BANG ETENA v. APPU.

BANG ETENA v. APPU.

C. R., Kandy, 6,705.

Civil Procedure Code, s. 145-" Causing attendance of witnesses "-Motion for adjournment of hearing for failure of witness to attend-Dismissed of action for failure of plaintiff to pay before trial the costs of the day of adjournment-Service of process issued by Court-Duty of Fiscal, and not party suing out process, to serve it.

Section 145 of the Civil Procedure Code does not justify a dismissal of plaintiff's case, because the costs of an adjournment, granted at plaintiff's instance, had not been paid as ordered. Plaintiff cannot be said to be in default of " causing the attendance of his witness," if the Fiscal fails to serve a summons on him.

It is the Fiscal's duty, and not the plaintiff's, to see the Court's process duly served.

IN this action for damages, a plan in the possession of the Government Agent being necessary for the proof of plaintiff's case, a summons to produce it was issued on the Government

Agent, and the case came on for trial on the 26th August, 1898. The parties were present, but plaintiff was not ready, as the summons on the Government Agent had not been served.

The Commissioner ordered as follows:-

" The plaintiff is in default, as she has not seen that her subpoena was served on the Government Agent. Nor has she applied for a copy. I postpone the case for the 20th September. Plaintiff to pay this day's costs."

Ultimately, the case came on for hearing on 1st November, 1898, when defendant's proctor objected that the orders of 20th September as to payment of costs by plaintiff was not fulfilled, though the bill of costs was taxed, amounting to Its. 5.50. Plaintiff pleaded inability to pay that amount. The Commissioner thereupon dismissed the action with costs, " as she (plaintiff) has failed to comply with the order of 20th September."

Plaintiff appealed.

No appearance for appellant.

Van Langenberg, for respondent.

Withers, J.-

There was no appearance for the appellant in this case, but not being satisfied with the Commissioner's judgment, I desired Mr. Van Langenberg, who appeared for the respondent, to support it. Having heard the matter discussed, I am prepared to make order.

This is an action for damages alleged to be caused by an encroachment on a part of plaintiff's property by defendant. It appears that the plaintiff was desirous of getting some official plan of the land which was in the control of the Government Agent. A summons to the Government Agent seems to have been taken out, but for some reason or other not to have been served. On the 26th August last, being the day appointed for the trial, plaintiff was not ready to go on with the action, owing to the Government Agent not having been served with summons to produce the plan required. In the journal entry of that date the Commissioner makes this entry; " It (that is, the summons) has " not been served on the Government Agent; the plaintiff is " therefore in default;" and further on he repeats the observation, " The plaintiff is in default, as she has not seen to summons being served on the Government Agent."

It seems to me that it is the duty of the Fiscal to see to the service of process issued by the Court. I do not quite see how the plaintiff was to see this process served on the Government Agent. However, the Commissioner allowed a postponement to

the 20th September, and in making such order he thought fit to direct plaintiff to pay costs of the day, including batta, to the surveyor before the next date.

Mr. Val Langenberg tells me that this is not an unusual order in the Court of requests of Kandy; but at present I hesitate to think that the Code intended the Court to allow an adjournment on the costs of the day being paid before the date of adjournment, and when that date came to dismiss the action because the costs have not been paid, although the party affected by the order was ready to go to trial

I can hardly think that t

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