TIDAL AG AMA, J.—Rajapakse v. Petris Appuhamy
Present : Udalagama, J., Vythialingam, and
M.R. HEMAMALA RAJAPAKSE, Defendant-Appellant
U.P. A. PE1RIS APPUHAMY, Plaintiff-RespondentS. C. 149/71 (Inty)-D. C. Kegalle No. 12384
Costs—Order jor pre-payment—Failure to comply therewith—Effect.
An order was made on 25th May, 1967, that the plaintiff shouldpre-pay costs in a sum of Rs. 105 on or before 10 a.m. on 24thJuly, 1967. It was agreed that if the plaintiff did not so pay this sumthe plaintiff’s action was to be dismissed with costs. The plaintiffdid not pay these costs before 10 a.m. on 24th July, 1967, andcounsel for the defendant moved that the plaintiff’s action bedismissed.
On an application by counsel for the plaintiff to lead evidence inorder to satisfy Court that there were circumstances which prevent-ed the plaintiff from paying the costs, the matter was inquired intoand after evidence was led the learned District Judge held that theplaintiff had satisfied him that he was prevented from tendering themoney in due time and that he had sufficiently excused himself.Accordingly he made order to have the case called on 4th October,1971, to enable it to be re-fixed for trial. The defendant appealed.
Held : That on the evidence in the case the plaintiff had failedto satisfy the Court that he was unable to perform his part of theagreement in regard to paying the costs as payment had becomeabsolutely impossible. On. the contrary the evidence showed thathe had nearly 2 months to pay this sum but had failed to do so.In terms of the order made of consent the plaintiff’s action mustaccordingly stand dismissed with costs.
Vunchi Nona v. Peiris, 26 N.L.R. 411 followed.
ApPEAL from art order of the District Court, Kegalle.
H. W. Jayewardene, Q.C., with Ranil Wickremasinghe andMiss S. Fernando, for the substituted defendant-appellant.
D. R. Goonetilleke, with M. B■ Peramuna, for the plaintiff-respondent.
February 19, 197c. Udalagama, J.
The plaintiff in this case sued the defendant for damages ina sum of, Rs. 20,000 for wrongful sequestration of his shop goods.In the course of the case the defendant died and his daughterwas substituted in his place as executor de son tort, of the estateof the defendant.
When the case came up for trial on 25.5.67, counsel appearingfor the substituted-defendant raised an issue as to whether thecause of action survived against the substituted-defendant, andif so, to what extent ? In consequence of this issue being raised,counsel for the plaintiff moved Court to permit him to file papers,
1*—A 46744 (79/12)
I'DALAO AMA, J. – linjopttkse r. Peiria Appuhamy
substituting the defendant as executor of the estate of the originaldefendant, as she had since been so appointed, in the testamentaryproceedings of the original defendant. Counsel for the defendanthad consented to a date being granted on terms. The terms were,that the plainliif-respondent would pre-pay a sum of Rs. 105 onor before 10.00 a.m. on the next date which was the date forfiling fresh papers—-namely 24.7.1967. It was further agreedbetween the parties that if the plaintiff did not pay Rs. 105 asagreed the plaintiff’s action to be dismissed with costs. On 24.7.67the plaintiff failed to pay the costs before 10.00 a.m. as agreed.When the case came up for trial subsequently, counsel for thedefendant-appellant moved that the plaintiff’s action bedismissed in terms of the order made on 27.5.67.
Counsel for the plaintiff moved to call evidence in order tosatisfy the Court that there were circumstances which preventedthe plaintiff from paying the costs that was agreed upon on the24th of July, 1967. The Court permitted the application and thematter came up for inquiry on 9.9.71 on which date evidencewas led and the learned District Judge delivered order holdingthat the plaintiff had satisfied him (the Judge) that he (theplaintiff) was prevented from tendering money in due time buthad sufficiently excused himself and overruled the objectionof the defendant-appellant and made order to have the casecalled on 4.10.71 to enable the trial to be fixed.
The defendant-appellant now appeals to this Court from theorder of the learned District Judge. According to the agreementthat was arrived at on 27.5.67, the plaintiff had to pre-pay thesum of Rs. 105 on or before 10.00 a.m. on the next date—namely—24.7.67 and if the plaintiff failed to pay this Rs. 105 this actionwas to be dismissed with costs.
In the case of Punchi Nona v. Peiris, 26 N.L.R. 411, Jayewardene,A. J., in the course of his judgment, in that case stated : —
“ Parties no doubt wait till the last moment to make thesepayments, but that is not a circumstance, the Court can takeinto consideration, and if at the last moment they areprevented by accident or otherwise from doing so, they mustbe prepared to take the consequences.
This rule, must, however, not be regarded as inflexible,it would have to yield in cases where performance of theagreement has become absolutely impossible. ”
We have examined the evidence that was led by the plaintiffat the inquiry, and we are not satisfied that the plaintiff hadbrought himself within the dictum enunciated by Jayewardene,
Medonza v. Conimixnoner of Inland Revenue
A. J. in Punchi Nona v. Peiris. He has failed to satisfy us thathe was unable to perform his part of the agreement as it hadbecome absolutely impossible. On the contrary, the evidenceshows that the plaintiff-respondent had nearly two months to paythis sum. In fact, the proctor for the plaintiff had filed paperson 9.6.67 in regard to the appointment of the defendant in placeof the original defendant who had died, in her capacity as exe-cutor of the estate of the original defendant. The plaintiff couldvery well have deposited this sum on that date, but, has failedto do so.
Furthermore, the evidence also shows, that he lives only 30yards away from the house of Mr. Everad Perera, proctor for thedefendant-appellant. If he had only made a diligent effort evenon the morning of the 24th July, 1967, to pay this sum to Mr. Eve-rad Perera, before the stipulated time limit, we are unable to seewhat difficulty he would have encountered. The consequences thatwere to follow from his failure to pay the money within thestipulated time, were no doubt serious from his point of view.He stands to have his action dismissed with costs ; but then,that is his default and he must blame himself for the situationhe now finds himself.
I allow the appeal and set aside the order of the learnedDistrict Judge dated 9.9.71 and hold that the plaintiff-respondenthad failed to abide by the agreement entered into on 27.5.67. Inthe result, the plaintiff-respondent’s action stands dismissed withcosts.
Defendant-appellant is entitled to the costs of this appeal.Vythialingam, J.—I agree.
Ratwatte, J.— I agree.
M. R. HEMAMALA RAJAPAKSE, Defendant-Appellant and U. P. A. PEIRIS APPUHAMY, Pl