MERCANTILE CREDIT LTD., v. JAYATILAKE AND TWO OTHERS

036-SLLR-SLLR-1993-2-MERCANTILE-CREDIT-LTD.-v.-JAYATILAKE-AND-TWO-OTHERS.pdf


418
Sri Lanka Law Reports
[1993] 2 Sri L.R.
MERCANTILE CREDIT LTD.,
v.JAYATILAKE AND TWO OTHERS
COURT OF APPEALS. N. SILVA, J. ANDD. P. S. GUNASEKERA, J.
A. NO. 794/91.
C. COLOMBO NO. 28/D.R.
JUNE 9 AND 29, 1993.
Revision – Difference in Sinhala and English versions of Debt Recovery (SpecialProvisions) Act No. 2 of 1990 Sections 6(3) – Decree nisi and decree absolute— 'Ut res magis valeat quam pereat' – Sections 19, 6(2) of the Debt Recovery(Special Provisions) Act No. 2 of 1990.
There is no provision in the Sinhala version of section 6(3) of the Debt Recovery(Special Provisions) Act No. 2 of 1990 which empowers the Court to make thedecree nisi absolute where the cause shown by the defendant is found to beunsatisfatory. But in the English version of section 6(3) clearly provides for adecree absolute to be entered in such circumstances.
Held :
The provisions of Section 4(2) and the form of decree nisi as appearing in theFirst Schedule to the Debt Recovery (Special Provisions) Act No. 2 of 1990and the provisions in s. 19 of this Act which provides for application of theprovisions of the Civil Procedure Code in respect of a matter which is notspecifically provided for in the Act empower the Court to enter decree absolute.Where there is a right there should be a remedy. Therefore where the defendantfails to satisfy Court that there is an issue on a question in dispute which oughtto be tried, the decree nisi should be made absolute. The principle of interpretation“ ut res magis valeat quam pereat “ requires that where the choice is betweentwo interpretations, the narrower of which would fail to achieve the manifestpurpose of the legislature, a construction which would reduce the legislation tofutility should be avoided and the broader construction based on the view thatParliament would legislate only for the purpose of bringing about an effectiveresult should rather be accepted.
The decree nisi should be made absolute in every situation where the defendantfails to appear upon service of decree nisi or having appeared fails to obtainleave of Court to show cause against the decree as provided in s. 6(2) of theAct.
APPEAL from order of the District Court of Colombo.
Chula de Silva, P.C. with Shiva de Silva and M. Hussain for petitioner.
W. Dayaratne with Sarathchandra Liyanage for 1st respondent.
Cur. adv. vult.
CAMercantile Credit Ltd., v. Jayatilake and Two Others (S. N. Silva. J.)419
June 29, 1993S. N. SILVA, J.
This is an application in revision from the order dated 13.8.91 of theDistrict Judge, Colombo. By that order learned District Judge refusedto enter decree absolute in this case on the basis that there is noprovision in the Sinhala version of section 6(3) of the Debt Recovery(Special Provisions) Act No. 2 of 1990 which empowers the Courtto make the decree nisi absolute where the cause shown by thedefendant is found to be unsatisfactory. The learned District Judgeproceeded on the basis that decree absolute could be entered onlywhere the defendant fails to appear and show cause against thedecree nisi. The resulting position is that where the defendant appearsbut fails to satisfy Court that there is an issue on a question in disputewhich ought to be tried, the decree nisi which has been entered willremain but no decree absolute will be entered in the case, at anystage. The provision of section 6(3) as appearing in English clearlyprovide for a decree absolute to be entered in every situation, wherethe defendant defaults on obtaining leave to appear and to showcause against the decree nisi.
The same question came up for consideration by a bench oftwo judges of this Court in case No. C.A.L.A. 142/91 D.C. ColomboCase No. 5/DR, decided on 18.12.92. Anandacoomaraswamy, J withEdussuirya, J. agreeing, set aside the order of the learned DistrictJudge in that case and directed that decree absolute be entered ina situation where the defendant fails to satisfy Court that there isan issue on a question in dispute which ought to be tried. In arrivingat that decision Their Lordships took the view that the provisions ofthe Civil Procedure Code relating to summary procedure will appplyand that the decree nisi should therefore be made absolute. Furthermore it was held that where there is a right there should be a remedy.
Learned President's counsel submits that in addition to the reasonsstated by Anandacoomaraswamy, J. there is further support for thesame conclusion that may be derived from the provisions of section4(2) and the form of the decree nisi as appearing in the first scheduleto Act No. 2 of 1990. He also relies on section 19 of the Act whichprovides for the application of the provisions of the Civil ProcedureCode in respect of a matter which is not specifically provided for inthe Act.
We have considered the submissions of learned counsel. Thegrounds urged by learned President's counsel further support theconclusion already arrived by this Court. Section 4(2) provides for
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a decree nisi to be entered in the form as appearing in the firstschedule to the Act. The form specifically states that the defendantshould show cause " as to why the decree nisi should not be madeabsolute. " Hence it necessarily follows that if the defendant fails tosatisfy Court that there is an issue on a question in dispute whichought to be tried as provided in section 6(2) (c), the decree nisi shouldbe made absolute. We are of the view that the provisions of section6(3) (in Sinhala) relied on by learned District Judge should be readtogether with the provisions of section 4(2) and the form of the decreenisi as appearing in the first schedule. The only conclusion that onecould arrive at then, is that where the defendant fails to satisfy Courtthat there is an issue on a question in dispute which ought to betried, the decree nisi should be made absolute. The principle ofinterpretation," ut res magis valeat quam pereat “ requires that wherethe choice is between two interpretations, the narrower of which wouldfail to achieve the manifest purpose of the legislature, we Should avoida construction which would reduce the legislation to futility and shouldrather accept the broader construction based on the view that Parliamentwould legislate only for the purpose of bringing about an effectiveresult (Maxwell on Interpretation of Statutes 12th Edition page 45).
As noted above the construction given by learned District Judgebased only upon the words of section 6(3) (in Sinhala) would resultin the decree nisi obtained by the plaintiff not being made absolutewhere the defendant has failed to satisfy the Court that there is anissue on a question .which ought to be tried. The plaintiff is thus leftwithout a remedy although the defendant has failed to satisfy Courtin showing cause against the decree nisi. Thus, legislation intendedto afford an expeditious remedy is rendered futile, defeating itspurpose. Therefore, we hold that learned Distr t Judge was in errorwhen he decided that a decree nisi cannot be made absolute wherethe defendant fails to satisfy Court that there is an issue or a questionin dispute which ought to be tried. The deer nisi should be madeabsolute in every situation where the defendant fails to appear uponservice of decree nisi or having appeared fails to obtain leave of Courtto show cause against the decree as provided in 6(2) of the Act.
The application is allowed and the order dated 13.8.91 is set aside.The District Court will npw make the decree nisi absolute. No Costs.
D. P. S. GUNASEKARA, J. – I agree.
Application allowed.
Order of District Judge set aside.