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1902October 3mid 7.
CAVE & CO. v. ERSKINE.B., Colombo, 12,057.
Action for goods sold and delivered—Prescription—Institution of suit—Order that
suit do abate—Civil Procedure Code, ss. 402 and 462—Irregularity of
such order—Restoration of suit to the cause roll—Commencement of suit.
The filing of a plaint in Court is an act of the plaintiff by which hesignifies that he has commenced an action against the defendant, and thesummons thereafter gives him the exact date on. which the action wasinstituted or commenced.
There is no distinction between the expressions “ institution of action"and “ commencement of suit. ’’
Section 402 of the Civil Procedure Code does not empower the Courtex mero motu to make an order of abatement of a suit. It can be madeonly on the application of the defendant and due notice to the plaintiff.
Where the Fiscal has not been able to serve summons on the defendant,and no blame is. attachable to the plaintiff for such non-service, it is notopen to the Court to order the suit to abate.
An action for goods, sold and delivered up to November, 1899, filedon 12th March, 1900, and improperly ordered to abate and then restoredto the roll on. 13th March, 1902, is not prescribed under section 9 ofOrdinance No. 22 of 18711
N this case the plaintiffs -filed their suit on the 12th March,1900, against the defendant for a sum of Rs. 145, being balance
value of goods alleged to have been sold to him between 10thOotober, 1894, and 25th November, 1899. The defendant pleadedthat the action was prescribed under section 9 of OrdinanceNo. 22 of 1871, inasmuch as the Court having, on 12th January,1901, ordered the action to abate, and cm 13th March, 1902, restored
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'the notion to the roll, the action was commenced on 13th March,1902, more than one year after the alleged sale by the plaintiffs tothe defendant.
The Commissioner, Mr. H. White, after hearing counsel and'witnesses, held as follows:—
“ The only question for decision is whether the action dates from12th March, 1900, when it was instituted, or from 13th March, 1902,when the order of abatement of 12th January, 1901, was set aside.That order was not regularly passed. It was made by the Courtex mero motu without notice to the plaintiffs, and not on theapplication of the defendant. D.C.. Colombo, 3,544 (3 N. L. B. 77).That order doing null and void, I have no hesitation in decidingthat the action dates from 12th March, 1900. On the law and themerits I find for the plaintiffs
The»defendant appealed. The case was argued on the 3rdOctober, 1902, before Grenier, A.J.
EUiot, for appellant,—The plaint was filed on 13th March,1900, and the defendant was not served with summons for a longtime. The Commissioner ordered the action to abate. That orderkilled the action. It was restored on 13th March, 1902. InMurugupiUai v. Muttulingam (3 C. L. B. 92) it has been held that,as to the question of prescription, the action must be taken to datefrom the order of revival. But in Fernando v. Perera (3 8. C. C.158) the judgment of Cayley, C.J., seems adverse to the appellant. •Clarence, J., however was quite clear that the suit begins on theday the summons was issued. The Commissioner had no rightor justification ex mero motu to set aside his order of abatement.The object of section 402 of the Civil Procedure Code is notto allow the Court roll to be encumbered with plaints not dulypressed. If the plaintiff could not find the defendant, he shouldhave moved to withdraw the suit with leave obtained to re-instituteit.
Van Langenberg, for plaintiffs, respondent.—The Fiscal couldnot serve the summons on the defendant, as the defendant was onthe move, going from one place to another, performing his dutiesas surveyor. The Commissioner without notice to the plaintiffsordered the suit to abate. Section 402 does not justify such an order.That section applies to cases where the defendant has appeared inresponse to the summons, and not to cases where summons couldnot be served. Wrong as the order of abatement was, it had notthe effect of “ killing ” the action. To restore a case to the rolldoes not mean to re-institute it. Murugupullai v. Muttulingam
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1902.(3 C. h. B. 92) is distinguishable from the present ease. There the
plaintiff neglected to obey the provisions of sections 69 and 70 of
* the Procedure Code, but here the plaintiff did all he could to have
the summons served. The attention of Lawrie, J., was not directedto section 90.
