somasundaram Cheety 9 NLR 26, 28.
Loku Manika v. Selenduhamy 48 NLR 353.
Andradic v. Jayasekera Perera (1985) 2 SRI LR 204.
APPEAL from judgment of Court of Appeal.
H. L. de Silva PC. with Gomin Dayasiri and Saliya Mathew for the Plaintiff-Respondent-Applicant.
L. C. Seneviratne PC. with M. Illiyas, N. Sivendran and H. Situge for theDefendant-Petitioner-Respondent.
Cur. adv. vult.
M. D. H. FERNANDO, J.
An important question of law arises in this appeal: whether theCourt of Appeal has jurisdiction, in revision, to reverse or vary an exparte judgment entered against a defendant upon default ofappearance.
These facts are not in dispute. For many years, the Times ofCeylon Ltd., the Defendant-Petitioner-Respondent ("the Defendant")had been engaged in the business of publishing severalnewspapers, including the “Sunday Times". On 2.8.77 the businessundertaking of the Defendant, “having its registered office at No 3,Bristol Street, Fort", was vested in the Government under and interms of the Business Undertakings (Acquisition) Act, No. 35 of 1971;its immovable property, including premises No. 3, Bristol Street, wasvested; and a "Competent Authority" was appointed under that Act tomanage and administer that business undertaking. The "SundayTimes” of 4.12.77 reported that Mr. E. L. Senanayake, then Minister ofAgriculture and Lands, had stated that the Plaintiff-Respondent-Appellant (“the Plaintiff") had revalued her lands in order to obtainenhanced compensation from the Land Reform Commission.
The Plaintiff filed action in the District Court of Colombo on 18.9.78against the Defendant alleging that this and a related statement weredefamatory of her; that the Defendant was carrying on the businessof publishing newspapers, including the "Sunday Times"; and thatthe Defendant had published the “Sunday Times" of 4.12.77. TheGovernment takeover was not disclosed. The Defendant did notappear on the summons returnable date (17.11.78), and ex parte trialwas fixed for 10.1.79. On that day, only one witness, Dr K. L. V.Alagiyawanna, Attorney-at-law, gave evidence. He said that he hadserved as Sri Lanka’s High Commissioner in Malaysia until the end of1977; and that newspapers published by the Times of Ceylon werereceived in Malaysia. He produced the "Sunday Times” of 4.12.77(“P1”), but did not say that this had been published by theDefendant, nor did he mention that the Government had taken overthe Defendant's undertaking. As required by section 6 of theNewspapers Ordinance (Cap. 180), the name of the printer andpublisher was stated in the newspaper (P1): “Printed and publishedby The Competent Authority Republic of Sri Lanka successor to theBusiness Undertaking of Times of Ceylon Ltd …”
One essential ingredient which the Plaintiff had to prove in order toestablish the Defendant's liability was that the impugned statementshad been published by the Defendant. But there was not a scrap ofevidence which even suggested such publication; and, on thecontrary, the newspaper (P1) produced by the Plaintiff's witnessunambiguously established that it was not the Defendant who wasresponsible. I need hardly say that the take-over of a newspaperundertaking by the Government was neither an everyday occurrencenor an insignificant happening easily to be forgotten – although thetrial judge was not entitled to take judicial notice of that. But one doeswonder how lawyers advised the Plaintiff to institute or pursue anaction against the Defendant in respect of what was essentially aGovernment publication, especially when this was so disclosed in thenewspaper itself. It was in those circumstances that the trial judgeentered judgment against the Defendant on 29.1.79, in totaldisregard of the evidence which irresistibly proved that publicationwas by another; indeed, he made no finding at all regardingpublication. The Plaintiff’s lawyers, unfortunately, failed to tell the trialjudge that the Defendant was not responsible for the impugnedpublication, despite their duty to the Court (now stated in Rule 51*ofthe Supreme Court (Conduct of and Etiquette for Attorneys-at-law)Rules, 1988 not to mislead or deceive or permit a client to mislead ordeceive in any way the Court before which they appear. The factualposition thus was that the defamatory statements had beenpublished in a Government newspaper, in consequence of what theMinister was alleged to have said. Yet in proceedings against a partywho had nothing to do with the statements or their publication, thetrial judge entered an ex parte judgment on the basis that thestatements were defamatory, and awarded the Plaintiff damages in asum of Rs. 759,000. The Defendant was thus reduced to the position,as the Sinhala saying puts it, of the man who fell from a tree only tobe gored by the bull: first having had its newspaper taken over by theGovernment, it was then called upon to pay damages for defamatorystatements later published by or on behalf of the Government in thatsame newspaper.
