028-NLR-NLR-V-15-SCHRADER-v.-JOSEPH.pdf
( 111 )
Present: LasceUes C.J. and Grenier J.
SCHBADEB t?. JOSEPH469—0. B. Chilaw, 14,782.
Court of Requests—Money case—Absence of defendant when case called—
Judgment for. plaintiff—Oivil Procedure Code, s. 823.
In a Courtof Bequests*if aplaintiff failsto appear at theproper
time, namely,at the hourfixedfortrial, orwhen the case iscalled
on, his action is liable to be dismissed, subject to his right undersub-section (5)to institutea freshaction, if he satisfies theCom-
missioner that he was prevented from appearing from accident,misfortune, or other unavoidable cause; and in the. same waya defendant is liable to have judgment entered by default againsthim if he does not appear at the appointed time, or when the caso-is called on. subject to his rights under sub-section (3) to have thejudgment set aside on satisfying the Commissioner that he wasprevent*! from attending by similar unavoidable cause.
Marikar t. Colombo Municipal Council1 and Hadjiar v. Kunjie2over-ruled.
T
HIS case was referred to a Bench of two Judges by WoodBenton J.The factsaresetout byWood Benton J. as
follows in his judgment (February 26, 1912):—
This is one of the numerous cases that come up in appeal owing tothe default of parties or their legal advisers to appear on the day andat the time fixed for the hearing of actions in which they are con-cerned. The trial in the present case was fixed for December 7,1911. The first defendant, who is the appellant*, was absent whenthe case was called. So was his proctor, Mr. T. M. Fernando. TheCommissioner of Bequests, acting under section 823 (2) of the CivilProcedure Code, on a motion by the plaintiff-respondent's counsel,directed judgment to be entered in the respondent's favour. On thesame day appellant’s proctor, filed an affidavit and for thereasons stated therein moved, under section 823 (3) of the CivilProcedure Code, that the judgment entered in the respondent’sfavour should, be re-opened, and the case fixed again for trial.Notice of this motion was issued to the respondent. The motionwas argued on December 8, and the Commissioner of Bequestsrefused it with costs. The present appeal is brought against thisrefusal to allow the case to be re-opened. The Commissioner’sdecision is challenged in the petition of appeal, on the ground that hewas wrong in holding that a good case for' the re-opening of the
1912.
1 (1901) 2 Br. 240.
* (1903) 1 A. C. R. 3.
( 112 )
1912. judgment had not been made out on the proctor’s affidavit. TheSchrader v. explanation which the proctor gave of his absence was that he didJoseph not come to Court on the day in question at the usual hour, namely,10 a.m., as his wife was ill; that he intended coming to Court onlywhen the Commissioner mounted the Bench; and that he had askedthe appellant’s witnesses to come and let him know as soon as theCommissioner had taken his seat in Court. He was duly informedof the Commissioner’s arrival, and came to Court himself, butreached it only about five miuutes after judgment had been enteredin favour of the respondent. The proctor added that the appellantwas not himself present in Court, inasmuch as his evidence was notrequired, and he had told him not to attend. The learned Commis-sioner of Requests, in my opinion, rightly held on this evidencethat no case for re-opening the judgment under section 823 (3) hadbeen made out, inasmuch as the proctor had not shown “ that hewas prevented from appearing in due time- by accident or misfortuneor other unavoidable cause.’’ There was no allegation that hiswife’s iliness was sudden or so serious as to prevent him from beingin Court in time, or in any event' from having asked the Commis-sioner, either in writing or by the verbal application of some otherproctor, to excuse his temporary absence. The appeal fails on thispoint—the only point taken in the Court of Requests on the motionfor re-opening judgment. „
Mr. Samarawickrama. however, raised a fresh point on theappellant’s behalf at the argument before me. He contended—andthis point is taken in the petition of appeal—that the case did notcome under section 823 (3) at all, but that under section 823 (2) theCommissioner had no power to enter judgment on the day of theappellant’s default, and that the appellant had the whole of the dayof default on which to excuse his absence. In support of thiscontention Mr. Samarawickrama referred to the decisions ofMoncreiff J. in Marihar v. Colombo Municipal Council1 and ofWendt J. in Hadjiar v. Kunjie.2
I refer this case to a Bench of two Judges for the purpose of navingthe decisions above referred reconsidered. Apart from authority,the meaning of section 823 of the Civil Procedure Code seems to meto be clear. The cases above mentioned were decided under section823 (1), which defines the procedure on default of the appearance ofthe plaintiff. But they are, in my opinion, equally applicable tosection 823 (2), which deals with the default of appearance on thepart of the defendant. Section 823 (2) provides that, “ If upon theday specified in the summons or upon any day fixed for the hearingof the action the defendant shall not appear or sufficiently excuse his
absence, the Commissioner . . . may enter judgment by default
against, the defendant.” The ratio decidendi of the two decisions onwhich Mr. Samarawickrama relied was that the language of the sectioni (1901) 2 Br. 240.* (1903) 1 A. C. 71. 3.
