Analysis of Sections 84 and 86(2) of the Civil Procedure Code of Sri Lanka: Procedural Default, Setting Aside Judgments, and Recent Legislative Developments

Executive Summary

This report provides a comprehensive analysis of Sections 84 and 86(2) of the Civil Procedure Code (CPC) of Sri Lanka, which are pivotal in governing defendant defaults and the setting aside of default judgments. These provisions are crucial for maintaining procedural fairness and ensuring the efficient administration of civil justice.

The report highlights the transformative impact of the Civil Procedure Code (Amendment) Law, No. 20 of 1977, which fundamentally restructured Sections 84 to 88, replacing earlier provisions and introducing the current framework. Subsequent legislative developments, including a notable refinement in 1980 and a significant proposed change in a 2024 Bill, demonstrate ongoing legislative efforts to adapt the CPC to practical challenges and judicial interpretations.

Key judicial interpretations have clarified the scope of "default" under Section 84, extending it beyond willful failure to include inadvertent omissions, while also affirming the court's discretion in scheduling ex parte trials. Crucially, the Supreme Court has consistently upheld the mandatory and jurisdictional nature of the 14-day period for applications to set aside default judgments under Section 86(2), even when "reasonable grounds" for default exist. Furthermore, the interpretation of "default" in Section 86(2) has been broadened to allow challenges based on non-service of summons, reinforcing fundamental due process rights.

These salient facts underscore a dynamic interplay between statutory provisions, judicial interpretation, and legislative reform, all aimed at striking a balance between procedural efficiency, finality of litigation, and the imperative of natural justice in Sri Lankan civil procedure. The latest proposed amendment to Section 86, addressing applications to set aside default decrees even without formal service, exemplifies this ongoing evolution.

1. Introduction to the Civil Procedure Code of Sri Lanka

1.1 Overview of the CPC's Role in Civil Litigation

The Civil Procedure Code (CPC) (Chapter 101) serves as the foundational legislative framework governing civil actions in Sri Lanka. It meticulously outlines the procedures for instituting, conducting, and concluding civil cases, thereby ensuring the systematic and fair administration of justice within the civil courts.¹ The CPC dictates the conduct of actions, matters, and other legal proceedings that fall within the courts' lawful cognizance.

A fundamental concept within the CPC is the "cause of action." The Code defines it as "the wrong for the prevention or redress of which an action may be brought, and includes the denial of a right, the refusal to fulfil an obligation, the neglect to perform a duty and the infliction of an affirmative injury".³ This precise definition is paramount as it forms the indispensable legal basis upon which any civil claim must be founded and articulated in a plaint. The CPC distinguishes between "regular" and "summary" procedures for actions.⁴ In "regular" actions, which constitute the majority of civil litigation, the defendant is formally required to state their answer to the alleged case before any factual questions are entertained by the court.⁴ This structured approach ensures a formal adversarial process. While Roman Dutch Law forms the common law of Sri Lanka and governs contracts, the CPC, as statute law, plays a major role in procedural aspects, including areas like the Sale of Goods and Consumer Protection.⁷ This highlights the dual legal heritage influencing Sri Lankan civil procedure.

1.2 Significance of Sections 84 and 86(2) in Procedural Fairness

Sections 84 and 86(2) are cornerstones of the CPC's mechanism for addressing a defendant's non-compliance, specifically their failure to file an answer or appear in court. These provisions are designed to balance the plaintiff's legitimate right to expeditious justice with the defendant's fundamental right to a fair hearing, encapsulated by the principle of audi alteram partem (hear the other side).⁸ They dictate the circumstances under which a court can proceed

ex parte (meaning, without the presence or participation of the defaulting defendant) and, crucially, provide the procedural avenue through which a defendant may seek to set aside such default judgments. This dual function safeguards against arbitrary or unjust outcomes that could arise from a defendant's absence, whether intentional or otherwise.

