087-NLR-NLR-V-75-P.L.-NAGAPPAN-Appellant-and-LANKABARANA-ESTATES-LTD.-et-al.-Respondents.pdf
Nagappan v. Lankabarana Estates Ltd.
48»
1971 Present: Samerawlckrame, J., and de Kretser, J.P.L. NAGAPPAN, Appellant, and LANKABARANAESTATES LTD., et al., Respondents
S.C. 160j67 (Inly.)—D. C. Ratnapura, 3520jM
Civil procedure—Action instituted by plaintiffs jointly in respect oj a joint claim—Death of one of them—Casa taken off trial roll for necessary steps—Power ofCourt to order action to abate—Remedies of the plaintiff to have the order ofabatement set aside—Ez parte order—Remedy of party affected by it—PublicTrustee Ordinance, s. 30—Civil Procedure Code, es. 29, 394, 402, 403, 541
Where two plaintiffs institute action jointly for the recovery of a sum ofmoney which is due to them jointly, and the cubo is token off the trial roll,at the instance of the Proctor, upon the death of one of them, the Court maymake an order of abatement in respect of the action if it is made withinjurisdiction and after notice. In such a case, if delay is caused by a connectedtestamentary action pending in a jurisdiction outside Ceylon in respect of theestate of a deceased person from whom the joint plaintiffs derive their rights,it is the obligation of the surviving plaintiff to have recourse to the provisionsof section 30 of the Publio Trustee Ordinance or to take other appropriatesteps in order to continue the action instituted in Ceylon.
An ex parte order may be set aside on application to the court which made it.An order of abatement improperly made without notice may be set aside bythe court which made it, in the way stated in Bank of Ceylon v. Liverpool Marineand General Insurance Co. Ltd. (66 N. L. R. 472). •
Where, after service of notice on a plaintiff's Proctor to show cause, an orderof abatement of action is made by the Court because no cause is shown, althoughthe Proctor is present in Court, the order may be set aside by the SupremeCourt on an appeal filed against it. If no appeal is taken from such an order,it is not open to the plaint iff to seek to have it set aside by making an applicationin the same case at any time in the same way as in the matter of an ez parteorder. The plaintiff is entitled, however, to obtain from the original Courtan order setting aside the order of abatement provided that he satisfies theconditions set out in .section 403 of the Civil Procedure Code, viz., (1) that hisapplication is made within a reasonable time, and (2) that he proves that he wasprevented by sufficient cause from continuing the action.
-A-PPEAL from a judgment of the District Court, Ratnapura.
M. Tiruchelvam, Q.C., with K. Sivagurunathan, M. Sivarajasinghamand S. C. Chandrahasan, for the 1st plaintiff-appellant;
H. W. Jayewardene, Q.C., with L. C. Seneviratne, for the defendants-respondente.
Car. adv. vail.
SAMERAWICKRAME, J.—Nagappan v. Lankabarana Estate* Ltd. 489
September 30, 1971. Samebawickbame, J.—
This appeal is against the judgment of the District Court of Ratnapunadismissing an application for an order to set aside the order of abatementpassed in the action.
The action was filed on 28th August, 1959, by the appellant and oneNachammai Achchi, the 2nd plaintiff, to recover a sum of money fromthe 1st and 2nd defendants-respondents. They averred that the debtwas part of the assets of a Joint Hindu Family which was under thecontrol and management of one P. N. Palaniappa Chettiar. Theystated that Palaniappa Chettiar had died and that the right tocollect the said debt belonged to them and the widow of the Chettiarwhom they made a party defendant as she had refused to join as aplaintiff.
