008-SLLR-SLLR-2005-V-2-JAYASINGHE-vs-RAMANAYAKE-AND-OTHERS.pdf
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Jayasinghe us Ramanayake and Others (Eric Basnayake J)
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JAYASINGHEVSRAMANAYAKE AND OTHERSCOURT OF APPEALSOMAWANSA. J, (P/CA),BASNAYAKE. J,
CA APPLICATION 1396/2004 (REV)D.C. MT LAVINIA 1001/98/LMARCH 1,2005
Civil Procedure Code – Section 86(2) and, S 839 – Party not a Defendant – Is hebound by the Decree? – Can the decree be vacated by the successor in office?Audi alteram partem Rule-Pradesheeya Saba Act, 15 of 1987, Section 214 -Urban Councils Act – Section 220
The Plaintiff – Petitioner Instituted action against one ‘R’ and the MaharagamaPradesheeya Sabhawa. Judgement and decree were entered exparte. Thedecree was not served on the Pradesheeya Sabawa as it was not in existencethen. The Maharagama Urban Council, which succeeded the PradesheeyaSabha accepted the decree and filed papers to have the Judgment and decreevacated.
The Plaintiff Petitioner objected to the application as the papers were filed afterthe 14 day period stipulated in Section 86(2). The trial Court overruled theobjection and vacated the decree and permitted the Urban Council to fileanswer.
HELD:
(i) It was the duty of the Plaintiff to make the Urban Council a party to thecase. The decree issued on the Pradesheeya Saba without makingthe Urban Council a party, has no effect on the Urban Council.
• Per Basnayake J.
“I am of the view that, the learned Additional District Judge has rightlyexercised the inherent powers in this case, in a situation where no otherprovision is available and at the same time to have the principle of audialteram partem Rule observed.”
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Sri Lanka Law Reports
(2005) 1 Sri L. R.
An application in Revision from an Order of the District Court of Mt. Lavania.Case referred to :
1. Fonseka vs Dharmawardena – 1994 3 Sri LR 49.
Ranjan Suwandaratne with Mahinda Nandasekera for Plaintiff Petitioner.Harsha Gamlath with S. M. S. Jayawardena for 2A Defendant Respondent.
cur.adv. vult.
March 7, 2005Eric Basnayake J.
This is a revision application filed by the plaintiff * petitioner (plaintiff) tohave the order of the learned Additional District Judge, Mt Lavinia, dated30.04.2004, set aside. This case was filed in the District Court of Mt.Lavinia against Namaratne Ramanayake and the Maharagama PradeshiyaSabha as 1 st and 2nd defendants. The Pradeshiya Sabha was succeededby the Maharagama Urban Council (2A respondent) in 2001. The plaintiffanyhow did not take steps to have the caption amended and to make theUrban Council a party to the case. The case was fixed for trial against theoriginal defendants and on the date of the trial as both defendants wereabsent, the case was fixed exparte. Exparte evidence was led on10.06.2003 against the original defendants namely NamaratneRamanayake and the Maharagama Pradeshiya Sabha. The judgment andthe decree were entered against the same parties and the decree wasordered to be served on them. The decree was not served on the PradeshiyaSabha as the Pradeshiya Sabha was not in existence then. Instead theMaharagama Urban Council the 2A respondent, who succeeded thePradeshiya Sabha, accepted the decree on 8.10.2003. On 23.10.2003the 2A respondent filed papers in court to have the said decree vacated.
At the inquiry the plaintiff took a preliminary objection with regard to thedelay in filing papers as these papers were admittedly filed out side thestipulated 14 day period. The court after inviting written submissions fromboth parties, the learned Additional District Judge made an order vacatingthe decree and allowing the 2A respondent to file answer.
The plaintiff complains that the 2A respondent filed papers to vacatethe exparte decree in terms of section 86(2) of the Civil Procedure Code
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Jayasinghe vs Ramanayake and Others (Eric Basnayake J)
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having taken the responsibility on behalf of Maharagama Pradeshiya Sabha.He states that the 2A respondent succeeded to the rights and liabilities ofthe original 2nd defendant and the learned Judge erred by not consideringsection 86(2) of the C. P. C.
Section 86(2) of the C. P. C. is as follows :
Where within fourteen days of the service of the decree entered againsthim for default, the defendant with notice to the plaintiff makesapplication to and thereafter satisfies court, that he had reasonablegrounds for such' default, the court shall set aside the judgment anddecree and permit the defendant to proceed with his defence as fromthe stage of default upon such terms as to costs or otherwise as to thecourt shall appear proper (emphasis is mine).
This section undoubtedly applies to the defendants. The 2A respondentstates that neither on the date of the exparte judgment nor at the time ofthe service of the decree was he a defendant in this case. This action wasfiled against Maharagama Pradeshiya Sabha. At the time of the judgmentand the service of the decree the Pradeshiya Sabha was not in existence.The 2A respondent further complained that the plaintiff had not compliedwith the mandatory provisions contained in section 214 of the PradeshiyaSabha Act No. 15 of 1987 nor section 220 of the Urban Council Act.
He further informs this court that in pursuance of the order of the learnedAdditional District Judge, the plaintiff has now taken steps to have thecaption amended and also move to file a replication and thereby compliedwith the order which he is seeking to revise. The relevant journal entry hadbeen marked 2R1.
The learned Additional District Judge retying on the judgment ofFonsekai/s. Dharmawardena(,) said that although the 2A respondent accepted thedecree that was issued to Maharagama Pradeshiya Sabha, it was notregular and hence by invoking the inherent powers vested in the courts byvirtue of section 839 of the C. P. C. the learned Additional District judgeset aside the decree and allowed the 2A respondent to file answer.
In the case of De Fonseka vs. Dharmawardena (Supra) His Lordship S.N. Silva, the President of the Court of Appeal (as he then was) held as
Sri Lanka Law Reports
(2005) 1 Sri L. R.
follows. “An inquiry that is held upon an application made by a defendantto set aside an ex parte decree, in terms of section 86(2), is not regulatedby any specific provision of the Civil procedure Code. Therefore the inquiryshould be conducted by the Judge in a manner that is consistent with theprinciples of natural justice and fairness".
I am of the view that it was the duty of the plaintiff to make the 2Arespondent a party to this case. The decree issued on the PradeshiyaSabha without making him a party, had no effect on the 2A respondent.Therefore I am of the view that the learned Additional District Judge hasrightly exercised the inherent powers in this case, in a situation where noother provision is available and at the same time to have the principle ofaudi alteram partem rule observed. Hence I am of the view that the plaintiff'sapplication^ without merit and is therefore dismissed. I make no order forcosts.
ANDREW SOMAWANSA. J, (P/CA) —I agreeApplication dismissed.