099-NLR-NLR-V-58-S.-SUBRAMANIAM-Appellant-and-K.-THANGAVADIVELU-et-al.-Respondents.pdf
Present: H. N. G. Fernando, J., and T. S. Fernando, J.
S. SU33BAMANIAM, Appellant, and K. THANGAVADIVELU et al.,
Respondents
S. G. (Inti/.) 13S—D. C. Point Pedro, 5,291
Partition action—Deposit oj preliminary survey fees—Power oj Court to alter dalefixed for such deposit—Partition Act, Aro. 16 of 1951, ss. S, 10 (1).
Where, in a partition action, a date is fixed for preliminary survey fees to bedeposited by tho plaintiff, section 10 (1) of the Partition Act docs not precludethe Court, in an appropriate case, from subsequently allowing a longer periodfor the deposit, provided that tho alteration of tho date is made prior to theexpiration of the time originally fixed.
^tPPEAL from an order of the District Court, Point Pedro.
G. Chdlappah, for the otli defendant appellant.
S. SJiarvananda, for the plaintiff respondent.
Our. ado. vull.
April 12, 1957. H. N. G. Fernando, J.—
This case involves what might he an important question of procedureunder the new Partition Act (No. 16 of 1951), if it is decided in favour ofthe appellant. . The plaint was accepted on 13th January, 1956, by theDistrict Judge, who then ordered Rs. 75 for preliminary survey fees to bodeposited by the plaintiff on 22nd February, 1956. On the latter date, theJudge ordered the fees to be deposited on 29th February, 1956, by whichdato the fees were actually deposited. Summons then issued on thedefendants, and one of them, the present appellant, filed proxy and movedthat the action be dismissed on the ground of the failure of the plaintiffto deposit the fees on the date originally fixed, that is on the 22ndFebruary, 1956. This motion was refused by the District Judge and thepresent appeal is against his order of refusal.
Section 8 of the Act required the Court to fix a date on or before whichthe preliminary survey fees shall be deposited, and section 10 (1) providesas follows :—
“ 10 (1) Where the plaintiff in a partition action fails to deposit,on or before the date fixed for the purpose, such estimated costs of thepreliminary survey as are determined by the court under section 8,the court shall dismiss such action. ”
The argument for the appellant is that the provisions of section 10 (1)are peremptory, and that the Court is bound to dismiss the action if thefees arc not deposited on or before the date fixed in the original orderunder section 8. The appellant also points to section 9, in which, bycontrast, the Court has express power to extend the time for the paymentof balance survey fees.
I do not disagree with the argument that failure to deposit the preli-minary survey fees within the time fixed by the Court by order undersection 8 will involve a dismissal of the action; indeed the Court wouldbe bound to enter an order of dismissal ex tnero tnolv. in the event of such afailure, because the clear intention is that a partition action cannot beproceeded with unless there is a preliminary survey, the cost of whichmust in the first instance be defrayed by the plaintiff. But the questionis whether the fixation of a date is so “ final ” an order that the Courtthereafter lacks the discretion to extend the time originally allowed.
It is important to note that the order under section 8 (b) is one madeex -parte, and that the defendants will not even be brought into the actionby issue of summons until the fees arc deposited. The proceedings,therefore, are at a stage during which only the Court and the plaintiffare concerned, and no other person. In the present case, the Court hadordered the survey fees to be deposited “ for 22nd February ”, and it wasopen to the plaintiff to deposit the fees during .office hours on that day.But before the close of office hours, the Court, presumably upon an applica-tion made in that behalf, in effect “ amended ” its original order byspecifying 29th February as the date on or before which the fees should bedeposited. In principle, the case is no different from one in which theCourt alters its original order under section 8 (b)on. the day after it is made,in order to allow a longer period for the deposit of the fees. Consideringthat the date is originally fixed in its discretion, and that only the Courtand the plaintiff are concerned at this stage of the proceedings, the altera-tion'of the time originally fixed, if that alteration is made before the' expi-ration of that time, is merely tantamount to an original fixation of thelater date. The very fact that section 10 (1) penalizes a plaintiff by
rendering abortive the expenditure incurred by him in having a plaintfiled, lends support to the view that the Legislature did not intend iiisection 8 (b) to curtail the discretion of the Court, in appropriate cases,to grant extensions of time prior to the expiration of the time originallyallowed. We do not have in this appeal to decide the question whetherthe Court lias a discretion to extend the time for the deposit of the feesafter the date originally”fixed, but the reasons which I have given in thisjudgment should not be construed to bo an answer in the negative tothat question.
The appeal is dismissed with costs.
A-ppcal dismissed.
T. S. IFernaxdo, J.—I agree.