w w w . L a w y e r S e r v i c e s . i n



K. Mahendran, Trincomalee v/s Deutche Welle Radio and TV International, Colombo


Company & Directors' Information:- K N INTERNATIONAL LIMITED [Active] CIN = U45201UP2002PLC026841

Company & Directors' Information:- D B H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1950PTC057209

Company & Directors' Information:- V AND S INTERNATIONAL PVT LTD [Active] CIN = U74899DL1992PTC049964

Company & Directors' Information:- S S A INTERNATIONAL LTD [Active] CIN = U15122DL1995PLC068186

Company & Directors' Information:- A T N INTERNATIONAL LIMITED [Active] CIN = L65993WB1983PLC080793

Company & Directors' Information:- D D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB1995PTC016929

Company & Directors' Information:- T K INTERNATIONAL LIMITED [Active] CIN = U55101OR1982PLC001092

Company & Directors' Information:- N R INTERNATIONAL LIMITED [Active] CIN = L74999WB1991PLC051738

Company & Directors' Information:- K J INTERNATIONAL LIMITED [Active] CIN = L15142PB1993PLC011274

Company & Directors' Information:- A K S INTERNATIONAL LIMITED [Active] CIN = U74899DL1996PLC076327

Company & Directors' Information:- S P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70100WB1994PTC063228

Company & Directors' Information:- B. K. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999DL2006PTC157013

Company & Directors' Information:- I R P (RADIO) PVT LTD [Active] CIN = U32302WB1948PTC016452

Company & Directors' Information:- R S C INTERNATIONAL LIMITED [Active] CIN = L17124RJ1993PLC007136

Company & Directors' Information:- J C INTERNATIONAL LIMITED [Active] CIN = U51109WB1999PLC089037

Company & Directors' Information:- M T L INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U24219UP2001PTC025965

Company & Directors' Information:- T C N S INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U51311DL1996PTC080096

Company & Directors' Information:- K V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL2003PTC120770

Company & Directors' Information:- G N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2001PTC110766

Company & Directors' Information:- S H A M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U45200MH1994PTC079867

Company & Directors' Information:- M K INTERNATIONAL LIMITED [Active] CIN = U51909DL1996PLC083430

Company & Directors' Information:- V. G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101DL2007PTC162540

Company & Directors' Information:- D R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24132DL1996PTC079867

Company & Directors' Information:- R H INTERNATIONAL LIMITED [Active] CIN = U72900DL2007PLC159452

Company & Directors' Information:- G & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17120DL2012PTC234047

Company & Directors' Information:- A & D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U36109RJ2007PTC024176

Company & Directors' Information:- K A I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U13100OR2007PTC009647

Company & Directors' Information:- C G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U99999MH1996PTC097577

Company & Directors' Information:- K C INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060402

Company & Directors' Information:- M P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29130MH1997PTC107943

Company & Directors' Information:- A S INTERNATIONAL LIMITED [Strike Off] CIN = U74899DL1993PLC056158

Company & Directors' Information:- H C S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15312PB2012PTC036219

Company & Directors' Information:- L N G INTERNATIONAL LIMITED [Active] CIN = U51909DL1993PLC053438

Company & Directors' Information:- S. D. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UP2008PTC036047

Company & Directors' Information:- S AND I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1995PTC072210

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- S J M INTERNATIONAL LIMITED [Active] CIN = U52110DL1987PLC028571

Company & Directors' Information:- S B S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL1997PTC085878

Company & Directors' Information:- R. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51225DL2008PTC177405

Company & Directors' Information:- B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50300PB2014PTC038889

Company & Directors' Information:- S F INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999PB2000PTC023654

Company & Directors' Information:- I K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066267

Company & Directors' Information:- C K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045625

Company & Directors' Information:- L A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB2010PTC033683

Company & Directors' Information:- H R V INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899UP1993PTC057665

Company & Directors' Information:- K P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24110GJ2007PTC050026

Company & Directors' Information:- V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U85100MH1997PTC109647

Company & Directors' Information:- N N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL1999PTC099094

Company & Directors' Information:- S R V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74140DL2012PTC243060

