Samsudeen V. Eagle Star Insurance Co. Ltd.

1962 Present: T. S. Fernando, J., and Tambiah, J.

P. SAMSUDEEN, Appellant, and EAGLE STAR INSURANCE CO.
LTD., Respondent

S. C. 185-D. C. Colombo, 27306/M

Abatement of action-Circumstances under which Court can make order abating an action-Effect of an order " laying by " a case-Civil Procedure Code, ss. SO, 82, 83, 402.

An order of abatement of an action can be made under section 402 of the Civil Procedure Code only if the plaintiff has failed to take a step rendered necessary by the law.

Where an order " laying by " a case has been made by a Court, the duty of restoring the case to the trial roll rests on the Court and not on the parties.

The Supreme Court, upon an appeal by the plaintiff from an order of the District Court dismissing his action, sent the case back for a trial de novo. Trial was accordingly fixed by the District Judge for the 25th September, 1956. On that date the Court made order that the case should be laid by as certain material witnesses of the plaintiff could not be contacted. On the 29th November 1957, upon plaintiff's application, the case was laid by for a further period of six months to enable plaintiff to have certain evidence taken on commission in Egypt.

On the 15th December 1958 the defendant moved that, inasmuch as a period exceeding twelve months had elapsed subsequently to the date of the last order, an order of abatement should be entered in respect of the action. An inquiry was held, and the Court, purporting to act under section 402 of the Civil Procedure Code, delivered order on the 17th March 1959 abating the action.

Held, that the order of the Court laying by the case cast no duty on the plaintiff to restore it to the roll and, therfore, the order of abatement was wrongly made. The duty of fixing the day of trial rested on the Court. Unless the plaintiff had failed to take a step rendered necessary by the law to prosecute his action, an older of abatement could not be made under section 402 of the Civil Procedure Code.

APPEAL from an order of the District Court, Colombo.

C. Ranganathan, with K. Viknarajah and Miss S. Wickramasinghe, for the plaintiff-appellant.

H. W. Jayewardene, Q.C., with V. J. Martyn and D. S. Wijewardene, for the defendant-respondent.

Cur. adv. vult.

January 23, 1962. TAMBIAH, J.-

The plaintiff-appellant sued the defendant-respondent, an insurance company, for the recovery of the sum of Rs. 30,046/49 cts. alleged to be due on a policy of marine insurance marked "A " and annexed to the plaint, and insuring a cargo of 80 tons of potatoes shipped by one Mohamed 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 the assignee of the bill of lading relating to the cargo and of the policy of insurance covering the same, has suffered damages in the sum claimed by reason 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 took up various defences disclaiming liability. Although no specific issue was raised on the question of assignment, the learned District Judge dismissed the plaintiff's action holding that assignment had not been proved. The plaintiff appealed to this Court from the order of the learned District Judge and this Court, by order dated 26th April 1956, set aside the order of the learned District Judge and sent the case back for a trial de novo.

The record of the case, together with the judgment of the Supreme Court, was returned to the learned District Judge and the trial was fixed by 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 the 25th of September 1956 as certain material witnesses in the case could not be contacted. The case was then mentione

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