( 23 )
PONAMPALAM v. CANAGASABY el al.D. C., Batticaioa, 1,248.
February lland 13.
Res judicata—Striking off the roll of pending cases—Abatement—Amicable
settlement of action—Civil Procedure Code, ss. 88 and 402.
An order in an action in the following terms—“ Parties having“ failed to take any steps for more than a year and a day, it is“ ordered that this case be and it is hereby struck off the roll of“pending cases for default of proceeding”—is not an order thatoperates as a bar to the institution of a fresh suit on the same causeof action.
Per Lawrie, J.—The above order is of the same nature as anorder under section 88 of the Civil* Procedure Code.
Per Withers, J.—(1) An order of abatement under section 402of the Civil Procedure Code would be a bar to a fresh suit on thesame cause of action.
(2) Settlement of one action would be a complete bar to theinstitution of a fresh action on the same cause and between thesame parties.
HE facts of the case appear in the judgments of their Lordships.It was argued on the 11th February, 1896.
Cur. adv. vult.
Bawa, for appellant.
Dornhorst and Van LangenJberg, for respondent.
13th February, 1896. Lawbte, J.-^
In the District Court, Batticaioa, action No. 24,160, betweenthese parties and another, the defendants were on >the 4thNovember, 1886, in default of filing answer. On that day the-plaintiff’s proctor appeared and stated that the case (was settled,and moved for the taxation of his bill of costs against his ownclient. Notice on the plaintiff was allowed.
Many years afterwards the plaintiff brought this action on thesame bond against the surviving obligors. One of the parties tothe former action was by this time dead.
On the trial day the learned District Judge examined theplaintiff, and considering the statement in the record of the former
( 24- )
action, that .the case, was settled, he upheld a plea of res judicata anddismissed this action. Against that dismissal this appeal . . wastaken.
It is too plain to need any word of explanation that the orderin the former action was not res judicata, because it did not adj udicateon any right or issue,-—it was a mere permission by the Courtthat a notice should issue omthe plaintiff. It was the plaintiff’sproctor, not the Court, who said that the case was settled. Itis plain that there was no judgment.‘
But while it was conceded by the respondent in the appeal thatthe judgment of dismissal could not be supported on the groundsgiven for it by the District Judge, he urged that it was a rightdecree, because the former action was still pending and the plaintiff -could not proceed with this second and unnecessary and vexatious. action.
• Is, then, the former action still pending, and if it is, is that asufficient ground on which.to dismiss this action ?
In 1887 the then District Judge of. Batticaloa, ex mero motumade this order : “ Parties having failed to take any step for more“ than a year and a day it is ordered that this case be and it ishereby struck off the roll of .pending cases for default of proceed-“ ing.” The action is no longer pending. The order made in it isof the same nature as an order made under section 88 of the CivilProcedure Code, which does not operate as a bar to the institutionof a-fresh action on the same cause of 'action.
I am therefore of the opinion that the judgment cannot besupported, and that it must be set-aside and the cause remitted tobe proceeded with according to law. The appellant will have hiscosts.
When it is pleaded or otherwise brought to the notice of theJudge, as the trial of a cause before him developes, that there is anaction in his .Qourt for the same, cause between the same partiesor their, .privies, already instituted-but not terminated by a judg-ment of. the Court or compromise between the parties, I think aJudge cannot do better than follow the policy of our Code in dealingwith the cause Ibefore'him. Section 88 of our Civil ProcedureCode enacts that where neither party appears on the day appointedfor ' the defendant to appear and answer, or to put in ananswer after" time granted, or for the plaintiff to file a repli-cation, the action shall be struck off the file, of cases pendingirithe Court: But it provides that an order directing the action
( 25 )
to be struck off the file shall not operate as a bar to the institutionof a fresh action upon the same cause of action.
The 402nd section of the Code enacts that if a period exceedingtwelve months in the case of a District Court elapses subsequentlyto the date of the last entry of an order or proceedihg in the reoordwithout the plaintiff taking any steps to prosecute the action,where any such step is necessary, the Court may pass an orderthat the action shall abate.
By sectiod 403 it is provided that when an action, abates nofresh action shall be brought on the same cause of action.
If, then, there is an order of abatement in the former action,
. that should be treated as a bar to the current action, which shouldaccordingly be dismissed.
If the order is to strike the action off the file of pending casesfrom ..the non-appearance of either party on the day appointed forthe purpose of section 88, the current action should be proceededwith.
February 11and 13.
The record of what is said to be the lis pendens is before us.According to the formal entry of 4th November, 1886, the thenJudge was informally advised of the settlement of the case betweenthe parties. On the 15th December, 1887, Mr. Conolly, the thenDistrict Judge, ordered the case to be struck off the roll of pendingcases because the parties had failed to take any steps in the actionfor more than a yeas and a day. If the case really was settledout of Court, it is easy to settle what steps either party could take.It cannot be said, on the one hand, that there is either a lis pendensor that there is an order tantamount to an order of abatement inthe case resting on any negligence of the plaintiff to prosecutehis cause. The decision of the District Judge on the issue beforehim is clearly premature. If the former action was for the samecause and between the same parties and was settled, that of courseWould be a complete bar to this action. But the journal entry towhich I have referred is not a record of a compromise of the lispendens, and that issue must be determined in a regular trial.Hence I concur in my brother’s judgment.
PONAMPALAM v. CANAGASABY et al