1930 Present: Fisher C.J. and Garvin J.

WICKREMASURIYA v. MUDIANSE et al.

376-D. C. Kurunegala, 12,031

Ex parte trial-Non-appearance of plaintiff-Dismissal of action- Court's power to vacate order-Application by plaintiff-Reasonable time-Good cause shown-Civil Procedure Code, s. 144.

An order dismissing an action for failure of plaintiff to appear on the day appointed for ex parte hearing May be vacated on terms if an application is made within a reasonable time and good cause shown for default of appearance.

APPEAL from an order of the District Judge of Kurunegala.

L. A. Rajapakse, for plaintiff, appellant.

No appearance for defendant, respondent.

March 25, 1930. GARVIN J.-

This was an action for declaration of title. The defendants who were duly served with summons appeared in Court. The second and third defendants disclaimed title ; the first defendant took time to file answer. Further time was granted to him on application. On June 21, 1928, the day ultimately appointed for the filing of his answer the first defendant was absent and his proctor intimated to the Court that he had no instructions. The District Judge fixed July 12, 1928, ex parte trial.

On that day the plaintiff and his proctor were absent and there was no appearance for the defence. The District Judge thereupon made order dismissing the plaintiff's action.

On June 17, 1929, plaintiff filed a petition and affidavit explaining his default and prayed that " the case be restored to the roll to enable plaintiff to proceed with his action. "

Notice of this application was given to the first defendant, and the matter fixed for inquiry on September 12, 1929. On that day the District Judge dismissed the application without inquiry, holding that he had no jurisdiction to vacate his order of July 12, 1928, dismissing the plaintiff's action.

The plaintiff appeals.

Chapter XII. of the Civil Procedure Code which is entitled " of the consequences and cure (when permissible) of default in appearing or pleading " sets out the procedure to be followed when there has been a default of appearance on the part of the parties or any of them.

Section 84 contemplates the case of the absence of the plaintiff, the defendant being present, " on the day fixed for the appearance and answer of the defendant, or the day fixed for the filing of the answer, or for the hearing of the action, " and provides that unless

the defendant admits the plaintiff's claim or consents to a postponement " the Court shall pass a decree nisi .... dismissing the plaintiff's action. "

Section 85 deals with the converse case of the appearance of the plaintiff and the absence of the defendant, and provides that if the defendant fails to appear on the day fixed for his appearance and answer, or on the day fixed for the subsequent filing of his answer, or for the filing of the replication, or on the day fixed for the hearing of the action, the Court shall proceed to hear the case ex parte and to pass a decree nisi in plaintiff's favour.

Section 88 prescribes the procedure to be followed when neither party is present "on the day appointed to appear and answer, or. for the subsequent filing of the answer, or for the filing of the replication." The proper order to be made in such a case being to direct that the case be struck off the roll of pending cases. The section, it will be noticed, makes no provision for the case of the absence of both parties on the day fixed for the "hearing of the action. It was suggested by Counsel for the appellant that inasmuch as the case for the plaintiff was not heard ex parte on the day the defendant failed to appear and file his answer and the hearing was put off for a later date, the case under consideration was governed by section 144 of the Code.

That section is as follows: "If on any day to which the hearing of the action is adjourned, the parties or any of them fail to appear, the C