Cur. adv. vuIt.
7th October, 1902. Gbeoteb, A.J.—
This was an action for goods sold and delivered, and was-instituted by the plaintiffs on the 13th March, 1900, on whichdate, I take it, the plaint was filed and the action commenced.I cannot appreciate any distinction, for really and truly there isnone of any kind whatever, between – the institution of an actionand the commencement of a suit. The filing of the plaint closelyfollowing, as is generally the case, upon the letter of demand withthe usual notice in it of an action at law, is an act of the plaintiffby which he signifies that he has commenced an action againstthe defendant, and the summons thereafter gives him the exactdate on which the action was instituted or commenced.
I will, therefore, take it as a fact apparent on the record itself,that this action was brought, or instituted, or commenced—all thesewords have precisely the same legal meaning and effect—on the13th March, 1900.
The plaintiff obtained a summons, which was made returnableon the 4th April, 1900, the reason for this long date beingapparently that the defendant was resident in Ratnapura, whichis over 50 miles from Colombo. On the 4th April the defendantwas absent, and there was no return to the summons. The nextday, on the 5th April, the summons was received with anendorsement on it that it was not served on defendant, as he wasnot known. This does seem an extraordinary return in. view ofthe fact that the defendant, as I understand, is a gentlemanemployed in the Survey Department. The Commissioner thenmade an order that the summons should be re-issued, and thatplaintiff should take steps to have the summons served. Summons.I suppose, was re-issued, and on the 25th June, 1900, .1 find thisentry in the record: “ Defendant absent. Summons not served.Reported not to be found. Fresh summons may issue ”. Whattranspired in the interval the journal entries do not disclose, buton the 12th Januuary, 1901, I find this entry: “ The plaintiffhaving taken no steps to prosecute this action since the 25thJune, 1900, it is ordered that the action do abate ”. This order ofabatement was made ex mero motu by the Commissioner, andwas bad. In the case of Fernando v. Pieris (3 N. L. R. 77) itwas held that an order of abatement under this section should not
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be entered by the Court ex mero motu, but on application by thedefendant on due notice to the plaintiff, and, indeed, looking atthe wording of section 402, it is only where the plaintiff takes nostep to prosecute the action where such step is necessary, that theCourt may pass an order that the action shall abate.
Now, can it be said that the Court was justified, in the circum-stances, assuming that it had the power of its own motion to-order the action to abate, to make such'an order on the groundthat the plaintiff had not taken the necessary steps to prosecute-the action? It goes without saying that the action of the Fiscalmust necessarily, to a great extent, be uninfluenced by what theplaintiff wishes or desires may be done. When a summons isentrusted to a Fiscal for service, it is not to be expected that theplaintiff or his representatives would accompany the processserver in order to have the summons served, especially on adefendant who resides 50 miles from where the plaintiff resides.Consequently it seems to me that it was not the plaintiff’s faultthat the Fiscal was unable to discover for nearly seven monthsthe whereabouts of the defendant, who was ultimately found to be-in Battiealoa. If I were to give way to the contention that thedefault was on the part of the plaintiff, although there is no proofof it in tbig case, that the summons was not served earlier, thenit would be easy for any defendant, by arrangement with theFiscal’s process server, to postpone the service of the summonson bim until such time as would enable him to set up a defenceof the nature under consideration.
I am, however, strongly of opinion that section 402 does notapply to a case of this kind where the Fiscal has not been able toserve summons on the defendant for a considerable period, but tocases where the defendant appears on summons, and it may befiles his answer, but the plaintiff thereafter fails to take thenecessary steps to prosecute the action by bringing it to speedytrial and finality- In this view, I am supported not only by theterms of section 403, which enables the plaintiff or the legalrepresentatives of a deceased or insolvent plaintiff to apply foran order to set aside an order tor abatement or dismissal, but bysection 405, which refers to the procedure which has to be followedwhere either the plaintiff or defendant applies for the exercise ofthe discretion of the Court under chapter 25, as also by the casereported in 3 N. L. R. 77. It is plain that the defendant cannotbe made a respondent to such an application unless he has alreadybeen reached by the Fiscal by the initial summons in the case.