The CPC's distinction between "regular" and "summary" procedures is not merely a classification but reflects a fundamental design choice to balance judicial efficiency with the imperative of a thorough adversarial process.⁴ Sections 84 and 86(2) operate squarely within this framework, particularly for "regular" actions. Section 84 facilitates progression when a defendant defaults, promoting efficiency, while Section 86(2) provides a structured mechanism to rectify potential injustices arising from that default, thus upholding due process. This interplay demonstrates a sophisticated attempt to ensure cases move forward without arbitrarily denying a party their right to defend. The strict procedural requirements, particularly the mandatory 14-day period for setting aside default judgments under Section 86(2) ¹⁰, underscore a significant practical implication: the critical importance of timely action and, by extension, effective legal representation in Sri Lankan civil litigation. Failure to adhere to these stringent procedural deadlines, even when "reasonable grounds" for default exist, can lead to irreversible judicial outcomes. This rigidity, while promoting finality and certainty in legal affairs, could disproportionately affect unrepresented litigants or those with limited access to sophisticated legal advice, potentially creating a barrier to equitable access to justice.

2. Section 84: Default of Defendant and Ex Parte Proceedings

2.1 Current Statutory Text of Section 84

The current iteration of Section 84 was introduced as part of a significant legislative overhaul, specifically by the Civil Procedure Code (Amendment) Law, No. 20 of 1977, which repealed and substituted the original Sections 84 to 88 of the principal enactment.¹¹

The exact text of Section 84, as substituted by Law No. 20 of 1977, reads: "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 for 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, and the plaintiff appears, the court shall proceed to hear the case ex parte immediately or on such other day as the court may fix".⁸

2.2 Conditions for "Default" and Court's Power to Proceed Ex Parte

Under Section 84, a defendant is deemed to be in "default" if they (a) fail to file their answer by the prescribed date (initial or extended), or (b) having filed an answer, fail to appear on the day fixed for the hearing of the action. A prerequisite for the court to act on this default is its satisfaction that the defendant was "duly served with summons" or received "due notice" of the relevant court date.⁸

Judicial interpretation has significantly shaped the understanding of "default." The Supreme Court, in ABN-AMRO Bank N.V. v. Conmix (Pvt.) Ltd. and Others, clarified that "default cannot be confined to a wilful or deliberate failure or refusal." It can also encompass an "inadvertent omission" on the part of the defendant. This broadens the scope of what constitutes procedural non-compliance.⁸

Although Section 84 states the court "shall proceed to hear the case ex parte," this directive has been interpreted as not being an absolute imperative. The court retains a degree of discretion and may fix the ex parte trial "immediately or on such other day as the Court may fix." This flexibility allows the court to consider the circumstances, particularly if the default is perceived as a "mere technicality" or inadvertent, rather than demanding immediate and rigid adherence to the "forthwith" requirement of the previous Section 85.⁸

2.3 Interpretation of "Appearance" and "Due Service"

The term "appear" within Section 84 has been judicially interpreted to mean an appearance by the defendant's Registered Attorney. It is not a strict requirement for the defendant to be physically present in person. This practical interpretation acknowledges the role of legal representation in court proceedings.¹²

The statutory requirement that the court be "satisfied that the defendant has been duly served with summons" is a fundamental condition precedent for the application of Section 84.⁸ The validity of this service is paramount, as its absence can form a crucial "reasonable ground" for a defendant to subsequently seek the setting aside of any default decree entered against them under Section 86(2).

2.4 Observations on Section 84

Section 84 functions as a critical procedural gateway, enabling the court to transition from an adversarial process to an ex parte one upon a defendant's non-compliance. The fundamental requirement of "due service" ¹¹ is the bedrock of this transition, as it ensures the defendant had knowledge and an opportunity to participate. The interpretation from

Peter Singho v. Wydaman ¹³ is a vital judicial safeguard: it allows a defendant to challenge the very premise of "due service" under Section 86(2), effectively preventing default judgments based on potentially flawed or non-existent service. This reinforces the principle that procedural efficiency cannot override the fundamental right to notice. The power to proceed

ex parte is conditional on "due service".¹¹ If service is flawed, the entire basis for the

ex parte proceeding is undermined. The Peter Singho case directly addresses this by allowing a challenge to the "foundation of the default decree" ¹³ through Section 86(2), even if it means contesting the initial finding of "due service." This demonstrates the judiciary's role in ensuring that the procedural gateway of Section 84 is not abused or based on an incorrect factual premise.

