Present: Lascelles C.J. and Grenier J.

SCHRADER v. JOSEPH

Court of Requests-Money case-Absence of defendant when case called- Judgment for. plaintiff--Civil Procedure Code, s. 823.

In a Court of Requests, if a plaintiff fails to appear at the proper time, namely, at the hour fixed for trial, or when the case is called on, his action is liable to be dismissed, subject to his right under sub-section (5) to institute a fresh action, if he satisfies the Commissioner that he was prevented from appearing from accident, misfortune, or other unavoidable cause; and in the same way a defendant is liable to have judgment entered by default against him if he does not appear at the appointed time, or when the case-is called on. subject to his rights under sub-section (3) to have the judgment set aside on satisfying the Commissioner that he was prevented from attending by similar unavoidable cause.

Marikar v. Colombo Municipal Council1 and Hadjiar v. Kunjie2 over ruled.

THIS case was referred to a Bench of two Judges by Wood Renton J. The facts are set out by Wood Renton J. as follows in his judgment (February 26, 1912): -

This is one of the numerous cases that come up in appeal owing to the default of parties or their legal advisers to appear on the day and at the time fixed for the hearing of actions in which they are concerned. The trial in the present case was fixed for December 7, 1911. The first defendant, who is the appellant, was absent when the case was called. So was his proctor, Mr. T. M. Fernando. The Commissioner of Requests, acting under section 823 (2) of the Civil Procedure Code, on a motion by the plaintiff-respondent's counsel, directed judgment to be entered in the respondent's favour. On the same day appellant's proctor, filed an affidavit and for the reasons stated therein moved, under section 823 (3) of the Civil Procedure Code, that the judgment entered in the respondent's favour should be re-opened, and the case fixed again for trial. Notice of this motion was issued to the respondent. The motion was argued on December 8, and the Commissioner of Requests refused it with costs. The present appeal is brought against this refusal to allow the case to be re-opened. The Commissioner's decision is challenged in the petition of appeal, on the ground that he was wrong in holding that a good case for the re-opening of the

1 (1901) 2 Br. 240.                                                                                                                             2 (1903) 1 A. C. R. 3.

judgment had not been made out on the proctor's affidavit. The explanation which the proctor gave of his absence was that he did not come to Court on the day in question at the usual hour, namely, 10 a.m., as his wife was ill; that he intended coming to Court only when the Commissioner mounted the Bench; and that he had asked the appellant's witnesses to come and let him know as soon as the Commissioner had taken his seat in Court. He was duly informed of the Commissioner's arrival, and came to Court himself, but reached it only about five minutes after judgment had been entered in favour of the respondent. The proctor added that the appellant was not himself present in Court, inasmuch as his evidence was not required, and he had told him not to attend. The learned Commissioner of Requests, in my opinion, rightly held cm this evidence that no case for re-opening the judgment under section 823 (3) had been made out, inasmuch as the proctor had not shown "that he was prevented from appearing in due time by accident or misfortune or other unavoidable cause." There was no allegation that his wife's illness was sudden or so serious as to prevent him from being in Court in time, or in any event from having asked the Commissioner, either in writing or by the verbal application of some other proctor, to excuse his temporary absence. The appeal fails on this point-the on