Jameeta Otnma v. Abdul Azeez.
1946Present :Rose J.JAMEELA UMMA, Appellant, and ABDUL, AZEEZ,Respondent.
242—C. R. Colombo, 97,751.
Court of Requests—Default of appearance of plaintiff—Plaintiff grantedpermission to institute fresh action—Pre-payment of costs of previousaction—Condition precedent—Civil Procedure Code, s. 823 (5).
Where, in an action in the Court of Requests, the plaintiff having failedto appear when the case was called the action was dismissed but uponsubsequent application being made the Commissioner in the exercise ofhis powers under section 823 (5) of the Civil Procedure Code ordered thata fresh action might be instituted upon the plaintiff paying the costs ofthe previous action—
Held, that the pre-payment of the costs of the previous action was acondition precedent to the institution of the fresh action.
PPEAL from an order of the Commissioner of Requests of Colombo.
H. W. Thambiah, for the plaintiff, appellant.
S. Mahadevan, for the defendant, respondent.
Cur. adv. vult.
ROSE J.—Jameela Uinma v. Abdul Aseez.
February 1, 1946. Rose J.—
In this case the plaintiff-appellant instituted an action against, thedefendant-respondent for arrears of rent and ejectment. The plaintiffhaving failed to appear when the case was called the action was dismissedbut upon subsequent application being made the learned Commissionerin the exercise of his powers under section 823 (5) of the Civil ProcedureCode ordered that a fresh action might be instituted upon the plaintiffpaying the costs of the previous action.
The plaintiff duly instituted a fresh action and the matter came up forhearing on June 19, 1945, when upon objection being taken by thedefendant-respondent the learned Commissioner dismissed the actionon the ground that the condition precedent to its institution had notbeen complied with. It is against that order that the plaintiff nowappeals.
It is common ground that the defendant’s costs relating to the pre-vious action have not been taxed. It is further admitted that theplaintiff neither requested the defendant’s proctor to expedite taxationnor moved the Court of Requests in the matter ; nor was payment madeinto Court of an amount equivalent in the appellant’s own estimationto what the defendant’s taxed costs were likely to be or of any sum.
The appellant contends in the first place that the wording of section823 (5) which reads as follows :—“…. the Commissioner may
grant to the plaintiff permission to institute a fresh action upon paymentinto court of the amount (if any) due to the defendant as costs in theprevious action V does not mean that the payment into Court mustnecessarily precede the institution of the fresh action. With that con-. tention I am unable to agree. Not only in my opinion is it clear from thewording of the section itself that the payment into Court is a conditionprecedent to the institution of the action but that view has already beenexpressed by Soertsz J. in Perera et al v. Silva et all where the learnedJudge says “ The Commissioner is required by that section to directthat the plaintiffs shall pay into Court the amount of the costs incurredby the defendants in the previous action before instituting the freshaction ”.
The appellant contends in the alternative that the learned Com-missioner’s order was not in the terms of the section and therefore—not having been appealed from—should be interpreted according to themeaning of the words actually used. The order in question statedthat a fresh action may be brought “ on plaintiff paying costs of action ”.Having regard to the fact that in the present circumstances the onlyauthority for the Commissioner to permit the institution .pf a fresh actionis supplied by section 823 (5) it seems to me that it is my duty if possibleto reconcile the wording of the order actually made with the wordingof the section. In my opinion not only is it possible to reconcile thewording of his order but the natural interpretation to be given to it isthat he intended the payment into Court to be a condition precedentto the institution of the action.
1 42 N. L. R. at page 143-
ROSE J.—Jamttla Umtna v. Abdul Aweee.
Counsel for the appellant referred me to one or two eases relating tosection 406 of the QiVil Procedure Code and its corresponding section inTrivia—section 373 of the (Indian) Civil Procedure Code. In my opinion,however, they are of no assistance to the appellant because under section406 a discretion is vested in the court to impose such terms as to costs orotherwise as it may think fit. Each case, therefore, under that sectionmust depend upon the actual terms of the order made, which may ormay not impose as a condition the prior payment of the defendant’scosts in the earlier action.
For these reasons, I am of opinion that the appeal fails and must bedismissed with costs.
JAMEELA UMMA, Appellant ,and ABDUL AZEEZ, Respondent