KEUNEMAN J.—Jayasekere v. Betohamy.
1941Present: Keuneman J.
JAYASEKERA v. BETOHAMY et al.
159—C. R. Balapitiya, 21,989.
Date of trial—Agreement to prepay costs before the next date of trial—Trialpostponed—Payment on the date to which the trial was postponed.
A trial was postponed on an agreement entered of consent thatthe defendant should prepay the costs of the day on or before the nextdate of trial. Thereafter the trial was fixed for January 30, but beforethat date arrived the trial was postponed till May 3.
Held, the next date of trial meant the date fixed for trial and thatpayment on May 3 was a sufficient compliance with the terms of theagreement.
PPEAL from a judgment of the Commissioner of Requests, Bala-pitiya.
A. Rajapakse (with him V. F. Gunaratne), for defendants, appellants.N. Nadarajah, for plaintiff, respondent.
Cur. adv. vult.
May 21, 1941. Keuneman J.—
In this case on October 24, 1939, after issues had been framed, thefollowing agreement was arrived at: —
“ The defendants agree to prepay on or before the next date of trialRs. 25 as costs of to-day …. Defendants agree to consentto judgment for plaintiff as prayed for- with costs if costs arenot so paid. ”
110 C. L. W. 58.
KEUNEMAN J.—Jayasekera v. Betohamy.
Thereugon a postponement was allowed on this agreement and the trialrefuted for January 30, 1940. On January 25, 1940, Proctor for defend-ants moved that the trial of the case fixed for the 30th be postponedowing to the illness of fourth defendant, and further moved that adate be given in May to suit his Counsel. This was apparently consentedto on the part of the plaintiff, and was allowed by the Commissioner,on January 25. The case was however ordered to be called on the 30thand on that date the trial ws fixed for May 3, 1940.
Subsequently on April 30, 1940, a further application was made for apostponement on behalf of the defendants, and the defendants undertookon similar terms to pay on or before May 3 the sum of Rs. 25 originallyordered to be paid, and a further sum of Rs. 25 on or before July 5, 1940.It is clear however that the plaintiff was not a consenting party to thisorder.
On May 3 the Proctor for defendants offered to pay the sum of Rs. 25but the roctor forjplaintiff refused to accept the money, which was thendeposited in the Kachcheri. Similarly on July . 5, 1940, a further sum ofRs. 25 was deposited.
I am of opinion that the Commissioner is right in holding that theconsent order of October 24, 1939, was binding on the defendants. Butthe question arises as to what the defendants consented to. Mr.''Rajapakse emphasizes the fact that the agreement was not to pay onor before January 30, 1940, but “ on or before the next date of trial ”.It is true, he says, that after the agreement was entered into January 30,1940, was fixed as the date of trial, but before that date arrived a post-ponement had been granted, and January 30 ceased to be a date oftrial, and May 3, the next date fixed, the money was tendered and refused,and subsequently deposited.
He further argued that the “ date of trial ” was the date when thetrial was actually taken up. On this point I do not agree with him.I incline to think that the term “ date of trial ” as used in this casemay be regarded as the date fixed for the trial. There is however Ithink substance in Mr. Rajapakse’s earlier ^argument. No doubt at onestage January 30 was the date fixed for the trial, but by virtue of theorder of court dated January 25, 1940, in consequence of the consentmotion, January 30, 1940, ceased to be the date fixed for trial, and whenthat dpy arrived, it was not “ a date of trial ”.
The next “ date of trial ” was May 3, and on that date the money wasduly deposited.
I hold that the defendants have acted strictly according to the termsof their agreement dated October 24, 1939, and that there has been nobreach of this agreement. I set aside the order that the plaintiff is en-titled to judgment as prayed for with costs and send the case back fortrial in due course. The defendants are entitled to costs of the argumenton July 5, 1940, and of this appeal. Other costs will be in the discretionof the Commissioner.
JAYASEKERA v. BETOHAMY et al