Isidore Fernando vs Thommai Antoni Michael Fernand

Walsh, J.—The plaintiff-appellant in this case instituted a suit against the defendant-respondent as the assignee of a foreign judgment passed

by the District Court of Colombo on a promissory note for a sum of Rs. 1,300 with interest. The suit in Ceylon was filed under the summary

procedure, Chap. 52, Ceylon Ordinance No. 2 of 1889. The defendant did not appear to obtain leave to defend that suit in time, and so an ex

parte decree was passed. He then appeared, asked for the matter to be re-opened and for leave to defend the suit. The Court noted as follows:

Defence unsatisfactory. Leave to defend will be granted on defendant giving security in Rs. 1,300 on or before 12th January 1925.

The security was not furnished and on 14th January 1925 the entry was: ""Mr. Sivaprakasam moves for judgment. Allowed. Decree entered.

Execution was taken out and notice served on the defendant. The plaintiff then assigned his decree to the present plaintiff-appellant, who instituted

the suit u/s 13, Civil P. C, on the foreign judgment. Defendant was then living in Tuticorin. Issue 1 was:

Whether the foreign decree relied upon in the plaint is not a decree on the merits? If not, is the suit maintainable?

The trial Court found the issue in favour of the plaintiff and gave a decree as prayed for with coats. But the lower appellate Court held the issue

in favour of the defendant and remanded the suit for fresh disposal on the merits. Against this decree the present appeal has been filed. The precise

point taken in the present appeal is whether a decree under the summary procedure of the Court of Ceylon as distinguished from an ex parte

decree under the regular procedure is one on the merits, and it appears to be barren of authority. Mahomed Kassim & Co. v. Seeni Pakir A.I.R

1927 Mad 265 is a case in which the Full Bench overruled the decision in A. Janno Hassan Sait Vs. S.N. Mahamad Ohuthu, , in which a decree

under the summary procedure had been held to be an ex parte decree on the merits. If we take the actual words of reference to the Full Bench in

Mahomed Kasim & Co. v. Seeni Pakir AIR 1927 Mad 265.

Does a suit lie in this country on a foreign judgment given on default of appearance of the defendant on the plaint allegations without any trial on

evidence,

then the answer to that question by the Full Bench would settle the matter against the appellant. But the argument is raised that the distinction

between summary procedure and regular procedure was not considered in that case which related to a decree under the regular procedure. I shall

therefore set forth in some detail the arguments raised by the learned advocate for the appellant. Section 7, Ordinance 2 of 1889 of Ceylon, runs

as follows:

The procedure of an action may be either regular or summary.

Illustrations,-In actions of which the procedure is regular, the person against whom the application is made is called upon to formally state his

answer to the case which is alleged against him in the application before any question of fact is entertained by the Court, or its discretion thereon is

in any decree exercised. In actions of which the procedure is summary, the applicant simultaneously with preferring his application supports with

proper evidence the statement of fact made therein; and if the Court in its discretion considers that a prima facie case is thus made out:

(a) Either the order sought is immediately passed against the defendant before he has been afforded an opportunity of opposing it, but subject to

the expressed qualification that it will only take effect in the event of _his not showing any good cause against it on a day appointed therein for the

purpose; (b) or a day is appointed by the Court for entertaining the matter of the application on the evidence furnished and notice is given to the

defendant that he will be heard in opposition to it on that day if he thinks proper to come before the Court for that purpose.

Section 703 of the Ordinance makes a summary procedure applicable to promissory notes and prescribes a form of summons, Form No. 19,

whereas the form of summons for regular procedure is form No. 16. Section 704, 705, 706 and 707 deal with summary procedure. Section 85

deals with the default of the defendant to appear in a suit. At this point may be noted two differences between the Ceylon procedure and that

under our Civil Procedure Code. The fact is that, so far as I can see, verification of the plaint required here under Order 6, Rule 15, Civil P. C, is

not required in Ceylon where u/s 46 every plaint presented by a proctor on behalf of a plaintiff shall be subscribed by such proctor, and there is no

further requisite but if the plaintiff signs it himself the signature must be verified by an officer of the Court (Section 46). The second difference is that

by both under the summary procedure and the regular procedure, if the defendant is absent the Court grants a decree without taking any further

evidence, and in P.L.S. Firm, Colombo v. Sulaiman AIR 1930 Mad 149 Odgers and Wallace, JJ., held, dealing with the case of regular

procedure u/s 85, that the Court had no option but to do so. Looking at the illustrations in Section 7 one other point may be mentioned under the

summary procedure, that there must be an affidavit as well as the plaint. In,P.L.S. Firm, Colombo v. Sulaiman AIR 1930 Mad 149 Odgers, J.,

noted that there was no explanation how there came to be an affidavit in that case which was one under the regular procedure. He was not

prepared to rely on the affidavit to make the decree one on the merits. He says:

Another possible explanation is that this suit though begun as a regular suit-and we know that all the defendants except two originally appeared and

filed answer-was, after the dismissal of the suit against them, converted into a summary suit and it will be remembered that in summary suits

affidavit is required.

