WEERASINGHE, Appellant, and BARLIS, Respondent

116-NLR-NLR-V-44-WEERASINGHE-Appellant-and-BARLIS-Respondent.pdf


466
KEUNEMAN J.—Weerasinghe and Barlis.
1943Present : Keuneman and Wijeyewardene JJ.
WEERASINGHE, Appellant, and BARLIS, Respondent. .
185—D. C■ Matara, 83.
Date of Trial—Postponement of case—Payment, of costs on or before next dateof trial—Payment in course of the day—Regularity of payment. '
Where a case was postponed1 owing to the absence of the defendanton the following terms If costs are not paid on or before the nextdate of trial, of consent, judgment to be entered for plaintiff”,—
Held, that the payment of costs in the course of the date of trial,would be sufficient to satisfy the terms of the order.
^^PPEAL from a judgment of the District Judge of Matara.
H. V. Perera, K.C. (with him C. J. Ranatunga), for ‘defendant, appellant.
N. E. Weerasooria, K.C. (with him L. A. Rajapakse), for plaintiff.,respondent.'.
Cur. adv. vult.
September 22, 1943. Keuneman J.—
In this case, on November 19, 1941, the defendant was absent and thefollowing order was made : —
“ In view of the 'medical certificate I allow a date. Defendantto pay Rs. 105 as plaintiff’s costs of the day.
» 151 L. T. 154.
KEUNEMAN J.—Weerasinghe and Barits.
467
If costs are not paid on or before next date of trial, of consent, judg-ment to be entered for plaintiff, as prayed for with costs. Trial,January 12, 1942. ”
On January 12, 1942, the Journal entry is as follows : —
“ Trial case called—Defendant and Proctor absent. Enter judg-ment for plaintiff as prayed for with costs—Vide order of November 19,1941. ”
The facts are as follows, and are borne out in the record. The defendantwent to the office of the plaintiff’s proctor on January 12, 1942, to tenderthe sum of Rs. 105.. The plaintiff’s proctor was not there, and thedefendant then went to the resthouse to instruct his own Counsel, whohad come from Galle, and was with his Counsel when the case was calledin Court. He arrived in Court a few minutes after the case was calledand disposed of. The sum of money was immediately tendered to theplaintiff’s proctor, who refused to accept it, and the money was thenimmediately deposited in Court, and the defendant moved that the orderbe vacated. This application was refused, and the defendant appealsfrom that order.-«
Counsel for the defendant-appellant argues that the District Judgehad no power to enter the order of January 12, 1942, inasmuch as thedefendant had time, under the consent order of November 19, 1941, totender the sum of Rs. 105 during, at any rate, the ordinary workinghours of January 12, 1942. He argued that the defendant was notin default, when the order of January 12, was made. The District Judge,however, thought that the words “ on the date of trial ” meant “ whenthe case is taken up on the date of trial ” and not at any time on that day.
No case has been cited to us, nor have I been able to find an authority,which is exactly in point. In Fernando v. Wimalatissa1 the order wasthat the costs should be paid “ by the next date ”, Payment made onthe actual date of trial, but before the trial, was held to be a sufficientcompliance with the order. Bertram A.C.J. held that the phrase “ bythe next date ” would ordinarily be interpreted as meaning •“ on the nextdate ”, and added :
“ If I promised a person that I will let him have a book by Monday,he does not generally understand that he is going to get the book onSunday, but would consider that my promise was perfectly compliedwith if I let him have the book in the course of Monday. ”
In this case, however, there was a further condition. In the judgmentthe condition is set out as follows : “ that the costs were to be paid in evi-dence ”. This is clearly an error, and I think that the amendmentsuggested by both Counsel, viz., “ in advance ” is most likely. In anyevent it was the further condition, that induced Bertram A.C.J. to holdthat the sum was payable before the case came for hearing.
I think this case supports the proposition that payment of costs in thecourse of the date of trial is sufficient.
■ 5 a. W. R. 243.
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WIJEYEWARDENE J.—W eerasinghe and Barits.
My brother Wijeyewardene has also referred me to the case of Schraderv. Joseph *, which involved the construction of section 823 (2) of the CivilProcedure Code : —
“If upon the day specified in the summons or upon any day fixedfor the hearing of the action, the defendant shall not appear or suffi-ciently excuse his absence, the Commissioner …. may enterjudgment by default against the defendant. ”
It was held that these words referred to default at the time, if any,when the defendant was required to attend, and if no time was fixed, atthe time when.the case is called for hearing. There were two reasonsgiven {1) tKat the section refers to default on the part of the defendantin doing something which he ought to do, and that in the absence of anyrule of procedure to the contrary, it is the duty of the defendant toappear either at the time the case is fixed for hearing, or when the caseis called on. (2) The practical inconvenience if a contrary interpretationwas given is emphasised. This case overruled two previous cases viz.,Marikar v. Colombo Municipal Council ‘ and Hadjiar v. Kunjie
In the present case, I do not think there is any recognised rule of pro-cedure which requires that payment should be made before the case istaken up for trial. There are, of course, practical inconveniences,which have been emphasised before us, but these can always be weighedbeforehand by the Judge who makes the order and by the parties whoconsent to it, and it is in the power of the Judge, if he thinks it desirableto order that the payment be made before the case is taken up, to makethat point clear in his order. Where, however, the order made permitsthe payment to be made on the date of trial, I do ndt think we shouldimpose any restriction which prevents the party from making the paymentduring the course of that day, and at any rate during the ordinary workinghours of that day. In my opinion the case of Schrader v. Joseph (supra) is,a special case and can be differentiated. I hold that the defendant was intime in tendering and depositing the amount of costs on January 12, 1942.
