024-NLR-NLR-V-05-FERNANDO-v.-UDUMAN.pdf
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FERNANDO v. UDUMAN.
D. C., Puttalam, 1409.
Dismissal of plaintiff's action for absence on trial day—Motion to open up judg-ments—Permission to proceed icith case—Motion to be allowed to re-institutecase—Fresh action—Kes judicata.
Where A's action was dismissed on the ground of .his absence on thetrial day, and on plaintiff's motion an order nisi was allowed on defen-dant to show canse why the judgment should not be re-opened, but theplaintiff, without availing himself of this order, moved the Court forpermission to institute a fresh action—
Held, that the decree of dismissal entered in the old action was a barto the new action, but that as the District Judge should have openedup the decree, his error should not stand in the way of the issues betweenthe parties being tried.
Therefore, the Supreme Court entered a decree of dismissal in the oldcase and allowed the new one to go on.
O
N 1st November, 1899, the plaintiff sued the defendant in caseNo. 1,384 of the District Court of Puttalam for the
recovery of Rs. 500 alleged to be due on an agreement to supplycoppera. Defendant filed answer on 27th November, 1899, andthe case came on for trial on 19th January, 1900. Plaintiff notbeing ready applied for a postponement, but the District Judgedismissed the plaintiff’s action with costs and entered final decreein due course.
On 5th March plaintiff, for reasons stated in his affidavit, movedfor an order nisi on defendant to show cause why the judgmententered should not be opened and plaintiff allowed to proceedwith the case. The District Judge allowed an order nisi, but itwas not further pursued, and on 4th April plaintiff moved to beallowed “ to re-institute this action ” and “ to withdraw the docu-ments filed by me.” This motion was allowed on payment of allcosts up to date.
The plaintiff then raised the present action upon the same,cause , of action. Defendant pleaded the decree in case No. 1,384in bar of plaintiff’s action. .
The District Judge (Mr. W. A. G. Hood) ruled as follows: —
” On referring to the record of D. C., 1,384 I find the action wasdismissed on 19th January owing to plaintiff’s absence, and thathe subsequently filed an affidavit alleging illness on the date inquestion. I cannot see that there is any bar to plaintiff’s insti-tuting a fresh action on the same cause. I accordingly overrule3J. N. A 68216 (1/47)
1901.
April 29 andMay 8
I tffl )
1001.
April e$ and defendant’s objections and allow the case to be heard on theMapS. merits.”
Defendant appealed.
Sampayo, for appellant.
Wendt, for respondent.
Cur. adv. vult.
8th May, 1901. Lawrie, J.—
This case was argued before Mr. Justice Browne and myselfsome time ago. It was necessary to read the record in D. C..Puttalam, 1,384, which was sent for and which is now before us.
In that case the plaintiff was absent on the day of the trial. Hisproctor had no instructions. No witnesses had been summoned.His proctor asked for a postponement, which was refused and theaction was' dismissed.
Some time afterwards, on affidavit being submitted, theDistrict Judge allowed an order nisi to issue on the defendant toshow cause why the judgment should not be re-opened.
The plaintiff did not .take advantage of this permission. Noorder nisi was issued.
Shortly after, on the 4th April, 1900, the plaintiff movedex parte that he be permitted to re-institute the action and beallowed to withdraw the documents filed by him. The motionwas allowed on payment of all costs up to date.
I presume these have been paid. On the 14th May, 1900,the present action was commenced. It is by the same plaintiff againstthe same defendant in the same cause of action.
The defendant pleaded res judicata, and 'he judge repelled thatplea and ordered the action to proceed. Hence the appeal.
Assuming that the plaintiff in the former action satisfied theDistrict Court that his absence was due to causes over which hehad no control, I think the District Judge on notice to thedefendant.might have re-opened the judgment.
To the alternative of allowing the plaintiff to institute a newaction the object was obvious, that, so long as the decree ofdismissal stood, no other action could be brought. A plaintiff maybe allowed to withdraw from an action which is still pending,but it is not possible for a plaintiff to withdraw from an actionin which judgment against him has been pronounced.
But we must allow either the first or the second action to go on.The mistake made was the mistake of the District Court, and wemust not allow that to stand in the way of the issue between theparties being tried.
In the circumstances of this' case we affirm the decision nowappealed from. There is no doubt that the decree of dismissal
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in District Court, 1,884, would have been res judicata, had not theplaintiff taken steps to have it re-opened, and had not the DistriotJudge thought the proper course was to allow the new action tobe instituted. The new action is now before us, and we thinkthat it ought to go on.
Moncreiff, J.—
I think the new action should be allowed to go on, provided thedecree of dismissal is set aside.
1901.
April 29 and
Hay 8.
Lawrie, J.