117-NLR-NLR-V-61-WIJESUNDRA-Appellant-and-WEERAWADIWAKARA-Respondent.pdf
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1959Present: Basnayake, C.J., and Sansoni, J.WIJESDJSTDERA, Appellant, and WEERAWADIWAKARA,
Respondent
5. G. 112 {Inty.)—D. O. Galle, 1808/S
Liquid clairr^—Summary procedure—Time limit for obtaining leave to appear anddefend—Civil Procedure Code, ««. 704 (1), 707.
In an action by summary procedure on a liquid claim, if the defendant doesnot obtain leave to appear and defend within the time prescribed in the summonsserved on him, the Court has no power to grant an extension of the time, ^nij isbound under section 704 of the Civil Procedure Code to grant a decree in favourof the plaintiff.
A.PPT7.AT, from an order of the District Court, Galle.
N. E. Weerasooria, Q.G., with M. L. S. Jayasekera, for Pl&intiSf-Appellant.
Hannan Ismail, for Defendant-Respondent.
BASKA.YAKS, C.J.—Wijesundera v. Weerawadiwakara
471
October 7, 1959. Basstayakb, C. J.—
This is an action instituted under Chapter LIU of the Civil ProcedureCode for the recovery of a sum of Us. 1,880 due or a cheque for a sum ofRs. 2,000 which has been dishonoured by the Bank. The plaintiff aversthat Rs. 120 of that sum has been paid by the defendant. With the plaintthe plaintiff filed an affidavit and the learned District Judge made thefollowing order:
" The defendant to appear and obtain leave of Court to defend theaction within seven days of the service of summons on him. ”
The summons was served on the defendant on 13th August 1958. Thesummons reads as follows ;
“ Whereas the above-named plaintiff has instituted an action againstyou in this Court under Chapter LIU of the Civil Procedure Code forRs. 2,000 less Rs. 120 paid being balance principal due to him or chequeA/l 67297 of 12.2.57 of which a copy is hereto annexed. You arehereby summoned to obtain leave from the Court within seven daysfrom the service hereof inclusive of day of such service to appear anddefend the action and within such time to cause an appearance to beentered for you. In default whereof the plaintiff will be entitled atany time after the expiration of such seven days to obtain a decree forany sum not exceeding Rs. 1,880 and the sum of Rs. 105/90 for costs. ”
This summons is in the prescribed form No. 19 in the First Scheduleto the Civil Procedure Code. On 21st August the defendant was absentalthough the summons had been served on him. On that day the proxyof the defendant was filed with his affidavit and the defendant’s proctorcontended that the defendant was within time, while the plaintiff’sproctor contended that the defendant was not within time. The casewas then fixed for inquiry for 23rd October. In his affidavit the defen-dant did not explain the delay in appearing and obtaining permission todefend the action. At the inquiry counsel for the defendant submittedthat the time given was insufficient for the defendant to appear and obtainleave to defend as he resided outside the jurisdiction of the District Courtof Galle, about 60 miles away from Oalle, and he asked for an extensionof time. He farther submitted that it was in the discretion of the courtto grant an extension of time and he relied on the case of UlaganathanGhetty v. Yavassa ei cd. x. The learned District Judge held that by virtueof that decision he had the discretion to extend the time for the appearanceof the defendant to obtain leave to defend. He also took into account thefact that the defendant was only one day late. It is submitted by counselfor the appellant that the provisions of Chapter Li 11 do not permit thegranting of an extension of the time prescribed in the summons. Section704 of the Civil Procedure Code reads :
“ (1) In any case in which the plaint and summons axe in such formsrespectively, the defendant shall not appear or defend the action unlesshe obtains leave from the court as hereinafter mentioned so to appear
1 [1897) 3 N. L. R. 52.
472
BASNAYAELE, C. J.—Wijesundera v. W eerawadiwakara
and defend ; and in default of his obtaining such leave or of appearanceand defence in pursuance thereof, the plaintiff shall he entitled to adeeree for any sum not exceeding the sum mentioned in the summons,together with interest to the date of the payment, and such costs asthe court may allow at the time of making the decree.”
Except in the case provided in section 707 there is no provision^whichempowers the court to allow the defendant leave to appear anddefend after the date prescribed by the summons. That provisionreads :
“ After decree the court may, under special circumstances, set asidethe decree, and if necessary stay or set aside execution, and may giveleave to appear to the summons and to defend the action, if it seemreasonable to the court so to do, and on such terms as the court thinksfit. ”
In our opinion if a party does not appear within the prescribed timeand obtain leave to appear and defend, the plaintiff is entitled to a decreewhich the court is bound to grant and it is not free to entertain an applica-tion for farther time. It is only after the decree that the defendantcan seek relief under section 707.
Learned counsel for the respondent has referred us to a number ofdecisions of this court in which leave to appear and defend had beengranted after the prescribed time. Those decisions do not appear togive effect to the imperative terms of section 704, bnt take into accountthe circumstances of each case in which the default had occurred. "Weare unable to regard those decisions as authority for the proposition thatunder section 704 a Jndge has power to grant an extension of the timeprescribed in the summons. It is an established rule of constructionthat the court cannot extend the time prescribed by a statute or statutoryinstrument for the performance of any act unless it is so empowered bythat or some other statute (Sulama Levai v. Iburai Naina1). The appealmust therefore be allowed. We accordingly set aside the order of thelearned District Judge and allow the appeal.
We direct the learned "District Judge to enter a decree as provided forunder section 704 of the Civil Procedure Code in favour of the plaintifffor a sum of Us. 1,880 as prayed for in his plaint.
The appellant is entitled to the costs of the appeal.
Sajjsoot, J.—I agree.
Appeal allowed.
1 (2910) Z Current Law Reports 183.