028-NLR-NLR-V-71-AMIN-JRAI-and-others-Appellants-and-M.-M.-HADJI-OMAR-CO-LTD.-Respondent.pdf
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.4 min Jrai c. M. .17. Hadji Omar <h Co. Lid.
1967 Present: Samerawlckrame, I., and Tennekoon, J.AMIN JRAI and others, Appellants, and M. M. HADJI OMAR& CO. LTD., RespondentS. C. 505j62—D. C. Colombo, 484231M
•Civil Procedure Code—Sections 100 and 109—Interrogatories—Plaintiff’s failure to
answer them—Absence of contumaciousness—Dismissal of action—Invalidity.
Postponement—Refusal by Court—Procedure thereafter.
The penalty of dismissal of an action under section 109 of the Civil ProcedureCode can only be imposed on a party who is guilty of wilful or contumaciousrefusal to carry out an order to answer interrogatories.
The 3rd plaintiff, who was a resident in Beirut, failed to comply with an orderto answer interrogatories because the time given for carrying out the order wasnot sufficient even to communicate the order to him.
Held, that the 3rd plaintiff could not be said to have been guilty ofcontumacious or wilful refusal to carry out the order. Therefore, the orderdismissing the action in terms of section 109 of the Civil Procedure Code shouldbe set aside.
Obiter : Where a party is refused a postponement of trial on the ground thatanother party or a material witness is not available, he must be given anopportunity of placing such evidence as is available to him before the trial■Court and renewing his application for a postponement.
116 SAMERAWICKRAME, J.—.4min Jrai v. M. M. Hadji Omar <£• Co. Ltd.
Ap
PEAL from a judgment of the District Court, Colombo.
C. Ranganathan, Q.C., with V. J. Martyn, for the plaintiffs-appellants.
H. V. Perera, Q.C., with Vernon Wijetunge and Sepala Munaainghe, forthe defendant-respondent.
Our. adv. vull.
February 19, 1967. Samerawickrame, J.—
The 1st, 2nd and 3rd plaintiffs-appeilants who carry on business inpartnership, filed this action for recovery of a sum of Rs. 293,226/66alleged to be due to them from the defendant-respondent. The defendant-respondent filed answer admitting that a sum of Rs. 10,468/74 was duefrom him to the plaintiffs-appeilants and prayed that the action in excessof that amount be dismissed with costs.
On 26.7.62, Proctors for the Defendant Company obtained leave ofCourt to tender interrogatories to be answered by the 2nd or 3rd plaintiffswithin ten days of service. On the same day, Proctors for the plaintiffsmoved for a month’s time to answer interrogatories, and time for answer-ing the interrogatories was subsequently extended to the 20th August,
On 23.8.62, Proctors for the defendant, stating that the 3rdplaintiff had omitted to answer the interrogatories, moved for an orderunder Section 100 of the Civil Procedure Code on him to answer the saidinterrogatories within three days of service of notice of such order. Healso moved to serve notice of the order on the Proctors for the plaintiffs.This was allowed. On 28.8.62, Proctors for the plaintiffs filed certaindocuments and moved for an extension of time for answering the inter-rogatories as well as for compliance of the order under Section 100 of theCivil Procedure Code. On 29.8.62, Proctors for the Defendant Companymoved under Section 109 of the Civil Procedure Code that plaintiffs’action should be dismissed with costs. An inquiry was held into thisapplication on the 31st August, 1962 and order was put off for the 3rdSeptember. It was the date fixed for trial in the action.
On the 3rd September, 1962, Counsel for the plaintiffs said that he wasnot ready for trial. Thereupon Counsel for the defendant moved thatbefore the Court considered the matter of the order on his applicationunder Section 109 of the Civil Procedure Code, the question of theplaintiffs’ application for a postponement of the trial should be consi-dered. Counsel for the plaintiffs then moved for a postponement of thetrial on the ground that the 3rd plaintiff was ill. After an inquiry, in thecourse of which the plaintiffs’ Proctor 'gave evidence, the learned Judgemade order refusing the application of the plaintiffs for a postponement.He further made order under Section 109 of the Civil ProcedureCode dismissing the plaintiffs’ action with costs.
