Nihal Ignatius Perera v. Ajantha Perera nee Seneviratne
NIHAL IGNATIUS PERERAV,
AJANTHA PERERA nee SENEVIRATNE
COURT OF APPEAL.
W.N.D. PERERA, J„ AND WIJEYARATNE, J.
CA. APPLICATION NO. 547/91WITH C.A./L.A. NO. 116/91D.C. MOUNT LAVINIACASE NO. 4067/D12 September, 1991
Matrimonial action – Divorce – Withdrawal – Proceeding with counter suit for divorce.Held:
Where the plaintiff (husband) sued the defendant (wife) for divorce and the defendantcounter-claimed a divorce and the plaintiff being unable to pay the costs and alimonypendente lite ordered by court moved to withdraw the action, it was competent forthe court under sec. 603 of the Civil Procedure Code, while permitting the plaintiff towithdraw his action and accordingly dismissing the same, to allow the defendant toproceed with her claim in reconvention for divorce.
Cases referred to
1.Karunatilleke v. Karunatilleke 52 NLR 300
APPLICATION in revision of orders of the District Court of Mount Lavinia.
H.L. de Silva, P.C. with Herman J.C. Perera for plaintiff –
Faiz Mustapha, P.C. with K. Balapatabendi for defendant-respondent.
Cur. adv. vult.
02 October 1991
The plaintiff-petitioner filed this action on 25.4.90 against thedefendant-respondent (his wife) for a divorce on the ground ofmalicious desertion. After the service of summons the defendant-
314Sri Lanka Law Reports(1991) 1 Sri L.R.
respondent filed a petition and affidavit praying for a sum ofRs.25‘,000/- by way of costs to defend the action and Rs. 5,000/-per month as alimony pendente lite, to which application the plaintiff-respondent filed objections.
After inquiry the learned Additional District Judge made order dated
that the plaintiff-petitioner do pay Rs. 15,000/- by way ofcosts and Rs. 3,000/- per month as alimony pendente lite.
On 23.1.91 the Attorney-at-law for the plaintiff-petitioner filed a motion(with a copy to the Attomey-at-Law for the defendant-respondent) towithdraw the action as he was unable to comply with the paymentsin the said order. An order was made by the learned AdditionalDistrict Judge to support this motion on 27.2.91.
According to the proceedings of 27.2.91 (which have been produced)the plaintiff had been absent and the defendant had been present.Both parties were represented by counsel.
After hearing the submissions made by counsel on both sides, thelearned Additional District Judge has made the following order:-
“While dismissing the plaintiff's action under section 406(2) onthe application of the plaintiffs counsel, I fix the case for trialregarding the claims in the defendant's answer that the marriagebetween the plaintiff and the defendant be dissolved.
While giving permission to the plaintiff to withdraw the action, Iorder the plaintiff to pay Rs. 1,500/- as costs to the defendantand direct that this amount be paid before the plaintiff files areplication to the defendant's answer. If this amount is not paidto the defendant before this date, parties agree that thedefendant will be entitled to all the reliefs prayed for."
On 3.5.91 learned counsel for the plaintiff-petitioner had submittedthat the learned Additional District Judge could not make an orderfor payment of costs and alimony pendente lite in view of the factthat the plaintiff-petitioner had moved to withdraw this action. After
Nihal Ignatius Perera v. Ajantha Perera nee Seneviratne
submissions (including written submissions) had been made, thelearned Additional District Judge made order dated 11.6.91 overrulingthe objection and granted a date for the plaintiff to file replicationand fixed the trial for 29.7.91.
In his order dated 11.6.91 the learned Additional District Judge hasstated that on 27.2.91, on the plaintiff's application, he was permittedto withdraw his action on payment of Rs. 1,500/- as costs and thematter was fixed for adjudication regarding the defendant's claim inreconvention.
The learned Additional District Judge stated that he has jurisdictionto consider the defendant's claim in reconvention as he couldconsider the defendant as a plaintiff under section 18 of the CivilProcedure Code. He has also held that the court has power undersection 603 of the Civil Procedure Code to adjudicate upon thedefendant's claim in reconvention. He also referred to the case ofKarunatillake v. Karunatillake (1)
This application has been filed to revise the orders of the learnedAddtional District Judge dated 27.2.91 and 11.6.91. It is urged in therevision application that the learned Additional District Judge shouldnot have entertained the answer of the defendant-respondent as theplaintiff-petitioner had moved to withdraw his action and this wasallowed.
To this application objections dated 26.8.91 have been filed by thedefendant-respondent. Among other grounds, it is stated that therehas been a delay in making this application and also that there hasbeen suppression of material facts.
There is also a connected leave to appeal application bearing No.
A. 116/91 to set aside the said orders.
At the hearing learned counsel for the plaintiff-petitioner Mr. H.L.deSilva, P.C., submitted that the foundation of any action was the plaintand that when the plaintiff moved to withdraw the action, and whenthe application was allowed and the action accordingly dismissed, thecourt had no jurisdiction to make any order thereafter. He furthersubmitted that the answer was accepted after the action wasdismissed. He also submitted that the acquiescence by the plaintiff-petitioner in the proceedings thereafter does not confer jurisdiction.
Sri banks Law Reports
(1991) 1 Sri L.R.
Mr. Faiz Mustapha, P.C., for the defendant-respondent, on the otherhand, submitted that there was acquiescence and that the plaintiff-petitioner filed a replication on 3.5.91.
On a perusal of the proceedings it is clear that by order dated
the learned Additional District Judge permitted the plaintiffto withdraw the action and accordingly he dismissed the plaintiffsaction and at the same time accepted the defendant's answer andpermitted the plaintiff to file a replication. It should be kept in mindthat there is specific provision made for this type of situation insection 603 which lays down that if the defendant in a divorce actionopposes the reliefs sought on any ground which would have enabledher to sue as plaintiff for dissolution of marriage, court may give tothe defendant on her application the same relief to which she wouldhave been entitled in case she has presented a plaint seeking suchreliefs. Therefore, as the defendant in this case has counter-claimedfor divorce, the learned Additional district Judge is entitled, on herapplication, to treat her as a plaintiff and allow her to proceed withher counter-claim for divorce even though the plaintiff has withdrawnhis action. Both the application by the plaintiff to withdraw the actionand the application by the defendant to pursue her counter-claim fordivorce were made and allowed on the same day, namely 27.2.91.The matter is fully covered by section 603 and the procedurefollowed is permissible under this section.
I therefore affirm the orders dated 27.2.91 and 11.6.91 and dismissthis application with costs payable by the plaintiff-petitioner to thedefendant-respondent.
The connected Leave to Appeal Application No. 116/91 too standsdismissed.
W.N.D. PERERA, J. – I agree.