When the case came up for trial on 16th February, 1962, the proctorfor the plaintiffs informed the Court that the 2nd plaintiff had diedin India on 22nd November, 1961. The case was taken off the trialroll and was thereafter called on two dates for steps. On 11th February,1963, the case was laid by for steps apparently because no applicationwas made to have a legal representative appointed. As no steps weretaken, on 28th April, 1966, notice was issued to the proctor for theplaintiffs to show cause why the case should not be abated and as nocause was shown an order of abatement was passed on 30th May, 1966.The appellant filed petition and affidavit on 19th April, 1967, and askedthat the order of abatement be set aside. After inquiry the learnedDistrict Judge delivered judgment refusing the application and theappellant has appealed from that judgment.
There can be little doubt that the case was taken off the trial rollat the instance of the proctor for the appellant though the journal entrydoes not expressly state that it was so done. There can also be littledoubt that the learned District Judge from whose judgment the appealis taken is correct when he says that several dates were taken to have alegal representative appointed. The view has been taken that wherea case is taken off the trial roll at the instance of the plaintiff or withhis consent, it is necessary for the plaintiff to get the case restored tothe trial roll—vide Supramaniam v. Symons1, and Wilson v. Sinniah 2.
In a recent case Tambiah, J., dealt exhaustively with all relevantdecisions and held that where an order “ laying by ” a case has beenmade the duty of restoring it to the trial roll rested on the court andnot on the parties. He adopted the interpretation in Lorensu Appuhamiv. Paaris 3 that the word “ necessary ” in section 402 of the CivilProcedure Code means “ rendered necessary by some positive requirement
1 (1915) 18 N. L. R. 229.* (1938) 18 Ceylon Law Recorder 9.
• (1908) 11 N. L. R. 202.
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490 SAMERAWICKRAME, J.—Nagappan v. Lankabarana Estates Ltd.
of law As the duty of fixing a day for hearing rested on the CourtTambiah, J., held that the plaintiff had not failed to take a step renderednecessary by law—vide Samsudeen v. Eagle Star Insurance Co. Ltd1.This decision has been followed in Bank of Ceylon v. Liverpool Marineand General Insurance Co. Ltd.2. In the earlier action the case hadbeen taken ofiF the trial roll and laid by for the purpose of settlementand in the later action, to enable the plaintiff to obtain evidence oncommission from Egypt. In either of these cases had the Court fixeda day for hearing there was no legal obstacle to the trial taking place,in the present case, however, in the absence of a substitution of a legalrepresentative in place of the 2nd plaintiff the trial could not have beenproceeded with. This case is therefore distinguishable from the twocases which were the subject of the decisions referred to above.
The learned District Judge has taken the view that the claim of theplaintiffs was a joint one and that the action was brought jointly. Interms of Section 394 of the Civil Procedure Code, on the death of the2nd plaintiff the action could not be proceeded with in the absence of alegal representative in her place. It was obligatory on the 1st plaintiffto prosecute the action by having a substitution made in place of the2nd plaintiff and such a substitution was a necessary step that had tobe taken by him.
Mr. M. Tiruchelvam, Q.C., submitted that the court and the partieshad been under a misapprehension and that upon a correct view of thelaw it was open to the 1st plaintiff, the 2nd plaintiff and the 3rd defendantto have each maintained a separate action for his or her share of thedebt and he cited authorities in support. He claimed that the appellantwas entitled to proceed with the action in respect of his share of the debt. •He even claimed that as a surviving plaintiff he was entitled to proceedwith the whole action without substitution in place of the 2nd plaintiff.This position was taken up for the first time when the order of abatementwas sought to be set aside and appears to be an afterthought on thepart of the appellant. The way the plaint was drafted and the factthat the widow who refused to join as a plaintiff was made aparty defendant show that the action was framed on the basis that thethree parties were jointly entitled to prosecute the claim and werenecessary parties to the action.
Having regard to the circumstances in which it came to be madeI am of the view that the order of abatement cannot be regarded asarbitrary or capricious and that it is one made on probable grounds by acourt competent to make it in the exercise of jurisdiction undoubtedlypossessed by that court. This finding is sufficient to determine thequestions that arise in this matter and it is not necessary to go furtherand decide whether the order was also correct.
* (1962) 64 N. L. R. 37t.