Company & Directors' Information:- U M I INTERNATIONAL LTD [Strike Off] CIN = U51909WB1990PLC049671

Company & Directors' Information:- A. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51900MH2010PTC228539

Company & Directors' Information:- B R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055562

Company & Directors' Information:- M J INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899DL1982PTC013231

Company & Directors' Information:- D N INTERNATIONAL LIMITED [Active] CIN = U36911TN1996PLC034205

Company & Directors' Information:- M. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70102DL2007PTC164267

Company & Directors' Information:- H AND Z INTERNATIONAL LIMITED [Active] CIN = U10102AS1995PLC004509

Company & Directors' Information:- M G M INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC013580

Company & Directors' Information:- J J INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51109DL1992PTC047657

Company & Directors' Information:- H D INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060720

Company & Directors' Information:- K. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2012PTC049338

Company & Directors' Information:- J & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18109DL2012PTC238392

Company & Directors' Information:- K R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17291DL2008PTC172188

Company & Directors' Information:- S P INTERNATIONAL PVT LTD [Strike Off] CIN = U99999UP1965PTC003091

Company & Directors' Information:- J M INTERNATIONAL PVT LTD [Active] CIN = U45201WB1991PTC050829

Company & Directors' Information:- D P C INTERNATIONAL PVT LTD [Active] CIN = U74210WB1984PTC037378

Company & Directors' Information:- B M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048736

Company & Directors' Information:- S G INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC086547

Company & Directors' Information:- B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15412WB1999PTC089316

Company & Directors' Information:- V A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL2000PTC104712

Company & Directors' Information:- S. J. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U27310DL2007PTC169438

Company & Directors' Information:- N H B INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U67190MH1997PTC107387

Company & Directors' Information:- P D K INTERNATIONAL PVT LTD [Active] CIN = U74140WB1992PTC056468

Company & Directors' Information:- G. S. C. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29120MH1994PTC080380

Company & Directors' Information:- A J INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1994PTC060818

Company & Directors' Information:- J S M INTERNATIONAL LIMITED [Active] CIN = U85110KA1996PLC020046

Company & Directors' Information:- M K N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2002PTC117207

Company & Directors' Information:- N M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74120MH2012PTC234492

Company & Directors' Information:- S S M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC089876

Company & Directors' Information:- A P J INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909HR2010PTC040304

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- V R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2011PTC043952

Company & Directors' Information:- A & F INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U00265KA1995PTC018998

Company & Directors' Information:- M E C INTERNATIONAL PRIVATE LIMITED [Active] CIN = U33111GJ1963PTC082423

Company & Directors' Information:- J K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01100MH2004PTC144492

Company & Directors' Information:- D. S. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2010PTC039954

Company & Directors' Information:- B L S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UR2010PTC033210

Company & Directors' Information:- R B INTERNATIONAL LTD [Strike Off] CIN = U18101WB1993PLC059515

Company & Directors' Information:- P Y INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U51102RJ1995PTC010133

Company & Directors' Information:- R C INTERNATIONAL LIMITED [Strike Off] CIN = U51909TG1991PLC012477

Company & Directors' Information:- N J INDIA INTERNATIONAL LIMITED [Strike Off] CIN = U70101UP2004PLC028722

Company & Directors' Information:- I AND A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72200TG1995PTC019936

Company & Directors' Information:- P V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1998PTC094598

Company & Directors' Information:- I B INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200DL2000PTC105735

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- K K M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17110MH1995PTC089836

Company & Directors' Information:- Z. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U21098MH2010PTC210735

Company & Directors' Information:- J R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909TN2002PTC048744

Company & Directors' Information:- L S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC193390

Company & Directors' Information:- M B INTERNATIONAL PVT LTD [Strike Off] CIN = U52190DL2001PTC110572

Company & Directors' Information:- O K R INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900DL1996PTC077152

Company & Directors' Information:- B B C INTERNATIONAL PVT LTD [Strike Off] CIN = U25209WB1984PTC037383

Company & Directors' Information:- K S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909MH2001PTC134345

