Law of Civil Procedure, Sec.86 - vacation of an ex parte order - burden
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It was observed by the Court of Appeal in N.G.A. Seelawatvhi v. M.G. Gnanawansa (CA/1138/1998/F decided on 08.05.2019) that;
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It was observed by the Court of Appeal in N.G.A. Seelawatvhi v. M.G. Gnanawansa (CA/1138/1998/F decided on 08.05.2019) that;
- In an inquiry into vacation of an ex parte Judgment, the burden of proof and the standard of proof expected from the defaulting defendant are not of high degree.
- Section 86(2) does not specifically dictate the mode of making the application. It merely says “the defendant with notice to the plaintiff makes application”. It does not say that the application shall be made by way of a petition supported by an affidavit with documents if any. In practice the application is made by way of petition supported by an affidavit. However, the application can be made only by way of an affidavit as the inquiry can be concluded even without oral testimony.
"Then it is clear that what the defaulting defendant in an inquiry under section 86(2) of the Civil Procedure Code shall do is to satisfy the Court that he had reasonable grounds for such default. From the language used in that section, it is clear that the legislature does not expect a very high standard of proof from the defaulting defendant in order for the Court to purge default. The same language is used in section 87 also when the defaulter is the plaintiff. Therefore the Court shall adopt not rigid but liberal approach in such inquiries. The test is subjective as opposed to objective. In this process, the Court can also take into account the past conduct of the defaulting party to come to a right conclusion."
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