Rev. Minuwangoda Dhammika Them v Rev. Galle Saradha Thero
REV. MINUWANGODA DHAMMIKA THEROvREV. GALLE SARADHA THEROCOURT OF APPEALDISSANAYAKE, J.
A. 1080/93 (F)
C. GALLE 10562/LSEPTEMBER 30, 2002MARCH 25, 2003
Civil Procedure Code – Sections 88(2) and 187 – Should the Order be accom-panied by a Judgement – Order and Judgment not pronounced on the sameday – Validity? Can an exparte judgment be entered without a hearing andadjudication? – Constitution Article 138(1) – Evaluation of evidence – Failureof justice – Substantially prejudiced?
The inquiry in respect of the application to purge default by the defendant-appellant was concluded on 15.2.1993 and at the conclusion of the inquiry thetrial Judge had made order dismissing the application but postponed the giv-ing of reasons decision to 15.3.1993.
It was contended that the Order and the Judgement should be pronounced onthe same day, and the trial Judge has violated a mandatory requirement.
There is no positive rule of law that requires or makes it mandatory to pro-nounce reasons forthwith after the order is pronounced.
Even in an ex parte trial the Judge must act according to law and ensurethat the relief claimed is due in fact and in law.
Though there is no evaluation of the evidence led, on an examination ofthe evidence led at the ex parte trial, it appears that the trial Judge wascorrect.
APPLICATION for Leave to Appeal from the order of the District Court ofGalle.
Cases referred to:
Mrs. Sirimavo Bandaranayake v Times of Ceylon 1995 1 Sri LR 22
Victor and Another v Cyril de Silva 1998 1 Sri LR 41
Dr.Jayatissa de Costa with D.D.P. Dassanayake for the defendant-appellant.Hemasiri Withanachchi with Ms. Safaya Hussain for the plaintiff-respondent.
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October 17, 2003SOMAWANSA, J.
This is an appeal preferred from the order of the learnedAdditional District Judge of Galle dated 15.02.1993 dismissing theapplication of the defendant-appellant to set aside the ex partejudgment and decree entered in the said case.
When the appeal was taken up for hearing on 30.09.2002 par-ties agreed to resolve the matter by way of written submissions andaccordingly written submissions have been tendered.
In the written submissions, counsel for the defendant-appellantstrenuously contends that this appeal deals with section 88(2) ofthe Civil Procedure Code which clearly presupposes a judgmentadjudicating upon the facts and specifying the grounds upon whichit is made to accompany the order made in respect of a disputeand that in the instant case, the learned Additional District Judgehas clearly violated this mandatory requirement, in that the orderhas been made on 15.02.1993 whereas reasons for his order hadbeen pronounced one month later viz.15.03.1993. He submittedthat on this ground alone the said order of the learned AdditionalDistrict Judge is liable to be set aside.
On an examination of the record, it is apparent that the inquiryin respect of the application to purge the default by the defendant-appellant had commenced on 15.02.1993 and at the conclusion ofthe inquiry on the same day the learned Additional District Judgehad delivered her order dismissing the application of the defendant-appellant. However the reasons for the said order was reserved for
and on the said date reasons for the order were pro-nounced.
The relevant section applicable to the issue at hand is section88(2) which reads as follows:
88(2) “The order setting aside or refusing to set aside the judg-ment entered upon default shall be accompanied by a judg-ment adjudicating upon the facts and specifying the groundsupon which it is made, and shall be liable to an appeal to theCourt of Appeal."
Rev. Minuwangoda Dhammika Thero v Rev. Galle Saradha There
Applying the provisions contained in the said section 88(2) of theCivil Procedure Code to the issue at hand it would appear that thelearned Additional District Judge has complied with the require-ments in the said section. In that she has made an order refusingto set aside the judgment entered upon default and the said orderis accompanied by a judgment adjudicating upon the facts andspecifying the grounds upon which it is made. The only objection ifat all that could be taken against non compliance is that the orderand the judgement not being pronounced on the same day, in thatjudgment or reasons were delivered one month after the order wasmade. But the question that needs to be answered is whether thereis a positive rule of law that requires or makes it obligatory to pro-nounce reasons forthwith after the order is pronounced. I am yet tocome across any such requirement. The counsel for the defendant-appellant also has failed to cite any authority dealing with such arequirement. In fact, he has only cited section 88(2).
On a plain reading of this section it appears the requirementspelt out by that section is that the order setting aside or refusing toset aside the judgment entered upon default, should be accompa-nied by reasons for such order made under the said section. In theinstant case, if the order and the reasons for the order were pro-nounced on the same day then one cannot attack the order on thebasis of a defect or irregularity. However has this defect or irregu-larity complained of by the defendant-appellant caused any preju-dice to the substantial rights of the defendant-appellant or occa-sioned a failure of justice? There was no such complaint forthcom-ing from the defendant-appellant and there is no material to cometo such a finding.
