JAY35T1LEKE J.—Chittambaram Chettiar v. Fernando.
1947Present: Soertsz S.P.J. and Jayetileke J.
CHITTAMBARAM CHETTIAR, Appellant, and FERNANDO et. al,
S. C. 237—D. C. Colombo, 6,225.
Civil Procedure Code, as. 402, 404—Abatement of action—Action by administrator—
Letters readied-—Fresh appointment of administrator—No steps taken—Right
of previous administrator to continue action.
One P, the administrator of the estate of a Chettiar, filed this action for therecovery of a sum of money due on a Note. After the action was fixed fortrial letters of administration issued to P were recalled and fresh letters issuedto S. This case was takon off the trial roll for substitution of the newadministrator. P took no further interest in the action and S took no stepsto get himself substituted. The judge made order abating the action.Thereafter the appellant, one of the heirs of the deceased Chettiar, movedin the testamentary case to have letters issued to S recalled and to havehimself appointed administrator, and his application was allowed. Ho thenmoved to have the order of abatement set aside. His application wasdisallowed on tho ground of delay.
Held, that when a new grant was made to S there was a devolution ofinterest within the meaning of section 404 of the Civil Procedure Code and Swas entitled to ask for leave to continue the action but, since he did not soask, P was entitled to continue the action.
Held, also, that P was under no legal duty to get S substituted as Plaintiffin his place and that this step which he undertook-was not one necessary forhim to take in order to prosecute the action as required by section 402 of theCivil Procedure Code.
Held, further, that since P failed to take this step it was the duty of theCourt to have fixed the case for trial.
_/^PPEAL from a judgment of the District Judge, Colombo.
H. V. Per era, K.C., with P. Navaratnarajah, for plaintiff, appellant.
N.E. Weerasooria, K.C., with Kingsley Herat, for the 1st defendant,respondent.
S. Amerasinghe, for the 2nd defendant, respondent.
Cur. adv. wilt.
December 1, 1947. Jayetixeke J.—
This is an appeal against an order made by the District Judge ofColombo refusing to set aside an order of abatement entered by himex mero motu on July 13, 1940.
One Parathasarthy, the administrator of the estate of S. K. R.. S. S. T.Sinthamarni Chettiar, instituted this action against the defendants, onNovember 30, 1936, for the recovery of a sum of Rs. 272,062-50 allegedto be due to the estate of the deceased, on a writing “ A ” given by themto the deceased, undertaking to pay all sums advanced by the deceasedto one W. D. Fernando, the 1st defendant’s husband, if the latter failedto pay the same. He alleged fruther that W. D. Fernando was adjudgedan insolvent in action No. 4,474 of the District Court of Colombo, and wasgranted a certificate, and that no dividend was paid in that action to thecreditors as there were no assets.
JAYETIUSKE J.—Chiltambaram Chettiar v. Fernando.
The 1st and 3rd defendants filed one answer alleging that theyauthorised the deceased to advance money to the Ceylon Auto CarriersCo., and not to W. D. Fernando personally, and denying their liability topay the amount claimed on the ground that the loan does not purportto be a loan to the Ceylon Auto Carriers Co. They further pleadedcertain legal defences to the action.
The 2nd defendant filed a separate answer pleading, in addition to thedefences set forth in the answer of the 1st and 3rd defendants, thatW. D. Fernando transferred to the deceased an estate called Gamikandein full settlement of all the claims the deceased had against him.
The action was fixed for trial on December 9, 1937, but was postponedfor March 9, 1938, owing to the illness of the plaintiff.
The medical certificate, which was produced in support of the applica-tion for a postponement, shows that the plaintiff was paralysed on theright side, and was unable to speak. The journal entries do not showwhat took place on March 9, 1938. The next journal entry is datedJune 7, 1938. It reads :—
“ Mr. Muttusamy, for plaintiff.
Mr. de Silva, for the defendant.
Mr. Mack, for the 1st and 3rd defendants.
Mr. Muttusamy applies for a postponement on the goround that theplaintiff is paralysed and unable to come for the case. He states thathe is taking steps to get another administrator appointed and thereforemoves for a postponement. Mr. de Silva has no objection. The 1stand 3rd defendants also have no objection of consent, the plaintiffwill not be entitled to the costs, of today in any event. Remove casefrom trial roll and call on August 5, to substitute the new administrator.”Action No. 7,389 (Testamentary) of the District Court was the action inwhich the estate of the decaesed was administered. The journal entries1 D 1 show that on July 8, 1938, Mr. Muttusamy took steps to have theletters of administration issued to Parathasarthy recalled, and freshletters of administration issued to one Arunasalam Servai under section537 of the Civil Procedure Cede (Cap. 86). On March 17, 1939, the Courtallowed the-.application, and letters of administration were issued toArunasalam Servai. The subsequent journal entries show that, beyondfiling an account, Arunasalam Servai took no steps to administer theestate, though he was repeatedly noticed by the Court to do so, and,eventually, on May 15, 1941, the Court was obliged to forfeit his bondand issue writ for the recovery of the money due on it. The writ wasreturned unexecuted to Court on the ground that he was in India andthat he had no property in Ceylon.
