067-SLLR-SLLR-2005-V-2-RANASINGHE-OTHERS-V-L.-B.-FINANCE-LTD.pdf
CA
Ranasinghe & Others vs L. B. Finance Ltd.
Wimalachandra J.,
393
RANASINGHE & OTHERSVSB. FINANCE LTD.,COURT OF APPEAL
WIMALACHANDRAJ
CA (REV) 534/03
D. C. COLOMBO 42974/MHP
JANUARY 28, 2005
FEBRUARY 3, 2005
Civil Procedure Code-Sections 85, 839-ex-parte Judgement-Summons notserved ? Application under Section 839-Dismissed on the ground that Courthas no jurisdiction-Leave to Appeal refused-Special Leave to Appeal Applicationrejected-RevisiOn application-Could it be entertained ? – Validity ?
The Defendant-Petitioners made an application to the District Court to havethe Ex-parte decree vacated on the ground of non-service of summons underSection 839 of the Code. This application was rejected on the basis that theCourt has no jurisdiction to entertain the application. The leave to appealapplication against this Order was refused by the Court of Appeal. The SupremeCourt refused special Leave to Appeal. The Petitioner thereafter filed anapplication in Revision to set aside the Order of the Trial Judge which dismissedthe application made by the Defendant Petitioners to have the ex-parteJudgment vacated.
HELD:
An Inquiry on an application to set aside an exparte decree is notregulated by any specific provision in the Code. Such inquiries mustbe conducted consistently with the principles of natural justice andthe requirements of fairness. Section 839 of the Code recognises theinherent power of the Court to make any order as may be necessaryto meet the ends of justice.
It is the duty of the District Judge to hold an Inquiry into the question ofnon service of summons-failure to serve summons is a failure whichgoes to the root of the jurisdiction of the Court to hear and determinethe action against the Defendant-a Judgment so entered is a nullity.
394
Sri Lanka Law Reports
(2005) 2 Sri L R.
Refusing to hold an Inquiry into the application made on the basis ofnon-service of summons for the sole reason that the Court has nojurisdiction to hold an Inquiry, is demonstrably and manifestly wrong.
The reason for the dismissal of the leave to the appeal application isthe non-appearance of the Defendants and their Counsel on the dateof Inquiry. The Supreme Court upheld the Order of dismissal of theCourt of Appeal. When the Defendants appealed to the SupremeCourt from the Order of the Court of Appeal, the Defendants did notseek to question the impugned order of the District Judge. The Courtof Appeal as well as the Supreme Court did not affirm the impugnedorder, both Courts did not go into the merits of the application.
The impugned order is based upon a misapprehension that the Courthas no jurisdiction to inquire into an application to set aside an expartedecree on the basis of non-service of summons, is manifestlyerroneous.
Per Wimalachandra J.,
"In the circumstances, I am of the view that a miscarriage ofjustice has occurred by the said Order, due to the violation of thefundamental rule of procedure and the powers of Revision arewide enough to embrace a case of this nature, it is my furtherview that non interference by this Court will cause a denial ofjustice and irremediable harm to the Defendant.
If the impugned order is manifestly erroneous and is likely to causegreat injustice, Court should not reject the application on the groundof delay alone.
Application in Revision from an Order made by the District Court ofColombo.
CASES REFERRED TO:
De Fonseka vs Dharmawardena 1994 3 Sri LR 49
Ittepane vs Hemawathie 1981 1 Sri LR 476 at 485
Sitthi Maleeha and another vs Nihal Ignatius Perera and others 19943 Sri LR 770
Sinnathangam vs Meera Mohideen 60 NLR 394
CA
Ranasinghe & Others vs L. B. Finance Ltd.
Wimalachandra J.,
395
Abdul Cader vs Sittnisa-
Katiramanthamby vs Lebbethamby Hadjiar 75 NLR 228
Mrs. Sirimavo Bandaranayake vs Times of Ceylon Ltd.
1995 1 Sri LR 22
Soysa vs S/7va-2000 2 Sri LR 235
Biso Menika vs Cyril De Alwis-1982 1 Sri LR 368 at 379
Peter Jayasekera for Defendant – PetitionerSanjeewa Jayawardena for Plaintiff – Respondent
March 1,2005Wimalachandra, J
This is an application in revision filed by the 1 s 2nd and 3rd defendapts-petitioners (1st, 2nd & 3rd defendants) from the order of the learned AdditionalDistrict Judge of Colombo dated 13.03.2001. By that order the LearnedAdditional. District judge had dismissed the application made by thedefendants to have the ex-parte judgment entered against them vacated.
