PREMA KUMARA PERERA

Vs.

PEOPLE'S BANK

SUPREME COURT
BUWANEKA ALUWIHARE, PC.J
UPALY ABEYRATHNE.J
K.T. CHITRASIRI.J
SC/APPEAL/69/2007
CALA/283/2003
DC COLOMBO NO.1 9597/MR
05.12.2016

Civil Procedure Code Section 87(3) - Plaintiff absent and Unrepresented - Vacate order - Purge Default - Substitution - Wrong court - Wrong date - Section 395 CPC - Locus Standi.

This is an appeal from the Judgment of the Court of Appeal, by which the judgment of the District Court was set aside. Court of appeal granted leave to appeal to the Supreme Court.

Action instituted in the District Court to recover a sum of Rs. 9,700,000/-. Answer filed by Respondent bank. On trial date both plaintiff and counsel absent. Action of plaintiff dismissed. Thereafter plaintiff made an application to purge default.

On 19.9.2000, the learned Additional District Judge sitting in Court No.02 delivered an order fixing the matter for 1.12.2000, and on that date refixed for trial on 2.4.2011 as Attorney for Plaintiff was not well. On 2.4.2001 Attorney - at - law for plaintiff was in court No, 02 but the case not called. Having checked the list, case had been called in Court No. 3 and found that plaintiffs case was called and dismissed for want of Appearance. Respondent filed statement of objection and thereafter matter was fixed for inquiry. On the date of inquiry again plaintiff absent and unrepresented plaintiff filed a 2nd application to vacate the order of dismissal.

Subsequently an affidavit was filed to substitute K.M.C. Perera in place of Appellant as the Appellant had died.

HELD:

1. The matter before the District Court was the Application for Substitution. Nevertheless, the learned Additional District Judge, without considering the application for substitution, has dealt with the order of dismissal of the case without giving the opposing party an opportunity to present their objections to the application to purge default.

2. On the other hand, as I mentioned above, the Appellant's application to vacate the said order dated 02.04.2001 had already been dismissed by the learned Additional District Judge of the same court, by the order dated 02.07.2002. as the Court of Appeal has correctly observed, the District Court lacks jurisdiction to deal with the said order dated 02.04.2001, an order which was dealt with by the order dated 02.07.2002.

Separate Judgments pronounced by K.T. Chithrasiri J. as follows;

1. Section 187 is the Section in which the requisites of a judgment are found. Certainly, such a pronouncement would decide the rights of the parties in a conclusive manner. When such a judgment is delivered by a competent court, the party who is aggrieved by that should be able to file an appeal, as a right. Indeed, this right is guaranteed under the aforesaid Section 88(2) of the Code as well, by having it included the words "shall be liable to an appeal" at the end of that section. Accordingly, it clearly removes any misconception with regard to the appeal ability of an order made under Section 87(3).

2. As mentioned earlier in this judgment, the decision made on 02.07.2002 is an order made pursuant to an application made under 87(3) of the Code. Section 88(2) stipulates that such an order shall accompany a judgment and it is liable to an appeal being filed. Therefore, the decision on 02.07.2002 clearly falls shall follow the appellate procedure referred to in Chapter LVIII of the Civil Procedure Code. Admittedly, the plaintiff has failed to follow the said procedure found in the said Chapter LVIII of the Civil Procedure Code.

3. As mentioned above, the plaintiff has failed to follow the procedure stipulated in the Civil Procedure Code when she challenged the order made in terms of Section 87(3) of the said Code. I believe it is a serious violation of the procedure and should not consider it as a mere technicality. This is because this particular