024-NLR-NLR-V-03-ULAGANATHAN-CHETTY-v.-VAVASSA-et-al.pdf
( 52 )
1897.
October 28and
November 3-
ULAGANATHAN CHETTY v. VAVASSA et al.
D. C., Colombo, 10,347.
/
Action under chapter LIU. of the Civil Procedure Code—Promissory noteinsufficiently stamped—Extension of time stated in summonsreferred to in Form 19 of the second Schedule to the Code—Plaintiff’sright to demand entry of judgment after expiry of time stated.
A plaintiff suing on an insufficiently stamped promissory note isnot entitled to the privileges afforded by chapter LIII. of theCivil Procedure Code.
At the expiration of the time stated in a summons issued in theForm 19 contained in the second Schedule to the Civil ProcedureCode requiring a defendant to appear and defend, a plaintiff isnot by right entitled to demand entry of judgment in his favour,but he has a right to move for it.
A District Court can, however, in its discretion, extend the timestated in such summons if the justice of the case requires it.
TDLAINTIFF sued defendant under chapter LIII. of the CivilProcedure Code for the recovery of a sum of Rs. 1,216-43and interest due on a promissory’ note payable on a specified dateand bearing a stamp of 50 cents. He obtained a summons in theForm 19 contained in the second Schedule to the Civil ProcedureCode, calling upon the defendants to obtain leave to appear anddefend the action within seven days from the service of such sum-mons. The Fiscal reported to the Court that summons was servedon both the defendants on the 19th August, 1897. But the defend-ants swore an affidavit to the effect that summons was served onthem on the 21st and 22nd August, 1897, respectively, and on the26th August, 1897, they moved for leave to appear and defend theaction.
The Acting District Judge (Mr. Felix Dias) inquired into thematter of the service of summons, and, after hearing evidence,refused defendants leave to appear and defend the action,adding : “ My attention has been called to the stamp on the“ promissory note sued upon. It is clearly insufficient. I will“ not enter judgment now, but plaintiff will be at liberty to cure“ its defects and move for judgment hereafter.”
The defendants appealed.
Morgan, for appellant.
Dornhorst, for respondent.
3rd November, 1897. Lawbie, A.C.J.—
In my opinion the plaintiff is not entitled to the privilegeafforded by the 53rd chapter, that the action must be treated
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as an ordinary action to which the defendants are. as of right,entitled to appear and defend.
The instrument was not properly stamped, and that is a completeanswer to the plaintiff’s demand for judgment under this chapter.
That being my opinion I need not discuss the question (whichis impliedly decided in the negative by the District Judge) whetherthe Court may not extend the time mentioned in the summonswithin which the defendant must come in and ask for leave toappear and defend.
Neither the Ordinance nor the form of summons fix either amaximum nor a minimum time: that is left to the Court, and ifthe Court in its discretion can fix the time, it can in the exerciseof the same discretion extend that time if justice requires anextension.
Something was said at the hearing in appeal of the right of theplaintiff to demand that judgment he entered when the timeexpressed in the summons has expired. He has a right to movefor judgment, but not to demand it, and the Court has, in myopinion, the duty laid on it of allowing a defendant to come in onterms at any time before the decree is signed.
I would set aside this decree and remit for further procedure asin an ordinary action not under chapter LIII.
Browne, A.J.—
Defendant was summoned under chapter LIII., Civil ProcedureCode, to obtain leave to appear and defend within seven days fromthe date of service. Summons was issued on the 12th August,returnable on the 20th August, but on that morning no return was, made to the Court, apparently because (as it now appears) it wasnot served till the afternoon of the previous day. The Courttherefore ordered the matter to stand over for six days to enablereturn to-be procured by the plaintiff and produced to it. On the26th the two defendants appeared, and as against the Fiscal’sreturn of service made on the 19th made affirmation they wereserved on the 20th and 21st. Subsequently they adduced evidenceto corroborate their assertion, but the learned District Judge didnot credit such evidence as against that of the process server,who had record in writing of the time when he had finished theservice and reported the same to the Fiscal. The defendantswere therefore refused leave to appear because they hadnot applied within the time allowed them, and by reason of theirapathy plaintiff had become entitled to his decree. Defendantshave not sought to explain why they delayed till the 26th to
1897.
October 23and
November 3.
Lawbie,
A.C.J.
( 54 )
1897.
October 28and
November 3.
Browne,
A.J.
obtain leave. I hold the order was so far right. The matter mustbe judged of apart altogether from the fact and order of “ to stand“ over ” from the 20th to 26th, which did not operate in defendant’sfavour, but was made solely for the purpose I have mentioned.Section 74 is not applicable to chapter LIII. Defendants also desiredwhen they came into Court to object to the allowance of this summaryprocedure, because the note had not been duly stamped. They hadno right to be heard thereon, as they had not obtained leave toappear (3 C. L. B. 11 and 31). But the District Judge’s attentionwas so called to the matter, however irregularly, and he at onceintimated he would not give final judgment till it had been stamped.I should hold the course he has pursued was not correct. The Codeallows summary procedure to be given when a note is produced,and appears to be so in order, and otherwise not open to suspicion.Doubtless this note did then appear to be in order, though this wasincorrect in fact, and so the summons in this form was issued.But as soon as the learned District Judge discovered the error infact, I hold he should have ruled plaintiff had never been entitled tothis extraordinary remedy, and should have remitted the matter toordinary procedure.
I would therefore remit for further procedure, but without
costs.