014-NLR-NLR-V-02-FERNANDO-v.-CURERA.pdf
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FERNANDO v. CURERA.D. C„ Ghilaw, 743.
1896.
February 2.
Postponement of cases—General postponement irregular—Civil Procedure
Code s. 82.
An 9rder striking a case off the roll until the decision of aconnected case is an order of general postponements and one thatshould not be made. The hearing of a oase may, under seotion 82of the Civil Procedure Code, be postponed for a fixed day, andnot generally.
It is the duty of the Court to fix a day for the hearing of a oase,and not to await an application therefor by the plaintiff.
rT^HE facts of the case appear in the judgment of-L C.J.
Bonsbb,
Domhorst, for appellant.
2nd February, 1896. Bonsbb, C.J.—
This is an appeal from an order of the Distriot Court of Chilawsetting aside an order which had been made under seotion 402 ofthe Civil Procedure Code, that the suit should abate.
It appears that bn the 14th November, 1896, when, the casewas ready for hearing, the parties desired that the case shouldnot oome on until after the deoision of this Court had been givenin another case, which was connected in some way or other withthis case; and thereupon the Court made an order that the caseshould be “ struck off the trial roll until the connected oase No. 731“ is decided in appeal.”
That was an order of general postponement whioh should nothave been made. Section 82 of the Civil Prooeidure Code providesfor the postponement of the hearing of oases, but they must bepostponed to a fixed day, and not generally.
However, the order was made, and nothing further was done inthe suit until November, 1895, when the proctor for the defendantmoved, under section 402 of the Civil Procedure Code, for anorder that the aotion should abate, on the ground that a periodexceeding twelve months had elapsed subsequently to the dateof the last order or proceeding on the record without the plaintifftaking any step in the oase. Thereupon the Court made thisorder now appealed against, and it seems to me that the orderwas made wrongly. In the first place, it was made ex parte,without notice to plaintiff; and secondly, it does not appear thatthe plaintiff had failed to take any step to prosecute the aotion,whioh it was necessary for him to take. The Court seems tohave assumed that it was the duty of the plaintiff to make an8-
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1805., application to fix a day for the hearing of the action ; but it was
February 2. the duty of the Court to fix a day for the hearing. If the originalBonseb, C.J. or<ier had been in proper form there would have been no difficulty,because then the case would have been fixed for a certain day, andwould have come up in its turn. If, however, at that time thedecision of the Appeal Court had not been given, the case could havebeen postponed to a further day, and thus the Court would neverhave lost seisin of the case. When the plaintiff got notice of theorder abating the action, he moved, upon notice to thei;defendant,to set it aside, and in my opinion the District Judge rightly setit aside. Mr. Dornhorst, who appeared for the defendant, appellant,frankly admitted that he could not contend that the order waswrong. He limited his appeal to a question of costs, and we thinkthat under the circumstances no costs should be given of thatmotion; and the order will accordingly be varied by making thecosts of that motion costs in the cause.
Lawuie, J.—I agree.
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