The flexibility granted to the court in Section 84, allowing it to fix ex parte trial dates "immediately or on such other day" ¹¹ and to excuse "inadvertent" defaults ⁹, carries significant strategic implications for both plaintiffs and defendants. For plaintiffs, it means that securing a default judgment may not always be immediate or absolute, as courts may exercise discretion to allow defendants to rectify minor non-compliance. For defendants, it provides a narrow but crucial window to seek relief even after an initial default, provided their non-compliance was not willful and they act promptly to explain their absence or failure to file. This nuance necessitates careful strategic planning by legal practitioners, as a rigid expectation of immediate default judgment may be misplaced. The wording "shall proceed... immediately or on such other day" ¹¹ and the judicial commentary that it is "not imperative" ⁹ for immediate action, coupled with the possibility of excusing "inadvertent" defaults, indicates that Section 84 is not a blunt instrument for plaintiffs. This suggests that a plaintiff cannot simply assume an automatic, immediate default judgment. Conversely, a defendant, if they can demonstrate a non-willful default and act quickly, might still be able to engage with the process, influencing the plaintiff's strategy and the overall timeline of the litigation.

3. Section 86(2): Setting Aside Default Judgments

3.1 Current Statutory Text of Section 86(2)

Section 86, along with Section 84, was comprehensively substituted by the Civil Procedure Code (Amendment) Law, No. 20 of 1977.¹¹

The exact text of Section 86(2), as substituted by Law No. 20 of 1977, reads: "Where, within fourteen days of the service of the decree entered against him for default, the defendant with notice to the plaintiff makes application to and thereafter satisfies court, that he had reasonable grounds for such default, the court shall set aside the judgment and decree and permit the defendant to proceed with his defence as from the stage of default, subject to such terms as to costs or otherwise as the court may deem proper".

It is important to note that Act No. 53 of 1980 further amended Section 86 by repealing its original subsection (1) and inserting a new subsection immediately after subsection (2).¹⁴ While the precise content of this inserted subsection is not detailed in the provided information, this indicates an ongoing legislative process of refinement for this critical section.

3.2 The Mandatory 14-Day Period for Application: Jurisdictional Implications

The 14-day period stipulated in Section 86(2) for making an application to set aside a default decree is not merely a procedural guideline but a mandatory requirement that goes to the very jurisdiction of the court.¹⁰

The Supreme Court, in the seminal case of Ceylon Brewery Limited vs. Jax Fernando, unequivocally held that "Section 86(2) of the Civil Procedure Code confers jurisdiction on the District Court to set aside a default decree. Hence the period of 14 days provided by that section to make an application to set aside a default decree is mandatory".¹⁰ Justice Mark Fernando J. further emphasized this principle, stating, "It is settled law that provisions which go to jurisdiction must be strictly complied with".¹⁰

This strict interpretation means that appellate courts possess no inherent discretion to waive or extend this 14-day period, irrespective of the compelling nature of the merits of the case or the "reasonable grounds" for default. A District Judge is obligated to dismiss an application filed outside this period ex mero motu (on its own motion), without even delving into the substantive reasons for the default.¹⁰

3.3 Interpretation of "Reasonable Grounds" for Default

Despite the strictness of the 14-day timeline, courts have generally adopted a "liberal attitude and flexible interpretations" towards what constitutes "reasonable grounds" for default.¹⁰ This broad view allows for a variety of circumstances to be considered, including, for instance, the defendant's ill health or even the negligence of their Attorney-at-Law, as affirmed in

Karunawathie Ekanayake vs. Gunasekera.¹⁵

This liberality in interpreting "reasonable grounds" is, however, rendered ineffective if the application fails to meet the mandatory 14-day procedural deadline. The presence of compelling "reasonable grounds" cannot cure a jurisdictional defect arising from a belated application.¹⁰

