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REV. SUMANATISSA
vs
HARRY

COURT OF APPEAL
ROHINI MARASINGHE. J.
SARATH DE ABREW. J.
CA 959/95 (F).
DC EMBILIPITIYA 2930.
FEBRUARY 27, 2009.
MARCH 30, 2009.

Civil Procedure Code Section 87 (1) (2) (3) - Plaintiff absent - Trial date -Application to purge default - Reasonable time - reasonable grounds for non appearance - liberal approach? - Subjective approach? - Record the presence of parties - vital?

The plaintiff-appellant instituted action seeking inter alia for a judgment to eject the defendant - respondent. As he was absent on the trial date, the action was dismissed. The plaintiffs application to purge the default was also refused.

Held:

(l) On an analysis of section 87 (3) of the Code the limiting factors would be that the application to restore should be made within a reasonable time and the plaintiff should satisfy Court that there were reasonable grounds for non appearance.

In the instant case the application to purge the default was made within a reasonable time of 19 days.

(2) The legislature in its wisdom had not set a rigid deadline as to what period of time should construe within a reasonable time. This is a clear indication that in interpreting Section 87 (3) Court must use the yardstick of a subjective test rather than a less flexible objective test in determining what is reasonable.

Per Sarath de Abrew. J:

"Applying this liberal approach in determining whether the plaintiff has satisfied Court in adducing reasonable grounds for non appearance.

in my view, where necessary, Court is not precluded from having recourse to other salient feature in the case in hand to determine whether the plaintiff exhibited blatant and willful default, which features would perhaps tilt the balance in favour of the plaintiff. Special attention may be given to the past history of the case with the past conduct of the defaulter and his opponent being subject to scrutiny..,."

(3) In applying the subjective test as to whether the plaintiff afforded reasonable grounds for his non-appearance, in the absence of any evidence to establish willful default and taking into consideration the past history as to the conduct of parties the unchallenged averments in the affidavit of the plaintiff-the evidence on oath of the plaintiff - the old age, infirmity and the status of the plaintiff and the unlikelihood of the plaintiff inventing the story as to the trip to Colombo, any doubt arising out of the above should have been redressed in favour of the plaintiff.

Held further:

(4) Where the trial Judge proceeds to dismiss the action of the plaintiff due to his non-appearance there is an implied duty cast on him to record in the journal as to the presence or absence of the defendant. The trial Judge has failed to give due consideration to this important aspect which would have had a vital bearing on the outcome of the inquiry under Section 87 (3).

(5) It may well be that the plaintiff may have been negligent in not ensuring that his lawyer appeared in Court, and informed Court of his illness. Negligence may in certain circumstances constitute reasonable grounds within the meaning of Section 87 (3).

APPEAL from a judgment of the District Court of Embilipitiya.

Cases referred to:-

(1) Chandrawathie vs. Dharmaratne 2002 1 Sri LR

(2) CALA 154/91 DC Colombo CAM 3.10.1991

P. L. Gunawardene with K. W. E. Karaliyadda for substituted plaintiff - appellant.

P. Peramunagama for defendant - respondent.

Cur.adv.vult.

July 7, 2009

SARATH DE ABREW, J.

The plaintiff-appellant (now deceased) had instituted action in the District Court of Embilipitiya seeking, inter alia, for a judgment to eject the defendant-respondent from the premises in suit which is more fully described in the schedule to the plaint. The defendant-respondent (hereinafter sometimes referred to as the Respondent) filed answer and the trial commenced on 28.10.93 and the part

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