Company & Directors' Information:- A TO Z INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51101TN1992PTC022507

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

Company & Directors' Information:- J S INTERNATIONAL PVT LTD [Strike Off] CIN = U51900MH1982PTC027604

Company & Directors' Information:- A C INDIA INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034784

Company & Directors' Information:- S. S. N. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29306DL1981PTC012616

Company & Directors' Information:- INDIA INTERNATIONAL COMPANY PRIVATE LIMITED [Active] CIN = U51228MH1955PTC009483

Company & Directors' Information:- R K INTERNATIONAL PVT LTD [Strike Off] CIN = U63040PB1982PTC004926

Company & Directors' Information:- L & P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52100DL2016PTC292025

Company & Directors' Information:- J D K INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC014087

Company & Directors' Information:- R B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52300DL2012PTC243998

Company & Directors' Information:- P AND P INTERNATIONAL PRIVATE LIMITED. [Strike Off] CIN = U24100OR1993PTC003244

Company & Directors' Information:- B P INTERNATIONAL PVT LTD [Strike Off] CIN = U31909HP1984PTC005785

Company & Directors' Information:- E C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1982PTC013146

Company & Directors' Information:- R A R E INTERNATIONAL PRIVATE LIMITED [Active] CIN = U31900DL2005PTC134395

Company & Directors' Information:- S R A INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1980PTC010389

Company & Directors' Information:- N M TV PRIVATE LIMITED [Strike Off] CIN = U92132PY2004PTC001798

Company & Directors' Information:- R Z INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900KA2012PTC064445

Company & Directors' Information:- M M INTERNATIONAL PVT LTD [Converted to LLP] CIN = U51312DL1977PTC008583

Company & Directors' Information:- RADIO CORPORATION LTD. [Under Process of Striking Off] CIN = U51395UR1936PLC000708

Company & Directors' Information:- A K INDIA INTERNATIONAL PRIVATE LTD [Strike Off] CIN = U45201DL1981PTC012389

Company & Directors' Information:- O P INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U55101PB2013PTC037499

Company & Directors' Information:- J & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900PB2013PTC037302

Company & Directors' Information:- A P M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900TN2014PTC095953

Company & Directors' Information:- Y. A. INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900RJ2012PTC040431

Company & Directors' Information:- D & A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262713

Company & Directors' Information:- R L INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18204UP2016PTC076344

Company & Directors' Information:- V P S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U93030UP2014PTC066242

Company & Directors' Information:- J V INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51102DL2012PTC240197

Company & Directors' Information:- S R L INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U20296AP2013PTC085533

Company & Directors' Information:- M D INTERNATIONAL LIMITED [Active] CIN = U74140MH1981PTC025007

Company & Directors' Information:- INTERNATIONAL CO PRIVATE LIMITED [Strike Off] CIN = U51109UR1935PTC000663

Company & Directors' Information:- A B C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1990PTC041062

Company & Directors' Information:- D C M INTERNATIONAL LTD. [Strike Off] CIN = U99999DL2000PTC004208

Company & Directors' Information:- B C I INTERNATIONAL LIMITED [Strike Off] CIN = U74900DL1977PLC008468

    SC/Appeal No. 194 of 2016, SC/HCLA/5 of 2016, HCT/APP/52 of 2015 & LT Trincomalee No. LT/TC/121/12

    Decided On, 07 August 2019

    At, Supreme Court of Sri Lanka

    By, THE HONOURABLE JUSTICE SISIRA J. DE ABREW
    By, THE HONOURABLE JUSTICE L.T.B. DEHIDENIYA & THE HONOURABLE JUSTICE J.S. THURAIRAJA

    For the Appearing Parrties: Niranjan Arulpragasam, Thilak Wijesinghe with Ms. G.M. Goonesinghe, Advocates.



