Punchi Nona Et Al. V. Peiris Et Al.,

Present: Bertram C. J. and Jayewardene A. J.

PUNCHI NONA et al. v. PEIRIS et al.

50-D. C. Colombo, 7, 538. ,

Agreement to pay costs-Consent order-Postponement of trial-Breach of undertaking-Court's power to grant relief.

Where a case was postponed on condition that the defendants paid the plaintiff a certain sum of money by way of costs before the date of trial, and where it was further agreed that on failure thereof, judgment should be entered for the plaintiffs.

Held, that the Court had no power to grant relief to the defendants against the breach of their undertaking to pay costs in terms of the agreement.

APPEAL from a judgment of the District Judge of Colombo. This was an action for declaration of title to land. The case was fixed for trial on October 16, 1923, but as the defendants were not ready, it was postponed for December 20 on terms. The defendants agreed to pay the costs of the day, which were fixed at Rs. 52. 50 before the date of trial, and also expressly agreed that if the costs be not paid before December 20, judgment be entered for the plaintiffs with costs. The defendants failed to pay the costs before December 20, and when the case was called on that day their proctor stated that the costs could not be paid owing to the floods, and moved to pay them. The learned District Judge thereupon entered judgment for the plaintiffs. The defendants appealed.

J. S. Jayewardene, for defendants, appellants.

E. W. Perera, for plaintiffs, respondents.

October 10, 1924. Jayewardene A. J. -

In this case the defendants appeal against an order directing that judgment be entered for the plaintiffs as prayed for with costs. It is a land case, and the plaintiffs sued them for declaration of title, ejectment, and damages. Originally the defendants were in default, and the case was heard ex parte, but it was reopened on their application. The case was fixed for trial on October 16, 1923, but the defendants were not ready, and the case was postponed for December 20, on terms. By these terms the defendants agreed to pay the costs of the trial date which were fixed at Rs. 52. 50 before December 20, and the defendants also expressly agreed that, if the costs be not paid before December 20, judgment be entered for the plaintiffs as prayed for with costs. The defendants failed to pay the costs as agreed before December 20, and when the case was called on that day their proctor stated that the costs could not be paid owing to floods, and moved to pay them.

The learned District Judge made the following order: -

"I cannot vary Mr. de Saram's order, nor do I see any reason to do so. 1 enter judgment for plaintiffs as prayed for with costs. "

The defendants say that they were within time in offering to pay before the trial of the action on December 20, and that their failure to pay (if any) has been sufficiently excused. I think there has been a breach of the terms of the agreement entered into on October 16, as their undertaking was to pay before December 20. The question is whether the Court has the power to give the defendants' relief against the consequences of their breach of the undertaking by-allowing them to pay on a date later than the date fixed by its order. The agreement here was not an agreement entered into by the parties under section 408. It contained the terms on which the Court was prepared to grant a postponement, and section 82 of the Civil Procedure Code empowers the Court to postpone the trial of a case "upon such terms as to costs or otherwise as the Court shall think fit."

In Ramanaden Chetty v. Fernando, [1 (1923) 24 N. L. R. 411.] a similar agreement was held binding on the defendant, and judgment was entered for the plaintiff in terms of the agreement. There the defendant obtained a postponement of the trial date consenting to pay Rs. 75 before the next date of trial, and agreeing to judgment being entered in the plaint

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