074-NLR-NLR-V-26-PUNCHI-NONA-et-al.-v.-PEIRIS-et-al.pdf
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Present: Bertram C.J. aiid Jayewardene A.J.
PUNCHI NONA ei ah v. PEIRIS et ah50—D. C. Colombo, 7,538.
Agreement■ to pay costs-^Consent order—Postponement of trial—Breachof undertaking—Court's povser to grant relief.
Where a case was postponed on condition that the defendantspaid the plaintiff a certain sum of money by way of costs beforethe date of trial, and where it was further agreed that on failurethereof, judgment should be entered for the plaintiffs.
Held, that the Court had no power to grant relief to thedefendants against the breach of their undertaking to pay costs interms of the agreement.
A
PPEAL from a judgment of the District Judge of Colombo.
This was an action for declaration of title to land. The casewas fixed for trial on October 16, 1928, but as the defendants werenot ready, it was postponed for December 20 on terms. Thedefendants agreed to pay the costs of the day, which were fixed atBs. 52.50 before the date of trial, and also expressly agreed that,if the costs be not paid before December 20, judgment be enteredfor the plaintiffs with costs. The defendants failed to pay the costsbefore December 20, and when the case was called on that daytheir proctor stated that the costs cOuld not be paid owing to thefloods, and moved to pay them. The learned District Judge there-upon entered judgment for the plaintiffs. The defendants appealed.
J. S. Jayewardene, for defendants, appellants.
E. W. Perera, for plaintiffs, respondents.
October 10, 1924. Jayewardene A.J.—
In this case the defendants appeal against an order directing thatjudgment be entered for the plaintiffs as prayed for with costs. Itis a land case, and the plaintiffs sued them for declaration of title,ejectment, and damages. Originally the defendants were* in default,and the case was heard ex parte, but it was reopened on their applica-tion. The case was fixed for trial on October 16, 1923, but thedefendants were not ready, and the case was postponed .for December20, on terms. By these terms the defendants agreed to pay thecosts of the trial date which were fixed at Bs. 52.50 before December20, and the defendants also expressly agreed that, if the costs be notpaid before December 20, judgment be entered for the plaintiffsas prayed for with costs. The defendants failed 'to pay the costsas agreed before December 20, and whfen the case was called onthat day their proctor stated that the costs could not be paidowing to floods, and moved to pay them.
1924.
1924.
Jayiwaa-DE2TO AUT.
PuncMNonav. Peim
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The learned District Judge made the following order: —
“ I cannot vary Mr. de Saram’s order, nor do I see any reason todo so. 1 enter judgment for plaintiffs as prayed for with costs.1’
The defendants say that .they were within time in offering to paybefore the trial of the action on December 20, and that their failureto pay (if any) has been sufficiently excused. I think there has beena breach of the terms of the agreement entered into on October 16,as their undertaking was to pay before December 20. The questionis whether the Court has the power to^give the defendants’ reliefagainst the consequences of their breach of the undertaking byallowing them to pay on a date later than the date fixed by its order.The agreement here was not an agreement entered into by theparties under section 408. It contained the terms on which theCourt was prepared to grant a postponement, and section 82 of theCivil Procedure Code empowers the Court to postpone the trial of acase “ upon such terms as to costs or otherwise as the Court shallthink fit.”
In Ramanaden Chetty v. Fernando,l a similar agreement was heidbinding on the defendant, and judgment was entered for the plaintiffin terms of the agreement. There the defendant obtained a post-ponement of the trial date consenting to pay Rs. 75 before thenext date of trial, and agreeing .to judgment being entered in theplaintiff’s favour on failure of such payment. The case was afteranother postponement fixed for trial on a particular date. Thedefendant failed to pay the Rs. 75 before that date, but offered topay the money on the trial date. The Court allowed the paymentto be made, and disallowed the plaintiff’s application for judgmentin his favour in terms of the agreement. This Court set aside theorder, as it thought that the plaintiff was entitled to the benefit ofriie order consenting to judgment in his favour in case of default,and gave judgment for the plaintiff as prayed for with costs.
No reasons are given .for this ruling, except that there was nodefault on the part of .the plaintiff in not submitting a memorandumof the costs payable. This, it was thought, was unnecessary, as theamount of costs had been fixed. But the principles which oughtto govern the Court in a case of this kind are to be found in ajudgment of West J. in* Balprasad v. D'hamidhar Sahharam given asa footnote to. the report of the case of Shirehvli Tima * Pa 9 Hedga ’v. Maha’ Blya.2
In that case the decree was based on an agreement made betweenthe parties, by which the defendant agreed to pay a sum of Rs. 881within two months, and, fading such payment, to pay a sum ofRs. 2,740. It became impossible to pay the money through theCourt, as the Court was closed on the' last two days of the secondmonth. The Courts reopened about six weeks later, and the dayafter the Courts reopened, the money Rs. 881 was paid. The> {1923) 24 A7. L. R. 411.* (W) 10 Bom. 435.