Judgment Text

Sisira J. de Abrew, J

This is an appeal against the judgment of the Civil Appellate High Court dated 1.7.2014 wherein the learned Judges of the Civil Appellate High Court affirmed the order of the District Judge of Colombo dated 28.1.204 wherein he fixed the matter for ex-parte trial. Being aggrieved by the said judgment of the Civil Appellate High Court the Defendant-Petitioner-Appellant has appealed to the court. This court by its order dated 14.6.2016 granted leave to appeal on questions of law set out in paragraphs 41(a),(b),(c) and (e) of the Petition of Appeal dated 11.8.2014 which are set out below.

1. 41 (a)(i) - Has the learned trial Judge made a grave procedural error in fixing DC Colombo Case No.6693/Spl for ex-parte trial on 28.1.2004?

2. 41(a)(ii) – In any event, did the learned trial Judge not have jurisdiction to fix DC Colombo Case No.6693/Spl for ex-parte trial on 28.1.2004?

3. 41(a)(iiI) – If so, are the proceedings in Case No.6693/Spl subsequent to 28.1.2004, a nullity?

4. 41(b)(i) – Are the circumstances pleaded in the Petition of the Petitioner filed in WP/HCCA/COL/33/2012/RA constitute special and/or extraordinary circumstances shocking the conscience of court warranting the exercise of revisionary jurisdiction by Their Lordships of the High Court of Civil Appeal in favour of the Petitioner?

5. 41(b)(ii) – Do the circumstances pleaded in the Petition ex facie establish that a positive miscarriage of justice has been caused to the Petitioner due to fundamental procedural error caused due to the Order of the learned trial Judge in fixing the DC Colombo Case No.6693/Spl for ex-parte trial on 28.1.2004?

6. 41(b)(iii) – If so, have Their Lordships of the High Court of Civil Appeal erred in law in holding that the Petitioner is not entitled to exercise revisionary jurisdiction due to the alleged delay on the part of the Petitioner?

7. 41(c) – Was the Respondent bound and obliged in law to establish the case against the Petitioner on a balance of probability, even in an ex-parte trial?

8. 41(e) – Is the judgment of Their Lordships of the High Court of Civil Appeal dated 1.7.2014, contrary to well established legal principles?

Facts of this case may be briefly summarized as follows.

