062-NLR-NLR-V-64-P.-SAMSUDEEN-Appellant-and-EAGLE-STAR-INSURANCE-CO.-LTD.-Respondent.pdf
372
Samsudcen v. Eagle Star Insurance Co., Ltd.
1962Present: T. S. Fernando, J., and Tambiah, J.
P.SAMSUDEEN, Appellant, and EAGLE STAR INSURANCE CO.
LTD., Respondent
S. C. 185—D. C. Colombo, 27306jMAbatement of action—Circumstances under which Court can make order abating an
action—Effect of an order “ laying by ” a case—Civil Procedure Code, ss. 80,82, S3, 402.
An. order of abatement of an action can be made under section '402 of theCivil Procedure Code only if the plaintiff has failed to take a step rendorednecessary by the law.
Where an order “ laying by ” a case has boon made by a Court, the dutyof rostoring the case to tho trial roll rests on tho Court and not on tho parties.
Tho Supremo Court, upon an appoal by the plaintiff from an ordor of thoDistrict Court dismissing his action, sent the case back for a trial de novo. Trialwas accordingly fixed by the District Judge for tho 25th September, 1956.On that date tho Court made order that tho caso should bo laid by as certainmatorial witnesses of tho plaintiff could not be contacted. On tho 29th November1957, upon plaintiff’s application, tho case was laid by for a further period ofsix months to enable plaintiff to have certain evidence taken on commissionin Egypt.
On the 15th December 1958 the defondant moved that, inasmuch as a periodexceeding twelve months had elapsed subsequently to the date of the last order,an order of abatement should bo entered in respect of tho action. An inquirywas held, and the Court, purporting to act under section 402 of the Civil Proce-dure Code, dolivored ordor on tho 17th March 1959 abating tho action.
Held, that the order of the Court laying by the case cast no duty on theplaintiff to restore it to the roll and, therforo, the order of abatement was wronglymade. Tho duty of fixing the day of trial rested on the Court. Unless theplaintiff had failed to take a stoprondered necessary by the law to prosecutehis action, an order of abatement could not bo made under section 402 of theCivil Procedure Code.
TAMBIAH, J.—Samsudeen v. Eagle Star Insurance Co., Ltd.
373
-A.PPEAL. from an order of the District Court, Colombo.
JRanganathan, with K. Viknarajah and Miss S. Wicbramasinghe, forthe plaintiff-appellant.
H. W. Jayewardene, Q.G., with V. J. Martyn and D. S. Wijetuardene,for the defendant-respondent.
Cur. adv. wit.
January 23, 1962. Tambiah, J.—
The plaintiff-appellant sued the defendant-respondent, an insurancecompany, for the recovery of the sum of Rs. 30,046/49 cts. alleged tobe due on a policy of marine insurance marked “A ” and annexed tothe plaint, and insuring a cargo of 80 tons of potatoes shipped by oneMohamed Taha Abou El Kheir from Port Said to Colombo in the“ S. S. Malancha ” but discharged at Aden.
The cause of action pleaded in the plaint is that the plaintiff, as theassignee of the bill of lading relating to the cargo and of the policy ofinsurance covering the same, has suffered damages in the sum claimed byreason of the discharge of the cargo at Aden and that the defendant-company had repudiated liability.
The defendant-company admitted the issue of the said policy but tookup various defences disclaiming liability. Although no specific issuewas raised on the question of assignment, the learned District Judgedismissed the plaintiff’s action holding that assignment had not beenproved. The plaintiff appealed to this Court from the order of the learnedDistrict Judge and this Court, by order dated 26th April 1956, set asidethe order of the learned District Judge and sent the case back for a trialde novo.
The record of the case, together with the judgment of the SupremeCourt, was returned to the learned District Judge and the trial was fixedby him for the 25th of September 1956. On the 20tb of September 1956,the plaintiff’s proctor moved for a postponement of the trial fixed for the25th of September 1956 as certain material witnesses in the casecould not be contacted. The case was then mentioned on the 21st ofSeptember 1956 on which date both the plaintiff and the defendant wererepresented bv counsel and, subject to the payment of costs, the Courtmade order that the case be taken off the trial roll. On the 25th. of .September 1956, the case was called again and on this date too bothparties were represented by counsel. The Court made order that theplaintiff should pay the defendant Rs. 315 as costs and that the caseshould be laid by.
