072-NLR-NLR-V-06-MUTTAIYA-CHETTY-v.-ARUMUGAM.pdf
( 802 )
1003.June 16.
MUTTAIYA CHETTY v. ARUMUGAM.
D. C., Kandy, 15,301.
Civil Procedure Code, chapter 53—Action on promissory note—Summons toappear, with liberty to obtain leave to defend within fourteen days—Appli-cation for such leave made out of time—Bight of Court to. impose terms ingiving leave-to defend.
Where, in an action on a promissory note brought under chapter 53of the Civil Procedure Code, a defendant did not apply in time for leaveto appear and defend the suit, the Court is entitled, under section 706 ofthe Code, to put him . on terms as a person in default as regards thedefence of the suit.
The effect of the decisions of the Supreme Court in ArunasalamChetty v. Assina Marikar (2 Browne, 295) and Davies d Co. v. Perera(>'i>; 297) explained.
I
N this case two defendants were sued on a promissory note,, andsummons issued against them under chapter 58 of the Civil
Procedure Code to appear and obtain leave to defend withinfourteen days. The Fiscal reported that the summons was served
( 803 .)
on the second defendant on 16th May, 1902. On the 31st May heapplied for leave to defend, but his application was refused as hewas two days out of time. He renewed his application on the5th June, and explained in his affidavit that summons was servedon him only on the 21st May, and that his defence was that he didnot make the note. The Court ordered him to submit proof ofthe date of service of the notice to the plaintiff. The defendantfailed to give such notice. Later on his counsel cited to the Courtthe case of Arunasalam Chetty v. Assena Marikar {2 Browne,80S) and moved for leave to appear and defend, when the DistrictJudge (Mr. G. A. Baumgartner) allowed the motion, on conditionthat he gave security.
His. reasons were communicated as follows to the Registrar ofthe Supreme Court in a letter, in reply to an order of the SupremeCourt calling upon him to state his reasons:—
“ The second defendant’s application for leave to defend was outof time according to the Fiscal’s return of service of summonson him. The Fiscal reported that summons was served onhim on 16th May.The second defendant,however,inhis
affidavit of 4th June asserted that he was served on 21st May. Ifthat were so, he was in time. He was ordered to notice theplaintiff and to prove the date of the service in his presence. Ashe failed to comply with that order, I regarded him as out of time,and as not entitled as a matter of right, whatever his defencemight be, to enter upon that defence.
'■ Mr. Beven, for the second defendant, cited 2 Browne’s Reports,295, without offering any further proof than the second defendant’saffidavit to contradict the Fiscal’s return. I considered that strictlyI might have refusedleave to defend, as thesecond defendant
had not proved theFiscal’s return to beincorrect.Asan
indulgence I gave him leave to defend on the terms that he shouldgive security.”
The second defendant appealed.
M. de Saram, for the appellant, cited Arunasalam Chetty v.Assena Marikar (2 Browne, 295) and Davies A Co. v. Perera (ib.297), and contended that it was open to a. defendant, sued on aliquid claim by wayof summary procedure,to comeinand
apply for leave to defend at any time before decree was entered,and that he should not have been put on terms as regards hisdefence.
Bawa, for the plaintiff, was ruled not entitled to be heard, as theplaintiff was not a respondent to the appellant. But the Courtheard him as amicus curiae.
1903.June 16.
Cur. adv. vult.
( 304 )
1908.'■June 10.
16th June, 1908. Wendt. J.—
The two defendants were sued under chapter 53 of the CivilProcedure Code on a promissory note, and were required by thesummons to appear and obtain leave to defend within fourteen daysof service. The first defendant was granted leave to defend upongiving security to meet plaintiff’s claim. An application for leaveto defend,.made by second defendant on the same day (31st May,1902), was refused on 4th June, because he was out of time and hadmade no affidavit in support of his application. (The Fiscal’s.return was that second defendant had been served on 16th May,1902. The last day for his application was therefore the 29th May.)On 5th June the second defendant renewed his application forleave to defend, presenting an affidavit, in which he deposed that thesummons had in fact been served upon him only on 21st May. andthat he had not made the note sued on. In view of thiscontradiction of the Fiscal’s return, the Acting District Judgedirected second defendant’s proctor to' give notice to plaintiff witha view to an inquiry as to the true date of service. This notice wasnot given, but after the lapse of a week second defendant’s proctoragain moved the Court ex parte, citing' the case of ArunasalamChetty v. Assena Marikar (2 Browne, 295), and the Court, withoutstating any reasons, allowed second defendant leave to defend uponthe same terms as those imposed on first defendant, and. seconddefendant has appealed.
Being requested bv us to state his reasons, the Acting DistrictJudge says that, as second defendant failed to give plaintiff noticeand prove the alleged true date of service, he ‘ ‘ regarded him asout of time and as not entitled as a matter of right, whatever hisdefence might be, to enter on that defence, ” that strictly leave"might have been refused because' not asked for in time, but that asan indulgence such leave was granted on the terms of findingsecurity.
Appellant’s counsel argued before us, as was apparentlycontended in the Court below, that the effect of the decision, hiArunasalam Chetty v. Assena Marikar was that, until a decreewas actually entered against him, a defendant sued by way of thesummary procedure on' liquid claims, could come in and ask forleave to defend, no matter how long he was out of the time limitedin the summons. This amounts- to allowing a defendant underthe special procedure, which is intended to expedite the recoveryof claims on promissory notes and other such instruments, greaterlatitude than is permitted under the regular procedure. For surelya defendant in a regular action, who appears after the day named
( 805 )
in the summons, is not as a matter of course entitled to file answer(as though he had appeared on the due date), merely because noex parte hearing has yet taken place, nor a decree nisi been entered;,he surely must first purge his default by explaining why he didnot appear in time, and the practice in regular actions in theDistrict Court of Colombo is, we are informed, in accordance withthis view.
But in truth the case referred to did not decide what is nowcontended for. What that case, and the earlier case of Davies v.Mathes Perera, reported at page 297 of the same volume of Reports,decided was, that, so long as' a decree has not been entered, theCourt is not precluded by the lapse of the time named in thesummons from granting leave to defend, it being of courseunderstood that the defendant purges his default, in addition toshowing that he has a good defence, as he would have had to dohad he appeared in time. These decisions are in accordance withchapter 58 of the Code, section 706, which regulates the giving ofleave to defend, does not make it a condition precedent that theapplication shall be made within the time allowed by the summons.After decree, however, section 707 comes into play and requiresdefendant to show special circumstances. Once it is recognizedthat a defendant who does not appear in time is in default, theright of the Court to impose terms upon him must be allowed,apart from the defendant’s liability to such terms where the Courton the merits considers his defence prima facie not sustainableor doubts its good faith (section 704). In ZJlaganathan Ghetty v.Vavassa (3 N. L. B. 52), Lawrie, A.C.J., expressed it in this way:“ Something was said at the hearing of the right of the plaintiff todemand that judgment be entered when the time expressed in thesummons has expired. He has a right to move for judgment, butnot to demand it, and the Court has, in my opinion, the duty laidon it of allowing a defendant to come in on terms at any timebefore the decree is signed.”
In the present case the District Judge’s view is right. He wasentitled under section 706 to put the defendant upon terms, quiteapart from such terms as might have been called for by the natureof the defence, and it cannot be said that the terms imposed wereunreasonable. The defendant, even on the footing that the servicewas effected on 21st May, was out of time on the 5th June, and hisaffidavit contains not one word in explanation or extenuation ofhis default.
think the appeal should be dismissed with costs'.
Grenier, A.J.—I am of the same opinion.
R
1003.June 16.
Wendt, J.