BAS1STAYAKLE, C. J.—Sally v. Floor Mohamed
1964Present: Basnayake, C.J., and G. P. A. Silva, J.N. M. SALLY, Appellant, and M. A. NOOR MOHAMED, Respondent8. C. 38163 (Inty.)—D. C. Colombo, 10241ZL
Civil Procedure Code—Sections 85 and 86 (2)—Failure of defendant to file answer ondue date—Order made by Court fixing date for ex parte trial—Incapacity ofCourt to set aside such order.
Where a case is fixed for ex parte trial in terms of section 85 of the CivilProcedure Code, the reasons for the default of the defendant cannot beconsidered by Court before the ex parte trial is held.
Perera v. Alwis (69 N. L. R. 260) not followed.
A ppeal from an order of the District Court, Colombo.
C. Ranganathan, with M. T. M. Sivardeen, for Plaintiff-Appellant.
No appearance for Defendant-Respondent.
January 22, 1964. Basnayakje, C. J.—
This is an appeal from an order of the learned Additional District Judgeof Colombo setting aside the order fixing this case for ex parte trial andgiving the defendant a date to file answer in an action in which thedefendant failed both to appear on the day fixed to file answer and alsoto file answer on that date.
1 (1961) 63 N. L. R. 322.
BASNAYAKE, C.J.—Sally v. Noor Mohamed
Shortly the facts are as follows : On 9th October 1962 the plaintiffinstituted an action against the defendant in which he stated that he wasthe proprietor of the business carried on under the business name of“ Mubarak Hotel ” at No. 103 Messenger Street, and the defendant, whohad no manner of right or title to the premises in which the business wascarried on or to the said business or to its furniture and fittings, wasthreatening to enter the premises and forcibly take over the said businessand its possession and appropriate all the assets of the plaintiff. Hofurther alleged that the defendant was threatening bodily harm to him andhis life was in danger. He asserted that by reason of the action ofdefendant, there had accrued to him a cause of action to sue him in orderthat he may be quieted in possession of his property. He asked for aninterim injunction restraining the defendant and his servants frominterfering in his business. An interim injunction was issued by theCourt to be served on the defendant and it was served on him ; and onthe day fixed for the appearance of the defendant and for him to fileanswer, a proxy given to Mr. Sambandan by him was- filed by anotherproctor, but the journal entry incorrectly shows that the proxy of thedefendant was filed by Mr. Sambandan. On that date the defendant andhis proctor were absent and the case was fixed for ex parte trial on 25thJanuary 1963, and on that date Mr. Sambandan filed a petition and anaffidavit and moved that the defendant be allowed to file answer. In hispetition, which is subscribed to by proctor Sambandan, it is stated thatowing to an oversight his proctor had taken down the date as 10thFebruary 1963 instead of 10th December 1962, and that when he appliedfor the record to check up the date, he noticed the error. He stated thathe had a good and valid defence in the case and that irreparable loss anddamage would be caused to him if the case was fixed for ex parte trial.The learned District Judge fixed the matter for inquiry on 6th February1963 and on that date proctor Sambandan gave evidence and read thepetition and the affidavit dated 25th January 1963, and explained that hehimself was not present on 19th November 1962, but the proctor to whomhe had entrusted the work of filing the proxy had taken down the wrongdate while he (proctor Sambandan) was in another Court. After hearingthe evidence of proctor Sambandan the learned District Judge madeorder setting aside the order fixing the case for ex parte trial and gavethe defendant time to file answer till 11th March, 1963.
Section 85 of the Civil Procedure Code reads :
“ If the defendant fails to appear on the day fixed for his appearanceand answer, or if he fails to appear on the day fixed for the subsequentfiling of his answer, or for the filing of the replication, or on the dayfixed for the hearing of the action, and if the court is satisfied byaffidavit of the process server, stating the facts and circumstancesof the service, or otherwise, that the defendant has been duly servedwith summons, or has received due notice of the day fixed for subse-quent filing of answer, or of replication, or of the day fixed for the
BASNAYAKE, C.J.—Sally v. Noor Mohamed
hearing of the action, as the case may be, or if the defendant shallfail to file his answer on the day fixed therefor, and if on the occasionof such default of the defendant the plaintiff appears, then the courtshall proceed to hear the case ex parte and to pass a decree nisi infavour of plaintiff in the form No. 22 in the First Schedule or to thelike effect, or, in the case of a hypothecary action, a decree absolutein the form No. 22A in the First Schedule or to the like effect, and shallissue to the defendant a notice of every such decree nisi. Such noticeshall be served personally unless the court, for sufficient cause to beassigned by it, direct some, other mode of service. ”
The Court has no power to take a course of action other than that■prescribed in section 85 of the Civil Procedure Code when the defendantfails to appear on the day fixed for the subsequent filing of his answer.The course prescribed is that “the Court shall proceed to hear the case■ex parte and to pass a decree nisi in favour of the plaintiff in the formNo. 22 in the First Schedule or to the like effect ”. The learned Judgewas therefore wrong in setting aside the order fixing the date for ex partetrial as he had no power to do so.
Our attention has been drawn to the case of K. A. Perera and anotherv. H. E. Aluris and another 1 where it was held that where, on default ofappearance of the defendant on the day fixed for appearance and answer,a date was fixed for ex parte trial, the reasons for the default of appearancemay be considered by Court before the ex parte tiial is held.
We are unable to agree with that view. The defendant is not withouta remedy because section 86 of the Civil Procedure Code provides for it.Section 86 (2) reads—
“ If, however, the defendant shall satisfy the court that there werereasonable grounds for the default upon which the decree nisi waspassed, then the court shall set aside the decree and shall order thecase to be proceeded with as from the stage at which the default wascommitted, upon such terms as to costs, notices, or otherwise as thecourt shall deem fit. ”
We accordingly set aside the order of the learned District Judge and■direct the Court to proceed to hear the case ex parte.
The appellant is entitled to the costs of appeal.
■G. P. A. Silva, J.—I agree.
Order set aside.
1 (1957) 60 N. L. R. 260.
N. M. SALLY, Appellant, and M.A. NOOR MOHAMED, Respondent