Bank Of Ceylon V. Liverpool Marine & General Insurance

1962 Present: H. N. G. Fernando, J., and L. B. de Silva, J.

BANK OF CEYLON, Appellant, and LIVERPOOL MARINE
& GENERAL INSURANCE CO., LTD., Respondent

S. C. 39/60-D. C. Colombo, 32412/M

Abatement of action-Scope of ss. 402 and 403 of Civil Procedure Code-Remedy of plaintiff.

When a case is laid by with a view to a settlement, an order of abatement under section 402 of the Civil Procedure Code cannot be made by Court, ex mero motu without notice to the plaintiff. The validity of such an order can be questioned by the plaintiff in appropriate proceedings in the name case at any time, without resort to the provisions of Chapter LX of the Civil Procedure Code relating to appeals notwithstanding lapse of time.

APPEAL from a judgment of the District Court, Colombo.

                     S. Nadesan, Q.C., with S. J. Kadirgamar and K. N. Choksy, for Plaintiff-Appellant.

                    H. W. Jayewardene, Q.C., with V. J. Martyn, for Defendant-Respondent.

Cur. adv. vult.

December 6, 1962. L. B. DE SILVA, J.-

On a joint motion filed by the parties that this case be taken off the trial roll as-

               (a) The case was very difficult and needed a great deal of preparation for trial, and

              (b) Negotiations for a settlement were then in progress, the learned District Judge on 7th October, 1955 allowed the Motion. The case was called on 28th November, 1955 and was laid by.

              On 7th December 1956, the Court, acting ex mero motu, abated the action as a period exceeding twelve months had elapsed since the last Order without the plaintiff taking any steps to prosecute this action. The plaintiff had no notice of the Order contemplated or taken by the Court at that time.

Later the plaintiff moved to revoke the proxy granted to his proctor and on 4th January 1958 the Court made Order to take steps to vacate the Order of Abatement. On 29th September 1959, the plaintiff filed papers to set aside the Order of Abatement.

That application was refused by the learned District Judge and the plaintiff has appealed to this Court. The main question for decision on this Appeal was whether the learned Judge was empowered under section 402 of the Civil Procedure Code, to enter an Order of Abatement in this case.

It was argued before this Court that the Court was empowered to enter such an Order under section 402 only in cases where the plaintiff had failed to take any step to prosecute the action for the prescribed period where any such step was necessary to be taken by him.

The Counsel for the Appellant relied on the judgment of Wood Renton, J. in Lorensu Appuhamy v. Paaris.1[ (1908) 11 N. L. R. 202.] Referring to section 402, Wood Renton, J. stated, " I think that when that section uses the word ' necessary ', it means ' rendered necessary by some positive requirement of the law'. We ought not to interpret it as if the section ran without taking any steps to prosecute the action which a prudent man would take under the circumstances'. "

Once a case is laid by with a view to a settlement, there is no requirement under the Civil Procedure Code or in terms of any Order of Court, on the plaintiff to take any steps to prosecute the action.

The Counsel for the Respondent relies on the later decision of Wood Renton, C.J. in Supramaniam, v. Symons .[ 1 (1915) 18 N. L. R. 229.] In that case on the application of the parties, the case was struck off the Roll, with a view to a settlement. As a period of one year had elapsed since that Order without the plaintiff taking steps to prosecute the action, the learned District Judge entered an Order of Abatement.

    Wood Renton, C.J. cited the case of Marikar v. Bawa Lebbe  ,[  2 (1892) 1 S.C.R.. 240. ] and held that it was the duty of the plaintiff to move that the action be restored to the Roll and on such a motion, it is within the discretion of the District Judge to

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