035-NLR-NLR-V-04-NANNI-et-al-v.-MURUGEN-et-al.pdf
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1900.
July 25.
NA.NNI et alv. MURUGEN et al.
C. R., Point Pedro, 6,677.
Courts of Requests—Ordinance No. 12 of 1895, s. 8 (2)—Judgment for defaultof appearance.
Per Bonser, C.J.—It is doubtful if section 8, sub-section (2), whichpermits the Commissioner to enter judgment against the defendant fordefault of appearing, applies to a case of adjourned hearing.
Where titles to lands are in dispute, the commissioner cannot exercisethe power of entering judgment aganist defendant by default, but heshould require the plaintiff to give evidence to support his claim.
T
HIS was an action in ejectment. Issues were framed on thepleadings, evidence for plaintiff fully heard, and the
evidence for the defendant only partly heard on the 3rdNovember, 1899, at Point Pedro. For want of time on that daythe further hearing was adjourned, by consent of parties, to 7 a.m.of the 10th November at Cliavakachcheri. On the 10th, theCommissioner recorded as follows: —
“ Plaintiffs only present. Defendants called—absent.”
“ This case was fixed for 7 a.m. to-day that it may not interfere” with my usual work for the day at Chavakachcheri. The Chief“ Clerk called out names again at 8.30 a.m., and plaintiffs alone were“ present. The defendants have failed to appear even when their“ names were called in my presence at 8.45.
■“ Let decree be entered in favour of plaintiffs in default of” appearance of defendants as prayed for in the plaint.”
The defendants appealed.
Maartensz, for appellant.—The order entering judgment bydefault against the defendant is wrong. In land cases sub-section 2 of section 8 of the Ordinance No. 12 of 1895 providesthat where defendant is in default the Commissioner shall orderthe plaintiff to adduce evidence and give judgment on the meritswithout reference to the default committed.
Thiru-Ndvuk-Arasu, for respondent.—No appeal lies againstthe present judgment, because it was entered for default ofappearance (sub-section 6 of section 8 of Ordinance No. 12 of1895).
Bonseu, C.J.—
This is an appeal which, of course, must be allowed. I cannotunderstand how it was that the plaintiff could have been advisedto resist this application and incur the expense of instructing
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counsel to oppose it. The action was an action for the recoveryof land. The trial took place at Point Pedro, and is said to havelasted three days. The plaintiffs’ case had been concluded andevidence had been gone into on behalf of the defence. TheActing Commissioner on the 8rd November, at the close ofthe day’s proceeding, adjourned the case to be continued atChavakaohcheri, fourteen miles away, at 7 a.m. on the 10thNovember. On that day he records this: “ Plaintiffs onlypresent. Defendants called—absent.”
“ This case was fixed for 7 a.m. to-day that it may not interfere” with my usual work for the day. The Chief Clerk called out“ names at 8.30 a.m. and plaintiffs alone were then present. The'* defendants have failed to appear even when their names were“ called in my presence at 8.45.
“ Let decree be entered in favour of plaintiffs in default of“ appearance of defendants as prayed for in plaint.”
So that, without discussing the evidence of the plaintiffs andtheir witnesses, or the considerable body of evidence which hadbeen adduced on the part of the defendants, the Commissionergave judgment for the plaintiff on the simple and sole groundthat the defendants were in default in attending at the adjournedhearing. Now, in so doing he acted in direct contravention ofthe provisions of the Courts of Requests Amendrr mt Ordinanceof 1895. Section 8, sub-section 2, of that Ordinance provides that,if the defendant does not appear on the day fixed for the hearingof the action without sufficiently excusing his absence, theCommissioner may on due proof of the service of summons,notice, or order requiring such appearance, enter judgment bydefault against the defendant.
It seems to me very doubtful if that provision relates to a caseof adjourned hearing, but it is expressly provided that, wheretitles to land come into question, the Commissioner is not toexercise the power of entering judgment against the defendantby default, but is to require the plaintiff to give evidence tosupport his claim. “ And the Commissioner shall then give such“ judgment on the merits as justice shall require without refer-” ence to default.” The case must go back to the Court ofRequests, that the trial may be continued and the defendants mayhave an opportunity of completing their case.
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1900.
July 26.
Bonsrr, C .1
7J. N. 80201 (6/33)
1900.
June 2.
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GUNAWARDANE v. ALEXANDER.P. C., Galle, 7,496.
Appeal—Criminal Procedure Code, s. 340—Duty of counsel signing petition of
The proctor or advocate who certifies a petition of appeal undersection 340 of the Criminal Procedure Code pledges his professionalreputation to the propriety of the appeal, and if the petition be foundto be frivolous the Supreme Court will consider that he is eitherincompetent to discharge the duties of his profession, or that he istrifling with the Court.
HE accused, having been convicted of criminal trespass and
sentenced to one month’s rigorous imprisonment, professedto appeal on a matter of law, and his petition of appeal wassigned by his proctor, in terms of section 340 of the CriminalProcedure Code, and bore a certificate under his hand that thematter of law stated in the petition was a fit question foradjudication by the Supreme Court.
H. de Vos (with him C. E. de Vos) appeared for appellant.
Bonser, C.J., who heard this case at Galle while on circuit,dismissed the appeal by the following judgment:—
No appeal lies in this case except on a matter of law. Toprevent frivolous appeals being lodged, the Code requires that anappeal on a matter of law be certified by an advocate or a proctor,who thereby pledges his professional reputation to the proprietyof the appeal. I am sorry to say that this petition is a frivolousone, and I am driven to the conclusion either that the proctor whosigned the petition is incompetent or that he has trifled with theCourt.
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