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Present: Fisher C.J. and Garvin J.
WICKREMASURIYA v. MUDIANSE et al.
376—D. C. Kurunegala, 12,031
Court's power to vacate order—Application by plaintiff—Reasonabletime—Good cause shown—Civil Procedure Code, s. 144.
An order dismissing an action for failure of plaintiff to appear on
the day appointed for ex -parte hearing may be vacated on terms
if an application is made . within a reasonable time and good cause
shown for default of appearance.'
PPEAL from an order of the District Judge of Kurunegala.
L. A. Bajapakse, for plaintiff, appellant.
No appearance for defendant, respondent.
March 25, 1930. Garvin J.—
This was ’an action for declaration of title. The defendantswho were duly served with summons appeared in Court. Thesecond and third defendants disclaimed title ; the first defendanttook time to file answer. Further time was granted to him onapplication. On June 21, 1928, the day ultimately appointed forthe filing of his answer the first defendant was absent and hisproctor intimated to the Court that he had no instructions. TheDistrict Judge fixed July 12, 1928, ex parte trial.
On that day the plaintiff and his proctor were absent and therewas no appearance for the defence. The District Judge thereuponmade order dismissing the plaintiff's action.
On June 17, 1929, plaintiff filed a petition and affidavit explaininghis default and prayed that “ the case be restored to the roll toenable plaintiff to proceed with his action. ”
Notice of this application was given to the first defendant, and■the matter fixed for inquiry on September 12, 1929. On that daythe District Judge dismissed the application without inquiry,holding that he had no jurisdiction to vacate his order of July 12,1928, dismissing the plaintiff’s action.
The plaintiff appeals.
Chapter XII. of the Civil Procedure Code which is entitled “ of theconsequences and cure (when permissible) of default in appearingor pleading” sets out the procedure to be followed when therehas been a default of appearance on the part of the parties or anyof them.
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Section 84 contemplates the case of the absence of the plaintiff,the defendant being present, “ on the day fixed for the appearanceand. answer of the defendant, or the day fixed for the filing of theanswer, or for the hearing of the action, ” and provides that unlessthe defendant admits the plaintiff’s claim or. consents to a post-ponement “ the Court shall pass a decree nisi ….dismissing the plaintiff’s action. ’’
Section 85 deals with the converse case of the appearance of theplaintiff and the absence of the defendant, and provides that if thedefendant fails to appear on the day fixed for his appearance andanswer, or on the day fixed for the subsequent fifing of his answer,or for the filing of the replication, or on the day fixed for the hearingof the action, the Court shall proceed to hear the case ex parteand to pass a decree nisi in plaintiff’s favour.
Section 88 prescribes the procedure to be followed when neitherparty is present “ on the day appointed to appear and answer,or- for the subsequent filing of the answer, or for the fifing of thereplication.” The proper order to be made in such a case beingto direct that the case be struck off the roll of pending cases. Thesection, it will be noticed, makes no provision for the case of theabsence of both parties on the day fixed for the hearing of theaction. It was suggested by Counsel for the appellant that inas-much as the case for the plaintiff was not heard ex parte on the daythe defendant failed to appear and' file his answer and the hearingwas put off for a later date, the case under consideration wasgoverned by section 144 of the Code.
That section is as follows: ” If on any day to which the hearingof the action is adjourned, the parties or any of them fail to appear,the Court may proceed to dispose of the action in one of the modesdirected in that behalf by chapter XII., or make such other orderas it thinks fit.”•■
The word adjournment generally means the appointment ofanother day for the continuation of that which has already com-. menced in contradistinction to postponement, which means theputting off of that which was appointed to be done on a specifiedday for a later day. An examination of the other sections ofchapter XVIII. confirms the view that adjournment throughoutthat chapter is used in the sense indicated. This was the viewtaken in Habibu Mohammadu v. Mohideen Pitche.1
The Code does not contemplate the appointment of a day for the' ex. parte hearing of the plaintiff’s case; it assumes that it will beheard immediately on the day on which the. defendant makesdefault (vide section 85).