There was another unfortunate circumstance. The summons hadbeen left at the Defendant's registered office (No. 3, Bristol Street)which had been since August 1977 in the possession of theCompetent Authority. The Defendant was undoubtedly at fault inhaving failed immediately to give due notice of a change in itsregistered office. However, before ex parte judgment was entered, ajournal entry dated 15.1.79 records that the summons was returnedto the District Court, by an official representing the CompetentAuthority, with a letter stating:
“I return herewith the attached summons addressed to theTimes of Ceylon Ltd. which had been delivered at this office byan error. The defendant mentioned in the summons does notmaintain an office in this premises."
On 17.4.79 the draft decree was tendered to the District Court,and was signed. The journal entries do not show that a copy of thedecree was served on the Defendant.
On 29.12.80 the Plaintiff applied for execution of the decree. TheCourt ordered notice on the Defendant, and the Fiscal reported on13.2.81 that there was no such establishment. Notice was re-issued,and a copy was sent to the Competent Authority. The Fiscal reportedon 17.3.81 that notice had been pasted on the front door of thebuilding of Times of Ceylon Ltd. and also served on the Defendant atNo. 9, Castle Street, Borella.
The Defendant then filed objections, referring to the takeover;stating that neither the summons not the decree had been served onit; and praying that the proceedings, judgment and decree be setaside, that the writ of execution be withdrawn, and that the Defendantbe permitted to enter an appearance, file answer and defend theaction.
On 12.5.82 the District Court upheld the Defendant’s objections toexecution, holding that summons had not been duly served; setaside the ex parte judgment and decree; refused the Plaintiff’sapplication for execution; and ordered that summons be re-issued onthe Defendant. This order was affirmed by the Court of Appeal on13.8.82. On appeal, this Court held on 1.2.84 (in a judgment reportedin (1984) 1 Sri LR 178) that summons had been duly served, allowedthe appeal, and set aside the orders of the Court of Appeal and theDistrict Court. While this had the effect of restoring the ex partejudgment, this Court did not expressly affirm or approve thatjudgment. In fact, none of the Courts considered the legality orpropriety of that judgment on the merits.
Thereupon the Defendant applied to the Court of Appeal on18.4.84 for revision of that judgment. The Court of Appeal in a carefuland comprehensive judgment delivered on 11.12.90 held that upon aperusal of the newspaper (P1) it was seen that the Defendant hadnothing to do with its publication; that the Plaintiff’s lawyers shouldhave examined those matters and placed the true facts before court;that the trial judge should have considered those matters beforeentering judgment; the judgment was based upon amisapprehension of the Defendant's liability; that there had not beena fair ex parte trial, and a failure of justice had resulted; and that itwould be a gross injustice to allow the judgment to stand. It was heldthat the Court of Appeal had wide revisionary powers (citing Rustomv. Hapangama,m and Rasheed Ali v. Mohamed AH,™) exercisable,even though no appeal had been taken, in “exceptionalcircumstances”; although the power was discretionary, the Courtwould act in revision where an order is palpably wrong or “basedwholly on a misapprehension" (citing Ranasinghe v. Henry,™ andAmadoris v. Mendis.w) The ex parte judgment was set aside, and theplaintiff’s action dismissed.
In the meantime, the Plaintiff had recovered the sum ofRs. 750,000 from the Defendant in 1984, upon a Bank guarantee. TheCourt of Appeal directed the Plaintiff to repay this sum, but refusedthe Defendant's claim for legal interest thereon.
Upon an application by the Plaintiff, the Court of Appeal grantedleave to appeal to this Court in respect of the following questions:
whether the remedy of revision is available in law to the(Defendant), having regard to all the facts and circumstancesof this case?
Whether the Court of Appeal had jurisdiction to revise theorder of the learned District Judge entering judgment ex partein favour of the (Plaintiff), which order (it is claimed) had beenrestored by the Supreme Court and had become ares adjudicata between the parties?
