According to proceedings of06.01.2003 the order reads as follows:
Ravi Karunanayake vs. Wurrai Weerawansa
(Andrew Somawansa, J.(P/CA))
In the case of Kama/a vs. Andris(1) it was held:
"Section 839 of the Civil Procedure Code is not intended toauthorize a court to override the express provisions of the CivilProcedure Code".
Again in the case of Jeyaraj Femandopulle vs. De SilvaP>
‘The inherent powers of a court are adjuncts to existingjurisdiction to remedy injustice. They cannot be/nade the sourceof new jurisdictions to revise a judgment rendered by court*.
It is apparent that the legislature provided the District Court with thepower to vacate its own orders only in a very limited and expressly identifiedsituations. It is clear that the legislature did not intend the District Courtventuring to vacate its own orders in other situations for which no expressprovision had been made. This is also clear on the expressio unius rulethat the express mention of one excludes by necessary implication thatwhich no mention has been made of. Thus it could be seen that section839 cannot be used to provide an additional situation for vacating its ownorders which was never contemplated by the legislature. Section 839 mustbe complementary to the Code and not detract from it. However withoutprejudice to the above principle section 839 can be invoked in instanceswhere Court is desirous of redressing a wrong done to a party by its ownact. But the respondent does not come within that ambit for in the instantaction the respondent failed to appear on the due date due to his owndoing. It was the respondent and his lawyers who had taken down thewrong date either due to negligence or an alleged lapse on his part or hislawyers for which no other could be blamed and therefore the petitionermust suffer the consequences of his own negligence or that of his lawyers.
Counsel for the respondent submits that grounds adduced by him aresufficient for the Court to set aside its previous order. In this respect hesubmits that the respondent was not present in Court and not representedon the date of the inquiry was due to the fact that the counsel appearingfor the respondent had taken down the wrong date. In this respect he hascited a dictum of U. de Z. Gunawardena in the case of Fernando vs. CeylonBreweries Ltd. in support of his contention that the default of an Attorney-
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at-Law may be excused. However it appears that the respondent hascompletely suppressed from this Court the feet that this judgment of theCourt of Appeal was set aside in appeal by the Supreme Court by JusticesFernando, Wijetunga and Weerasekera in Ceylon Breweries Ltd. Vs. Fdo.(4>. The general thinking of the Court is that although a client would beprejudiced by the acts or omission of his Attorney nevertheless this is anecessary consequence of appointing an Attomey-at-Law as one’s agentto appear in Court as it secures the objects of ascertainability, proprietyand discipline in an even playing field.
In the case of Rankira vs. Silindi/5* it was held :
“That a mistake or over sight on the part of the Proctor of "a
party to a suit cannot be construed to be a cause not within the
applicant’s control”.
Also in the case of Julius vs. Hodgson™
“The practice is not to give leave to appeal where the onlyground relied on is that the appellant or his proctor made somemiscalculation of time or some other mistake or that the failurewas due to the proctor’s neglect".
In Kamnawathie Ekanayake vs. Gunasekera(7)
The wording of section 86(2) of the Civil Procedure Codeand section 418(2) of the Administration of Justice Law remainingthe same, the legislature could not have intended a differentinterpretation to that which had been judicially expounded inrelation to section 86(2) of the Civil Procedure Code.
In Fakir Mohideen vs. Mohammadu Casirrf®
It is the duty of the proctor to inform his client the properdate of trial and to have asked for instructions.
CARavi Karunanayake vs. Wlmal Weerawansa23
(Andrew Somawansa, J.(P/CA))
Be that as it may, if the petitioner or his lawyers wanted to demonstrateto Court that the default in appearance on the date of inquiry into theacceptance of the amended answer was not due to negligence but wasdue to a bona fide genuine mistake in noting the date then the burden ison the respondent to satisfy Court either by oral evidence or at the veryleast evidence in the form of a pfoper and a valid affidavit setting out thedetailed reasons as to such a mistake.
In this respect, along with the affidavit of the respondent three otheraffidavits were filed all of which were bad in law and objected to on thebasis that they were tainted and flawed in law as the jurat attested by theJustice of the Peace does not state that he either administered an oath orthat the affidavit was affirmed to by the affirmant. The aforesaid omissionhas been brought to the attention of Court and an objection has beentaken in paragraph 2 of the petitioner’s statement of objections in respectof the application to amend the plaint.
The law requires-that the jurat must mention the fact of an oath beingadministered or an affirmation being made. This is clear from form 75 ofthe Civil Procedure Code which specifies the “Formal parts of an affidavitin Sri Lanka”. It says it must be sworn or affirmed in the jurat. Section 437provides that an affidavit must be “sworn or affirmed to by the personprofessing to make the statement embodied in the affidavit before any
court or Justice of the Peace or Commissioner for Oathssuch person
qualified to administer the oath or affirmation”. Section 438 provides that:
“Every affidavit made in accordance with the precedingprovisions shall be signed by the declarant in the presence of -the court, Justice of the Peace or Commissioner for Oaths orpersons qualified before whom it is sworn or affirmed”.
Thus,‘it is clearthat the law requires the affidavit to be sworn or affirmedin the jurat and the affidavit could not have been “read over" as stated bythe Justice of the Peace. Furthermore and very significantly, no Oath hasbeen administered. In order for the affidavit to be validly constituted in law,the affirmant therein should have been affirmed by the Justice of the Peace,which in the present instance has not been done.
