024-SLLR-SLLR-2003-V-2-THE-ATTORNEY-GENERAL-v.-HERATH-AND-ANOTHER.pdf
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Sri Lanka Law Reports
[2003] 2 Sri L.R
THE ATTORNEY-GENERAL
v
HERATH AND ANOTHER
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
A. NO. 252/99 (F)
C. COLOMBO NO. 6842/MJUNE 4, 2003
Civil Procedure Code, sections 85(4), 86(2), 88(2) and 755(3) – Evidence led- Defendant and counsel absent – Judgment pronounced – Reasonablegrounds-not shown for the absence of counsel – Mistake – Negligence.
Judgment was entered upon default. Steps were then taken to purge default.The trial court refused the application to set aside the judgment.
On appeal –
Held:
(i) A mistake could be excused – Negligence of counsel is not a reason-able ground to set aside proceedings.
Per Udalagama, J.
“Another normal practice of diligent counsel would be to obtain beforethe due date a copy of the previous day’s proceedings. If that was donethe next date would invariably appear at the end of the previous day’sproceedings. This has not been done. Such failure could not amount toa mistake.”
Per Udalagama, J.
"On a consideration of the normal practice in courts of law counsel aswell as the instructing attorneys note down all dates the case is fixedfor. Counsel who knew that the case was specially fixed for 3 dates on29.3.96 ought to have taken down the dates in his diary; it was incum-bent on such counsel to have left 3 dates free to be present at theresumed trial….”
APPEAL from the order of the District Court of Colombo.
CA
Attorney-General v Herath and another
(Udalagama. J.)
163
Case referred to:
1. Jinadasa and another v Sam Silva and others – (1994) 1 Sri LR 232.
M.K. Arulanandan, Deputy Solicitor-General for defendant-petitioner-appellant.
Ananda Kasturiaratchchi with Udeshika Abeysiriwardena for plaintiffs-respon-dents-respondents.
Cur.adv.vult.
July 15. 2003UDALAGAMA, J.
This is an appeal instituted under the provisions of section oi755(3) of the Civil Procedure Code against the order of the learnedAdditional District Judge in D.C. Colombo ease No. 6842/M dated
refusing to set aside the judgment entered upon defaultafter the recording of evidence on 12.07.96 relevant to the provi-sions of section 88(2) of the Civil Procedure Code.
The facts briefly appear to be as follows:
The respondents instituted the above action claiming dam-ages for breach of a contract admittedly entered on 02.07.87against the defendant on 25.05.89, approximately 14 years ago. 10
The 1st plaintiff entered into the aforesaid contract with theDirector-General of Health Services inter alia to construct an addi-tion and improvements to the Judicial Medical Officer’s office(Stage II)
The 2nd plaintiff who was the wife of the 1 st plaintiff withdrewfrom the case consequent to a separation. The trial being delayedfor various reasons had come up for hearing de novo and issuessettled by order dated 24.09.94. Subsequently to the evidence ofthe plaintiff the learned District Judge hearing the case had beentransferred out and when the action came before the succeeding 20Judge the latter had requested the Judicial Service Commissionand in fact succeeded in having satisfied the Judicial ServiceCommission to have the previous trial judge appointed to hear andconclude the said case and accordingly the case had been called'
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to fix the case for further trial and the further hearing had been fixedfor 29.03.96, on which date further evidence of the plaintiff hadbeen recorded. Subsequently further hearing was postponed for 3separate dates namely 28.06.99, 12.07.99. It must be noted herethat the trial judge had been specially appointed to conclude thetrial and the latter of whom was travelling from another station forthat purpose alone.
