Sharma J (delivering oral judgement):

This is an appeal against the order of the learned president refusing the application of the first defendant to set aside the order made against him on 6 January 1970 in his absence for reasons of the first defendant's illness. The summons was filed on 24 November 1969 and the first returnable date mentioned in the summons was 6 January 1970 itself. The first defendant filed his defence on 18 December 1969 and in his defence raised questions of the competence of the plaintiff to file the action because the action was filed by her attorney and not by her personally. The first defendant alleged that the plaintiff was at all material times and at the time of the filing of the action a resident of Malacca. Order 5 r. 7 of the Subordinate Courts Rules deals with the matter, The other line of defence was under the Moneylenders Ordinance. In fact the plaintiff in the statement of claim admitted that she was a licensed moneylender and the transaction with the defendants was a moneylending transaction.

The action came up for mention on 6 January 1970. At that time the second defendant had not been served and when the case was called the first defendant was absent. The learned president acting under the provisions of O. 19 r. 3(1)(b)(i) of the Subordinate Courts Rules entered judgment for the plaintiff. On 13 January 1970 the first defendant made an application to the Court to set aside the order of the learned president made on 6 January 1970 and in support of his application filed an affidavit to the effect that he was suffering from flu and fever on 6 January 1970 and for that reason could not attend the Court at 9 a.m. Other grounds showing the merits of his defence were also disclosed in the affidavit. This application came up for hearing on 17 February 1970 when the first defendant appeared through his Counsel and the medical certificate Exh. P1 was produced. After hearing, the Counsel for the first defendant the learned president asked the plaintiff who seems to have only orally objected to the application and on that oral objection by the plaintiff (without any affidavit filed by him and without making any request to crossexamine the first defendant on his affidavit) the learned president dismissed the first defendant's application. In his grounds of judgment all he says is:

In my opinion the reasons the defendant (1) gave were not sufficient to set aside the former order. If defendant (1) was really sick how was it possible for him to come to Court later the same day. For this reason I dismissed the defendant (1)'s application.

All that the first defendant said in his affidavit was that he reached the Court late and could not be present in Court at 9 a.m. on 6 January 1970 as he had gone to obtain a medical certificate from a medical practitioner and that by the time he arrived in Court at 10 a.m. he was informed that the plaintiff had already obtained judgment in default against him. The second defendant had not on 6 January 1970 been served and in my view it could not have in any way advanced the interests of justice if the default judgment given on 6 January 1970 was not sit aside. The promissory note in question which was the basis of the plaintiff's claim is alleged to have been signed by both the defendants. The interests of justice might have been better served if the action was heard after the second defendant had also filed his defence. Under the provisions of O. 19 r. 3(3)

any judgment or order given or made in the absence of a party may, on his application and if good reason for such absence is shown, be set aside and the proceedings may be reheard upon such terms as to costs or otherwise as the Court shall think fit.

The rule requires that a good reason should only be shown and all that the first defendant said was that he reached the Court late because of his sickness. The mere fact that a person is suffering from flu or fever does not mean that he is not able to