034-NLR-NLR-V-74-F.-ABEYSURIYA-Appellant-and-W.-M.-A.-DIONISAPPU-et-al.-Respondents.pdf
SIRIMAXE, J.—Abeysuriya v. Dionisappu
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1970Present: Sirimane, J., and Wijayatilake, J.
ABEYSURIYA, Appellant, and W. M. A. DIONISAPPUel al., Respondents
S. C. 176/67 {Inly.)—D. C. Malara, 3036/P.Partition action—Disclosure oj new parties by a dejendant—Notice of action to the tiewparlies—Duty of the defendant to issue such notice—Partition Act {Cap. 09),s. 22 {!).
Wliero, in n partition action, tho defendants discloso now parties, the trialJudgo should, os a rulo, order tho defendant who disclosed tho new partios toissue notices to thorn under section 22 (2) of tho Partition Act.
Appeal from an order of the District Court, Matara.
N.R. 21. Daluicalte, for the plaintiff-appellant.
No appearance for the defendants-respondents.
April 24, 1970. Sirimaxe, J.—
This was a partition action filed as far back as 1961. In 1965 anintervention by the 40th defendant had been allowed by Court. In hisstatement of claim the 40th defendant disclosed five new persons whowere alleged to have rights in the land, and they have been added as41 —45 defendants. The learned District Judge had made order thatnotices should be issued on the parties disclosed but he had not specifiedas to who should issue those notices.
In cases where defendants discloso new parties, trial Judges should, asa rule, order the defendant who disclosed the new parties to issue noticeson them under the proviso to Section 22 (2) of the Partition Act.
In this case the Court should have ordered the 40th defendant, and notthe plaintiff, to issue notices on the parties that he had disclosed. Thejournal entries show however that in fact five notices had been tenderedfor issue, probably by the plaintiff, according to learned counsel for thoappellant. Four of the parties disclosed had in fact been served withthose notices. The address of the fifth person, i.e., the 41st defendantwas given only as ” Badulla ” by the 40th defendant who disclosed him.This address is obviously insufficient to effect service of notice on thedefendant. There seems to have been much delay in finding out thedetailed address of the 41st defendant and the only person who couldhave furnished that address was the 40th defendant.
The learned District Judge dismissed the plaintiff’s action actingpresumably under Section 71 of the Partition Act on the ground that hehad not prosecuted the action with reasonable diligence. We do not
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Perera v. Assistant Government Agent, Kalutara
think that the plaintiff should have been penalised in this matter.Journal entry 50 shows that the plaintiff’s proctor had tendered noticesfor service on the added defendants even at a later stage whilst theperson who disclosed the parties appears to have remained inactive.
The order dismissing the plaintiff's action is set aside. In view of tholong delay it is desirable that all parties should now have notice of thoaction and a direction should be given to tlie 40th defendant to furnishthe address of the 41st defendant and see that notico is served on him.There will be no order as to costs.
XVuayatilake, J.—I agree.
Order set aside.