041-NLR-NLR-V-41-SELAMMA-ACHIE-v.-PALAVASAM.pdf
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WIJEYEWARDENE J.—Setamma Achie v. Palavasam.
1939Present: Wijeyewardene and Nihill JJ.
SELAMMA ACHIE v. PALAVASAM.
80—D. C. Colombo, 51,695.
Abatement—Death of plaintiff within twelve months—Power of Court to enterorder of abatement—Civil Procedure Code, ss. 402 and 403.
A Court has no power to enter an order ol abatement under section 402of the Civil Procedure Code where the failure to prosecute the action fortwelve months after the last order was due to the death of plaintiff withinthat period.
^ PPEAL from an order of the District Judge of Colombo.
S. Nadesan, for appellant.
E. B. Wickremanayake (with him M. Tiruchelvam), for respondent.
Cur. adv. vult.
September 13, 1939. Wijeyewardene J.—
This is an appeal against an order of the District Judge refusing to setaside an order of abatement made under section 402 of the Civil ProcedureCode.
The plaintiff instituted this action on a promissory note on February 10,1933. On March 2, 1933, summons was issued returnable on March 25,1933. The case was called on the latter date when the Court found thatthe summons had not been served on the defendant and ordered the
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summons to be reissued for June 5, 1933. On June 5, 1933, the Courtmade an entry “no order ” as the plaintiff had failed to take steps tohave the summons reissued. On May 1, 1935, the District Judge madethe following order : —
“ A period exceeding twelve months having elapsed since the date ofthe last order made in this case without the plaintiff taking steps toprosecute this action it is ordered that this action do abate ".
On October 18, 1938, the present appellant filed papers and moved thatthe order of abatement be set aside and that she be allowed to continuethe action as the legal representative of the plaintiff. The affidavit filedby the appellant shows that the plaintiff died in India in March, 1933, andthat the probate of the last will of the plaintiff has been issued to theappellant.
The order of abatement appears to have been made under section 402 .and the District Judge dealt with the present application on that footing.
The appellant has contended inter alia both here and in the DistrictCourt that the order of abatement was bad as the plaintiff was not aliveduring the period of twelve months contemplated by section 402. Thelearned District Judge held against this contention and stated in thecourse of his order, “ section 402 is a provision of Statute Law and theordinary language of the legislature must be given effect to and consider-ing section 402 in the light of section 403 of which it forms a part it isperfectly clear from section 403 that section 402 also contemplated a casewhere the plaintiff is dead because it says : ‘ But the plaintiff or theperson claiming to be the legal representative of a deceased or insolventplaintiff, &c. ’ Therefore it is perfectly clear that section 403 is sufficientlywide to include a case where the plaintiff dies and the action has abated ”.
Now section 402 enables a Court to enter an order that an action shallabate if a period of twelve months elapses subsequently to the date of thelast entry of an order or proceeding in the record “ without the plaintifftaking any (necessary) steps to prosecute the action ”. This sectionseeks to penalize a plaintiff for his laches. This must necessarily implythat the plaintiff should have been alive during the period of twelvemonths in question. If the legislature intended to empower a Courtunder this section to enter an order of abatement even where the absenceof any attempt to prosecute the action for twelve months is due to thedeath of the plaintiff within that period, it appears to me that thelegislature may have chosen its language more carefully to express itsintention. The words “ without the plaintiff taking any step ” suggeststo my mind that the section regards the plaintiff and not his legal repre-sentative as the person who had to take the necessary steps. If theview of the learned District Judge is to be accepted the word “ plaintiff ”in “ without the plaintiff taking any step ” should be construed to mean“ the plaintiff or his legal representative ”. I do not feel justified ingiving such an artificial interpretation to the meaning of the word“ plaintiff Moreover section 396 of the Code' enables a Court incertain circumstances to enter an order of abateme when the plaintiffin an action dies. There was, therefore, no neces. . for the legislature
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WIJEY KWARDENE J.—Sclammo Achie v. Patavasam.
