IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Senanayake Arachchilage Chandana Sarath Kumararathna, No. 302/01, Aluthwela, Karalliyadda, Theldeniya.

Plaintiff SC Appeal No: 90/2021 SC (HCCA) LA No. 385/2020 CP/HCCA/FA/191/2018 DC Kandy Case No. DMR/1641/09 Vs.

Sri Lanka Insurance Corporation, Rakshana Mandiraya, No. 21, Vauxhall Street, Colombo 02.

Defendant AND BETWEEN Senanayake Arachchilage Chandana Sarath Kumararathna, No. 302/01, Aluthwela, Karalliyadda, Theldeniya.

Plaintiff- Appellant Vs.

Sri Lanka Insurance Corporation, Rakshana Mandiraya, No. 21, Vauxhall Street, Colombo 02.

Defendant-Respondent AND NOW In the matter of an application for Leave to Appeal in terms of Section 5C of High Court of the Provinces (Special Provisions) (Amendment) Act No. 54 of 2006, against the Judgment of the High Court of the Central Province (Civil Appeal) dated 18/11/2020.

Sri Lanka Insurance Corporation, Rakshana Mandiraya, No. 21, Vauxhall Street, Colombo 02.

Defendant-Respondent-Petitioner Vs.

Senanayake Arachchilage Chandana Sarath Kumararathna, No. 302/01, Aluthwela, Karalliyadda, Theldeniya.

Plaintiff- Appellant-Respondent Before: Justice P. Padman Surasena Justice A.L. Shiran Gooneratne Justice Mahinda Samayawardhena Counsel: Chandaka Jayasundere, PC with Tharindu Rajakaruna instructed by Manjula Jayathilake for the Defendant-Respondent-Petitioner.

Nilshantha Sirimanne with Shalomi Daniel for the Plaintiff-

Appellant-Respondent.

Argued on: 10/11/2022 Decided on: 05/07/2023 A.L. Shiran Gooneratne J.

By Plaint dated 08/06/2009, the Plaintiff-Appellant-Respondent (hereinafter referred to as the Plaintiff) filed this Action No. DMR/1641/09 in the District Court of Kandy against the Defendant-Respondent-Appellant (hereinafter sometimes referred to as the Defendant or Defendant company) and sought to recover a sum of Rs. 1,151,350/- together with interest based on a contract of insurance relating to Motor Vehicle No. CPGC 4672 against the said Defendant. The Defendant by Answer dated 27/08/2010, denied the said claim based on failure on the part of the Plaintiff to act in utmost good faith and sought a dismissal of the Plaintiffs action.

The said action was mentioned in the District Court on 28/01/2011 and was fixed for trial on 22/06/2011. Thereafter the respective parties filed list of witnesses and documents prior to the said date of trial, according to law.

When the said action was taken up for trial on 22/06/2011, the Defendant company was unrepresented and on default of appearance on the date fixed for trial, the Court made Order to proceed to hear the case ex-parte against the Defendant. The Court after hearing some evidence for the Plaintiff on the same day, put off the hearing for 29/11/2011. When the case was taken up on 29/11/2011, the Counsel representing the Defendant company gave no reasons for the default in appearance of a representative of the Defendant company or the Registered Attorney on the first date fixed for trial. However, a verbal application was made to vacate the said Order for ex-parte trial on payment of costs, and to permit the Defendant company to defend the said action. The Court refusing to grant the said application proceeded with the evidence already recorded. At the conclusion of the hearing, the learned District Judge by Order dated 05/11/2014 held with the Plaintiff and granted the reliefs as prayed for in the Plaint and an ex parte decree was entered accordingly.

Being aggrieved by the said Order, by Petition dated 02/04/2015, the Defendant made an application in terms of Section 86(2) of the Civil Procedure Code seeking to vacate the said ex-parte Judgment and the decree entered in favor of the Plaintiff.

The instructing Attorney for the Defendant company, Chandani Wijayaratne filed affidavit dated 02/04/2015 and stated inter alia, that due to a bona fide mistake the date of trial was mistakenly taken down as 22/07/2011 as opposed to 22/06/2011. While asserting that the recording of a wron