3.4 Challenging Default Judgments Based on Non-Service of Summons

The Supreme Court, in Peter Singho v. Wydaman, clarified that the term "default" in Section 86(2) is utilized in a "technical sense," transcending its common, everyday meaning.¹³

This technical interpretation is crucial because it permits a defendant who claims non-service of summons to utilize Section 86(2) to seek to set aside the default decree. Such a challenge is not merely an excuse for non-appearance but fundamentally questions the "foundation of the default decree" itself, by disputing the court's initial finding of due service under Section 84.¹³

This interpretation is vital for upholding natural justice. It prevents an artificial and inequitable distinction that would otherwise disadvantage defendants who genuinely never received notice of the legal action, compared to those who received summons but willfully failed to appear.¹³

3.5 Procedural Requirements for Applications under Section 86(2)

Any application to set aside a default judgment under this section must be formally made by way of a petition, which must be supported by an affidavit detailing the grounds for the default.

Crucially, the defendant making the application must provide prior notice to the plaintiff, ensuring the plaintiff has an opportunity to respond to the application.

3.6 Observations on Section 86(2)

A critical paradox emerges from the interplay of Section 84 and 86(2). While Section 84 allows for an ex parte trial to proceed based on a "technical default" (e.g., an inadvertent failure to file an answer, as per ABN-AMRO Bank N.V. ⁹), Section 86(2) provides a remedy for such default only if "reasonable grounds" can be established

and, critically, if the application is made within the mandatory 14-day jurisdictional deadline (as emphasized in CA DC Gampaha 1194/00 and Ceylon Brewery Limited ¹⁰). This creates a situation where a defendant might have a genuinely excusable reason for their default, but if they miss the extremely narrow procedural window to apply for relief, the default judgment stands. This highlights a strong judicial emphasis on procedural compliance, even at the cost of potentially overlooking substantive merits of a defense. The courts express a "liberal attitude" ¹⁰ towards recognizing "reasonable grounds" for default, accommodating various practical difficulties such as ill health or attorney negligence. However, this liberality is severely constrained by the "mandatory" and "jurisdictional" 14-day period.¹⁰ This creates a paradox: the

reason for default might be entirely sympathetic, but if the application is even one day late, the court loses its power to act. This tension highlights a fundamental policy choice within Sri Lankan procedural law. It indicates a prioritization of legal certainty and the finality of litigation over the individual circumstances of a defaulting party. While the system aims to be fair by allowing excuses for default, it places a high premium on strict adherence to procedural timelines to prevent endless reopening of cases. This can lead to harsh outcomes for litigants who genuinely miss the deadline, underscoring the critical importance of timely legal action and diligent legal representation.

The requirement for a supporting affidavit and the court's scrutiny of "reasonable grounds" ¹⁰ places a substantial evidentiary burden on the defaulting defendant. Furthermore, the

CA DC Gampaha 1194/00 case ¹⁰ illustrates that a defendant's denial of receiving the decree was not accepted, particularly when the process server's report of service was unchallenged. This underscores the critical importance of actively engaging with the legal process, even if one believes service was flawed or a decree was not received. It implies that passive non-engagement, even if based on a genuine belief of non-service, carries substantial risk, as the court relies on its records. This places a high bar for challenging procedural regularity after the fact. The application under 86(2) requires an affidavit.¹¹ The court in ¹⁰ dismissed the appeal partly because the appellant's claim of non-service was contradicted by an unchallenged process server's report and the appellant's silence on this point in their initial petition. This sequence of facts indicates that merely

claiming non-service or lack of knowledge is insufficient. There is an expectation of proactive diligence from the defendant to challenge service records promptly. If they do not, the court will likely uphold its own records, making it difficult to prove "reasonable grounds" based on non-receipt or non-service later.

