016-NLR-NLR-V-41-KAMALA-et-al.-v.-ANDRIS.pdf
.DE KRETSER J.—Kamala v. Andris.
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1939Present : de Kretser J.
KAMALA et al. v. ANDRIS242—C. R. Kalutara, 13,240.
Abatement—Application to vacate order—Leave granted to file fresh action—
Civil Procedure Code, ss. 403 and 839.
Where an action has abated, a Court has no power to grant leave toinstitute a fresh action.
Section 839 of the Civil Procedure Code is not intended to authorize aCourt to override the express provisions of the Civil Procedure Code.
^^PPEAL from an order of the Commissioner of Requests, Kalutara.
L. A. Rajapakse (with him H. A. Wijemanne), for second and thirddefendants, appellants.
U. A. Jayasundere, for plaintiff, respondent.
March 21, 1939. de Kretser J.—
Mr. Rajapakse for the appellants raised two preliminary objections,viz., (i.) that the trial Court had no jurisdiction, (ii.) that an order ofabatement had been made in a previous case brought by the plaintiffagainst the same defendant for the same subject-matter and on the samecause of action. P 10 is a copy of the relevant portion of that earliercase.
The second objection had not been taken in the trial Court nor in the.petition of appeal but it was open to Mr. Rajapakse to raise the point asthe necessary material was before the Court and Mr. Jayasundere, for therespondent took no exception.
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DE KRETSER J.—Kamala v. Andris.
In the previous case an order of abatement was entered on June 20,1934, on July 5, 1934, an application was made to have the order ofabatement vacated. The learned Commissioner of Requests orderedthat the abatement should stand but he gave the plaintiff leave to file afresh action.
Section 403 of the Civil Procedure Code enacts that when an actionabates no fresh action shall be brought on the same cause of action. Thissection enacts a statutory bar which no Court can ignore.
Mr. Jayasundere contended however that the Court had power undersection 839 of the Civil Procedure Code to grant leave to the plaintiff to filea fresh action.
In the first place the learned Commissioner has not purported to act onthis section, for if he had he ought to have stated how the ends of justicewould be met or abuse of the process of Court prevented by his order.
It is quite as likely that because in the Court of Requests provision ismade for such leave being given when a plaintiff is in default, the Com-missioner thought that such leave may be given when there is any defaulton the part of the plaintiff.
Section 839 was not intended to apply to such a case as this. It wasintended to emphasise that the provisions of the Code were not exhaustiveand that the Court may have occasion to make other orders of the natureindicated in the section. But it was never intended to override suchexpress provision as had been made, and I find that the correspondingsection in the Indian Code has been interpreted as not authorizing a Courtto override the express provisions of the law.
Therefore the leave given by the learned Commissioner was irregularand the order of abatement is of full effect and the present action cannotbe maintained.
It must therefore he dismissed. But as this objection was not takenin the trial Court there will be no costs of the trial in the Court below andthe appellant will only have the costs of the appeal.«
In the circumstances it is unnecessary to discuss the question ofjurisdiction.
Appeal dismissed.