2. 2023 April Note - Regular and summary -tute No.2

General Rule: The regular procedure of the Civil Procedure Code (CPC) must be applied unless expressly prevented (e.g., Debt Recovery Action).
- Exceptions:
  - The CPC does not provide for a summary procedure.
  - No provisions under any other law for summary procedure.
  - In absence of specific laws for procedure, the regular procedure is required.
Case Reference: Jayewardene V Obveysekere and 5 others (2011) 1 SLR 349
- Must file action under regular procedure where summary procedure does not apply.

Relevant Sections: Sections 373 to 391 of the CPC, especially Section 7 (Illustrations).
Actions Involving Summary Procedure:
- Evidence Requirement: Applicants must support their application with proper evidence simultaneously.
- Court's Discretion: The court evaluates whether a prima facie case is made out:
  - If so, it may:
    1. Pass the order against the defendant immediately unless they show good cause against it on a specified day.
    2. Appoint a day for the opposing party to present their case against the application.

Section 373: Action should be initiated with a duly stamped Written Petition.
Section 374: Petition must contain the following particulars:
- I. Name of the court and date of submitting the petition.
- II. Petitioner(s): Name, description, and address.
- III. Respondent(s): Name, description, and address.
- IV. Statement of facts regarding the application, including grounds and circumstances.
- V. A specific prayer for relief or order sought.
- Formal Requirement: The statement should be in numbered paragraphs.

Section 376: Documents to be attached to the petition:
- Affidavits.
- Authenticated copies of records.
- Processes or other documentary evidence.
Section 377:
- If prima facie established, the court can:
  - Issue an order nisi, effective upon the respondent failing to show cause on the appointed day.
  - If the petitioner is entitled to relief, make an interlocutory order for a hearing date, allowing the respondent to contest the petition.
Judicial Interpretation: In Caderamanpulle Vs. Ceylon Paper Sacks Ltd. [2001 (3) SLR 112]:
- Unlike regular actions, Section 377 places the burden on the defendant to show cause against the order nisi.
- Summary procedure is designed for expeditious resolution; thus, defendants must act promptly to obtain relief.

Section 39: Instituting an action under regular procedure involves:
- Presenting a duly stamped written plaint to the court.
Processes Involved:
- Filing plaint, responding to the plaint, replicating, pre-trial stages, trial, written submissions, and judgment.
Plaint Compliance: Must comply with Sections 40-46 of the CPC.

Legal Definition: An action is a proceeding aimed at preventing or seeking redress for a wrong.
- It generally refers to litigation in civil court for recovery of rights or redress of grievances.
Prescription Ordinance No 22 of 1871: Governs the jurisdiction of the Civil Courts in the Island, applicable only to actions.
Application as Action: Application for curator appointment and property sale regarded as an action under Section 6 of the CPC.

General Understanding: Refers to the act of the defendant that prompts the plaintiff to pursue a complaint.
Case Reference: Jackson v. Spittle - Defines the cause of action as the act of the defendant that warrants a complaint from the plaintiff.
Lowe V Fernando 16 NLR 398: The term "cause of action" generally signifies:
- A. Right of the Plaintiff.
- B. Violation of that right by the Defendant.
- Also signifies the complete set of facts that together constitute the plaintiff's right to maintain the action.
Legal Specification - Section 5: Cause of action encompasses not just the wrongful act but also any denial of rights, obligation refusals, duty neglect, or infliction of affirmative injury.