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WALTER NUTTER & Co. v. MOHAMMADU LEBBE.D. C., Colombo, 13,813.
Default of filing answer — Purging of default and tender, of answer — Placing ofdefendant on terms.
The illness of the defendant is no excuse for his proctor not preparingor filing an answor in time. To justify the acceptance of an answerafter its due date, it should be proved that the defendant was so ill thathe could not attend to business or see his proctor.
Where the explanation of the delay is unsatisfactory, it is competentfor the Court to place the defendant on terms, and in failure thereof tohear and dispose of the case ex parte.
HIS action was instituted for the recovery of Rs. 2,416 said
to be due by the defendant to the plaintiff on shipmentsof certain goods which the defendant had undertaken to consignto the plaintiff in consideration of moneys advanced to thedefendant on the footing of an agreement set forth in the plaint.
The summons were made returnable on the 31st July, 1900, onwhich day time was allowed to defendant to file answer on the13th August. On the 13th August the time was extended to the16th. On the 16th the court ordered the case to be called thenext day. On the 17th the court recorded as follows:—“ Case“ called; answer due yesterday. No answer filed. Mr. Vander-“ straaten produces a motion for an extension of time to file“ answer, consented to by Mr. Narayanaswamy, who is not the“ proctor for the plaintiffs and who is not in Court. Motion“ disallowed. Case fixed for ex parte trial on the 7th September ”
On the 7th September the defendant endeavoured to purge hisdefault to answer by submitting an affidavit and tendered ananswer for acceptance, and moved that case be fixed for trial.
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Counsel for plaintiff consented to defendant’s motion, providedthe defendant gave security for the amount of the plaintiff’sclaim.
The District Judge ordered as follows:—“The defendant’s" motion cannot be allowed except on terms. The defendant to“ give security for Rs. 2,500 on or before the 14th instant. On“ his giving security his motion will be accepted and the case fixed“ for trial. If the defendant does not comply with these terms,“ the case will be heard ex parte on the 14tb instant.
“ The defendant to pay the plaintiff the costs of this discussion.”
Defendant appealed against that part of the order requiringsecurity to be given, and ordering the ease to be fixed for trialex parte in case security was not given.
Bawa, for appellant.—The order as regards security appears tohave been made under section 706 of the Civil Procedure Code,but the present action is not under chapter 53 of the Code. Theorder cannot be justified, nor would section 86 support such anorder. If the judge was not satisfied with the explanation givenin the affidavit of the defendant’s proctor, he might have refusedto accept the answer tendered, but here he agreed to accept it onterms which shows that he was satisfied with defendant’s explana-tion as to the delay in filing answer. If the explanation be heldgood, the defendant ought to have been allowed to file answeruncondition all y.
De Baram, for respondent.—The reasons given in the affidavitwere not satisfactory. Hence the imposing of the terms. If thejudge were satisfied, he would have granted another extension oftime to file answer under section 74 (Silva v. Babahamy, 1 N. L.
R.145). Neither the affidavit of the defendant’s proctor northe medical certificate produced satisfactorily account for thedelay.
This is an appeal from, an order of the Acting District Judge ofColombo refusing an application for extension of time to fileanswer except upon certain terms, the terms being that the.defendant should give security for the amount of the claim.The action was commenced on the 3rd July of this year. Thedefendant appeared on the 31st July, and the 13th August wasfixed as the date on which he was to put in his answer. On the13th August, by consent of the plaintiff, the judge extended thetime for filing answer to the 16th. On the 16th the case was
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called on, but the answer was not ready, and the AdditionalDistrict Judge, who was then sitting, and before whom it came,ordered the case to stand over till the next day. On the 17th theproctor for the defendant moved for an extension of time, statingthat the motion was consented to by a gentleman who was not theplaintiff’s proctor on the record. The District Judge disallowedthe motion and fixed the case for ex parte trial on the 7th Septem-ber. No step was taken by the defendant between the 17thAugust and the 7th September, although this Court has held thata defendant might in a case like this come forward with an answerand move to have it accepted. In such a case, if the Court wassatisfied with the reasons for the answer not being presented atthe proper date, and was also satisfied that the defendant had useddue diligence to get his answer ready for filing, the judge mightextend the time, notwithstanding 'he had made an order for ex partehearing. As I said before, no step was taken during all this timeby the defendant. But on the 7th September, the day fixed forthe ex parte hearing, the defendant’s proctor produced an answerand an affidavit made by himself, stating the reasons why theanswer was not filed on the 16th August, and moved that theanswer be allowed to be filed and a day fixed for the trial interpartes.
The reasons given by the proctor in his affidavit are these:“ Owing to the illness of the defendant, who was ill with fever,‘‘ I was unable to get full particulars of his defence to file answer“ till the 16th August. On the last-mentioned date the answer“ was not ready owing to the continued illness of the defendant.”But the proctor does not say when the defendant became able toattend to business, and when he got from him particulars for theanswer. He produced at the same time a certificate from amedical practitioner, dated the 7th September, certifying that thedefendant had been “ confined to his room for the last four week.“ with a big carbuncle on the back. He is a little better now,” but is still unfit to leave the house.”
According to the certificate the defendant had been confined tohis room since the 11th August, and was still unable to leave hisroom on the 7th September. He says nothing about the defend-ant being ill with fever, as the proctor stated he was, and Iconsider the affidavit quite unsatisfactory. There is no statementthat this defendant was so ill that he was unable to see his proctor,or that he was unable to attend to business, though he could notleave his room. It seems to me that the affidavit does notsatisfactorily explain the long delay in the preparation of theanswer. The District Judge was apparently also not satisfied
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October 24Bonbeb, C.J
with it, and, therefore, he placed the defendant on terms. Hesaid in effect, “ I have fixed the case for ex ■parte hearing, and it“ must be 60 heard unless you choose to accept the terms I“ impose, and which plaintiff’s counsel is willing to accept.” Icannot say that it was unreasonable on the part of the DistrictJudge to impose this condition on the acceptance of the answer.If the defendant was unwilling to accept it, then the case wouldhave gone on to trial cx parte, and the defendant would then haveanother opportunity, when he appeared to the notice to make thedecree absolute, to show cause why the decree ought not to bemade absolute.
But 1 am of opinion that he has not made out any case at pre-sent for our interference.
Browne, A.J.—I agree.