024-NLR-NLR-V-36-ASSOCIATED-NEWSPAPERS-OF-CEYLON-,-LIMITED-v.-KADIRAGAMER.pdf
108 AKBAR J•—Associated Newspapers of Ceylon, Limited v. Kadirgamer.
1934Present: Akbar J.
ASSOCIATED NEWSPAPERS OF CEYLON, LIMITED v.
KADIRGAMER.
75—C. R. Colombo, 67,653.
Abatement of action—Failure to take necessary step—It must be a step obliga-tory in law—Regularity of order of abatement—Civil Procedure Code, s.
402.
In an action in the Court of Requests the Fiscal reported on the return-able date of summons that the defendant was not to be found at theaddress given in the summons and the Court made a minute to thefollowing effect: “ No order Six months having elapsed thereafter,the Court made order for the abatement of the action under section 402of the Civil Procedure Code.
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Held, that there was no failure on the part of the plaintiff to take anystep obligatory in law and that the order of abatement was irregular.
^^PPEAL from a judgment of the Commissioner of Requests, Colombo.
N. E. Weerasooria (with him Batuwantudawa), for plaintiff, appellant.
Rajapakse (with him D. J. R. Gunawardena), for defendant, respondent.
Cur. adv. vult.
February 8, 1934. Akbar J.—
In this action the plaintiff company sued the defendant, a law student,whose address was given as of the Y. M. C. A., Fort, Colombo, for the.balance sum of Rs. 105.45 alleged to be due for the printing of a certainpublication. On March 10, 1931, the Fiscal reported that no one by thisname was to be found at the address given; and the journal entry on thatdate has this sentence signed by the Commissioner “ Nor order ”. OnOctober 1, 1931, there is this entry, “ Six months having elapsed since thelast entry without the plaintiff having taken any steps, it is ordered thatthis action do abate On September 5, 1932, plaintiff filed an affidavitby a servant of the company that the reason why service could not beeffected was due to the information that he had received that the defend-ant had left the Island and that the defendant had now returned to theIsland, and moved to reissue summons. On March 15, 1933, the defendant
AKBAR J.—Associated Newspapers of Ceylon, Limited v. Kadirgamer. 109
filed an affidavit that he had never left the Island and that the statementin the affidavit by plaintiff’s employee was not correct and moved thatthe abatement should stand. On the question of fact the learned Judgeheld against the plaintiff, but appellant’s counsel has addressed anargument on the law and, I think, he is entitled to succeed on it.
The point of law is as follows:—The relevant words of section 402 ofthe Civil Procedure Code under which the order of abatement was madeare as follows:—“If a period exceeding …. six months in aCourt of Bequests, elapses subsequently to the date of the last entry of anorder or proceeding in the record without the plaintiff taking any step toprosecute the action where any such step is necessary, the court may passan order that the action shall abate”.
In Lorensu Appuhamy v. Paaris1 Wood-Renton J., the Chief Justiceagreeing, held as follows:—“ The appellants had within the meaningof section 402 taken every step incumbent upon them with a view to theprosecution of the action. I think that when that section uses the word“ necessary ”, it means “ rendered necessary by some positive require-ment of the law ”. We ought not to interpret it as if the section ran“ without taking any steps to prosecute the action which a prudent manwould take under the circumstances ”. In the present case the appellantshad done all that the law required of them. The duty of fixing the dayof trial rested, under section 80 of the Civil Procedure Code on the Court(see Fernando v. Curera1 and Ponampalam v. Canagasabay3).
These words were quoted with approval and followed by the SupremeCourt in Kuda Banda v. Hendrick *, and in Seyado Ibrahim v. NainaMarikar *.
I see no reason why I should not follow these authorities on the correctinterpretation of the word “ necessary ” in section 402. Was there anystep which was “ necessary ” for the plaintiff to have taken to prosecutethe action, or in other words, was there any step which the plaintiff wasbound to take by some positive requirement of the law?
On March 10, 1931, the Fiscal reported that no one bearing the defend-ant’s name was to be found at the address given, and the Court made theentry “ no order ”. Under section 60 of the Civil Procedure Code whenthe Fiscal reports his inability to serve the summons “ it shall be com-petent for the Court, on being satisfied by evidence adduced before it thatthe defendant is within the Island, to prescribe any other mode of serviceas an equivalent for personal service ”. Under section 69 summons maybe served outside the Island if application is made by the plaintiff onmotion supported by evidence. There is no provision of the law renderingit imperative that the plaintiff should proceed to have summons servedunder either section 60 or 69. If the Court, instead of making the entry“ no order ” on March 10, 1931, had definitely noticed the plaintiff tofurnish a correct address or to proceed either under section 60 or section 69and the plaintiff had failed to comply with this order and allowed sixmonths to elapse from the date of the order, one would be justified in
^ UN. L. R. 202.*2 N. L. R. 23.
* 2 N. L. R. 29.*6 Supreme Court Decisions, p. 42.
a 6 Supreme Court Decisions, p. 79.
110
AKBAR J.—Sockalingam Chettiar v. Wijeygunawardene.
holding that the plaintiff had not taken a step rendered necessary by apositive requirement of the law. But when the last entry is “ no order ”,and there is no section making it obligatory on the plaintiff to take thenext step, I cannot see how I can hold, on the authorities quoted by me,that the plaintiff had failed to take £ step which it was “ necessary ” forhim to take to prosecute his action.
In the cases quoted by me the order of abatement was set aside, as itwas the duty of the Court under section 80 of the Civil Procedure Codeto fix the date of trial even though a prudent person would, if the Courthad failed to fix the date, have moved the Court to supply the omission.
The appeal is allowed and the order of abatement is set aside and thecase is sent back to enable the plaintiff to prosecute his action by re-issuing summons. The costs incurred in the lower Court and the costs ofappeal will be costs in the cause as the point of law mentioned by me wasnot taken in the Court below or in the petition of appeal.
Appeal allowed.