Matcher v. de Abrew.
1936Present: Dalton A.C.J. and Soertsz A.J.
MATCHER v. DE ABREW.
104—D. C. Colombo, 90
Adjournment of trial—Application by defendant—Absence of plaintiff—Powerof Court—Civil Procedure Code, ss. 82 and 84.
Where at the hearing of an action the plaintiff was absent and thedefendant applied for a postponement, the Court is not bound to actunder section 84 of the Civil Procedure Code and grant an adjournment.
^^PPEAL from an order, of the District Judge of Colombo.
Gratiaen (with him J. A. T. Perera), for plaintiff, appellant.
N.E. Weerasooria (with him T. S. Fernando), for defendant,respondent.
DALTON A.C-J.—Matcher v. de Abrew.
June 2, 1936. Dalton A.C.J.—
In this action the plaintiff (appellant) sued the defendant (respondent)to recover the sum of Rs. 500 under a deed of partnership. The defendantdenied liability and claimed a sum of Rs. 2,500 in reconvention. Theaction was instituted on January 22, 1934. The journal entries are verybadly made and difficult to decipher, but I gather that the case was fixedfor trial on June 20, 1934. On that day the defendant obtained a post-ponement on the ground that a material witness for the defence was awayin England and would not be back until November 15, 1934. There wasno appearance for the plaintiff on June 20, although his proctor hadreceived notice of the application which was to be made. The Courtalso ordered that the case be mentioned on September 24. On that datethe case was ordered to be called on January 24, 1935, and it was fixed fortrial on February 21, 1935.
On February 21, 1935, when the Court was ready to proceed with thetrial, the proctor for the defendant handed in a motion, saying that asthe case was likely to be settled, he moved that the case be fixed foranother day. This motion was signed by the proctors of both parties.Again neither the plaintiff nor his proctor appeared in Court. They allappear to have assumed that the application made on the day of trialwould be granted as of course. The plaintiff’s proctor, in my opinion,treated the Court with discourtesy, and neither of the proctors seems tohave any regard to the convenience of the Court or of other litigants. Itis this sort of conduct which is such a prolific cause of delay in the hearingof cases, and the District Judge had very good cause for complaint. HeTefused the application, holding that no good ground was shown forallowing a postponement, and expressing the opinion that the applicationand the statement that the case was likely to be settled were, in thecircumstances, only a roundabout method of obtaining a postponement.He accordingly entered decree nisi dismissing the plaintiff’s action withcosts. He also ordered that the claim in reconvention be “ similarly ”dismissed.
The appeal is from the order refusing the application for an adjourn-ment. It was urged, under the provisions of section 84 of the CivilProcedure Code, that if the plaintiff failed to appear and the defendantconsented to an adjournment of the action being heard, the Court wasbound to grant the adjournment and appoint another day for the actionto be heard, giving notice thereof to the plaintiff.
If the plaintiff or his counsel had also been present, there is no doubt ofthe power of the Court to refuse the adjournment. Because his counselwas discourteous to the Court, merely signing the motion and keepingaway from the Court, it is argued that he could obtain by this conductwhat he could not otherwise obtain. It seems to me that those provisionsof section 84, upon which the appellant relies, aFe subject to the generalpowers of postponement given by section 82 of the Code.
, In my opinion, the appeal must fail, and it is therefore dismissedwith costs.
DALTON A.C.J.—Matcher v. de Abrew.
We were asked to amend the decree, since there is no reference thereinto the dismissal of the claim in reconvention. We were prepared to do soin order to bring it into conformity with the judgment, but counsel beforeus were not agreed on the meaning to be given to the word “ similarly ”in the order dismissing the claim in reconvention. Did it mean that thatclaim was dismissed with costs ? In view of this disagreement, thelearned District Judge will be the best person to answer this question,and it is open therefore to the parties to apply to him to bring the decreeinto conformity with the judgment, if either of them so desires.
Soehtsz A.J.—I agree.
MATCHER v. DE ABREW