033-NLR-NLR-V-42-PERERA-et-al.-v.-SILVA-et-al.pdf
SOERTSZ J.—Perera v. Silva.
143
1940Present: Soertsz J.
PERERA et al. v. SELVA et al.
25—C. R. Negombo, *3,861
Court of Requests—Judgment entered by default—Decree vacated—No appeal—Order for costs—Civil Procedure Code, s. 833a.
Where an action in the Court of Requests on a money claim wasdismissed in the absence of the plaintiff and where the Court, on theplaintiff subsequently .excusing his default vacated the decree and gavehim liberty to institute a fresh action,—
Held, that the order vacating the decree was not appealable as it wasnot a final order within the meaning of section 833a of the Civil ProcedureCode.
Held, further, that such an order can only be made subject to thepayment of defendant’s costs.
PPEAL from an order of the Commissioner of Requests, Negombo.
M.C. Abeywa.rd.ene, for defendants, appellants.
A. L. J. Croos da Brera, for plaintiffs, respondents.
Cur. adv. vult.
June 25, 1940. Soertsz J.—
The plaintiffs sued the defendants “ upon a tobacco contract and thedefendants filed answer setting up a claim in reconvention ” (para. 1 ofthe petition of appeal). There was great delay in bringing the case totrial occasioned by move and counter move by the parties. There wereseveral trial dates fixed, but one side or the other was not ready.August 31, 1939, appears to have been one~ of these trial dates. Thejournal entry of that date is as follows :—“Proctors for defendants movethat the trial of this case be postponed for some other date convenient toCourt. Proctor for the plaintiffs consents. Trial September 20, 1939But on September 20, 1933, the plaintiffs and their proctors were absent.Counsel and proctor representing the defendants were present. ' Thedefendants restricted their claim in reconvention to Rs. 300. They hadclaimed Rs. 624. The third defendant was called into the witness boxand gave evidence in repudiation of the plaintiffs’ claim and in supportof their claim in reconvention. Thereupon the Commissioner made orderHismigging the plaintiffs’ action and entering judgment against second
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SOERTSZ J.—Per era v. Silva.
plaintiff and in favour of the defendants for Rs. 300 and costs of the action.Decree bearing the date September 20, 1939, was entered in terms of thejudgment, but wrongly stating that judgment was entered in the presenceof the proctor for the plaintiffs.
On September 25, 1939, the plaintiff’s proctor filed an affidavit averringthat on the defendants application for a postponement of the trial madeon August 31, 1939, he (the plaintiffs’ proctor) obtained September 28as the trial date, not September 20, and that the absence of theplaintiffs was due to the fact that he had informed them that the trial ofthe case was due to take place on September 28. He moved that thedecree entered be vacated and the case fixed for trial.
The Commissioner by his order dated October 25, 1939, “ vacated thedecree with liberty to pi ait iff or defendant to institute a fresh action.The cost of this trial will abide the result of the fresh action”.
The appeal is from that order. Now, I must say at once that, in myopinion, no appeal lies in a case of this kind. The plaintiff’s claim as wellas the defendant’s claim in reconvention falls within the words of section833A of the Civil Procedure Code, “ any action for debt, damage ordemand ”, and that section gives a right of appeal upon a matter of law inan action of that kind only from “ a final judgment or any order havingthe effect of a final judgment. The order appealed from here is not suchan order. But, I do not think it would be right for me merely to dismissthe appeal on that ground. It seems to me that this is peculiarly a casefor the exercise of my revisionary powers. . A part of the order of theCommissioner violates the requirements of section 823 (5) of the CivilProcedure Code. The Commissioner is required by that section to directthat the plaintiffs shall pay into court the amount of the costs incurredby the defendants in the previous action before instituting the freshaction. He has not done that but has made the costs of this trial abidethe result of the fresh action. I set aside that part of the order and directthat plaintiffs shall pay all costs incurred by the defendants, beforeinstituting the fresh action.
In regard to the defendants’ claim in reconvention, they. are in theposition of plaintiffs’, so that the relavant sections are sections 823 (2)and (3) which provide for a case in which the defendants are absent.Under section 823 (2), judgment was rightly entered against the presentplaintiffs who, as I have observed, were in the position of defendant’s inregard to the claim in reconvention. The Commissioner’s order, however,indicates that he was disposed to relieve them under section 823 (3), butthe order he made seems to require the defendants in this case to institutea fresh action in respect of their claim. I would vary that part of theorder and direct that the defendants shall be free either to set up theirclaim by way of reconvention in any fresh action instituted by theplaintiffs, or institute a fresh action in respect of it.
• Mr. Abeywardene’s contention that the case of the plaintiffs does notfall within the words “ accident, misfortune or other unavoidable cause ”does not arise for consideration as his appeal is rejected -for the reasonsI have given.
I make no order for costs of the appeal.
Varied.