002-SLLR-SLLR-2002-3-JOYCE-PERERA-v.-LAL-PERERA.pdf
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[2002] 3 Sri L.R.
JOYCE PERERA
v.LAL PERERA
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 251/2000DC COLOMBO NO. 20300/DAUGUST 20, 2001
Civil Procedure Code, sections 55 (1), 84, 85 (1), 377, and 754 (1) – Summonsnot served – Order nisi served in respect of alimony pendente lite – Objectionsfiled – Answer not filed – Application for alimony pendente lite withdrawn – Casefixed for ex parte trial – Legality – Is this order a judgment?
The plaintiff-respondent instituted proceedings against the defendant-appellant forthe dissolution of the marriage. Thereafter, an order nisi in respect of an applicationfor alimony pendente lite and cost of litigation was served on the defandant-appellant. The defendant-appellant filed proxy and lodged objections to theapplication and counter claimed alimony pendente lite. Thereafter, partiesagreed not to pursue their respective applications for alimony. The plaintiff-respondent thereafter moved that the case be taken ex parte and the trial Judgefixed the matter for ex parte trial. The defendant-appellant sought to canvassthis order.
Held:
Service of summons on the defendant is a fundamental and imperativerequirement and a precondition before a case is fixed for an ex parte trialby Court.
If there is non-observance of this imperative requirement of service ofsummons, it cannot be said even obliquely that the service of an ordernisi on the defendant in regard to alimony and cost under section 377consequent to which the defendant-appellant has entered her appearancethrough an Attorney-at-Law and filed her objections along with her counterclaim for alimony making reference to the plaint amounts to sufficient
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compliance under the provisions relating to service of summons. In thiscase there was no service of summons.
The order is not an ex parte judgment but an order made in fixing thecase for ex parte trial. There is a wide divergence between an ex partejudgment and an incidental order of fixing the case for ex parte trial. Section88 (1) would not apply.
APPLICATION for Leave to Appeal.
Cases referred to :
Senanayake v. Appu & Others – 2 SCR 135.
ABN Amro Bank NV v. Conmex (Pvt) Ltd. and Others – 1996 1 Sri LR 8.
Siriwardena v. Air Ceylon Ltd. – 1984 1 Sri LR 286 at 297.
Chandana Prematileka for petitioner.
Hugo Anthony for respondent.
Cur. adv. vult.
November 07. 2001NANAYAKKARA, J.
This is an application by way of leave to appeal by the defendant- 01petitioner (wife) against an order made by the learned District Judgeon 18. 08. 2000 whereby she fixed the case for ex parte trial on thebasis that the petitioner had failed to file answer in response to thefacts alleged in the plaint by the plaintiff-respondent (husband).
The basic facts of the case are briefly as follows :
The plaintiff instituted proceedings in the District Court of Colomboagainst the defendant praying for dissolution of the marriage subsistingbetween the plaintiff and the defendant. As the plaint was deficient
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in requisite stamps at the time action was instituted, the Court haddirected the plaintiff to apply for summons, once the deficiency instamps has been made good, which order the plaintiff has subsequentlycomplied with.
When this was taken up on 23. 07. 99 the Court had issued anorder nisi in terms of section 377 of the Civil Procedure Code inrespect of an application for alimony pendente lite and cost of litigationwhich order was directed to be served along with the summons onthe defendant.
Thereafter, for some reason or other as the fiscal had reportedthat the defendant could not be traced the order nisi had been servedon the defendant by way of substituted service.
The defendant on receipt of the order nisi along with the petition,affidavit and the notice, filed her proxy through an Attorney-at-Lawon 02. 03. 2000 and had moved for time to lodge her objections tothe order nisi and consequently she filed on 29. 06. 2000 her objectionto the order nisi along with her counter claim for alimony pendentelite and for cost of litigation.
When the plaintiff’s application for alimony and cost of litigationwas taken up on the day on which it was called for the purpose offixing it for inquiry, after both Counsel for the plaintiff and Counselfor the defendant had indicated to Court that they were not pursuingtheir respective applications for alimony and cost, Counsel for theplaintiff had applied to have the main case, which is for the dissolutionof the marriage, fixed for ex parte trial, as the petitioner had not filedher answer. Thereupon, on this matter both parties had made theirsubmissions, and the learned District Judge had thereafter made anorder on 18. 08. 2000 fixing the case for ex parte trial.
It is this order made by the learned District Judge, fixing the casefor ex parte trial, that is being canvassed by way of leave to appealin this application.
