1948 Present : Dias and Basnayake
 
JJ. CHELLIAH, Appellant, and ARON,
Respondent.
 
S. C. 26-D. C. Colombo, 6,864/S

Civil Procedure Code, Chapter 53-Action on promissory note-Summary procedure- Defendant's affidavits-Leave to appear and defend unconditionally-Fixed for inquiry-Defendant absent-Judgment for plaintiff.
 
Plaintiff sued defendant under Chapter 53 of the Civil Procedure Code and affidavit was filed by defendant's-brother on defendant's behalf asking for leave to appear and defend unconditionally. The matter was fixed for inquiry but on that date the defendant was absent and his proctor asked for a postponement. The judge refused a postponement and entered judgment for the plaintiff.
 
Held, that the order entering judgment for the plaintiff was wrong.' The Judge should have, in spite of the defendant's absence, inquired into his application for leave to defend on the affidavit before him.
 
APPEAL from a judgment of the District Judge, Colombo.

C. Renganathan, for the defendant, appellant.

P. Navaratrtarajah, for the plaintiff, respondent.

Cur. adv. vult.

February 23, 1948. DIAS J.-
 
The plaintiff-respondent sued the defendant-appellant in summary procedure to recover a sum of Rs. 1,005-50 alleged to be the balance principal and interest due on a promissory note given by the defendant.

The Court ordered summons to issue under Chapter LIII of the Civil Procedure Code and directed the defendant to appear within ten days from the date of the service of the summons. The summons was served on the defendant at Talaimannar on June 25, 1946. Therefore the ten days allowed to the defendant would expire on July 4, 1946.
 
On July 1, 1946, that is to say before the time allowed to the defendant had expired, the case was called in Court as the Fiscal had, reported that summons had been served. As the time had not expired, the Court ordered the case to be called on July 8, 1946, which probably was the next date when the roll of summary cases would be called before the District Judge.
 
On that day the defendant's proctor filed his proxy and a motion. The motion asks for two weeks time in which to file the defendant's affidavit to appear and defend the action unconditionally. It was pointed out that the summons had been served on the defendant at Talaimannar where the defendant was then residing. This appears to be an ex parte motion. There is nothing on the record to show that it was made with notice to the plaintiff, or that the plaintiff in any way acquiesced in it. The learned Judge made order calling for the defendant's affidavit on July 22.
 
On July 22 an affidavit was filed, not from the defendant but which was sworn by his brother V. Sithambaranpillai. The Judge then made order fixing the matter for inquiry on August 20, 1946.
 
What was it that was fixed for inquiry? Obviously, it was defendant's claim to appear and defend this action unconditionally after the Judge had studied the plaintiff's affidavit and the affidavit filed on behalf of the defendant, and after hearing what the legal advisers of the parties had to urge. This being a proceeding in summary procedure and on affidavit evidence, there was no necessity whatever for the presence of the defendant who had filed no affidavit at that inquiry.
 
The journal entry dated August 20, 1946, reads as follows :-
 
" Defendant is absent. His proctor tenders telegram which does not disclose any reason. Mr. Sivaprakasam (the proctor for the plaintiff) objects to a postponement. 1 refuse a postponement. Judgment for plain tiff as prayed for."
 
The telegram was from defendant from Talaimannar which reads :- " Extend date. Unable to send affidavit today. Will post tomorrow. ' It is, therefore, obvious, that although the defendant's proctor well knew that there was no necessity for the defendant to be present or to file an affidavit, and that the case had been specially fixed for inquiry on that