DEHERAGODA, J.—ThamotharampiUai v. Soma&underam
1976Present; Deheragoda, J., Wijesunderd, J. and
CANDIAH THAMOTHARAMPILLAI, 3rd Defendant-Appellant
EH AMP ARAM SOMASUNDERAM, Plaintiff-RespondentS.C. 22/74 (Inty)-D.C. Pcint Pedor 9761fP
Costs—Order for pre-payment under Partition Act—Non-compliance—Consequences thereof—Partition Act (Cap. 69), section 63 (3).
An order for pre-payment of costs was made against a defendantin a partition action when the trial had to be postponed owingto his illness. In default his statement of c’aim was to be struck off.The order was made under section 63(3) of the Partition Act, andrequired him to pay a sum of Rs. 157.50 before 10 a.m. on thenext date of trial. A sum of Rs. 140 was so paid but the balance Rs.17.50 was tendered after 10 a.m. though on the next date oftria'. The said defendant’s statement of claim was accordingly struckoff and so also his evidence which had been partly recorded.
Held : (Wijesundera, J. dissenting) :
That on a failure to comply with an order for the pre-paymentof costs made under section 63(3) of the Partition Act of 1951, theCourt was not empowered to make such an order against the defen-dant concerned. The consequence of such default would be thatthe party aggrieved could take immediate steps to enforce thatorder without waiting till the end of the case to do so.
Cases referred to :
Peiris v. Wijesinghe, 1 C.L. Rep. 86.
Sumanasara Unnanse v. Seneviratne, 15 N.L.R. 375.
Mahmoor v. Mohamed, 23 N.L.R., 493.
Punchi Nona v. Peris, 26 N.L.R., 411.
Simon Singho v. William Appuhamy, 26 N.L.R., 408.
Rajapakse v. Peiris Appuhamy, 79 (I) N.L.R. 457.
Perera v. Gonaduwa, 74 N.L.R. 207.
_/_PPEAX. from a judgment of the District Court, Point Pedro.
K.Thevarajah, for the 3rd defendant-appellant.
C. Ranganathan, for the plaintiff-respondent.
Cur. adv. vult.
October 11, 1976. Deheragoda, J.
In this action filed under the Partition Act by the plaintiff-respondent, ffie 3rd defendant-appellant filed a statement ofclaim, praying that the plaintiff’s action be dismissed and thatlie be declared entitled to the land depicted in the survey plansurveyed for the purpose of the case. The journal entries in the•case show that the case was fixed for the continuation of the
DEHERAGODA, J.—ThamotharampiUai v. Somasunderam
trial on 7.5.74 .and that on that date, the cross-examination ofthe 3rd defendant-appellant was due to take place. He wasabsent and his counsel submitted a medical certificate statingthat he was ill and was unable to attend court. The learnedJudge made order postponing the case, but in his own words,“ availing himself of section 63 (3) ” of the Partition Act, heordered the 3rd defendant to pre-pay costs fixed at Rs, 157.50 onor before 10 a.m. on the next date namely, 20.5.74 “ asthe plaintiff had been put to heavy expense by a postponementat this stage. ” At the request of counsel further hearing wasfixed for 3.6.74. It was further ordered that in default of pre-payment as ordered, the 3rd defendant’s statement of claim wasto be struck off. Appellant paid a sum of Rs. 140 to the plaintiff’sattorney-at-law on 15.5.74 and obtained a receipt for that pay-ment which was filed of record, and promised to pay the balancebefore 10 a.m. on 20.5.74.
On 20.5.74, the appellant brought to court the balance sum ofRs. 17.50 to be paid to the plaintiff’s attorney-at-law, but as thecourt started sitting at 9.30 a.m. and the plaintiff’s attorney-at-law was busy “ calling cases ”, the appellant was not able topay him the balance sum of Rs. 17.50. When the case was calledat 10.15 a.m. the appellant’s attorney-at-law tendered thebalance sum of Rs. 17.50 to the plaintiff’s attorney-at-law, but,he refused to accept the same.