Although it was argued before me that a regular suit cannot be turned into a summary suit, it has to be remarked that on the copy of Ex. A, the

plaint in the Ceylon Court, it is noted that the suit was instituted as a regular suit. There is no indication how it came to be turned into a summary

suit, and possibly the entry ""regular"" is a mistake. Noting these points I proceed with the arguments of the appellant. u/s 7 of the Ordinance, when

the application is made by the plaintiff he is to support ""with proper evidence the statement of fact therein"": vide illustration to Section 7. This

appears simply to mean an affidavit and the document (Section 705); and if the Court in its discretion considers that a prima facie case is thus

made out:

(a) Either the order sought is immediately passed against the defendant before he has been afforded an opportunity of opposing it, but subject to

the expressed qualification that it will only take effect in the event of his not showing any good cause against it on a day appointed therein for the

purpose; (b) or a day appointed by the Court for entertaining the matter of the application on the evidence furnished, and notice is given to the

defendant that he will be heard in opposition to it on the day if he thinks proper to come before the Court for that purpose.

It is pointed out that the Court in a regular procedure has, under the first illustration, no discretion as to the course to be pursued, but in

summary suits it has an alternative procedure. I find it somewhat difficult to be sure of the exact meaning of the first illustration. Dealing with

summary procedure u/s 705 of the Ordinance the plaintiff is required,

on presenting the plaint, to produce in the Court the instrument on which he sues, and he must make affidavit that the sum which he claims is justly

due to him from the defendant thereon. If the instrument appears to the Court to be properly stamped, and not to be open to suspicion by reason

of any alteration or erasure or other matter on the face of it, and not to be barred by prescription, the Court may in its discretion make an order for

the service on the defendant of the summons above mentioned.

The first part of the illustration to Section 7 of the Ordinance which deals with regular procedure cannot surely mean that the Court must issue

summons even though the document is not properly stamped, or the claim is barred prima facie by limitation. Therefore the illustration which in its

strict terms would forbid the Court from exercising any discretion on this matter seems to be too wide if read in this sense. Consequently I find it

somewhat difficult to be certain of the precise degree of distinction between the discretion in regular procedure and in summary procedure in

scrutinizing the plaint.

The learned advocate for the appellant, Mr. Patanjali Sastri, said that it can anyhow be gathered that the Court has to apply its mind more

precisely before issuing summons in the summary procedure than in the regular procedure and that must I think be admitted. There must be an

affidavit filed along with the plaint and the documents relied on which presumably constitute ""proper evidence."" For the respondent emphasis is laid

on the difference between Forms Nos. 16 and 19. Form No. 16 says

that in default of appearance the action will be proceeded with and heard and determined in your absence,

In Form No. 19 for summary procedure it is said:

In default whereof the plaintiff will be entitled at any time after expiration... days to obtain a decree....

Against this it is argued that in P.L.S. Firm, Colombo v. Sulaiman AIR 1930 Mad 149 speaking about the difference of these summons

Wallace, J., said that

the form of the decree nisi No. 22 affords no hint that the merits of the matter in issue in the suit have been considered,

The argument which was there sought to be advanced was that the words in default of your so appearing the action will be proceeded with and

heard, in your absence"" in Form No. 16 pointed to an adjudication on the merits, but Wallace, J., held that

the decision... remains a decision for default of appearance and not on the merits.

