Present: Wood Renton J.    July.14,1911

KANDAPPA v. MARIMUTTU.

179-C. R. Batticaloa, 15,872.

Court of Requests-Defendant absent-Statement by proctor that he had no definite instructions-Judgment by default-Civil Procedure Code, e. 823 (2).

In an action in the Court of requests to recover a sum of money, the defendant was absent at the date of trial. The defendant's proctor, who did not come to Court solely for the purpose of the trial, but who was in Court when the roll for the day was called, in connection with other cases as well, mentioned, when the case was called, that the defendant had asked him to appear in the case, but had given him no definite instructions. The Commissioner therefore gave judgment for the plaintiff, treating the case as one in which there was default of appearance on the part of the defendant.

Held, that the Commissioner was right.

Wood Renton J.-It appears to me that cases of this kind turn very largely on questions of fact, and it is not desirable, nor do I propose to attempt, to lay down any general rule in disposing of the appeal.

THE facts appear sufficiently from the judgment.

Vernon Grenier, for the defend