012-SLLR-SLLR-1997-V-1-SHEILA-SENEVIRATNE-v.-SHEREEN-DHARMARATNE.pdf
SHEILA SENEVIRATNE
v.
SHEREEN DHARMARATNE
SUPREME COURT.
G. P. S. DE SILVA. C.J.,
KULATUNGA, J. ANDP.R.P. PERERA, J..
S.C. APPEAL NO. 122/94
A. 656/83(F)
C. MT. LAVINIA NO. 2051/M.
JUNE 29,1995.
Civil Procedure Code – Ex parte trial – Section 84 and 85 of the Code – Ex-parteJudgment and decree – Duty of the Court to act on legal evidence – Section 60of the Evidence ordinance.
The plaintiff sued the defendant for damages in a sum of Rs. 78,000/- for failure togrant her a Diploma Certificate in Montessori Training for which she claimed tohave qualified at a course conducted by the Defendant. At the ex-parte hearingof the action under Section 84 of the Civil Procedure Code, the only evidenceadduced was that of the Plaintiff’s sister. There was nothing in her evidence whichshowed that she was*testifying to the facts from her own knowledge. All thetransactions which led to the dispute had been between the plaintiff and thedefendant. There was no evidence that the witness herself played a direct role inthat regard.
Held:
The evidence led is clearly hearsay and hence 'no evidence at all' on which ajudgment may be entered under Sec. 85(1) of the Civil Procedure Code,Consequently, the ex parte decree entered by the District Judge is illegal.
Cases referred to;
Amerasekera v. Fernando – 49 NLR 60.
Sarabjrt Singh v. Special Manager, Court of Wards Ftampur Mathra Estate AIR 1917,Oudh 194,196
Monmatha Kumar Ray v. Josda Lai Podder, AIR 1924, Cal. 647,648
Gurunath Iknath Sukre v Laximibai Govind Kanista AIR 1942 Bom. 344
State of West Bengal v. Lakshmi Narayan Singh AIR1956 Cal. 87,89.
Eliyathamby v. Etiyathamby -27 NLR 396,401 (PC)
Fernando v, Jaward – 77 NLR 554, 558
APPEAL from the judgment of the Court of Appeal
Faisz Musthapha, P.C„ with G.L Geethanandafor plaintiff-appellant.
R.E. Thambiratnam with Herman J.C. Perera for defendant-respondents.
Cur. adv. vult.
September6,1995.
KULATUNGA, J.
The plaintiff-appellant is seeking the restoration of the ex partedecree entered by the District Judge in the above action whichdecree was set aside by the Court of Appeal. By its judgment, theCourt of Appeal also directed an inter partes trial, according to law.
The defendant had filed answer with a claim in reconvention;whereupon, the plaintiff filed replication. The case was then fixed fortrial. It was heard ex parte on the ground that the defendant failed toappear on the date fixed for trial. The defendant’s application to setaside the ex parte decree was refused by the District Judge on theground that the application was not made according to law and wasout of time, having been filed after the period of 14 days permitted bylaw.
The defendant's appeal to the Court of Appeal was resisted interalia on the ground that the defendant had failed to hypothecatesecurity for costs of appeal, which default the Court of Appealpurported to excuse in terms of S. 759{2) of the Civil ProcedureCode. In the end, the Court of Appeal set aside the ex parte decreein the exercise of revisionary jurisdiction for the reason that the saiddecree is based on a judgment given on the basis of hearsayevidence. This was an objection which the defendant hadconsistently urged at every stage of proceedings, before the trialCourt and the Court of Appeal.
Special leave to appeal herein has been granted on a number ofgrounds but I propose to decide the matter on one ground alonenamely, whether the ex parte decree is illegal as it is based on ajudgment entered on hearsay evidence; if so, whether the Court ofAppeal was justified in setting it aside, by way of revision. I haveadopted this course particularly in view of the submission ofMr. Musthapha P.C. for the plaintiff-appellant that the defendant hadfailed to properly pursue the specific remedy which S.86(2) of theCode provided, to have the ex parte decree vacated, due to hernegligence or her own folly. However, in fairness to the defendant itmust be stated that the alleged negligence in the case was that ofher registered Attorney. If there was any such negligence, thedefendant had to suffer by reason of the acts of her agent. This is afact which I consider is relevant to the decision of this case.
