< 493 )
Present: Ennis, De Sampayo, and Schneider JJ.
MAMNOOB v. MOHAMED.
377—<7. J?. Cotom&o, 81J33.
Postponement on application of defendant—Order that if costs be not paidbefore next date, judgment would be entered for plaintiff—Powerof Court to make order without consent of parties—Civil ProcedureCode, ss, 143 and 821.
Apart frojn 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 partyfailing to pay costs.
r | facts are set out in the judgment of Schneider J.
Eeuneman (with him Schokrmn)t for defendant, appellant.—Theorder of the Commissioner is not authorized by the Code. He couldhave ordered that the costs should be paid before the next date oftrial, and if the costs were not paid, the plaintiff could have issuedwrit. But he had no authority to add a further condition that ifthe costs were not paid before thenext date of trial, judgment shouldbe entered in favour of the plaintiff. Ban Etana v. Appu1 andSummanasara Unnanse v. Seneviratne.a It has been held that hecould impose this condition if the defendant consented (Pieris v.
Wijesinghe8). The words of section 143 of the Code axe not wideenough to authorize such an order. The Judge could impose termsabout the amount of costs, or name the party by whom they are tobe paid.
[Sohnxidxb J.—Section 143 has no application. In Courts ofBequests, section 821 of the Code applies.]
Even this section does not authorize a dismissal of the action.
The only authority given is to make an order about the costs.
The learned Commissioner should have heard the action, and, ifnecessary, taken evidence, before entering judgment.
Croos-Dabrera (with him Peri Sunderam), for the plaintiff,respondent.—Section 143 of the Code is wide enough to enable aJudge to make an order which has been entered in this case. Itgives him full power to make any order as to costs. In this casehe has imposed a condition that if the costs are not paid beforethe next date of trial, judgment should be entered in favour ofthe plaintiff. No objection was taken by the defendant to thisorder. Under section 156 of the Indian Code, which is the same
1 (1901) 4 N, L. B. 185.* (1913) 15 N. L. B. $76.
* 1 C. L. B. 86.
( )1928* as section 143 of our Code, it has been held that it was com-Mamnoer P®*®11* a Judge to impose a condition that the hearing on thev.M*han*d adjourned • date would be conditional on the payment of costs.
(Dhanu Bam Mahio v. Murli Mahto.l) In the case of Yirabhadrappav. CMnnatrma it was conceded that it was open to a Judge to makea specific order making the payment of costs a condition precedentto the hearing of the evidence. The Indian oases clearly show thatthe construction put upon the Code recognizes the right of a Judgeto make the order appealed from. Section 143 speaks of “ suohorder as it thinks fit with respect to the costs occasioned by theadjournment/* but this is an action in the Court of Requests, andis governed by section 821 of the Code* This section is wider in itsscope. It clearly empowers the Commissioner to adjourn the trial“upon suoh terms as the circumstances of the case may rendernecessary.” This section is based on the English rules and orders,-under which it was open to a Judge to make any order he thoughtfit. It has been held that the Appellate Court should not interferewith the discretion exercised by a Judge in making an order ofpostponement. There may be oases where one party may beapplying for a date with a view to harass and annoy the other party,and the latter not in a position to recover his costs. In suchcases the Judge should be given a discretion to impose any termshe thinks prpper regarding the payment of costs or to grant theadjournment subject to certain conditions.
Keunemant in reply.
July 11,1922. Ennis J.—
This is a reference to a Court of three Judges on a point of law,viz., whether a Commissioner of Requests could lawfully make anorder under section 821 of the Civil Procedure Code (which enactsthe special procedure for Courts of Requests) when granting anadjournment that if costs be not paid before the adjourned hearing,judgment would be against the party failing to comply.
In the present case it does not appear that the order was made byconsent as in the case of Pieris v. Wijesinghe (supra). I can see noobjection to a case being dismissed by consent.
In the case of Ban Etana v. Appu (swpra) it was held that a Courtof Requests could not make such an order, and in SummanasaraUnnanse v. Seneviratne (swpra) it was held that a District Courtcould not make such an order under section 143 Of the Civil Pro-cedure Code.