So although it was there sought to be argued that while Form No. 19 referred to a decree not on the merits; and Form No.. 16 referred to one

on the merits, it was held that the decision under Sections 85, 704 and 705 was not on the merits. Here the reverse argument is sought to be

raised, and it is argued that though the Form of summons No. 19 appears to refer to an ex parte decree, not to one on the merits, that form must

be read with the actual procedure prescribed in the Ordinance: vide remarks of Wallace, J.,at p. 356. On the other hand it is very strongly argued

for the respondent that to accept the argument for the appellant involves that the Court decides the suit before any notice has been issued to the

defendant. Again it is strongly argued that, as observed by Wallace, J., in P.L.S. Firm, Colombo v. Sulaiman AIR 1930 Mad 149 :

When the Court has taken evidence and decides on evidence it must write a judgment: vide Sections 184 and 189,

and that Section 187 says:

the judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

No doubt while there is no judgment in this case the want of a judgment was taken into account in that case to prove that the decision was not

one on merits in a suit under the regular procedure. Both the arguments seem to be equally applicable to a case under the summary procedure. At

this point I may notice an argument for the respondent which does not appear to have been raised in any of the previous cases, namely, that

Section 13, Civil P. C, speaks of a ""judgment"" and Section 2(9) defines a judgment as the statement given by the Judge of the grounds of a decree

or order. It is not possible to know in all ""he cases referred to whether there was a judgment or not and the words decree"" and judgment"" seem to

have been loosely used in those cases, but A. Janno Hassan Sait Vs. S.N. Mahamad Ohuthu, , was certainly a decree on a summary procedure,

and the argument does not appear to have been raised there. On the other hand it is equally true that the argument raised before me, which seeks

to show that an ex parte decree in a summary suit stands on a higher level than one under the regular procedure, was not raised either in A. Janno

Hassan Sait Vs. S.N. Mahamad Ohuthu, , or in any other case, although Mr. Patanjali Sastri admits that the conclusion reached in A. Janno

Hassan Sait Vs. S.N. Mahamad Ohuthu, could have been reached by this short cut which was not thought of. In fact it was assumed in all these

trials that if an ex parte decree in the regular procedure u/s 704 was not one on the merits, a fortiori one under the summary procedure was not so.

To return then to the argument drawn from the absence of a judgment, is the order given by the Ceylon District Court a judgment?

I feel no doubt that it is not a judgment, the entry dated I4th January 1925 is simply as follows: ""Mr. Sivaprakasam moves for judgment.

Allowed, Decree entered;"" and it certainly appears from the whole scheme of the Code and the words, especially of Section 704 and Form No.

19, that no judgment is contemplated in an ex parte summary procedure, for even in an ex parte regular procedure there is no judgment as is seen

from the remarks in C. Burn v. D.T. Keymer (1913) 7 LB Rule 56 and P.L.S. Firm, Colombo v. Sulaiman AIR 1930 Mad 149 quoted above. It

was argued for the appellant that ""judgment"" and ""decree"" mean the same thing, and that the words have been indifferently used in judgments of this

Court discussing such cases, but it seems to me that, while under the Ceylon Code it may be quite possible and proper to give an ex parte decree

both in summary procedure and regular procedure without any judgment, this will not be of any avail against the express words of Section 13, Civil

P. C, which requires ""a judgment."" In fact it may very well be that the reason for requiring a judgment and not merely a decree is that such a

judgment will be of assistance in enabling the Court to gather whether Section 13(b), Civil P. C, applies, and whether there has been a decision on

the merits of the case or not. In any case I am bound by the clear words of the Civil Procedure Code. I shall now deal briefly with some of the

cases referred to. As I said, if we regard the decision by the Full Bench in Mahomed Kasim & Co. v. Seeni pakir Bin Ahmed AIR 1927 Mad 265

in the terms of the reference, the decision is clearly against the appellant. But if a distinction is to be drawn between a decree in a summary and in a

regular suit, there is practically no authority since A. Janno Hassan Sait Vs. S.N. Mahamad Ohuthu, which referred to a summary suit has been

generally overruled by the Full Bench case: C. Burn v. D.T. Keymer (1913) 7 LB Rule 56 the decision of a single Judge, quoted for the appellant,

must be held to have been overruled by Abdul Rahiman v. Mahomed Ali Rowther AIR 1928 Rang 319.