to seek to make additional provision under section 402 when the actionhas lain dormant owing to the death of the plaintiff. I do not think thatsection 403 affords much help in the consideration of this question. Itshould be noted that section 402 is one of a number of sections groupedtogether under chapter 25 of the Code dealing with the “ continuation ofactions, after alteration of a party’s status ”. Section 396 provides foran order of abatement being entered where the legal representative of adeceased plaintiff does not make an application to Court to have his nameentered of record in place of the deceased plaintiff, while section 401provides for the dismissal of an action in certain circumstances on theground of plaintiff’s insolvency and section 402 provides for the Courtmaking an order of abatement where the plaintiff fails to take a necessarystep to prosecute the action. Section 403 then enacts that “ when anaction abates or is dismissed under this chapter no action shall be broughton the same cause of action ” and further proceeds to set out the mode ofobtaining relief against such orders of dismissal or abatement. Thedraftsman had, therefore, to employ in the second paragraph of section403 appropriate language to make the section applicable to the variousearlier sections of the chapter under which orders of dismissal or abatementcould be made. This appears to me to be the explanation for the drafts-man using the words or “ the person claiming to be a legal representativeof a deceased ” in section 403. In other words the clause in section 403referred to by the District Judge has been inserted in order to enableapplications to be made by “ the plaintiff ” against an order undersection 402, by the person claiming to be the legal representative of adeceased “ plaintiff ” against an order under section 396, and by the legalrepresentative of an insolvent plaintiff against an order under section 401.It is even possible to contemplate a case where the legal representative ofa deceased plaintiff may seek relief against an order made under section402, if the plaintiff died after the expiry of twelve months mentioned inthe section.
I am therefore of opinion that the appeal should succeed on this ground.
I shall consider briefly two other points raised by the appellant’sCounsel in support of the appeal. He argues that no order of abatementcould be made under section 402 against a plaintiff dead at the time ofmaking such an order as a Court should give notice of its intention tomake such an order to all the parties interested and obviously no suchnotice could be given when the plaintiff is dead. I am unable to assentto this view as the decision of this Court in Suppramaniam v. Symonswhich lays down that an order under section 402 could be made withoutnotice to parties destroys the very foundation of the argument. I wishto add however that I think that the Judges of the original courts whodesire to act ex mero motu under this section should not ignore the viewexpressed by the learned Judges who decided Suppramaniam v. Symonsthat it was “ desirable that a Court before making an order of abatementshould notice the parties as far as it conveniently can to give them anopportunity of showing cause against the order ”.
The last point raised by the appellant’s Counsel was that as the lastorder made by the trict Judge before entering the order of abatement
■ {J9I-5) IS X. L. 11. 229.
HE ARNE S.PJ.—Senanayake v. de Croos.
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was “ No Order ” there was no failure on the part of the plaintiff to takeany necessary step to prosecute the action. He relied on the AssociatedNewspapers of Ceylon, Ltd. v. Kadirgamar and Lorensu Apphamy v.Paaris I think this argument is based on a misconception of the natureof the order made by the District Judge on June 5, 1933. On March 25,1933, the District Judge had ordered summons to reissue and when onJune 5, 1933, he found that the plaintiff had taken no steps to carry outthat order, the Judge wrote “ No Order ” meaning thereby that he wasnot making any further order and that the order of March 25, 1933,should be acted upon. There was therefore the order of March 25, 1933,which the plaintiff had to carry out and if the plaintiff failed to carry outsuch an order within a period of twelve months the District Judge couldin an appropriate case order the action to abate under section 402. Thold that the appellant’s third contention fails.
In view of the decision I have reached with regard to the first contentionraised by the appellant, I would allow the appeal with costs and directed theorder of abatement to be set aside. The appellant will also be entitled t*the costs of the inquiry in the District Court.
Nihill J.—I agree.
Appeal allowed.