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Counsel for the respondent submits that the respondent in his affidavithas specifically stated at the beginning that he solemnly, sincerely andtruly declares and affirms to the contents of the same. In the circumstanceshe submits that the absence of the word ‘affirmed to' in the jurat would notand ought not to miliate against the affirmant’s manifest intention of affirmingto the contents of the affidavit However in view of the aforesaid reasons Iam unable to agree with counsel for the respondent
In the case of Inaya vs. Lanka Orix Leasing Company^ the head notereads as follows:
After decree was served, the defendants-appelants filed petition andaffidavit to have the ex parte judgment and decree set aside. It wascontended that there was no proper application under section 86 (2)-(3) asthere was no proper affidavit; the defendants-appellants have made adeclaration under the Oaths and Affirmation Ordinance. District Court upheldthe objection.
It was held:
“In the affidavit before Court the defendants being Muslimshad failed to solemnly, sincerely and truly declare and affirmthe specific averments set out in the affidavit. The recital merelystates that they make a declaration and in the jurat there is noreference as to whether the purported affidavit was sworn to oraffirmed to”.
It is to be seen that in respect of the aforesaid affidavit tendered by therespondent the learned District Judge has come to an erroneous findingthat the petitioner has failed to satisfactorily refute or challenge the contentsof the affidavit filed by the respondent. However the learned District Judgehas failed to appreciate that far from the contents of the affidavit the petitionerhas raised a far more fundamental issue that there was no material orevidence before Court to accept the position that the lawyer had in factmade a genuine mistake as opposed to being simply negligent.Furthermore, in the absence of a valid affidavit supporting the averments inthe petition before Court there is no evidence of the circumstances inwhich the respondent failed to appear on 06.01.2003.
Ravi Karunanayake vs. Wimal Weerawansa
(Andrew Somawansa, J.(P/CA))
It is interesting to note that though the page of the lawyer’s diary relevantto the date on which he says he had erroneously noted down the inquirydate to be 06.02.2003 was produced most significantly the page of thediary relevant to 06.01.2003 which was the day on which the inquiry wasactually fixed for was not produced. If that page in the lawyer's diary wasproduced and if it was blank then it would have established his bona Odes.In the circumstances it is to be noted that the respondent has failed todischarge his onus of demonstrating to Court that non appearance on theinquiry date was a mistake and not negligence. Erroneously the learnedDistrict Judge without considering the aforesaid matters proceeded to believethe lawyer’s version of not being present on the inquiry date due toerroneously noting a wrong date.
Counsel for the respondent submits that the legislature cannot legislatefor all the circumstances which may arise in the District Court andenumerate the same within the provisions of the Civil Procedure Code. Insections 86 and 87 of the Civil Procedure Code the legislature hasspecifically dealt with the cause of action which ought to be taken if anorder is entered in default. Therefore it is only reasonable to assume thata same cause of action ought to be taken in a case of a default in otherinquiries, which are conducted before the District Court. An inquiry intothe question as to whether an order made in default should be set aside ornot may require evidence being led on the matter. In the circumstancesthe District Court is better equipped to conduct an inquiry of such nature.It would not only make the function of the Appellate Court more easy, itwould secure the due administration of justice expeditiously. Counselsubmits that it is due to these reasons that Appellate Courts have held ina number of instances that the Court of first instance have power to vacateits own orders entered in default. In support of his argument he has citedthe following cases.
In the case of Loku Menikavs Selenduham/'0' Dias J. having consideredthe cases of Haibu Lebbe vs. Punchi Ettanal"' Garlial vs. SomasunderamChetty*12) Weerarathe vs. Secretary PC Badulla(13) Caldera vs.SantiagopillafU) at 158. Sayadoo Mohamado vs. Maula Abubakkai<'S) at•63 followed these decisions and held:
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“Where an order is made ex parte the proper procedure tobe adopted by the person against whom that order has beenmade is in the first instance, to move the Court which madethe order to set it aside, such an application would not be interms of the Civil Procedure Code but is one which is the ruleof practice which has become deeply ingrained in the legalsystem of Ceylon”.
The respondent was not present and not represented on the date of theinquiry dueto the fact the counsel appearing for the respondent has takendown the wrong date. However at times making mistakes regarding dates,dates fixed for trials being changed, trials being postponed and defaults ofappearance excused and order dismissing actions, vacated because ofmistakes having been made by Attorney-at-Law regarding dates given byCourt. In the said circumstances he submits that the objection based onjurisdiction is totally misconceived and equally untenable and that thelearned District Judge acted within jurisdiction when he vacated its ownorder made on 6th January, 2003.
I am not at all impressed with the aforesaid submission for on anexamination of the aforesaid cases one could see most significantly thatthey deal with situations where the District Court has been specificallyconferred with the power in terms of the Civil Procedure Code to purge thedefault and vacate its own order. As such the aforesaid excerpt has beenquoted out of context and has no application to the issue at hand. In anyevent, the argument raised by counsel for the respondent that althoughthe Civil Procedure Code does not deal with an instance when default ismade on a date of inquiry nevertheless the District Court can vacate itsown order of default if reasonable grounds for default is shown by a party ismere surmise and conjecture. It would be seen that the aforesaidsubmission would completely cut across the express provisions containedin the Civil Procedure Code.
For the foregoing reasons, I would allow the appeal and set aside theorder of the learned District Judge dated 09.02.2004 with costs fixed atRs. 15,000.
WIMALACHANDRA, J. – / agree.
Order of District Court set aside.
Appeal allowed.