( 113 )
gives the defendant the whole of the day specified-in the summonsor fixed for the hearing of the action for the purpose of appearing orexcusing his absence! and that consequently judgment cannot beentered against him in default till the whole of that day has expired.In support of this view reference was made to section 823 (4), whichprovides that “ If upon the day specified in the summons or uponany day fixed for the hearing of the action neither party appearswhen the case is called on, the Commissioner shall enter judgmentdismissing the plaintiff’s action, but without costs.** With thegreatest respect, I do not think that the use of the words “ whenthe case is called on ” in clause (4) is sufficient to justify the highlyartificial interpretation placed by the decisions in question on thelanguage of clause (1), and by necessary inference also of clause (2).The practical results of such an interpretation of the law would be mostserious. As we all know, there is widespread carelessness in thisColony on the part both of litigants and of their legal advisers, in theCourts of first instance, with regard to the duty of being present andready for trial when their cases come on for hearing in the ordinarycourse ot things. If we are to adopt the interpretation of section 323
and (2) laid down in the cases of Marikar v. Colombo MunicipalCouncil 1 and Hedfiar v. Kunjie,2 Commissioners of Requestswould veiy often find their work at a standstill-. One party or other,in the majority of the cases fixed for the day, would be absent, ar.dno order could be made until the following day. There is nosuggestion either in clause (1) or clause (2) of section 823 of the CivilProcedure Code of any duty being imposed upon fche Commissionerto stay his hand ou default of appearance by the plaintiff in the. onecase or by the defendant in the other. The words in both clauses,“ shall not. appear or sufficientv excuse his absence,** clearly point,I think, to default in appearance, or failure to furnish a sufficientexcuse, when the case comes on for hearing; and the words “ mayenter judgment by default against the defendant ** in clause (2) areexplained by the proviso which requires the Commissioner in landcases, and empowers him in any case in which he may deem itnecessary or expedient, to hear evidence in support of the plaintiff’sclaim. The words in clause (1) ** the plaintiff’s action may bedismissed,” are equally capable of explanation by a reference to theproviso “ that if the defendant when called upon under section 809shall admit the claim of the plaintiff, the Commissioner shall enterjudgment for the plaintiff according to law.’-’ The construction ofsection 823, which I am venturing to suggest as a correct one, on theone hand prevents the work of Commissioners of Requests frombeing paralysed or impeded by default of appearance on the part ofplaintiffs or defendants, and on the other handiworks no hardshipor injustice to any litigant. If a plaintiff or defendants is unable toappear on the day fixed for the hearing of the case—and it is hisi {1901) 2 Br. 240.2 {1903) 1 A. C. R. 3.
1912.
Schrader v.Joseph
( 114 )
1012.
Sohrader. v.Joseph
duty, I think, where no special hour of attendance has been named,to be present in Court on any such day from the time when theCourt sits tin the case is disposed of—he 'may explain his absencebefore judgment is given. If owing to his default judgment isgiven against, him, he may, if a plaintiff, apply under clause (5) forpermission to institute a fresh action, and if a defendant, moveunder clause (3) to have the judgment against him opened.
