106-NLR-NLR-V-65-NORTON-PERERA-Petitioner-and-THE-ASSISTANT-COMMISSIONER-OF-AGRARIAN-SERVICES-.pdf
H. N. G.''FERNANDO, J.—Norton Per era v. Assistant Commissioner of 501 "
Agrarian Services, Kegalle
1963Present: H. If. G. Fernando, J.
NORTON PERERA. Petitioner, and THE ASSISTANTCOMMISSIONER OF AGRARIAN SERVICES.KEGALLE, Respondent
S. C. 427[63—Application for restitutio- in-integrum in
M.C. Kegalle, 43934
Paddy land—Eviction order—Absence of party on date of inquiry—Procedure—Paddy Lands Act No. 1 of 195S, 8. 21 {4}—Civil Procedure Code, 3. 86.
Where, on the date fixed under section 21 (4) of the Paddy Lands Act forinquiry against the issue of an order of eviction, the person sought to beevicted is absent, the Magistrate should, in the absence of specific provisionfor the situation, enter an order ®ifi which he should deal with in the sameway as would a civil Court under section 86 of the Civil Procedure Code.
Application to revise an order of the Magistrate’s Court.Kegalle.
D. R. Wijegooruxvardane, for the petitioner.
N.B. D. S. Wijesekera, Crown Counsel, for the respondent.
November 27,1963. H. N. G. Fernasdo. J.—
This is an application in revision made in connection with an orderof eviction made by a Magistrate under Section 21 of the Paddy LandsAct No. 1 of 1958. The procedure contemplated in Section 21 is thatan order made by a cultivation committee or the commissioner to vacatepaddy land is reported to the Magistrate’s Court. The Magistratethereupon issues summons to the person named in the report to showcause why he should not be evicted. Sub-seotion 3 provides that ifthe person fails to appear on the date specified in the summons orappears and informs the Court that he has no cause to show, the Courtwill make an order of eviction against him. Sub-section 4 providesthat when the person appears in answer to the summons and statesthat he has cause to show, the matter is set down for inquiry. Afterthe inquiry, the Magistrate can make an order for eviction which issubject to appeal to this Court.
In the present case, the petitioner appeared in answer to the summonsand stated that he had cause to show and the matter was fixed forinquiry. The inquiry was postponed more than once but finally thecase was called on the 22nd August, 1983 when the respondent wasabsent. ‘The learned Magistrate, noting that there was no excuse beforethe Court, allowed the substantive application for eviction.
502Monaoar t>. Minister ef Dvjmyt end Sotmuai jLfjair*
There is no provision in Section % which expressly deals witb thesituation which arose in this case, namely, the absence of the petitioneron the inquiry date. The section neither authorises the order of evkUmto be made forthwith in such a situation nor does it provide for anyother procedure to be followed.
It seems to me that although the Act provides for the order of evictionto be made by a Magistrate, the jurisdiction is a special one and is moreof a civil nature. In the absence of specific provision for this situation,I think the Magistrate should have followed the ordinary procedure ofa civil court which is to make an order nisi against which the personconcerned could show cause if he is able to excuse, to the satisfactionof the Magistrate, his default of appearance. In considering whetherthe order should ox should not be made absolute, the Magistrate shoulddeal with the matter in the same way as would a civil Court underSection 86 of the Civil Procedure Code.
I set aside pro forma the order made by the learned Magistrate anddirect him to make an order nisi in accordance with the views set outin this judgment.
Ordsr set aside pro forma.
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