Rev. Sumanatissa vs. Harry
(Sarath De Abrew, J.)
setting aside the dismissal upon such terms as to costs orotherwise as it thinks fit, and shall appoint a day forproceeding with the action as from the stage at which the dis-missal for default was made. ”
On an analysis of section 87(3) of the Code, the limitingfactors would be that the application to restore shouldbe made within a reasonable time and that the plaintiffshould satisfy Court that there were reasonable grounds fornon-appearance. In the instant case the application topurge the default has been made within a reasonable time of19 days. The legislature in its wisdom had not set a rigiddeadline as to what period of time should construe within areasonable time. This is a clear indication that in interpretingsection 87(3) of the Code, court must use the yardstickof a subjective test rather than a less flexible objectivetest in determining what is reasonable. A broad and flexibleinterpretation should therefore be given to the wordreasonable. Employing this liberal approach in determiningwhether the plaintiff has satisfied Court in adducingreasonable grounds for non-appearance, in my view,where necessary, Court is not precluded from havingrecourse to other salient features in the case in hand todetermine whether the plaintiff exhibited blatant andwillful default, which features would perhaps tilt thebalance in favour of the plaintiff. Special attention maytherefore be given to the past history of the case with thepast conduct of the defaulter and his opponent being subjectto scrutiny, and whether the defaulter derived any undueadvantage as a result of the default, and last but not theleast, the effect of such default on the daily functioning of theCourt concerned on that particular day.
In this respect, in Chandrawathie vs DharmaratnS11it has been held that our Courts have extended a liberalattitude in analyzing the evidence and pleadings in cases ofdefault of the plaintiff under section 87(3) of the Code. This isall the more significant as the provisions contained in section
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87 (2) and 88( 1) of the Code debar a fresh action and subsequentappeal respectively where judgments are entered upondefault which would deny the defaulting litigant any furtheropportunity to vindicate his rights under our civil law unlessand until he succeeds in purging his default. This is all themore reason why our Courts should be more circumspectin refusing relief to defaulting litigants unless the verycircumstances relating to the default demand otherwise.
With the above guidelines in mind I now approach theproblem. For the following reasons enumerated below I aminclined to take the view that the learned trial Judge has erredin law in refusing to set aside the dismissal on default.
The evidence discloses that the plaintiff was an elderlypriest around 80 years of age with a severe diabetic condition.According to his uncontroverted evidence, on 06.07.94 hehad felt faintish and decided to rush to Colombo to seekspecialist treatment from his regular consultant physician.He had taken steps to send another priest to inform hislawyer to obtain a date. This apparently had not beenconveyed to Court due to some undisclosed reason. Theailing plaintiff priest was well within his rights to decide onthe best course of action with regard to his ailment. This wasthe first time he had defaulted on the grounds of ill health.The learned trial Judge need not have embarked on a voyageof discovery to determine whether the plaintiff was justified ingoing to Colombo to seek treatment. The issue in contentionshould have been whether the plaintiff was medicallyunfit to appear before Court, irrespective of whether he wasjustified in seeking specialist treatment in Colombo or not.Even though marked subject to proof, the medical prescriptionPI and the medical certificate P2, the unchallengedaverments in the plaintiffs affidavit dated 26.07.94 andthe evidence on oath of the plaintiff, in my view, applying asubjective test, and in view of the lack of any evidence toestablish willful default, would have constituted reasonablegrounds for the non appearance of the plaintiff. Taking into
Rev. Sumanatissa vs. Harry
(Sarath De Abrew, J.)
consideration the old age, infirmity and the stature of theplaintiff as a Chief Incumbent of a temple, the unlikelihoodof the plaintiff inventing the story as to the trip to Colombo,any doubt arising out of the above should have been resolvedin favour of the plaintiff.
Further, paragraph 06 of the petition and affidavit of theplaintiff dated 26.07.94 allege that the defendant too wasabsent and moved for a date. This has not been challengedby the defendant when the plaintiff was. cross-examined.The journal entry of 07.07.94 is silent as to the presence orabsence of the defendant. Section 87(1) of the Code providesfor a situation where the plaintiff or where both the plaintiffand the defendant make default in appearing. Under thecircumstances, where the trial Judge proceeds to dismiss theaction of the plaintiff due to his non appearance, there is aimplied duty cast on him to record in the journal entry or theproceedings as to the presence or absence of the defendant.In the impugned order of 28.09.95 the learned trial Judgehas failed to give due consideration to this important aspect,which would have had a vital bearing on the outcome of theinquiry under section 87(3) of the Code.
An illuminating insight as to the past conduct of theparties is afforded on perusal of the journal entries where thefollowing matters are also disclosed:
The defendant had moved for postponement on fouroccasions for various reasons and was granted dates -namely 15.11.90, 30.05.91, 10.10.91 and 06.05.92.
The only two occasions the plaintiff defaulted, the casehad been dismissed on both occasions – namely 22.07.92but restored on 07.07.93 and finally on 07.07.94.
The circumstances enumerated above tilt the decision infavour of the plaintiff.
Therefore in applying the subjective test as to whetherthe plaintiff afforded reasonable grounds for his non-
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[2009] 1 SRJL.R.
appearance, in the absence of any evidence to establishwillful default, and taking into consideration the past historyas to the conduct of the parties concerned I hold that thelearned trial Judge had failed to exercise a reasonablejudicial evaluation of the material at his disposal in refusingto restore the case. It may well be that the plaintiff may havebeen negligent in not ensuring that his lawyer appeared inCourt and informed Court of his illness. Negligence may incertain circumstances constitute reasonable grounds withinthe meaning of section 87(2) of the Code.
The learned counsel for the Respondent contended that noproper notice had been given of the application of the plaintiffto restore the case. However the journal entry of 14.10.94discloses that notice had been given before the inquiry whichcommenced on 19.10.94. No prejudice has been caused to theDefendant-Respondent who had been represented by counselat the inquiry and the plaintiff himself had been subject tolengthy cross-examination.
In view of the foregoing reasons, I set aside the impugned orderof the learned District Judge of Embilipitiya dated 28.09.95and further make order that this case be sent back to theDistrict Court of Embilipitiya to recommence trial from thestage it had been dismissed. The Registrar is directed to senda copy of this order along with the original record forthwith tothe District Court of Embilipitiya. In all the circumstances ofthis case I make no order as to costs.
Appeal is therefore allowed.
MARASINGHE, J. – I agree.
Appeal allowed
Case sent back to recommence trial.