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Present: De Sampayo J. and Dias J.
LOKU MENIKA v. DINGIRIMAHATMAYA et al.
129—D: C. (Itg.) Ratnapura, 3,127.
Partition action—Intervention before date of trial—Order to pay eotU oftrial date.
Whenit appears to a Judge tryinga partition 'actionthat any
parties who have any interest are not before the Court, it is thedoty ofthe Judge to stop the ease and bringin all the parties,
althoughthe original plaintiff and thedefendantmay betoady for
Whereinternments were ordered topay thecost ofthe trial
date to the other parties, the Supreme Court Bet aside the order as to costsand allowed the intervention without any condition.
rJ"lHE facts appear from the judgment.
R. L. Pereira, for the appellants.
April 1, 1920. De Sampayo J.—
The question in this appeal relates to the propriety of an order asto costs made by the District Judge. The plaintiff brought thisaction to partition a land, being part of a rundagama, betweenhimself and the original defendants. The part sought to bepartitioned was alleged to have been bandara land. Previous tothe trial a survey was ordered, and then the intervenierits appellantscame in and stated that two of the lands included in the surveywere not bandara lands, but lands of which they were tenants.This intervention was made a few days before the date of trial. TheDistrict Judge allowed the intervention, but ordered at the sametime that the parties should be noticed, and that otherwise the inter*venients should pay the costs. It appears that before the filing ofthe petition of intervention they gave notice to the proctors of theplaintiff and the defendants, and the order of the Court appearsto have been that they should notice the parties personally. Thisappears to have been rather impracticable, and on the day of trialthe District Judge, in pursuance of the previous order, required theintervenients to pay two-thirds of the taxed costs of the plaintiffand parties. It will be noticed that the intervenients came in at acomparatively early stage of the proceedings, before any triad tookplace and before any interlocutory order was made. The DistrictJudge remarks that they failed to point out to the surveyor theclaim they made to the Court subsequently. But it appears thatthe survey was a very large one, and it is not surprising that these
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Lobu MenUcav. Dingiri-mafiatmaya
villagers were not able to know exactly at that time whether anyof their lands were included in the survey. I think the propercourse for the court to have done was to allow the inter-vention, and if it be found at the end that it was unfounded, tomake a proper order as to costs in regard to the whole matter.The present order would practically mean that the appellants wouldnot be able to come in at all and establish their claim. This wouldbe a very unfortunate result, and, I think, the just course is toset aside the order as to costs, and allow the intervention withoutany condition. The appellants, I think, are entitled to the costsof the appeal.
In my opinion this order as to costs has certainly been premature,even if it can be justified on any other ground. At present we donot know whether these intervenients have any just right to anyportion of this nindagama or not, and until it has been provedthat they have no such right, I do not see how the Judge can castthem in costs. It is true that it was within the power of the Judgeto make an order as to the terms on which they should be allowedto come in. But, so far as the record goes, it is perfectly clearthat there was no delay on their part in seeking to come in. Inany case, when it appears to a Judge trying a partition action thatany parties who have any interest are not before the Court it isthe duty of the Judge to stop the case and bring in all the parties,although the original plaintiff and the defendant may have beenready for trial. So, in the present case, those intervenients whocame forward mero motu ought not to be penalized by being madeto pay the costs, even before their rights are adjudicated upon. Inthese circumstances, I agree to the order proposed by my brother.
LOKU MENIKA v. DINGIRIMAHATMAYA et al