BRAMPY v. PERIS.

BRAMPY v. PERIS.

D. C., Colombo, 9,016.

 

Ex parte trial-Notice to defendant in default-Right of defendant to cross-examine at ex parte trial-Evidence-Adjournment.

Where a defendant takes time to answer but fails to answer on the appointed, day, the Court may fix the case for ex parte hearing. At such hearing the defendant has, under the Civil Procedure Code, no right to cross-examine the plaintiff or his witnesses.

If the Court is dissatisfied with the evidence adduced at an ex parte trial it should, in an order, point out in what respects the evidence already recorded is defective mid then adjourn either to a day named or sine die. The plaintiff may put the cause on the roll when he is able to supplement the defective evidence.

THE land which formed the subject of dispute in this case was bequeathed by a husband and wife to Peris and Juan. After the death of the testators their executor entered into possession of the land and sold the same to the plaintiff, for the purpose of defraying the expenses incurred by the executor in proving the will. After the sale the plaintiff was put in possession, but Peris ejected him from the land and cultivated it on the strength of his title as legatee. The plaintiff now sued Peris in ejectment, praying for a declaration of title.

On the returnable day of summons the defendant obtained time to file answer, but he failed to file it, and the case was fixed, for ex parte hearing on the motion of the plaintiff.

At the ex parte hearing the defendant appeared and cross-examined the plaintiff and his witnesses. The District Judge, after referring to the proceedings in the testamentary case, declined to uphold the sale to the plaintiff by the executor and dismissed his action.

The plaintiff appealed.

Morgan, for appellant.

26th October, 1897. Lawrie, A.C.J.-

The defendant appeared by a proctor in the District Court, and of consent he got time till the 16th August to file answer.

He failed to do so.

On 18th August, on plaintiff's motion, a day was fixed for the ex parte hearing, of which notice was given by the Court to the defendant.

Why this notice was given I do not know.

Of course a defendant who has not answered may, like all the rest of the world, attend a public court, but he has no right to take part in an ex parte hearing.

If he is cited and takes part the hearing ceases to be ex parte and becomes inter paries.

I am aware that in proceedings under the old Rules and Orders of 17th June, 1844, the practice was to allow a defendant in default to cross-examine the plaintiff and the witnesses at an ex parte trial (see obiter dicta in the cases reported in Austin, p. Ill, and 1 Lorenz, p. 170), but I am not prepared to concede that these cases are of authority in interpreting our Code.

In my opinion the defendant ought not to have been allowed to cross-examine at the ex parte hearing: I am of the opinion that he must adduce some proof. He must make out a fair prima facie case. I wonder why in such cases the plaintiff does

not more frequently call the defendant, (and from his lips get an admission of indebtedness; but whatever be the evidence it must be sufficient to satisfy the Judge, who is not bound to give a decree until he is satisfied. If he is dissatisfied, he should in an order point out in what, respects the evidence already recorded is defective and then adjourn either to a day named, or sine, die.

The plaintiff may put the cause on the roll when he is able to supplement the defective evidence.

In this case the plaintiff proved he had paper title; the objections to that title could not be tried until pleaded by the defendant, who was wilfully in default.

I am of opinion that the dismissal of this action was wrong. I would set aside and remit to the District Court to pass a decree nisi of which the defendant is entitled to notice by section 85.

These are ex parte proceedings. The plaintiff must bear his own

Click Here to Read the rest of this document