Sri Lanka Law Reports
 3 Sri L.R.
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 370/2000
DC MT. LAVINIA NO. 138/96/sp!
JANUARY 29, 2002
Civil Procedure Code, sections 83, 86, 338 and 437 – Affidavit Act, No. 23 of 1953,section 2 – Affidavit defective as it did not carry an affirmation.
Nowhere in the contents of the affidavit is the defendant-respondent referredto as an affirmant; he is referred to as a declarant.
It, therefore, appears that the Commissioner of Oaths had not administeredan affirmation as required by law, even the jurat clause is without an affirmation.
The affidavit is fatally flawed – and should be rejected in limine.Permitting the defendant-respondent to amend the affidavit is wrong.
APPLICATION for leave to appeal from an order of the District Court of Mt. Lavinia.
Kuvera de Soyza for petitioner.
Prinath Fernando for respondent.
Cur. adv. vult.
Weeraman v. Sadacharan (Udalagama, J.)
March 13. 2002UDALAGAMA, J.
In DC Mt. Lavinia case No. 138/96/Spl. judgment and decree appearoito have been entered against the defendant-respondent in default ofappearance. The defendant-respondent preferred an application dated01. 04. 1999 to vacate the said judgment and decree. The saidapplication made under the provisions of section 86 (1) of the CivilProcedure Code was so made by petition and affidavit. At a subsequentinquiry held on 28. 07. 2000 the plaintiff-petitioner raised a preliminaryobjection, namely, that there was no proper application made to courtunder the provisions of section 86 of the Civil Procedure Code as theaffidavit referred to above was defective as it did not carry an affirmant 10and that the defendant-respondent’s application warranted a dismissalin limine.
The learned District Judge by his impugned order dated 13.11. 2000appears to have accepted the fact that the affidavit was defective ashe had by his said order permitted the defendant-respondent to amendhis affidavit subject to costs.
The plaintiff-petitioner being aggrieved by the said order appealstherefrom.
Section 2 of the Affidavits Act, No. 23 of 1953 provides that anaffidavit received for any purpose whatsoever may be written and sworn a>or affirmed to in the Sinhala, Tamil or English language.
The provisions of sections 83, 437 and 438 of the Civil ProcedureCode too refer to affidavits having to be sworn or affirmed.
It is apparent to this court that nowhere in the contents of theaffidavit dated 01.04. 1999 is the defendant-respondent referred to asan affirmant. The defendant-respondent is referred to as a mere declarant
Sri Lanka Law Reports
 3 Sri L.R.
and it is also amply clear that the Commissioner of Oaths had notadministered an affirmation as required by law. He is, as stated above,referred to as a declarant. A mere declaration, in my view, would nottantamount to an affirmation. The sanctity attached to an affirmationis clearly lacking. Even the jurat clause is without an affirmation. Theaffidavit, in my view, being fatally flawed need to have been rejectedin limine resulting in the absence of a proper affidavit under theprovisions of section 86 (3) of the Civil Procedure Code referred toabove.
The learned District Judge appears to have considered mattersof ethnicity by allowing the defendant-respondent to file amendedpapers notwithstanding the fatal irregularity referred to above andnotwithstanding also the fact that section 2 of the Affidavits Act referred
to above clearly entitles the defendant-respondent to tender theaffidavit in Sinhala, Tamil or English. It is the defendant-respondentwho has chosen to file his affidavit in Sinhala.
On a consideration of the provisions of the law and precedent, Iwould hold that the application of the petitioner be allowed and theimpugned order dated 13. 11. 2000 be set aside. The impugned orderis set aside with costs fixed at Rs. 5,250.
NANAYAKKARA, J. – I agree.