AUSTIN DE MEL, Appellant, and KODAGODA, respondent

052-NLR-NLR-V-46-AUSTIN-DE-MEL-Appellant-and-KODAGODA-respondent.pdf


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KEUNEMAN J.—Austin de Mel and Kodagoda.
1945Present: Keuneman and Rose JJ.
AUSTIN DE MEL, Appellant, and KODAGODA, respondent.8 Inty.—D. C. Colombo, 14,802.
Decree nisi—Absence of plaintiff—The point of time at which a decree nisiis deemed to be “ passed ”—Application to set aside—Cannot be inquiredinto after the period of 14 days has elapsed—Civil Procedure Code,s. 84.
Under section 84 of the Civil Procedure Code the " passing ” of thedecree nisi,on thenon-appearance of plaintiff,isnotcompleteduntil
the necessary form has been drawn up and approved and signed by thecourt. The starting-point of the period of fourteen days within whichthe decree nisi can be set aside is the date on which the decree nisi is“ passed ", andnot the dateonwhich the courtmerelygives instruc-
tions to prepare a decree nisi to be passed thereafter.
Where theplaintiffcame into court within thefourteendays andhad.
within thatperiod,succeeded in giving noticetothedefendantand
fyungthe inquiry for the setting asideof a decreenisi but wasprevented
from“ showing good cause ” withinthe periodin consequence of a
preliminary objection taken bythedefendant, whichin factwas wrongly
allowed by the District Judge—
Held, that, once the period of fourteen days had elapsed, it was notopen to theDistrictJudge to take up the inquiryinto“ good cause "
nor was it open to the Supreme Court to do so in appeal.
PerKeuneman, J.—“ I would urge upon thelegislaturethe need
of aspeedy amendment of section 84so that theunreasonablehardships
imposed upon the plaintiff may be removed ”.
^^PPEAL from an order of the District Judge of Colombo.
H.V. Perera, K.C.(with himD.W. Fernando),for the plaintiff,
appellant.
N.Nadarajah, K.C.(with himW.Mutturajah), for thedefendant,
respondent.
Cur. adv. vult.
March 20, 1945. Keuneman J.—
In this case, on November 26, 1943, trial was fixed for February 15,1944. On the latter date the plaintiff and his proctor were absent and
XEDNEMAN J.—Austin de Mel and Kodagoda.1 151
the defendant was represented by counsel. The journal entry of that-date reads: —
'* 15.2.44. Case called
Adv Mr. Wiekremanayake for deft.
Pltff and proctor absent.
Enter D. N. dismissing pltff s action : with'costs to be made absolute on 3.3.44.
M. A. S.”
The intials M. A. S. are the initials of the presiding judge Mr. Samarakoon-Thereafter the journal entries read: —
“ 1.3.44. D/N entered.
3.3.44. Fourteen days having elapsed since the entering of the decreenisi dismissing pltff’s action with costs, Proctor for Deft moves that the-Court be pleased to make the Decree Nisi absolute.
A needles motion, the order being absolute automatically.
B. F. D.”
B. F. D. are the initials of the judge then presiding, Mr. Dias. This*judge has verified the fact that the decree nisi presented to him waesigned on March 3, 1944.
On March 13, 1944, the plaintiff moved by affidavit showing cause forsetting aside the decree nisi. This was fixed for inquiry on March 15,1944, and on that date the District Judge upheld an objection thatthe application was out of time as fourteen days had elapsed sinceFebruary 15,1944. The District Judge thought it unnecessary to
consider the merits of the application.
The plaintiff appeals from this order, and argues that the period offourteen days did not begin to run until March 3, 1944, and that on thedate of inquiry (March 15, 1944) the period o.f fourteen days had notelapsed. He contends that the District Judge did not " pass the decreenisi ” within the meaning of section 84 of the Civil Procedure Codeuntil March 3.