I have thought it right to express my opinion on the importantquestion of practice raised by Mr. Samarawickrama’s argument inappeal. But, as I have already said, I hold that the case must bereferred to two Judges in order that it may be decided. As I havemyself formed a strong opinion on the point, I desire to take no partin its decision.
Samarawickrama, for the defendant, appellant.—Marikar v. TheColombo Municipal Council1 and Hadjiar v. Kunjie2 are authorities infavour of the appellant- The ratio decidendi of these cases appliesto the interpretation of section 823, sub-section (2). The words “ orsufficiently excuse his absence ” in sub-section (2) refers to whatmay happen in the course of the day after there has been a defaultof appearance. It cannot refer to what may happen at the time thecase is called. The excuse cannot possibly be made by any one butthe defendant or his proctor. If either of them is present, theuthere is no absence.
The defendant has the whole day for making his 'excuse. Theplain meaning of the expression “ upon the day specified ” is thatdefendant has the whole day for making his excuse. Where theLegislature intended to specify a particular point of time, it hasdone so in express terms—see sub-section (4). Where differentexpressions are used in the same enactment (a fortiori in the samesection) a difference of meaning is intended.
The Courts would not lightly interfere with decisions givingan interpretation to an Ordinance which have been followed for along time.‘
Sansonit for the plaintiff, respondent.—Sub-section (3) says thatthe defendant must ‘ ‘ satisfy the Commissioner that he was preventedfrom appearing in due time.” The words “ in due time ” presupposesthat the defendant should have appeared at an appointed hour, andthat he has not the whole day for his .appearance. Sub-section (5)provides the same remedy against orders made under sub-sections
and (4). That suggests that both sections should be interpreted inthe same way; that is to say, the words ‘‘ when the case is called onin sub-section (4) must be held to be the meaning of the words usedin sub-section (1) as well- If there is no default, unless the defendantis absent the whole day, then there is no necessity for sufficientlyexcusing later in the day a default which does not exist. The
i (1901) 2 Br. 240.* (1903) 1 A. C. R. 3.
( 115 )
defendant need not be present either in person or by his proctor to 1912*make the excuse; the excuse may be made by letter, &c-, at the SchanUrv•time the case is called. The contention of the appellant would, Josephif followed, disorganize the Courts and reduce section 823 to anabsurdity.
Samarawickrama, in reply.
Cur, adv. vult-
March 7, 1912. Lascelles C.J.
This case has been referred to us by Mr. Justice Wood Benton inview of the decision of Moncreiff J. in Marikar v. Colombo MunicipalCouncil 1 which was followed by Wendt J- in Hadjiar v. Kanji.2
The point referred to us turns on the construction of section 823
of the Civil Procedure Code, and raises the question as to theexact point of time at which a defendant, who fails to appear ina Court of Bequests, is liable to have judgment entered againsthim by default. The material words of section 823 (2) are thefollowing: —
“ If upon the day specified in the summons or upon any day fixedfor the hearing of the action the defendant shall not appearor sufficiently excuse his absence, the Commissioner, upondue proof of service of summons, notice, or order requiringsuch appearance, may enter judgment by default againstthe defendant/’
Then follows a proviso that in land cases, and in other cases inwhich the Commissioner deems it necessary or expedient to hearevidence in support of a plaintiff’s claim, he shall order him to adducesuch evidence on a day to be fixed for that purpose.
