006-SLLR-SLLR-2002-V-1-CHANDRAWATHIE-v.-DHARMARATNE-AND-ANOTHER.pdf
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Chandrawathie v. Dharmaratne and Another
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CHANDRAWATHIE
v.DHARMARATNE AND ANOTHER
SUPREME COURTS. N. SILVA, CJ.
BANDARANAYAKE, J. ANDYAPA, J.
SC (APPEAL) NO. 10/2001CA (APPEAL) NO. 312/91(F)
DC (COLOMBO) NO. 5161 (ZL)
MARCH 26 AND SEPTEMBER 7, 2001
Civil Procedure Code – Dismissal of action for plaintiffs default – Application forsetting aside the order of dismissal – Section 87 (3) of the Code – Requirementthat the petition be supported by affidavit – Sections 168, 181 and 438 of theCode – Whether a defect in plaintiff's own affidavit would per se disqualify relief.
The plaintiff instituted action in the District Court against the 1st and 2nd defendantsfor declaration of title and ejectment from the land in suit. On 03. 10. 1988 thecase was fixed for trial on 01. 03. 1989. The plaintiff was not present. His registeredattorney who was present took down the date as 03. 03. 1989 and informed theplaintiff accordingly. On 03. 03. 1989 the plaintiff came to know that the casehad been fixed for trial on 01. 03. 1989. Consequently, the plaintiff was absentand unrepresented on 01. 03. 1989; whereupon the District Judge dismissed theaction. Thereafter, the plaintiff applied to the District Judge to have the order ofdismissal vacated in terms of section 87 (3) of the Civil Procedure Code. He alsotendered to Court an affidavit from his registered attorney. The 2nd defendantobjected to the application on the ground that the plaintiff's affidavit was notconfined to statements of such facts as the plaintiff was able of his own knowledgeand observations to testify to and; (b) the plaintiff in making his affirmation failedto profess that he was a non-Christian. Section 168 of the Code also refers tothis requirement for a non-Christian.
Held:
Even though the failure of the plaintiff to specify in his affidavit that hewas a non-Christian denudes the document of the essential characteristicsof an affidavit yet, the affidavit of the registered attorney should have beenconsidered sufficient to explain the facts relevant to the default as thewrong date was taken down by the registered attorney on 03. 10. 1988.
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The plaintiff was not in Court on that day. He could not therefore, testifyto the relevant matters of his knowledge and observations as required bysection 181 of the Code.
Cases referred to:
Simeon Fernando v. Goonesekera – (1946) 47 NLR 512.
Samarakoon v. Ponniah – (1931) 32 NLR 257.
Kanagasabai v. Kirupamoorthy – (1959) 62 NLR 54.
Damayanthi Abeywardene and Another v. Hemalatha Abeywardena andOthers – (1993) 1 Sri LR 272.
APPEAL from the judgment of the Court of Appeal.
A. K. Premadasa, PC with C. E de Silva for appellant.
Gunasekera for respondent.
Cur. adv. vuit.
November 1, 2001
SHIRANI A. BANDARANAYAKE, J.
The plaintiff-petitioner-appellant-respondent-respondent (hereinafter 1referred to as the 1st respondent) instituted action in the District Courtof Colombo against the 1st defendant-respondent-respondent-respondent-respondent (hereinafter referred to as the 2nd respondent)and the 2nd defendant-respondent-respondent-petitioner-appellant(hereinafter referred to as the appellant) for a declaration of title andejectment of appellant and 2nd respondent from the allotment of landknown as Kahatagahawatta (marked Lot A3 in Plan No. 5193 madeby M. B. de Silva, Licensed Surveyor). On 03. 10. 1988 the casewas fixed for trial on 01. 03 1989 (X3 and X3b). When the case was iotaken up for trial on 01. 03. 1989, the 1st respondent was absentand unrepresented and the Additional District Judge, dismissed theaction (X4). Thereafter, the 1st respondent made an application tothe District Court, Colombo, to have the order of dismissal vacated
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Chandrawathie v. Dnarmaratne and Another
(Shirani A. Bandaranayake, J.)
