Summary Procedure

Question 1

two types

Answer 1

1. summary rpocedure in general
2. summary procedure on liquid claims

Question 2

summary procedure in general

sections

Answer 2

373 - 391
(374, 377,382,383,384,385,386,387,388)

Question 3

section 374

requirments of a petition of an application under summary procedure

Answer 3

good and suitable paper and
a. name of the court and date of presenting the petition
b. name, description and place of abode of the petitioner
c. name, description, place of abode of respondents
d. plain and consice statement of facts consituting the ground of the application and circumstances and his right to make it
e. prayer for relief

Question 4

applications to be made under summary procedure

Answer 4

1. matrimonial actions 614 (1)
2. dissolution of marriage 608 (2)
3. next friend 481
4. appointment of a guardian 493
5. curatorship
6. applications made under section 33 (2) of registration of documents ordinance

6. cancellation of caveats, lis pendens, priority notices, seizure notices and seizure priority notices

Question 5

section 377

Answer 5

1. order ni si - subject to the condition that it will take effect in the event the respondent fails to show course against on a day appointed by the law for that purpose
2. interlocutory - appointing a day for the determination of the matter informing the respondent that he will be heard in opposition to the petition the day appointed by the court for that purpose.

like service of summons these orders will be served

Question 6

Section 382

Answer 6

petitioner is absent - petition is dismissed

Question 7

section 383

Answer 7

petitioner appears, respondent does not appear, court is satisfied by affidavit or oral evidence of serving officer

2. at this stage also the court can dismiss the petition

Question 8

section 384

Answer 8

when both parties appear

affidavit or other documentary evidence - at least before 48 hours

Question 9

section 385

Answer 9

after the respondent’s case is over the petitioner can reply and comment upon the responet’s claim

right to reply

Question 10

section 386

Answer 10

additional evidence when admitted
* when respondent’s evidence has been taken, on the request of the petitioner, court can grant additional time for the petitioner to adduce additional evidence or
* frame issues of fact between petitioner and respondent and adjourn the matter for trial by oral evidence as regular procedure

Question 11

section 387

Answer 11

final order

Question 12

section 388

Answer 12

(1) Endorsement of order nisi or interlocutory
(2) Order ni si either made absolute or discharged
Can be made in part or whole
(3) According to the prayer of the petition

Question 13

section 389

Answer 13

Cannot appeal against a final order in case of non-appearance of the respondent but court can within a reasonable time entertain an application on summary procedure of the respondent if he was prevented from appearing due to accident, misfortune or the non-serving of the order.

Question 14

section 390

Answer 14

parties to an action of summary procedure

Question 15

summary procedure on liquid claims

applicable for

Answer 15

debt or liquidated demand arising upon,
1. a bill of exchange
2. promisory note
3. cheque
4. an instrument or a contract in writing

if the plaintiff desires

form no. 19

Question 16

section 704

Answer 16

1. The defendant has to obtain leave from the court to appear and defend the action
   In default of his obtain such leave or appear and defend in pursuance, the plaintiff shall be entitled to a decree for the sum mentioned in the summons together with the interests to the date of payment
2. defendant shall not be required to, for being allowed to appear and defend, pay into court or give security unless court thinks the defence is prima facie sustainable or not in good faith

Question 17

705

Answer 17

1. must file affidavit
2. if the court has no sus on the application then order summons
3. summons to be of short date

Question 18

section 706

when leave to defend is granted

Answer 18

I. If the defendant pays into court the sum mentioned in the summons
II. If the court is satisfied that the defendant has disclosed a defense to the effect that it is incumbent on the holder of the document to prove consideration or such other facts, the court considers that framing and recording of issues and determination thereof are necessary.

Question 19

Isquire garment industry v Sadwani

Answer 19

section 704 and 706 of the CPC are relevant to the question of granting leave to appear and defend unconditionally. The court should have considered the defense whether it was prima facie sustainable or the court feels reasonable doubt as to its good faith if the leave is granted to appear and defend unconditionally.
At this stage, the court is not called upon to adjudicate the merits of the case.

Question 20

CW Mackie and company v Trans Lanka Investment Limited

Answer 20

under section 704, court is required to consider the petition and the affidavit together with any documents filed ad decide whether there is a prima facie sustainable defense. Even though there appears to be a defense, if courts is doubtful of its genuinese, the defendant may be ordered to give security. Where court feels a reasonable doubt exists as to the honesty of the defense, it is entitled to order a defendant to appear and defend- conditionally.

Question 21

Kanagasabey v Kirupamurthi 62 NLR 54

Answer 21

when in an application of summary procedure, the respondent is noticed to appear under Section 377 (b) of the Civil Procedure Code, there is no objection to a Proctor appearing on his behalf and obtaining, on good cause shown, a date on which to file or state his objections.

Question 22

Umma v Mohommad

Answer 22

where in an application of summary procedure, the court permits the petitioner under Section 384 of the Civil Procedure Code to give oral evidence it cannot properly refuse the respondent the same privilege or the right for the purpose of supplementing his evidence to cross examine the petitioner.

Question 23

Kanagasabey v Kirupamurthi

Answer 23

when in an application of summary procedure, the respondent is noticed to appear under Section 377 (b) of the Civil Procedure Code, there is no objection to a Proctor appearing on his behalf and obtaining, on good cause shown, a date on which to file or state his objections