Mr. H. L. de Silva, PC, submitted on behalf of the Plaintiff thatsummons had been duly served on the Defendant, who was absent
without good cause on 17.11.78; that this Court had expressly soheld (in (1984) 1 Sri LR 178); that that judgment was final andconclusive (vide Article 127); that the ex parte judgment entered on29.1.79, despite any perversity, error, irregularity or omission wasfinal, and could not be questioned by way of appeal (vide section88(1) CPC); further, that the Defendant had not sought to question theex parte judgment in the course of the first appeal to this Court, andso the 1984 judgment of this Court must be regarded as havingconfirmed that ex parte judgment, by implication; that the onlyremedy available to the Defendant in respect of an ex parte judgmentwas to purge his default by proceedings in the District Court (seesection 86, CPC. and, if dissatisfied with the order made upon thatapplication, to appeal under section 88(2)); and that by expresslyproviding those remedies, the legislature had manifested an intentionto exclude all others, and therefore revision was excluded. TheDefendant having failed to purge its default (on 17.11.78) was notentitled to challenge the judgment entered (on 29.1.79).
Several deficiencies in this line of argument were pointed out toMr. de Silva in the course of his submissions. There were two distinctmatters; the question whether the Defendant was in default, and if sowhether it had purged its default, and the entirely separate issuewhether the ex parte judgment should stand despite a vitiatingelement. The special remedy which section 86 provided was inrespect of the first matter only, so how could that be regarded asexcluding a remedy in respect of the second ? Section 88(1)expressly excluded an appeal against a judgment for default, but notrevision – why should such an exclusion be implied because of anordinary law, when subsequent constitutional provisions in Article 138conferred an unrestricted revisionary jurisdiction ? Should notjurisdictional provisions be interpreted broadly, to allow errors in theadministration of justice to be corrected, rather than narrowly, toperpetuate errors ? Mr. de Silva seemed at one stage to concede thatjurisdictional error might be corrected in revision, but not otherdefects. That is a distinction which the statutory provisions do notrecognise; and if the constitutional provisions in Article 138 do apply 'any such limitation would be one which the Constitution does notsanction; and in any event, that would bring in difficult questions as towhen error becomes jurisdictional for this purpose. If the trial judge
was in fact satisfied that the Defendant did not publish the impugnedstatement, but nevertheless gave judgment for the Plaintiff, wouldthat be jurisdictional error ? Or if there was no basis whatever onwhich he could have been so satisfied, would it have been ajurisdictional error to give judgment for the Plaintiff ? I put to Mr. deSilva a hypothetical example – if a defendant, sued for Rs. 10,000/-as damages, did not appear because he had decided that it wouldbe cheaper to pay than to defend the suit, and later found thatex parte judgment had been entered against him for a sum of Rs. 10million through manifest error, was he entitled to a remedy by way ofrevision since revision was not plainly excluded ? To all this Mr. deSilva was unable to give a persuasive answer. In regard to theconverse situation where a trial judge dismissed a plaintiff’s action,although on the evidence he was (or should have been) satisfied,Mr. de Silva had no hesitation in asserting that that would be a finaljudgment, against which the plaintiff would have a right of appeal,despite section 88(1).
To reach this conclusion, he contended that section 88(1) barsedonly an appeal by the party in default, interpreting "against anyjudgment entered upon default” as if restricted to “any judgmententered against a party in default”. But this would mean that theconsequences of a judicial error under section 85 would vary, notaccording to the nature of the error, but the party prejudiced – theparty in default would be denied a remedy, but not his adversary.This would be an unfair and discriminatory result, which theprinciples of interpretation of statutes would not permit unlesscompelled by plain words. A similar interpretation of the judicialfunction was emphatically rejected in another context, as being likethe toss of a double-headed coin (see Municipal Council of Colombov. Munasinghe.lS)) Further, the defendant in default would thereby bepenalised twice – his default disentitles him from contesting theplaintiff’s case, and he is also denied the right to relief against asubsequent judicial error, which had nothing to do with his default.This anomaly Mr. de Silva failed to justify.
In regard to the 1984 judgment of this Court, we asked Mr. de Silvato explain how it in any way confirmed the ex parte judgment itself,when the order appealed against was the District Court order dated
12.3.82, setting aside the ex parte judgment not for lack ofjurisdiction or for intrinsic error, but solely on the ground that theDefendant had not purged its default. It was pointed out to him thatthe need to seek revision of the ex parte judgment, on the merits, onthe ground of error, could only have arisen after this Court haddetermined that the Defendant had been in default. His submissionwas that the Defendant could have raised the matter by way of across-appeal under section 772, CPC.