The Plaintiff-Respondent-Respondent (hereinafter referred to as the Plaintiff-Respondent) filed a case in the District Court of Colombo moving court to issue an interim injunction and an enjoining order preventing the Defendant-Petitioner-Appellant (hereinafter referred to as the Defendant-Petitioner) selling the bus bearing Registration Number 62-4959. The learned District Judge by order dated 3.10.2003 refused to grant an interim injunction and fixed the matter for answer on 3.12.2003. On 2.12.2003 the Plaintiff-Respondent filed a motion requesting permission of court to file an amended plaint on 3.12.2003. The learned District Judge on 2.12.2003 made an order to file the motion and mention on 3.12.2003. It has to be stated here that no amended plaint was filed on 2.12.2003. The journal entry dated 3.12.2003 carried the following matters. “Amended plaint is being filed. Objections (if any) and answer on 28.1.2004.” According to the above journal entry the answer should be filed on 28.1.2004. On 28.1.2004, the learned District Judge accepted the amended plaint and fixed the case for ex-parte trial. The journal entry dated 28.1.2004 carries the following material. “Objection and answer – No (not filed). The defendant is absent. No legal representation for the defendant. Amended plaint is accepted. Case is fixed for ex-parte trial. Ex-parte trial is fixed for 5.3.2004.” There is nothing to indicate that the amended plaint was accepted on 3.12.2003. According to the above journal entry the amended plaint was accepted only on 28.1.2004. What is the basis on which that the learned District Judge on 28.1.2004 fixed the case for ex-parte trial? If the answer had been filed when the case was called on 28.1.2004, the learned District Judge could not have fixed the case ex-parte trial even if the Defendant-Petitioner was absent and unrepresented. If the answer had been filed when the case was called on 28.1.2004, it would have been the duty of the learned District Judge to fix the case for trial even if the Defendant-Petitioner was absent and unrepresented. Then what was the basis on which the case was fixed for ex-parte trial when it was called on 28.1.2004? It appears that the basis was the failure to file the answer. Could the Defendant-Petitioner have filed the answer on 28.1.2004? Since the amended plaint has been accepted by court on 28.1.2004, the Defendant-Petitioner could not have filed an answer on the amended plaint on 28.1.2004. Since the court has accepted the amended plaint on 28.1.2004, it was the duty of court to have given an opportunity to the Defendant-Petitioner to file an answer on the amended plaint. But the learned District Judge did not give this opportunity to the Defendant-Petitioner and fixed the case for ex-parte trial. Therefore it is seen from the above material that the answer on the amended plaint was not due on 28.1.2004. The learned District Judge on 28.1.2004 could not have fixed the case for ex-parte trial even on the basis that the Defendant-Petitioner was absent and unrepresented because the acceptance of the amended plaint has taken place only on 28.1.2004. When the amended plaint is accepted, the original plaint does not exist. Then it becomes the duty of court to act under Section 55 of the Civil Procedure Code and serve summons on the defendant if the defendant is absent in court. If the defendant is present in court, the court should give him an opportunity to file his answer on the amended plaint. The learned District Judge has not taken the above steps. Therefore it is seen from the above material that the District Court has not fixed a date to file answer on the amended plaint. The learned District Judge on the day that the amended plaint was accepted without fixing a date to file an answer, has fixed the case for ex-parte trial which is wrong. At this stage it is relevant to consider section 84 of the Civil Procedure Code which reads as follows. If the defendant fails to file his answer on or before the day fixed for the filing of the answer, or on or before the day fixed for the subsequent filing of the answer or having filed his answer, if he fails to appear on the day fixed (or the hearing of the action, and if the court is satisfied that the defendant has been duly served with summons, or has received due notice of the day fixed for the subsequent filing of the answer, or of the day fixed for the hearing of the action, as the case may be, and if, on the occasion of such default of the defendant, the plaintiff appears, then the court shall proceed to hear the case ex parte forthwith, or on such other day as the court may fix. Under Section 84 of the Civil Procedure Code, the court is empowered to fix a case for ex-parte trial if the defendant fails to file his answer on or before the day fixed for the filling of the answer or on or before the day fixed for the subsequent filing of the answer. This is one of the grounds discussed in Section 84 of the Civil Procedure Code. After the amended plaint was accepted, did the court fix a date for filing of the answer? The answer is clearly in the negative. It has to be noted here that after accepting the amended plaint on 28.1.2004, the court without fixing a date to file the answer, fixed the case for ex-parte trial. There was no opportunity for the Defendant-Petitioner to file his answer on the amended plaint since the court has failed to fix a date for the answer on the amended plaint. Therefore the argument that the Defendant-Petitioner has failed to file his answer on or before the day fixed for filing of the answer or on or before the day fixed for the subsequent filing of the answer cannot be accepted. For the above reasons I hold that the Defendant-Petitioner has not violated Section 84 of the Civil Procedure Code; that the learned District Judge on 28.1.2004 could not have fixed the case for ex-parte trial; and that the order made by the learned District Judge on 28.1.2004 fixing the case for ex-parte trial without giving an opportunity for the defendant to file his answer is wrong, a nullity and has violated a fundamental rule. Failure by the District Court to give an opportunity for the Defendant-Petitioner to file his answer upon acceptance of the amended plaint is a violation of a fundamental rule.

For the benefit of the trial Judges and legal practitioners of this country I would like to set down here the following guidelines.

1. When an amended plaint is accepted by court, the court cannot on the same day fix the case for ex-parte trial on the basis that the defendant is absent or he did not file the answer.

2. When an amended plaint is accepted by court, the court must give an opportunity for the defendant to file his answer.

3. When an amended plaint is accepted by court, it becomes the duty of court to summon the defendant if he is absent in court because the amended plaint has to be considered as a new plaint.

Learned President’s Counsel for the Defendant-Petitioner admitted in court that the application filed by the Defendant-Petitioner to purge the default under Section 86(2) of the Civil Procedure Code has been rejected by the District Court. For the aforementioned reasons, I hold that the order made by the District Court on 28.1.2004 fixing the case for ex-parte trial is wrong and a nullity.