Section 821 of the Code enacts that a Court of Requests may makean order adjourning the trial of an action upon such terms as thecircumstances of the case render necessary. Under the Code ahaction may be dismissed on admission, on default of appearance,
»I. L. R. 31 Oal. 666.
% I. L. R. 21 Mad. 403.
( 405 )
or after hearing, bat there is. no provision for an aotion being dis-missed for non-payment of eosts. Section 827 expressly enactsthat the Commissioner “shall hear and determine the aotionaccording to law,” and there is no law which enables him to avoidsuoh a hearing and determination on a failure to pay oosts. Nolocal aatbority for such a proceeding has been cited to us, and we 'are unable to examine the English case of BoucicauU v. BoucicauUgiven in the reference, as we have not got the report in which it iscontained (4 Times Reports> 195). So we are not in a position toknow what the order in that case was.
I see no occasion to follow the expression of opinion found in theIndian cases, as this case depends upon an interpretation of theCeylon Code.
In the circumstances, I am of opinion that the Court had nojurisdiction to make the order and pass judgment without hearingall the evidence available. I would accordingly set aside so much ofthe order appealed from as makes the costs payable by a particulardate, and I would set aside, with oosts, the decree appealed from,and send the case back for further hearing.
Db Sampato J.—
The point of procedure referred to this Bench has arisen in a Courtof Bequests case, but I think it is as well to consider the questionas a whole. In Summanaaara Unnanse v. Seneviratne (supra),which was a District Court case, Lascelles C.J., who delivered thejudgment of the Court, observed that to enable a Judge to dismissan action without hearing it, he should act under some specificpower given to him under the Code. This is the principle governingthis matter, and it applies equally to a case where judgment is to beentered for the plaintiff if the defendant makes default in the pay-ment of the costs in accordance with a previous order. The questionthen is whether the Code provides for the exercise of such a power.Section 143 empowers the Court, when fixing a day for the furtherhearing of the action, to make such order as it thinks fit “ withregard to the costs occasioned by the adjournment.” This hasreference to the matter of costs only, and enables the Court to givecosts or not to give costs, or to limit the amount as it thinks fit. Itcertainly does not specificially confer power to dismiss the action,or to give judgment for the plaintiff, as the case may be, if the con-dition of paying costs is not fulfilled. The only other section of the *Code requiring attention is section 821, which has special referenceto actions in the Court of Bequests. It empowers the Commissionerto adjourn the trial of an aotion “ upon such terms as the circum-stances of the case may render necessary.” These, undoubtedly,are larger words than those in section 143, but I do not think theyhave a greater significance with regard to the point under considera-tion. Here, too, no specific power is given to digmlm an action or
( m )give judgment without any hearing if some condition which theCommissioner has purported to impose has not been complied with.If a jurisdiction of this extraordinary character was intended to beconferred* the Code would have used plainer language. I, therefore,think that neither of the sections above referred to justifies such anorder as was madeinthiscase. Thec&SQoiPierisv.Wijesingke (&apra)cannot.be cited as an authority to the contrary, because there Ispecially based my judgment on the fact that the defendant had agreedto thecondition, and that the order was, in faot, aconsent order. Justas a defendant may consent to judgment b^-ng entered against himat once* so he may consent to jud$r£«r& being so entered at a futuredate, if in the meantime he has not done something. Nor can anyclear guidance be derived from the Indian case (Virabhadrappa v.Ohinnaw&v&wpra) ), which has beencited on behalf of therespondent.Thet was a decision not onseotionl56 of the Indian Code correspond-ing to our section 143, but on section 168 corresponding to oursection 145. The decision was that, in the absence of a specificdirection making the payment of oosts, a condition precedent to thehearing of the.evidence of the party in default,the failure to pay theoosts was not a failure “ to perform any other act necessary to thefurther progress of the suit for whioh time has been allowed ” withinthe meaning of section 158. The other Indian case cited is DhanuBamMahto v. Murli Mahto (supra). There the subordinate Court hadordered immediate payment of costs as a condition of an* adjourn-ment. The Appellate Court no doubt said that in the circumstancesof the oase the Court might have adjourned the case to a subsequentdate, and made the. hearing on that date conditional on paymentof the costs before that date. But the particular provisions of theCode were not analyzed or discussed, and the real point decidedappears to be that sufficient opportunity was not given to theplaintiff to enable him to carry out the order of the Court and toproduce his evidence. I cannot regard either of these cases as adirect authority on the question, whether a specific direction of thekind mentioned would be within the power of the Court and opera-tive. I think we must put our own interpretation on the provisionsof our Code.