The learned District Judge thereupon made the followingorder : —
“ Part-payment of costs Rs. 140 out of Rs. 157.50 paid by the3rd defendant, vide J.E. 70. As the 3rd defendant-appellanthas failed to pay the balance amount of Rs. 17.50—it is now10.15 a.m.—the S.C. (meaning “ Statement of Claim ”) ofthe 3rd defendant is rejected. Mr. Jayasingham states thathis client and attorney-at-law were ready with the money.But as the plaintiff’s attorney-at-law was busy at the motion,he waited to offer the money after the roll. It is now 10.24a.m. As the plaintiff’s attorney had accepted Rs. 140 it isunfair to refuse to accept the balance. Mr. Shivapathasun-deram states that it was at 10.24 a.m., that the balance sumof Rs. 17.50 was tendered to the attorney-at-law of theplaintiff. The 3rd defendant promised to pay the balanceRs. 17.50 before 10 a.m. today. He has failed to do so thoughmy attorney was present in court from 9.30 a.m. whenthe court started sitting. He therefore moves that in terms
DEHERAGODA, J.—Thamotherampiliai v. Somamnderam
of the .order of 7.5.74, the defendant’s S.C. be struck off. S.C.of the 3rd defendant struck off and all evidence of his.
Docs, for 27.5.74.
Sgd. N. A. Rajaratnam,Act. D. J. ”The 3rd defendant-appellant now appeals from this order.Section 63 of the Partition Act (Chapter 69 of the revised Legis-lature Enactments 1956) runs as follows : —
“63(1) Where the trial of a partition action is postponedor adjourned it shall be lawful for the court at any stageof the partition action to order any party to give securityfor costs if the Court is of opinion that the party has beenguilty of unreasonable delay in presenting or prosecutinghis claim, or for other good and sufficient cause.
Where any party to a partition action who is orderedunder subsection (1) of this section to give security for costsfails to give such security within the time allowed thereforby the court, then—
where that party is the plaintiff, the court may dismiss
the action or may permit any defendant to prosecutethe action and may substitute him as plaintiff for thatpurpose ; or
where that party is a defendant, the court may reject
Where the trial of a partition action is postponed oradjourned in consequence of such delay on the part of aparty to the action as is referred to in subsection (1) ofthis section, the court may order that any costs payableby that party because of the postponement or adjournmentdhall be pre-paid. ”
The Partition Act, therefore enables the court to order pre-payment of costs in granting a postponement even though theparty asking for the postponement has not agreed to pre-paycosts.
DEHERAGODA, J.—Thamotharampiilai v. Somammderam
Mr. Ranganathan for the plaintiff-respondent referred tosection 63 (3) of the Act which makes special provision enablingthe Judge to make an order ex-parte for pre-payment withoutthe necessity for an agreement to pre-pay by the party askingfor a postponement, and the only consequence that could flowfrom a failure to comply with a pre-payment order is to strikeoff the name of that party and not permit him to take part inany further proceedings. According to him, if a party who isordered to pre-pay costs by a certain date waits till the lastmoment to do so, he does so at his own risk. In support of thisproposition, he cited a series of cases and among them the casesof Punchi Nona v. Peiris, 26 N.L.R. 411, Simon Singho v. WilliamAppuhamy, 26 N.L.R. 408. This case was followed in Perera v.Gonaduwa, 74 N.L.R. 207, and in the unreported case of Hema-mala Ra^apakse, v. Peiris Appuhamy, S.C. 149/Inty of 1971, D. C.Kegalle 12384 (vide Supreme Court minutes of 19.2.75). Thefacts of Punchi Nona v. Peiris reported in 26 N.L.R. 411, are asfollows : —
In an action for a declaration of title to a land the defen-dants were not ready on tflie date fixed for trial. The casewas postponed upon the defendants agreeing to pay costsof the day fixed at Rs. 52.50 before the next date of trial.They also expressly agreed that if costs be not paid before^the due date judgment should be entered for the plaintiffwith costs. The defendants failed to pay the costs beforethe due date and when the case was called, tfheir Proctorstated that the costs could not be paid owing to floods andmoved to pay them. The Judge thereupon entered judgmentfor the plaintiffs.
