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Present ; Wood Benton C.J. and Ennis J.
SUPPBAMANIAM et al. v. SYMONS et al.
33—D. C. (/nty.) Colombo, 1,477.
Order of abatement—Power of Court to make order ex mero motu.
A Court has power undersection 402oftheCivil Procedure Code
to make an order of abatement ex mero motu.
It is, however, desirable that a Court, before" making an order ofabatement, should noticetheparties, asfarasit conveniently can,
to give them an opportunity of showing cause against the order.
If the plaintiff is injured by absence of notice he can proceed undersection 403.
Wood BentonC.J.—People maydo whatthey likewith their
disputes as long as theydonot invoketheassistance of the courts
of law. But whenever that step has been taken they are boundto proceed withall possible andreasonableexpedition,and it is
the duty of their legal advisers and of the Courts themselves to seethat this is done. The work of the Courts* must be conducted or.ordinary businessprinciples, and noJudge isobliged, oris entitled,
to allow the accumulationupon his causelistofa mass of inanimate
or semi-animate actions.
HE facts are set out in the judgment. *
Bawa, K.C., and Drieberg, for the appellants.
Elliott and Samarawickreme, for the respondents.
Cur. adv. vult.
May 27, 1915. Wood Benton C.J.—
This is an appeal against an order by .the District Judge ofColombo refusing to set aside on order made by one of his predeces-sors on November 5, 1896, under section 402 of .the Civil ProcedureCode, for the abatement of the action on the ground that aperiod exceeding twelve months had .then elapsed without theplaintiffs having taken the further necessary steps for its prose-cution. The action, which is one on a mortgage bond for therecovery of the sum of Bs. 51,000, was instituted as far back asMarch 25, 1889. I do not propose to trace its progress from thatdate up to tile date of the order of abatement further than to saythat it clearly results from .the record that on August 14, 1893, itwas, with the knowledge and consent of all parties, struck off theroll with a view to settlement. After the order of abatementnothing was done till March 13, 1911, when the present proctorsmoved to have the order of' abatement set aside. It was not til)
( 280 )
February 10 in this year that the District Court found itself in aWood position to give a decision on that motion. The learned DistrictRbntohC.J. Judge held that the order of abatement ought not to have beenSuppra* made, but that the plaintiffs had not complied with the conditionsmwiam v. prescribed by section 408 of the Civil Procedure Code, under whichSyntax* on|er of abatement can be set aside, inasmuch as they hadnot made their application within a reasonable time, and had notproved that they had been prevented by any sufficient cause fromcontinuing the action. He further held that, apart from section403, which was flot applicable, he had no power to vacate hispredecessor's order.
I agree with the learned District Judge in the result at which hearrived, namely, that the plaintiffs* motion must be dismissed.But I rest my decision upon different grounds. The journal entriesclearly show that there had been prior postponements on the appli-cation of both sides with a view to a settlement of the litigation.These postponements were for a fixed period, and there can be nodoubt that Jibe order of November 5, 1890, should have beensimilar in this respect to those that preceded it- The parties were,however, fully aware of what the Court had done. In the case ofat least one of the previous postponements, the plaintiffs* proctorhimself moved the Court that the action, which had been struck offthe roll in the hope of a settlement being reached, should be restoredto it, and the case of Marikar v. Bawa Lebbe, 1 which i6 a decisionof two Judges, shows that in such circumstances it is the duty ofthe plaintiff to move that the action should be restored to the roll,and that on such a motion it is within the discretion of the DistrictJudge to make an older for its abatement. If such a motion hadbeen made In the present case, the District Judge would, in myopinion, have been amply justified on the materials disclosed bv therecord in making such an order. Counsel on both sides admittedthat no useful purpose would be served by reserving to the plaintiffs,while dismissing their appeal, the right to bring a fresh action, asany such right of action has long ago been barred by prescription.T would, therefore, dismiss the appeal with costs.
I desire, however, to say something upon an argument which wasadvanced by the plaintiffs* counsel at the hearing of the appeal.He said in effect that if the parties to a litigation of this descriptionwere content to allow it to slumber, neither of them suffered anyprejudice, and it was. no concern of the Courts to interfere. Ientirely dissent from that proposition. People may do what theylike with .their disputes so long as they do not invoke the assistanceof the courts of law. But whenever that step has been taken,they are bound to proceed with all possible and reasonable expedi-tion, and it is the duty of their legal advisers and of the Courtsthemselves to see that this is done. The work of our Courts must
i (1892) 1 S. G. R. 240.
