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FERNANDO v. PERIS et al.
D. C., Colombo, 3,544.
Order of abatement—In what circumstances it should be made—Right ofCourt to enter it mero motu—Striking case off the roll—Procedureon death of a plaintiff.
Per Lawrib, A.C.J.—An order of abatement under section 402 ofthe Civil Procedure Code should not be entered by the Court exmero motu, but on application by the defendant on due notice to theplaintiff.•
Per Browne, A.J.—When, on the trial date of a case, it appearedto the Court that one of the plaintiffs was dead, the proper orderwas not to strike the case off the roll, but to postpone it to such adate as would suffice for representation to be raised to the deceased.
1~N this case three plaintiffs (Welun, Velmina, aod her husband-*■ Baron) sued the defendants for the recovery of a sum of moneydue on a bond. The defendants filed answer, and the case wasfixed for trial on the 24th July, 1893. When the case Was called onthat day the third plaintiff was present and informed the Courtthat the first plaintiff was dead. The Court ordered the case tobe struck off the roll.
The surviving plaintiffs having failed to take any steps in thecase for a period exceeding twelve months, the Court ordered on5th June, 1897, that the action should abate.
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The administrator of the first plaintiff and of his wife and thesecond and third plaintiffs applied that the order of abatement beset aside on the ground that the delay in prosecuting the suit wasdue to the fact that it was necessary to obtain administration ofthe first plaintiff’s estate.
The District Judge disallowed the application for the followingreasons :—
“ Administration does not appear to have been applied for till“ June, 1896, and the administrator is none other than the third“ plaintiff himself, and the second plaintiff is his wife. If in June,
“ 1896, the third plaintiff considered himself the fittest person to“ represent the deceased first plaintiff, he might well have done“ so in 1893 also, and duly prosecuted the suit.
“ The death of the first plaintiff can also afford no excuse what-“ ever for the second and third plaintiffs (who are still alive) not“ prosecuting their claim during the last four and a half years.
The applicants appealed.
The consequences of an order that an action shall abate are soserious that my opinion is that the Court should never exercisethe power ex mero motu, but only on application by the defendantand after due notice to the plaintiff.
On 24th July, 1893, the District Judge was informed that one ofthe three plaintiffs was dead, the case was struck off the trial roll.
On 4th June, 1897, the proctor for the plaintiffs moved to amendthe plaint by deleting the name of the deceased and by substitutingthe name of his legal representative, the administrator, but forsome reason or other this motion was not fully recorded, and nextday, with the knowledge that there was an administrator, theDistrict Judge ordered the action to abate. I cannot approve ofthat. I think it was unfair, and so thinking I am adverse to affirman order refusing to set aside the abatement which I think oughtnot to have been entered. I would set aside the order of abatement.
I agree that the order to abate should not have been made when,and only when, an administrator was taking steps to revive theproceedings, in order that he might close the affairs of his intestate.The error in the procedure was in “ striking the case off the roll ”on the death of one of the plaintiffs. That trial should have beenpostponed to such a date as would have sufficed for representationto be raised to the intestate. If this was not done within twelvemonths thereafter, I venture to consider the Court could then orderit should not encumber its trial roll any longer.
FERNANDO v.PERIS et al