IRANGANIE DE SILVA AND OTHERS

IRANGANIE DE SILVA AND OTHERS

Vs.

INDRALATHA

SUPREME COURT
PRIYASATH DEP P.C., J-
S. EVA WANASUNDERA P.C, J.
SISIRA J.DE ABREW J.
PRIYANTHA JAYAWARDENA P.C, J.
UPALY ABEYRATHNE J.
ANIL GOONERATNE J.
K.T.CHITRASIRI.J.
SC APPEAL No. 200/ 2015(DB)
SC/HC/CALA/192/2015
WP/ HCCA/ COL/ 83/ 2014
DC COLOMBO DLM/93/2013
06.10.2016.

Civil Procedure Code Section 86 (2), Section 87 and 88 - Order - Judgment under Section 86 (2) - Direct Appeal or Appeal with leave - Is it a judgment or an order ?

Plaintiff - Respondent - Respondent - Respondents - Appellants (hereinafter referred to as Plaintiffs) filed action against the Defendant - Respondent and sought a declaration of title / ejectment and damages. Plaintiff also sought an interim relief, to maintain the status quo. Subject matter of the suit was a land in extent of 3.75 perches, at Colombo 15. District Judge granted an enjoining order and an interim injunction. It prevents the Defendant from changing the status quo of the property. Defendant was absent on that day and no application was made on behalf of Defendant, the trial Judge fixed the case for ex-parte trial. The judge after ex-parte trial entered judgment as prayed for in the plaint.

Defendant made an application to purge default as per Section 86 (2) of the Civil Procedure Code. After inquiry application to purge default was dismissed, by order dated 09.05.2014.

The Defendant - Respondent filed a "notice of Appeal" against the said order. Plaintiffs position was that pursuant to an order under Section 86 (2) of the Code the correct remedy was by way of an application for leave to appeal, according to the judgment in Chettiar vs. Chettiar.

The Civil Appellate High Court delivered order in respect of the matters suggested above. That court arrived at the following determination.

(a) In terms of Section 88 (2) only a final appeal lies under Section 754 (1) in seeking to challenge an order under Section 86 (2) of the Code.

(b) This is confirmed in the judgment of Sangarapillai vs. Kathiravelu.

(c) That there is no reference to Section 87 and 88 in the judgment of Chettiar v. Chettiar.- Chettiar's case is not applicable. Special Leave being granted. Matter was supported for a Divisional Bench.

Held:

1. There is no ambiguity whether the decision under Section 88 (2) is an interlocutory order or a final order because the section clearly states that it is subject to an appeal. It is not an arguable point as it is. Precisely it can be recognized as a final order.

A decision made by court after holding an inquiry into purging the default held under Section 86 (2) does not in any way attract any necessity to decide whether it is an interlocutory order or a final order. Sections 86 and 88 do not refer to any general order to be made. It is a specific decision from which parties can file an appeal because it is so mentioned in Section 88 itself. The Civil Appellate High Court judges have analysed the provisions of the Civil Procedure Code very carefully and held against the Plaintiff - Appellant in this instance.

2. In 1987, the Court of Appeal held in Wijenayake vs. Wijenayake that "Section 88 (2) states that the order setting aside or refusing to set aside the judgment entered upon default shall be accompanied by a judgment adjudicating upon the facts and specifying the grounds upon which it is made and shall be liable to an appeal to the Supreme Court "....................The right of appeal is given by the words shall be liable to appeal'. Thus one cannot conceive it to be an order to appeal from which leave from the Supreme Court should be first had and obtained as set out in Section 754 (2). The remedy sought is therefore misconceived."

There is no merit in the arguments made by the counsel for the Plaintiff - Appellants submitting that the Defendant - Respondent

should have filed a Leave to Appeal Application and not a

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