On the other hand, it is to be seen that the order dated
was made by the learned Additional District Judge soonafter the inquiry was concluded and no doubt the impression creat-ed by the witnesses were fresh in her mind.
On an examination of the reasons given by her on 15.03.1993and the evidence led at the inquiry, it appears that the learnedAdditional District Judge upon an analysis of the evidence led at theinquiry and upon observation of credibility and the demeanour ofthe defendant-appellant and his witness the physician has come to
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a correct finding that the defendant-appellant failed to satisfy Courtthat he had reasonable grounds for his default. It is also to be seenthat dismissal of the application of the defendant-appellant on
and the reasons setting out the grounds on which thedismissal was made were consistent and had not caused any prej-udice or miscarriage of justice.
It is also to be noted that the defendant-appellant on beingserved with the ex parte decree on him made an application toCourt to set aside the same on the ground that his absence at thetrial was owing to his ill health. However at the inquiry under cross soexamination he also admitted that the date of trial was not knownto him and nobody informed him of the date of trial. AyurvedicPhysician who treated the defendant-appellant also gave evidenceand produced a medical certificate issued by him to the defendant-appellant. His evidence revealed that though on 22.07.1992 hestarted treating the defendant-appellant the medical certificatemarked A was issued by him on 24.10.1992 which stated that thedefendant-appellant was under his treatment for 2 weeks. His evi-dence also revealed that though he was in possession of an officialmedical certificate book he issued the said medical certificate 90marked A on his letterhead as he could not trace the official book.
It appears that on an examination of the evidence led at the inquirythe learned Additional District Judge has come to a correct findingthat the defendant-appellant failed to satisfy Court ihat he had rea-sonable grounds for default.
Counsel for the defendant-appellant has also cited the decisionin Mrs. Sirimavo Bandaranayake v Times of Ceylon 1 wherein theSupreme Court held that even in an ex parte trial the Judge mustact according to law and ensure that the relief claimed is due in factand in law and must dismiss the plaintiff’s cause if he is not entitled 100to it. An ex parte judgement cannot be entered without a hearingand adjudication. Applying the principle laid down in that case to theinstant action he complains that there was no adjudication and thelearned trial Judge had only stated that he accepts the evidencegiven by the substituted-plaintiff-respondent and had given judg-ment in favour of the plaintiff-respondent.
It is conceded that the judgment does not contain an evaluationof the evidence led. However on an examination of the evidence
Rev. Minuwangoda Dhammika Thero v Rev. Galle Saradha Them
led at the ex parte trial it appears that the learned Additional DistrictJudge was correct when she came to a finding that the substituted-plaintiff-respondent was entitled to the relief prayed for in the prayerto the plaint.
In the case of Victor and Another v Cyril de Silva 2 a similar sit-uation was considered whether the learned District Judge failed toevaluate the evidence jn terms of Section 187 of the CivilProcedure Code. Reference was made to:
“Article 138(1) of the Constitution which deals with the juris-diction of Court of Appeal is on the following terms:
138(1) – The Court of Appeal shall have and exercise subjectto the provisions of the Constitution or of any law, an appellatejurisdiction for the correction of all errors in fact or in law whichshall be committed by any court of first instance….
Provided that no judgment, decree or order of any court shallbe reversed or varied on account of any error, defect or irreg-ularity which has not prejudiced the substantial rights of theparties or occasioned a failure of justice.
Per Weerasuriya, J. at page 46
“It is evident on a close examination of the totality of the evi-dence that the District Judge is correct in pronouncing ajudgment in favour of the plaintiff-respondent as prayed for inthe plaint. However, the learned District Judge was in obvi-ous error when she failed to evaluate the evidence in termsof section 187 of the Civil Procedure Code. The failure of thelearned District Judge to comply with the imperative provi-sions of section 187 of the Civil Procedure Code has not sub-stantially prejudiced the rights of the defendants-appellants,or has not occasioned a failure of justice to the defendants-appellants”.
In the circumstances I see no reason to interfere with the exparte judgment dated 24.07.92.
For the foregoing reasons, I see no basis to interfere with theorder of the learned Additional District Judge dismissing the appli-cation of the defendant-appellant to set aside the ex parte judgment
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and the decree. The appeal of the defendant-appellant is dismissedwith costs fixed at Rs.5000/-.
The Registrar is directed to send the case record to the appro-priate District Court forthwith.
DISSANAYAKE, J.Appeal dismissed.