Habebu Mohamedu V. Lebbe Marikar Et Al.,

1947 Present: Wijeyewardene S.P.J.

HABEBU MOHAMEDU, Appellant, and LEBBE MARIKAR
et al., Respondents.

S. C. 123-C. R. Kandy 1,845

Court of Requests-Summons-Tamil-speaking defendant-served in English- Judgment by default-Set aside-Order not appealable-Civil Procedure Code, ss. 55, 801, 806, 823 (2)-Courts Ordinance, ss. 36, 78.

A summons served on a Tamil-speaking defendant in a Court of Requests need not be in Tamil. It is sufficient if it is in English.

An order made by a Commissioner of Requests setting aside a judgment entered for plaintiff by default is not an appealable order.

An action brought in the Court of Requests for recovery of damages for wrongful possession of a land involves "the right to possession of a land," and, in case of default of appearance of the defendant, the Commissioner must fix the case for ex parte hearing in terms of the proviso to section 823 (2) of the Civil Procedure Code.

APPEAL from a judgment of the Commissioner of Requests, Kandy,

H. W. Thambiah (with him S. Sharavananda), for the plaintiff appellant.

S. R. Wijayatilake, for the defendants, respondents.

Cur. adv. vult.

July 28, 1947. WIJEYEWARDENE S.P.J.-

The plaintiff claimed in this action a sum of Rs, 300 as damages suffered by him by reason of the defendant's "Wrongful possession of a land described in the schedule at the foot of the plaint. The Court issued summons returnable on August 23, 1946. On that date the defendants were absent though it was reported that they were served with summons "on being pointed out". On August 30, 1946, the plaintiff filed an affidavit stating that he pointed out the defendants to the process server for service of summons, and the Court, thereupon, entered judgment by default against the defendants. On September 12, the defendants filed an affidavit and moved to have the judgment set aside on the grounds, (1) that they were not served with summons and (2) that "the summons issued had been in the English language and is not in conformity with the provisions of the Civil Procedure Code ". They stated, further, that they were not in possession of any land belonging to the plaintiff. At the inquiry evidence was led to show that the first defendant did not " know English", and the second defendant could not " read or write Tamil or English ". The Commissioner held against the defendants with regard to the service of summons but set aside the judgment entered by default, as the summons served on each of the defendants was in English. The plaintiff appeals against that order

I am unable to uphold the view of the Commissioner that the summons served on a Tamil-speaking defendant under section 806 of the Civil Procedure Code should be in Tamil. That section states merely that the summons shall state " therein the names and residence of the parties, the substance of the claim and the number of the case" and '' shall be in form No. 16 in the First Schedule ". The section does not provide for a translation. That section applies to Courts of Requests, and by reason of section 801, the earlier general provisions in the Code regarding summons would not be applicable to Courts of Requests where such general provisions are inconsistent with the special provisions of section 806- A Bench of Three Judges expressed the view that even section 55 which is one of the sections containing the "general provisions" referred to In section 801 did not require the duplicate of the summons to be in any language other than English (see Victoria v. The Attorney-General 1[ (1920) 22 New law Reports 33]). In view of the contrary opinion favoured in certain decisions, I directed the Registrar to ascertain the practice followed in the Courts of Requests, Colombo, Galle, Kegalla, and Kandy. From the replies received, it is found that in Colombo a translation of the summons is not served on the

defendant; in Kandy and Galle no translat

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