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PAKIR MOHIDIN v. MOHAMAD tJ CASIM.
D. G., Galle, 5,643.
Practice—Failure to get ready for tried—Ex parte tried—Application to vacatejudgment—negligence of proctor—Inadmissibility of affidavit sworn tobefore a Justice of the Peace, who was defendant's own proctor.
Where defendant, after filing answer, took no 9teps to get ready for trial,so that the case proceeded ex parte and a decree nisi Was entered againsthim, and he applied a fortnight afterwards to vacate the judgment on theground that he Was not present in court when the date of trial Was fixed,and that his proctor’s clerk subsequently gave a date which he mistook forthe 27th July, whereas the proper date Was the 27th June, with theresult that he failed to instruct his proctor in due time,—
Held, it Was the duty of his proctor to have informed him of theproper date of trial and to have asked for instructions, and that as theproctor did not appear to have done his duty, he was to blame for theabsence of the defendant and the defendant must suffer for the faultof his proctor.
An affidavit sworn by the defendant before his own proctor is not,according to the practice of English Courts, admissible in evidence, andsuch practice should be followed here.
HIS was an appeal from an order of the District’ Judge refusingto set aside a decree nisi. It appeared that the action was
filed on the 27th October, 1899, against the defendant under
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1900.section 247 of the Civil Procedure Code; that on the 10th January
October 16.following the defendant filed his proxy, and a week afterwards
his answer. The trial was fixed for the 27th June, on which daythe defendant failed to appear when the case was called. Hisproctor having withdrawn from the case for want of instructionsfrom the defendant, the case proceeded ex parte, and a decree wasentered against him on the same day.
On the 5th July the proctor for the defendant presented apetition praying that the judgment signed against him be vacatedand a new trial had, on the ground that the defendant hadmistaken the date of trial.
The defendant’s petition was supported by an affidavit swornto before his own proctor, Mr. N. Dias Abeyesingha, who is aJustice of the Peace.
The District Judge refused the defendant’s application.
Bawa, for defendant, appellant.
H. J. C. Pereira, for respondent.
16th October, 1900. Bonser, C.J.—
The defendant is a trader residing in the Galle Fort. Theaction was commenced on the 27th October, 1899, and was anaction under section 247 of the Code by an execution-creditoragainst a successful claimant, who resisted the execution of adecree. On the 10th January, 1900, the defendant filed his proxyand a week afterwards his answer. On the latter day the trial ofthe action was fixed for the 27th June, which gave more than fiveweeks to the parties to prepare their case. When the case wascalled on, the defendant’s proctor appeared and said he had noinstructions whatever from his client, and that he withdrew fromthe case. Thereupon the case proceeded ex parte in the usualway, and a decree was entered up on the same day. On the 5thJuly, nearly a fortnight afterwards, the proctor for the defendantpresented a petition praying that the judgment be vacated anda new trial had, on the ground that the petitioner had mistakenthe date of trial. This petition was supported by an affidavitmade by the defendant.
This affidavit ought not to have been received by the DistrictJudge, for it was sworn before the deponent’s own solicitor, Mr.Abeyesingha. The practice in England has been uniform, that anaffidavit sworn under such circumstances will not be received, andwe think that the English practice should be followed here, andI have in previous cases so held.
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The explanation given by the defendant of his mistake is this.He was not present in Court when the date of the trial wasfixed. Subsequently, he asked his proctor’s clerk, and he gavea date which he mistook for the 27th July, whereas in fact it wasthe 27th June; that “ a day after that he was in Colombo, when*• he was informed by his proctor that judgment had been entered“ against him in his absence, and he forthwith took steps to have“ the judgment vacated.”
The District Judge says that he is not satisfied with thisaffidavit, and I think if he had been satisfied with it, he wouldhave been too easily satisfied. Nothing could be vaguer or moreunsatisfactory. No explanation is given how it was that nopreparations had been made for the trial of the case on the partof the defendant. No list of witnesses was filed, apparently nosteps whatever were taken in the case. The defendant does notsay what occurred at the interview between him and the clerk;and I must say that it seems strange to me that, if there was abond fide intention to defend this action, no steps were taken bythe defendant’s proctor in the matter. It does not appear fromthe affidavit what communications took place between the proctorand his client, the defendant. The proctor knew that the trialwas coming off on the 27th June, and I cannot find any excusefor a proctor so forgetful or neglectful of the interests of hisclient as to fail to inform him of the date of a trial which wasrapidly approaching, or even to ask for instructions in thematter. If the proctor did not do his duty, he is to blame for theabsence of the defendant, and the defendant must suffer for thefault of his proctor.
I see no reason whatever for reversing the judgment of theDistrict Judge.
October 16.Bonseb, C.J.
PAKIR MOHIDIN v. MOHAMADU CASIM