111-NLR-NLR-V-66-BANK-OF-CEYLON-Appellant-and-LIVERPOOL-MARINE-GENERAL-INSURANCE-CO.-LTD.-.pdf
472
Bank of Ceylon v. Liverpool Marine and General Insurance Co., Ltd.
1962 Present: H. N. G. Fernando, J., and L. B. de Silva, J.
BANK OF CEYLON, Appellant, and LIVERPOOL MARINE& GENERAL INSURANCE CO., LTD., Respondent
•S. C. 39/60—0. C. Colombo, 32412jM
Abatement of action—Scope of sa. 402 and 403 of Civil Procedure Code—Remedy ofplaintiff.
When a case is laid by with a view to a settlement, an order of abatementunder section 402 of the Civil Procedure Code cannot be made by Court, exmero in^t.u, without notice to the plaintiff. The validity of such an order canbe questioned by the plaintiff in appropriate proceedings in the same case atany time, without resort to the provisions of Chapter LX of the Civil .ProcedureCode relating to appeals notwithstanding lapse of time. 1
1 (1962) 63 N. L. R. at 500,
L. B. DE SILVA, J.—Bank of Ceylon v. Liverpool Marine and 473
General Insurance Co., Ltd.
_^PPEAL from a judgment of the District Court, Colombo.
•S. Nnd^san, Q.C., with <S. J. Kadirgamar and K. A Choksy, for Plaintiff-Appellant.
H. W. Jayewardene, Q.C., with V. J. Martyn, for Defendant-Respondent.
Cur. adv. vult.
December 6, 1962. L. B. de Silva, J.—
On a joint motion filed by the parties that this case be taken off thetrial roll as—
(а)The case was very difficult and needed a great deal of preparationfor trial, and
(б)Negotiations for a settlement were then in progress, thelearned District Judge on 7th October, 1955 allowed the Motion. Thecase was called on 28th November, 1955 and was laid by.
On 7th December 1956, the Court, acting ex mero motv, abated theacllon as a period exceeding twelve months had elapsed since the lastOrder without the plaintiff taking any steps to prosecute this action.The plaintiff had no notice of the Order contemplated or taken by theCourt at that time.
Later the plaintiff moved to revoke the proxy granted to his proctorand on 4th January 1958 the Court made Order to take steps to vacatethe Order of Abatement. On 29th September 1959, the plaintiff filedpapers to set aside the Order of Abatement.
That application was refused by the learned District Judge and theplaintiff has appealed to this Court. The main question for decisionon this Appeal was whether the learned Judge was empowered undersection 402 of the Civil Procedure Code, to enter an Order of Abatementin this case.
It was argued before this Court that the Court was empowered toenter such an Order under section 402 only in cases where the plaintiffhad failed to take anj step to prosecute the action for the prescribedperiod where any such step was necessary to he taken by him.
The Counsel for the Appellant relied on the judgment of WoodRenton, J. in Lorensn Appuhamy v. Paaris.1 Referring to section 402,Wood Renton, J. stated, “ 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 prosecut- the action which a prudentman would take under the circumstances’. ”
1 (1908) 11 N.L. M. 202.
474
L,. B. DE SELVA, J.—Bank of Ceylon v. Liverpool Marine and
General Insurance Go., Lid.
Once a case is laid by with a view tc a settlement, there is no require-ment under the Civil Procedure Code or in terms of any Order of Court,on the plaintiff to take any steps to prosecute the action.
The Counsel for the Respondent relies on the later decision of WoodRenton, C.J. in Suppramaniam v. Symons1. In that case on theapplication of the parties, the case was struck off the Roll, with a viewto a settlement. As a period of one year had elapsed since that Orderwithout the plaintiff taking steps to prosecute the action, the learnedDistrict Judge entered an Order of Abatement.
Wood Renton, C.J. cited the case of Marihar v. Bawa Lebbe a, andheld that it was the duty of the plaintiff to move that the action berestored to the Roll and on such a motion, it is within the discretionof the District Judge to make an Order for its abatement. His earlier*decision in Lorensu Appuhamy v. Paaris {supra) had not been brought tohis notice nor had he considered the provisions of section 402 of theCivil Procedure Code.
As a result of these two decisions, conflicting views had been adoptedon the question whether an Order of Abatement may be validly enteredafter a case had been laid by on the ground that the plaintiff had nottaken steps to prosecute the action within the prescribed timo. Thisquestion was considered very carefully in a recent judgment of thisCourt by Dr, Thambiah, J. in Samsudeen v. Eagle Star Insurance Co.,Ltd..3, with reference to all the relevant decisions.
In that case, T. S. Hernando, 0. and Thambiah, J. upheld the viewtaken in Eorensu Appuhamy v. Paaris {supra). We see no reason to departfrom the view taken in that case. We hold that the Order of Abatementwas wrongly entered by the District Judge in this case as there was nostep that was necessary to prosecute the action, which the plaintiffwas required to take.
It was further argued on behalf of the respondent that once an Orderof Abatement was entered under section 402, the only course open to theplaintiff was to make an application under section 403 to set aside theOrder within reasonable time. The appellant contended that he wasentitled to have the Order of Abatement set aside apart from theprovisions of section 403, on the ground that it was not lawfully enteredunder section 402.
The Order of Abatement was entered without any notice to or knowledgeof the plaintiff. Though the Court has acted ex mero motu, it issimilar to any ex parte Order made by Court as the plaintiff had noopportunity to show cause against it.
We, therefore, hold that it was open to the plaintiff to question thevalidity of the Order in appropriate proceedings in the same case at any
1 (1915) 18 N. L. R. 229.* (1892) 1 S. C. R. 240.
* (1962) 64 N. L. R. 372.
ABEYESUNDERE, J.—Karonchihamy v. Registrar of Births
475
time and that he is not bound to appeal from the Order of Abatementunder the provisions of Chapter LX of the Civil Procedure Code forAppeals notwithstanding lapse of time.
We set aside the Order dismissing the plaintiff’s application with costsand allow this Appeal. We set aside the Order of Abatement. TheAppellant is entitled to the costs of this appeal.The costs of the
plaintiff’s application in the District Court will abide the result of the case.
H. N. G. Fernando, J.—I agree.
Appeal allowed.