Jayawardena, A.J. stated at page 414 : —
i “ The defendant says that he was prevented by floodsfrom paying a sum fixed as costs ; but he had more than twomonths within which to pay the amount, and it could notbe said that he was prevented by floods from paying a sumhe had agreed to pay during the whole of that period. Partiesno doubt wait till the last moment to make these paymentsbut that is not a circumstance the court can take into con-sideration, and if at the last moment they are preventedby accident or otherwise from doing so, they must be pre-pared to take the consequences. This rule must, however,not be regarded as inflexible, it would have to yield in caseswhere performance of an agreement has become absolutelyimpossible. ”
DEHERAGODA, J.—ThamotharampiUai v. Somamtnderam
The facts of Simon Singho v. William Appuhamy reportedin 26 N. L. R. at page 408, are as follows :—
An application was made for q postponement on theground of the defendant’s illness. Of consent, court madeorder postponing the case and the defendant to pay Rs. 86as costs of the day on or before a certain date. If not paidjudgment for the plaintiff and the defendant’s claim in re-convention to be dismissed. The date fixed happened to bea Sunday and the defendant’s counsel offered to make thepayment on Monday morning. It was held that the defen-dant had failed to comply with the order and judgment wasentered for the plaintiff.
Bertram, C. J. states at page 410 : —
“A person under such an obligation is entitled to wait tillthe last possible moment for its performance. In doing so,he, of course, takes a risk, and he may find it impossibleto perform his obligation at the time. But, he is entitled totake that risk.” i!
This case has been referred to in Perera v. Gonaduwa,Reported in 74 N. L. R. at page 207. The facts of that case arethat the defendant’s application for postponement was allowedupon the following terms :—
“ Trial refixed for 11.9.69. Defendant to pre-pay Rs. 75before 11. 9. 69. If not so paid, of consent judgment for
i plaintiff as prayed for.”
Samerawickrema, J. following the case reported in 20N. L. R. page 408* held that the failure to make payment onthe due date “brought into operation the consequences providedin the agreement ” and dismissed the application.
In the unreported, case of Hemamala Rajapakse v. Peiris Appu-hamy the plaintiff sued for damages for wrongful sequestrationof goods. Counsel for’ the defendant consented to plaintiff beinggranted a date fo,r -substitution of the executor of the estate ofthe original defendant, who had died pending the action, oncondition the plaintiff pre-paid a sum of Rs. 105 on or beforethe next date, ’.vhich was given for filing fresh papers, and thatif he failed ta do so , his action would be dismissed with costs.Upon failure to pay the costs before the due date, when defen-dant’s counsel move d that the plaintiff’s action be dismissedas agreed* the plaintij f’s counsel moved to call evidence to satisfy
DKHERAGODA, «T.—Thamotherampittai v. Somattmchram
Court that he haj3 a sufficient excuse for not making the paymentin time, and he was so allowed. The District Judge held on theevidence that the plaintiff had sufficiently excused himself andordered that the case be fixed for trial.
On appeal to this court, Udalagama, J. following Puncht Nonav. Peiris, 26 N.L.R. 411, held that the plaintiff had failed toprove that the reason he was unable to perform his part ofthe agreement was that it had become absolutely impossible forhim to do so, and, setting aside the District Judge’s orderdismissed the plaintiff’s action.
Mr. Ranganathan submits that the ratio decidendi to be drawnfrom these cases is that if a person waited till the last momentto comply with an order for pre-payment, he does so at his ownrisk and that unless there was impossibility of performanceduring the whole period within which the payment was allowedwe should not give the party who is guilty of such failure anyrelief. Unless, therefore, the instant case can be distinguishedfrom these cases on the facts or on the law there is little doubtthat the appellant cannot succeed.