On the 29th of November 1957, the plaintiff stated in his motion that,as he had not been able to obtain a definite reply from his correspondentsin Egypt in order to make arrangements to take preliminary steps towards
374
TAMBIAH, J.—Samsudeen v. Eagle Star Insurance Go., Ltd.
applying for a commission to that country to examine witnesses witha view of furnishing such evidence at the trial and as the caso was dueto be fixed for trial in terms of the order of the Supreme Court, the trialdate should hot.be fixed and that the case should be laid by for o furthersix months to enable him to take steps to apply for the issue ot acommission. The learned District Judge,by order dated 29th of November1957, allowed his application.
On the 15th of December 1958, the defendant moved, under section 402of the Civil Procedure Code (Cap. 101), that an order of abatement shouldbe'entered in respect of the plaintiff’s action:Notice was issued by the
Court to the plaintiff’s proctor on the 20th of December 1958. On the13th of March 1959, an inquiry was held into this matter by the learnedDistrict Judge and he delivered order on the 17th of March 1959 abatingthe action. The plaintiff has appealed from this order.
The learned District Judge purported to act under section 402 of theCivil Procedure Code which enacts as follows :
“ If a period exceeding twelve months in the case of a DistrictCourt or six months in a Court of Requests, elapses subsequentlyto the date of the last entry of an order or proceeding in the recordwithout the plaintiff taking any step to prosecute the action where any■ such step i3 necessary, the Court may pass an order that the actionshall abate.”
The counsel for the appellant contended that the order made by thelearned District Judge, laying by the case, cast no duty on the plaintiffto restore it to the roll and, therefore, the order of abatement was wronglymade. The counsel for the respondent, however, submitted that therewas a duty cast upon the plaintiff to restore the case to the trial rolland, as the plaintiff has failed to perform his duty for a period of 12months from the last order of the learned District Judge, the order ofabatement was correctly made under section 402 of the Civil ProcedureCode.
Section 402 of the Civil Procedure Code has been the subject of inter-pretation in a long series of cases and it is relevant at this stage to considerthe more important case decisions on this matter in order to determine-whether a duty is cast on the plaintiff to restore the case to the trialroll when a case was laid by.
In Fernando v. Gurera1 the District Court made order strikingoff the case from the trial roll until another connected case wasdecided' in appeal. The District Judge, purporting to act undersection 402 of the Civil Procedure Code, made an order of abatementon the ground that a period exceeding twelve months had elapsed subse-quently to the date of the last order or proceeding on the record withoutthe plaintiff taking any step in the case. The plaintiff appealed from theorder of,the District Judge and the Supreme Court set aside the order.
1 (1806) 2 N. L. R. 29.
TAMBIAH, J.—Samsudeen, v. Eagle Star Insurance Co., Ltd.
375
Bonser C.J., observed (at pages 29 and 30): “ The Court seems to haveassumed that it was the duty of the plaintiff to make an applicationto fix a day for the hearing of the action; but it was the duty of theCourt to fix a day for the hearing
In Lorensu- Appuhamy v. Paaris 1 the defendants had filed answerin a partition action but the Court did not fix any date of trialand the plaintiffs themselves did not take any further steps inthe action for over a year. The District Judge ordered that the actionshould abate and, four years later, the plaintiffs moved that the orderof abatement be vacated and this application was refused. The SupremeCourt, on appeal, reversed the order of the District Judge and held thatthe order of abatement, was wrongly made as the plaintiffs had not failedto take any necessary step in the action. Wood Renton J. (with whomHutchinson, C.J., agreed) stated (at page 204) : "The appellants hadwithin the meaning of section 402 taken every step incumbent uponthem with a view to the prosecution of the action. I think that whenthat section uses the word ‘ necessary ’, it means * rendered necessary bysome positive requirement of the law We ought not to interpret it asif the section ran * without taking any steps to prosecute the action whicha prudent man would take under the circumstances In the presentcase, the appellants had done all that the law required of them. Theduly of fixing the day of trial rested, under section 80 of the Civil ProcedureCode, on the Court
The ruling in the case of Lo/ensu Appuhamy v. Paaris (supra) has beenfollowed in a series of cases. In Kuda Banda, v. Hendrick2 theplaintiff’s proctor stated that his client was in jail and movedthat the case might be postponed to the bottom of the roll, butthe District Judge ordered that it be struck off the roll. Subsequently,the District Judge ordered the action to abate ex mero motu on theground that no steps had been taken for more than a year. The SupremeCourt held that the order of abatement was ultra vires, and that it shouldbe vacated inasmuch as there was no step which was necessary for theplaintiff to take which he had not taken. It was held further that theduty of fixing the case for retrial rested on the Court. Lascelles C.J.,(with whom Middleton, J., agreed) cited, with approval, the dictum ofWood Renton, C.J., in Lorensu Appuhamy v. Paaris (supra) quotedabove.
