007-SLLR-SLLR-2005-V-1-WIJESEKERA-vs.-WIJESEKERA-AND-OTHERS.pdf
WIJESEKERAvs
WIJESEKERA AND OTHERSCOURT OF APPEAL,AMARATUNGAJ„ANDWIMALACHANDRAJ.,CALA 534/2002/(LG),
D. C. GALLE L714260/00SEPTEMBER 01,2000
Civil Procedure Code, sections 84, 85, 86(2) and 86(2A) Ex-parte trial – Settingaside of same-Procedure to be followed – Setting aside of the proceedingswithout consent of plaintiff – Is it valid ? – Can the cpurt override express provisionsof the Code on equity and justice ?
5SSri Lanka Law Reports(2005) J Sri L. R.
QAWijesekra V. Wijesekera59
(Wimalachandra, J.)
Held:
Under section 86(2A) it is only if the plaintiff consents and not otherwisethe court can set aside an order made fixing a case for ex-parte hearingagainst a defendant.
An ex-parte order made in default of appearance of a party cannot bevacated until he makes an application under section 86(2) and purgesthe default.
A court cannot override the express provisions of the Code.
It is only in cases where no specific rule exists the court has the powerto act according to equity, justice and good conscience.
Per Wimalachandra, J.
“It is to the best interest of the administration of justice that judges should notignore or deviate from the procedural law and decide matters on equity andjustice.
APPLICATION for leave to appeal from an order of the District Court of Galle,with leave being granted.
Cases referred to :
Karunaratne et al vs Mohideen et al – 43 NLR 102
Fernando vs Sybil Fernando and others – 1997 3 Sri LR 1 at 12.
Rohan Sahabandu for plaintiff petitionerC. Weerakkody for 1st and 2nd defendant respondents
S.A. D. S. Suraweera for 3rd defendant respondent
Cur. adv. vult.
October 14,2004WIMALACHANDRA, J.
The plaintiff-petitioner (hereinafter referred to as the plaintiff) filed this leaveto appeal application against the order of the learned Additional DistrictJudge of Galle dated 04.12.2002
' 5-CM 5256
60Sri Lanka Law Reports(2005) < Sri L. R.
The facts relevant to this application as set out in the petition are brieflyas follows :
The plaintiff filed the action bearing No. 14260/L in the District Court ofGalle, inter-alia for a declaration, that the land described in the scheduleto the deed No. 8873 dated 23.03.1978 is held in trust by the 1 st defendantfor and on behalf of the plaintiff and that the 2nd and 3rd defendants haveno right, title or interest to the said property.
On that day fixed for trial, the 1 st and 2nd defendants were absent andso was their Attorney-at-Law. The learned Judge proceeded to hear thecase ex-parte against 1 st and 2nd defendants. The ex-parte trial commencedand whilst the plaintiff wes giving evidence and after nine pages of hisevidence were recorded, an Attorney-at-Law entered an appearance in themidst of the ex-parte trial and made an application that the 1st and 2nddefendants be allowed to participate in the trial, on the gound that theregistered Attorney-at-Law for the 1 st and 2nd defendants was sick andunable to be present in Court and, as the husband of the 2nd defendantwas due to leave the Island on that day, the 1 st and 2nd defendants wereunable to be present in Court. The plaintiff objected to the said applicationon'the ground that it was misconceived and contrary to the provisions ofsections 84,85(1), 86(2) and 86(2A) of the Civil Procedure Code.
However, the learned Judge, by his order dated 04.12.2002, allowed theapplication as stated by him, in the interest of justice and on equitablegrounds. It is against this order the plaintiff has filed this application forleave to appeal. This Court granted leave to appeal against the said order.
Section 84 of the Civil Prcedure Code states that if the defendant failsto appear on the day fixed for the hearing of the action, and if the Court issatisfied that the defendant has been duly served with summons or hasreceived due notice of the day fixed for the hearing of the action, as thecase may be, and if, on the occasion of such default of the defendant, theplaintiff appears, then the Court shall proceed to hear the case ex-parteforthwith or on such other day as the Court may fix.
Once the case has been fixed for ex-parte trial against a defendant fordefault, the Court may if the plaintiff consents, but not otherwise, setaside any order made on the basis of the default of the defendant, and
CAWijesekra V. Wijestkera()l
(Wimalachandra J.)
permit him to proceed with his defence as from the stage of default (Section86(2A) of the Civil Procedure Code)
Accordingly, it is to be seen that, under Section 86(2A) it is only if theplaintiff consents and not otherwise the Court can set aside an order madefixing a case for ex-parte hearing against a defendant. A Court cannotoverride the express provisions of the Civil Procedure Code.
In the case of Karunaratne et al t/s. Mohideen et aln>. Howard, C. J.said it is ony in cases where no specific rule exists, the Court has thepower to act according to equity, justice and good conscience.
In the case of FernandoVs. Sybil Fernando'andothers Dr. Amerasinghe,J made the following observations with regard to the importance of procedurallaw:
“Admittedly, Courts of law are concerned with ensuring justice accordingto law; however, in my view, civil procedure law cannot be consigned toa place of inferiority as being merely technical and therefore relativelyunimportant or as serving no other purpose than conveying a particularlitigant in a safe, expeditious and economical manner on his way to thefair resolution of his dispute by a Court of Law. To consign civil procedurallaw to a place of inferiority and to regard it as something unimportant,or antithetical to the substantive law is erroenous"
Then at page 13 he said :
“The concept of the laws of Civil Procedure being a mere vehicle inwhich parties should be safely conveyed on the road to justice ismisleading, for it leads to the incorrect notion that the laws of CivilProcedure are of relatively minor importance, and may therefore bedisobeyed or disregarded with impunity.”
It is to the best interest of the administration of justice that judgesshall not ignore or deviate from the procedural law and decide matters onequity and justice as Dr. Amerasinghe J. pointed out in the aforesaid caseof Fernando vs. Sybil Fernando and others (Supra). He said at page 16
“If the laws and customs you have to administer are wrong, it is for theParliament to put them right – not for the Judges”
62Sri Lanka Law Reports(2005) 1 Sri L. R.
In the circumstances it is my considered view that in the instant casethe learned Judge was wrong when he ignored the provision in Sections84,85,86(2) and 86(2A) of the Civil Procedure Code and allowed the 1 stand 2nd defendants to participate in the proceedings in the midst of an ex-parte trial against them
It is only after the ex-partedecree has been served on the defendantsthat they can make an application under Section 86(2) of the Civil ProcedureCode by way of petition and affidavit to set aside the ex-partedecree. Anex-parte order made in default of appearances of a party will not be vacateduntil he makes an application under Section 86(2) of the Civil ProcedureCode, and purges the default.
For these reasons, we set aside the impugned order dated 04.12.2002made by the learned Additional District Judge and direct the learned Judgeto proceed with the ex-parte trial against the 1 st and 2nd defendants. Theappeal is accordingly allowed. We direct the 1 st defendant-respondent topay the plaintiff a sum of Rs. 1,050 as costs.
The Registrar of this Court is directed to return the record of this caseforthwith to the District Court of Galle so that the parties could complywith the aforesaid direction.
AMARATUNGA, J.—I agree.