WEERASURIYA VS PERERA

WEERASURIYA
VS
PERERA

COURT OF APPEAL
BASNAYAKE, J.
CHITRASIRI, J.
CA LA 384/2005 (LG),
DC KANDY 62/2004 MS
JUNE 22, 2009.

Civil Procedure Code Chapter LIII - Summary Procedure on liquid claims -Section 703, 704, 706 - Sustainable Defense - Prima facie case - Standard of proof?

The Plaintiff filed action in terms of chapter LIII of the Code - The Defendant sought to file answer without a condition being imposed The Trial Judge refused the said application and directed the Defendant to deposit Rs. 800,000/- as security. The Defendant sought leave to appeal - with leave being granted.

Held:

(1) If the defense taken up by the Defendant is prima facie sustainable then the Court should allow the Defendant to participate in the proceedings unconditionally or if the defense is not prima facie sustainable if the Court feels that there exists a reasonable doubt as to the good faith of such a defence - Court should order him/her to pay into Court the sum mentioned in the summons as security and allow the Defendant to participate.

Per Chitrasiri, J.

"The Learned District Judge should not have expected the Defendant to establish a defence which is capable of proving at the end of the trial but it should be a defence on the face of it reasonable."

(2) The District Judge had in the instant case imposed a duty on the Defendant without addressing his mind on to the sustainability of the defence taken up by her. The decision is based on erroneous reasoning, he has not addressed his mind properly to the complaint made by the Defendant concerning the matters relating to the defence that had been taken up by her from the beginning.

AN APPLICATION for leave to appeal from an order of the District Court of Kandy with leave being granted.

Cases referred to:

(1) Amarasekara VS. Amarasinghe - 1998 3 SLR 253.
(2) C.W. Mackie and Co.Ltd Vs Trans Lanka Investment 2 SLR 6
(3) Anamalay Vs. Allien 2 NLR 25
(4) Ramasamy Chetty Vs Uduma Lebbe Marikkar 5 NLR 310
(5) Rengaswamy Vs. Pakeer 14 NLR 190
(6) Subramaniam Chetty Vs. Kristnasamy Chetty 10 NLR 327
(7) De Silva Vs. De Silva 49 NLR 219 at 223

Muditha Premachandra for the Defendant - Petitioner
Plaintiff- Respondent unrepresented.

Cur.adv.vult.

July 23, 2009.

CHITRASIRI, J

This is an application seeking to set aside an order of the learned Additional District Judge of Kandy delivered on 19.09.2005 Having granted leave on 15.10.2007, this Court fixed the matter for argument. Respondent was absent and unrepresented on the date the matter was taken up for argument even though a notice was dispatched informing him of relevant date.

At the outset, it is pertinent to refer to the facts of this case in brief, The Plaintiff-Respondent (hereinafter referred to as the Plaintiff) filed action in terms of the provisions contained in Chapter LIII of the Civil Procedure Code commonly known as summary procedure on liquid claims Accordingly, in terms of those provisions contained in Chapter LIII, the Defendant-Petitioner (hereinafter referred to as the Defendant) made an application filing a petition supported by an affidavit seeking leave to file answer and to participate in the proceedings without a condition being imposed The District Judge, having gone through the evidence adduced in the aforesaid affidavit and other relevant materials made order refusing the application of the Defendant and directed her to deposit Rupees Eight Hundred Thousand (Rs. 800,000/-) as security in order to participate in the District Court proceedings. It is against the aforesaid order dated 19th September, 2005, the Defendant made this application to the Court of Appeal.

When an application is made in terms of the provisions contained in Chapter LIII of the Civil Procedure Code, it is incumbent on the Defendant to make an application to Court in order to obtain leave of that Court to appear and defend the case The way in which the said leave of court is granted i

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