4. Recent Amendments Affecting Sections 84 and 86(2)

4.1 The Civil Procedure Code (Amendment) Law, No. 20 of 1977

This was a landmark legislative change that fundamentally reformed the provisions related to defendant default. It repealed and substituted the entire block of original Sections 84 to 88 of the Civil Procedure Code.¹¹

Key changes introduced include:

• New Section 84: This amendment redefined the conditions for defendant default (failure to file answer or appear) and clarified the court's power to proceed ex parte. A significant change was the explicit allowance for the court to fix the ex parte trial for "such other day as the court may fix," thereby moving away from the more rigid "forthwith" requirement found in the previous Section 85.⁸

• New Section 86: This introduced the current two-tiered mechanism for setting aside default judgments: (1) prior to judgment being entered (which could be done with the plaintiff's consent) and (2) within fourteen days of the service of the decree, provided the defendant could demonstrate "reasonable grounds" for their default.

The 1977 amendment streamlined and clarified the default judgment procedure, providing a more structured and transparent approach to managing defendant non-compliance and offering clearer, albeit time-bound, avenues for relief.

4.2 Civil Procedure Code (Amendment) Act, No. 53 of 1980

This Act further refined Section 86. It specifically repealed its original subsection (1) and inserted a new subsection immediately after subsection (2).¹⁴ While the precise text of the newly inserted subsection is not provided, this amendment signifies an ongoing legislative effort to fine-tune the procedural framework governing default judgments, building upon the changes introduced in 1977.

4.3 Civil Procedure Code (Amendment) Act, No. 8 of 2017

This Act primarily focused on other aspects of civil procedure, such as introducing new provisions for pre-trial steps (e.g., Section 80A) and defining the powers of judges during pre-trial hearings (Sections 142D, 142E).¹⁶ It did not directly amend Sections 84 or 86.

Despite not directly altering the text of Sections 84 or 86, these amendments are part of a broader legislative drive to expedite and streamline civil proceedings generally. An efficient pre-trial process, by fostering clearer communication and early issue identification, could potentially reduce the overall instances of default, thereby indirectly influencing the frequency and nature of applications under Sections 84 and 86.

4.4 Civil Procedure Code (Amendment) Bill (2024): Proposed Amendment to Section 86

A very recent development is Clause 13 of a Civil Procedure Code (Amendment) Bill from 2024. This proposed amendment seeks to modify Section 86 to allow a defendant to make an application to set aside a default decree "at any time... after the decree is entered against him for default but without the service of the decree on him".¹⁹

This proposed amendment is highly significant as it directly addresses a critical practical challenge and a point of contention highlighted in case law – namely, the predicament of a defendant who is genuinely unaware of a default decree due to a lack of formal service. If enacted, this provision would provide a crucial safety net, ensuring that the mandatory 14-day period in Section 86(2) does not unfairly prejudice a defendant who has not received proper notice of the decree, thereby further reinforcing fundamental principles of due process and access to justice.

4.5 Observations on Recent Amendments

The legislative history of Sections 84 and 86, marked by the major 1977 overhaul, the 1980 refinement, the broader procedural changes in 2017, and the specific proposed amendment in the 2024 Bill, clearly demonstrates that Sri Lankan civil procedure is not a static body of law. Instead, it is subject to continuous review, adaptation, and modification. Each amendment appears to be a response to practical challenges encountered in litigation, evolving judicial interpretations, and a societal demand for greater fairness and efficiency in the justice system. The 2024 Bill, in particular, suggests a legislative responsiveness to judicial pronouncements (like Peter Singho v. Wydaman) that highlighted gaps or potential injustices within the existing default judgment setting-aside mechanism, especially concerning non-service of decrees.

This ongoing legislative activity signifies a commitment to improving the procedural landscape of civil litigation in Sri Lanka. It suggests a dynamic legal system that is willing to evolve to address identified shortcomings and ensure that the rules of procedure effectively serve the ends of justice. This proactive approach, while sometimes leading to complexity, ultimately aims to enhance the overall fairness, accessibility, and efficacy of the civil justice system for all litigants.

