052-NLR-NLR-V-19-SAMARASINGHA-v.-ATCHY-et-al.pdf
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Present: De Sampayo J.
SAMARASINGKELA v. ATCHY et ah244—C. R. Gatte, 397.
Civil Procedure Code, s. 416•—Plaintiff residing oux.si.le the jurisdiction ofthe Court—Order to give security for costs of defendant—Discretion.
An order calling upon a plaintiff living outside the jurisdiction-of the Court- to give security for the payment of all costs likely to ■be incurred by the defendant should not be made ex parte.
The Court should exercise its discretion when called upon tc-make an order to give security for payment of costs.
rp HE facts are set out in the judgment.
A. St. V. Jaycwardene, for plaintiff, appellant.
September 27, 1916. De Sampayo J.
' The plaintiff, who is described in the caption of the plaint as aresident of Colombo, sued the defendants in the Court of Requestsof Galle. Summons having been served on' the defendants, theproctor for the defendants filed proxy on July 11, and moved,in terms of section 416 of the Civil Procedure Code, that theplaintiff be ordered to give security for the payment of all costs-
1916,.
1916.
.Db SampayoJ.
Samar a-singha v.Atohy
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likely to be incurred by the defendants. The plaintiff was absenton that day, and had no notice of that motion, but. the Commissionermade an order requiring the plaintiff to furnish security by July 18.On July 18 the plaintiff was absent, and as no security had beentendered, the Commissioner at once dismissed the case. I do notthink either the original order for security or the order dismissing theaction can be supported. Section 416 of the Civil Procedure Code nodoubt gives jurisdiction to- the Court, either of its own motion oron the application of a defendant, to order the plaintiff to givesecurity for costs, but it does not follow that such an order can,or should, be made behind the back of the plaintiff. Certainly, ifhe has no notice of the order to give security, it is impossible for himto comply with it by giving security within the time limited. Myopinion is that the provision of section 416 implies that the appli-cation and the order should be made in the presence of, or withnotice to, the plaintiff. Mr. A. St. V. Jayewardene, for the appellant,was good enough to refer me to the cash of Scott v. Mohamaduwhere Pereira J. incidentally expressed an opinion that the orderunder section416might be exparte, but in thevery judgment he
stated that itwasnot clear that the order in thatcase was, in fact,
ex parte, and there were other grounds for the decision of the Court.
I concurred in that decision, but I may say I did not mean therebyto assent to any opinion that under section 416 an order may bemade ex parte. However that may be, it is surely the duty of theCourt, as was pointed out in Scott v. Mohamadu/ and, as the _provision itself expressly says, to exercise a discretion in makingan order. That necessarily means that sufficient facts shouldappear whichwould assist theCourt in comingto the conclusion
that securityforcosts shouldbe given by theplaintiff. In this
particular case I do not see any special reason why the plaiutiffin a small case like this should have been ordered to give security.He sued on a lease executed at Galle with reference to certain landssituated in the same district. It appears that at the time of theinstitution of the action the plaintiff happened to reside in Colombo.The processes of the Court run throughout the Island, and there isr:o difficulty in executing a writ for the recovery of costs from theplaintiff though resident in Colombo. I think there was no sufficient,ground for the order requiring plaintiff to give security. As regardsthe dismissal of the action, there was still less reason for it, because,as I have pointed out, the plaintiff had no notice that he had togive security by July 18.
I set aside the order appealed from, and send the case back to beproceeded with in due course. As the orders in question weremade at the instance of the defendants, they should pay the. costsof the appeal.
Set aside.
t (1914) 18 N. L. R. 53.