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(X5 and X6). The 1st respondent had also tendered to Court anaffidavit of the registered attorney for the 1st respondent (X7). Theappellant filed her statement of objection to this application (X8 andX9). The application made to vacate the order of dismissal was takenup for inquiry on 21. 03. 1991 and the counsel for appellant raiseda preliminary objection. He submitted that as the affidavit of the 1st 20respondent (X6) did not conform to the provisions of sections 181and 438 of the Civil Procedure Code, the 1st respondent cannotmaintain the said application (X10). The learned Additional DistrictJudge of Colombo on 07. 05. 1991 rejected the application filed bythe 1st respondent to vacate the order of dismissal (X11). The 1strespondent appealed to the Court of Appeal against this order (X12).
On 30. 11. 2000, the Court of Appeal allowed the said appeal onthe basis that the learned Additional District Judge should haveconsidered the affidavit of the 1st respondent’s registered attorney.The appellant sought for special leave to appeal from this Court against 30the said order.
This Court granted leave to appeal on the following question :
"whether the application to set aside the order of dismissalhas been in compliance with the provisions of section 87 (3)of the Civil Procedure Code."
Chapter XII of the Civil Procedure Code deals with theconsequences and cure (when permissible) of default in pleadingand appearing in Court. Section 87 which falls under that chapteris with regard to the non-appearance of plaintiff. Section 87 (3) ofthe Code reads as follows:40
"The plaintiff may apply within a reasonable time from the dateof dismissal, by way of petition supported by affidavit, to have thedismissal set aside, and if on the hearing of such application, ofwhich the defendant shall be given notice, the Court is satisfiedthat there were reasonable grounds for the non-appearance of the
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plaintiff, the Court shall make order setting aside the dismissalupon such terms as to costs or otherwise as it thinks fit, and shallappoint a day for proceeding with the action as from the stageat which the dismissal for default was made."
The requirements of section 87 (3) of the Civil Procedure Code soas to an application to cure a default are two-fold: Firstly, the plaintiffmust make his application within a reasonable time from the date ofdismissal of his action. Secondly, the plaintiff must make suchapplication by way of petition supported by affidavit. The affidavitof the 1st respondent, which was in Sinhala, commenced with thefollowing words:
'e>65>6 o©5®§©@©3©od> o£oS csoaiad oqed rag® ©qjSSQ 000(56)®
0® §3 ffl3®Sk5®3 gt50®0 & q©o®0 £ oos o@s & c@od gssxs oc5§.'
The jurat of the affidavit was worded as follows:
"1989 si § ®k5qj ®o 30 ©o g® So©) ©gg) qsto® o©)©® ? ®S® 000.'60
It is, therefore, apparent that the affidavit of the 1st respondentdoes not comply with the requirements of section 168 of the CivilProcedure Code which states that,
".. . witnesses not professing to be Christians or Jews shallbe examined on affirmation. The same rule shall apply toaffidavits . . ."
The failure to specify, when the deponent was a non-christian, thathe was affirming to the matters therein denudes the document of theessential characteristics of an affidavit in terms of sections 168 and438 of the Civil Procedure Code and Form 75 of the 1st schedule 70to the Civil Procedure Code.
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Chandrawathie v. Dharmaratne and Another
(Shirani A. Bandaranayake, J.)
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The next matter to be considered is whether the affidavit of theregistered attorney that was filed with the petition, satisfies the re-quirements of section 87 (3). Learned President's Counsel for theappellant contended that a valid affidavit of the plaintiff in support ofthe averments of the petition is an essential component of an ap-plication under section 87 (3) and that the affidavit of the registeredattorney does not satisfy this requirement.
I am in agreement with the learned President's Counsel for theappellant that the affidavit filed by the 1st respondent is not in bocompliance with sections 168 and 438 of the Civil Procedure Code.However, I am unable to agree with the learned President’s Counselthat the affidavit filed by the registered attorney of the 1st respondentcannot be considered in terms of section 87 (3) of the Civil ProcedureCode.