The plaintiff had followed a course in Montessori Training Methodsconducted by the defendant. The plaintiff claims that she sat a testand qualified for a Diploma and was awarded a certificate at aceremony presided over by Mrs. Siva Obeysekera. Later she realisedthat the so-called certificate was a blank sheet of paper. She claimsdamages in a sum of Rs. 78,000/-. The defence is that the plaintiff didnot pass the test. So she was not entitled to a Diploma. But theplaintiff desired it to be known she had qualified for the Diploma andrequested that she be photographed at the award ceremony asreceiving a certificate. She undertook to repeat the test. Hence, thepretence of an award when only a blank certificate was given. At thesecond attempt also, the plaintiff failed to pass the test.
According to the record, on 15.07.81 the registered Attorney of theplaintiff was present. The lawyer sister of the plaintiff says in anaffidavit that she appeared for the plaintiff that day, tendered theplaintiff's replication and obtained a date for the trial on behalf ofsenior Counsel; she communicated the date of trial namely, 02.10.81to the Counsel; the registered Attorney for the defendant was notpresent in Court.
The record shows that although the trial was fixed for 02.10.81 thefirst entry made was 02.11.81 after which the reference to “11" hadbeen altered to “10” in such a way that at a glance one may stillmisread it as “11". In fact, the clerk who had entered the date in the“Day Book" had himself first entered it as 02.11.81 and thencorrected it as 02.10.81.
On 02.10.81 the plaintiff was absent but represented by Counsel;the defendant was absent and unrepresented; whereupon, theDistrict Judge tried the case ex parte. The evidence of the lawyersister was led on the facts averred to in the plaint which evidencewas hearsay, except perhaps as regards one matter namely a letteraddressed to the plaintiff’s Attorney-at-Law in which the defendanthad replied the plaintiff's claim wherein the defendant admits theaward of a blank certificate to the plaintiff. However, the letter statesthat this was for the reason that the plaintiff had not qualified for aDiploma; and that the plaintiff failed the examination when she sat forit a second time; so that the plaintiff was never entitled to a Diploma.The said letter is consistent with the defence raised in the answer.After recording that evidence, the Court postponed judgment toenable the filing of documents.
Before the Court proceeded to deliver its judgment, the registeredAttorney for the defendant filed an affidavit dated 16.10.81 (togetherwith an affidavit of the defendant) explaining that he took down thedate as 02.11.81 and later learnt that the case had been fixed for exparte trial. He also noted an alteration of the date. More relevantly, hedrew the attention of the Court to the fact that the sole witness for theplaintiff had given hearsay evidence in breach of the provisions ofS.85(1) of the Code; and that there is nothing in her evidence whichshows that she was testifying to the facts from her own knowledge.He moved that the entering of the ex parte judgment be stayed,pending investigations into the said alteration; in any event, judgmentbe entered dismissing the plaintiff's action, for breach of S.85(1).
On 27.11.81 the District Judge entered ex parte judgment. Almostthe entirety of the judgment is devoted to explaining thecircumstances in which the entry of the trail date had been altered.The objection that hearsay evidence had been led was notconsidered. The Judge said that “on the evidence given … theplaintiff had established a prima facie case for the recovery of a sumof Rs. 78,000/- from the defendant". Accordingly he gave judgmentfor the plaintiff and directed that a decree be entered under S.85(4).
The ex parte decree was served on 18.09.92. Next, there is anapplication dated 29.09.92 by the registered Attorney for thedefendant seeking to vacate the ex parte decree but there is noaccompanying affidavit. On 07.10.82 a motion has been filed movingthat the said application be entertained on the basis of the affidavit"previously filed". The application itself bears the date stamp07.10.82. In the written submissions filed on behalf of the defendant,the point was made that District Judge had given ex parte judgmentper incuriam, without considering the submission that ex partejudgment had been entered on the evidence of the plaintiff's sister, inbreach of S.85(1).
On 18.10.83, the District Judge rejected the application to vacatethe ex parte decree on the ground that the said application was not inconformity with S.86(2) and that it was time barred. The submissionthat the ex parte judgment was per incuriam, and had been enteredon the evidence of the plaintiff’s sister, in breach of S.85(1), was notconsidered.