The plaintiff-respondent (plaintiff) filed action upon a lease agreementagainst the 151 to 3rd defendants. The defendants defaulted in appearing onthe summons returnable date and the learned Judge fixed the case forex-parte. The Court directed the Fiscal to serve the decree on thedefendants. Thereafter the defendants made an application to Court tohave the ex-parte decree vacated on the ground of non-service of summonsand also sought an interim order that the writ of execution of the decree bestayed until this application to set aside the ex-parte decree is determined.
However, it appears that (vide journal entry dated 07.10.1997 of theDistrict Court case record) the 1st defendant had appeared on the summonsreturnable date. In the said journal entry it is clearly recorded that the 2ndand.3rd defendants were absent. It is the position of the 1st defendant thathe was not present in Court on the summons returnable date as summonswas not served on him. In any event this could only be decided at theinquiry into the application made by the defendants to set aside the decreeon the ground of non-service of summons. All three defendants made theapplication to have the ex-parte decree vacated under section 839 of theCivil Procedure Code. The learned Additional District Judge fixed the matterfor inquiry. When the matter was taken up on 13.03.2001 the learned
396
Sri Lanka Law Reports
(2005) 2 Sri L. R.
Additional District Judge, after hearing the submissions made by counsel,dismissed the application made by the respondent on the ground that theCourt has no jurisdiction to entertain their application.
When a defendant complains that summons had not been dulyserved on him, the Court must hold a proper inquiry. The affectedparty must be allowed to prove that the summons was not servedon him.
An inquiry on an application to set aside an ex-parte decree cannot belimited to oral submissions. Since the onus is on the defendants to provethat the summons were not served on them, they should have been allowedto lead evidence and call witnesses to prove that summons were intact notserved on them. In the instant case what the learned Judge had done was.after listening to the submissions made by the counsel, summarilydismissed the defendants' application without giving them an opportunityto prove, by calling evidence that summons were not served on them. Thatis. the learned Judge had dismissed the application of the defendantswithout holding a proper inquiry.
In the case of De Fonseka Vs. Dharmawardena() the Court of Appealheld that an inquiry on an application to set aside an ex-parte decree isnot regulated by any specific provision in the Civil Procedure Code. Suchinquiries must be conducted consistently with the principles of naturaljustice and the requirements of fairness. Section 839 of the Civil ProcedureCode recognizes the inherent power of the Court to make an order as maybe necessary to meet the ends of justice.
(2)
In the case of Ittepana Vs. Hemawathie at 485 Sharvananda, J. (ashe then was) stated :
“Thus, when a complaint is nriatie to Court that injustice hasbeen caused by the default of the Court in not servingsummons, it is the duty of the Court to institute a judicialinquiry into the complaint and ascertain whether summonshad been served or not, even going out side the record andadmitting extrinsic evidence and if it finds that summonshad not been served, it should declare its ex-parte ordernull and void and vacate it.”
CA
Ranasinghe & Others vs L. B. Finance Ltd.
Wimalachandra J.,
397
In the instance case the defendants have taken the position thatsummons were not served on them personally, in that they are challengingthe report and the affidavit of the Fiscal. In this situation the Fiscal’s evidenceis essential and the defendants are entitled to cross-examine him to testthe veracity of his evidence.
In this regard it is apt to refer to the observations made by S. N. Silva,J. /CA (as he then was) in De Fonseka Vs. Dharmawardena (Supra) at53*.
“In the face of the evidence of the defendant that summonswas not served on him personally, the report and the affidavitof the Fiscal is challenged. Therefore, the report and affidavitof the Fiscal should be tested in the evidence. This evidenceis an essential component of an inquiry into an application ofa defendant to set aside an ex-parte decree on the basis ofnon-service of summons.”
It is clear from these decisions that it is the duty of the District Judge tohold an inquiry into the question of non-service of summons. Sharvananda,J. (as he then was) in Ittepana Vs. Hemawathie (supra) said that thefailure to serve summons is a failure which goes to the root of the jurisdictionof the Court to hear and determine the action against the defendant. If adefendant is not served with summons or otherwise notified of theproceedings against him, the judgment entered against him is a nullity.
The same position was taken in the case of Sitthi Maleeha andanother Vs. Nihal Ignatius Perera and others(3) where it was held interalia that the failure to serve summons goes to the root of the jurisdiction ofthe Court. If a defendant is not served with summons or otherwise notifiedof the proceedings against him, the judgment entered in suchcircumstances is a nullity and the persons affected by the proceedingscan apply to have them set aside ex-debito justitiae. The District Courthas inherent jurisdiction in terms of section 839 of the Civil ProcedureCode to inquire into the question of non-service of summons.