In Seyado Ibrahim v. Naina Marikar3 an action was institutedagainst the defendant as the executor of the estate of the deceased.Later an application was made for the case to stand over fora certain date till the defendant had obtained probate. On thatdate, the parties were absent and the defendant had not still obtainedprobate. The District Judge, purporting to act under section 402of the Civil Procedure Code, made an order of abatement. On appeal,the Supreme Court, following Lorensu Appuhamy v. Paaris (supra),
1 {1908) 11 N. L. B. 202.8 (1911) 6 S. C. D. 42.
8 (1912) 6 S. C. D. p. 79.
376.
TAMBIAH, J.—Samsudeen v. Eagle, Star Insurance CoLtd. •
held that the order of abatement was wrongl> made aS the plaintiff hadnot failed to take any necessary step in the action and that the said ordershould be vacated.
In Suhuda v. Sovena1 the case, which was instituted in 1906, haddragged its weary length for many years and although the recordshowed that the true cause of delay was the failure of the defendant to paythe fees of the Commissioner and that there was no fault on the partof the'plaintiff, nevertheless the District Judge made an order of abate-ment under section 402 of the Civil Procedure Code. The plaintiffappealed and the Supreme Court followed the construction placed onsection 402 of the Civil Procedure Code in Lorensu Appuhamy v. Paaris(supra) and held that the order of abatement could be made under section402 only when the plaintiff has failed to take some step rendered neces-sary by some positive requirement of the law.
In Setua v. Cassim Lebbe 2 the defendant, in a partition action, putthe plaintiff’s title to the share claimed by him in issue and the Court, ofconsent, struck the case off the trial roll till the plaintiff vindicated histitle in a separate action. Later, the District Judge made order ofabatement on the ground that the plaintiff had not taken any stepssix months from the last order of the Commissioner of Requests. ■ On.appeal, it was held that the plaintiff’s failure to bring a separate actionto vindicate his title could not be said to be failure to take steps for thepurpose of prosecuting the action within the meaning of section 402 of theCivil Procedure Code. De Sampayo J. observed (at page 29) : " In suchcircumstances, it seems to me that it is for th* Court, if it thought fit, torestore the case to the trial roll, and if it be found that the question of titlecould not be gone into in this partition action but that a separate actionwas necessary, it might be within the power of the Court to dispose ofthis matter on that ground …. ”.
.In Associated Newspapers Limited v. Kadirgamar 3, in an action institutedin the Court of Requests, the Fiscal reported on the returnable date ofsummons that the defendant war not to be found at the address given inthe summons and the Court made the minute “ No Order ”. Six monthshaving elapsed thereafter, the Court made order ior the abatementof the action under section 402 of the Civil Procedure Code. The plaintiffappealed and Akbar J. quoted with approval the dictum of Wood-Renton J., in Lorensu Appuhamy v. Paaris (supra) quoted above, and heldthat there was no failure on the Dart of the plaintiff to take any stepsobligatory in law and that the order of abatement was irregular.