I therefore agree with my learned brothers that this appeal shouldbe allowed, with costs, and the case sent back for hearing in duecourse.
In this action the plaintiff claimed a sum of Rs. 230 as balance oisalary due to him. Hie defendant denied this claim, and counter-claimed a sum of Rs. 296*74 as due to him. In a replication theplaintiff traversed the denials as to his claim, and denied the defend-ant's counter-claim.
( 497 )
The trial was fixed for December 1,1921. On that day the record 1922.is: “ Parties present and ready. Mr. Nagalingam, for defendant, gomnamBBstates he is not ready, as his witnesses have not appeared. He asks Xfor warrants against them. Issue warrant for December 6. Defend^ Mamnoorant to pay Bs. 15 costs of plaintiff to-day. If not paid before v. MohcmedDecember 5, judgment for plaintiff. Trial, December 5.”
The record shows that the defendant had issued summons for theappearance of his witnesses, and that the summonses had been served.
The defendant, therefore, was not ^to blame for their non-appearanceat the trial on December 1, but the learned Commissioner waswithin his rights in ordering warrants against them, and in castingthe defendant in the costs of the day, for the reason that the plaintiffwas hot to suffer for the default of the defendant’s witnesses.
Strangely, instead of the Commissioner’s order being carried outthat warrants should issue against the defendant’s witnesses, it? would appear that on December 2 subpoenas were issued for theattendance of the defendant’s witnesses on December 5. As to thehappenings on this day there is no record that the parties werepresent, but there is a record that the same counsel appeared, andthat the plaintiff moved (that, I take it, means plaintiff’s counsel) that“he obtain judgment against defendant, as latter tenderB last day’scosts to-day only, and quotes Pieris v. Wijesinghe (supra).99
The Commissioner records that that decision appears to governthe case. He, therefore, ordered judgment to be entered for theplaintiff, with costs, and for defendant’s claim in recoQvention to bedismissed… He also records that defendant’s counsel desires himto record that the money was tendered on that day, but that theplaintiff had refused to accept it. It is not disputed that the moneywas $ehdered, but it appears that the plaintiff’s counsel contendedthat the tender was too late, as the order was for payment beforethat date. The defendant has appealed from the order of theMagistrate of December 5. The'appeal raises a simple question, but• one of much importance in practice.
. The plaintiff’s counsel and the Commissioner were wrong in think-ing that the case of Pieris v. Wijesinghe (supra) had any application tothis case. It was also a Court of Bequests case, and was decided bymy brother De Sampayo. But the facts are different. There thedefendant’s application for an adjournment of the trial was opposedby the plaintiff, and the defendant’s counsel agreed to an orderbeing made that the plaintiff should have judgment unless his costswere paid before the adjourned date of trial. The Commissionerthereupon entered an order according to this agreement. As mybrother pointed out'in his judgment, that “ was a consent order,”and consequently bound the defendant. He, therefore, thoughtthat the case of Summanasara Unnanse v. Seneviratm (supra) didnot apply.
( 498 )
1922.The foots of tbe latter case were these. It was a case in the ‘
SoraraDHB Distriot Court of Kalutara. The plaintiff moved to amend hisJ.plaint; when that was allowed, the defendant stated that his answer
Mmwoor wou^ ^aye to be amended in consequence, and applied to have hisv. Mohamed costs deposited in Court before the next day of trial* The DistrictJudge thereupon made order that, in the event of the costs notbeing deposited before the next day of trial, the plaintiff’s actionwould be dismissed, with costs. Against this order the plaintiffappealed. Lascelles C.J. held that the District Judge had nojurisdiction to make the order as to the dismissal of the action. Hesaid that “ no section of the Code had been cited which investedthe District Judge with any such power, and that he thought that inthe case of an order finally dismissing the action, it was necessarythat a Judge should act under some specific power given to himunder the Code.”
