RANASINGHE v. ZUBAIR AND OTHERS

054-SLLR-SLLR-2002-V-2-RANASINGHE-v.-ZUBAIR-AND-OTHERS.pdf


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Ranasinghe v. Zubair and Others
399
RANASINGHE
v.ZUBAIR AND OTHERS
COURT OF APPEALJAYASINGHE, J. ANDUDALAGAMA, J.
CALA NO. 89/2000DC BANDARAWELA NO. 69/MSOCTOBER 04 AND 20, 2000
Civil Procedure Code – S. 703, 704 (1) (2), 705 (1), 706 – Liquid claims – Isit imperative to annex to the plaint the original of the instrument which he issuing? – Triable issue?
At the inquiry the defendant-respondents took up the objection that the originalcheque was not produced in Court at the time of presenting the plaint as requiredunder s. 705 (1) (Photocopy of the dishonoured cheque was annexed). The trialJudge held that the failure to produce the instrument on which the plaintiff reliesas required by s. 705 (1) gave rise to a triable issue and the defendant-respondentswere granted leave to appear and defend the action unconditionally.
On leave being sought.
Held:
It is unnecessary to annex the original of the instrument to the plaint.However, the plaintiff shall set out in his affidavit why the original instrumentis not annexed to the plaint.
Per Jayasinghe, J.
“It must be had in mind that when the Civil Procedure Code was enactedin 1889, photocopying and other duplicating machines were unknown to Court.There has now arrived for Courts to recognise the scientific and technologicalprogress and assimilate such progress into archaic legislation wherever possibleso that such legislation will remain compatible with the emerging trends andto deal with complex and varied transactions."
A prima facie sustainable defence must be independent of the requirementset out in S. 705 (1) for S. 704 (2) and S. 705 (1) are distinct andindependent of each other.
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APPLICATION for Leave to Appeal from the order of the District Court ofBandarawela.
Cases referred to :
Esquire (Garments) Industry Ltd. v. Sadhwani (Japan) Ltd. – 1983 2 SriLR. 242. (Not followed).
Thilagaratnam v. Edirisinghe – 1982 1 Sri LR 57.
S. Mahenthiran with S. Srikantha for the plaintiff-petitioner.
Faiz Musthapha, PC with M. A Sumanthiran for the defendant-respondent
Cur. adv. vutt.
March 02, 2001JAYASINGHE, J.
The plaintiff-respondent-petitioner instituted action in the District Courtof Bandarawela on 20. 04. 1999 against the defendant-petitioners-respondents on a cheque in terms of section 703 of the Civil ProcedureCode. The respondents on 15. 06. 1999 sought leave of Court toappear and defend the plaintiff's action unconditionally. At the inquirythe respondents took up the objection that the original cheque wasnot produced in Court at the time of presenting the plaint as requiredunder section 705 (1) of the Civil Procedure Code. The learned DistrictJudge by order dated 24. 03. 2000 held that the failure on the partof the petitiioner to produce before Court the instrument on which theplaintiff relies as required by section 705 (1) gave rise to a triableissue and accordingly the respondents were granted leave to appearand defend the action unconditionally. It is common ground that thecheque was not presented along with the plaint. However, the plaintfiled on 20. 04. 1999 did have as an annexure a photocopy of thedishonoured cheque marked UA". Upon the action being journalised,the learned District Judge directed the original cheque to be tenderedand it appears according to the journal entry of 11. 06.1999 the plaintiff
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has complied with the direction of Court by tendering the originalcheque by way of a motion and also moving that the cheque be kept 20in safe custody. According to the journal entry of 11. 06. 1999, Courthas directed that summons be issued on the defendant-respondentsin form 19.
Section 703 provides that –
"All actions where the claim is for a debt or liquidated demandin money arising upon a bill of exchange, promissory note, orcheque, or instrument or contract in writing for a liquidated amountof money, or on a guarantee where the claim against the principalis in respect of such debt or liquidated demand, bill, note, orcheque, may, in case the plaintiff desires to proceed under this 3°Chapter, be instituted by presenting a plaint in the form prescribedby this Ordinance, but the summons shall be in the form No. 19in the first Schedule, or in such other form as the Supreme Courtmay from time to time prescribe."
Section 704 (1) provides that –
"In any case in which the plaint and summons are in suchforms respectively, the defendant shall not appear or defend theaction unless he obtains leave from the court as hereinaftermentioned so to appear and defend; and in default of his obtainingsuch leave or of appearance and defence in pursuance thereof, 40the plaintiff shall be entitled to a decree for any sum not exceedingthe sum mentioned in the summons, together with interest to thedate of the payment, and such costs as the Court may allow atthe time of making the decree."
Section 704 (2) provides that –
“The defendant shall not be required, as a condition of thisbeing allowed to appear and defend, to pay into Court the sum
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mentioned in the summons, or to give security thereof, unless theCourt thinks his defence not to be prima facie sustainable, or feelsreasonable doubt as to its good faith."
Once the plaintiff is before Court under section 703, section704 (1) provides that the defendant shall not appear and defend theaction unless he obtains leave from Court and 704 (2) allows thedefendant to appear and defend unconditionally provided he couldsatisfy Court that there is a prima facie sustainable defence or is ableto establish absence of good faith on the part of the plaintiff.Mr. Sumanthiran relied heavily on a judgment of G. P. S. de Silva,J. in Esquire (Garments) Industry Ltd. v. Sadhwani (Japan) Ltdwhere his Lordship G. P. S. de Silva, J. has held that –
"In any event the failure to produce the originals of thedocuments at the time of the presentation of the plaint raises atriable issue . . . and the defendant should have been grantedleave to appear and defend the action unconditionally."
