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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Renton.
JvORENSU APPUHAMY etal. v. PAARIS ct al.
D. C., Negombo, 4,525.
Civil Procedure Code, t. 402—Order of abatement—Failure to takenecessary step—Order made ex mero motu—Fixing case fortrial—Civil Procedure Code, s. 80.
Where, after the defendants had filed answer in . a partition suittheCourt did notfix any day oftrial,andthe plaintiffsthemselves
didnot take anyfurther steps intheactionfor over ayear, and
theCourt orderedthat the actiondoabate,and fouryears after
the plaintiffs moved that the order of abatement be vacated—
Held (reversing the order of the' District Judge), that the orderof abatement was wrongly made, as the plaintiffs had not failedto take any necessary step in the action, and that the said ordershould be vacated.
Wood Renton J.—The duty of fixing the case for trial rests onthe Court.
Qurerc.—Whetheran order ofabatementmade bythe Court
cx niera motu is bad?
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PPEAL from an order of the District Judge of Negombo(B. W. Byrde, Esq.).
Wadsworth, for the plaintiffs, appellants.
Jayewardene, for the defendants, respondents.
July 7, 1908. Wood Benton J.—
The appellants instituted this action in the District Court ofNegombo for the partition of certain lands, which they alleged tobelong in common to themselves and the respondents, on April 25,1902. Answer was filed on behalf of the 2nd, 3rd, 5th, 6th, and 8threspondents on June 17. It then became the duty of the Court,under section 80 of the Civil Procedure Code, to fix the day of trialmid “ give notice thereof to the parties.” The record contains noentry showing that this was done. But on October 24, 1903, thethen District Judge made the following entry: “No steps havingbeen taken for more than a year, it is ordered that this action doabate.” On December 3, 1907, the proctor for the first plaintiff-appellant filed an‘affidavit, and moved for a notice on the respond-ents to show cause why the order of October 24, 1903, abating theaction, should not be vacated. Ultimately all the respondents wereserved, and on March 16, 1908, the present District Judge, afterhearing the evidence of the first plaintiff-appellant, dismissed themotion with costs. Against that order the present appeal is brought.The appeal possesses no merits. The attempt of the first plaintiff-appellant in his affidavit and in his evidence to explain his delayof four years in challenging the order of October 24, 1903, on theground of ill-health, was ridiculous, and on the materials before himthe decision of the learned District Judge was quite right. ButMr. Wadsworth, the appellant’s counsel, has taken a fresh pointbefore us. He contends that the order of abatement was bad,inasmuch as (i) the Court has no power under section 402 of theCivil Procedure Code to make, as it appears to have done in thepresent case, an order of abatement ex mem motu, and (ii) theappellants had not failed within the meaning of that section to takesome steps “ necessary ” to the prosecution of the action. Insupport of the former branch of the argument, Mr. Wadsworthrelied on the case of Fernando v. Peris,1 in which Lawrie J. said atpage 78: " The consequences of an order that an action shallabate are so serious that the Court should never exercise the powerex mem motu, but only on application by the defendant and afterdue notice to the plaintiff.” The same view was expressed byGrenier J. in Cave & Co. v. Erskinet2 In support, of the latter branchof his argument, Mr. Wadsworth relied on the text of the Codeitself.
* (1897) 3 N, L. B. 77.2 (1902) 6 N. L. B. 338.
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However desirable it may be, in view of the provision in section403 of the Code that “ when an action abates …. no freshaction shall be‘brought on the same cause of action,” that the Courtshould not act ex mero motu under section 402, it would be difficult,
I think, for us to hold in the absence of any language in section 402itself expressly or impliedly imposing any such fetter on the Court,that if it did make an order of abatement ex mero motu, that orderwould be bad. But it is not necessary to decide that point now.For I confess that I am unable to get over the difficulty created byMr. Wadsworth’s alternative contention.
The appellants had within the meaning of section 402 taken everystep incumbent upon them with a view to the prosecution of theaction. I think that when that section uses the word “ necessary,”it means “ rendered necessary by some positive requirement of thelaw.” We ought not to interpret it as if the section ran “ withouttaking any steps to prosecute the action which a prudent manwould take under the circumstances.” In the present case theappellants had done all that the law required of them. The dutyof fixing the day of trial rested, under section 80 of the CivilProcedure Code, on the Court (see Fernando v. Curera,1 and of.Ponnampalam v. Canagasabay 2).
With great reluctance I have come to the conclusion that the'decree appealed against should be set aside, the order of October 24,1903, vacated, and the appellants allowed to proceed with theiraction. All costs should be costs in the cause.
Hutchinson C.J.—I agree.
• 11896) 3 N. L. R. 29.
* (1896) 2 N. L. R. 38.