Pathirana v. Induruwage
COURT OF APPEALJAYASINGHE, J.
CALA NO. 215/98DC COLOMBO NO. 623/LNOVEMBER 05, 1999DECEMBER 08, 1999NOVEMBER 03, 2000
Civil Procedure Code s. 402 and 408 – Settlement – enlarging into a decree- Is the next step, the entering of the decree – Could an order of abatementbe made under s. 402?
The plaintiff-petitioner instituted action for a declaration of title and for ejectmentof the defendant-respondent. The defendant-respondent denied that a cause ofaction has accrued to the plaintiff. On 11. 10 1977 a settlement was recordedand in terms of that settlement, a Commission was issued to the Commissionerwho made his return filing plan and report on 05. 08. 1979. On 17. 10. 1997the defendant-respondent moved for abatement of the action in terms of s. 402and the District Court made order abating the action.
On leave being sought -Held:
There is no step necessary on the part of the plaintiff to prosecute theaction in terms of s. 402 and that after the settlement the trial is broughtto a close and there is nothing to prosecute. In the case of a settlementthere is no occasion for the trial Judge to deliver judgment, the settlementenlarges into a decree without the need for an intervening judgment.
Order for abatement can be made under s. 402 only if the plaintiff hasfailed to take a step rendered necessary by some positive requirementof the law.
Failure of the Court to do a ministerial act should not affect the parties.
APPLICATION for Leave to Appeal.
Sri Lanka Law Reports
 2 Sri L ft.
Cases referred to :
Newton v. Sinnadurai – 54 NLR 4.
Samsudeen v. Eagle Insurance Co., Ltd. – 64 NLR 372.
Lorensu Appuhamy v. Parris – 11 NLR 202.
Perera v. Fernando – 7 NLR 300.
N. R. M. Daluwatte, PC with Ms. Y. Devasurendra for plantiff-appellant-petitioner.
Nihal Jayamanne, PC with Ms. Noorani Amerasinghe, defendant-respondent-respondent.
Cur. adv. vult.
March 08, 2001JAYASINGHE, J.
Plaintiff instituted action in the District Court of Colombo for a declaration 1of title to the land and premises described in the schedule to theplaint; for ejectment of the defendant therefrom and for damages.
The defendant filed answer denying the several avermentscontained in the plaint setting out his own title to the said land andpremises and moved for dismissal of the plaintiff’s action.
On 11. 10. 1977 the day fixed for the preliminary investigation(under the Administration of Justice Law) parties reached a settlementin that –
the defendant agreed that if he has encroached on the land 10and premises of the plaintiff, that he shall vacate therefrom;
that a commission be issued and the lands owned by theplaintiff and the defendant be surveyed according to planNo. 4927 made by M. B. de Silva, Licensed Surveyor, andplan No. 4984 made by H. M. Fernando, Licensed Surveyor
Pathirana v. Induruwage (Jayasinghe, Jt)
and if there is any encroachment by the defendant to beshown in his plan;
and if there are any improvements on the encroachment toset forth its valuation.
A commission was accordingly issued to Anil Peiris, LicensedSurveyor who made his return filing plan and report on 05. 08. 1979.
The defendant thereafter sought to resile from the. said settlement,but the learned District Judge by his order dated 15. 10. 1984 heldthat since settlement has been arrived at between the parties interms of section 408 of the Civil Procedure Code, the Court hasno jurisdiction to fix the case for trial as urged by the defendant. Thedefendant appealed against the said order and the Court of Appealby order dated 08. 07. 1992 rejected the defendant’s appeal.On 18. 11. 1992 the order of the Court of Appeal was conveyedto parties.
On 05. 02. 1997 the plaintiff made an ex parte application to issuea commission in terms of the settlement reached on 11. 10. 1977.The defendant on 17. 10. 1997 moved for abatement of the actionin terms of section 402 and the Court after inquiry / written submissionsmade order abating the action on 04. 09. 1998.
Aggrieved by the order of the learned District Judge the plaintiffasked for leave to appeal. This Court on 06. 09. 1999 having heardCounsel granted leave.
Mr. Daluwatte, President’s Counsel, submitted that the learnedDistrict Judge was in error when he stated that the plaintiff has notacted upon the plans presented to Court upon the commission beingissued to the Surveyor. He submitted that since encroachments areshown in the said plans, the plaintiff has only to eject the defendantfrom the said encroachments. He submitted that when the appeal wasrejected by the Court of Appeal by order dated 08. 07. 1992 thesettlement entered on 11. 10. 1977 was final between parties.
