133-NLR-NLR-V-44-RATNASEKERA-Appellant-and-MILLER-CO.-LTD.-Respondent.pdf
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Ratnasekera and Miller & Co.
1942Present: Soertsz and de Kretser JJ.
RATNASEKERA, Appellant, and MILLER & Co., Ltd., Respondents,188—D. C. Trincomalee, 2,416.
Summons—Service on defendant-^Language of defendant—Civil ProcedureCode, s. 55.
The words “language of the defendant” in section 55. of the CivilProcedure Code mean the language the defendant understands. Theydo not necessarily mean the language of the race to which the defendantbelongs.
^^PPEAL from a judgment of the District Judge of Trincomalee.
Dodwell Gunawardana, for the defendant, appellant.
E. B. Wikremanayake (with him F. C. W. VanGeyzel), for the plaintiff,respondents.
• Cur. adv. vult.
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SOERTSZ J.—Ratnasekera and Miller & Co.
December 14, 1942. Soertsz J.—
This appeal is devoid of merit. It is I think an attempt on the partof the defendant-appellant to delay his creditors in this case as long aspossible. He was sued by plaintiffs for the value of goods sold anddelivered to him.
The action was instituted on February 7, 1941. There was greatdifficulty in serving summons on the defendant. It was over a year laterthat summons was eventually served. On the day fixed for him to fileanswer, he was absent and the case was fixed for ex parte trial forMarch 9, 1942. There was another adjournment this time at theinstance of the plaintiff and the ex parte trial took place on March 12,1942 and decree nisi was entered returnable for April 13, 1942. Therewere further delays and the decree nisi was not served on the defendanttill June 15, 1942. On that day a Proctor filed proxy from the defendantand was given time to show cause. The inquiry took place on July 2, 1942.
The defendant asked that the decree nisi be set aside on the groundthat the service of summons and of the copy plaint on him was not inconformity with section 55 of the Civil Procedure Code inasmuch as thesummons and the copy plaint served on him were in the English language.He is a Sinhalese and he contends that he should have been served witha summons and a copy plaint in the Sinhalese language.
Mr. Gunawardana appearing for him submits that the requirement ofsection 55 in that respect is imperative and that the failure to complywith it has resulted in rendering all subsequent proceedings void. Therevelant words of section 55 are—
“ The summons together with such copy or concise statement, eachtranslated into the language of the defendant attached thereto shall bedelivered …. to the Fiscal -of the District in which thedefendant resides who shall cause the same to be duly served on thedefendant.”
Counsel’s contention went so far as to maintain that in the case of aSinhalese defendant even if he speaks and reads and writes English andonly speaks but does not read or write Sinhalese, the summons and thecopy plaint served on him must be in the Sinhalese language. Similarlyin Tamil, in the case of a Tamil or a Muslim.
I do not think the Legislature could have contemplated such a fatuousproceeding and the words of the section do not drive us to that conclusion.“ The language of the defendant ” does not necessarily mean the languageof the Ethnic group to which he belongs, but on .a reasonable interpre-tation it means the “ language the defendant understand ”,
There are, as are known, cases of men who do not understand or whocannot read or write the language of their race, but are proficient in someother language and in the case of such persons their language for thepurpose of this section must be said to be that other language.
In this case the evidence makes it clear that the defendant who is aSinhalese understands English and that he carries on his correspondencein English through a clerk. Most probably he speaks and reads and writesSinhalese too. In other words he is bilingual and summons and copyplaint in either language would in my opinion be a sufficient compliance
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JAYETILKKE J.—Kandasamy and de Kretser.
with the requirement of section 55 of the Civil Procedure Code. Butin the case of a Sinhalese, who understands only Sinhalese, the summonsand the copy plaint must be in that language, whether he can read it orwrite it or not, for it is imperative that summons and a copy plaint mustbe served.
The case to which Counsel made reference in the course of argument,are, by no means inconsistent with this interpretation.
I would dismiss the appeal with costs.de Kretser J.—I agree.
Appeal dismissed.