On August 5, 1938, this case was called on the roll, and the DistrictJudge made the following minute :—
“ Steps for substitution not taken for 9/9.”
On September 9,1938, the case was called again, and the District Judgemade the following minute :—
“ Steps not taken—no order.”
On July 13, 1940, the District Judge enterd an order of abatementex mero motu under section 402 of the Civil Procedure Code on the ground
JAYETJLEKE J.—Chittambaram Chetliar v. Fernando.
that a period exceeding twelve months had elapsed since the date of thelast order made in the case without the plaintiff taking steps to prosecutethe action.
On November 20, 1944, the present appellant, who is the attorney ofthe heirs of the deceased, one of whom is a minor, filed a petition andaffidavit in action No. 7,389, and moved to have the letters ofadministration issued to Arunasalam Servai recalled and fresh letters ofadministration issued to him.
On February 27, 1945, his application was allowed and letters ofadministration were issued to him. A month later, he filed a petition andaffidavit in this action, and moved to have himself substituted as plaintiff,and to have the order of abatement set aside. He stated in the papersfiled by him that none of the heirs of the deceased ever came to Ceylon,and that Arunasalam Servai was in Malaya and Burma till 1942 sufferingfrom an incurable disease.
The learned District Judge disallowed the application on the groundthat it was not made within a reasonable time, and that the long delayhad deprived the defendants of material evidence.
Two points were urged in support of the appeal:—(1) that, at thetime the order of abatement was entered, Parathasarthy had lost hisstatus as administrator, and that the District Judge had no power toenter and order of abatement under section 402 before the person to whomthe new grant of administration was made was substituted as plaintiff,
that, even if Parathasarthy was entitled to continue the action afterthe letters of administration issued to him were recalled, the DistrictJudge had no power to enter an order of abatement as there was no failureon Parathasarthy’s part to take any step which he was required by lawto take to prosecute the action.
I do not think that the first point is a good one. Chapter XXV of theCivil Procedure Code contains various provisions for the continuation ofactions after alteration of a party’s status. Sections 393, 394, 398, 399and 400 deal with devolutions of interest by death, marriage, and bank-ruptcy. Section 404 is a residuary . section govering cases which arenot provided for in those sections. The words “ other cases ” in section404 mean cases other than those specially provided for in the precedingsections. Section 404 provides that the person acquiring the interestmay continue the action with the leave of Court. It does not providethat, if he does not obtain the leave of Court to continue the action, theaction should stand dismissed. Under the corresponding section of theIndian Act (Order 22, Rule 10) it has been held in Rai Charan Mandal v.Biswanath Mandal1 that in the event of devolution of interest pendentelite, the successor in interst of the plaintiff may if he chooses, come onthe record with the leave of the Court under Order 22, Rule 10, but if hedoes not, the plaintiff is entitled to continue the suit, and his successorwill be bound by the result of the litigation the following passage appearsin the judgment:—
“ Under R. 10, O. 22, Civil Procedure Code, 1908, where there has
been a devolution of interest during the pendency of a suit, the suit1 (1915) A. I. R. Calcutta 103.
J AYET1LEK.E J.—ChiUanibaram Chettiar v. Fernando.
may, by leave of the Court, be continued by or against persons to orupon whom such interest has come or devolved. This entitled theperson who has acquired an interest in the'subject-inatter of the litiga-tion by an assignment or creation or devolution of interest pendentelite to apply to the Court for leave to continue the suit. But it doesnot follow that it is obligatory upon him to do so. If he does not askfor leave, he takes the obvious risk that the suit may not be properlyconducted by the plaintiff on record, and yet, as pointed out by theirLordships of the Judicial Committee in Motilal v. Karab-ud-din2(A. I. R.—-1898—25 Cal. 179) he will be bound by the result of thelitigation, even though he is not represented at the hearing. But thelegislature has not further provided that in the event of devolution ofinterest during the pendency of suit, if the person who has acquiredtitle does not obtain leave of the. Court to carry on the suit, the suitshould stand dismissed ”.
In the present case, the letters that were issued to Parathasarthy wererecalled after he instituted thevaction, and a new grant of letters was madeto Arunasalam Servai. When the new grant was made, a devolution ofinterest took place within the meaning of section 404. It has been heldin Ajaz Hossain Jaffri v. Altaf Hussein 1 that, when a trustee is removedfrom office and another is appointed in his place, the estate devolves onthe new trustees within the meaning of Order 22, Buie 10.
Under section 404 Arunasalam Servai was entited to ask the Courtfor leave to continue the action, but he did not do so. Parathasarthywas, therefore, entitled to continue the action.