Mr. L. C. Seneviratne, PC, on behalf of the Defendant, submittedthat the Court of Appeal had revisionary jurisdiction, whether anappeal was allowed by law or not, and whether an appeal had beentaken or not; in addition to the cases cited in the judgment of theCourt of Appeal, he referred to Beebee v. Mohamed (6), andSabapathy v. Dunlop<7).
As to the circumstances when that jurisdiction would be exercised,he further submitted that section 85 required the trial judge to be"satisfied”, and that this pre-supposed a judicial determination; thetrial Judge must at least be satisfied prima facie; here there was noevidence on which he could possibly have been satisfied. Althoughhe was unable to cite any local authority, he referred us to threeIndian decisions (Krishen v. Kumar(8); Eknath v. Govind <9); andGwalior Municipality v. Motilalim), in support of the principle that inentering an ex parte judgment a judge is as much bound to make alegal order as in a contested case: the absence of the defendantdoes not absolve the judge from acting according to law, and thejudge must ensure that the relief claimed is due in fact and in law,and must dismiss the plaintiff’s claim if he is not entitled to it.
Replying to Mr. de Silva's submission that the 1984 judgment ofthis Court had finally confirmed the ex parte judgmentMr. Seneviratne submitted that section 772 did not apply; and that theDefendant need not, and could not, have impugned the ex partejudgment on the ground of error, either in the District Court or inappellate proceedings against the District Court order dated 12.3.82.
The Plaintiff’s case in appeal involves two distinct questions:
Does the revisionary jurisdiction of the Court of Appeal inArticle 138 of the Constitution extend to reversing or varying anex parte judgment entered against the Defendant upon defaultof appearance on the ground of manifest error or perversity orthe like ?
Even if it does, does the judgment of the Supreme Courtholding that the Defendant had failed to purge its default amountto an affirmation of such ex parte judgment, so as to precludethe exercise by the Court of Appeal of that jurisdiction ?
Article 138(1) of the Constitution sets out the revisionaryjurisdiction of the Court of Appeal:
“The Court of Appeal shall have an exercise, subject to theprovisions of the Constitution or of any law, an appellatejurisdiction . . . and sole and exclusive cognizance, by way#ofappeal, revision and restitutio in integrum, of all causes, suits,actions, prosecutions, matters and things of which such Courtof First Instance … may have taken cognizance:
Provided that no judgment, decree or order of any court shall bereversed or varied on account of any error, defect or irregularity,which has not prejudiced the substantial rights of the parties oroccasioned a failure of justice.”
I have to consider (A) whether this revisionary jurisdiction isexcluded by virtue of sections 85, 86, and 88, CPC, and (B) if not, onwhat grounds it may be exercised.
(A) Since Article 138 is “subject to the provisions … of any law",the revisionary jurisdiction can be excluded by statute, whetherpassed before or after the Constitution. However, the sections citeddo not expressly exclude revision. While I incline to the view that animplied exclusion is not enough to override a constitutional provision,especially one which confers jurisdiction, here there is no clearimplied exclusion. There are two distinct issues. The first is whetherthe ex parte default judgment was procedurally proper (and thisdepends on whether a condition precedent had been satisfied,namely whether a proper order for ex parte trial had been made, andwhether the defendant had failed to purge his default). The second iswhether, apart from that default, the ex parte default judgment was,on the merits (i.e. in respect of its substance), vitiated by lack ofjurisdiction, error, and the like.
Insofar as a remedy in the District Court is concerned, the generalrule would apply that the judge is functus officio, and cannot reviewits own judgment. However, section 86 makes an exception, byconferring jurisdiction on the District Court to set aside a defaultjudgment if it was flawed in procedural respects – but not on themerits. The necessary implication of the grant of that jurisdiction isthat the District Court is not competent to review a default Judgmenton the merits. That is, beyond question, the long-established practiceof the District Court.
^t one stage, Mr. de Silva faintly suggested that a defendant whowished to question a default judgment on the merits should firstpurge his default. But he did not press that submission, perhapsbecause he realised that it was self-contradictory: if a defendantpurges his default, he has no need to attack the judgment on themerits, because the judgment will be set aside regardless of itsmerits; and if he cannot explain his default, neither the law nor thepractice of the District Court allows the judgment to be reviewed onthe merits.