No doubt it was within the power of the District Judge, when thedefendant was absent at the time the case was called, to have fixed thematter for ex parte hearing. But this was in fact not done, and I do not-think that in the face of the defendant’s explanation we should make thatorder now.
I allow the appeal with costs, and send the case to the District Judgefor trial in due course. The plaintiff will be entitled to the sum of Rs. 105deposited by the defendant. Costs in the Court below will be in thediscretion of the District Judge.
Wijeyewardene J.—
This is an action for declaration of title to a land. When the casewas taken up for trial on November 19, 1941, the defendant’s proctortendered a medical certificate and applied for a postponement on theground of the defendant’s illness. The journal entries show that the
'1 IS N. L. R. 111.2 2 Br. 240.2 1 A. C. R. 3.
WUEYEWARDENE J.—Weerasinghe and Barlis.
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plaintiff objected to a postponement as “expenses had been incurredin connection with the trial The judge thereupon, made the followingorder:—
“ In view of the medical certificate I allow a date. Defendant topay Rs. 105 as plaintiffs costs of the day. If costs are not paid onor before next date of trial, of consent, judgment to be entered forplaintiff as prayed for with costs. Trial, January 12, 1942. ”
On January 12, 1942, the defendant and his proctor were absent whenthe case was called and the Judge entered judgment for the plaintiffreferring to the order made by him on the previous date. On the sameday the defendant filed an affidavit and moved for a notice on the plaintiffto show cause why the judgment should not be vacated.
According to that affidavit the defendant went to the office of theplaintiffs proctor about 8.30 A.M. on January 12 to tender the sum ofRs. 105. He found the proctor’s office closed and he then attended aconsultation between his proctor and Counsel who had come down fromGalle. After the consultation he came with his lawyers to the Courtsat 10.5 ajmc. and his proctor tendered the day’s costs to the plaintiffsproctor which the latter refused to accept as judgment had been entereda few minutes earlier.
The facts as stated in the defendant’s affidavit are not disputed. TheDistrict Judge refused to vacate the judgment as he thought that thedefendant had failed to tender the sum of Rs. 105 within the timementioned in the order of November 19.
The order of November 19 states that the payment should be made“ on or before the next date of trial ”. If these words are given theirnatural meaning a payment made “ on the next date of trial ” would bein compliance with the order.
It was argued for the respondent that the words should be interpretedas if' they were “ at or before the commencement of the trial ”, Theeffect of the order in question is to create a situation where a judgmentaffecting the rights of the parties to a land will be given without anadjudication by a Court of law, and I think, therefore, that such an ordershould be construed strictly against a party seeking to oust the ordinaryjurisdiction of a Court. Moreover, I do not think that the words couldbe interpreted in the way suggested by the respondent’s Counsel. Theposition becomes clear if one considers a case where an order is madethat the payment should be made “ before the next trial date ”. If therespondent’s contention is entertained, that order would mean that thepayment could be made “ before the commencement of the trial ” and theorder would therefore justify a payment being made even on the trialdate before the case is taken up for trial. It cannot possibly be thecase that when a party is requested to make a payment before a certaindate, he would be entitled to make the payment during a certain periodof that day. Moreover, if this interpretation is accepted there would beno appreciable difference between an order for payment “ on or beforethe next date of trial ” and an order for payment “ before next date oftrial ”.
470
Rajah and Nadarajah.
It should be noted that the order did not contemplate a paymentinto Court. The payment could, therefore, be made at any reasonabletime within the period fixed by the order and need not necessarily be madeduring the time that the office of the District Court is open. As indicatedin Simon Sinno v. William Appuhamy1 different considerations wouldapply when the money had to be deposited in Court. I would refer tothe case of Schrader v. Joseph1 though it was not cited at the argument.I do not think the reasoning in that case could be adopted in this case.In that case the Court had to construe the words of a statute with regardto the performance of, a judicial act. Here we are concerned with inter-preting an agreement'entered into between the parties, with referenceto an act to be performed by one of the parties, though, no doubt, anorder of Court is based on that agreement.
The respondent’s Counsel referred to difficulties that may arise if thewords in the order are given their natural meaning. What is going tohappen, asked he, if the defendant fails to pay the money at the com-mencement of the trial and the Judge then hears the case and decides infavour of the defendant on the merits and the defendant does not pay themoney on the trial date even after the judgment ? Such difficulties,however, could be avoided easily if the parties take the trouble to expressclearly the terms agreed upon.
I agree that the order proposed by my brother should be made in thecase.
Appeal allowed.