Sri Lanka Law Reports
 2 Sri LR.
Section 402 provides that : “if a period exceeding twelve monthsin the case of a District Court or six months in a Primary Court elapsessubsequently to the date of the last entry of an order or proceedingin the record without the plaintiff taking any steps to prosecute the 50action where any step is necessary, the Court may pass an orderthat the action shall abate".
Looking at section 402 carefully it appears that a Court may passan order that the action shall abate only if –
12 months have elapsed subsequent to the date of the lastentry . . .
without the plaintiff taking any steps to prosecute the actionwhere any step is necessary.
Mr. Daluwatte, PC submitted that there was no step necessaryon the part of the plaintiff to prosecute the action in terms of section 60402 and that after the settlement the trial is brought to a close andthat there is nothing to prosecute. Only the decree has to be enteredby the trial Judge. This appears to be a well-merited argument.Therefore, in a case of a settlement there is no occasion for the trialJudge to deliver judgment; the settlement enlarges into a decreewithout the need for an intervening judgment. In Newton v. SinnaduraP*Gratiaen, J. stated that : “Indeed I venture to suggest that someresponsibility attaches to trial Judge himself whose duty it is to enterdecree in accordance with the terms of settlement”. Entering of thedecree is a ministerial act and it is the duty of the learned District 70Judge to enter decree.
Mr. Daluwatte, PC also submitted that the word “necessary” insection 402 should means the “satisfaction of a legal requirement”without which the action cannot proceed. In Samsudeen v. EagleInsurance Co., Ltd.™ it was held that : “an order for abatement canbe made under section 402 only if the plaintiff has failed to take astep rendered necessary by some positive requirement of the law”.
Pathirana v. Induruwage (Jayasinghe, J.)
In Lorensu Appuhamy v. Parrid3) “the plaintiffs did not take anyfurther steps for over one year after the defendant filed answer andthe Court ordered that the action do abate. Four years later the 80plaintiffs moved that the order of abatement be vacated. WoodRenton, J. held that the duty of fixing the case for trial rests on theCourt. The order of abatement was wrongfully made.
According to the terms of settlement the Court would make afinal determination regarding any monies to be paid by the plaintiffto the defendant for improvements in the event of an encroachmentby the defendant. However, neither the plaintiff nor the defendantsought to dispute the Commissioner's Report on payment of moniesfor the plantation or other improvements. If the plaintiff who wasrequired to pay did not raise an objection or even a query, it is there 88-fore assumed that there was acquiscene and the learned DistrictJudge was obliged to enter decree. If the defendant disputed the reportthen the Court was obliged to institute an inquiry and then make adetermination. Neither situation arose and in view of the order of theCourt of Appeal the matter was brought to a finality. The prevalentpractice in the District Courts is that the registered Attorney tendersthe decree and the learned District Judge merely places his signature.This practice is more for convenience and nothing else. However, inPerera v. Fernando|4) it was held that : “the failure of the Court todo a ministerial act . . .should not affect the parties”.100
Mr. Jayamanne, President’s Counsel contended that after AnilPeiris executed the commission issued to him and submitted the Planand Report on 15. 08. 1979, adjournments were taken for theconsideration of Plan and Report. However, on 02. 07. 1980 thedefendant moved to amend answer which was allowed and accordingto journal entry 38 of 08. 10. 1980 the case has been called to fixa date for trial. He argued that the terms of settlement entered on11. 10. 1977 had failed and not pursued by the parties. He submittedthat there was a total abandonment of the terms of settlement by
Sri Lanka Law Reports
 2 Sri LR.
the parties. I am, however, unable to accept this submission of the 1,0learned President’s Counsel. The learned District Judge made orderon 15. 10. 1984 that since there is a settlement already entered, theCourt had no jurisdiction to fix the case for trial and the defendantappealed against that order to the Court of Appeal without success.
It is my view that there is no step required to be taken by theplaintiff after the settlement was entered. The consequential step wasentering decree was the responsibility of Court. It cannot be said thatthe plaintiff has been in default for section 402 to apply.
I, accordingly, set aside the order of the learned District Judgedated 04. 09. 1998. Appeal is allowed with costs fixed at Rs. 2,500. 120
JAYAWICKREMA, J. – I agree.
PATHIRANA v. INDURUWAGE