Mr. de Silva’s submission is that the exclusion of revision should beimplied because the legislature has provided specific remedies.However specific remedies are provided only in regard to procedurallegality and propriety. Section 88(1) prohibits a direct appeal againsta default judgment, in respect of procedure and merits. Section 88(2)permits an appeal against an order under section 86 – which relatesto procedure and not merits. If at all, therefore, section 88 mayimpliedly exclude revision in respect of procedural aspects.
Indeed, even in respect of the procedural aspects, it is not clearthat revision is excluded; thus in Velupillai v. Sivasithamparam <”1,
H. N. G. Fernando, J. (as he then was) was prepared to act inrevision to set aside an ex parte default judgment where the order forex parte trial had been wrongly made.
No specific remedy has been provided to correct errors in respectof the substance of an ex parte default judgment. Section 88(1)confers no remedy, but merely excludes an appeal; from thatexclusion it is not permissible to infer an exclusion of revision as well.On the contrary, the express exclusion of an appeal justifies theinference that it was intended to permit other remedies, such asrevision.
I am therefore of the view that a default judgment can becanvassed on the merits in the Court of Appeal, in revision, thoughnot in appeal, and not in the District Court itself. There are threecompelling reasons which suffice to sweep away any lingering doubton the matter.
The provisions of the Code are prior statutory provisions, whichcannot prevail over, or whittle down, the later constitutional provisien,unless the language is clear. Effect must be given to both as far as ispossible. Looked at in that way, Article 138(1) permits revision inrespect of the substance of an ex parte default judgment, whilesections 85 to 88, CPC, merely exclude, wholly or in part, review byappeal.
The provisions of section 753, CPC, which was not referred to inthe argument, are decisive:
“The Court of Appeal may call for and examine the record ofany case … for the purpose of satisfying itself as to the legalityor propriety of any judgment or order… or as to the regularityof the proceedings . . . and may upon revision of the case sobrought before it pass any judgment which it might have madehad the case been brought before it in due course of appealinstead of revision.”
This being a provision in the Code itself, section 88 must be read withit. The fact that section 88(1) bars an appeal against an ex partedefault judgment restricts the right of appeal conferred by section754, CPC, but does not affect the revisionary jurisdiction conferred bysection 753; if anything, it confirms that jurisdiction. From the fact thatsection 88(2) confers a right of appeal, one cannot possibly infer anexclusion of revisionary jurisdiction on the same matter.
Finally, the issue before us involves the jurisdiction of a superiorcourt to grant relief in respect of a miscarriage of justice: it is ajurisdiction which the Court has in order to safeguard and promotethe due administration of justice in general, and to void miscarriagesof justice (cf Sansoni, CJ, in Beebee v. Mohamed)<6) and not merelyto ensure that the rights of parties are correctly determined. Anyuncertainty as to its scope must unhesitatingly be resolved in favourof a wider, than a narrower, jurisdiction.
I hold that the Court of Appeal did have revisionary jurisdiction.
(B) On what grounds could that jurisdiction have been exercisedin relation to the substance of an ex parte default judgment ? Unlikein an appeal, not every error of fact or law may be corrected inrevision.
Section 85(1) requires that the trial judge should be “satisfied" thatthe Plaintiff is entitled to the relief claimed. The Defendant’s case isthat if in fact he was not satisfied, or if on the evidence he could notreasonably have been satisfied, the error was so serious as toprejudice the substantial rights of the Defendant and to occasion afailure of justice. The question is whether entering an ex parte defaultjudgment is a mere formality, or whether a hearing and a properadjudication are necessary.
The plain meaning of the word ''satisfied” in section 85(1) is thatthe trial judge must reach findings on the relevant points after aprocess of hearing evidence and adjudication, and that he cannotgive judgment for the plaintiff as a matter of course. It is unnecessaryto rely on the Indian decisions cited by Mr. Seneviratne as I find thatthere are four other independent and compelling reasons for thisinterpretation: the immediate context of section 85(1), the basicprinciples of justice underlying the Code, the legislative history of thisand similar provisions, and judicial decisions in regard to thoseprovisions.
Section 85(2) shows that a judge may award the plaintiff less thanwhat is claimed if in his opinion the entirety of the relief cannot begranted. Obviously such an opinion can only be reached after hearingevidence and judicially assessing that evidence in relation to theingredients of the Plaintiff’s cause of action. Further, sections 84, 86and 87 all refer to the judge being "satisfied” on a variety of matters: inevery instance, such satisfaction is after adjudication upon evidence. Itmust be presumed that the word “satisfied” occurring in severalsections in the same Chapter of the Code has the same meaning.
