( 603 )
Present : Wood Benton C.J. and De Sampayo J.
SCRIVEN & CO. v. PERERA.
78—D. C. Colombo, 46,417.
Civil ProcedureCode,s. 406—Leave to institutefresh action after
paying coats to defendant—Fresh action instituted before payingcosts—Subsequent payment of costs.
Where a ' plaintiff was allowed to withdraw an action with libertyto institute another on condition that he paid the defendant hiscosts before instituting a fresh action, and where the plaintiffinstituted a fresh action and subsequently paid the defendant hiscosts of the previous action,—
Held, that the action' was not maintainable, as the condition wasnot complied with.
Abdul Aziz Molla v. Ebrahtm Molla1 disapproved of.rjlHE facts are 6et out in the judgment.
A. St. V. Jayewardene and'H. H. Bartholomeusz, for defendant,appellant.
Drieberg, for plaintiffs, respondent.
August 6, 1917. Wood Renton C.J.—
This appeal raises an interesting and hitherto unsettled point ofpractice. The plaintiffs sued the defendants in D. C. Colombo,No. 43,740 for damages for breach of contract. On June 27, 1916,they moved, under section 406 of the Civil Procedure Code, for leaveto withdraw that action and to institute another. – The followingorder was made on the motion:" Allowed on condition the
plaintiffs pay the defendant his costs of this action before instituting
i (1904) I. L. R. 31 Cal. 965.
( 504 )
Renton C. J.
a fresh action.” The plaint in the fresh action, with which we arenow concerned, was filed on October 26, 1916. The costs of D. C.Colombo, No. 48,740, were paid partly on December 23, 1916, andas regards the residue on January 29, 1917. In these circumstancesthe question arises, and has been expressly raised by a plea in theanswer, whether the present action is maintainable, in view of thefailure of the plaintiffs to comply with the condition imposed bythe District Court in its order of June 27, 1916. The learnedDistrict Judge has answered that question in the affirmative, on jthe Authority of a decision of the High Court of Calcutta in AbdulAziz Molla v. Ebrahim Molla1 under section 373 of the old IndianCode of Civil Procedure, which is practically identical with section406 of our own Civil Procedure Code. In that case the Judges ofthe High Court of Calcutta purported to follow the practice inEngland. There is, howefer, this wide difference between the Englishpractice and our own, and, for that matter, the Indian also, thatOrder XXVI., rule 4, of the Buies of the Supreme Court of Judicatureenacts by necessary implication that the failure of a litigant to payprevious costs in such a case as the .present is not necessarily a fatalirregularity. With all respect, I am not prepared to accept AbdulAziz Molla v. Ebrahitn Molla1 as an authority that ought to beapplied in Ceylon. In my opinion the effect of section 406 of theCivil Procedure Code is to make any such condition as to the pre-payment of the costs of a previous action, as we have here to dowith, a condition precedent to a fresh action being instituted. Toconstrue the law in any other sense might work great practicalhardship to individuals, and would certainly embarrass the businessof the courts of first instance. In the present case, however, theplaintiffs are, I think entitled to some indulgence. The point isnow taken for the first time, and the costs were paid without anyformidable delay.
I would set aside the order appealed from on the issue of law asto whether or not the action can be maintained, and send the caseback in order that the District Judge may consider whether or notupon the merits, and in view of all the circumstances, the plaintiffsshould be allowed to proceed with the present action as if it hadbeen duly instituted, or whether, in order to preserve any rightthat the defendant may have* to set up a plea of prescription, thepresent. action should be dismissed, with leave to institute another.The defendant is entitled in any event to the costs of this appeal,and also of the argument in the District Court on the issue of law.All other oosts I would leave to the discretion of the District Judge.
Db Sampayo J.—I agree.
Set aside and sent back.
i (1904) J. L. R. 81 Cal. 985.
SCRIVEN & CO. v. PERERA