In the instant case it appears that the impugned order made by thelearned District Judge in refusing to hold an inquiry into the applicationmade by the defendants on the basis of non-service of summons, for thesole reason that the Court has no jurisdiction to hold an inquiry, is
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Sri Lanka Law Reports
(2005) 2 Sri L R.
demonstrably and manifestly wrong. The Supreme Court and the Court ofAppeal has held in several cases (supra) that the District Court has inherentjurisdiction in terms of section 839 of the Civil Procedure Code to inquireinto the question of non-service of summons.
In the instant case, before making the present application in revision,the defendants had filed an application for leave to appeal against theaforesaid impugned order made by the learned Judge in refusing theapplication made by the defendants to vacate the ex-parte judgment enteredagainst them on the ground that the District Court has no jurisdiction toinquire into it. The Court of Appeal dismissed the said application for wantof due prosecution and lack of due diligence as the petitioner was absentand unrepresented on the date of the inquiry on 9.7.2001. Thereafter thepetitioners filed an application to re-list this matter. The Court directed tosupport that application on 2.5.2002. However the said application wasdismissed as well, as the petitioner was absent and unrepresented on2.5.2002. The petitioners then filed an application for special leave to appealfrom the order of the Court of Appeal to the Supreme Court. The SupremeCourt after hearing both parties upheld the order of the Court of Appeal anddismissed the defendants' application on 18.11.2002.
The defendants thereafter filed this application in revision in the Court ofAppeal on 31.03.2003 to have the said impugned order of the DistrictJudge dated 13.03.2001 set aside.
The plaintiff-respondent objected to this application mainly on the followingtwo grounds:
The defendants cannot be permitted in law to file this applicationin revision in view of the dismissal of the previous leave to appealapplication by the Court of Appeal and the dismissal of the specialleave to appeal application therefrom by the Supreme Court.
The defendants' application in revision should be dismissed dueto laches.
An inquiry on an application to set aside an ex-parte decree on thebasis of non service of summons is not regulated by any specific provisionof the Civil Procedure Code. The Court has the inherent power to conduct
Ranasinghe & Others vs L. B. Finance Ltd.
Per Wimalachandra J.,
399
CA
such inquiries in terms of section 839 of the Civil Procedure Code to vacatean order made ex-parte where it was made not due to a fault of that party.
With regard to the dismissal of the leave to appeal application filed inthe Court of Appeal, the reason for the dismissal is the non appearance ofthe defendants and their counsel on the date of inquiry. In terms of Rule 34of the Supreme Court Rules 1990 published in the Gazette (extraordinary)No. 665/32,7.6.1991, where an appellant or a petitioner who has obtainedleave to appeal fails to show due diligence in taking all necessary stepsfor the purpose of prosecuting an appeal or application, the Court may, onan application on that behalf by a respondent, or of its own motion, onsuch notice to the parties as it shall think reasonable in the circumstances,declare the appeal or application to stand dismissed for non prosecution.Thus it will be seen that the Court of Appeal has not gone into the meritsof the application. The defendants sought special leave to appeal from thesaid order of dismissal by the Court of Appeal to the Supreme Court. TheSupreme Court upheld the order of dismissal of the Court of appeal andconsequently dismissed the defendant’s application.
The question that arises for consideration is whether the defendantscan pursue this application in revision in view of the aforesaid judgments ofthe Court of Appeal and of the Supreme Court. It is to be noted that in thisinstance both the Court of Appeal and the Supreme Court have not goneinto the merits of the defendants’ application.
It is to be observed that when the Court of Appeal dismissed thedefendants’ application for leave to appeal from the order of the DistrictJudge refusing the defendants’ application to vacate the ex-parte order,the Court of Appeal did not consider the legality or correctness of theimpugned order on merits. Similarly when the Supreme Court dismissedthe application for special leave to appeal from the order of the Court ofAppeal, the Supreme Court did not consider the legality or propriety of thesaid order of the District Court. When the defendants appealed to theSupreme Court from the Order of the Court of Appeal, the defendants didnot seek to question the impugned order of the District Judge. It is to befurther noted that both the Court of Appeal and the Supreme Court did notaffirm the impugned order of the learned District Judge.
It is settled law that the superior Courts have the power to revise anorder made by an original Court even where an appeal has been taken
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Sri Lanka Law Reports
(2005) 2 Sri L R.
against the order if the application discloses exceptional circumstances.
