There is no provision in the Civil Procedure Code to dismiss the plaintiffs action on the failure to take steps as ordered by Court.

Civil Procedure Code - dismissal of an action by the Plaintiff on the failure to take steps as ordered by Court - validity.

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF 

SRI LANKA

Seylan Bank Limited 

v. 

W.D. Mulacharigedara Swarnathilakeand others

C.A. APPLICATION NO.1385/2005


Before    :-      L.K. Wimalachandra, J
                       Eric Basnayake, J.

Counsel  :-     Ranjan Nayakaratne for the Plaintiff-Petitioner
                      Defendant-Respondents are absent and unrepresented

Decided
on          :-     10.01.2007

L.K. Wimalachandra, J

The plaintiff-petitioner has filed this application in revision from the orders of the District Judge of Horana dated 06.05.2005 and 3.06.2005. By the order dated 6.5.2005, the learned District Judge had dismissed the plaintiffs action on the ground that the plaintiff had failed to take steps to effect the substitution in place of the deceased 1st defendant. 

Thereafter the plaintiff-petitioner had filed a motion and sought to support an application against the dismissal of the plaintiffs action. However, the learned District Judge had refused that application and held by order dated 3.6.2005 that his earlier order dismissing the plaintiff's action should stand. 

This revision application has been filed against the aforesaid two orders. It appears that the learned District Judge dismissed the plaintiffs action on 6.5.2005, mainly on the ground that the plaintiff had failed to take steps to effect the substitution in place of the deceased 1st defendant. There is no provision in the Civil Procedure Code to dismiss the plaintiffs action on the failure to take steps as ordered by Court. However, the District Judge has power to act under section 402. In terms of section 402, he can only enter an order for abatement. The order for abatement can be made under section 402 only where the plaintiff has failed to take steps rendered necessary by positive requirements of law. Furthermore Court can enter an order under section 402 if the party has failed to take steps to prosecute the action within a period of twelve months. In the instant case, Court directed the plaintiff to take steps on 19.11.2004 and the Court dismissed the action on 6.5.2005. 

In these circumstances we are of the view that a miscarriage of justice has occurred due to a fundamental rule of procedure being violated. It has caused injustice to the plaintiff. Accordingly, acting in revision, the order of the learned District Judge is set aside and we direct the learned District Judge to proceed with this action according to law.
 

I agree

Eric Basnayake, J.

JUDGE OF THE COURT OF APPEAL