PODIMENIKE AND OTHERS
COURT OF APPEAL.
Q, KURUNEGALA 275/POCTOBER 1, 1996.
Partition Act, 21 of 1977 – s. 70 of the Partition Act – Withdrawal ~ Could theCourt permit a defendant who had asked for dismissal of the action to proceed toprosecute.
When there is a deliberate act of withdrawal of the partition action it is notopen to the defendant who had asked for a dismissal of the action to proceed toprosecute the partition action.
Under S.70 Court can dismiss a Partition Action for non prosecution, however
the proviso to S.70 permits a defendant to prosecute a partition action where fheplaintiff fails or neglects to prosecute an action.,
APPLICATION for Revision from the order of the District Court of Kurunegala.
V. P. Wettasinghe for 6th defendant-petitioner.
Faiz Musthapa PC., with H. Withanachchi for plaintiff-respondent.
Cur. adv. vult.
October 1, 1996.
This is an application to revise the order of the learned DistrictJudge refusing a further date to file amended pleadings and otherrelevant documents in order to proceed with the partition actionwhich the plaintiff sought to withdraw.
In fact it is our view that when the plaintiff informed Court that hewas withdrawing the partition action, the learned District Judgeshould have dismissed the partition action without permitting thepetitioner date to file amended papers and at that stage the petitionercould have asked for costs from the plaintiff, especially in view of thefact that the 6th defendant had been ordered to pay costs, when hehad filed the amended statement of claim. Under Section 70 of thePartition Law a Court can dismiss a partition action for non-prosecution. However the proviso to Section 70 permits a defendantto prosecute a partition action where the plaintiff fails or neglects toprosecute the partition action. In this instant case, there was nofailure or neglect by the plaintiff to prosecute this partition action. Onthe other hand there was a deliberate act of withdrawal of thepartition action and it is not open to the Court to permit'thedefendant, who had asked for a dismissal of the action to proceed toprosecute the partition action by filing an amended plaint. ThePartition Law does not provide such a procedure. For these reasonswe refuse notice and the application.
SENANAYAKE, J. – I agreeApplication refused.
Ector’s Note: Special Leave was refused in S.C. Spl. L.A. 579/19 on
by the Supreme Court.
AMARASINGHE v. PODIMENIKE AND OTHERS