PAARIS AND ANOTHER
COURT OF APPEALWEERASEKERA, J. ANDISMAIL, J„
A. APPLICATION NO. CA/LA/50/91,
C. NEGOMBO NO. 3320/L,
13 DECEMBER 1991.
Civil Procedure – Plaintiff's death pending action – Civil Procedure Code, sections404 and392.
A person claiming to the donee of the premises in suit from the deceased plaintiffcan be substituted in his place.
Case referred to:
(1) Dhammananda Thero v. Saddananda Thero (1977.) 79(1) NLR 289,302.
APPLICATION for.leave to appeal.from order of substitution made by the DistrictJudge of Negombo..
S. F. A. Cooray with Sarath Morawaka for defendant-respondent-appellantsJ. W. Subasinghe, P.C. with D.'J. C. Nilanduwa for petitioner-respondents.
Cur adv vult.
19th December, 1991.
This is an application for leave to appeal against the order of thelearned District Judge dated 8.3.91 allowing the petitioner-respondent to be substituted in the room of the deceased plaintiffand to continue the action under Section 404 of the Civil ProcedureCode.
The plaintiff Botalage Julius Fernando, (since deceased) averredin his plaint dated 13 August 1984, that the defendants-respondeHts-appellants, who were in occupation of the house situated in ‘thepremises described in the schedule thereto, with his leave andlicense, had failed to comply with a notice dated 9 April 1984, sentby registered post, to vacate the said premises by the end of May,1984. He prayed for an order for their ejectment and for therestoration of possession of the premises in suit to him and claimeddamages at Rs. 40/- per mensum from 1 June 1984 with costs ofaction. The trial commenced in August 1988 and after the plaintiffand his witnesses had given evidence, the case for the plaintiff wasclosed. The appellants had then commenced their case and after theevidence of a surveyor was recorded, the case was adjourned forfurther trial. In the meanwhile the plaintiff died on 19.4.1990.
Upon the death of the plaintiff, his daughter, the petitioner-respondent, made an application dated 30.5.1990, supported by anaffidavit, to be substituted in place of the original plaintiff to continuethe action, on the basis that the premises in suit had been gifted toher by deed of gift No. 21032 dated 8.12.1957. The appellants filed astatement of objections dated 8.7.1990 denying that the saidpremises had been gifted to her and that she was not its owner at thetime of the application for substitution. The appellants had furtherpleaded that the original plaintiff died, leaving an estate requiringadministration, with five children including the respondent asintestate heirs, and that no cause of action accrued to her on thedeath of the original plaintiff. The parties had filed writtensubmissions and the learned District Judge, for the reasons set out inhis order, allowed the substitution of the respondent in place of the
original plaintiff in terms of section 404 of the Civil Procedure Code.
I have cohsidered the submissions of the learned counsel and thegrounds“set out in the application upon which leave to appeal issought. Considering the. relief sought by the plaintiff in this action andthat the appellants themselves claimed prescriptive title to thepremises in suit, I am unable to accept the submission that this was apersonal action which abated upon the death of the plaintiff. Apersonal action is an action in which the cause of action or complaintor injury is one affecting solely a person. As regards the contention ofthe learned counsel for the appellants relating to the identity ofcauses of action, the answer to this is contained in a passage in thejudgment of Pathirana, J. in Dhammananda Thero v. SaddanandaThero (1); “Section 392 deals with the right to sue on the cause ofaction surviving. Section 404 does not say ‘In other cases ofassignment creation or devolution of the right to sue on the cause ofaction.’ Section 404 makes no reference to “the right to sue on thecause of action." It has to be considered independently of Section392. It only speaks of “devolution of interests” pending the action inwhich event the action may be continued by or against the person towhom such interests had come either in addition or substitution forthe person from whom it has passed."
Learned Counsel for the respondent submitted that the respondentwas not seeking to be substituted as the legal representative but interms of section 404 of the Civil Procedure Code on the basis that an‘interest’ devolved on her pending this action, in terms of the deed ofgift No. 21032 dated 8.12.1957, free of the life interest which wasretained by her father, the deceased plaintiff. The words "pending theaction" have been interpreted as meaning "before final decree" -(1896) 2 N.L.R. 185, and as meaning, “during the progress of actionand before final decree" – (1926) 28 N.L.R. 246 at 248.
Besides, section 404 speaks of continuation of the action with the“leave of Court".. The Court has therefore a wide-discretion in thematter which must be judicially exercised. I am of the view that therespondent seeking to be substituted has satisfied the requirementsof section 404 of the Civil Procedure Code and has been rightlysubstituted in place of the deceased plaintiff. In the circumstancesthe application for leave to appeal is refused and is djsjriissed withcosts.
WEERASEKERA, J. – / agree.
Application for leave to appeal refused.
PAARIS AND ANOTHER v .BRIDGET FERNANDO