In Tilleharatne v. Keerthiratne 4 an order was made by the Court ofRequests suspending further proceedings till a decision in a pending appealwas reached. The Court failed to fD a. date for further hearing and,purporting to act under section 402 of the Civil Procedure Code, theCourt later made an order of abatement on the ground that the plaintiff
1 (1913) 1 Sal. Notes 87.3 (1934) 36 N. L. R. 108.
' (1919) 7 C. W. R. 28.4 (1935) U C. L. Rec. 412.
TAMBIAH, J.-—Samsudeen v. Eagle Star Insurance Co., Ltd.
377
had not taken any steps for a period of six months from the last order ofthe Commissioner of Requests. On appeal, it was held that, in the absenceof any failure on the part of the plaintiff or the defendant totake a step required by law, an order of abatement could not have beenmade. Garvin J., followed the ruling in Fernando v. Curera (supra).
In SeUamma Achie v. Palavasam1 a Bench of two judges held that theCourt had no power to enter an order of abatement under section 402of the Civil Procedure Code where the failure to prosecute the action fortwelve months, after the last order, was due to the death of the plaintiffwithin that period.
In Ghitlambaram Chettiar v. Fernando 2 one P, the administrator of theestate of a Chettiar, filed an action for the recovery of a sum of money dueon a promissory note. After the action was fixed for trial, letters ofadministration issued to P were recalled and fresh letters were issued toS. The case was taken off the trial roll for substitution of the newadministrator. P took no further interest in the action and S took nosteps to get himself substituted. The judge made order abating theaction. Thereafter, the appellant, one of the heirs of the deceasedChettiar, moved in the testamentary case to have letters issued to Srecalled and to have himself appointed administrator, and his applicationwas allowed. He then moved to have the order of abatement set aside.His appliction was disallowed on the ground of delay. On appeal,it was held, inter alia, that P was under no legal duty to get S substitutedas plaintiff in his place and that this step, which he undertook, was notone necessary for him to take in order to prosecute the action undersection 402 of the Civil Procedure Code ; consequently, the order ofabatement was void and of no effect. Jayetileke J., after citing some ofthe cases reviewed above, quoted with approval the dictum of WoodRenton C.J., in Lorensu Appuhamy v. Paaris (supra) cited above.
The long line of case decisions reviewed above favours the view thatan order of abatement could be made under section 402 of the CivilProcedure Code only if the plaintiff has failed to take a step renderednecessary by the law.
The counsel for the respondent contended that section 80 of the CivilProcedure Code has no application to this case as the case was sent backfor a trial de novo. But, in view of sections 82 and 83 of the Civil Pro-cedure Code, after the Court has fixed the date for trial, it was the duty ofthe Court to postpone it for another date (vide sections 82 and 83. of theCivil Procedure Code), and it cannot be said that there is a duty cast onthe plaintiff to restore the case to the trial roll.
The counsel for the respondent also contended that in view of certainrulings of this Court, a duty was cast on the plaintiff to restore the caseto the trial roll. The cases which he cited may now be examined. In
1 (1930) 41 N. L. R. 186.
8 (1947) 49 N. L. R. 49.
378
TAMBIAH, J.—Samsudccn v. Eagle Star Insurance, Co., Ltd.
Marikar v. Bawa Lebbe 1 the case was struck off the roll on the 17th ofJuly 1890 as no steps had been taken in the case for twelve months. Onthe 19th of January 1892, the plaintiff filed petition and affidavit prayingthat he be allowed to continue the action. Order Nisi was allowed and acopy of the said order was served on the respondent. On the returnabledate, the respondents were absent but the Court disallowed the petitionon the ground that the cause alleged for not continuing the action wasunsatisfactory. On appeal, Withers J., stated (at page 241) : “ Theorder of the 17th July 1890, was no doubt irregular for it was not inaccordance with the provisions of section 402 of the Civil Procedure Code,still the order operated in fact till the case was restored to the roll. No doubtTon a proper application, the District Judge would direct the case to be res-tored to the roll, but then and there it would be within his discretion topass an order that this action shall abate and no doubt he made such anorder on the present materials ”. The ratio decidendi in this case, as weunderstand it, is that an order of abatement was operative till it was setaside and the plaintiff could not ask to continue an action, which hasalready abated, without his taking proper steps to set aside the order ofabatement. This case, therefore, is no authority for the proposition thatif a case has been laid by, then a duty is cast on the plaintiff to restore thecase to the trial roll.