SAMERAWICRRAME, .T.—Anna Jrai r. M. M. tiadji Omar, d? Co. ttd. 11^
Mr. C. Ranganathan, Q.C., appearing for the plaintiffs-appellantssubmitted that the learned Judge had no power to dismiss the action ofthe 1st and 2nd plaintiffs-appellants by reason of the default on the partof the 3rd plaintiff-appellant to comply with the order made on him toanswer interrogatories and he also submitted that in any event, the orderunder Section 109 dismissing the action was not justified in the circum-stances of the case. Section 109 provides that a plaintiff shall be liableto have liis action dismissed for want of prosecution if he fails to complywith an order under this Chapter. It has been held in the case ofNamasivayam Chetty v. Ragsoobhoy 1 that an order under Section 109could only be made for non-compliance with an order to ausAver inter-rogatories under Section 100 and could not, therefore, be made merelyfor failure to answer interrogatories in the absence of a peremptory orderin terms of Section 100 of the Civil Procedure Code. In this case, theorder under Section 100 of the Civil Procedure Code was made on the 23rdAugust, 1962 and the 3rd plaintiff-appellant was required to comply withthat order within three days of the service of that order on his Proctors.The 3rd plaintiff-appellant is resident in Beirut and it is unlikely that theorder could even have been communicated to him by liis Proctors withinthree days. It has been held in the case of Appu Singho v. JuseyAppuhamy 2 that the penalty of dismissal of the action under Section 109would only be imposed on a party who is guilty of wilful or contumaciousrefusal to carry out the order. This case has been followed in KaruppenChetty v. Narayan Chetty3. I do not think that a party who fails tocarry out an order where the time given for carrying out an order is suchthat the order could not even be communicated to him can be said to beguilty of contumacious or wilful refusal to carry out the said order. Inview of my finding, it is unnecessary to consider Mr. Ranganathan’ssubmission that in any event the Court had no power to dismiss theactions of the 1st and 2nd plaintiffs-appellants.
therefore, set aside the order for dismissal of the action made interms of Section 109 of the Civil Procedure Code.
Learned counsel for the plaintiffs-appellants, in applying for a post-.ponement for the case on the 3rd September, 1962, submitted a medicalcertificate which the leamed-Judge has found unsatisfactory. It wouldappear that on an earlier trial date too, in April, an application for apostponement had been made on the same ground of illness of the 3rdplaintiff, but on that day no medical certificate had been produced and italso transpired that on that date no preparation had been made by theplaintiffs-appellants for trial. A postponement was granted on terms byreason of an agreement between parties and the trial was specially fixedfor the 3rd and 4th September. The matter of a postponement of atrial is within the discretion of the trial Judge and I do not think that weshould interfere with his finding that a postponement was not justified. -1 (1944) 46 N. L. R. 12.« (1910) 5 A. C. S. 135.
• (1920) 2 0. L. Rec. 173.
i!8 SAMERAWICKR AME, T.- —Amin Jrai v. M. M. Hadji Omar A' Co. Ltd.
Mr. H. V. Perera, Q.C., who appeared for the defendant-respondentsubmitted that upon the refusal of the postponement, the plaintiffs' actionshould have been, in any event, forthwith dismissed. Mr. Ranga-nathan submitted that the learned Judge has not in fact purported todismiss the action upon his refusal of a postponement and that the propercourse for a Judge who refuses a postponement is to call upon theplaintiff to lead his evidence. In this case, the defendants had admittedthat a sum of Rs. 11,268/74 was due and had issues been framed, there isno doubt that the plaintiffs-appellants would have obtained judgment atleast for that sum. Further, this Court has laid it down that where aparty is refused a postponement on the ground that a material witness isnot available, it is the duty of that party to place before Court evidencethat he has available and thereafter to renew his application for apostponement. Had the learned Judge made order dismissing theplaintiffs-appellants’ case on his refusal of a postponement, plaintiffs-appellants would have been deprived of a decree in a sum of Rs. 11,268/74and also would have~been deprived of the opportunity of placing suchevidence as was available to them before the trial Court and renewingtheir application for a postponement; but as stated above, the learnedJudge did not in fact dismiss the action upon his refusal of the applicationfor a postponement.
therefore, set aside the order of the learned District Judge and sendthe case back for trial in due course. If the defendant-respondentdesires to have answer to the interrogatories served on the 3rd plaintiff-appellant, he may apply to the District Court to fix a date for an affidavitof the 3rd plaintiff-appellant to be filed and the District Judge will fix adate which will be an extended date for compliance with the order underSection 100 of the Civil Procedure Code made against the 3rd plaintiff-appellant. In fixing the date, the District Judge should have regard tothe fact that the 3rd plaintiff-appellant is resident abroad and givereasonable time to enable his legal advisers to communicate with himand obtain an affidavit.
If the learned Judge had made a correct order in respect of the applica-tion under Section 109 of the Civil Procedure Code, the plaintiffs-appellants will yet have been under the necessity of applying for a post-ponement after perhaps some evidence had been led. Trial had beenspecially fixed for the 3rd and 4th September. 1962 and I think that thedefendant-respondent must be compensated by way of costs in respect ofthose two dates. The plaintiffs-appellants succeed in the appea} andhave a claim to some costs in respect of the appeal. Taking intoconsideration all these matters, I direct that the plaintiffs-appellants dopay to the defendant-respondent a sum of Rs. 1,050 as costs in respect ofthe trial dates on the 3rd and 4th September, 1962. I make no orderin regard to costs of appeal.
Texnekoon, J.—I agree.
Order set aside.