Mr. The vara] ah invited our attention to the special circums-tances of this case where almost 9/10th of the costs to be pre-paid had been already paid and only a little more than l/10thwas due as balance and also that it had been brought into Courtby the appellant who did not desire to inconvenience the plain-tiff’s attorney-at-law by offering the money to him while hewas attending to the roll, His case is that the balance money hadbeen brought almost “ up to the door step, ” so to say, and thatthe appellant should be granted some relief. He also points outthat this was a pre-payment order made under section 63 C3) ofthe Partition Act and is distinguishable from the pre-paymentorders referred to in the cases cited by Mr. Ranganathan, inthat in all those cases the parties asking for a postponement hadagreed to pay, coupled with an agreement that judgment shouldgo against them upon default, while in the instant case, theorder for pre-payment has been made by the Judge ex parte andthat, therefore, those cases do not apply. According to him, when-ever in the past an attempt had been made to impose an ear partecondition that judgment should go against a party in the eventof a default in pre-payment of costs it had been successfullyresisted. A further argument advanced by Mr. Thevaraiah isthat where a defendant fails to provide security for costs undersubsection (1) the court may under subsection (2) reject his
DBHERAGODA, J.—ThamotharampiUoi v. Somastmderam
statement of claim ; but where a defendant is ordered to pre-pay costs under subsection (31, there being no specific provisiontherein to reject his claim, the court has no jurisdiction to doso upon a failure to pre-pay costs.
Let us now examine the validity of Mr. Thevarajah’s content-ion. In support of his first contention, he cites a number of casesand among them the case of Mahmoor v. Mohamed reported in23 N.L.R. at page 493. In that case, the defendant’s counselstated to court on the date fixed for trial that his witnesseshad not appeared and moved for warrants against them. Whileordering the issue of the warrants for December 5. the Judgeminuted “ Defendant to pay Rs. 15 costs of plaintiff todav. Ifnot paid before December 5, judgment for plaintiff. TrialDecember 5.” Through some mistake subpoenas had been issuedinstead of warrants and the witnesses having not turned up onDecember 5, plaintiff’s counsel moved for “ judgment againstthe defendant as the latter had tendered last day’s costs todayonly,” and judgment was entered for the plaintiff with costs.In appeal, distinguishing this case from the case of Peiris v.Wijesinqhe, 1 C.L.R. 86, where a consent order for pre-paymentwas made, Schneider, J. citing Lascelles, J. (15 N.L.R. 375)said “ No section of the Code had been cited which invested theDistrict Judge with any such power and that he thought thatin the case of an order finally dismissing the action, it wasnecessary that a Judge should act under some specific powergiven to him under the Code. ”
This case and the case cited in that case were governed bysection 821 and section 143 of the now repealed Civil ProcedureCode respectively, the terms of both these sections being suffi-ciently wide to warrant an order for pre-payment of costs ; butSchneider, J. held that the words of section 821 were “ insuffi-cient to empower a court to make an order that unless thecosts of the adjournment are paid by a stated date, the actionis to be decided in favour of the plaintiff or the defendant ” (atpage 498). That being a Court of Requests’ case, he cites certainother instances in the Code, where specific provision is made forsuch a course of action as in (a) sections 809 to 812—upon ad-missions of parties (b) sections 823—upon default ofappearances of parties and (c) after trial. In the same case DeSampayo, J., agreeing with Schneider, J., said, “ If a jurisdictionof this extraordinary character was intended to be conferred,the Code would have used plainer language.” Ennis, J. also
DEHERAGODA, J.—Thamotharampittai t>. Somatunderam
agreeing with Schneider, J. and De Sampayo, J. said that “Sec-tion 827 expressly enacts that the Commissioner shall hear anddetermine the action according to law, and there is no law whichenables him to avoid such a hearing and determination on afailure to pay costs.”
There is, therefore, a clear distinction drawn between a pre-payment of costs ordered of consent and that ordered ex parteby a court. The ratio decidendi to be gathered from this caseis that unless the legislature has stated in clear and unmistakableterms that a failure to comply with an order for pre-paymentof costs will result in the dismissal of an action of the plaintiffor the rejection of a defendant’s claim, no such result can ensue.