English cases are of very little use because as pointed out by Venkatasubba Rao, J., in Mahomed Kasim & Co. v. Seeni Pakir Bin Ahmed

AIR 1927 Mad 265 Indian law is more stringent than the English law and is governed strictly by Section 13(b), Civil P.C., 1908. I do not think we

can get much assistance from the general remarks in Jones v. Stones (1894) AC 122. In fact at one time English cases went much further in basing

action on foreign judgments. The rule that the decision must have been on the merits is comparatively modern: George Summerly Carmichael Cole

Vs. Catherine Ann Harper, is clearly distingushable. Except C. Burn v. D.T. Keymer (1913) 7 LB Rule 56 which, as I pointed out, must be held

to have been overruled by Abdul Rahiman v. Mahomed Ali Rowther AIR 1928 Rang 319 there is only one decision which can be quoted for the

appellant: Ishri Prasad Vs. Sri Ram, . Even that judgment had considered a registered document in coming to the conclusion of the genuineness of

the plaintiff''s claim. In Visvanatham Reddi v. Keymer (1916) 39 Mad 95 reported in Keymer v. Viswanatham Reddi AIR 1916 PC 121 it was

held that when the defendant refused to answer interrogatories which the plaintiff was allowed to exhibit calling on the defendant to speak as to

some of the material matters in dispute and the defence was thereupon ordered to be struck out and the defendant to be placed in the same

position as if he had not defended and judgment was entered for the plaintiff, this was not a decision on the merits of the case within the meaning of

Section 13(b), Civil P.C.

It has been argued for the respondent in this case that the failure of the defendant to give necessary security and consequently his written

statement not being taken into account and his not being allowed to defend the case, brings the case, under this aspect, within the ambit of the

decision in Keymer v. Viswanatham Reddi AIR 1916 PC 121. But it has been pointed out I think correctly by Mr. Patanjali Sastri for the

appellant that there is a clear distinction between a defence, which the party has the right to make being struck off, and permission to defend-being

a thing which he gets by special leave of the Court-being refused owing to his having failed to furnish security.

I agree therefore that this case cannot be said to be directly covered by the decision of the Privy Council in Keymer v. Viswanatham Reddi

AIR 1916 PC 121 but it is indisputable, that the Privy Council based its decision in that case on very general grounds and not on technicalities. It

was pointed out that the defendant had denied several allegations made by the plaintiff, but there was no single matter considered and adjudicated

at all, and it appeared to their Lordships that

no such decision as that can be regarded as a decision given on the merits of the case within the meaning of Section 13(b), Civil P. C,

Here the defendant put in a statement denying the truth of several of the plaintiff''s allegations, and had in support of it an affidavit, and, as

stated by the learned Subordinate Judge not one of those matters was ever considered: vide paras. 3 and 13 of the lower appellate Court''s

judgment. In fact the appellant is bound on his own argument to maintain that the Judge had not, and could not have considered any of those

matters at that stage because the argument is based on the fact that his decision was reached on the presentation of the plaint, and before any

notice at all was given to the defendant: (Neyna Moona Kavanna) Muhammad Moideen and Others Vs. S.K.R.S.K.R. Chinthamani Chettiar and

Others, was a case of a decree on consent which acts as estoppel. Oppenheim & Co. v. Mahomed Haneef AIR 1922 PC 120 has been dealt

with in 50 Mad. and has not much bearing on the present application. The Pull Bench case was followed in S.S.A.S. Arunachalam Chettiar Vs.

A.M. Muhammad Salihu Marakkayar and Others, .

Not a single decision has been quoted before me in which an ex parte decree obtained under the summary procedure has been held to be one

on the merits, whereas an ex parte decree obtained on the regular procedure u/s 704 of the Ordinance has been held by the decision of the Full

Bench to be not one on the merits. I am also impressed by the fact that the Privy Council in Keymer v. Viswanatham Reddi AIR 1916 PC 121

based'' their decision on very broad grounds, and I am also unable to detect any flaw in the argument, which has never apparently been raised

before, that our Code distinctly requires that a judgment"" and nothing less is what is required by Section 13, Civil P.C. There is no judgment in this

case. After a careful consideration of the very able arguments advanced on both sides, I consider that the learned Subordinate Judge is correct.

The decree is confirmed and the appeal is dismissed with costs.

Memorandum of objections to be heard on 13th December 1932.

The memorandum of objections filed by the respondent coming on for hearing on this 13th day of December 1932 the Court delivered the

following judgment on the said memorandum of cross objections.

The order of remand must be set aside. The contention that the suit can be tried on the merits is opposed to the ruling in S.S.A.S. Arunachalam

Chettiar Vs. A.M. Muhammad Salihu Marakkayar and Others, . The suit is laid on the foreign judgment and if the judgment does not satisfy the

condition of Section 13(b) it must be dismissed. The memorandum of cross-objections is allowed with costs and the suit will stand dismissed with

costs.