An application for leave to appeal from an order of the District Judge of Mount Lavinia was made in the Court of Appeal. By his order the District Judge had refused to fix the case for ex parte trial against the fourth defendant. For the laymen, ex parte trial is when a case is heard for the benefit of one party in the absence of other parties. (Case ref: Ramanathan And Another v. Sathyaseelan And Others - SLR - 369, Vol 2 of 2006 [2006] LKCA 44; (2006) 2 Sri LR 369 (25 May 2006)
The issue at stake in the District Court was the matter of issuance of summons. The fourth defendant had been issued summons by substituted service, meaning that the summons were affixed to the door of the fourth defendant’s residence. (“substituted service of summons”). But the said defendant did not appear in court. The plaintiff’s Counsel made an appeal for an ex parte trial that was refused.
The judgement of the Court of Appeal written by Justice Wimalachandra noted: “After several unsuccessful attempts to serve summons on the fourth defendant, the Court, on the application of the plaintiff made an order for substituted service of summons on the door of the premises in suit, namely, No. 3 Fareed Place, Colombo. On August 18, 2004, the learned Counsel appearing for the plaintiff informed Court that summons has been served on the fourth defendant by substituted service. The Court observed that according to the fiscal’s report, the fourth defendant is not living at the given address. The court then pointed out that it was the duty of the plaintiff to find the correct address of the fourth defendant and to furnish it to Court. The Court refused to fix the case for ex parte trial against the fourth defendant. It is against this order the appellant has filed this appeal.”
The plaintiff in the District Court basically felt entitled to an ex parte trial as he took up the position that summons cannot be served as the defendant was not present. But the District Court Judge took up the position that the defendant was not at the address the summons were served and that by law substitute service of summons was permissible only when the defendant was avoiding summons in the place of his residence. (“The substituted service of summons is available where a defendant is avoiding summons, and not when the defendant is not living at the given address.”)
It was held in Judgement in the Court of Appeal that: “According to Section 60 (2) of the Civil Procedure Code, it is only when personal service of summons cannot be effected, the substituted service should be allowed. It was held in the case of Fernando vs. Fernando that substituted service should not be allowed unless the fiscal has reported that he is unable, although reasonable exertion has been made by him to do so, to effect personal service and the Court is satisfied on evidence that the defendant, against whom substituted service is applied for, is within the Island.”
In another case involving the issuance of summons, (Pathma Udayaratna and two others vs. G.D. Piyasena Seneviratna, CA 112/99 F), a Process Server had told Court that the summons could not be served, but in appeal the substituted defendants for the deceased defendant — who happened to be a Parliamentarian and an attorney-at-law — went all the way up to the Supreme Court to maintain the position that the Process Server was basically dishonest, and had contrived to claim the summons were served personally on the deceased defendant, though that was not the case.
The Judge of the Court of Appeal noted in judgement: “Is there any reason for an attorney-at-law who has received summons in a case where Rs 2.5 million is claimed from him to keep away from court? Is this normal conduct expected of an attorney-at-law? In considering this question the court has to consider the ordinary conduct of a person in the position of the defendant. Such consideration is necessary in examining whether this position that he did not receive summons is probably explanation for his failure to appear in court.”
The Judge was taking a very commonsensical approach, but also buttressed his position citing Section 3 of the Evidence Ordinance. It was noted in judgement: “If he has received
summons what is that he was going to lose by appearing in Court and what repercussions arise from his failure to appear in court? These are all very relevant considerations deciding whether the existence of the fact may be the non-receipt of the summons is so probably as to persuade the prudent man to act on the supposition that the fact is true. This is the test set out in Section 3 of the Evidence Ordinance. There is a total failure by the trial judge to express his mind to any of the matters I have set out in this passage resulting in a failure to apply the probability test to evaluate the defendant’s assertion that he did not receive summons.”
The Supreme Court agreed with the earlier finding of the Court of Appeal by Amaratunga J, which was that the Process Server had not served summons.
The Judges of the Supreme Court seemed convinced that the plaintiff had connived with the Process Server in a “scheme” to ensure that the defendant was not issued summons — whereas in Court it was claimed that he had been duly served, and had simply avoided summons.
“The plaint filed in this case discloses 146/28, Anderson road, Dehiwela and Kappagoda, Mawanella as the addresses of the defendant. However, paragraph 1 of the plaint states that the defendant resides within the jurisdiction of the District Court of Colombo. If that be the case, it is difficult to understand as to what made the plaintiff to move for service of summons on the defendant at Mawanella. On the other hand, having served summons at Mawanella what made the plaintiff to move for service of decree on the defendant at Dehiwela remains a mystery. What is more important here is to ascertain whether it is a sheer coincidence or a prearranged scheme to abuse the process of law to serve summons at one place and the decree at another place.”
The Supreme Court held that the District Court judge erred in his judgement that summons had been properly served. Shorn of all legalese, it was the position of the Supreme Court that the substituted defendants were correct in arguing that there had been some hanky-panky in the matter of serving summons to their deceased father. That’s clear from the above paragraph excerpted from the Judgement.
The Supreme Court held that summons should be served properly to the parties, and the case should be heard thereafter if a cause of action remained.