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plaintiff refused to accept this sum in satisfaction of the decree, but
the lower Courts held that as payment of the money on the last Jaybwab-
two days of the period fixed was impossible and payment on the
day the Court reopened was prevented by accident, the intention pUnchiNona
of the decree would be satisfied by the payment made. West and u. Peiria
Nanabhai JJ,, in setting this order aside, said: —
“ The principles* which govern the enforcement of contracts andtheir modification, when justice requires it, do not applyto decrees which, as they are framed, embody and expresssuch justice as the Court is capable of conceiving andadministering. The admission of a pawer to vary therequirements of a decree once passed would introduceuncertainty and confusion. No one’s rights would, at anystage, be so established that they could be depended on,and the Courts would be overwhelmed with applicationsfor the modification, on equitable principles, of ordersmade on a full consideration of the cases which they weremeant to terminate.
“ It is obvious that such a state of things would not be farremoved from a judicial chaos; and as ordinary decreesare thus unchangeable, so, we think, are those in which,through a special provision for the convenience of parties,their own disposals of their disputes are embodied. Thedoctrine of penalties is not applicable to such a class ofcases; and those who, with their eyes open, have madealternative engagements and invited alternative orders ofthe Court must, if they fail to perform the one, performthe other, however greatly severe its terms may be.
“ In the present case the order was not to pay on April 21, buton or before that date. The defendants had two months,minus two days, in which to execute the order of the Court.
Its vacation was duly announced, so that they had themeans of knowing that payment could not be made on thelast two days of the month. According to the case ofMayer v. Harding 1 where the law requires something to bedone within a given time, it must equally be done withinthat time, though performance during some part of thetime is impossible. The command of the law thusexpressed, and its command proceeding from th,e mouth ofa Judge, are strictly analogous; and the judgment-debtors here being prevented, as they knew, from payingon April 20 or 21, could avoid incurring the alternativeliability only by payment before the former date. Theyfailed to pay in time, and thus part of the decree beingno longer applicable they must pay according to -its othercommand. ”
* L.R.2 Q% B. 410.
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1924. There the decree was based on an agreement entered into betweenJayewab. parties, here the Court had made an order embodying, it may be,J)bs» AJ. the'terms on which the plaintiff suggested he was prepared toPunehi Nona consent to a postponement, but it is none the less an order of theo, Petris Court. The reasoning in the judgment just cited would, therefore,apply with even greater force to the present case. The defendantsays he was prevented by floods from paying the sum fixed as costs;but he had more than two months within which to pay the amount,and it could not be said that he was prevented by fioo.ds frompaying the sum he had agreed to pay during the whole of thatperiod.
Parties no doubt wait till the last moment to make these payments,but that is not a circumstance the Court can take into consideration,and if at the last moment they are prevented by accident or other-wise from doing so, they must be prepared to take the consequences.
This rule, must, however, not be regarded as inflexible, it wouldhave to yield in cases where performance of the agrement hasbecome absolutely impossible. I may, however, mention that it hasbeen held by a Full Bench of the Bombay High Court followingcertain decisions of the Madras High Court that the principle laiddown by West J. in Balprasad v. Bhamidhar Sakharam (supra)does not apply to cases where a party is seeking to enforce byregular action a right to forfeiture contained in a consent decreein terms of a compromise entered into under section 375 of theIndian Civil Procedure Code (section 40 of our Code), and that insuch .cases the Court in the exercise of its equitable jurisdictionis not precluded from granting such relief against forfeiture as itmight have granted had the agreement arisen from contract orcustom. It adopted the observations of Baron Parke in Wentworthv. Bullen 1 cited with approval in Lievesley v. Oilmore 2 that “ thecontract of the parties is not the less a contract and subject to. theincidents of a contract, because there is .superadded the commandof a Judge: ” Krisnabai v. Hasi Govind.3
In this case it has not been shown that it had become impossiblefor Jibe defendant to comply with the terms of the agreement, andthe appeal must accordingly be dismissed with costs.
Bertram C.J.—I agree.
Appeal dismissed.
1 (1829) 1 Bam. and Gres. 850.'* {I860) i <7. i 370.
8 (1900) 81 Bom. 15.