With regard to the second point, the journal entries show that, afterfiling the plaint, Parathasarthy took out summonses on the defendantand brought them before the Court. There was no other step which hehad to take under the Civil Procedure Code. After the defendants filedtheir answers the Court fixed the case for trial, and, on the trial date, theCourt, as an indulgence, gave Parathasarthy time to surrender his lettrsof administration and get someone else appointed to take his place asadministrator. Arunasalam Servai as appointed administrator in placeof Parathasarthy, but he failed to get himself substituted as plaintiff inthis case. There is no provision in the Civil Procedure Code that aperson, who files an action in a representative capacity, is bound to takesteps to have someone else substituted in his place if he is unable toprosecute the action owing to illness or for any other cause. The stepwhich Parathasarthy undertook to take on June 7, 1938, was not a stepthat it was “ necessary for him to take in order to prosecute the action asreguired by section 402 of the Civil Procedure Code,
In Lorensz Appuhamy v. Paaris 2, it was held that the word “necessary ”means “ rendered necessary by some positive requirement of the law ”.In the course of his judgment, Wood Renton J. said :—
“ We ought not to interpret it as if the section ran ‘ without takingany steps to prosecute the action which a prudent man ought to takeunder the circumstances ’
(1928) A. I. R. Calcutta 651.
1908) 11 N. L. R. 202.
JAYETXLEKE J.—Chittoinbaram Chettiar v. Fernando.
This judgment was followed in. Kuda Banda v. Hendrick l, SeyadoIbrahim v. Naina Marikar 2, and Associated Newspapers of Ceylon v.Kadirgamar 3, Parathasarthy could have proceeded with the action inspite of his illness, and when he failed to get someone substituted in hisplace, it was the duty of the Court to have fixed the case for trial. Undersection 80 of the Civil Procedure Code the duty of fixing the date of trialrests on the Court (See Fernando v. Kurera4, Ponnambalam v.Canagasabey 4).
In Kuda Banda v. Hendrick (supra), before tliecasecamc up for hearingthe plaintiff’s Proctor stated thatbis client was in jail, and moved that thecase might be postponed to the bottom of the roll, but the District Judgeordered that it be struclcoff the roll. Subsequently, the District Judgeordered the action to abate ex mero motu on the ground that no steps hadbeen taken for more than a year. It was held that the order that wasmade was ultra vires, and that it should be vacated inasmuch as there wasno step which was necessary for the plaintiff to take which he had nottaken. It was held further that the duty of fixing the case for trialrested on the Cjurt. The order which the Court made on September 9,1938, to wit—
“ Steps not taken, no order
was not an order which is contemplated by the Ciivl Procedure Codewhich specially requires that, when statments are made, the Court shallfix a day for the further hearing (See Kumarihamy v. Keerlhiratne 6).
Mr. Wcerasooria argued that, on the order made by the District Judgeon June 7, 1938, the moment the Court recalled the letters that wereissued to Parathasarthy and issued Tetters to Aruriasalam Servai, thelatter automatically became the plaintiff in the case. I am unable toread that order in the way in which Mr. Weerasooria invitedme to readit. The order was that the case should be called on. August 5, to substi-tute the new administrator. Section 405 of the Civil Procedure Codehas laid down the procedure to be followed for the substitution of a party.An application has to be made to the Court, by petition, to which theparties who may be affected by the order sought must be made respon-dents. Such an application was not made by Arunasalam Servai, andthe Court had no power under section 404 to compel him to get himselfsubstituted as a plaintiff.
Even if Mr. Weerssooria’s contention is correct. I do not'think thatthe order of abatement made by the District Judge can be supported.
Eor the reasons I have given, I am of opinion that the order of abate-ment that was entered by the District Judge is void and of no effect. InEastern Garage and Colombo Taxi Cab Co. v. de Silva 7, de Sampayo J.held that an order of abatement which is improperly entered is void. Asimilar view was taken by Wood Renton J in Kuda Banda v. Hendrick(supra) and by Garvin J. in Kumarihamy v. Keerthiratne (supra).
1 (1911) 6 S. C. D. 42.
* (1912) 6 S. C. D. 79.s (1934) 36 N. L. R. 108.
(1896) 2 N. L. R. 29.
(1896) 2 N. L. R. 23.s (1935) 12 Times 89.
7 (1924) 2 Times 166.
SOERTSZ S.P.J.—Dias v. Vaduganathan Chetliar.
In view of my decision that the order made by the District Judge isvoid, it is unnecessary for me to consider whether the application to havethe order set aside was made within a reasonable time. However, Ithink that the delay in making the application has been sufficientlyexplained in the appellant’s affidavit. It states that Arunasalam Servaiwas in Malaya and in Burma up to 1942 and was unable to leave owingto illness. I do not think that the delay in making the applications hascaused any prejudice to the defendants, because W. D. Fernando is aliveand the books of the Ceylon Auto Carriers Co. must be available to thedefendants.
In all the circumstances of the case, I think the order made by theDistrict Judge on July 13, 1940, must be vacated and the case remittedto the Court below for trial The appellant -will be entitled to the costsof appeal and of the inquiry.
Soertsz, S. P. J.—I agree.