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Learned Counsel for the petitioner in his submissions has urgedthat only the order nisi and its notice were served on the defendant,and at no stage a copy of the plaint and summons were servedon the defendant as required by the provisions of the Civil ProcedureCode. As there was no service of summons on the defendant, afterthe institution of the action, the defendant cannot be expected torespond by way of an answer to the averments in the plaint and hencethe Court cannot fix the case for ex parte trial in terms of section84 of the Civil Procedure Code on the ground that no answer hasbeen filed by the defendant.
Counsel further contended it is only when the Court is satisfiedthat the defendant is duly served with summons or has received duenotice of the day fixed for the subsequent filing of answer, but defaultsthat the Court will proceed to hear the case ex parte.
Responding to the main contention of Counsel for the defendant,the learned Counsel for the plaintiff has submitted to Court that theappearance by the defendant in response to the order nisi and filingobjections along with counter claim for alimony by the defendant willregularize the non-service of summons on the defendant. Counsel hasfurther argued that the reference the defendant had made in herobjections to the plaint is indicative of the knowledge the defendanthad that an action has been filed against her and she is estoppedfrom canvassing the issue of non-service of summons, at this stage.
The pith and substance of her argument is that, the service ofthe order nisi in respect of alimony pendente lite and cost of litigation,dispensing with the service of summons, that the service of the saidorder nisi on the defendant alone is sufficient compliance with theprovisions of the Civil Procedure Code relating to service of summonson the defendant. This is exactly what the learned Counsel for theplaintiff sought to establish in an oblique manner.
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It appears to be the intention of the learned Counsel for the plaintiffthat the fact that there was default on the part of the defendant tofile answer or move for time to file it after entering an appearancethrough an Attorney-at-Law consequent to the receipt of order nisiin the case obligate the District Judge to fix the case for ex partetrial. That in the circumstances it is obligatory on the part of the learnedDistrict Judge to fix the case for ex parte trial in terms of section84 of the Civil Procedure Code as there was a failure on the partof the defendant to file answer.
Counsel for the plaintiff in an endeavour to buttress the argument *>in this regard cited the following cases :
Senanayake v. Appu and Others.m
ABN-Amro Bank NV v. Conmex (Pvt) Ltd. & Others.®
Counsel for the plaintiff basing his argument on section 88 (1) ofthe Civil Procedure Code has also submitted that the present applicationfor leave to appeal cannot be maintained inasmuch as section 88 (1)of the Civil Procedure Code stipulates that no appeal shall lie againstany judgment entered upon for default of appearance. In an attemptto buttress his argument in this regard learned Counsel has referredus to the criteria spelt out in the case of Siriwardena v. Air Ceylon 80LtcP] to determine the question whether order comes within the meaningof section 754 (5) of the Civil Procedure Code.
It is appropriate at this stage to assess the relative merits of thesubmissions advanced by the respective Counsel in regard to thematters at issue.
It should be observed, initially, that a careful perusal of the caserecord discloses, although the learned District Judge on 23. 07. 1999has made an order to serve summons along with the order nisi onthe respondent, there is neither an indication of tendering summonsto Court by the plaintiff nor is there any proof of it having being served 100
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on the defendant. Therefore, it is patently clear that there was noservice of summons on the defendant as contemplated by theprovisions of the Civil Procedure Code. Besides this, there is anunequivocal acceptance by the learned Counsel for the plaintiff ofthe fact that there is no service of summons on the defendant.
In such a situation can it be asserted as the learned Counsel forthe plaintiff, has done that the service of the order nisi in respectof the alimony pendente life and cost of litigation is sufficient todispense with the requirements necessary for the service of summonsunder the law?
In this connection, it will be pertinent to consider the imperativerequirements of section 55 (1) of the Civil Procedure Code.
Section 55 (1) of the Civil Procedure Code stipulates –
“Upon the plaint being filed and the copies or concise statementsrequired by section 49 presented, the Court shall order summonsin the form No. 16 in the First Schedule to issue, signed by theRegistrar of the Court, requiring the defendant to answer the plainton or before a day to be specified in the summons. The summons,together with such copy or concise statement each translated intothe language of the defendant where his language is not thelanguage of the Court, attached thereto, shall be delivered undera precept from the Court in the form No. 17 in the said Schedule,or to the like effect, to the fiscal of the Court or to the Fiscalof a Court of a like jurisdiction within the local limits of whosejurisdiction the defendant resides, who shall cause the same tobe duly served on the defendant, or on each defendant, if morethan one, and shall as hereinafter provided, return the same andthe execution thereof to the Court, duly verified by the officer towhom the actual service thereof has been entrusted.”
