068-NLR-NLR-V-19-JUAN-APPU-v.-PELO-APPU-et-al.pdf
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1916.
Present : Wood Benton C.J. and De Sampayo J.JUAN APPU v. PELO APPU et al.
372—D. C. Negombo, 11,183.
Partition action—Costs to be borne pro rata—Necessity for speedy legisla-tion on the subject of costs in partition actions.
In a partition action all the costs—other than those involved incontentions between particular parties—should ordinarily be borneby the parties proraid. But if the circumstances are such that
it is reasonable to order each party, to bear his own costs, or tomake any other equitable order, it iswithin the power of the
Court to do so, instead of ordering costs of partition pro raid.
Observations as to the necessity for legislation on the subject ofcosts in partition cases.
A
PPEAL from a judgment of the District Judge of Negombo(M. S. Shresta, Esq.). The facts are set out in the judgment.
J. C. Pereira (with him Balasingham), for plaintiff, appellant.—The settled practice of the Courts is to order that costs inpartition cases should be borne pro rata by the co-owners—exceptas to contentions between particular parties. See Martin v.Lourenez.1 The law in England at the present time is to the sameeffect.
Counsel referred to Camion v. Johnson;i 2 Agar v. Fairfax-.2
E. G. P. JayatiUehe, for added defendants, respondents, associatedhimself with the appellants.
Cur. adv. vulf.
October 23, 1916. Wood Renton C.J.—
This appeal raises an important question of practice under thePartition Ordinance, I860,4 viz., whether in an action under that .,enactment all the costs—other than those involved in contentionsbetween particular parties—should be borne by the co-ownerspro raid, or whether it is open to the Court .to leave each side .to payits own costs of action, distributing pro raid only the costs of thesurvey plan and the commission. The learned District Judge hasadopted the latter alternative, and has given his reasons for doingso in an elaborate memorandum appended to his formal decision inthe case. The ruling of the District Judge on the point underconsideration does not turn in any way upon the special circum-stances with which he had here to deal. He holds in effect that the
i (1900) 1 Br. 225.
* (1870) 11 Eq. 90.
(1810) 17 Ves. 533.
No. 10 of 1863.
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omission from the Partition Ordinance, 1863,1 of any reference tocosts, save the costs of the survey of partition, which, by virtue ofsection 10, may be distributed pro raid among the co-owners, showsthat the intention of the Legislature was that this mode of distribu-ting costs should go no further, and that for the rest each party shouldpay his own expenditure incurred in a litigation entered uponentirely for his own convenience. If the matter were res Integra,there would be much to be said for this position. The PartitionOrdinance, 1863,1 enacts its own procedure. It does not providethat the rules governing for the time being the conduct of ordinarylitigation are to be applicable to partition suits, which, as we allknow, have special features of their own, e.g., each party is a plaintiffin the sense that he has to establish his own title, and partitionactions cannot be referred to arbitration. If we had to define thepractice under the Ordinance for the first time, it would not beunreasonable to follow the old English rule, before section 10 of thePartition Act, 1868,i 2 conferred on the Courts jurisdiction over thecosts in partition suits, and to provide (see Agar v. Fairfax3) that nocosts should be given prior to the hearing, and that the costs ofissuing, executing, and confirmiug the commission should be borneby the parties in proportion to the value of their respective interests.But the procedure in partition actions has beein assimilated inpractice to a great extent to our ordinary civil procedure, and thecase of Martin v. Lourensz,'1 a decision of two Judges, shows beyondall doubt that a cursus curia has risen in regard to the costs inpartition actions which we have no right to ignore, namely, that,apart from incidental contentions, the costs of suit should be borneby the co-owners pro rata. I feel constrained, although withreluctance, to set aside- the order from which this appeal is brought,and to direct that the costs of all the parties, including those of therespondents, on whose behalf a statement of objections was filed,should be borne pro rata. I would make no order as to the costsof this appeal, which has been necessitated by the act of the Courtitself.
I desire, however, to express the opinion that the question ofthe costs in partition proceedings deserves the serious and earlyattention of the Legislature. In the course of the past few yearsI have inspected the records of practically every Court of originalcivil jurisdiction in the Colony. I have no doubt but that thereare numerous partition cases in which -the costs of action and ofthe appeals, from which partition suits are seldom exempt, havenot only far exceeded the value of the common land, but could notbe met by the parties without resort being had to other lands aswell. It is not for this Court to prescribe the mode in which thisevil should be remedied, whether by the adoption of the old English
i No. 10 of 1863.* (1810) 17 Ves. 533.
