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 in