There is one good reason why this case should not be regarded asan authority which should wholly govern the decision of the presentcase, and that is the fact that it was a case in a District Court,whereasthis is a Court of Requests case. That was an adjournment grantedunder the provisions of section 143 of the Civil Procedure Code,whereas in this case the order for the adjournment was under section821. But that decision is useful as pointing out that the dismissalof an action must be justified under some specific power conferredupon a Judge by the Civil Procedure Code.
The only section under which the Commissioner could make theorder for adjournment in this case is section 821. The words ofthat section material to this case are these : “ Whenever the Com-missioner shall be satisfied that either party is not ready to proceedto trial by reason of the absence of any material witness, it shall belawful for the Commissioner to adjourn the trial of the action to atime fixed by the Commissioner upon such terms as the circumstancesof the case may render necessary” Even if the words “ upon suchterms as the circumstances of the case may render necessary ” beconsidered by themselves, I am of opinion that they are insufficientto empower a Court to make an order that unless the costs of theadjournment are paid by a stated date, the action is to be decided infavour of the plaintiff or the defendant. But, on the contrary, thereis a very good reason why those words should not be given thatinterpretation. It is this. The Code has express provisions as tocircumstanoes under which an action may be disposed of. Anaction may be disposed of (1) upon the admissions of tbe parties(sections 809 to 812 and 823); (2) upon the default of appearanceof parties (section 823); and (3) after trial. In the last of thesecases it is enaoted that“ the Commissioner shall hear and determinethe action according to law (section 827).” What is meant byaccording to law is indicated in section 184 of chapter XX. Thatsection is applicable to Courts of Requests (section 830).
( 499 )
It was argued that the order in this case might be regarded as onemade under section 143 as well as under section 821. That argu-ment is not sound. Part X. of the Procedure Code provides aspecial procedure for Courts of Requests, and by section 801 thatspecial procedure must be taken as limiting and controlling thegeneral provisions, sofar as such provisions are expressly or impliedlyapplicable to Courts of Requests. The general provisions are toapply to Courts of Requests whenever they are not inconsistent withthe special procedure. Sections 821 and 822 provide a specialprovision as the adjournments. Hence, the general provisions onthe same subject in sections 143 to 145 cannot apply to Courts ofRequests. Again, the language of the two sections is not identical.Under section 143 in granting an adjournment the Court “ maymake such order as it thinks fit with respect to the costs occasionedby the adjournment.” I have already quoted the words of theother section (821). It was also argued that section 143 of our Codewas identical with section 156 of the now repealed Indian Code ofCivil Procedure, and that it has been held that it was competentfor a Judge to impose a condition that an action shall be disposedof in a particular way, unless costs ordered are paid by a given date.Two cases said to be reported in Indian Law Reports, 36 Cal.Series S66 and 21 Mad. Series 403, were cited. Whatever be theview taken in India, I am unable to uphold the contention that it iscompetent for a Judge to impose such a condition. Where apenalty may be imposed for non-payment of costs, the Code makesexpress provision (sections 416-418).
It was argued that a Judge should have the power to impose acondition that the action should be decided in a particular way ifthe costs are not paid by a named date. To this there are manyanswers which I need not enumerate. I do not think he should begiven such a power. But indirectly he has that power in his handsas shown in the case of Pieris v. Wtjesinghe (supra) already referredto. When an adjournment is applied for, it is open to him to inquirewhether the other party consents to its being granted, and if thelatter party states he would agree to a postponement, only on thecondition that the action shall be decided in a particular way if thecosts are not paid, and the other party agrees to this, the order as tothedecision of the action becomesa consent order, and will, therefore,bind him. But if a party does not consent to take an adjournmentupon that condition, it is open to the Court to act under the provisoto section 821 and to proceed with the trial.
I would, therefore, hold that the learned Commissioner had nopower to impose the condition that judgment should be entered forthe plaintiff upon non-payment by the defendant of the costs of the.day of adjournment. The order appealed from should be set aside,with costs, payable by the plaintiff both of the lower Court and ofthis Court.
MAMNOOR v. MOHAMAD