2- 31 and 32 Viet., c. 40.* (1900) 1 Bt. 225.
1916.
Wood
Renton C.J.
Juan Appuv. Pelo Appu
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1016.ruie that there should be no costs prior to the hearing, or by- the
Wooi>Courts of first instance being invested with ample powers to deal
Bbmtoh C.J.withall questions of costs according totheir discretion, orby a
Jvan Appufixedscale of costs being prescribed. Butthat a remedy is urgently
». JPelo Appu needed is beyond all dispute. I have recently called attention inanother case to the abuses that arise from the facility, at presentenjoyed by any cantankerous litigant, of intervening in a partitionsuit in its last stages and thereby delaying and enhancing the costli-ness of these proceedings. But the whole question of the costs inpartition actions is worthy of, and indeed requires, immediateconsideration.
De Sampayo J.—
The uniform practice in our Courts, ofwhich I can myselfspeak
frommy experience at the Bar, has beento regard “ costs ofparti-
tion ” as meaning the costs of the action of all the parties other thanthose of contentious matters, and, of course, other than the chargesof the Commissioner, for which statutory provision is made in section10 of the Partition Ordinance. The practice, however mischievous,is too well established for us to interfere with it now. It appearslikewise to be recognized by the Legislature, which, by section 6 ofthe Ordinance No. 10 of 1897, provides that “ all bills of costs, whe-ther between party and party or between proctor and client, ” shallbe taxed according to the rates therein mentioned. I therefore agreethat the order of the District Judge in this case, and in some of theother cases which have come before us at the same time, cannot besupported on the specific ground stated by him. But although, ifrhe Court allows costs of partition to be paid pro rata, the ordershould be interpreted in the above sense, I wish to make it clearthat it is not obligatory on the Court to make such an order inevery case. If the circumstances are such that it is reasonable toorder each party to bear his ovjn costs, or to make any other equitableorder, it is within the power of the Court, and it is surely right, todo so, instead of ordering costs of partition to be pro rata. In thisway the absurdity of separate appearances and separate answers,when they are unnecessary, to which the District Judge refers, mayalso be met. The appeal in this case only succeeds because theDistrict Judge practically proceeded upon his view of the law inthis matter, and not upon the particular circumstances of the case.It is otherwise in 361—D. C. Negombo, 11,272, the appeal in which,therefore, should be dismissed. I, however, think it fair to addthat the judgment of the District Judge of Negombo is a laudableattempt to deal with an existing evil. The Partition Ordinance isintended to provide a summary means of putting an end to commonownership, of land with all its attendant inconveniences, and thisobject has been further attempted to be advanced by a subsequentOrdinance, which exempts partition proceedings from stamp duty.
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But in numerous cases all this beneficial legislation has been wholly1M6.
defeated by the incubus of costs. This mischief has been aggravated pB at„1TOby improper taxation of bills of costs without sufficient regard•
being paid by the taxing officer to the actual costs of partition as ,/t«m Appudistinguished from costs of contention. In this connection I should *’• Appulike ito say that a practice has grown up in some of our Courts,when a sale is ordered, to appoint an auctioneer as well a as Com-missioner, and to allow a commission to both. This should beavoided equally with the practice of appointing Court officersas Commissioners, especially where they are taxing officers also. Thefollowing remarks of the District Judge are by -no means withoutjustification. After alluding to the temptation to increase costs, hesays, " As a matter of fact, this has been the case in this Court, withthe result that bills of costs have been swelled by absolutely needlesscharges, such as retention sometimes of advocates, even when thereis no contest; and there have been cases when, in execution forpro rata- costs against a co-owner, not only the share allotted to himin the partition case, but other landed property of his as well hasbeen sold off. There have been cases where at the close of thepartition proceedings no land or any part of its value has been leftto the co-owners, the proceeds of its sale having gone entirely to paythe costs of the action. ” I have myself had records before meshowing that these results are not uncommon. In a petition re-cently presented to me in chambers in a case of that kind, the peti-tioner tersely, but quite justly, complains that the partition caseinstituted by him and some of his co-owners " seems to be a pathopened by themselves for their own ruination. ” In my opinion thismatter of costs in partition cases is wholly discreditable to theadministration of justice, and I entirely associate myself with theobservations of the Chief Justice as to the necessity of speedylegislation to remedy this intolerable evil.
I agree that the appeal should be allowed, but without costs.
Appeal allowed.