HE ARNE S.PJ.—Senanayake v. de Croos.
1939Present: Hearne S.PJ. and Wijeyewardene J.
SENANAYAKE et al. v. DE CROOS et al.
63—D. C. (Inty.) Negombo 10,531.
Security for costs—Order made on ground of plaintiff’s poverty—Selection offorum to suit plaintiff’s convenience—Not to harass defendant or preventrecovery of costs—Civil Procedure Code, s. 416 (Cap. 86).
The poverty of the plaintiff is not a good ground for ordering him tedeposit security for the payment of defendant’s costs.
The selection^f a particular forum by the plaintiff would be a goodground for making such an order if it was done in order to harass thedefendant or to render the recovery of costs difficult.
Scott v. Mohamadu (18 N. L. R. 53) followed.
Cur. adv. vult.
A PPEAL from an order of the District Judge of Negombo.
First petitioner in person.
Croos DaBrera (with him C. T. Olegasegeram), for defendants,respondents.
August 30, 1939. Hearne S.P.J.—
The first, second, third, and fourth plaintiffs, who are here the appellants,filed an action in the District Court of Negombo claiming declaration oftitle, ejectment and damages in respect of certain landed propertysituated within the jurisdiction of that Court.
– ' (1934) 36 K. L. R. 108.* (1908) 11 S’. R. 902.
HEARNE S.P.J.—Senanayake v. de Croos.
On an application being made by the defendants under section 416,Civil Procedure Code, the plaintiffs were ordered to deposit securityfor costs on the ground that they lived outside the jurisdiction of theCourt. Against this order the plaintiffs have appealed and permissionhas been given to them by this Court to prosecute their appeal as pauperappellants. The Judge found that the plaintiffs were without means,that the fourth plaintiff lived outside the jurisdiction of the Court andthat the first to third plaintiffs had moved to Negombo “ for the purposeof avoiding security in this action or on account of the convenience ofresidence in Negombo for the purpose of this case
Section 416 is general in its terms and it is desirable that in applying it,the Court should proceed in the exercise of its discretion on definiteprinciples. Litigants would otherwise be encouraged to make appli-cations of this nature in the great majority of cases.
In making his order the Judge appears to have been influenced by thepoverty of the plaintiffs which he stresses. But the poverty of a plaintiffis a misfortune, not a fault ; and he will not be compelled to give securitymerely because he is a pauper. That, at any rate, is a principle on whichCourts in England act. Cowell v. Taylor1; Cook v. Whellock"; Rhodes v.Dawson3.
The relevant section has been judicially interpreted by this Court. Ithas been held that an order for security should not be made as a matterof course and that one of the considerations to which the Court shoulddirect its attention is whether the plaintiff has selected a particular forumin order to harass the defendant or to render the recovery of costs byhim'difficult (Scott v. Mohamadu'). In the present case the plaint wasfiled in the District Court of Negombo because the subject-matter indispute is situated within the jurisdiction of the Court, and according tothe finding of the Judge three of the four plaintiffs who normally liveoutside the jurisdiction of the Court took up residence within its juris-diction. These are not good reasons for an order requiring security to begiven.
Another matter which should be most carefully considered is whetherthe provisions of section 416 have been oppressively invoked by adefendant. To this the Judge does not appear to have directed hisattention at all.
I am satisfied the Judge has wrongly exercised his discretion and thatthe order he has made cannot stand.
Objection was taken by Counsel for the respondents that as only one ofthe appellants appeared before the Court, that as the petition of appealwas signed by the appellants but was not taken down by the Secretary ofthe Court in terms of section 755 of the Civil Procedure Code, and asapplication had not been made for typed copies within twenty days, theappeal, should be rejected with costs. We intimated that the matterappeared to be one which would appropriately be dealt with in revision,an although Counsel for the respondents stated he did not ask thatnotice be given to him, he pressed that the appeal should be dismissedwith the right reserved to the appellants to move in revision if so advised.
1 31 Ch. D. 34.3 IS Q- B. D. 548.
– 24 Q. B. T). CSS.4 (.1914) 18. N. L. B. 53.
DE KRETSER J.—de Silva v. Francinahamine.
That is the tenor of the order that has usually been made by this Courtin cases where the appellant 'is not a pauper. In the circumstances ofthis case, however, I feel that it would be both appropriate and just tomake an order in revision at once setting aside the order of the DistrictJudge. The case will be returned to the lower Court for furtherproceedings to be taken up in due course.
Wueyewardene J.—I agree.
SENANAYAKE et al. v. DE CROOS et al