035-NLR-NLR-V-67-W.-JOHANIS-APPUHAMY-Appellant-and-V.-H.-CARLINCHO-Respondent.pdf
Present: Sansoni, J., and H.N.G. Fernando, J.W. JOHANIS APPUHAMY, Appellant, andV. H. CARLINCHO, Respondent
8. C. 230—D. C. Galle. 3750/L
Civil procedure—-Non-appearance of defendant on the adjourned date of hearing ofaction—Resulting position—-Civil Procedure Code, ss. 85, 144.
After the plaintiff had closed hia case and the defendant had called awitness, the case was put off for further hearing. On the adjourned date thedefendant and his Proctor were absent.
Held, that, in the circumstances, the only course which the Court couldhave adopted was to enter a decree nisi in favour of the plaintiff in termsof section 85 of the Civil Procedure Code. In such a case, the Courtcannot give judgment for the plaintiff on the basis that the defendant didnot intend to lead any further evidence.
iAlPPEAL from a judgment of the District Court, Galle.
O.Ranganathan, with M. T. M. Sivardeen, for the Defendant-Appellant.
G. G. Mendis, for the Plaintiff-Respondent.
October 25, 1963. Sansoni, J.—
In this case the trial proceeded to the stage where, the plaintiff havingclosed his case, the defendant called a witness and the case was putoff for further hearing. On the next date the defendant and his proctorwere absent. The learned District Judge has given judgment for theplaintiff on the basis that the defendant did not intend to lead anyfurther evidence. The question that arises is whether in these circum-stances the learned District Judge had the power to give judgment asif the case had been heard inter partes, as he did in this case, or whetherhe should have entered only a decree nisi in the plaintiff’s favour.
Under section 144 of the Code, where any party is absent on the dayto which a hearing is adjourned, the Court may proceed to dispose ofthe action in one of the modes directed by Chapter 12, or make suchother order as *it thinks fit. Chapter 12, of course, deals with the courseto be adopted where a party is absent. The Court in this case hasdisposed of the a ction, but not in one of the modes directed by Chapter 12.Does the judgment given by the District Judge come under the words“ make such other order as it thinks fit ” ? I do not think so, becausethose words seem to contemplate some order such as giving notice tothe absent party, or putting the case by, short of an order disposingof the action. TVe think that in this case the only course the learnedDistrict Judge could have adopted was to enter a decree nisi undersection 85. If the defendant wishes to purge his default he will thenhave an opportunity to do so.
We therefore set aside the decree entered in this case and direct thata decree nisi be entered in the plaintiff’s favour in terms of section 85of the Code. The appellant is entitled to the costs of this appeal.
H. N. G. Fernando, J.—I agree.
Decree set aside.