IMAM V. PETER AND OTHERS

IMAM V. PETER AND OTHERS

COURT OF APPEAL
BASNAYAKE. J.
CHITRASIRI. J.
CALA 492/2006
DC KURUNEGALA 6653/L ,

Civil Procedure Code - Section 84, Section 86, Section 839 - Vacation of ex parte decree with consent of parties - Legality? - Trial fixed - Return of commission after trial date - Legality? - Inherent Power of Court to prevent abuse.

The Court fixed the case ex parte against the 1st defendant and after hearing, judgment was delivered. The 1st defendant brought to the notice of Court that the Court has issued a commission for a date beyond the trial date, at the instance of the plaintiff, and as the trial cannot be ready until the commission is executed, the Court should have cancelled the trial date. The Court with the consent of the plaintiff vacated the ex parte judgment and allowed the commission returnable date to stand.

The plaintiff sought to have the order vacating the ex parte order set aside on the basis that Court has no jurisdiction to vacate an ex parte decree with the consent of parties. The plaintiff contended that the procedure laid dawn under Section 86 should have been followed.

Held

(1) Section 86 (2) - procedure should apply under normal circumstances. However there is no particular Section that the Judge could refer to a situation like the case under consideration.

Per Eric Basnayake. J"

The Court had used its inherent power to prevent abuse of the process of Court. It was the plaintiff who tried to abuse the process of Court. The date was changed to benefit the plaintiff. The same benefit the plaintiff made use of was to the disadvantage of the defendant. That was prevented by Court through the use of its inherent power. The Court acted with a sense of justice. Then Court need not have obtained the consent of the plaintiff. The fact of the plaintiff placing his signature on the record can be disregarded"

cases referred to:
1.    Jeyaraj Fernandopulle v. De Silva and others - 1996-1 Sri LR 70
2.    Jane Nona v. Jayasooriya - 1986 1 CALR 315
3.    Sirivasa Thero v. Saddassi Thero - 63 NLR 31
4.    Seneviratne v. Francis Fonseka Abeykoon -1986-2 Sri LR 1
5.    Sivapathalingam v. Sivubramniam - 1990 - 1 Sri LR 378
6.    Wijesekera v. Uhivita - 34 NLR 362 at 364
7.    Eswaralingam v. Sivaganasunderam - 64 NLR 396

APPLICATION for leave to appeal from an order of the District Court of Kurunegala.

Mahanama de Silva for plaintiff-petitioner

Asoka Fernando - defendant-respondent

Cur. adv. vult

June 24th, 2009

ERIC BASNAYAKE J.

The plaintiff - petitioner (plaintiff) filed this action on 27.3.2006 against the 1st and 2nd defendant-respondents (defendants) for a declaration of title and ejectment. The defendants filed proxy on 12.4.2006 and the answer on 2.5,2006. Thereafter the case was fixed for trial (and inquiry with regard to an injunction application) for 17.7.2006. On 17.7.2006 the 1st defendant was present. The 2nd defendant was absent. The Attorney-at-law stated to Court that no instructions were received from the 2nd defendant. The Court fixed the case for trial against the 1st defendant and ex-parte trial against the 2nd defendant for 6.11.2006. On 25.7.2006 the plaintiff's Attorney-at-law filed a motion with notice to the defendants and their Attorney-at-law to have the case called on 3.8.2006 to get a commission issued for a surveyor to

draw up a plan. On 3.8.2006 the plaintiff and the defendants were represented and the Court had issued a commission returnable on 14.12.2006. No one brought it to the notice of  the Court that the trial was fixed for an earlier date ,namely, 6.11.2006.

    The case was called on 6.11.2006. On this day the plaintiff was present. The defendants were absent and unrepresented. The Court fixed the case ex-parte and after hearing, judgment was delivered. On 15.11.2006 the Attorney-at-law for the, 1st defendant filed a motion with notice to the plaintiff and the 2nd defendant to have the case

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