CAVE & CO. v. ERSKINE.

CAVE & CO. v. ERSKINE.

C. R., Colombo, 12,057.

Action for goods sold and delivered-Prescription-Institution of suit-Order that suit do abate-Civil Procedure Code, ss. 402 and 452-Irregularity of such order-Restoration of suit to the cause roll-Commencement of suit.

The filing of a plaint in Court is an act of the plaintiff by which he signifies that he has commenced an action against the defendant, and the summons thereafter gives him the exact date on which the action was instituted or commenced.

There is no distinction between the expressions " institution of action" and " commencement of suit. "

Section 402 of the Civil Procedure Code does not empower the Court ex mero motu to make an order of abatement of a suit. It can be made-only on the application of the defendant and due notice to the plaintiff.

Where the Fiscal has not been able to serve summons on the defendant, and no blame is attachable to the plaintiff for such non-service, it is not open to the Court to order the suit to abate.

An action for goods sold and delivered up to November, 1899, filed on 12th March, 1900, and improperly ordered to abate and then restored to the roll on 13th March, 1902, is not prescribed under section 9 of Ordinance No. 22 of 1871.

IN this case the plaintiffs filed their suit on the 12th March, 1900, against the defendant for a sum of Rs. 145, being balance value of goods alleged to have been sold to him between 10th October, 1894, and 25th November, 1899. The defendant pleaded that the action was prescribed under section 9 of Ordinance No. 22 of 1871, inasmuch as the Court having, on 12th January, 1901, ordered the action to abate, and on 13th March, 1902, restored

the action to the roll, the action was commenced on 13th March, 1902, more than one year after the alleged sale by the plaintiffs to the defendant.

The Commissioner, Mr. H. White, after hearing counsel and witnesses, held as follows: -

" The only question for decision is whether the action dates from 12th March, 1900, when it was instituted, or from 13th March, 1902, when the order of abatement of 12th January, 1901, was set aside. That order was not regularly passed. It was made by the Court ex mero motu without notice to the plaintiffs, and not on the application of the defendant. D.C.. Colombo, 3,544 (3 N. L. R. 77). That order deing null and void, I have no hesitation in deciding that the action dates from 12th March, 1900. On the law and the merits I find for the plaintiffs ".

The defendant appealed. The case was argued on the 3rd October, 1902, before Grenier, A.J.

Elliot, for appellant,-The plaint was filed on 13th March, 1900, and the defendant was not served with summons for a long time. The Commissioner ordered the action to abate. That order killed the action. It was restored on 13th March, 1902. In Murugupillai v. Muttulingam (3 C. L. R. 92) it has been held that, as to the question of prescription, the action must be taken to date from the order of revival. But in Fernando v. Perera (3 S. C. C. 158) the judgment of Cayley, C.J., seems adverse to the appellant. Clarence, J., however was quite clear that the suit begins on the day the summons was issued. The Commissioner had no right or justification ex mero motu to set aside his order of abatement. The object of section 402 of the Civil Procedure Code is not to allow the Court roll to be encumbered with plaints not duly pressed. If the plaintiff could not find the defendant, he should have moved to withdraw the suit with leave obtained to re-institute it.

Fan Langenberg, for plaintiffs, respondent.-The Fiscal could not serve the summons on the defendant, as the defendant was on the move, going from one place to another, performing his duties as surveyor. The Commissioner without notice to the plaintiffs ordered the suit to abate. Section 402 does not justify such an order. That section applies to cases where the defendant has appeared in response to th

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