Section 87 (3) provides for the Court to consider setting aside adismissal due to the non-appearance of the plaintiff. For this purpose,the plaintiff would have to satisfy the Court that there were reasonablegrounds for his non-appearance in Court. The process for invokingthe jurisdiction of this Court in this regard is by way of petition 90supported with affidavit. Although it is mandatory that the plaintiff mustmake his application by way of petition supported by affidavit, section87 (3) does not specify that the affidavit must be that of the plaintiff.
The only requirement according to section 87 (3) is that there shouldbe an affidavit which supports the petition of the plaintiff, in order toset aside the dismissal.
Section 181 of the Civil Procedure Code, refers to the kind ofstatements that an affidavit can contain, which is in the following terms:
"Affidavits shall be confined to the statements of such facts asthe declarant is able of his knowledge and observation to testify 100to, except on interlocutory applications in which statements of hisbelief may be admitted, provided that reasonable grounds for suchbelief be set forth in the affidavit."
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Section 181 is specific that the affidavit must contain statementsof such facts which the declarant is able to testify of his ownknowledge and observations. In Simeon Fernando v. Goonesekersi1)it was held that,
. . an affidavit must be confined to a statement of suchfacts as the declarant is able of his own knowledge andobservations to testify to."110
A similar view has been taken in Samarakoon v. Ponniah® andKanagasabai v. Kirupamoorth/3).
The only exception to this provision is with regard to interlocutoryapplications in which section 181 provides that statements of thedeclarant's belief must be set forth in the affidavit. This position wasconfirmed in Damayanthi Abeywardene and another v. HemalathaAbeywardene and otherdA) where it was held by S. N. Silva J., (ashe then was) in the following terms (at page 278):
"The rule in section 181 which confines an affidavit to 'a state-ment of such facts as the declarant is able of his own knowledge 120and observation to testify to' is intended to restrict the contentsof affidavits to direct evidence as prescribed in section 60 of theEvidence Ordinance. By necessary implication it excludes hearsayfrom such affidavits. The only exception is that in interlocutoryapplications a statement of what is believed, as to the relevantfacts, may be included. This exception is subject to a provisothat reasonable grounds for such belief should also be set forthin the affidavit”.
The rule in section 181 of the Civil Procedure Code,' therefore,is that the affidavit should contain only direct evidence. Referring to 130the kind of direct evidence that is expected in an affidavit under section181 of the Civil Procedure Code, S. N. Silva J., (as he then was)said in Damayanthi Abeywardene and another v. HemalathaAbeywardene and others (supra, at page 279):
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Chandrawathie v. Dharmaratne and Another
(Shirani A. Bandaranayake, J.)
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“That is, a statement of such facts as the declarant is ableof his own knowledge and obervations to testify to, in relationto the matters set out or alleged in the petition."
The 1st respondent's action was dismissed on 01. 03. 1989, andon 03. 03. 1989, the 1st respondent filed a petition informing the Courtof the circumstances relevant to the default. He stated that when the 140case came up for trial previously on 03.10.1988, he had not attendedCourt as he was indisposed. His registered attorney, who was presentin Court on that day, had taken down the next date as 03. 03. 1989and informed the 1st respondent accordingly. On 03. 03. 1989, the1st respondent came to know that his case was fixed for trial noton 03. 03. 1989, but on 01. 03. 1989.
In these circumstances, it is clear that the facts relevant to thedefault were within the knowledge of the registered attorney and notof the 1st respondent. The wrong date was taken by the registeredattorney on 03.10. 1988 and it is not disputed that the 1st respondent isowas not in Court on that day. In such a situation, the 1st respondentcannot testify to these matters of his own knowledge and observationas required by section 181. The affidavit of the registered attorneyshould therefore be considered sufficient to explain the facts relevantto the default.
For the aforementioned reasons, I dismiss the appeal and affirmthe judgment of the Court of Appeal.
There will be no costs.
S. N. SILVA, CJ. – I agree.YAPA, J. – I agree.
Appeal dismissed.