Table 1: Evolution of Sections 84 and 86(2) CPC (Key Amendments)

Amendment Act/Law & Year	Section 84 - Key Changes	Section 86(2) - Key Changes	Salient Impact/Significance
Civil Procedure Code (Original/Pre-1977)	Defendant default led to ex parte trial "forthwith" (based on old S. 85's "forthwith" requirement).8	Mechanism for setting aside decree nisi for default, with a 14-day period for application (based on Mohideen v. Marikar).20	Established basic default procedure, but with less flexibility for courts.
Civil Procedure Code (Amendment) Law, No. 20 of 1977	Repealed old S. 84-88 and substituted new sections.11 S. 84: Defendant fails to file answer or appear; court proceeds	ex parte "immediately or on such other day as the court may fix".	Repealed old S. 84-88 and substituted new sections.11 S. 86(2): Application to set aside default decree within 14 days of service, upon showing "reasonable grounds".	Major overhaul; clarified conditions for default and setting aside processes, introduced "other day" flexibility for ex parte trial.
Civil Procedure Code (Amendment) Act, No. 53 of 1980	No direct amendment to S. 84.	Amended S. 86 by repealing original subsection (1) and inserting a new subsection after (2).14	Further procedural refinement to the setting aside mechanism.
Civil Procedure Code (Amendment) Bill (2024) (Note: Proposed Legislation)	No direct amendment to S. 84.	Proposed amendment to S. 86 (Clause 13) to allow application to set aside default decree even "without the service of the decree on him".19	Addresses a critical gap concerning non-service of decree, aiming to enhance due process and access to justice for genuinely unaware defendants.

5. Salient Facts and Key Judicial Interpretations

5.1 Consolidated Analysis of Leading Case Law on Sections 84 and 86(2)

On Section 84 ("Default" and "Ex Parte" Proceedings):

• ABN-AMRO Bank N.V. v. Conmix (Pvt.) Ltd. and Others ⁸:

  • Default Definition: The court clarified that "default" is not confined to a willful or deliberate failure; it can also include an inadvertent omission to file an answer or appear. This broadens the circumstances under which a defendant may be deemed in default.

  • Ex Parte Trial Timing: While Section 84 states the court "shall proceed to hear the case ex parte," this is not an absolute imperative. The court retains discretion to fix the ex parte trial for a later day, rather than being compelled to do so "forthwith" on the summons returnable date. This allows for judicial flexibility in managing court dockets and considering specific case circumstances.

• Shashika Wickremasinghe vs. Lal Amarasingh and other ¹²:

  • "Appearance": This case interpreted "appear" in Section 84 to mean appearance by a Registered Attorney. Personal presence of the defendant is not a mandatory requirement for valid appearance, acknowledging the practicalities of legal representation.

On Section 86(2) (Setting Aside Default Judgments):

• Ceylon Brewery Limited vs. Jax Fernando ¹⁰:

  • 14-Day Period: This landmark ruling firmly established that the 14-day period for making an application to set aside a default decree under Section 86(2) is mandatory and jurisdictional. Failure to comply with this timeline means the court lacks the power to entertain the application, regardless of the merits of the default. The appellate courts have no discretion to waive this period.

• Karunawathie Ekanayake vs. Gunasekera ¹⁵:

  • "Reasonable Grounds": This case affirmed that no distinction should be drawn between various reasons for which a party may default. Courts should apply a "liberal attitude and flexible interpretations" to what constitutes "reasonable grounds" for default, including factors like ill health or the negligence of the Attorney-at-Law. However, this liberality is always subject to the mandatory 14-day application period.

• Peter Singho v. Wydaman ¹³:

  • Challenging Non-Service: This crucial decision clarified that the term "default" in Section 86(2) is used in a "technical sense." It allows a defendant who claims non-service of summons to utilize Section 86(2) to seek to set aside the default decree. This is because such a challenge goes to the very "foundation of the default decree" by disputing the court's prior finding of due service under Section 84, thereby upholding the principle of natural justice.

• Mohideen v. Marikar ²⁰:

  • Historical Context: This older case (pre-1977 amendment) demonstrates that the principle of a mandatory 14-day period for setting aside default decrees was a long-standing feature of Sri Lankan civil procedure, even under the previous statutory framework. It reinforces the consistent judicial emphasis on strict adherence to such timelines.