( 231 )
be conducted on ordinary business principles, and no Judge is IMS-obliged, or is entitled, .to allow the accumulation upon his causeWood
list of a mass of inanimate or semi-animate actions. We were Rbntost C.J.
referred by counsel to the older decisions—see Fernando v. Curera,1Fernando v. Peris,* and Gave A Go. v. Erskiue 3—to the effect that uCourt cannot act under the provisions of section 402 of the CivilProcedure Code, except on the application of the defendant and onnotice to the plaintiff. These decisions have, however, been stronglydissented from in recent years both in reported and in unreportedcases. It is now, I believe, the practice in many of the DistrictCourts for the Judge himself to take the initiative and to pass ordersof abatement under section 402 after having given due publicnotice of his intention to do so. No hardship is caused by thispractice, as it is always open to an aggrieved person to move theCourt under section 403, and any attempt to interfere with itsexistence or growth on the authority of the old oases above referredto is very strongly to be deprecated. Such a delay in the prosecutionof an action as is disclosed to us by the present case is itself a bloton the administration of justice. But for how many years after1896 would this action have remained unabated if the District Judgehad been compelled to wait until the parties themselves called forhis aid? Much good would be done if every court of first instancein the Colony, as soon as possible after the expiry of the prescribedperiod, would, after such notice to parties as the circumstanoesadmit of, systematically clear its rolls, in conformity with .theprovisions of section 402 of the Civil Procedure Code, of all actionsthat have become liable to abatement.
This is an appeal against an order refusing to set aside an orderof abatement made by the Court ex mere motu in 1896.
It appears that a day for the trial of the case had been appointed,and after several adjournments to fixed dates it was ordered ofconsent on October 31. 1892, that the case be struck off the roll.On March 10, 1893, application was made to restore the case to theroll. A date for hearing was fixed, ard after another postponementan order was made on August 14, 1893, 44 Case called and struck offthe roll with view to settlement.” The parties took no furthersteps, and on November 5, 1896, the Court entered an order ofabatement.
The points for consideration are, (1) whether the Court hadpower, under section 402 of the Civil Procedure Code, .to make theorder of abatement ex mero motu, and (2) whether it could do so inthe circumstances of this case.
» osfMi 2 y. i. if. 29. 12 assn 3 a. l. n. rr.
3 (W2) 6 N. /,. if. 333.
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It was urged that under section 402 the Court could act only on(he application of the defendant. I can see nothing in the sectionwhich prohibits the Court from acting ex mero motu. If the plaintiffis injured by absence of notice he can proceed under section 403.It is, however, desirable that a Court, before making an order ofabatement, should notice .the parties, as far as it conveniently can,to give them an opportunity of showing cause against the order.
It has next to be considered whether in the circumstances of thecase the order of abatement should have been made. By section 402such an order can be made only when the plaintiff has failed to takeany necessary steps to prosecute the action. It was urged that itwas the duty of the Court, and not of the plaintiff, to fix a day fortrial. This would be so in ordinary circumstances, but in this casethe case had been struck off the roll (presumably with the consentof parties), and whatever that order may mean, it was necessaryfor the plaintiff to get the case restored to the roll before there wasany further obligation on the Court. This was held in Marikar v.Bawa Lebbe, 1 and that it was the practice of the Court is shown in thepresent case by the proceedings'of March 10, 1893. I am thereforeof opinion that the order of abatement could in the circumstancesbe made.
It remains only .to consider whether on an application undersection 403 to set the order aside there are circumstances whichwould justify the Court in setting it aside. The fact that the orderof abatement was made without notice would ordinarily have weight,but in the present case a period of fourteen years was allowed toelapse before the application to set aside the order of abatement,and I agree with the learned District Judge that an applicationmade after a lapse of so many years cannot in any case be consideredto have been made within a reasonable .time. There is, however, oneother point. I am of opinion that an order striking a case off theroll is similar to the order contemplated in section 88, although notmade in the circumstances enumerated in that section. From thewording of the section, it would seem that the file of pending casesis the file recording the days appointed by the Court for certainsteps to be taken in the action, i.e.t the Court roll, and not theregister of cases. The order in this case was made by consent, andthe parties must be held .to have contemplated .that the order wouldnot be a bar to the institution of a fresh suit upon the same causeof action. If the order of abatement prevented the plaintiff fromasserting his rights by fresh action it would be reasonable to set it4(side, but in the present case counsel agree that the plaintiffs’rights would now be barred by prescription, and in that case thereIs no good ground for interference with the order made.
I dismiss the appeal, with costs.
i (1892) 1 S. C. II. 240.
SUPPRAMANIAM et al. v. SYMONS et al