Mr. Ranganathan seeks to meet this argument by sayingthat section 63 (3) of the Partition Act expressly empowersthe Judge to make an order for pre-payment of costs while theCivil Procedure Code does not expressly provide for it and thatan order for pre-payment necessarily implies that if the costsare not so paid the party concerned cannot proceed with hisclaim. I do not agree. If the Legislature preferred to confer onthe court the power to make an order for the payment of costsbefore the next date of trial (and that is what pre-paymentmeans) and refrained from expressly stating what consequencesshould follow upon a failure to comply with that order, I shouldthink that the only inference that could be drawn is that uponsuch default the party aggrieved could take immediate steps toenforce that order by invoking the process of court withoutwaiting till the end of the case to do so. I am, therefore, ofthe view that notwithstanding the specific reference to pre-payment in section 63 (3) of the Partition Act, the principlesenunciated by Schneider, J. and the other two Judges of thiscourt, who concurred with him relating to the consequenceswhich flow from an ex parte order for pre-payment of costs -purported to be made under the now repealed Civil ProcedureCode apply to an order made under section 63 (3) of thePartition Act as well./
Mr. Thevarajah’s second contention is even stronger than hisfirst. Section 63(1) and 63(2) provide for an order on a party togive security for costs if he is guilty of unreasonable delay inpresenting or prosecuting his claim or for other good and suffi-cient cause ; and upon failure to provide such security, if suchparty is the plaintiff, his action can be dismissed ; if such partyis the defendant, his claim can be rejected.
JVUESCNDARA J.—ThamotharampiUai v. Somatunderam
Subsection (3) provides another course of action when a casehas to be postponed in consequence of such delay as is mentionedin subsection (1) and that is the court may order pre-paymentof costs as a condition for granting a postponement. While theconsequences of failure to give security for costs tire expresslystated in subsection (2) the consequences of failure to pre-paycosts are not set out in subsection (3). The only inference tobe drawn is that the legislature advisedly refrained from stipu-lating in subsection (3) that the same consequences that flowfrom a failure to comply with an order for security for costsshould flow from a failure to comply with an order for pre-payment of costs. One has to attribute to the Legislature theknowledge of the judicial decision reported in 23 N.L.R. 493,relating to ex parte orders for pre-payment of costs at the timeit enacted section 63(3) of the Partition Act, and I refuse toread into that subsection anything more than what it says. Iam fortified in my view by section 657 (6) of the Administrationof Justice Law which replaces section 63 of the Partition Actand which expressly provides for the dismissal of plaintiff’saction or the rejection of the defendant’s claim, as the casemay be, in the event of failure to give security for costs as wellas on a failure to pre-pay costs. I am, therefore, of the view thatthe appellant is entitled to succeed on this ground, too.
I, accordingly, set aside the order of the learned District Judgedated 20.5.1974, ordering the 3rd defendant’s statement of claimand all his evidence to be struck off. The action will now proceedfrom the stage immediately before that order was made withthe 3rd defendant continuing to participate in the proceedings.
The 3rd defendant-appellant is entitled to the costs of thisappeal to be recovered from the plaintiff-respondent.
Ismail J.—I agree.
I have read the reasons given by Deheragoda, J. (Ismail, J.agreeing with him). But, with respect, I would dismiss theappeal for reasons I will state briefly.
This partition action was instituted in September 1967 by theplaintiff respondent, referred to as the plaintiff, who prayed forthe partition or the sale of a land in extent 14 lachams. The3rd defendant-appellant, referred to as the appellant intervenedin January 1969. The appellant gave evidence and his cross-examination was fixed for the 7th of May, 1974. On that date h«
406WlJES UNDER A, J.—Thamotharampillai v. Somatunderam
was absent and his attorney produced a medical certificate. Theplain tiff alleged that he saw the appellant in the market theprevious morning and that the medical certificate was false.Apparently there had been postponements before. The courtthen made an order under section 63(3) of the Partition Act,inter alia—“ 3rd defendant to pay the plaintiff 157/50 before10 a.m. on the next date of trial. If not paid the 3rd defendant’sstatement of claim and his case to be struck off ”, and fixed thenext date of trial for 20th May, 1974. By that date the appellanthad paid only a sum of Rs. 140. On that date when the case wastaken up he alleged that when he came at 9.30 a.m. with themoney, he found the attorney for the plaintiff in court atten-ding to the roll and therefore he could not pay the balance.But the court made order rejecting the claim of the appellant.The appellant now appeals.
