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Present : Pereira J. and De S&mpayo A.J.
SCOTT v. MOHAMADU.130—D. C. Batnapura, 2,333
Plaintiff residingoutof thejurisdiction of the Court—Order asto costs
should not he made as a matter of course—Appeal against anex parte order—Civil Procedure Code, ss. 416 and 417.
An orderunder section£13 of the Civil Procedure Coderequiring
a plaintiff in an action who resides out of the jurisdiction of theCourt to give security for the payment of the defendant's costamay be made on an cx parte application.
An appealliesfrom anex parte order, although such on appeal is
not to be encouraged, and the Court may in its discretion refuse toentertain it.
An orderforsecurityunder section 416 or section 417of the
Code should not be made as a matter of course. The Court inthe exerciseofits discretion should be satisfied that theaid cl
either section is not being oppressively invoked by the party moving.
IJ1HI3 facts appear from the judgment.
Hayley, for plaintiff, appellant.
Bawa, K.G., and A. St. V. Jayewardene, for defendant, respondent.
Cut. aiv. vult.
November 29, 1914. Pereira J.—
This is an appeal from an order of the District Judge requiringthe plaintiff to give security in Bs. 3,000 for the defendant’s costs.The order has been made under section 416 of the Civil ProcedureCode. The defendant’s counsel has argued that the order was madeex parte, and that no appeal lay from such an order, the remedy ofthe party aggrieved being to apply to the Court below in the firstinstance to vacate the order and to appeal from any adverse orderthat might be made by the Court on such application. On theother hand, the plaintiff's counsel, maintaining the position thatthe order was an ex parte, order, has argued that the Court had nopower to make an ex parte order under section 416. I am not surethat the order can be said to be an ex parte order. The plaintiff'sproctor was present in Court representing the plaintiff as a partyto this case when the application for security was made. But,assuming that the order was an ex parte order, I am not prepared tosay that the Court had no power to make such an order under section416. That section gives the power to the Court to make an order forsecurity “ either of its own motion or on the application of any
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^ defendant/' and there is nothing that I can see in the terms inPnramA .t. which the section is expressed to indicate that the order cannot bemade on an ex parte application. As regards the right of a partyaggrieved to appeal from an ex parte order, it seems to me that itis not open to the defendant to take his objection at this stage ofthe proceedings. There was an application before this Court bythe plaintiff for leave to appeal notwithstanding lapse of time.The objection in question was then pressed by the defendant, andconsidered and disposed of by this Court. I may, however, say thatin support of the'objection certain local cases were cited. Thoseoases turned more or less on the decision of the case of Vint v.Hudepith. 1 In that case Cotton L.J. observed: “ I am far fromsaying that this Court cannot entertain an appeal from a judgmentmade by default, but in a case like the present it is important toprevent the Court of Appeal from being flooded by having to hearcases in the first instance and Bowen L.J. said: “ I should besorry to dec’de that the Court has not jurisdiction to entertain an appealfrom a judgment given by default; but it is equally clear that it is abad practice to encourage parties to come here without having thecause in the first instance tried by the Court below." It is, if anything,clear from this case that this Court has the power to entertain thepresent appeal. It may, of course, in its discretion refuse to entertainit, but the expediency of entertaining the appeal has already beendecided upon, and it iB not open to question now.
As regards the merits of the appeal, the order of the District Judgedoes not appear to be what may be called a considered order,because he has given no reasons for it. Indeed, the respondent'scounsel expressed his belief that orders under sections 416 and 417of the Code were usually made by District Courts as a matter ofcourse. If that is the practice, the sooner it is discontinued thebetter. The provision of section 416 or 417 may in many cases beoppressively invoked by a defendant. A discretion no doubt isgiven to the Court, but the exercise of it ehould be sound andreasonable. In the present case the plaintiff does not appear tohave selected the District Court of B&tnapura for the institution ofthis case in order to harrass the defendant or to render the recoveryof costs by him difficult. The case was instituted there because thetort complained of was committed within the jurisdiction of theB&tnapura Court. It has not been shown that the mere fact ofthe plaintiff being resident out of the territorial limits of thejurisdiction of the Court would place the defendant at a greaterdisadvantage in the recovery of his costs than he would have beenhad the plaintiff been resident within those limits. I do not thinkthat this is a suitable case for an order for security under section 416,nor do I think that the amount of the security ordered is reasonable.The appellant's counsel has said that he would in this npreal be
i 29 Ch. D. 322.
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content with an order reducing the security required to Bs. 250,and I would therefore order accordingly. In the circumstances, Iwould direct that each party do bear the costs of the presentcontention in both Courts. It appears that the plaintiff failed to*give security required by .the District Court, and his claim wastherefore dismissed. We are now asked to vacate this order dealingwith it in revision. I would allow this application and vacatethe order.
Ds Sampayo A.J.—I agree.
SCOTT v. MOHAMADU