* (1962) 66 N. L. R. 472.
SAMERAWICKRAME, J.—Nagappan v. Lankabarcma Estates Ltd. 491
An order of abatement entered on wrong or insufficient grounds withoutnotice to the party who will be prejudicially affected by it and withoutan opportunity to show cause against it may be set aside by the courtwhich made it in the same way as an ex parte order. It may be questionedin appropriate proceedings in the same case and at any time—vide Bankof Ceylon v. Liverpool Marine and General Insurance Co. Ltd. (supra)at 474. ■ In accordance with a rule of practice which has become deeplyingrained in the legal system of Ceylon an ex parte order may be setaside on application to the court which made it—vide Loku Menika v.Silenduhamy *. Orders of abatement improperly made without noticeare sometimes described as void or ultra vires. No more is meant thanthat such orders will be set aside in the way stated in the 66 N. L. R.case (supra).
Before the order of abatement was made in this case notice was servedon the proctor for the appellant to show cause why such an order shouldnot be passed. A point haB been made that the notice should have beenserved on the appellant personally. The learned District Judge statesthat on the notice returnable date the proctor for the appellant waspresent in court and that no objection wets taken by him either to thenotice or to the proposed order of abatement and that it must be presumedthat the plaintiff was aware of the notice. Section 29 of theCivil Procedure Code justifies the presumption that the notice musthave been communicated to and made known to the party. In anyevent the appointment of the proctor had not been revoked ; he laterfiled the application of the appellant on which the order appealed fromwas made. The service of notice on him was therefore proper. Anorder made after notice and after giving a party an opportunity of showingcause against it may be set aside on an appeal filed against it. If noappeal is taken from such an order it is not open to a party to seek tohave it set aside by an appropriate application in the same case at anytime in the same way as in the matter of an ex parte order.
The appellant was entitled, however, to obtain an order setting asidethe order of abatement if he satisfied the conditions set out in Section403. They are that (I) his application is made within such period oftime as may seem to the court under the circumstances of the case to bereasonable and (2) he proves that he was prevented by sufficient causefrom continuing the action.
The appellant made application on 19th April, 1967, to set aside theorder of abatement that had been passed on 30th May, 1966. Thatis, his application was made after eleven months. The learned DistrictJudge holds that there has been unreasonable delay. In view of thefact that the order of abatement was made in the presence of the proctorfor the appellant I am unable to say that the finding of the learnedDistrict Judge in the circumstances of this case iB wrong.
1 (1947) 46 N. L. it. 666.
492SAMERAWTCKRAME, J.—Nagappan v. Lankabarana Estates Ltd.
The appellant sought to put certain matters before court to show thathe was prevented by sufficient cause from continuing the action. Hestated in his affidavit :—
“ 86. The amount sued for or the greater portion thereof belongedto one PL. N. Palaniappa Chettiar who died on the 16th September,1956, and the plaintiffs along with the 3rd defendant became thesuccessors-in-title to the said PL. N. Palaniappa Chettiar to whoseestate neither probate nor letters of administration have been issuedas yet. It was realised that the plaintiffs could not maintain thisaction until probate or letters of administration were issued to theestate of the said PL. N. Palaniappa Chettiar.
In case No. 17493/T in the District Court of Colombo the 3rddefendant who was the widow of the said PL. N. Palaniappa Chettiarapplied for letters of administration and the 1st plaintiff, the majorheir of the said Palaniappa Chettiar, counter-claimed for letters.
During this time the plaintiffs and the 3rd defendant had acase in India, the country of their domicil wherein the title to theestate of the said PL. N. Palaniappa Chettiar was in dispute. Thatcase was decided in favour of the 1st plaintiff in the original courtand in appeal in the Madras High Court from where the 3rd defendant,appealed to the Supreme Court of India, which court finally decidedthis case in the 1st plaintiff’s favour on the 23rd January, 1967.