It was held in the case of Sinnathangam Vs. Meera Mohideen"* thatthe Supreme Court possesses the power to set aside in revision anerroneous decision of the District Court in an appropriate case even thoughan appeal against such decision has been correctly held to have abatedon the ground of non compliance with some of the technical requirementsin respect of the notice of security. In this case T. S. Fernando, J. at 395made the following observation :
“The sole argument upon which the petitioner’s counsel reliesis that the judgment is manifestly erroneous in law, and thatthis error in law has resulted in a denial of the petitioner'sright to have the action instituted against him dismissed. Herefers us to two fairly recent decisions where this Court hasexercised its powers to revise decisions reached in DistrictCourts in somewhat similar circumstances. The first of these isthe case of Abdul Cader V. Sittinisa where this Court,notwithstanding that an appeal had abated, heard theappellant by way of revision observing that it did so as a matterof indulgence and interfered with the judgment appealed fromon a point of law. The other is a more recent and hithertounreported decision-S. C. 309/D. C. Colombo 36064/M – S. C.Minutes of 17th March 1958-in which this Court while rejectingan appeal for noncompliance with the provisions of sections755 and 756 of the Civil Procedure Code stated that it wouldbe prepared to deal with the questions raised by way ofrevisions as important questions of law arose on the appeal.We do not entertain any doubt that this Court possesses thepower to set right an erroneous decision of the District Courtin an appropriate case even though an appeal against suchdecision has been correctly held to have abated. It onlyremains therefore for us to examine whether there is asubstantial question of law involved here and whether this isan appropriate case for us to exercise the powers of revisionvested in this Court by section 753 of the Civil Procedure Code.’’
An appeal to the Supreme Court was decided against the respondentparties, although it would not have been so decided if the Court had beeninvited by the respondent to exercise its powers of revision in their favor.Within a few weeks of the decision of the appeal, the respondent sought
CARanasinghe & Others vs L. B. Finance Ltd.401
Wimalachandra J.,
relief by way of an application in revision. It was held in the case ofKatiramanthamby vs. Lebbethamby Hadjia{6)that the Supreme Courthad the power, acting in revision, to set aside the order that had beenmade in the appeal.
In the case of Mrs. Sirimavo Bandaranaike Vs. Times of CeylonLimited^ the question of law that came up for decision in the appeal waswhether the Court of Appeal had jurisdiction, in revision, to reverse or varyan ex-parte judgment entered against a defendant upon default ofappearance. It was held in tftiS case inter atiaXhaf the revisionary jurisdictionof the Court Appeal in terms of Article 138 of the Constitution extends torevising or varying an ex-parte judgment against the defendant upon defaultof appearance on the ground of manifest error or perversity or the like. Adefault judgment can be canvassed on its merits in the Court of Appeal inrevision, though not in appeal and not in the District Court itself.
As stated above, the impugned order of the District Judge is basedupon a misapprehension that the Court has no jurisdiction to inquire intoan application to set aside an ex-parte decree on the basis of non-serviceof summons, which is manifestly erroneous.
In the circumstances I am of the view that a miscarriage of justice hasoccurred by the said order of the District Judge due to the violation of afundamental rule of procedure, and the powers of revision of the Court ofAppeal are wide enough to embrace a case of this nature. It is my furtherview that non-interference by this Court will cause a denial of justice andirremediable harm to the defendants. Therefore, there are specialcircumstances for this Court to exercise its powers of revision.
It was held in the case of Soysa Vs. Silva that the power given to asuperior Court by way of revision is wide enough to give it the right torevise any order made by an original Court. Its object is the dueadministration of justice and the correction of errors sometimes committedby the Court it self, in order to avoid miscarriage of justice.
The next matter to be decided is whether the defendants are guilty oflaches. The question whether delay is fatal to an application in revisiondepends on the facts and circumstances of the case. If the impugned
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(2005) 2 Sri L. R.
order is manifestly erroneous and is likely to cause great injustice, theCourt should not reject the application on the ground of delay alone.
(9)
In the case of Biso Menike Vs. Cyril de Alwis Sharvananda, J. at379 observed:
“When the Court has examined the record and is satisfiedthe Order complained of is manifestly erroneous or withoutjurisdiction the Court would be loathe to allow the mischiefof the Order to continue and reject the application simplyon the ground of delay, unless there are very extraordinaryreasons to justify such rejection. Where the authorityconcerned has been acting altogether without basicjurisdiction, the Court may grant relief in spite of the delayunless the conduct of the party shows that he has approbatedthe usurpation of jurisdiction. In any such event, theexplanation of the delay should be consideredsympathetically.”
For these reasons, I hold that the District Judge erred in dismissing theapplication made by the defendants to set aside the ex-parte decree onthe basis that summons were not served on them. Accordingly, I set asidethe order of the learned Additional District Judge dated 13.03.2001. Thelearned Additional District Judge is directed to proceed with the inquiryinto the application to set aside the ex-parte decree entered in the DistrictCourt against the defendants. Accordingly, the application in revision isallowed. I make no order as to the costs of this application.
The Registrar is directed to return the District Court record with thisorder forthwith. ■
Application allowed.District Judge directed to proceed with the Inquiry into the application toset aside the ex-parte decree entered.