113-NLR-NLR-V-49-JASLINE-NONA-Appellant-and-SAMARANAYAKE-Respondent.pdf
BASNAYAKE J.—.Josline Nona v. Samaranayatce.
381
1948Present: Nagalingam and Basnayake JJ.
JASUNE NONA, Appellant, and SAMARANAYATCE, Respondent.
S.C. 80—D. C. Matara, 15,497.
Civil Procedure Code—Action for divorce—Adultery—Adulterer not made adefendant—No application for excuse—Provisions imperative—Sections59S and 599.
The provisions of sections 598 and 599 of the Civil Procedure Code areimperative. Where, therefore, a plaintiff sues for divorce on the ground ofadultery but does not make the alleged adulterer a defendant nor apply foran excuse in terms of section 599 the plaint should be rejected.
_^.PPEAL from a judgment of the District Judges Matara.
E. A. G. de Silva, for the defendant, appellant.
No appearance for the plaintiff, respondent.
Cur. adv. wit.
May 10, 1948. Basnayake J.—
This is an action for divorce a vinculo matrimonii instituted in August,1943, by the husband of the defendant on the ground of adultery. In'his plaint the plaintiff alleges adultery with one R. B. Soman in 1935
382BASNAYAKE J.—Jasline Nona v. Samaranayake.
who he states is now dead, one Hendrick Appu, and several other un-named persons ; but he does not make any of the adulterers a co-defendant as he is required to do by section 598 of the Civil ProcedureCode.
On the date fixed for the trial, counsel for the defendant raised thefollowing issue among others :—
“ (6) Can the plaintiff have and maintain this action as at present
constituted ? ”
In the argument that followed over this issue, counsel for the plaintiffstated that the adulterer Hendrick Appu was also dead although it wasnot mentioned in the plaint, and that the other adulterers were toonumerous to be mentioned as the defendant was living the life of aprostitute. The learned District Judge then made order excusing theplaintiff from complying with the provisions of section 598 of the CivilProcedure Code, which require that the plaintiff shall make the allegedadulterer a co-defendant, and proceeded with the trial on the other issues.The plaintiff gave evidence -Bind called two witnesses including the villageheadman. At the close of the plaintiff’s case, counsel for the defendantstated that he was not calling any evidence and submitted that theplaintiff’s action should be dismissed under sections 601 and 602 of theCivil Procedure Code. The learned District Judge held that the defen-dant committed adultery with the R. B. Soman and Hendrick Appu men-tioned in the plaint and that the plaintiff was entitled to a divorce. Thisappeal is from that order.
The appellant in her petition of appeal canvasses the validity of theorder of the learned District Judge excusing the plaintiff from makingany of the alleged adulterers a co-defendant, and learned counsel for theappellant submits on the authority of the case of Ziegan v. Ziegan et al1that the proceedings in this case are bad and should be quashed.
Section 598 and 599 of the Civil Procedure Code which are reproducedhere are quite clear as to the procedure to be adopted :
“ 598. Upon any such plaint presented by a husband, in whichthe adultery of the wife is the cause or part of the cause of action, theplaintiff shall make the alleged adulterer a co-defendant to' the saidaction, unless he is excused from so doing on one of the following groundsto be allowed by the court upon an application for the purpose :—
that the defendant is leading the life of a prostitute, and that
the plaintiff knows of no person with whom the adultery hasbeen committed :
that the name of the alleged adulterer is unknown to the plaintiff,
although he has made due efforts to discover it :
that the alleged adulterer is dead
and it shall be lawful in any such plaint to include a claim for pecuniarydamages against such co-defendant.
“ 599. The prayer to be excused from making the alleged adulterer• a co-defendant and the allegations of fact upon which it is founded,supported by affidavit of fact or other sufficient evidence, shall beembodied in the plaint ”.
1 11891) 1 S. C.n. 3.
HOWARD C.J.—Sirimala v. Bandaranatke.
383
Section 598 makes it imperative that the adulterer shall be madea co-defendant to an action in which adultery of the wife is the causeor part of the cause of action, unless the plaintiff is excused from doingso on any one of the grounds mentioned therein. The application forexcuse must be embodied in the plaint wherein there must be special prayerin that behalf. The allegations of fact upon which the application isfounded must be supported by an affidavit or affidavits or other sufficientevidence.
In the present case none of these requirements has been compliedwith. Enactments regulating procedure in courts are usually imperativeand not merely directory1. In the present instance, especially in viewof the fact that the sections regulate the institution of divorce proceedings,the provisions of section 598 and 599 must be regarded as imperative. Thelearned District Judge was wrong in excusing the plaintiff when he hadnot complied with the requirements of section 599. In consequenceall the proceedings from setting the case down for hearing are nullities,as has been held in the case cited. In this case the learned DistrictJudge should have rejected the plaint because even the alleged adulterer,Hendrick, who on the face of the plaint appeared to be alive, has notbeen named as a co-defendant.
For the above reasons, the appeal is allowed with costs and the judgmentof the learned District Judge is set aside and the plaintiff’s action dismissedwith costs with liberty if he is so minded to institute a fresh action inconformity with the provisions of the Civil Procedure Code.
Nagamnoam J.—I agree.
Appeal allowed.