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Therefore, a careful analysis of this section makes it evident that,service of summons on the defendant is an imperative requirementand a precondition, before a defendant is expected to file answerresponding to the plaint, and it is only when there is a definite proofof service of summons on the defendant and failure to file answerthat the question of fixing the case for ex parte trial arises.
In this regard section 84 of the Civil Procedure Code has alsoto be considered along with section 55 (1) in resolving the matterin issue.
Section 84 of the Civil Procedure Code provides thus :
“If the defendant fails to file his answer on or before the dayfixed for the filing of the answer or on or before the day fixedfor the subsequent filing of the answer or having filed his answer,if he fails to appear on the day fixed for the hearing of the action,and if the Court is satisfied that the defendant has been duly servedwith summons, or has received due notice of the day fixed forthe subsequent filing of the answer, or of the day fixed for thehearing of the action, as the case may be, and if, on the occasionof such default of the defendant, the plaintiff appears, then theCourt shall proceed to hear the case ex parte forthwith, or on suchother day as the Court may fix.”
The consideration of this section also makes it abundantly clearthat the question of filing answer by the defendant arises only if theCourt is satisfied that the defendant has been duly served withsummons or received due notice of the day fixed for subsequent filingof the answer.
As far as the instant case is concerned, there is no doubt at allthat there was no service of summons but only the service of ordernisi in respect of the alimony pendente lite and cost on the defendant.Non-service of summons on the defendant as pointed out earlier is
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an admitted fact in this case. Therefore, it must be observed thatservice of summons on the defendant, which is a fundamental andimperative requirement and also a precondition before a case is fixedfor an ex parte trial by Court. If there is non-observance of thisimperative requirement of service of summons, it cannot be said, evenobliquely that the service of order nisi on the defendant in regard toalimony and cost, under section 377 of the Civil Procedure Code,consequent to which the defendant has entered her appearancesthrough an Attorney-at-Law and filed her objections along with herown counter claim for alimony and cost making reference to the plaintamounts to sufficient compliance with the provisions relating to serviceof summons. Therefore, it is my considered view, that the learnedDistrict Judge was in error in fixing the case for ex parte trial onthe ground of default in filing answer without verifying whether therewas in fact service of summons on the defendant. I am also of theview the authorities the learned Counsel for the plaintiff has referredto in the course of his argument has no application to the facts ofthe present case, as there was proof of service of summons on thedefendant in those cases cited, unlike in the present case wherethere was definite proof of non-service of summons on the defendant,but only the service of the order nisi and the notice.
Therefore, I find myself unable to agree with the argument advancedby the learned Counsel for the plaintiff in this regard.
In regard to the argument of the learned Counsel for the plaintiffthat the present application for leave to appeal cannot be maintained,it should be observed that the order which is canvassed is not ajudgment in terms of section 754 (1) of the Civil Procedure Code,but only an incidental order fixing the case for ex parte trial madein the course of proceedings. In other words it is not an ex partejudgment as argued by Counsel for the plaintiff but an order madein fixing the case for ex parte trial.
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It should be pointed out, that there is a wide divergence betweenan ex parte judgment and an incidental order of fixing the case forex parte trial.
The impugned order is only an incidental order which has no effectof a final judgment or qualifies as a judgment in terms of section754 (5) of the Civil Procedure Code. The case has not disposed ofthe rights of the parties finally and it has yet to reach finality in duecourse.
I am unable to agree with the contention of the learned Counselfor the plaintiff, that section 88 (1) applies to the facts and circumstancesof this case. Therefore, I am constrained to reject the argument ofthe learned Counsel that the defendant is precluded from presentingan application for leave to appeal at this stage.
The authority, Siriwardena v. Air Ceylon Ltd. [supra) relied on bythe Counsel in support of his argument in this regard therefore doesnot deal with the question at issue as the criteria spelt out in thatparticular case applies to a judgment, or an order which has the effectof a final judgment in terms of section 754 (5) of the Civil ProcedureCode.
Therefore, taking into consideration all the facts, relevant authorities,and submissions made in this case, I am of the view that the impugnedorder of the learned District Judge in fixing his case for ex parte trialcannot stand. Therefore, I vacate the order dated 18. 08. 2000 ofthe learned District Judge fixing the case for ex parte trial, and directhim to permit the defendant to file answer after service of summonsalong with a copy of the plaint, in accordance with the provisions ofthe law.
I cast the plaintiff in costs in a sum of Rs. 10,000.UDALAGAMA, J. – I agree.
Application allowed.
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