It is undisputed that the learned Counsel for the defendant-appellant on 28.06.99 did present himself for the resumed hearingand in fact moved for a postponement on personal grounds whichapplication went unchallenged and the trial judge appears to haveobliged the learned Counsel for the appellant and granted a post-ponement. The next date having been already announced andfixed, the trial judge as stated above on the next date fixed being
arrived in Colombo to'take up the matter for further trial,but found the Counsel for the appellant nor the instructing attorneynor even a representative of the Director-General of HealthServices present in court. The trial judge had subsequent to givingtime for the appellant to make their appearance, on that date at11.30 a-.m. finding the defendant-appellant absent and unrepre-sented proceeded to record further evidence of the plaintiff whohad arrived in court in time and the trial judge concluded the record-ing of evidence of the plaintiff on the said date namely 12.07.99(J.E. 49).
Consequent to the consideration of the evidence so led andalso the documents marked P1 the learned District Judge enteredjudgment for the plaintiff as prayed for:
Aggrieved, the defendant-appellant appealed therefrom onthe basis of a inter parte judgment and the appeal itself was num-bered C.A. 899/96(F). The Court of Appeal in the aforesaid actionalthough a final appeal, by its order dated 18.12.97 directed theDistrict Judge of Colombo to comply with the provisions of section85(4) of the Civil Procedure Code. Subsequently, on the service ofthe decree the Counsel for the defendant-appellant in terms of theprovisions of section 86(2) of the Civil Procedure Code moved tosatisfy the trial court that the latter had reasonable grounds fordefault.
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CA
Attorney-General v Herath and another
(Udalaaama. J.)
165
The learned Additional District Judge who inquired into theapplication under the aforesaid provisions of section 86(2) of theCivil Procedure Code by his impugned order dated 22.04.99refused to vacate the judgment entered on 12.07.96.
Aggrieved, the defendant-appellant appeals therefrom.
I am inclined to the view on a consideration of the normalpractice in courts of law counsel as well as instructing attorneysnote down all dates the case is fixed for. I am also of the view thatcounsel who knew that the case was specially fixed for 3 dates on 7029.03.96 and who ought to have taken down the dates in his diaryit was incumbent on such counsel to have left all 3 dates free to bepresent at the resumed trial. Counsel would not have agreed to thedates if he was not free on the said dates. By implication the coun-sel for the appellant would have done that as on the 1 st of the 3dates so fixed the counsel for the respondent-appellant had arrivedand in person moved for a date on personal grounds. This courtcannot comprehend how the learned counsel could not have noteddown the next date which had already been fixed. In any event thetrial court could not be expected to accept the fact that the counsel sofor the appellant had not taken down the next date when a post-ponement had been granted on his very application. I am alsoinclined to the view that if counsel failed to do so it could not be amere mistake but negligence. Whilst a mistake could be excusedthe negligence of counsel is not a reasonable ground to set asideproceedings. As also clearly observed by the learned AdditionalDistrict Judge even a representative of the Health Department hadnot been present, leave alone counsel and the instructing attorney.
Another normal practice of diligent counsel would be to obtain,before the due date a copy of the previous day's proceedings. If 90that was done in the instant action the next date would invariablyappear at the end of the previous day’s proceedings. Obviously thishad not been done. Such failure could not amount to a mistake.
In all the circumstances considering the overall facts of thecase, I am inclined to the view that no reasonable cause had beenshown for the absence of counsel who was under a duty to appearon all 3 dates fixed on 29.03.96 no doubt so obtained as convenientdates for counsel.
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In a judgment bearing relevance to the instant case, JusticeAmerasinghe in Jinadasa & another v Sam Silva & others citing noless than 153 authorities had observed in the course of his judg-ment that “the exercise of discretion by a lower court should not beinterfered with unless the decision was capricious or made in dis-regard of legal principles.” It is my belief that the learned AdditionalDistrict Judge had rejected the application of the counsel for theappellant on the consideration of the facts as presented before himand I would not classify the impugned order to be capricious or onedisregarding legal principles.
For the above reasons I see no reason to disturb the findingof the learned Additional District Judge dated 22.04.99 refusing tovacate the judgment entered on 07.12.96.
This appeal is dismissed, but court makes no order for costs.
NANAYAKKARA, J.I agree
Appeal dismissed.
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