It appears, however, that on a perusal of section 703 and section704 that there is no requirement to produce the instrument along withthe plaint. Form 19 provides that –
"Whereas the above named plaintiff has instituted an actionagainst you in this Court under chapter… of the Civil ProcedureCode for. . . rupees principal and interest (or. . . rupees, balanceof principal and interest) due to him as payee (or indersee) of abill of exchange (or as the case may be: state the instrument onwhich the claim is made) ; of which a copy is hereto annexed."
The question for determination by this Court is whether there isan imperative requirement on the plaintiff to annex to the plaint theoriginal of the instrument upon which he is suing.
Section 705 (1) provides that –
so
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"The plaintiff who so sues and obtains such summons asaforesaid must on presenting the plaint produce to the Court theinstrument on which he sues, and he must make affidavit that thesum which he claims is justly due to him from the defendant 80thereon."
It is pertinent at this stage to consider whether there is a nexusbetween 705 (1) and 704 (2). 704 (2) allows the defendant unconditionalleave provided the defendant could satisfy Court that he has a defenceprima facie sustainable and 705 (1) provides that – the plaintiff. . .must on presenting that plaint produce to the Court the instrumenton which he sues. Can it be said that the failure to annex the originalcould be availed of by the defendant to come within 704 (2) on thebasis that he has a prima facie sustainable defence. G. P. S. deSilva, J. in Esquire Garments assumed it to be so.so
It is also necessary to mention that section 705 sets out tworequirements. The requirements of section 705 is not satisfied by theplaintiff merely annexing to the plaint the instrument upon which heis suing. Additionally, he must make an affidavit stating that the sumwhich he claims is justly due to him from the defendant. It is, therefore,seen that the cause of action is set out in the affidavit and theinstrument is only proof of what is set forth in the affidavit.
Mr. Mahenthiran submitted that the wording used in section 708viz "any proceedings under this chapter the Court may" connotes thatafter the action has moved at a later stage the Court can call for100the original document and thus chapter 53 does not make a call forthe instrument to be annexed when action is filed and submits thatthe phrase "Court may" invest in Court the discretion to summon theplaintiff to deposit the instrument in Court on a later date. Section708 will have no meaning if there was a requirement to annex tothe plaint the original of the instrument at the time action is instituted.
“Prima facie sustainable" defence in section 704 (2) cannot importthe requirement of producing the instrument as set out in section 705
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(1) as a prima facie sustainable defence. A prima facie sustainabledefence must be independent of the requirement set out in section 120705 (1) for section 704 (2) and section 705 (1) are distinct andindependent of each other.
It is also relevant to consider the application of section 706. Whilstsection 704 (2) allows the defendant to appear and defendunconditionally provided he can satisfy Court that he has a prima faciesustainable defence or satisfies Court the absence of good faith onthe plaintiff, section 706 deals with when leave to defend may begranted. Section 706 has two limbs. Firstly, the Court shall upon theapplication by the defendant grant leave to appear and defend theaction upon the defendant paying into Court the sum mentioned in 1301the summons or alternatively grant-leave to appear and defend onsuch terms as to security … or otherwise as the Court thinks fit.Under section 706 a discretion is vested in Court as to whether ornot to grant security while section 704 (2) allows a defendant to appearand defend unconditionally upon the defendant being able to satisfyCourt that he has a prima facie sustainable defence. The requirementfor tendering the instrument on presenting the plaint is found in section705 (1) and as stated before it is proof of the amount due to theplaintiff. The plaintiff is required to make an affidavit stating that thesum which he claims is justly due. It is unnecessary to annex the mooriginal of the instrument to the plaint. However, the plaintiff shall setout in his affidavit why the original instrument is not annexed to theplaint.
It must be had in mind that when the Civil Procedure Code wasenacted in 1889, photocopying and other duplicating machines wereunknown to Court. Time has now arrived for Courts to recognise thescientific and technological progress and assimilate such progress intoarchaic legislation wherever possible so that such legislation willremain compatible with the emerging trends and to deal with complexand varied transactions Courts are called upon to adjudicate.. L. H. 150De Alwis, J. in Thiiagaratnam v. Edirisinghe® obliquely recognised the
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fact that "instrument on which he sues" in section 705 (1) includesa photocopy when he stated. "The learned Judge has evidently cometo the conclusion that the failure to annex the cheque or give itscontents in the summons in form 19 is not a very material ommisionand I see no reason to disagree with him. For the petitioner alwayshad the opportunity of examine the cheque or the photostat copyannexed to the plaint after it has been filed in Court and could nothave been prejudiced."
It must also be stated with due respect to His Lordship 160G. P. S. De Silva, J. that a prima facie sustainable defence as foundin section 704 (2) and section 706 ought to be a defence which entitlesthe defendant to urge Court to dismiss the plaintiffs action and nota mere technicality which is curable. Section 708 allows Court thediscretion "to order the instrument on which the action is founded tobe forthwith deposited with an officer of Court." His Lordship in EsquireGarments sought to enlarge the scope of section 704 (2)and section 705 (1).
I am of the view that the requirements of section 705 would besatisfied if the plaintiff upon presenting the plaint annex to it a mphotocopy of the dishonoured cheque and tenders it to Court undersection 708 at a later stage. The plaintiff shall nevertheless aver whythe original instrument is not annexed.
For the foregoing reasons I set aside the order of the learnedDistrict Judge dated 24. 03. 2000 and allow the appeal with costsfixed at Rs. 5,250.
UDALAGAMA, J. – I agree.
Application allowed.