The order of the Commissioner, setting aside and treating asnull and void the order that the action do abate, was therefore
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1902.Ottober iemd f.
clearly right, and the case was properly restored to the file oipending cases on the 13th March, 1902.
It was argued that if the order for abatement was good, thisrestoration had the effect of “ killing the plaint ”, to use thewords of the appellant’s counsel, and that the true date of theinstitution must be taken to be the 13th March, 1902. I cannotaccede to this argument, because, as a matter of fact, the plaintwas filed, or the action was commenced, on the 13th March, 1900,and that is the date to be considered, so far as the questionof limitation is concerned. There cannot possibly be two filingsof plaints and two commencements of actions, and thereforeI must take the 13th March, 1900, as the time from which theperiod of limitation has to be counted, in which case plaintiff’saction is not barred.
I was referred to the case of Murugupulle v. Muttvlingam(3 C. L. R. 92), in which Mr. Justice Lawrie held upon thefollowing facts that the action must be taken to have commencedquoad the period of limitation, from the date the order ofabatement was set aside. The facts were these. The plaintiff, inMay, 1891, when the defendant was absent from Ceylon, com*menced an action for the price of goods sold, but took no steps toserve the summons out of the jurisdiction, and in 1892 the actionwas ordered to abate under this section. The defendant having'returned to Ceylon, the order of abatement was set aside andsummons served on him.
Here it will be at once remarked, subject of course to whatI have with considerable diffidence already intimated is my ownview of the scope and object of section 402, that the plaintiff, afterfiling his plaint and obtaining summons, did not proceed undersection 69 of the Civil Procedure Code, which lays down a certainprocedure in regard to the service of summons out of the Colony.There must be an application for an order for leave to serve suchsummons, and it must be supported by evidence, by affidavit,. orotherwise showing in what place' or country such defendant is ormay probably be found, and the grounds.on which the applicationis made, and section 70, which has to be read with section 69, givesparticulars as to the terms of the order. Plaintiff, in the case underconsideration, in the words of section 462, did not take any step toprosecute the action ‘‘ where such step is necessary ”, and this caseis, therefore, clearly distinguishable from the present one, wherethe Fiscal was entrusted with certain ministerial duties withregard to the summons, and the summons were duly entrusted tohim for seryice, not so much by the plaintiff, as by the Courtwhich issued it. Practically no blame could be attached to the
plaintiff for the non-service of the summons till it was actuallyserved on .the defendant at Batticaloa.
The case of Fernando «. Perera (3 8. 0. C. 1561) settles, I'.think, authoritatively the question as to the meaning of the term*' commencement of an action.*' It was held in that case by ChiefJustice Cayley that the expression “ action brought ” in OrdinanceNo. 8 of 1884, means the same thing as " action commenced " insection 10. of Ordinance No. 22 of 1871, and that the filing of thelibel, or the vivd voce statement of the plaintiff under the rules andorders of 1st October, 1888, constituted the commencement of thataction. To sum up this part of the case in a few words, no distinc-tion can possibly be drawn between “ the filing of the plaint,"" action brought,” and "commencement of the action.’’ Mr.. Justice-Clarence, however, was of opinion that the commencement of theaction was the issue of summons, but, speaking from my ownexperience, I may say that tins distinction did not meet with muchapproval, and that it was considered that Chief Justice Cayley had!interpreted the sections in question as this- should be interpreted.
The only question that was argued before me being thisquestion of law, to which I have addressed myself at some length,there, apparently, being no merits, I think that the defendant'splea of prescription must be rejected and. the judgment o£the Court below affirmed.
CAVE & CO . v. ERSKINE