004-SLLR-SLLR-2001-V-3-MUNIDASA-v.-GUNADASA.pdf
MUNTDASA
v.GUNADASA
COURT OF APPEALWEERASEKERA, J.
W1GNESWARAN, J.
A.NO. 257/93(F)
C. EMBILIPITIYA 3053/LSEPTEMBER 25. 1996.
Ejectment – Plaintiff and his Attorney-at-Law absent on trial date -Action dismlssed-Appllcation under S. 87(3) of the Civil Procedure Codeto set aside Order – Order set aside, case fixed for trial – Appeal againstOrder restoring case to Roll – Is it a Final Order-S. 88(2),S. 754(1), S. 754(2)(5), S. 761, S. 763, S. 87(1), S. 85(1) Civil ProcedureCode.
Held :
(1) According to S, 754(5) “Order” means the final expression of anydecision in any civil action, proceeding or matter which is not ajudgment.
In this instace the statute has specifically stated that the order settingaside or refusing to set aside the judgment entered upon default shallbe accompanied by a Judgment and that such Judgment shall beliable to an appeal. Thus what was delivered was an “Order"accompanied by a judgment.
The dismissal of the Plaintiff’s action must amount to a Judgmentsince in terms of S. 87(2) it precludes the Plaintiff from bringing afresh action in respect of the same cause of action.
A Judgment means the statement given by the Judge of the groundsof a Decree or Order. When under S. 87(1) of the Code a Judgedismisses the Plaintiff’s action he is in effect saying that the Plaintiffhaving made default in appearance on such a day fixed for trial, theJudge using the powers ascribed to him under S. 87( 1) of the Code isdismissing the Plaintiff’s action.
A decree would be entered in terms of the Judgment.
(il) It would be erroneous to distinguish arbitrarily between a Judgmentunder S. 85( 1) and under Sec. 87( 1).
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No appeal lies against any judgment entered upon default – S. 87(2).Yet if the court which acts under S. 87(3) acts erroneously or arbitarilythe statute has quite rightly thought it fit to make available animmediate right of appeal to a party not bound on the discretion ofthe Court of Appeal but as of right.
Per Wigneswaran J.,
“The provisions of Cap. XII of the Code are statutorily enactedproceedings where consequences of default and cure are enumeratedindependent of the main case based on rights of parties."
AN APPEAL from the judgment of the District Court of Embilipitiya.
Cases referred to :
Strlwardena v. Air Ceylon – 1984. 1 SLR 286
A. S. Sangaraplllal and Brothers v. Kathiravelu – (Srikantha'sLaw Reports Vol. 2-99)
S.C. 45/76 (D.C. Panadura – 1403/RE)
S.C. 17/83 (D.C. Mt. Lavinia – 1105/RE)
Wijenayake u. Wijenayake – 5 Srikantha Law Reports 28.
W. P. Gunatilake with J. A. J. Udawatte and O. R. Samaranayake forDefendant-Appellant.
Manohara R. de Silva with Samantha Abeyjeewa for Plaintiff-Respon-dent.
Cur. adv. vull.
May 06, 1997.
WIGNESWARAN, J.The plaintiff-respondent instituted this action on 02. 09. 87against the defendant-appellant who was his tenant, to obtainan order of ejectment from the business premises described inthe schedule to the plaint.
The defendant filed answer and the case was fixed for trialon 16. 08. 90. The trial date was thereafter postponed for
01. 91, 06. 06. 91 and 01. 08. 91.
CA
Munldasa o. Gunadasa
(Wlgneswaran, J.)
19
On 01. 08. 91 the plaintiff and his Attorney-at-Law beingabsent the Court dismissed the plaintiff’s action with costs.
Thereafter an application under Section 87(3) of the CivilProcedure Code was made to set aside the said order of dismissal.
By order dated 22. 07. 93 the order of dismissal was setaside and the case was fixed for trial again.
The defendant-appellant thereafter filed this appeal againstthe order restoring the case to the roll.
The plaintiff-respondent at the hearing of this appeal tookup a preliminary objection that the application to this Courtshould have been byway of leave to appeal in terms of Sec. 754(2)and not by way of a direct appeal in terms of Sec. 754( 1).
In support of his contention the learned Counsel for theplaintiff-respondent has submitted as follows :-
The order dated 22. 07. 93 did not finally dispose of therights of parties and therefore not a final order. The decisionin Strlwardena v. Air Ceylon1 mentioned.