1 2 Browne 283.
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This however is not the only respect in which it has been foundimpracticable to adhere closely to the procedure in the Code, andit is now the inveterate practice to put off the ex parte hearing
for a day appointed by the Court.
In such a case the hearing may be said to be postponed: itcannot in my opinion be said to be adjourned withiu the meaningof section 144.
In view of this opinion it is perhaps unnecessary to considerwhether the words “ the hearing of the action ” are used in a sensewhich includes the ex parte hearing of the plaintiff's case. Butthere are reasons for thinking that the adjournments contemplatednre adjournments of the hearing of the .case after the close of thepleadings,- that is to say, of trials inter partes.
It would seem that the Code does not contemplate the post-ponement of the ex parte hearing of the plaintiff’s case and con-sequently has made no provision for the case of the absence of. theplaintiff on the day appointed for the hearing. In this situation,which is the consequence of a departure from the procedurecontemplated by the Code, the District Judge made order dis-missing the plaintiff's action. In form it is an order which finallydetermines the action; it was made for default of appearance,and in a case for which no provision is made in the Code. There isno evidence of the existence of any practice in force in our Courtsrelating to such a case. The matter is at. large, and it is competentfor this Court to consider what order a .Court should make in sucha case and what effect should be given to the order, whatever formit may take, and deal with the matter accordingly.
The order in this case was not one made inter partes; it was noteven made ex parte. I realize that some order is necessary, butwith due regard to the necessities of the case I. am not preparedto- give to this order any greater effect than that it will bar thefurther prosecution of the case until it is set aside.
The provisions of the Code relating to the consequences ofdefault of appearance by one of the parties nowhere contemplatethe making in the first instance of an order finally determining theaction. In every instance an opportunity is afforded a party who isin default to cure his default. On his failure to do so the order madeagainst him is made absolute and final (vide sections 84 and 85).
Where both parties are in default, the order which the Court isempowered to make is to direct that the action be struck off the file ofpending cases—section 88. This section, as I have already pointed out,does not contemplate a case such as the one under consideration.
The broad principle which underlies these provisions is that theorder made in consequence of a failure of one or both the parties toappear at any stage of an action should be one which the Court mayvacate if good and sufficient cause is shown within a specified periodor a period which under all the circumstances is considered reasonable.
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There can be no justification for an order which places the plaintiffin a worse position than he would occupy if an order of abatementhad been passed.
The form of the order to be made by the Court in a case suchas the one under consideration is a matter of no great importanceso long as its effect is clearly defined, and I am not therefore dis-posed to interfere with the terms of the order entered in this case.But in my judgment an order dismissing an action for the failureof the plaintiff to appear on the day appointed for the ex partehearing of his case is one which the Court which made it may, uponthe application of the plaintiff, and if, within a period which underall the circumstances appears to the Court reasonable, he showsgood cause for his non-appearance, vacate upon such terms and*conditions as it shall think fit, and continue the proceedings as fromthe stage at which the order of dismissal was entered.
The plaintiff has made such an application. For the reasonswhich I have given I think the learned District -Judge was wrongin his view that it was not within his power under any circumstancesto vacate the order which the plaintiff invited him to vacate.
The plaintiff has allowed nearly a year to elapse ' since • the dis-missal of his action before he made this application. This is avery considerable’ delay. Nevertheless the plaintiff is entitled atleast to an opportunity tox satisfy the Court if he can that hisapplication is made within a period which under all the circum-stances is reasonable and that he has, good cause for his failure toappear on the day appointed for the ex parte heating.
I would therefore set aside the order under appeal, and remitthe matter to the Court below to enable the Court to decide whetherthe plaintiff is entitled to any relief. Under the circumstancesI would make no order as to costs.
Fisher C.J.—I agree.
WICKREMASURIYA v. MUDIYANSE et al