WALTER NUTTER & Co. v. MOHAMMADU LEBBE.

WALTER NUTTER & Co. v. MOHAMMADU LEBBE.

D. C., Colombo, 13,813.

Default of filing answer - Purging of default and tender, of answer - Placing of defendant on terms.

The illness of the defendant is no excuse for his proctor not preparing or filing an answer in time. To justify the acceptance of an answer after its due date, it should be proved that the defendant was so ill that he could not attend to business or see his proctor.

Where the explanation of the delay is unsatisfactory, it is competent for the Court to place the defendant on terms, and in failure thereof to hear and dispose of the case ex parts.

THIS action was instituted for the recovery of Rs. 2,416 said to be due by the defendant to the plaintiff on shipments of certain goods which the defendant had undertaken to consign to the plaintiff in consideration of moneys advanced to the defendant on the footing of an agreement set forth in the plaint.

The summons were made returnable on the 31st July, 1900, on which day time was allowed to defendant to file answer on the 13th August. On the 13th August the time was extended to the 16th. On the 16th the court ordered the case to be called the next day. On the 17th the court recorded as follows:-"Case " called; answer due yesterday. No answer filed. Mr. Vander-straten produces a motion for an extension of time to file " answer, consented to by Mr. Narayanaswamy, who is not the " proctor for the plaintiffs and who is not in Court. Motion " disallowed. Case fixed for ex parte trial on the 7th September "

On the 7th September the defendant endeavoured to purge his default to answer by submitting an affidavit and tendered an answer for acceptance, and moved that case be fixed for trial.

Counsel for plaintiff consented to defendant's motion, provided the defendant gave security for the amount of the plaintiff's claim.

The District Judge ordered as follows:-"The defendant's motion cannot be allowed except on terms. The defendant to give security for Rs. 2.500 on or before the 14th instant. On  his giving security his motion will be accepted and the case fixed for trial. If the defendant does not comply with these terms, the case will be heard ex parte on the 14th instant. The defendant to pay the plaintiff the costs of this discussion."

Defendant appealed against that part of the order requiring security to be given, and ordering the case to be fixed for trial ex parte in case security was not given.

Bawa, for appellant.-The order as regards security appears to have been made under section 706 of the Civil Procedure Code, but the present action is not under chapter 53 of the Code. The order cannot be justified, nor would section 86 support such an order. If the judge was not satisfied with the explanation given in the affidavit of the defendant's proctor, he might have refused to accept the answer tendered, but here he agreed to accept it on terms which shows that he was satisfied with defendant's explanation as to the delay in filing answer. If the explanation be held good, the defendant ought to have been allowed to file answer unconditionally.

De Saram, for respondent.-The reasons given in the affidavit were not satisfactory. Hence the imposing of the terms. If the judge were satisfied, he would have granted another extension of time to file answer under section 74 (Silva v. Babahamy, 1 N. L. R. 145). Neither the affidavit of the defendant's proctor nor the medical certificate produced satisfactorily account for the delay.

Bawa replied.

Bonser, C.J. -

This is an appeal from an order of the Acting District Judge of Colombo refusing an application for extension of time to file answer except upon certain terms, the terms being that the defendant should give security for the amount of the claim. The action was commenced on the 3rd July of this year. The defendant appeared on the 31st July, and the 13th August was fixed as the date on which he w

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