Present : De Sampayo and Porter JJ.
SILVA et at. v. SILVA et al.
53—D. C. Kalutara, 8,587.
Commission to surveyor to fix boundary—Parties ordered to pay surveyors'fees—Fees not deposited in Court by plaintiffs for over one year—Action dismissed—Dismissal wrong—Partition action.
In January, 1921, the parties to a partition action were orderedto issue a jointcommission to twosurveyorstofix the boundary,
and to report to enable the Court to do so, and it was arranged,that each partyshould contributetowardsthepaymentof the
surveyors' fees. In January, 192*2, . the defendants deposited inCourt their share of the fees, and the Court. ordered the plaintiff*to deposit the fees _ on March 17.Plaintiffsnot havingdeposited
their shares on -that date, the Court dismissed the action.
Held, that theorder of dismissalwas wrong.There isnothing
in the law empowering the Court to dismiss an action for non-payment of costs.
H. V. Perera, for plaintiffs, appellants.
Soertsz (with him W. Ckas. de Silva), for fourth and fifthdefendants, respondents.
July 13, 1922. De Sampayo J.—
I do not think the order of the District Judge dismissing theaction can be supported. This was a partition action, and at thevery commencement the Court ordered that a survey should hemade of the land, the subject of the partition. A commission to asurveyor was duly issued, and a plan was hied on August 20, 1919.Then came; in certain parties who have since been numbered thefourth and fifth defendants, who complained that in making thesurvey a portion of their land had been included, and they- moved•to be added as parties. They were accordingly added, and theCourt ordered, in connection with that intervention, that the infcer-venients should get a survey made showing the encroachmentscomplained of. A commission' was then issued for that purpose,and a plan was filed on July 23, 1920. Then on July 20, 1920 as
Silva v. Silva
the plaintiffs did not admit the correctness of the new plan, theysuggested that a commission should be issued to another surveyor,one Mr, Scharenguivel, to make a. new survey. That was allowed,and Mr. Scharenguivel filed his plan on October 15, 1920. One wouldhave thought that there was. a sufficient number of plans made toelucidate any questions which arose in the case, but on January 28,1921, the plaintiffs and the added defendants were ordered to issuea joint commission to the two previous surveyors to fix the boundary,or to report to enable the Court to do so, and it was arranged • thateach party should contribute towards .the payment of the surveyors'fees, and the matter stood over for some time. Then on January31, 1922, the fourth and fifth defendants deposited in Court acertain sum which they estimated was their share of the Com-missioner’s fees, but the other party, the plaintiffs by that timehad not deposited the fees, and the Court ordered the plaintiffs todeposit the fees on March 17, Then on March 17, it was noted thatthe plaintiffs had not deposited the costs, and their proctor startedthat his clients had not come, and apparently intimated that he wasnot in a position to deposit the money on that date. Then theCourt niade this entry: 4 ‘ Plaintiff has had time since January, 1921—-over a year. I cannot give any further time. Plaintiffs’ action isdismissed with costs.” From this order the plaintiffs have appealed.The order is supported somewhat half-heartedly by the counsel forthe defendants. 1 think, as I have stated at the beginning, theorder cannot.be supported at all. In the first place, the Court hadnot ordered that the payment of the plaintiffs’ share of the Com-missioner’s costs was the condition of the plaintiffs being allowedto go on with the case. Even if that condition had been imposed,the ruling of this Court in a recent case will prevent any suchexercise of jurisdiction, as there is no provision in the law empoweringthe Court to dismiss an action for the non-payment of costs. Thefact of the matter appears to me to be that the District Judge wasvery hasty in disposing of the case in this way, and had not takensufficient notice of the fact that the Court had already numerousplans which should have been sufficient to. enable the Court to trythe case with full knowledge of the situation. I think the orderappealed from should be set aside, and the case remitted to theDistrict Court to proceed on with it in due course. The plain-tiffs will no doubt deposit their share of the Commissioner’s fees inconnection with the new survey without delay. I do not thinkany order as to the costs of the appeal need be made..
Porter J.-—I agree.
SIVA et al. v. SILVA et al