The construction of sub-section (1), which relates to a default ofappearance on the part of the plaintiff, and is expressed in languagewhich is almost identical with sub-section (2), was considered in thetwo above-mentioned cases. There it was held that the plaintiffhad the whole of the day fixed for his appearance within which toappear, so that his action could not be dismissed until the expirationof that day. There can be no question but that the decisions undersub-section (1) are equally applicable to sub-section (2)(, so that thepractical question for determination is whether the constructionthere laid down is correct and ought to be followed. Reading thesection, as a whole, and without reference to authorities, I shouldhave had no doubt but that the words “ if upon the day specified
in the summons. … the defendant shall not appear or sufficientlyexcuse his absence.refer to default at the time, if any, at
which the defendant was required to attend, and if no time wasfixed, to the time when the case is called on for hearing. The sectionrefers to default on the part of the defendant in doing somethingwhich he ought to do, and there can be no doubt but that it is the
i (1901) 2 Br. 240.* (im) 1 A. C. R. 3.
( 116 )
1912.
JitSOELIjES
O.J.
Schrader v.Joeeph
duty of the defendant, in the absence of any rule of procedure to thecontrary, to appear either at the time the case is fixed for hearingor when the case is called on. The practical inconvenience whichwould result from the construction of the section laid down in the twoabove-mentioned cases has been clearly set out in the judgment ofmy brother Wood Renton. It is so great as to render it almostimpossible for Commissioners of Requests to dispose of their causelists in a prompt and business-like manner. The ratio decidendi inthese two cases appears to have been the difference between thelanguage employed in sub-sections (1) and (2) relating respectively todefault on the part of the plaintiff and defendant, and sub-section (4)relating to the case where neither party appears. The languageemployed in the latter section is, “ If upon the day specified in thesummons or upon any day fixed for' hearing of the action neitherparty appears when the case is called on, the Commissioner shall enterjudgment dismissing the plaintiff’s action, but without costs-”From the presence of the words ‘‘ when the case is called on ” insub-section (4), and from their absence in sub-sections (1) and (2),it is argued that the default referred to in the last two sections doesnot mean failure to appear when the ease is called on- The differencebetween the wording of sub-section (4) and sub-sections (2) and (3)is noticeable and difficult to account for, but I do not think that itcould be fairly inferred from this difference of phraseology that- itwas the intention of the Legislature to introduce a rule which; as mybrother Wood Renton has pointed out, is inconvenient, impracticable,and contrary to the recognized lines of legal procedure. Everyother consideration appears to me to tell in favour of the constructionof the section' being so construed that if a plaintiff fails to appear atthe proper time, namely, at the hour fixed for trial, or when the caseis called on, his action is liable to be dismissed, subject to his rightunder sub-section (5) to institute a fresh action, if he satisfies theCommissioner that he was prevented from appearing from accident,misfortune, or other unavoidable cause; and in the same way thata defendant is liable to have judgment entered by • default againsthim if he does not appear at the appointed time, or when the case iscalled on, subject to his rights under sub-section (3) to have thejudgment set aside on satisfying the Commissioner that he wasprevented from attending by similar unavoidable cause. It is asound principle of construction that, in all cases opeu to doubt, theintention which is most agreeable to. convenience and establishedlegal principles should be presumed to be the true’ one. I do notthink that the words “ sufficiently excuse his absence ” in sub-section (1) and (2) stand in the way of this construction of thesection, for it is quite possible for a plaintiff or defendant, who isprevented from attending by some unavoidable cause, to bringthe fact to the notice of the Commissioner either before, at, orimmediately after the time when the case is called on.
( 117 )
With the greatest respect for the learned Judges who decided
Marikar v. Colombo Municipal Council 1 and Hadjiar v- Kvnjie,aI am unable, for the above reasons, to adopt their reading of thesection under consideration, which I think has been correctlyexpounded by my brother Wood'Renton, with whom I agree thatthe appeal in this case ought to be dismissed with costs.
Grenier J.—
entirely agree with my Lord and my brother Wood Renton inthe construction they have placed upon section 823 (2) of the CivilProcedure Code. At the argument. I think I expressed myselfstrongly in favour of such a construction, and I have had no reasonsince to change my opinion- If the construction relied upon for theappellant were to be adopted, it would be very difficult, if notthoroughly impracticable, to carry on the work in Courts of Requests.I would dismiss the appeal with costs.
Appeal dismissed.
IMS.
La8CKLLE»
C.J.
Schrader v,Joseph