The learned District Judge took up the ex-parte trial and delivered the judgment dated 20.4.2004 giving relief prayed for in paragraph (a) of the amended plaint. Then the learned District Judge by the said judgment ordered the Defendant-Petitioner to pay a sum of Rs.1,344,192/- and Rs.3000/- per day from 4.12.2003 until vehicle bearing registration No.62-4959 is returned to the Plaintiff-Respondent. The learned District Judge by the said Judgment dated 20.4.2004 has not granted the other reliefs claimed by the Plaintiff-Respondent.

The reliefs claimed by the Plaintiff-Respondent that he (the Plaintiff-Respondent) is the registered owner of the vehicle bearing registration No. 62-4959 and that the order compelling the Defendant-Petitioner to hand over the said vehicle to the Plaintiff-Respondent were not granted.

It is undisputed that the Plaintiff-Respondent purchased the vehicle on a hire purchase agreement signed with the Defendant-Petitioner and that the Defendant-Petitioner seized the said vehicle from the possession of the Plaintiff-Respondent as he failed to pay the monthly installments. This has been admitted by the Plaintiff-Respondent in her evidence. The interim injunction claimed by the Plaintiff-Respondent in her original plaint directing the Defendant-Petitioner not to sell the above vehicle was rejected by the learned District Judge by his order dated 3.10.2003. Learned President’s Counsel for the Defendant-Petitioner submitted that the Defendant-Petitioner sold the vehicle since the above relief claimed by the Plaintiff-Respondent had been rejected by court and as such the said vehicle is not in the possession of the Defendant-Petitioner. Learned President’s Counsel for the Defendant-Petitioner submitted that in terms of the ex-parte judgment of the District Court, the Defendant-Petitioner has to give Rs.3000/- per day to the Plaintiff-Respondent until the vehicle is returned to the Plaintiff-Respondent but the Defendant-Petitioner is not in a position to hand over the vehicle since it has been sold. Thus it is seen that if the ex-parte judgment of the District Court dated 20.4.2004 is affirmed, the Defendant-Petitioner has to pay Rs.3000/- per day to the Plaintiff-Respondent without any terminal date. This ex-parte judgment of the District Court dated 20.4.2004 has been delivered as a result of the order of the District Court dated 28.1.2004 fixing the case for ex-parte trial.

I have to ask the question whether the order dated 28.1.2004 and the ex-parte judgment dated 20.4.2004 shock the conscience of court. I have to answer this question in the affirmative. If an order or a judgment of the trial court shocks the conscience of court, the appellate court should, in revision, interfere with such an order or judgment. This view is supported by the following judicial decisions.

Bank of Ceylon Vs Kaleel and Others [2004] 1 SLR 284 at page 287(CA) it was held as follows. “In any event, for this Court to exercise revisionary jurisdiction the order challenged must have occasioned a failure of justice and be manifestly erroneous which go beyond an error or defect or irregularity that an ordinary person would instantly react to it. In other words the order complained of is of such a nature which would have shocked the conscience of Court.” Vanik Incorporation Ltd Vs Jayasekara [1997] 2 SLR 365 (CA) Justice Edussuriya held as follows. “Revisionary powers should be exercised where a miscarriage of justice has occurred due to a fundamental rule of procedure being violated, but only when a strong case is made out amounting to a positive miscarriage of justice.”

The learned Judges of the Civil Appellate High Court have concluded that failure on the part of the learned District Judge to give an opportunity for the Defendant-Petitioner to file an answer has caused a grave injustice but refused to intervene with the order of the learned District Judge on the ground of delay on the part of the Defendant-Petitioner. I note that the revision application has been filed in the Civil Appellate High Court after eight years of the order fixing

