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Present : Lascelles C.J. and Ennis J.1918.
SUMANASARA UXNANSE t?. SENEVIBATNE.
108—D. G. Kalutara, 4,774.
■Order to deposit costs -of the day before the next date of trial—Has Courtjurisdiction to order that action be dismissed if costs are not paid?
Where the Judge made an order that in the event of the defend-ant’s taxed costs not being deposited in Court before the nextday of trial • the plaintiff’s action would be dismissed with costs—
Held, the Judge had no jurisdiction to niake the order.rpHE facts are set out in the judgment.
H. A. Jayewardene, for plaintiff, appellant.—The order allowing apostponement was wrong. The defendant was not taken by surpriseby the issue suggested by the appellant. His answer shows thatthe question at issue was with regard to the management of theschool, and not to the ownership of the building. The DistrictJudge had no power to order the appellant's action to be dismissedin the event of his failure to deposit the respondent's costs beforethe next date of trial. The Civil Procedure Code nowhere givessuch power. See Rang Etena v. Appu1 * and Goonewardene v. DonLewis Monaktdasuria.3
J. Joseph, for respondent.—This appeal is premature. It wouldbe proper time for the appellant to come to this Court when his caseis dismissed for failure to pay costs; but the order as it now standsis one for payment of costs, and the Supreme Court will not interferewith the order unless it is manifestly wrong (Government Agent, Uvatv. Banda3). The appellant cannot be said to be prejudiced by theorder as it now stands. If he pays the costs before the next dateof trial his action will not be dismissed.
September 6, 1912. Lascelles C.J.—
In this case there was £ discussion as to the issues that were tobe fixed in the action, and at the close of the discussion Mr. *V. M.Fernando, who appeared for the plaintiff, move to amend hisplaint. The amendment was allowed. Then Mr. de Abrew, whoappeared for the defendant, moved to amend his answer in order tomeet the amended issue, and applied to have the costs of the day;and he also asked for an order that the costs should be deposited
i (1899) 4 N. L. R. 185.
s (1910) 18 N. L. R. 341.
2 (1900) 1 Br. 21.
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1912‘ in Court before the next day of trial. He gave his reasons forLasceixes his application that the plaintiff was a Buddhist priest, and that ifC,J‘ the defendant succeeded he would be unable to recover the costsSumanasam from him. I think that Mr. de Abrew’s forebodings were notUnnanee entirely without ground, as is shown by the present appeal. TheSeneviratne Judge then made order that in the event of the defendant’s taxedcosts not being deposited in Court before the next day of trial theplaintiff’s action would be dismissed with costs. Against this orderthe plaintiff now appeals, and contends that the District Judge hadno jurisdiction to make an order that the action would be dismissedin the event of the defendant failing to deposit the costs of the daybefore hearing. For the respondent it is pointed out that theappellant has been in a great hurry to bring this appeal; that hehas cried out before he has been hurt; and that no order has yetbeen made dismissing the action. However, we have been askedto decide on the question as to whether the District Judge hadjurisdiction to make an order that he would dismiss the plaintiff’saction after he failed to pay the costs in Court. No section of theCode has been cited to us which invests the District Judge withany such power, and I think that, in the case of an order finallydismissing the action, it is necessary that a Judge should act undersome specific power given to him under the Code. We have beenreferred to the case of Bang Etena v. Appu.1 Though the facts ofthat case are not exactly the same as the facts here, they are verysimilar. There the opinion of Mr. Justice Withers inclines to theview that in a similar case the District Judge had no power todismiss the action. We, therefore, think that so much of the orderas states that the action will be dismissed on failure to pay the costsinto the Court must be expunged. In the circumstances of the casewe do no.t propose to make any order as to the costs of the appeal.
Ennis J.—I agree.
i (1899) 4 N. L. R. 186.
SUMANASARA UNNANSE v. SENEVIRATNE