Though Section 88 refers to appeal to the Court of Appeal itdoes not say whether it should be with or without leave ofCourt. In this instance it should be construed to be withleave of Court.
An order dismissing the plaintiff’s action is not a “judgmententered upon default" as contemplated by Sec. 88. When aplaintiff defaults no judgment is entered upon.
In the present Civil Procedure Code judgment is enteredonly when the defendant defaults and not when the plaintiffdefaults. Sec. 88 thus applies only when the defendantdefaults. It has no application therefore to the facts of thiscase.
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Since the order setting aside the dismissal of the plaintiff’s
action reopens the case such order is not a final order.
These submissions would now be examined.
The main contention of the learned Counsel for the plaintiff-respondent is that the order dated 22. 07. 93 was not a finalorder and therefore appeal lies only in terms of Sec. 754(2) ofthe Civil Procedure Code and not Sec. 754( 1) as a direct appeal.
Sec. 88 of the Civil Procedure Code as amended by Act No.53 of 1980 states as follows:
“88 (1) No appeal shall lie against any judgment entered upondefault.
The order setting aside or refusing to set aside thejudgment entered upon default shall be accompaniedby a judgment adjudicating upon the facts andspecifying the grounds upon which it is made, and shallbe liable to an appeal to the Court of Appeal.
The provisions of sections 761 and 763 shall, mutatismutandis, apply to and in relation to the execution of adecree entered upon default, where an order refusingto set aside such decree has been made.”
There is no doubt that what was delivered on 22. 07. 93was an order. In fact Sec. 88(2) refers to such a determinationas an order setting aside or refusing to set aside the judgmententered upon default. But what is of special significance inSec. 88(2) is that such an “order” is expected to be accompaniedby a judgment adjudicating upon the facts and specifying thegrounds upon which it is made. In other words a mere order israised in level by the statute and given a special position becauseof the accompanying judgment. The speciality is that such anorder accompanied by a judgment adjudicating upon the factsand specifying the grounds upon which it is made, is liable toan appeal to the Court of Appeal.
CA
Munidasa u. Gunadasa
(Wlgneswaran, J.)
21
In terms of Sec.754(l) of the Civil Procedure code “anyperson who shall be dissatisfied with any judgpient pronouncedby any original court in any civil action, proceeding or matter towhich he is a party may prefer an appeal to the Court of Appealagainst such judgment for any error in fact or in law.” In termsof Sec. 754(2) "any person who shall be dissatisfied with anyorder made by any original Court in the course of any civil action,proceedings or matter to which he is or seeks to be a party, mayprefer an appeal to the Court of Appeal against such order forthe correctness of any error in fact or in law, with the leave ofthe Court of Appeal first had and obtained."
According to Sec. 754(5) “ ‘order’ means the final expressionof any decision in any civil action, proceeding or matter whichis not a judgment."
In this instance the statute has specifically stated that theorder setting aside or refusing to set aside the judgment enteredupon default “shall be accompanied by a judgment" and thatsuch judgment shall be liable to an appeal to the Court of Appeal.Thus what was delivered on 22. 07. 93 was an “order”accompanied by a “judgment”.
It is to be noted that an order can be a judgment in terms ofSec. 754(5) but not vice versa. In other words a judgment forpurposes of appeal must be governed by the provisions ofSec. 754( 1) of the Civil Procedure Code. Sec. 88(2) of the CivilProcedure Code gives the status of a judgment to thedetermination adjudicating upon the facts and specifying thegrounds upon which it is made. This judgment accompanies“the order setting aside or refusing to set aside the judgmententered upon default." Thus it is not "the order setting aside orrefusing to set aside the judgment entered upon default” whichis relevant to the present argument but the “judgmentadjudicating upon the facts and specifying the grounds uponwhich it is made”. The order dated 22. 07. 93 in this case didhave such an adjudication and such adjudication was not amere order.
