Kanagasabai V. Kirupamoorthy

1959 Present : Basnayake, C.J., and de Silva, J.

KANAGASABAI, Appellant, and KIRUPAMOORTHY,
Respondent

S. C. 93 - D. C. Jaffna, AW/79

    Summary procedure-Service of interlocutory order on respondent--Duty of respondent to appear in person 'Failure of Proctor to appear, by "oversight "-" Accident or misfortune" -Proceedings where both parties appear-No provision for filing written objections-Affidavits -Duty to comply with rules governing them civil Procedure Code, ss. 181, 377 (b), 383, 384, 389, 437, 696, 697, 698.

Where, in an application of summary procedure, the respondent fails to appear in person as required by the interlocutory order served on him under section 377 (b) of the Civil Procedure Code, he must suffer the consequences of his non-appearance. It is not open to him to say that he gave a proxy to a Proctor and that the Proctor failed to appear by an "oversight". In such a case, the failure of the Proctor to appear (assuming that he has a right to appear) is not an accident or misfortune within the meaning of section 389.

Even in proceedings where both parties appear, section 384 of the Civil Procedure Code does not provide for the filing of written objections.

When affidavits are filed in the course of civil proceedings, it is the duty of Judges, Justices of the Peace and Proctors to see that the rules governing affidavits in sections 18,437, &c., of the Civil Procedure Cede are complied with.

APPEAL from an order of the District Court, Jaffna.

H. W. Jayewardene, Q. C., with O. Ranganathan, for Petitioner Appellant.

S. Nadesan, Q .C., with A. Nagendra and D. W. Abeykoon, for Respondent-Respondent.

Cur . adv. vult.

October 30, 1959. BASNAYAKE, C.J.

The appellant made in the manner prescribed by section 697 of the Civil Procedure Code an application under section 696 of the Code that the award made in a dispute between him and the respondent, referred to arbitration without the intervention of a court, be filed. In his petition he prayed

(a) that the award dated 25th February 1958 be filed in court ;

(b) that the award be enforced as a decree of court;

(c) that an interlocutory order in terms of section 377 of the Civil Procedure Code appointing a day for the determination of the matter of his petition be entered intimating that the respondent will be heard in opposition on a day appointed by court why the respondent should not pay to the petitioner Rs. 49,070/50 with legal interest thereon from the date thereof and deliver to the appellant the vallam known as Namo Narayana.

The District Judge made the following" Interlocutory Order" upon the appellant's application:

" This matter coming on for disposal before N. Sivagnanasunderam Esquire, Additional District Judge, Jaffna, on the 19th June 1958
. In the presence of Mr. R. N. Sivapiragasam, Proctor, on the part of the Petitioner and the Affidavit of the Petitioner dated 19th June 1958 Having been read.

"It is ordered that the Award marked A dated 25th February 1958 filed of record be made a rule of court and that the said Award be given effect to and enforced in terms of section 698 of the Civil Procedure Code as a decree of court-unless sufficient cause be shown to the contrary-on the 7th August 1958.

"It is further ordered that the 7th day of August 1958 be and the same is hereby appointed for the determination of the matters in the said Petition contained and that the said Respondent be heard in opposition to the prayer of the same if he appear before this court on the said day.

" It is further ordered that the Respondent do pay to the Petitioner his costs of, and occasioned by the Application. "

On 7th August 1958 the respondent was absent although the inter locutory order had been served on him. The District Judge made the following order" Award made rule of Court". Later, on the same day, Proctor Selvarajah filed the proxy of the respondent and moved for a dat

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