Sayado Mohamado V. Maula Abubahkar

1926 Present: Dalton J. and Jayewardene A. J.

SAYADOO MOHAMADO v. MAULA ABUBAKKAR.

78-D. C. (Inty.) Kurunegala, 11,359.

Action by summary procedure under Chapter L III of the Code-Leave to defend granted on ex parte application- Rescission or modification of such order on application of plaintiff?Ordinance No. 2 of 1889, ss. 704 and 706.

Held, that an order made ex parte, granting leave to defend, may be vacated by the Court making the order.

The rule in Vonliutzgy v. Narayansingh 1 followed.

 Allan Drieberg, K.C. (with H. V. Perera) for appellant.

Hayley for respondent.

August 3, 1926. Damon J.-

I have had the advantage of reading the judgment of my brother, who has gone into the question raised so thoroughly that I feel I cannot usefully add anything to what he has stated. The decision of Phear J. in Vonlintzgy v, Narayansingh (supra) was not cited

1(1871) 6 Bengal L. R, (App.) 64.

to, nor was it before, the Court at the argument on the appeal, but it seemed to me at the conclusion of the argument that there was nothing in principle in the Code to prevent a party coming in. as here, after leave had been granted ex parte to appear and defend; to debar a party from doing so might well in fact cause great injustice. It is satisfactory, however, to find decided authority on the point. I entirely concur in the conclusion arrived at by my brother, and would dismiss this appeal, with costs.

JAYEWARDENE A. J.-

This case raises an important question of practice under Chapter LIII. of the Civil Procedure Code, which provides a summary procedure for the enforcement of liquid claims. The question is whether, where a defendant obtains leave to appear and defend an action on an ex parte, application, the plaintiff can ask the Court-to rescind or modify the order granting such leave? It is somewhat surprising that although, the Code has been in operation for over thirty-five years there has been no definite ruling on the point.

In the present case the plaintiff sued the defendant to recover the sum of Rs. 5,000 due to him on a promissory note made by the latter. He proceeded under Chapter LIII., and a summons in form No. 19 was issued to the defendant directing him to obtain leave to appear and defend the action within seven days of the service of the summons. The defendant appeared within the time fixed and filed an affidavit and moved that he be granted permission to file answer and proceed with the case without furnishing security. This was allowed. This application was made and granted ex parte. A few days later the plaintiff filed an affidavit and moved that the defendant be called upon to give security to the extent of the plaintiff's claim and costs before filing answer. The plaintiff's application was fixed for inquiry. At the inquiry, defendant's Proctor contended first, that the Court could not vary its order giving leave to defend the action; and second, that the defendant's affidavit disclosed an answer to the plaintiff's claim. After argument, the learned District Judge held that as the order in question was ex parte it can be varied, and be directed the defendant to give security before filing answer, as the bona fides of the defence appeared to him, questionable. The defendant appeals against the judgment, and the same objections have been pressed before us.

The first question came before this Court last year in the P. & 0. Banking Corporation v. L. P. de Mel et al.1 There, the defendant had obtained an order granting leave to appear and defend the action unconditionally, and the plaintiff moved for a notice on the defendant to show cause why his application for leave to defend unconditionally should not be fixed for inquiry. The

1 D.C. Colombo, 17,065

learned District Judge refused to entertain the plaintiff's motion as he thought he had no power to vacate his order made under section 704. He said: "I do not t

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