Piyaseeli v. Prematilleke
COLIN-THOME. J.. RANASINGHE. J. AND TAMBIAH, J.
S.C. APPEAL No. 46/85.
S.C. SPECIAL LA/51/85.
A. No. 1610/84.
C. KULIYAPITIYA No. 6729/M.
NOVEMBER 29. 1985.
Costs – Order to prepay costs – Dismissal.
An order that the action would be dismissed if the plaintiff failed to pay nominated costsbefore a fixed date and time if made without consent of the parties does not entitle theCourt to dismiss the action where such costs are not paid as stipulated.
Case referred to :
Mamhoor v. Mohamed (1922) 23 NLR 493.
APPEAL from the Court of Appeal.
Petitioner present in person.
Respondents are absent and unrepresented.
November 29. 1985.
The petitioner filed an application for damages in a sum of Rs. 1 lakh inD. C. Kuliyapitiya, Case No. 6729/M. The case was fixed for trial on18.07.84 and according to journal entry No. 21, which was the firstjournal entry for that date, it was recorded that the petitioner wasabsent and unrepresented. On that basis the action was dismissed.Journal entry No. 22, the second entry made on the same day statesthat she appears in court and files a motion and moves that the casebe called. Thereafter she has filed an affidavit and the matter was fixedfor inquiry.,
After inquiry on 5.9.84 the learned District Judge made orderpermitting the petitioner to continue with the case provided she paid asum of Rs. 750 as costs to the defendant on or before 5.1 1.84 at orbefore 10.00 a m. The Judge made further order that if this payment
Sri Lanka Law Repons
(1986) 1 Sri L. R.
was not paid the earlier order dismissing the action was to stand. Thecase was called on 6.1 1.84 and it was brought to the notice of theCourt that the costs ordered had not been paid by the petitioner. Thepetitioner was present in court on that date and refused to pay anysum of money as costs and the learned District Judge dismissed theaction accordingly.
The plaintiff-appellant-petitioner appealed from this order to theCourt of Appeal by way of revision and the Court of Appeal refusednotice and dismissed her application.
A Full Bench of the Supreme Court held in Mamnoor v. Mohamedthat "Apart from consent of parties, the Court has no power to orderwhen granting an adjournment that if costs be not paid before theadjourned hearing, judgment will be entered against the party failing topay costs". Neither the District Court nor the Court of Appeal hasconsidered this judgment.
Having regard to the principle set out in Mamnoor v. Mohamed(supra) and in regard to the circumstances in this case, we set asidethe judgment of the Court of Appeal and also the order of the DistrictJudge dated 6.11.84 and order the District Court of Kuliyapitiya tocontinue with the trial from where it was adjourned on 16.01.84.There will be no costs.
RANASINGHE, J. – I agree.
TAMBIAH, J. – I agreeAppeal allowed.