SC Appeal 121/2016

11

the case for ex-parte trial. As I pointed out earlier, the Defendant-Petitioner, in terms of the ex-parte judgment, has to pay Rs.3000/- per day to the Plaintiff-Respondent without any terminal date. As a result of a judgment or an order in the lower court if a party in a case has to make payments without a terminal date, delay in seeking revisionary jurisdiction of the Appellate Court should not operate as a bar for the Appellate Court to exercise its revisionary jurisdiction. This view is supported by the judgment of the GPS de Silva CJ in the case of Gnanapantithen and Another Vs Balanayagam and Another [1998] I SLR 391 wherein His Lordship held as follows. “There was a total want of investigation of title. The circumstances were strongly indicative of a collusive action. In the result, there was a miscarriage of justice in the case, and the appellants were entitled to a revision of the judgment of the District Judge notwithstanding delay in seeking relief. The question whether delay is fatal to an application in revision depends on the facts and circumstances of the case. Having regard to the very special and. exceptional circumstances of the case the appellants were entitled to the exercise of the revisionary powers of the Court of Appeal.” I have earlier held that the order of the learned District Judge fixing the case for ex-parte trial is a nullity. If an order of lower court is a nullity, the Appellate Court should interfere with such an order in the exercise of its revisionary jurisdiction. In the present case the Civil Appellate High Court having observed the fact that failure on the part of the learned District Judge to give an opportunity for the Defendant-Petitioner to file his answer has caused grave injustice to the Defendant-Petitioner refused to intervene on the ground of delay. When I consider all the aforementioned matters, I hold that the learned Judges of the Civil Appellate High Court were wrong when they refused to interfere with the order of the learned District Judge dated 28.1.2004. For the above reasons, I hold that the judgment of the Civil Appellate High Court dated 1.7.2014 is wrong and should be set aside.

For the aforementioned reasons, I exercising the appellate powers of this court, set aside the order of the learned District Judge dated 28.1.2004 fixing the case for ex-parte trial. Since I set aside the said order of the learned District Judge, the ex-parte judgment of the District Court dated 20.4.2004 should also be set aside and is hereby set aside. Since the order dated 28.1.2004 of the learned District Judge fixing the case for ex-parte trial is set aside, the judgment of the Civil Appellate High Court dated 1.7.2014 which has the effect of affirming the said order of the District Court is also set aside.

I direct the learned District Judge to give an opportunity to the Defendant-Petitioner to file his answer on the amended plaint and proceed with the trial without delay.

The Defendant-Petitioner in his petition of appeal filed in this court has moved for an order to return the money that the he has paid to the Plaintiff-Respondent in terms of the ex-parte judgment dated 20.4.2004. Since we set aside the ex-parte judgment dated 20.4.2004 the payments made in terms of said judgment should also be returned by the Plaintiff-Respondent to the Defendant-Petitioner. We are unable to determine the amount paid by the Defendant-Petitioner to the Plaintiff-Res

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pondent as the relevant material has not been attached to the petition of appeal. Therefore we cannot state the amount in this judgment. The Defendant-Petitioner is entitled to recover the amount he had paid to the Plaintiff-Respondent in terms of the ex-parte judgment. The learned District Judge at the end of the main trial is directed to calculate this amount on the evidence led before the District Court and make an appropriate order. I would like to state here that this judgment should not be considered as a licence to cure defects in cases where there is delay in seeking revisionary jurisdiction of the Appellate Court because each case must be considered on its own merit. In view of the conclusion reached above, I answer the above questions of law as follows. The questions of law set out in paragraph 41(a) (i) and (ii) of the petition of appeal are answered in the affirmative. The questions of law set out in paragraph 41(a)(iii) of the petition of appeal are answered as follows. “The orders of the learned District Judge dated 28.1.2004 and 20.4.2004 are wrong.” The questions of law set out in paragraph 41(b)(i) are answered as follows. “The orders of the learned District Judge dated 28.1.2004 and 20.4.2004 shock conscience of court.” The questions of law set out in paragraph 41(b)(ii) and (iii) are answered in the affirmative. The question of law set out in paragraph 41(c) does not arise for consideration. The question of law set out in paragraph 41(e) is answered as follows. The judgment of the Civil Appellate High Court dated 1.7.2004 is wrong. The order of the learned District Judge dated 28.1.2004 fixing the case for ex-parte trial is set aside. The ex-parte judgment of the District Court dated 20.4.2004 is set aside. The judgment of the Civil Appellate High Court dated 1.7.2014 is set aside.
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