Dingihamy V. Don Bastian

1962 Present : Tambiah, J.

A. P. DINGIHAMY, Appellant, and N. M. DON BASTIAN and another, Respondents

S. C. 7/1962-C. R. Tangalle, 18844

    Court of Requests-Failure of Court to fix date to file answer-Invalidity of proceedings thereafter-Refusal of Court to set aside decree nisi-Defendant's right to appeal- Exparte order-Remedy of party affected-"Final order"-Courts Ordinance (Cap. 6), s. 36-Civil Procedure Code (Cap. 107), ss. 809 (S), 823 (2), 823 (6).

Where, in an action in the Court of Requests, the Commissioner fails to fix a date to file answer, proceedings against the defendant thereafter in his absence are illegal and null and void. In such a case, an order refusing to set aside the decree nisi and making the decree absolute is appealable.

A party affected by an exparte order of which he had no notice must apply in the first instance to the Court, which made the order, to rescind the order.

APPEAL from an order of the Court of Requests, Tangalle. N. R. M. Daluwatte, for defendant-appellant.

Miss Suriya Wickremasinghe, for plaintiffs-respondents.

Cur. adv. vult.

November 22, 1962.   TAMBIAH, J.-

The plaintiffs brought this action for declaration of title to a right of way along the defendant's land. On 3rd July, 1961, summons was served on the defendant and she appeared in Court. The following journal entry was made :

" Summons served on Defendant. Defendant present, answer after survey. T. R. and Commission for 17/7/1961."

The Commission was returned to Court on 16th of October, 1961 on which date the defendant was absent. The learned Commissioner of Requests fixed the case for exparte trial, which was held on 30th of October, 1961 and decree nisi was entered declaring the plaintiffs entitled to the right of way claimed in the plaint.

Thereafter, the defendant made an application to set aside the order nisi made by the learned Commissioner of Requests and applied for time to file answer on the ground that, as no date to file answer was given by the Court, he could not file answer. The learned Commissioner of Requests refused the defendant's application and made the decree nisi absolute on the 10th of January, 1962. The defendant has appealed from this order.

Certain preliminary objections Were raised by counsel for the respondent. She contended that the order of the learned Commissioner is not a " final judgment " or " an order having the effect of a final judgment ", within the meaning of section 36 of the Courts Ordinance (Cap. 6) and, therefore, the appellant has no right of appeal. She further con­tended that this is an order for default of appearance within the meaning of section 823 (6) of the Civil Procedure Code, and, therefore, no appeal lies. It is convenient to consider these objections last.

The journal entry of 3rd July, 1961, referred to earlier, clearly shows that the answer was to be filed only after the Survey Report and Commis­sion issued to the Surveyor were returned. After the Commission was returned, it was the duty of the learned Commissioner of Requests to have fixed a date for filing answer in terms of section 809 (3) of the Civil Procedure Code (Cap. 107), which enacts, inter alia, that:

" If the defendant shall deny the claim, he shall be called upon to plead to the same forthwith, or within such time as the Court on cause shown may allow. "

Since the learned Commissioner had not fixed the date for filing answer, the defendant could not have filed his answer. The learned Commissioner, in the course of his order, states " Then a date was given for the return of the Commission and on that date, on 16/10/61, when parties were to be informed of the return of the Commission, the defendant Was absent. Now the position is that the defendant should have been present on all dates on which the case Was called, if she was vigilant about the action. On 16/10/61, she being absent, the Court could not inform her a

Click Here to Read the rest of this document