Even if there had been some ambiguity, this would have to beresolved inter alia in the light of basic principles of justice, andnatural justice, underlying the Code. If there is ambiguity as towhether a power which affects the rights of a party is to be exercisedwith or without a hearing, natural justice will require a hearing: for thejustice of the common law will supply the omission of the legislature.Likewise, a judge cannot dismiss an action without hearing it, unlessspecific power has been given to him by the Code: Mamnoor v.Mohamed(,2>; and the same principle must apply to any final decisionas to the rights of parties in an action. As I observed in Perera v.Nawanage(,3>, "nowhere does the Code confer on a judge the power togive judgment against a party because he fails to pay costs, without anadjudication on the merits – because adjudication is the essence ofjudicial duty, the purpose for which courts exists”. There is no expressprovision which empowers a judge to enter an ex parte defaultjudgment without a hearing and an adjudication on the merits. It wouldbe contrary to the basic principles of the judicial process to interpret theword "satisfied” so as to allow such a power; there is in a democracy nounfettered, absolute, or arbitrary power, even in the judiciary.
I now turn to the legislative history of section 85 and local judicialdecisions. The present sections 84 and 88 correspond, in allrespects material to this case, to the old sections 85 and 87. Therewere also corresponding provisions in regard to the Court ofRequests in section 823(2), now repealed. The old sections 85 and823(2) were as follows:
"85 If the defendant fails to appear on the day fixed for his
appearance and answer . . . and if on the occasion of such
default of the defendant the plaintiff appears, then the courtshall proceed to hear the case ex parte and to pass a decreenisi in favour of the plaintiff..
“823(2) If upon the day specified in the summons … thedefendant shall not appear or sufficiently excuse his absence,the Commissioner . . . may enter judgment by default againstthe defendant:
Provided, however, that in all cases where in the title to, orinterest in, or right to, the possession of land shall be in dispute,and in any other case in which the Commissioner shall deem itnecessary or expedient to hear evidence in support of theplaintiff’s claim, he shall order him to adduce evidence on anyday to be fixed for that purpose; and after hearing suchevidence the Commissioner shall give such judgment on themerits as justice shall require, and without reference to thedefault that has been committed.”
It will be seen that originally there was nothing in the old section 85of the Code, corresponding to the requirement in section 85(1) and
that the judge be “satisfied"; and this might have given the wrongimpression that passing a decree was a mere formality.
These provisions covered three situations:
where a judge had express statutory power to give judgment forthe plaintiff, merely because of the defendant’s default, without anyhearing or adjudication (section 823(2));
where a judge was required to hear evidence and to make ajudicial determination on the merits (section 823(2) proviso);
where a judge was empowered “to hear the case ex parte and topass a decree in favour of the plaintiff” upon the defendant’s default(section 85).
The proviso to section 823(2) was interpreted in Amarasekere v.Mohamadu Uduma (,4 Meedin v. Meedin (15), and Banda v.
Guneratne(,6). Judgments entered without a hearing and anadjudication were set aside.
Despite the absence of express provision to that effect in the oldsection 85, that section was also interpreted – consistently with theprinciples I have set out – to require a hearing and an adjudication,more or less on the same basis as’ the proviso to section 823(2).
Thus in Brampy v. Peris (,7), Browne, AJ, held that whatever theevidence, it must be sufficient to satisfy the judge who is not boundto give a decree until he is satisfied; if he had a doubt, he was notbound to enter judgment, but should have given the plaintiff anopportunity to dispel it.
In Sinnatamby v. Ahamadu(18), after an ex parte trial the trial judgerefused to enter a decree nisi on the ground that the statement of theplaintiff as to his pedigree was “improbable and unreliable". It wasurged in appeal that the trial judge had no power to dismiss theaction at that stage, and should have entered a decree nisi.Lascelles, CJ, referred to Browne, J’s observations in Brampy v.Peris(l7) – that the plaintiff ought to adduce some proof of his case,that he ought to make out a fair case and that the judge was notbound to give a decree until he was satisfied on the evidence. Whileobserving that he had some difficulty in reconciling that decision withthe language of section 85, nevertheless he considered that it wouldbe reasonable to follow the procedure laid down in that case.
