087-NLR-NLR-V-25-NONOHAMY-v.-DIVUNUHAMY-et-al.pdf
( 414 )
1923.
Present: Jayewardene A.J.
NONOHAMY v. DIVTJNTJHAMY et ah201—C. B. Matara, 12,415.
Court of Requests—Judgment’by default—Refusal to set aside—-Docsappeal lie against refusal ?
An appeal lies against an order of Commissioner of Requestsrefusing to set aside a judgment entered by default in an actionfor declaration of title to land.
iaots appear from the judgment.
Soertsz, for appellant.
Weerasooriya, for respondents.
October 17, 1923. Jayewardene A.J.—
This is an action for declaration of title to land, coupled witha claim for damages at the rate of Us. 90 per year. There weretwo defendants in the case. First defendant hied answer; thesecond defendant was in default. On the date of trial the plaintiffand first defendant were present. Plaintiff gave evidence, and
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thereafter an agreement was come to by which the plaintiff waived 1923.
all damages and costs against the first defendant, who was present
and agreed to take judgment against the second defendant, who dehr a.J.
was not before the Court, for the full damages claimed and to a ^onoiiamy
share of the land whioh she said she was entitled to. The evidence v.
recorded is very meagre, and does not show that either of the Divunu^amy
defendants possessed a share of the land whioh belonged to the
plaintiff. However that may be, a decree was entered against
the second defendant. Subsequently the second defendant moved
the Court, under section 823 (3) of the Civil Procedure Code, to have
the judgment entered by default set aside on the ground that she
was never served with summons, and that she had a good and
valid defence on the merits. The matter was then fixed for
inquiry, and at this inquiry the advocate for the second defendant
wished to raise the question whether the original judgment was
justified by the evidence. This was disallowed, as the case had
been fixed for that day for the inquiry into the question whether .
the second defendant had been served with summons. At the
inquiry into this question three witnesses gave evidence. One
Don Nikulas Ranesinghe, who was called to prove that summons
had been served by him on the second defendant in a testamentary
case, which has, so far as 1 could see, nothing whatever to do with
the present litigation. Then one K. A. David was called, the
man who is said to have served the summons in the present case
on the second defendant. He stated in Court that he acted for
the last witness, and that he did not know the second defendant,
who was then present in Court, and that he did not remember
having ever seen her before that date. He served the summons
in the case, he went to a house shown to him by the headman
and served summons on a woman who called herself Divunuhamy.
He was unable to say whether the second defendant was the woman.
Second defendant herself gave evidence, and denied that summonswas served on her. She also stated that she did not receive thesummons, which the process server Ranesinghe had stated he hadserved on her in the testamentary case. This was all the evidencecalled by the parties. In my opinion, this evidence fails to provethat this woman, Divunuhamy, had been served with summonsin the action. The learned Commissioner does not believe theprocess server David or the woman Divunuhamy. Well, if hedoes not believe them it cannot help the plaintiff, because there isno other evidence upon which he could hold that the summonshad been served on the second defendant. I would thereforehold that there is no proof of the service of summons, and that thesecond defendant iB entitled to have the judgment by defaultset aside.
But it is contended for the plaintiff that there is no right ofappeal from the order of the learned Commissioner refusing to set
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1928.
Jayawar-DBN® A. J.
Nonohamy' v.Divunuhamy
aside the judgment by default. He relies on sub-section (6) ofsection 823, which says that “no appeal shall lie against anyjudgment entered under this section for default of appearaneeanything in the Courts Ordinance, 1889, or in this Code to thecontrary notwithstanding.’’
Section 84 of the Courts Ordinance, which deals with appealsfrom Courts of Requests, enacts that “ any party who shallbe dissatisfied with any final judgment or any order having theeffect of a final judgment pronounced by the Commissioner of anyCourt of Requests, may, excepting where such right is expresslydisallowed, appeal to the Supreme Court appeal against any suchjudgment or order for any error in law or in fact committed bysuch Commissioner.” Now, sub-section (6) expressly disallowsan appeal against any judgment for default of appearance, andit nowhere takes away the general right conferred by section 84on an aggrieved party to appeal against a final judgment or orderfrom a Court of Requests. I am unable, therefore, to accept thecontention of the respondents’ counsel that a judgment for defaultof appearance, includes not only that judgment itself, but also ajudgment on any application to have that judgment set aside. Insupport of his contention he relies upon a case which is unreportedwhich appears to support the learned counsel’s contention. But thefacts are not stated in the judgment, and I am inclined to thinkthat that judgment was delivered in a case in which the subject-matter in dispute was not land but a money claim. As regardsland cases in the Court of Requests, parties have the right toappeal without the leave of the Commissioner, and I cannot seewhy an appeal should not be allowed against the order now inquestion, especially as it finally decides the question of title to theland and the second defendant’s liability for its possession. Iwould, therefore, allow the appeal, set aside the judgment of default,and direot that the second defendant be allowed an opportunity offiling answer and contesting the plaintiff’s claim. The appellantwill be entitled to the costs of the appeal. All other costs willabide the event.
Appeal allowed.