The orders made by the court on the last two dates are : (a)an order for pre-payment of costs, and (b) an order forrejecting the claim in case of default of pre-payment of costs,and the subsequent rejection of the claim because of the default.The Partition Act gives the court the power to order pre-paymentof costs, section 63 (3). A court is entitled to reject a claim incase a party intervening does not appear or delays to pursue hisclaim. On the 7th of May if the court accepted that the appellantwas sick, I do not think that there would have been any orderof pre-payment of costs. It is obvious that the court paid noregard to the medical certificate. The court could then wellhave rejected the claim. Without making such an order the courtmade the order rejecting the claim conditional, viz., on failureto pre-pay costs. It is in effect a combination of two orders bothof which a court is empowered to make. An order to pre-paycontemplates some sanction in case it is not complied with. Thecourt has ordered that that shall be the rejection of the claim inview of the circumstances under which the case had to bepostponed. To my mind this is perfectly legal and within thepowers given to a court by the Partition Act.
Secondly, section 63(2) states that a court can order thedismissal of the action if security for costs has not been furnishedas ordered under subsection (1), i.e., where a party has beenguilty of unreasonable delay in presenting his claim, or for othergood reason. Section 63(1) contemplates a wide category ofinstances where a court can order security to be furnished. Thepostponement of a trial contemplated in section 63(3) is in
WLUES CXKDEftA, J.—Thamotharampitlai t>. Somasunderam
consequence of the type of delay contemplated in subsection (1).Then but for subsection (3) in such cases also the court canorder security for costs to be furnished, resulting in the dismissalof the action in case of failure to comply with the order. Thenthe legislature could only have intended that the failure tocomply with an order of pre-payment should be attended withthe same consequences as the failure to comply with an order tofurnish security for costs.
Mr. Ranganathan submitted that it is implicit in the wordpre-pay that before a party is permitted to present his case onthe postponed or adjourned date he must pay the costs ordered.In fact it is only in this subsection that the word pre-pay is used.The power to order pre-payment under the subsection impliesthe power to grant the adjournment or postponement subject tothe condition that costs should be paid before a date to be fixedby the court. This power necessarily implies that if there is adefault the party concerned cannot proceed with the action.
If it be correct that the only remedy on failure to comply withan order of pre-payment of costs is to take out writ, then anorder of pre-payment is the same as an order to pay costs.Because in the case of an ordinary order to pay costs, writ canbe taken out soon after the order unless complied with.
The Administration of Justice Law has in section 657(6)specifically provided for the dismissal of the action or therejection of the claim for failure to comply with an order ofpre-payment. But, with respect, that does not mean that thepower did not exist prior to that.
There is no provision in the Civil Procedure Code whichempowered a court to order pre-payment. There is nothing insection 63 of the Partition Act which requires the consent ofparties before any party is ordered to pre-pay costs. The questionof consent then has no relevance. The appellant was representedby his attorney when the court made the order in question. Theattorney must have known that it was open to the court toorder pre-payment when he was instructed to produce themedical certificate. He did not at any stage point out that thecourt had no power to make the order it did. After the order wasmade, on the application of the two attorneys the trial was fixedfor another date as well. So that the order made on the 7th ofMay cannot be equated to an order made ex parte. With respect,
WIJESuNDERA, J.—ThamotharampiUai v. SomasuncUrdni
it is futile then'to look into the cases decided under the Code toascertain in • what circumstances pre-payment of costs can beordered or what is to happen in case of default.
The only other question left is the consideration of the reasongiven by the appellant for his failure to pre-pay costs. Thecircumstances have been set out earlier. However, I cannot butask the question : Was the appellant trying to make a bargain ?Whatever be the answer, he waited till the last moment and hemust bear the consequences. I would therefore affirm the orderof the learned District Judge and dismiss the appeal with costs.
CANDIAH THAMOTHARAMPILLAI, 3rd Defendant-Appellant and EHAMPARAM SOMASUNDERAM,