Under section 84 where the plaintiff fails to appear on the date ofhearing and where the defendant is present or represented and does notadmit the plaintiff’s claim or consent to a postponement, “ the courtshall pass a decree nisi in the Form No. 21 in the First Schedule or to thelike effect, dismissing the plaintiff’s action, which said decree shall at theexpiration of fourteen days from the date thereof become absolute,unless the plaintiff shall have previously, on some day of which thedefendant shall have notice, shown good cause by affidavit or otherwisefor his non-appearance.”
Certain points are of significance. First, the court must pass thedecree nisi. I think this means that- the court must authenticate adocument which he regards as the decree nisi, and Form 21 itself showsthat the court must sign the document. Further, the form is specificallymentioned in the section, and it is necessary that_th.e court should pass adecree in that form or ‘‘to the like effect ”. It has been suggested thatwhere the court signs a document containing the essential details containediin Form 21, it may be taken that he has passed the decree nisi although
15aKEUNEMAN J.—Austin de Mel and Kodagoda.
the document haB not been formally drawn up in the office, and that anentry of such a kind made among the journal entries would be sufficient:
I agree with the argument, but at the same time it is a question to be.determined in each case as to whether the court was in fact passing thedecree nisi or merely giving an instruction to the office to prepare a decreenisi to be passed thereafter.
The difference in the case where a trial has taken place may be noted.After the trial the judge has to pronounce judgment (sections 184-187).As sdon as may be after the judgment is pronounced ‘‘ a formal decreebearing the same date as the judgment ” is drawn up in accordance withForm 41 or “to the like effect *’ (section 188). Here there is a definitedirection in the Code that the decree must bear the date of the judgment.But section 188 cannot be applied to section 84 where no judgment ispronounced and the only action which the court is required to take is to“ pass a decree nisi.”
The District Judge was of opinion that the signing of the decree was aministerial act which may be done at any time and that the decree whensigned speaks as from the date on which the court ordered that it shouldbe drawn up. This argument no doubt applies to a decree which followson a judgment, but under section 84 the “ passing ’’ of the decree nisicannot be completed until the necessary form has been drawn up, and inmy opinion the “ passing ’’ becpmes effective when the form so drawnup is approved and signed by the court.
In the present case it has been argued that the essential particularsrequired by Form 21 are contained in the journal entry of February 15,1944, and that the entry of that date must be regarded as “ of like effect ’’to Form 21, and that the District Judge has approved of and authenticatedthis entry by annexing his initials thereto, and that he must be regardedas having passed the decree nisi on. February 15.
It is however difficult to arrive at this conclusion. The words “ EnterD/N ” read more naturally as an instruction to the office, to prepare andpresent to the judge a decree nisi drawn up in proper form, and it hascertainly been so understood in the office, for a decree nisi was drawn upand presented to the judge on March 1, and was actually signed on march3, by the judge then presiding in. the court. Further, the fact that thejudge has on February 15, merely amended his initials to the journalentry instead of his full signature reveals a degree of informalitty which ishardly in keeping with the “ passing of a decree nisi.
In this case I am of opinion that the decree nisi was not “ passeduntil March 3, and that the plaintiff was within time on the date ofinquiry, namely, March 15.
Unfortunately for the plaintiff, that is not the end of his difficultiesin connection with his appeal, for it has been argued for the defendantthat we cannot now remit this matter to the District Judge for deter-mination of the question whether “ good cause ’’ exists for setting asidethe decree nisi. Three decisions have been cited to us.
In Annamalay Chctty v. Carron 1 Schneider J. examined the terms ofsection 84 and drew' attention to the marked difference between the caseof default by the plaintiff and that of default by the defendant. He
1 3C. L. Rec. 48.
KEUNEMAN J.—Austin dc Mel and Kodagoda.
