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Present': Pereira J. and Ennis J.
LENO HAMY et al. v. NONNO et al.
80—D. C. Kalutara, 3,684.
Several defendants who are not conversant with the English language—Copy of plaint or concise statement of its contents with translationsought to be served on defendants.
In a case in which there are several defendants who are notconversant with thq English^ language, the requirements of section. 55 of the Civil Procedure Code will not be" complied with unlessnot only a translation of the plaint or of a concise statement' ofits contents, but a copy of the plaint or a concise statement of itscontents as well, is served on each defendant.
As regards serving concise statements of the contents of plaintsinstead of copies, the' discretion of the proctor concerned shouldnot be too narrowly scrutinized, as he has to steer clear of coursesthat might lead to fatal objections to his proceedings. When theaverments in the plaint are such that a concise statement is notlikely to give the defendants sufficient notice of all the rights andinterests involved in the action, a full copy of the plaint should beserved on the defendants.
1 (Ml) 4 S. C. C. 140.a (1888) 8 8. C. 0.183.
* (1883) 5 8. O. 0.174.* (1896) I. L. B. 20 Bom. 697.
8 (1897) 1. L. if. 26 Cal. 29.
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fJlHE facts appear from the judgment.
F. J. de Saram, for appellant.
EUiott and B. F. de Silva, for respondents.
Our. adv. vult:
Leno Homyv. Nonno
July 29f 1913. Pereira J.—
This is an appeal from the order of the District Judge datedthe 13th May, 1913, which, although it deals, inter alia, with therespondent’s right to take out a writ against the plaintiff, I can onlylook upon as an order under section 214 of the Civil Procedure Codein review of the Secretary’s taxation of the bill of costs tendered bythe respondent against his own clients, the appellants, and I shalldeal with it only as suel^ It was strenuously pressed by therespondent’s counsel that the taxation dealt with was the taxationof a bill against the defendants in the' case. On a careful examina-tion of the proceedings I find that that is not so at all. On the 13thJuly, 1911, the respondent filed what he termed the “ plaintiff’sbill of costs payable by the parties pro rata,” and moved for noticeof taxation on the defendants. Eventually that bill was taxed atBs. 8,178.35. The plaintiffs personally were no parties to thattaxation. The proctor professed to act for them, but their interestswere not independently watched or protected, and in view, especially,of the provisions of section 215 of the Civil Procedure Code, I do notthink that the taxation of that bill gave the proctor any claim orright as against his own clients, the plaintiffs. But that is not thebill that we are now concerned with. On the 19th December, 1912,the respondent filed his bill of costs payable by his own clients (theplaintiffs) and moved for notice of taxation on them. Thereafterthe proxy given by the appellants in favour of the respondent wascancelled, and the appellants secured the services of another proctor,and in his presence the bill was taxed. It is this taxation that wasrevised by the District Judge, and in respect of which the orderappealed from was made. Inasmuch as the appellants had morethan a month’s notice of the taxation as required by section 215 ofthe Code, the taxation was in order, and the question is whether theobjections to the items in the bill pressed by the appellants aresound. The objections involve two questions, and pur decision onthose two questions will practically decide this appeal. The twoquestions are, (1) whether, under section 55 of the Civil ProcedureCode, in a case in which there are several defendants who are notconversant with the English language, a copy of the plaint or aconcise statement of its contents and also a translation of such oopyor concise statement should be served on each defendant; and (2)whether in this case the respondent should have applied to theCourt under section 49 of the Code to file concise statements instead
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IMS. of eopies of the plaint for service on the defendants. As regardsj the first question, I have no hesitation in answering it in the affirma-—^five. Words cannot be plainer than those used in section .49 and
Section 49 requires the plaintiff, when his plaint is admitted,
“ to, present as many copies, on unstamped paper, of the plaint asthere, are defendants. ” Section 55 begins with the words, “ Uponthe plaint being filed, and the copies or concise statements requiredoy section 49 presented, the Court shall order a summons/’ &c.And, later, the same section provides, “ The summons, together with,such copy or concise statement, each translated into the languageof the defendant, attached thereto, shall be delivered under a preceptof the Fiscal,*' Ac. The case of Marku v. Dalukatu was cited to usfrom the Supreme Court Circular, vol. IX., p. 119. In that caseit appears that it was held that under section 55 of the Civil Proce-dure Code, in the case of a defendant whose language was Tamil,it was sufficient if a translation only of the summons was issued forservice on him, but the case is hardly* an authority on the inter-pretation to be placed on the words used in the section with referenceto copies of plaints and concise statements. The word “plaint”is not used in the section. The word used is “ copy,” so that it isclear that the translation referred to is not a translation of the“ plaint ” but of the “ copy,” that is to say, of the copy (or copiesto the number of the defendants in the case) required to be handedin under section 49. I think that this interpretation is in accordancewith the long-established practice of the Courts of the Island. Itwas certainly agreed in the Court below that such was the practiceof the District Court of Kalutara. As regards the second questionmentioned above, the proctor had tb exercise his judgment inconducting his case. He had to steer clear of courses that mightlead to fatal objections to his proceedings. This is an action forthe partition of a large number of lands, and the rights and title ofthe different parties had to be clearly set forth in the plaint. I haveread the plaint, and I am not prepared to say that it admits ofbeing reduced to such a concise statement as can give sufficientnotice to the defendants of the rights and interests claimed by eachparty to the case.
For the reasons given above, in so far a6 the order appealed fromallows the contested items in the bill of costs, I would affirm it withcosts. The question whether the respondent is entitled to take outa writ in this case against the plaintiff, or whether he should proceedas provided for in section 215 of the Civil Procedure Code, should,I think, be reserved for decision on such further application as eitherparty might be advised to make.
LENO HAMY et al. v. NONNO et al