5.2 Practical Implications for Litigants and Legal Practitioners

For Defendants:

• Vigilance is Paramount: Defendants must exercise extreme diligence in monitoring court dates and ensuring proper receipt of summons. Even an inadvertent failure to file an answer or appear can lead to a default judgment.

• Strict Adherence to Timelines: The 14-day period for applying to set aside a default decree under Section 86(2) is a non-negotiable jurisdictional requirement. Missing this deadline, irrespective of how compelling the "reasonable grounds" for default may be, is fatal to the application.

• Strategic Challenge to Service: If a defendant genuinely believes summons was not duly served, Section 86(2) provides the appropriate legal avenue to challenge the default decree, arguing that the fundamental procedural prerequisite for default was not met.

• Evidentiary Burden: Any application to set aside a default judgment must be supported by a strong affidavit clearly articulating "reasonable grounds" for the default. Mere assertions or vague denials, especially regarding service, are unlikely to succeed if contradicted by official court records.

• Importance of Legal Counsel: Given the technical interpretations of "default" and the strict jurisdictional deadlines, navigating these provisions effectively almost always requires experienced legal counsel.

For Plaintiffs:

• Meticulous Proof of Service: Plaintiffs and their legal representatives must ensure meticulous and verifiable proof of summons service. This is a crucial prerequisite for the court to proceed ex parte under Section 84 and is essential for successfully defending against any subsequent Section 86(2) applications.

• Anticipation of Challenges: Awareness of the defendant's potential avenues for relief under Section 86(2) (including claims of non-service or "reasonable grounds") is important for anticipating and preparing to counter challenges to default judgments.

• Awareness of Discretion: While Section 84 allows for ex parte proceedings upon default, plaintiffs should be aware that courts retain some discretion, particularly in cases of inadvertent or technical defaults, and may not always proceed immediately to judgment.

For Courts:

• Balancing Act: Courts are tasked with the delicate balance of promoting procedural efficiency and finality in litigation while simultaneously upholding the fundamental principles of natural justice. While discretion exists in scheduling ex parte trials, the 14-day period for setting aside default judgments is strictly enforced.

5.3 Observations from Case Law

The interplay between Section 84 and Section 86(2) reveals a significant paradox in Sri Lankan civil procedure. While Section 84 allows for an ex parte trial to proceed based on a "technical default" (e.g., an inadvertent failure to file an answer, as per ABN-AMRO Bank N.V. ⁹), Section 86(2) provides a remedy for such default only if "reasonable grounds" can be established

and, critically, if the application is made within the mandatory 14-day jurisdictional deadline (as emphasized in CA DC Gampaha 1194/00 and Ceylon Brewery Limited ¹⁰). This creates a situation where a defendant might have a genuinely excusable reason for their default, but if they miss the extremely narrow procedural window to apply for relief, the default judgment stands. This highlights a strong judicial emphasis on procedural compliance, even at the cost of potentially overlooking substantive merits of a defense. Section 84 allows default for non-willful acts.⁹ Section 86(2) is the escape route, but it has two conditions: "reasonable grounds" AND a mandatory 14-day period.¹⁰ If the second condition is not met, the first (even if strong) is irrelevant. This demonstrates a legal system that, while acknowledging human error or legitimate reasons for default, places an extremely high premium on prompt and procedurally correct action to rectify that error. The cause (technical default) is easily triggered, but the effect (setting aside) is narrowly constrained by time.

The consolidated judicial interpretations collectively illustrate the Sri Lankan legal system's continuous effort to balance the competing demands of judicial efficiency and finality of judgments with the fundamental principle of natural justice (the right to be heard). The strict 14-day rule under Section 86(2) ¹⁰ strongly prioritizes finality and certainty in litigation outcomes. However, the broad interpretation of "default" in