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It is wrong to say that Sec. 87( 1) of the Civil ProcedureCode does not contemplate of a judgment unlike Sec. 85( 1)of the Civil Procedure Code. The dismissal of the Plaintiff’saction must amount to a judgment since in terms of Sec. 87(2)it precludes the plaintiff from bringing a fresh action in respectof the same cause of action. A “judgment" means the statementgiven by the judge of the grounds of a decree or order. Whenunder Sec. 87( 1) of the Civil Procedure Code a judge dismissesthe plaintiff's action he is in effect saying that the plaintiff havingmade default in appearance on such and such a day fixed fortrial, the judge using the powers ascribed to him under Sec. 87( 1)of the Civil Procedure Code is dismissing the plaintiff’s action.A decree would be entered in terms of this judgment.
It would thus be erroneous to distinguish arbitrarily betweena judgment under Section 85(1) and under Section 87(1). Thedetermination entered upon default in whichever way it may be.forms proceedings within proceedings which are given certainsanction by the statute. Generally only if the matter in disputehas been heard and determined between parties would it formres judicata. But Sec. 87(2) of the Civil Procedure Code precludesa fresh action in respect of the same cause of action even thoughthe main matter in dispute had not been heard and determinedby Court.
Serious consequences thus follow for the plaintiff when hisaction is dismissed due to default. No appeal lies against anyjudgment entered upon default (Sec. 87(2)]. Yet if the Courtwhich acts under Sec. 87(3) of the Civil Procedure Code actserroneously or arbitrarily the statute has quite rightly thoughtit fit to make available an immediate right of appeal to a partynot based on the discretion of the Court of Appeal but as ofright. If the Appellate Courts would find the order restoring thecase to the roll under Sec. 87(3) arbitrary, unreasonable,perverse or erroneous they would reverse such an order andthe plaintiff’s case would stand dismissed with no right to bringa fresh action on the same cause of action.
CA
Munldasa v. Gunadasa
(Wigneswaran, J.)
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It is therefore wrong to assert that the order made underSec. 87(3) is an order made in the course of proceedings. It isthe final order made in the course of proceedings withinproceedings. The provisions of chapter XII of the Civil ProcedureCode are statutorily enacted proceedings where consequencesof default and cure are enumerated independent of the maincase based on right of parties. Thus the words “order”,"judgment", “decree", “appeal” etc. have to be interpreted moreor less autochthonously within the ambit of the provisions ofchapter XII and in its context. The inclusion of Sec. 88(3) tothe Civil Procedure Code by Act No. 53 of 1980 strengthens theinterpretation given above.
Sec. 88(3) makes provision for execution of decree pendingappeal in terms of Sections 761 arid 763 of the Civil ProcedureCode where an order refusing to set aside such decree has beenmade. As stated by the learned Counsel for the defendant-appellant the provisions of Sec. 88(3) of the Civil ProcedureCode makes it abundantly clear that the order contemplated inSec. 88(2) of the Civil Procedure Code is an order having theeffect of a final judgment as envisaged by Sec. 754(5) of theCode sufficient enough to warrant the invocation of Sections761 and 763 to obtain execution of decree pending appeal.
Needles to say the decision of the Supreme Court inSiriwardene v. Air Ceylon(Supra) would thus have no relevanceto this matter. An order under Sec. 87( 1) of the Civil ProcedureCode is not “an order finally disposing of the rights of theparties”. In fact the stage of examining the right of parties hasstill not arisen. These are special proceedings unrelated to therights of parties.
A long line of cases too support the interpretation abovegiven. In A. S. Sangarapillai and Brothers v. Kathiravelu121 itwas held that due to the special provision contained inSec. 88(2) of the Civil Procedure Code and the inbuilt safeguardprovided therein and considering the tenor of the judgment ofVaitilingam, J. in S.C 45/7&3>Abdul Coder, J. in S.C. 17/83,4>
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and O. S. M. Seneulratne in C.A.L.A. 34/80 a direct appeal isprovided for in the circumstances and an application by way ofleave to appeal does not lie.
In Wijenayake v. Wljenayake151 it was held that a right ofappeal has been given under Sec. 88(2) of the Civil ProcedureCode by the words "shall be liable to an appeal to the Court ofAppeal". It was further said that one cannot conceive it to be anorder to appeal from with leave from the appellate Court firsthad and obtained as set out in Sec. 754(2) of the Civil ProcedureCode.
Thus the arguments put forward by the learned Counselfor the plaintiff-respondent do not appear to have much weight.
The preliminary objections are therefore over-ruled and thecase would now be fixed for hearing.
WEERASEKERA J. – I agree.
Preliminary objections over ruled case fixed for hearing.