163
continued—“The difference in the procedure is undoubtedly madeadvisedly. I can conceive of instances where it would be a distincthardship on a plaintiff to deny to him an opportunity to show causeagainst the decree because the period of fourteen days has expired.He may have been prevented from attending court or showing causewithin the prescribed period by unavoidable circumstances or circum-stances beyond his control. He may be be prevented from showing causewithin that period because he was prevented by no fault of his from noti-fying the day to the defendant or to the defendant's proctor. The defendantmay have died or have had no proctor on the record, or have' purposelyevaded service of the notice, In all these cases it does seem unjust to-deprive a plaintiff of the opportunity to show cause why the decreeshould not be allowed to stand. But my duty is to interpret the law asI find it, not to try to adapt it because of the hardship which may arisefrom a correct interpretation of it. In view of the unequivocal language-of section 84 I do not find it possible to escape from giving to the wordsof the section their plain meaning and effect, namely, that cause mustbe shown upon a day of which the defendant shall have had notice andbefore the decree nisi has become absolute by the expiration of the-period of fourteen day6. It is clear that no cause was shown within the-prescribed period De Sampayo J. agreed with this decision.
The same point came up again in Mohideen v. Marikar 1 whereSoertsz J. accepted the ruling in Annamalay Chetty v. Carton. He expressedhis feeling of surprise when the argument based upon that case was first-presented to him. “ At one stage of the argument I inclined to the viewthat what a plaintiff was required to do within fourteen days was to beginproceedings to have the decree set aside, that is to say I felt that “ showgood cause ’’ must be understood to mean to make out a good prima faciecase for setting aside the decree nisi by submitting an affidavit, forinstance, as was done in this case. But the latter part of- section 84which reads ‘ in case of such cause being shown the court shall set asid§the decree ’ debars me from construing the same words when they occurin the earlier part of the section in the manner I suggested. It seemsquite clear that the setting aside of the decree must be obtained, if at allby good cause being shown, not merely by good cause being attemptedto be shown, witbin fourteen days Nihill J. agreed with this decision.
In de Saram v. de Silva – the matter again came up. Soertsz J. pointedout that “ section 84 provides for the entering of a decree nisi due tobecome absolute by mere effluxion of time, by the lapse of fourteen days,unless previously the plaintiff has succeeded, with notice to the defendants,in showing cause for it to be set aside Nihill J. agreed.
What is the position in the present case? The plaintiff has come into-court within the fourteen days and has succeeded in giving notice to thedefendant and fixing the inquiry for a date within that period. But hehas been prevented from “ showing good cause ’’ within the period inconsequence of the preliminary objection taken by the defendant, whichin fact was allowed by the District Judge. In view of the decisions- Ihave cited it is not open to the District Judge now, after the period offourteen days has elapsed, to take up the inquiry into “ good cause ”,
1 41 AT. L. R. 249.* 41 N. L. R. 419.
Ago Singhe and de A he it.
154
■nor it it open to us to do so in appeal. This is a real case of hardship,I may almost say of injustice. But as long as these decisions stand Ihave no alternative but to follow them.
We have been urged to submit the point covered by the decisions toa Divisional Bench for final determination. I am no less conscious thanwere the learned Judges who decided those cases that hardship andinjustice can be caused to a plaintiff by the interpretation given of thesection. I would urge upon the legislature the need of a speedy amend-ment of section 84 so that the unreasonable hardships imposed upon theplaintiff may be removed. But I regret that in the present case I do notfeel justified in submitting this matter to a Divisional Court for final‘decision. For one thing, as regards the actual circumstances disclosed inthe affidavit, I incline to the view that while they may be regarded asmisfortune to the plaintiff, it is at the least doubtful whether they canhe regarded as “ good cause ” for depriving the defendant of the decreenisi which he has obtained.
The appeal must be dismissed. The defendant has however set up apreliminary objection which on examination cannot be supported inappeal, and in all the circumstances I think the fair order to make is thatthere be no costs to either party of the inquiry on March 15, 1944, or ofthis appeal.
Bose J.—I agree.
Appeal dismissed.