Summary procedure-Action on a liquid claim-Application for leave to appear and defend-Computation of time limit- Civil Procedure Code , ss. 703, 704, 706- Interpretation Ordinance , ss. 2, 8 (3), 11.


Where, in an action on a liquid claim under Chapter LIII of the Civil Procedure Code , the summons in Form No. 19 required the defendants to cause an appearance to be entered for them within seven days from the service thereof, inclusive of the day of such service-

Held (BASNAYAKE, C. J., dissenting), that, in computing the period within which the defendants were required to make an application for leave to appear and defend the action, Sundays and public holidays should be excluded, in terms of section 11, read with section 8 (3), of the Interpretation Ordinance .

APPEAL from an order of the District Court, Colombo.

Nimal Senanayake, with Desmond Fernando and S. Wickremasinghe, for 1st and 2nd Defendants-Appellants.

T. Arulananthan, for Plaintiff-Respondent.

Cur. adv. vult.

December 20, 1961. BASNAYAKE, C. J.-


This appeal comes for hearing before a bench composed of three Judges because the bench composed of two Judges before which it came up for hearing in the ordinary course was unable to agree as to the decree that should be passed by the Court.

The question for decision is whether, in computing the time prescribed in a summons in Form No. 19 within which the defendant is required to obtain leave from the Court to appear and defend the action on a liquid claim under Chapter LIII of the Civil Procedure Code , Sundays and Public Holidays should be excluded.

The relevant portion of the summons in the instant case which, as required by section 703, is in Form 19 of the Forms in the Schedule to the Civil Procedure Code reads :

"You are hereby summoned to obtain leave from the Court within seven days from the service hereof, inclusive of the day of such service to appear and defend the action, within such time to cause an appearance to be entered for you, "

The summons was served on 1st December 1959. On 8th December the proctor of the defendants appears to have tendered to the Court office a proxy and an affidavit signed by them together with a motion dated the same date to the following effect:-

"I file my appointment from the defendants together with their affidavit and for the reason stated therein move that the defendants' application be fixed for inquiry. "

On the next day-9th December-when the matter came up in open Court, the learned District Judge made the following order :- " Mr. T. G. de Silva to support the application as it appears to me Defendants are out of time. " No application for leave to appear and defend was filed along with the affidavit or even later. Section 706 requires that there should be an application by the defendant for leave to appear and defend the action. It reads-

" The court shall, upon application by the defendant, give leave to appear and to defend the action upon the defendant paying into court the sum mentioned in the summons, or upon affidavits satisfactory to the court, which disclose a defence or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the court may deem sufficient to support the application and on such terms as to security, framing, and recording issues, or otherwise, as the court thinks fit. "

The learned Judge appears to have treated the affidavit as an application. But even in the affidavit there is no prayer for leave to appear and defend. The last sentence of it which contains a request for relief reads-" We beg that the Court be pleased in view of the above facts to dismiss the plaintiff's action with costs. "

Learned counsel relies on Section 8 (3) of the Interpretation Ordinance for his submission that Sundays and Public Holidays are to be excluded in the computation of the time prescribed in a summons in Form 19 of the Schedule to the Civi

Click Here to Read the rest of this document