013-NLR-NLR-V-48-ARULANANDAM-et-al.-Petitioner-and-KUMARIAH-et-al.-Defendents.pdf
JAYETTLBKF, J.—Arulanandam v. Kumariah.
37
1946Present: Jayatileke J.
ARULANANDAM et al., Petitioners, and KUMARIAH et al,
Defendents.
180—Application in revision in C.R. Mallakam, 13,392.
Postponement—Allowed on terms—One party to pay costs of the day to theother on or before a certain day—Computation of time-limit for payment
Where, on the trial date, the plaintiffs were not ready and agreed topay a sum of money to the defendants as costs of the day .on or beforea subsequent date, namely, February 6, and further agreed that theaction should be dismissed if that sum was not paid—
Held, that payment could be made on February 6 during the course ofthat day, at any rate during the ordinary working hours of that day.
A PFLICATION to revise an order of the Commissioner of Requests,Mallakam.
S. J- V. Chelvanayagam (with him P. Navaratnarajah and Shanmuga-nayagam), for the petitioners.
H. W. Thambiah, for the 1st and 2nd respondents.
V. K. Kandasamy, for the 3rd respondent.
October 2, 1946. Jayetileke J.—
This case was fixed for triai on January 23, 1946. On that dayMr. Vanniasingham who appeared for the plaintiff stated that he wasunable to proceed with the trial as the Surveyor was not present and alsoas the commission had not been excuted correctly by the Surveyor.He moved to issue another commission on Mr. Sabapathy. His applica-tion was allowed on terms.
The first plaintiff who was present in court agreed to pay Rs. 25 to thedefendants as costs of the day on or before February 6 and hefurther agreed that the action should be dismissed with costs if that sumwas not paid. On February 6 the case was called on the trial rolland again in the course of the day. The plaintiffs were not present and
18Mufieed v. Abeyesinghe.
the learned Commissioner dismissed their action with costs as the costswhich they agreed to pay had not been paid. The affidavit of C-hella-tamby shows that a sum of Rs. 25 was handed to him by the plaintiffsand he was requested to proceed to the Mallakam Courts and pay theamount to the defendants. He says in the affidavit that he reached theCourts at about 12 noon and he found that the case had been called anddismissed Mr. Chelvanayagam states that • the order made by thelearned Commissioner is wrong and he relies on the judgment of thisCourt in Wcrrasivghe v. Barlis 1 according to which he says that theplaintiffs -bad time to make the payment till 12 midnight on the 6thFebruary In the course of his judgment Mr. Justice Keuneman said“ where however the order made permits the payment to be made on theday of trial, I do not think we should impose any restriction whichprevents the party from making the payment during the course of thatday. and at any rale during the ordinary working hours of that day ”.I am of opinion that the order made by the learned Commissioner cannotbe supported. I would accordingly set aside the order and send the caseback for trial in due course. I make no order as to the costs of thisapplication.
Order set aside.