Peter Singho v. Wydaman ¹³, which allows challenges based on non-service of summons, and the flexibility in Section 84's "forthwith" requirement ⁹, represent judicial attempts to uphold natural justice by ensuring that judgments are not entered without proper notice or opportunity to defend. The overall framework aims for a functional equilibrium, but the mandatory nature of the 14-day period under Section 86(2) ultimately signals a strong leaning towards procedural compliance as a cornerstone for maintaining order and preventing endless litigation. Section 84 allows

ex parte proceedings if "duly served".¹¹

Peter Singho ¹³ allows challenging that "due service" under 86(2), which is a direct mechanism to ensure natural justice. However, the

mandatory 14-day period ¹⁰ then imposes a strict time limit on this natural justice safeguard. This sequence demonstrates a system that provides a mechanism for fairness (challenging service) but then places a very high procedural burden on the litigant to utilize that mechanism promptly. The underlying theme is that while justice must be accessible, it must also be efficient and lead to finality, and procedural adherence is the key to achieving this.

Table 2: Summary of Key Judicial Interpretations on "Default" and "Reasonable Grounds"

Case Name & Citation	Section(s) Interpreted	Key Legal Question/Issue	Court's Ruling/Interpretation	Practical Implication
ABN-AMRO Bank N.V. v. Conmix (Pvt.) Ltd. and Others 8	S. 84	Definition of "default"; Court's discretion in fixing ex parte trial.	"Default" includes inadvertent omission; Court not imperative to fix ex parte trial "forthwith," can fix for another day.	Broadens what constitutes default but allows courts flexibility; defendants may have a chance to rectify inadvertent non-compliance.
Shashika Wickremasinghe vs. Lal Amarasingh and other 12	S. 84	Interpretation of "appear."	"Appear" means appearance by Registered Attorney; personal presence of defendant not mandatory.	Facilitates legal representation; defendants need not be physically present if represented.
Ceylon Brewery Limited vs. Jax Fernando 10	S. 86(2)	Mandatory nature of 14-day period for application.	14-day period is mandatory and jurisdictional; strict compliance required; no discretion to waive.	Absolute necessity for defendants to file application within 14 days of decree service; missing deadline is fatal.
Karunawathie Ekanayake vs. Gunasekera 15	S. 86(2)	Scope of "reasonable grounds" for default.	"Liberal attitude and flexible interpretations" for "reasonable grounds"; no distinction for reasons like ill health or attorney negligence.	Allows for a wide range of genuine excuses for default, but these must still be presented within the mandatory 14-day period.
Peter Singho v. Wydaman 13	S. 86(2)	Challenging default judgment based on non-service of summons.	"Default" used in a technical sense; defendant can challenge decree on grounds of non-service of summons, as it challenges the decree's foundation.	Provides a crucial avenue for defendants to challenge judgments entered without proper notice, upholding natural justice.
Mohideen et al. v. Marikar 20	S. 84 (old)	Mandatory nature of 14-day period for setting aside decree nisi.	Plaintiff seeking to set aside decree nisi for default must show cause within 14 days, after which it becomes absolute.	Reinforces the long-standing principle of strict adherence to the 14-day period for challenging default decrees.

6. Conclusion

Sections 84 and 86(2) of the Civil Procedure Code are indispensable pillars of Sri Lankan civil litigation, meticulously governing the process of defendant default and the subsequent avenues for setting aside default judgments. Their effective application is paramount for ensuring both procedural efficiency and fundamental fairness.

The evolution of these sections through significant legislative amendments, notably the comprehensive overhaul in 1977, the subsequent refinement in 1980, and the critical proposed amendment in the 2024 Bill, reflects a dynamic and responsive legal system. This continuous legislative effort aims to adapt the CPC to practical realities and address complexities arising from judicial interpretations.

Judicial pronouncements have provided crucial clarity, demonstrating a nuanced approach. While courts exercise flexibility in defining "default" and scheduling ex parte trials under Section 84, they maintain a strict, jurisdictional adherence to the mandatory 14-day period for applications to set aside default judgments under Section 86(2). Concurrently, the interpretation of "default" in Section 86(2) has been broadened to robustly protect due process rights, allowing challenges based on non-service of summons.

In essence, the interplay between statutory provisions, judicial interpretation, and ongoing legislative reform in Sri Lanka continuously strives to strike a delicate balance between the imperative of procedural efficiency, the need for finality in litigation, and the unwavering commitment to the fundamental principles of natural justice.