However, in Suppramaniam v. Symons 2, a'different interpretation wasgiven to the rule laid down in Marikar v. Bawa Lebbe (supra). An actionwas filed in 1889 and, on the 14th of August 1893, an order was madewith the knowledge and consent of all parties striking off the case from theroll with a view of settlement. An order of abatement was made on the5th of November 1896. After this order, nothing was done till 13thMarch 1911, when an application was made to have the order of abate-ment set aside. The District Judge held that although the order ofabatement ought not to have been made, nevertheless as the plaintiffshad. not complied with the conditions prescribed in section 403 of theCivil Procedure Code under which an order of abatement could be setaside, and as they had not made their application within reasonable time,the order of abatement should not be interfered with. On appeal, WoodRenton C.J. (with whom Ennis J., agreed) dismissed the appeal, butrested his decision upon different grounds. He stated (at page 230) :“ In the case of at least one of the previous postponements, the plaintiffs’proctor himself moved the Court that the action, which had been struckoff the roll’ in the hope of settlement being reached, should be restoredto it, and the case of 'Marikar v. Bawa Lebbe. (supra), which is adecision of two judges, shows that in such circumstances it is the dutyof the plaintiff to move that the action should be restored to the roll andthat on such a motion it is within the discretion of the District Judge tomake an order for its abatement. If such a motion had been made in thepresent case, the District Judge would, in my opinion, have been amplyjustified on the materials disclosed by the record in making such an order **.
1 (1892) 1 S. O. R. 240.
2 (1915) 18 N. L. R. 229.
TAMBIAH, J.—Samsudeen v. Eagle Star Insurance Co., Ltd.379
On a careful analysis, however, of the ratio decidendi in Marihkar v. BawaLebbe (supra), we are inclined to think that it has been assumed thatthis case has a wider application than its actual dicision warrants.
In Wilson v. Sinniah1, the action was instituted on the 28th of January1931 and the case was taken off the trial roll on the 17th of July 1934.On the 25th of April 1936, the Court ordered that the action should abate.On appeal, Poyser J., following the ruling in Suppramaniam v. Symons(supra), held that the order of abatement was correctly made, ile said(at page 10): “ It has been held in the case of Suppramaniam v. Symons(supra) that where the plaintiff’s proctor had moved the Court that theaction should be struck off the trial roll in the hope of settlement beingreached, it was his duty to move that the action should be restored to theroll ”. A relevant case, Tillekeratne v. Keerthiratne (supra), was referredto by Poyser J., but does not appear to have received consideration.
It seems to us that the decisions in Suppramaniam v. Symons (supra)and Wilson v. Sinniah (supra) are based on the view that Marikar v.Bawa Lebbe (supra) has a wider application than the actual decisionwarrants. We, therefore, prefer to follow the ruling in Lorensu Appu-hamy v. Paaris (supra) which has been consistently followed in a numberof weighty decisions. Where an interpretation has been placed by along line of authorities on a rule of procedure, this Court would be reluctantto depart from such an interpretation. Both on principle and on autho-rity it seems to us that unless the plaintiff has failed to take a steprendered necessary by the law to prosecute his action, an order ofabatement should not be made under section 402 of the Civil ProcedureCode. In the instant case, in our opinion, it cannot be said that theplaintiff has failed to take a step rendered necessary by the law.
Bor these reasons, we hold that the order of the learned District Judgeabating the action should be set aside. The practice of “ laying by ”cases has been disapproved in certain judgments of this Court and,in our opinion, this practice should ordinarily be avoided and the practiceindicated by Bonser C.J., in Fernando v. Curera (supra), observed.Where, however, an order “ laying by ” a case has been made by aCourt, the duty of restoring the case to the trial roll rests, in our opinion,on the Court and not on the parties. We set aside the order of abate-ment and restore the case to the trial roll. The plaintiff is entitled tocosts in both Courts.
T. S. Fernando, J.—I agree.
l{1938) 18 C. L.Kec. 9.
Appeal allowed.