( 185 )
RANG ETENA v. APPU.C. R., Kandy, 6,705.
Civil Procedure Code, s. 14$—“ Causing attendance of witnesses ”—Motion foradjournment of hearing for failure of witness to attend—Dismissal ofaction for failure of plaintiff to pay before trial the costs of the day ofadjournment—Service of process issued by Covert—Duty of Fiscal, andnot party suing out process, to serve it.
Section 145 of the Civil Procedure Code does not justify a dismissalof plaintiff’s case, because the costs of an adjournment, granted atplaintiff’s instance, had not been paid as ordered. Plaintiff cannot besaid to be in default of “ causing the attendance of his witness,” if theFiscal fails to serve a summons on him.
It is the Fiscal’s duty, and not the plaintiff’s, to see.the Court’s processduly served.
N this action for damages, a plan in the possession of theGovernment Agent being necessary for the proof of plaintiff’s
case, a summons to produce it was issued on the Government
( 186 )
1899.Agent, and the case came on for trial on the 26th August, 1898.
March 14.The parties were present, but plaintiff was not ready, as the
summons on the Government Agent had not been served.
The Commissioner ordered as foil dws : —
“ The plaintiff is in default, as she has not seen that her subpoenawas served on the Government Agent. Nor has she applied for acopy. I postpone the case for the 20th September. Plaintiff topay this day’s costs.”
Ultimately, the case came on for hearing on 1st November, 1898,when defendant’s proctor objected that the orders of 20th Septem-ber as to payment of costs by plaintiff was not fulfilled, though thebill of costs was taxed, amounting to Rs. 5.50. Plaintiff pleadedinability to pay that amount. The Commissioner thereupon dis-missed the action with costs, “ as she (plaintiff) has failed tocomply with the order of 20th September.”
No appearance for appellant.
Van Langenberg, for respondent.
There was no appearance for the appellant in this case, butnot being satisfied with the Commissioner’s judgment, I desiredMr. Van Langenberg, who appeared for the respondent, to supportit. Having heard the matter discussed, I am prepared to makeorder.
This is an action for damages alleged to be caused by anencroachment on a part of plaintiff’s property by defendant. Ifappears that the plaintiff was desirous of getting some officialplan of the land which was in the control of the GovernmentAgent. A summons to the Government Agent seems to havebeen taken out, but for some reason or other not to have beenserved. On the 26th August last, being the day appointed for thetrial, plaintiff was not ready to go on with the action, owing tothe Government Agent not having been served with summons toproduce the plan required. In the journal entry of that date theCommissioner makes this entry: “ It (that is, the summons) has“ not been served on the Government Agent; the plaintiff is“ therefore in default;” and further on he repeats the observation,“ The plaintiff is in default, as she has not seen to summons beingserved on the Government Agent.”
It seems to me that it is the duty of the Fiscal to see to theservice of process issued by the Court. I do not quite see howthe plaintiff was to see this process served on the GovernmentAgent. However, the Commissioner allowed a postponement to
t 187 )
the 20th September, and in making such order he thought fit todirect plaintiff to pay costs of the day, including batta, to thesurveyor before the next date.
Mr. Van .Langenberg tells me that this is not an unusual orderin the Court of Requests of Kandy; but at present I hesitate tothink that the Code intended the Court to allow an adjournmenton the costs of the day being paid before the date of adjournment,and when that date came to dismiss the action because the costshave not been paid, although the party affected by the order wasready to go to trial.
I can hardly think that that was the intention because ofsection 145 of the Procedure Code, which enacts, “ If any party to“ an action to whom time has been granted fails to produce his“ evidence, or to cause the attendance of his witnesses, or to“ perform any other act necessary to the further progress of the“ action, for which time has been allowed, the Court may, notwith-“ standing such default, proceed to decide the action forthwith.”
Now, on the 1st November, to which day the trial was adjourned,the parties were present, and for all I know ready to proceed totrial.
Instead of going on with the action the Commissioner dismissedit at the solicitation of defendant’s proctor, who argued that thetrial could not go on because the plaintiff did not pay the costsshe was ordered to pay on the previous occasion. If the Codehad meant that an action might be dismissed On the day adjourned,because the party on whose account the adjournment had beenallowed had not paid the costs incidental to his application foradjournment, I think the Code would have said so in so manywords.
If on 1st November plaintiff had no evidence to lead in supportof his action, the Commissioner might well have dismissed it onthat ground.
I do not think the failure to pay the costs justified the dismissalof the action without any trial at all. The defendant has hisremedy for recovering those costs. I therefore discharge theorder and remit the case for the Commissioner to fix a date forthe trial of the action.
RANG ETENA v. APPU