The practice of the civil courts thus conformed to basic principlesof justice.
The legislature twice had the opportunity to clarify or change thelaw, when drastic changes were made in the law relating to civilprocedure. Instead, the legislature adopted the prevailing judicialinterpretation (using the very word “satisfied” used in two of thosedecisions): first, in section 417 of the Administration of Justice(Amendment) Law, No. 45 of 1975, and then in Act No. 20 of 1977which brought in the new section 85 (virtually identical to section417), when reintroducing the Civil Procedure Code. It was thus thatthe word “satisfied” came into section 85.
I hold that an ex parte default judgment cannot be entered withouta hearing and an adjudication.
I further hold that having regard to the facts and circumstances ofthis case, there has been no adjudication at all; it was not a mereerror in exercising a judicial discretion, or in assessing the credibilityof a witness, or the weight of evidence; judgment in favour of thePlaintiff was unreasonable and perverse insofar as it was based onthe assumption that the Defendant had published the impugnedstatements; the Plaintiff's lawyers failed in their duty to the Court; thesubstantial rights of the Defendant were prejudiced, and there hasbeen a manifest failure of justice. The exercise of the revisionaryjurisdiction of the Court of Appeal was both lawful and proper.
EFFECT OF SUPREME COURT JUDGMENTIn the Defendant’s revision application, it did not seek to questionthe previous judgment of this Court by reagitating the decision as tothe due service of summons.
It is not suggested that the Defendant was debarred, by reason ofdelay or otherwise, from making that application. Although thatapplication was made along after the default judgment and decree,at no stage was there a finding that the default decree had been dulyserved on the Defendant in terms of section 86(2). Mr. de Silva’ssubmission is that the judgment of this Court confirmed the defaultjudgment even on the merits.
The Code does not give the District Court the power or jurisdictionto examine or set aside an ex parte default judgment on the merits.Section 86(2) gave the Defendant the right (within fourteen days ofthe service of the default decree) to apply to and satisfy the DistrictCourt that he had reasonable grounds for such default, i.e. in respectof the procedural aspects antecedent to the default judgment. Ashave already pointed out, all that the District Court could havedecided, in its order of 12.3.82, was whether the Defendant hadsatisfactorily explained its absence on 17.11.78.
The District Court decided only that matter, holding that summonshad not been duly served. Mr. de Silva referred to one sentence inthe order to the effect that the Defendant “has a good defence in thepresent action”, and submitted that the District Judge had examinedthe merits of the default judgment. This observation, particularly sincethere was no other reference whatsoever to the merits, cannot beregarded as a finding that the default judgment was flawed on themerits; it only meant that the Defendant had a prima facie defence, oran arguable case, on the merits, which deserved adjudication.
On appeal, both Courts considered only whether summons hadbeen duly served, and did not even touch upon the merits. Mr. deSilva’s submission that the Defendant could have questioned themerits of the default judgment, and sought an order in its favour, isuntenable. That was not an appeal against the default judgmentdated 29.1.79, and the errors of the District Judge were not in anyway relevant to the default of the Defendant on 17.11.78. Had theDefendant attempted to raise the question of error, it wouldundoubtedly have been told that the merits of the judgment wereunrelated to its antecedent default; that no appeal was allowedagainst the default judgment on its merits; and that if the Defencjantwas not entitled itself to appeal against the default judgment on themerits, then obviously it could not have raised the issue in an appealtaken by the Plaintiff.
The provisions of section 772 entitled the Defendant only tosupport the decree on a ground decided against it in the DistrictCourt, and to take any objection to the decree which it could havetaken by way of appeal. The merits of the default decree were clearlyoutside the scope of section 772; and were not, and could not havebeen, considered by this Court of Appeal.
I therefore affirm the judgment of the Court of Appeal. I haveconsidered whether the matter should be sent back to enable theDistrict Court to consider what judgment should be entered upon theevidence led at the ex parte trial. Mr. H. L. de Silva very properlyconceded that the impugned newspaper was not published by theDefendant. Even without that concession the evidence led cannotpossibly justify a finding that the Defendant published the impugnedstatements; the Plaintiff's action must necessarily fail. No usefulpurpose would be served by sending the case back either for re-
consideration or for further evidence. In regard to the sum ofRs. 750,000 already paid by the Defendant, I direct the Plaintiff torepay that sum to the Defendant (if not already repaid) with legalinterest from 11.12.90. The Plaintiff will also pay the Defendant a sumof Rs. 10,000 as costs in this Court.
