( 186 )
Present: Lascelles C.J. and Wood Benton J.DINGA v. SINDA et al.
203-205—D. 0. Negombo, 8,098.
■Appeal—Appellant must tender security for costs of all respondents.
Where a part}’ dissatisfied with a judgment appeals., he shouldgive security for the costs of all the respondents.
HE factsmaterial tothisreportare stated in the following
judgment of the District Judge (B. G. Saunders, Esq.): —
The facts are as follows. Plaintiff instituted this action for parti-tion, making a large number of parties defendants, and allotting themcertain shares; this they agreed to, as they filed no statement of claims.Meantime the twenty-seventh defendant came into the case, hadhimself added asa party,andclaimeda share,and the case went to
trial asbetween him and plaintiff only onAugust 24, 19X1.I sayas
between plaintiff and twenty-seventh defendant only, for althoughthere wereotherpartiespresent, twenty-eighthdefendant's share was
admitted by plaintiff, and the fifteenth, twenty-fifth, and twenty-sixth-defendants, though present, took no part in the contest. I gavejudgment adverse to twenty-seventh defendant, and he is now appealing.The twenty-seventh defendant has tendered security for plaintiff'scosts in appeal, but now four of the defendants—fourth, first, thirdand twentieth defendants—who up to this have taken no real part in the.action, alsocomeforwardanddemandsecurityfor their costs. Their
case isadmittedly the same as plaintiff's,withwhom theyare inthe
" sameboat,” and, presumably, if theirmotiveis not toharassthe
twenty-seventh defendant, they should be content to leave their casein thehands of the counsel who willappearfor plaintiff; butthey
-desire the luxury of special “ counsel of their own.” To this, of course,they are entitled if they sc desire, but I do not think they can reasonably.expect twenty-seventh defendant to deposit security for their costs.As I have pointed out, their case is one with plaintiff’s, and anythingargued on his behalf is in their interest, and they stand or fall with him.'There . are no less than twenty-nine defendants in- this case (in many-partition actions there are often a considerably larger number), and if allthe parties who never even contested the case were allowed to claim^security in the event of an appeal under circumstances similar to thiscase, it would simply mean that in many instances an appeal would bo.out of the question, and beyond the means of many would-be appellants,which, however desirable some of us might think, it is not, I take it. what-the law intends.
In this particular case the application of the four defendants askingfor security for their costs in appeal appears to me unreasonable, ami/put forward, I fancy, with the intention- of unduly harassing tlw
-.appellant, and I disallow the same.
( 187 )
As regards plaintiff'scontention that the sum offered(Es. 58.50) is
not sufficient, I would raise the security to Bs. 100.
I accept the affidavitas regard theparties whoare saidto be dead or
are not to be found.Twenty-eighthdefendant'sshare isadmitted, and
he is not affected by the appeal.
The fourth, first,third, andtwentiethdefendants appealed
against this order.
A. St. V. Jayewardene, for appellant in appeal No. 203.
A. Jayewardene (with him E. G. P. Jayatilleka), for appellantsin No. 205.
W. Jayewardene, for appellant in No. 204.
February 6, 1912. Lascelles C.J.—
In this case there are three appeals before us, Nos. 203, 204, and205. The first appeal is by the twenty-seventh defendant, and is anappeal on the merits of the case. The appeals Nos. 204-205 arerespectively brought by the fourth and the first, third, and twentiethdefendants, and are based upon a technical ground. They allegethat the appeal has not been perfected, inasmuch as the appellant inNo. 203 has not given security for the costs of the first, third, fourth,and twentieth defendants. I have no doubt at all but .that appealsNos. 204-205 are. well grounded. These defendants—first, third,fourth, .twentieth—were respondents .to the appeal, and the DistrictJudge was in error in deciding that the appellant was not obliged totender security for their costs. The result of this is that appealsNos. 204-205 succeed, and that appeal No. 203 must be dismissed.But we think that the appellant in No. 203 should have an oppor-tunity of applying for leave to appeal, notwithstanding lapse of time.Our order then will be that the appeal No. 203 be dismissed, libertybeing reserved to the appellant to apply for leave to appeal, notwith-standing lapse of time, after he has furnished security for the costsof the appellants in appeals Nos. 204-205 to the satisfaction of theDistrict Judge. We think that the appellants in Nos. 204-205 areentitled to the costs of this appeal.
Wood Rbnton -J.—I agree.
Appeal No. 203 dismissed.
Appeals Nos. 204 and 205 allowed.
DINGA SINDA et al