GUNERIS & ANOTHER

GUNERIS & ANOTHER
VS.
 WILLIAM & OTHERS

COURT OF APPEAL
H.N.J. PERERA.J
DC AVISSAWELLA 20328/L
JANUARY 13, 2014
APRIL 29, 2014

Civil Procedure Code Section 86(2) - Exparte - Reasonable grounds - on whom lies the burden?

Held:

(1) Section 86(2) makes it manifestly clear that the Defendants should file the application with notice to the Plaintiff within 14 days of service of Decree.

(2) The Defendant should satisfy Court that they had reasonable grounds for such default.

Per H.N.J. Perera J.

The onus lies on the defaulting party seeking to purge default to satisfy Court by giving or leading evidence why he or she failed to appear in Court.

(3) An Exparte order made in default of appearance of a party will not be vacated if the affected party fails to give a valid excuse for his default.

APPEAL from a judgment of the District Court of Avissawella.

Cases referred to:

1, David Appukamy us Yassassi Thero- 1987 (1) SLR 153 Buddhika Gamage for the Defendant - Appellant Mihiri Abeyratne for the Plaintiff- Respondent

June 24th, 2014
H.N.J. PERERA, J.

This is an appeal from the order of the learned District Judge of Avissawella dated 17.05.1999 refusing to set aside the judgment entered upon the default of the Defendant-Appellants. When the case was called on 29.09.1997 the Defendants were not present in Court and also failed to tender the answer. Ex-parte trial against the Defendants was fixed and ex-parte trial against the Defendants was held on 23.03.1998 and the judgment entered.

Consequently an application was made by the Defendant-appellants to vacate the judgment dated 23.03.1998 and to re-fix the case for trial on grounds pleaded in the affidavit. After inquiry the learned District judge dismissed the said application of the Defendants to vacate the judgment entered on 23.03.1998. Aggrieved by the said order of the learned District judge the Defendant-Appellants had preferred this appeal to this Court.

The position of the Defendant-Appellants at the inquiry before the learned District judge was that they did not receive summons from the courts, and farther pleaded that summons had been given to a woman in the village while they were away from the village.

By the impugned order the learned District judge had dismissed the application of the defendant-appellants to vacate the ex-parte order. The learned District judge having examined the evidence led on behalf of the defendant-appellants rejected the application of the defendants stating that the evidence given by the witnesses is contradictory and that the court cannot believe the evidence given by them as true.

The 1st defendant-appellant giving evidence had stated that summons was brought to him by the 2nd defendant stating that it was given to him by a woman in the village and he did not know the name of the woman and she will not be called to give evidence. Suneetha Gunatunga who is said to be the wife of the 2nd defendant-appellant giving evidence stated that the Fiscal of the District Court of Avissawella gave summons to her to be given to the 1st and 2nd defendant on a date which she cannot remember. The 2nd defendant had stated that he too had gone out of the village and he received summons from his wife only after he returned.

It is clearly seen that there is no consistency in the evidence given by the defendants and the witness. The plaintiff-respondent had summoned the fiscal of the District Court of Avissawella to give evidence and the fiscal had stated that he delivered summons to the defendants themselves. It is clear from the order of the learned District judge that he accepted and was impressed by the evidence of the fiscal who stated that he had personally delivered the said summons to the 1st and 2nd defendants.

Section 86(2) of the Civil Procedure Code makes it manifestly clear that the defendants have to file application with notice to the plaintiff within 14 days of the service of the decree

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