My brother Ramanathan, J. does not agree with my judgment andorder, because, as I understand it, he takes the view that the cursuscuriae has been for a party to move the District Court in the firstinstance. Apart from the references I have already made to thelaw and practice, I would have wished, in deference to his views, tohave considered in greater depth the matters which have persuadedhim to a conclusion different to that reached by my brotherDheeraratne, J. and me; but that has not been possible because wehave not had the advantage of seeing his judgment even in draft.
DHEERARATNE, J. – I agree.
I have had the great advantage of reading the judgment of mybrother Fernando, J. who has, in his judgment, clearly, concisely, andaccurately, set out all the facts relevant to the important question oflaw – “whether the Court of Appeal has jurisdiction, in revision, toreverse or vary an ex parte judgment entered against a defendantupon default of appearance,” to use the words of my brother in hisjudgment. It is unnecessary, therefore, to repeat the facts here.
The judgment of this Court delivered on 1.2.84 (1984 1 SLR 178)had "the effect of restoring the ex parte judgment”. With this findingof Fernando, J. I entirely agree. Thereafter the defendant applied tothe Court of Appeal to revise the ex parte judgment and the Court ofAppeal set aside that judgment.
The crucial question is whether the proper (and valid) procedurewas to have made an application in revision to the Court of Appeal orwhether the defendant should have in the first instance made anapplication to the District Court itself. Such an application to theDistrict Court is not one made in terms of the Civil Procedure Code
but irfaccordance with a rule of practice recognized and adoptedby our Courts over a very long period of time.
This “rule of practice” was considered and approved as far backas 1905 by Layard, C.J. in Gargial v. Somasundram Cheety<19). Saidthe learned Chief Justice:-
"The ordinary principle is that, where parties are affected by anorder of which they have had no notice, and which had beenmade behind their back, they must apply in the first instance tothe Court which made the ex parte order to rescind the order,on the ground that it was improperly passed against them”.
Again, Dias, J. in Loku Menika v. Selenduhamy(20) dealt with this“rule of practice” exhaustively. The learned Judge characterized the“rule of practice" as one “which has become deeply ingrained in ourlegal system – namely, that if an ex parte order has been madebehind the back of any party, that party should first move the Courtthat made that ex parte order in order to have it vacated, beforemoving the Supreme Court or taking any other action in the matter”.
Once again, Siva Selliah, J. in a fairly recent judgment of the Courtof Appeal (Andradie v. Jayasekera Perera),21), reviewed the earliercases and expressed himself thus:-
“I am also of the view on the long line of cases quoted by thelearned counsel for respondent that the practice has grown andalmost hardened into a rule that where a decree has beenentered ex parte in the District Court and is sought to be setaside on any ground, application must in the first instance bemade to that very Court and that it is only where the finding ofthe District Court on such application is not consistent withreason or the proper exercise of the Judge’s discretion or hehas misdirected himself on the facts or the law will this Courtgrant extraordinary relief by way of revision . . .” Siva Selliah, J.concluded that the decisions “establish a procedure andpractice which has taken deep root and should not be lightlydisturbed”.
The application to the Court of Appeal was accordingly refused.
There is one relevant and significant feature in Andradie’s case(Supra) which must be emphasized. There was here an allegationof fraud and false pleadings and evidence. In other words, theground of complaint was not confined to “procedural legality andpropriety” but encompassed “the substance of the ex partejudgment” a distinction drawn by Fernando, J. in his judgment. Asstated earlier, the application to the District Court contemplated is notone made in terms of any provision of the Civil Procedure Code.
Having regard to the long standing “rule of practice” which hasover the years hardened into almost a rule of law, I hold that the Courtof Appeal was precluded from exercising its revisionary jurisdiction inthe instant case. I would therefore allow the appeal, set aside thejudgment of the Court of Appeal, and restore the ex parte judgmentand decree of the District Court awarding the plaintiff damages in asum of Rs. 750,000/-. The defendant must pay the plaintiff a sumRs? 10,000/- as costs of appeal.
Plaintiff-Appellant to repay Defendant-Respondent Rs. 750,000/-with legal interest from 11.12.90 and costs fixed at Rs. 10,000/-.