IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Restitutio in Integrum/Revision in terms of Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Sampath Bank PLC, Carrying out its Registered Office at No. 110, James Peiris Mawatha, Colombo 2.

And carrying out a branch officer at No. 192, Kesbewa Road, Borelesgamuwa.

Plaintiff Vs.

Court of Appeal Application No. CA/RII/16/2022 1. Abeywardane Distributors (pvt) Ltd No. 101/C, DC Nugegoda Case No. Katuwawala, M 2703/2017 Borelesgamuwa.

2. Nimal Abeywardane, No. 101/C, Katuwawala, Borelesgamuwa.

3. Isuru Uthpala Abeywardane, No. 105/E, Ehelape Road, Katuwawala, Borelesgamuwa.

4. Udawaththe Arachchilage Sherine Jasintha Sharmaleen Perera, No. 283/A, Thalawathugoda Road, Mirihana, Kotte.

Defendants AND NOW BETWEEN Isuru Uthpala Abeywardane, No. 115/C, Katuwawala, Borelesgamuwa.

3rd Defendant-Petitioner Vs.

Sampath Bank PLC, Carrying out its Registered Office at No. 110, James Peiris Mawatha, Colombo 2.

And carrying out a branch officer at No. 192, Kesbewa Road, Borelesgamuwa.

Plaintiff –Respondent

1. Abeywardane Distributors (pvt) Ltd No. 101/C, Katuwawala, Borelesgamuwa.

2. Nimal Abeywardane, No. 101/C, Katuwawala, Borelesgamuwa.

3. Udawaththe Arachchilage Sherine Jasintha Sharmaleen Perera, No. 283/A, Thalawathugoda Road, Mirihana, Kotte.

1st, 2nd and 4th Defendant-

Respondents BEFORE : D.N.Samarakoon J Neil Iddawala J COUNSEL : Chathura Galhena for the 3rd Defendant -

Petitioner Chandaka Jayasundara P.C with Vishmi Fernando for the respondent instructed by Sanath Hewavithana Argued on : 18.05.2023 Decided on : 10.07.2023 Iddawala – J This is a revisionary/restitutio in integrum (RII) application by the 3rd defendant- petitioner (hereinafter referred to as ‘the petitioner’) which seeks to set aside the ex- parte judgment dated 22/01/2019 and to set aside the order of the learned District Judge of Nugegoda dated 16/05/2018.

The facts of the case are as follows. The petitioner has been named as the 3rd defendant in the District Court of Nugegoda in the case bearing No. M2703/2017 and the plaintiff-respondent (hereinafter referred to as ‘the plaintiff’) in the instant application was the plaintiff in the said DC case No. M 2703/2017. The petitioner claims that around 03/02/2022 he was informed by the Grama Niladari in the area that there is a document received from court in his name. The petitioner found that the said document was an ex-parte decree of the case bearing No. M 2703/2017. The petitioner states he was totally unaware of the existence of the said case and thereafter requested a certified copy of the case record from the registry of the Nugegoda district court. He further emphasized that there was a delay in obtaining the records due to the extended power cuts in the country. Petitioner states that due to the above reason he was not able to make a purge default application as per Section 86(2) of the Civil Procedure Code (CPC). The petitioner also claims that he was not served summons for the said District Court case and further that the documents considered by the learned District Judge (P9 and P10) are contrary to each other and thereby claims that the ex-parte judgment is bad in law. Thereby the petitioner through this RII application claims to set aside the ex-parte judgment dated 22/01/2019 and to set aside the order of the learned District Judge dated 16/05/2018.

During the submissions made by the learned Counsel for the petitioner, his main arguments were relied on the facts that he did not receive summons for the case No. M 2703/2017 and that the ex-parte judgment by the learned District Judge was relied on two contradicting documents marked P9 and P10. However, the petitioner admitted that he received the final ex-parte decree through the Grama Niladari. Yet it is evident and admitted that the petitioner has not filed purge default applications to the District Court. The learned President’s Cou