Tikiri v. Latnaya
1967Present: Manlcavasagar, J., and Tennekoon, J.
TIKIRI and 6thexs, Appellants, and D. LAMAYAand others, Respondents
3. C. 468164—D. C. Kurunegcda., J3619JP
Partition action—Death of a plaintiff pending appeal—Procedure thereafter—PartitionAct (Cap. 69), S3. 71, 76:
Where, pending an appeal in a partition action, one of the plaintifis-appellant*dies, and no steps ore taken to substitute a person to represent the deceased,the Court must endeavour to compel the parties to bring the actionto a termination : it may dismiss the action only in the event of tho parties,duly represented, not prosecuting the appeal with due diligence.
Aia.PPEAL from a judgment of tho District Court, Kurunegala.
No appearance for the plaintiffs-appellants.
N.E. Weerasooria (Jnr.), for the let defendant respondent..
. – * *
Cur. ddv. will.
c. < • – 1
1 (1938) 40 K. L. It. 169.a (1968) 3 W. L. R. 304* V
MANICAVASAGAR, J.—Tikiri v. Lamaya
February 25, 1967. Makicavasagab, J.—
When this appeal from the judgment of the District Judge ofKurunogala dismissing the plaintiffs' action for a partition of the landdepicted in preliminary plan X of 19.8.67 was taken up for hearing ona previous occasion, the Bench was informed that one of the plaintiffs-appellants (numbered IE) was dead. The Court thereupon directedthat the case record be returned to the District Court for propersubstitution of tho deceased ”.
The action was filed by two plaintiffs, one of whom the 2nd wassubsequently made tho 5th defendant as her interests were adverse totho plaintiffs : the 1st plaintiff died before the trial in the District Court,andin her place, her children were substituted as plaintiffs and numbered1A to ID : of them IB to ID were minors and were represented bytheir father, plaintiff IE. as next friend.
When the record was once again before the District Judge, he foundthat the respondents to the appeal were unwilling to take stops—anattitude which I have often found amongst respondents in a similarsituation, induced by the hope that this may lead to an easy way ofdisposing of the appeal. The District Judge, realising that this wasa partition action, directed notice to issue on the plaintiffs :.the noticewas served on tho erstwhile 2nd plaintiff (she was at that time the 5thdefendant-respondent), and purported to be served on the 1st plaintiffwho had died even before tho trial. The 2nd plaintiff appeared inresponse to the notice, and told the Judge that she is not taking stepsas she was not interested in the appeal. The District Judge,without endeavouring to take any further steps to effect substitution,returned the case record to this Courf.
The appeal is again before us without the appellants, three of whom,according to the affidavit of the deceased plaintiff IE were minors on25.2.62, being represented by a next friend. Mr. Weerasooria (Jnr.)for tho respondents moves that the appeal be dismissed with costs asthe appellants are not present either in person or by counsel. Thiswould have been a proper application if we were not confronted by thefact of minority : but in the circumstances to which I have adverted theapplication must be refused : nor, for the same reason, is this a suitablecase for dismissal of the partition action itself on the ground of non-prosecution under Section 71 of the Partition Act, though it may becontended that such dismissal shall not operate as a bar to the institutionof a fresh action for partition, by virtue of the provisions of section 76of the Act. In my opinion, this being a partition action, the Courtmust endeavour to compel the parties to bring the action to atermination: it may dismiss this action only in the event of theparties, duly represented, not prosecuting ths appeal with due diligenoe.
Abeyratne v. Marambe Kumarihomy
The . record must therefore go back for the appointment of a nextfriend, if plaintiffs IB to ID are still minors : it appears to me that theDistrict Court might as a first step cause notice to issue on plaintiff-appellant (numbered 1A), who has attained majority, and is a brotherof IB to ID : for he may agree to represent them as his interests arethe same, or he may apprise the Judge that one or more of them haveattained majority, in which event, they should be noticed to prosecutethe appeal if they elect to proceed with the action. I desire to makeit dear that the District Judge need not confine himself to the suggestionI have made : there may be other effective courses of action which mayoccur to him to have this appeal prosecuted, if the parties desire todo so.
The record should be returned to this Court after diligent endeavoursare made to comply with the foregoing directions.
Tknnekoon, J.—I agree.. __ __ *
Sent back for further proceedings.
D. TIKIRI and others, Appellants, and D. LAMAYA and others, Respondents