010-SLLR-SLLR-1997-2-SEYNATH-UMMA-v.-RAJABDEEN.pdf
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[1997] 2 Sri L.R.
SEYNATH UMMAv.
RAJABDEEN
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 129/94.
A. NO. 333/86 (F).
C. NEGOMBO NO. 3074/L.
JULY 31, 1995.
Civil Procedure Code – Vacation of ex parte Decree – Section 86(2) of the Code -Misdirections of fact and law by the trial judge.
Held:
In rejecting the medical certificate produced by the defendant in support of herapplication to vacate the ex parte judgment and decree, the trial judgemisdirected himself on the law when he faulted the defendant for failing to comeinto court and produce the medical certificate prior to the date fixed for theex parte trial. In terms of section 82(2) of the Civil Procedure Code, the defendantcould not have come into court prior to the entering of the judgment against herfor default.
APPEAL from judgment of the Court of Appeal.
M. I. Q. M. Gazzali with Ms. S. M. Senaratne for defendant-appellant.
M. Y. M. Faizior plaintiff-respondent.
Cur. adv. vult.
July 31,1995.
P. S. DE SILVA, C.J.
The plaintiff instituted these proceedings in the District Court forthe ejectment of the defendant from the land described in theschedule to the plaint. The plaintiff pleaded that the defendant’soccupation of the land was with his leave and licence. In her answer,the defendant denied the plaintiff’s claim.
The first date on which the case was taken up for hearing was
On that date issues were framed and the case was
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Seynath Umma v. Rajabdeen (G. P. S. de Silva, C.J.)
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postponed for further trial on 1.4.85. The defendant was absent andthe registered Attorney-at-Law for the defendant informed the courtthat he had no instructions. Thereupon the court fixed the case forex parte trial on 21.6.85. On 21.6.85 judgment was entered againstthe defendant for default and a copy of the decree was served on thedefendant on 5.9.85. On 19.9.85 the defendant made an applicationto set aside the judgment and decree entered against her for default,pleading that she was unwell and hence was unable to attend courton 1.4.85. The District Court, however, refused to set aside thejudgment entered upon default. Against this order, the defendantappealed unsuccessfully to the Court of Appeal. The defendant hasnow preferred an appeal to this Court.
The defendant was a woman of 75 years of age. Prior to 2.1.85 thecase had been fixed for trial on no less than four dates and on allthose dates the defendant had been present in court. Moreover, on3.2.84 the defendant had filed her list of witnesses and documents.On 21.5.84 an additional list of witnesses and documents was filedby the defendant.
It was the position of the defendant, at the inquiry before the DistrictCourt, that she could not attend court on 1.4.85 because she wasunwell. In support of her case, she produced a medical certificate andalso called as a witness the medical practitioner who had issued themedical certificate. The medical certificate is dated 27.3.85 and statesthat the defendant “is under treatment for hypertension.” The medicalcertificate further states “I recommend her ten days bed rest from 27thMarch 1985. She is not fit to attend courts on 1st April 1985.” It is rightto add that at the hearing before us Mr. Faiz for the plaintiff-respondent very properly did not challenge the medical certificate,though counsel strenuously contended that the District Court and theCourt of Appeal had correctly rejected the evidence of the defendantthat she was unfit to attend court on 1.4.85.
On the other hand, Mr. Gazzali for the defendant-appellant,contended that the District Court had misdirected itself both on thefacts and on the law. Turning first to the facts, the District Judge in hisorder states that he cannot accept the position that the defendantreceived treatment on 1.4.85, the reason being that the doctor did notmaintain any document in proof of that assertion. This statement is
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clearly contrary to the evidence on record. The doctor’s evidencewas that he examined the defendant on 27.3.85 and not on 1.4.85;nor was it the claim of the defendant that she took treatment on
Again, the District Judge rejects the defendant’s evidencethat she was unable to submit the medical certificate to court on
notwithstanding the defendant’s uncontradicted evidence thatnone of her children were available to have the medical certificatesent to court on that date.
What is even more serious is the error of law apparent on a readingof the order. The District Judge held that the failure of the defendant tocome into court and produce the medical certificate prior to the datefixed for the ex parte trial (21.6.85), showed a lack of diligence on herpart. In so holding, the District Judge has clearly overlooked theprovisions of the Civil Procedure Code (Amendment) Act, No. 53 of1980 whereby section 86(1) of the Civil Procedure Code was repealed.It was the repealed section 86(1) which enabled a defendant tocome into court ”… at any time prior to the entering of judgmentagainst him for default …” with the repeal of section 86(1), thedefendant could not have come into court prior to the entering ofjudgment against him for default. The stage at which the defendantcould have come into court is set out in section 86(2). And it wasprecisely in terms of section 86(2) that the defendant made theapplication. Moreover, the misreading of section 86 of the CivilProcedure Code influenced the District Judge’s evaluation of the oraltestimony.
The Court of Appeal in affirming the Order of the District Courtfailed to address itself to the infirmities in that order both on the factsand on the law, adverted to above.
For these reasons, the appeal is allowed and the judgment of theCourt of Appeal and the order and decree of the District Court are setaside. The District Court is directed to permit the defendant toproceed with her defence as from the stage of default. The plaintiffmust pay a sum of Rs. 500/- to the defendant as costs of appeal.
KULATUNGA, J. -1 agree.RAMANATHAN, J. -1 agree.Appeal allowed