Because of the conflict of claims between the plaintiffs andthe 3rd defendant in India, the testamentary case No. 17493/T inthe District Court of Colombo was not proceeded with ; but now thatthe conflict between the 1st plaintiff and the 3rd defendant has beenfinally decided in India, your petitioner hopes that letters ofadministration will be issued quite early. ” I
I will assume that Section 547 of the Civil Procedure Code is applicableto this action. Though a testamentary action to which the appellantwas a party had been filed it appears not to have been proceeded withand to have been temporarily abandoned because a dispute had beenraised and canvassed in litigation in India as to who was entitled tosucceed to the estate of the deceased Palaniappa Chettiar. That disputewas taken up to and finally decided by the Supreme Court of India.There is provision made in Section 30 of the Public Trustee Ordinanceto which recourse might have been had. The Section is :—
“ 30. (1) Whenever any person has died leaving an estate withinCeylon, and the court having authority to appoint an administratorof the estate is satisfied that there is no person immediately availablewho is legally entitled to the succession to such estate, or that dangeris to be apprehended of misappropriation, deterioration, or waste ofsuch estate, beforo it can be determined who may be legally entitledto the succession thereto, or whether the Public Trustee is entitled toletters of administration of the estate of .such deceased person, the
SAMERAWICKRAMiC, J.—Ncujappan v. Lankabarana Estate* Ltd.
403
court may, upon the application of the Public Trustee or of any personinterested in such estate, or in the due administration.thereof, forthwithdirect the Public Trustee to collect and take possession of Buch estate,and to hold, deposit; realize, sell, or invest the same according to thedirections of the court; and in default of any such directions, accordingto the provisions of this Ordinance so far as the same are applicableto such estate.
(2) (a) Any order of the court made under the provisions of thissection shall entitle the Public Trustee—
(a) to maintain any suit or proceeding for the recovery of suchestate or any part thereof ; and … ”
Apart from action under the provisions of the Public Trustee Ordinance,it does not appear to me that administration of the Ceylon estate needhave been delayed all these years. Even if it was not possible for theheirs or those who claimed to be heirs to agree that administration shouldbe issued to one of themselves, it was surely possible to have a grant ofadministration made to the Secretary of the Court, the Public Trusteeor a third party in whom they had confidence.
The appellant was aware that the action filed by him could not beproceeded with without ’ administration to the. estate in Ceylonof Palaniappa Chettiar, yet he does not appear to have made any effortto have administration to the estate made early or even in reasonabletime. He refers to protracted litigation in India in which he participatedwhich need not necessarily have held up the testamentary proceedingsin Ceylon altogether. Palaniappa Chettiar died in September, 1956and on 15th April, 1967, when the appellant affirmed to his affidavitletters of administration to his estate had not. been issued though theappellant expresses a hope that they would be issued quite early. I
I do not think that in the circumstances it is open to the appellantto claim that he was prevented by sufficient cause from continuing theaction.
In- this connection I adopt the dictum of Wood Renton, C.J.,in Supramaniam v. Symons (supra) at 230 :— “ People may do whatthey like with their disputes so long as they do not invoke the assistanceof the courts of law. But whenever that step has been taken they arebound to proceed with all possible and reasonable expedition, and itis the duty of their legal advisers and of the Courts themselves to seethat this is done. The work of our Courts must be conducted onordinary business principles, and no Judge is obliged, or is entitled,to allow the accumulation upon his cause list of a mass of inanimateor Bemi-animate actions ”.
It is of course open to us to act in revision and to consider whetherthe order of abatement was or was not correctly made. Though theamount claimed is large, yet in the circumstances of the case I do not
404
Beemon Appuhamy v. The Queen
think Buch a course is indicated. Apart from the laches and delay to•which I have already referred, the claim or the greater part of it is allegedto have risen in September 1956 which is fifteen years ago. The 1stplaintiff-appellant has not invited us to act in revision.
In the circumstances the appeal fails and is dismissed with costs.
Db Kbbtskb, J.—I agree.
Appeal dismissed.