Mr. Musthapha’s criticism of most of the grounds on the basis ofwhich the Court of Appeal reversed the order of the District Judge isvalid. Mr. Musthapha relies primarily on the lapses of the registeredAttorney for the defendant in respect of which the District Judge hasmade specific findings of fact. There is force in the submission thatthe Court of Appeal was not justified in reversing those findings.Hence this Court would normally not have affirmed the judgment ofthe Court of Appeal. However, the allegation that the District Judgehad given judgment on hearsay evidence raises a serious questionas to the legality or the propriety of that judgment. The question iswhether that judgment and the decree which followed it are illegaland void for lack of legal evidence. If so, the Court of Appeal wasright in setting aside the said decree.
S.84 of the Code requires the Court to proceed to hear the caseex parte inter alia, where the defendant is absent on the day fixed forthe hearing of the action. S.85 which prescribes the procedure forex parte trial states that the plaintiff may place evidence before theCourt in support of his claim by affidavit or by oral testimony; and theCourt, if satisfied that the plaintiff is entitled to the relief claimed byhim may enter such judgment for him as to it shall seem proper andenter decree accordingly. In Amerasekera v. Fernando Soertsz J.expressed the view that the evidence in support of the plaintiff’s claimat an ex parte trial should, as a rule, be given orally, and affidavitsshould be resorted to only in exceptional cases.
In India, the principles applicable to the hearing of a case ex partehave been set out as follows: –
A Court ought not to rely in an ex parte case on evidenceotherwise unreliable, simply because the case is ex parte.Sarabjit Singh v. Special Manager, Courts of Wards, RampurMathra Estate m.
If a case is heard ex parte, the Court cannot pass a decreeexcept on proof by the plaintiff that he is entitled to thatdecree Monmatha Kumar Ray v. Josda Lai Podder R>.
A direction that the Court may proceed ex parte means thatthe Court can hear evidence in the absence of thedefendant, and make such order as that evidence justifies.Gurunath Iknath Sukre v. Laximibai Govind Kanista w.
If there is no such evidence the claim is liable to bedismissed, though the defendant has not chosen to appearState of West Bengal v. Lakshmi Narayan Singh B>.
In the instant case, the District Judge gave judgment on theevidence of the plaintiff’s sister. As pointed out earlier, that evidencewas oral evidence except as regards two letters. The case restedmainly on oral evidence. In terms of S.60 of the Evidence Ordinance,oral evidence must, in all cases whatever, be direct meaning, that itmust be given by a witness who has seen, heard or perceived anyfact which is sought to be proved. There are exceptions to thehearsay rule but they have no application to this case.
As urged by the defendant, there is nothing in the evidence of thewitness called at the ex parte hearing which shows that she wastestifying to the facts from her own knowledge. All the transactionswhich led to the dispute had been between the plaintiff and thedefendant. There is no evidence that the witness herself played adirect role in that regard. Such evidence is clearly hearsay and henceno evidence at all on which a judgment may be entered underS.85(1) of the Code.
In Eliyathamby v. Eliyathamby (6 the Privy Council whilst affirmingthat the rule against hearsay is part of the law of Ceylon said:
“The principle is one so reasonable in itself, fundamental and solong established, that Their Lordships cannot conceive of its beingoverthrown and discarded except designedly, and by words soplain that their meaning would not be open to any manner ofdoubt.”.
Well before the delivery of the ex parte judgment, the defendanthad drawn the attention of the Court to the fact that the evidence ledat the ex parte hearing was hearsay. But the District Judgeproceeded to give judgment for the plaintiff without considering thatsubmission. It is true that once a case is fixed for ex parte hearing,the defendant cannot seek to have such order vacated until hereceives the ex parte decree. But in the instant case, the defendantwas not seeking to have any order vacated. According to theaffidavits filed, the defendant only applied –
that in view of the alteration of the date of hearing, the Courtshould stay the making of the ex parte judgment, pendinginvestigation as to the circumstances of such alteration;
that in view of the hearsay evidence, the Court should makeorder dismissing the plaintiff's action.
It seems to me that the application made by the defendant wasperfectly legitimate and in conformity with the relevant statute andauthorities. Counsel for the plaintiff-appellant has submitted on theauthority of Fernando v. Jawardm that the evidence led in an ex partetrial is of the bearest minimum. But in the instant case, there is noevidence at all. Hence that decision has no application. affirm the judgment of the Court of Appeal. In all the circumstances, Imake no order as to costs.
G. P. S. DE SILVA C.J. -1 agreeP R. P PERERA, J. – I agree
Appeal dismissed.