FAILURE TO PROSECUTE PARTITION ACTION- SPIRIT OF SECTION 70 OF THE PARTITION LAW

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FAILURE TO PROSECUTE PARTITION ACTION- SPIRIT OF SECTION 70 OF THE PARTITION LAW




C.A.Rev. 224/2003
D.C. Kuliyapitiya No. 10599/P               

Dampelessa Mudiyanselage Kalubanda of Panthenigoda, Narammala.

Plaintiff-Petitioner
              
                                                             
                                                                                                                                                                                Vs.

1.    Imihamilage Podi Menika,

          Defendant-Respondents




Before                :         A.W.A. Salam, J. 
                                  Counsel             :                Rohan Sahabandu for the Plaintiff-Petitioner.

                                  Decided on        :               03.07.2007

Abdul Salam, J.
                  
The petitioner has filed the present application to have the order of dismissal of partition action No. 10599/P DC Kuliyapitiya, dated 29.04.2002 set aside on the basis that the said order is void and contrary to law.

Learned Counsel has specially adverted me to the proceedings dated 29.04.2002, wherein it is explicitly stated by the  learned District Judge that the 1st Defendant was prepared to prosecute the case in place of the plaintiff who by that time, had failed to prosecute his cause with due diligence.

However for the reasons best known to the learned District Judge, without any basis whatsoever he had proceeded to state in his order that in his opinion, the 1st Defendant does not seem to show any interest to prosecute the case. This finding of the learned District Judge is obviously not consistent with the spirit of section 70 of the partition law.
Section 70 of the Partition Law requires that in the case where a plaintiff neglects or fails to prosecute a partition action, the court may by order permit any defendant to prosecute that action. In order to achieve this district judge may substitute the defendant who is desirous of continuing with the action as substituted plaintiff.

The learned district judge having recorded the willingness of the 1st defendant to carry on with the action as substituted plaintiff, immediately dismissed the action on the premise that he doubted the bonafides of the 1st defendant. The moment the district judge recorded the position of the 1st defendant that she was willing to prosecute the case, the court was obliged to give reasonable time to the 1st defendant to prepare herself for the trial, as she may not have had any prior notice of the lapse on the part of the plaintiff.

It would have been appropriate had the District Judge immediately adjourned the matter when the 1st Defendant expressed her willingness to prosecute the case or at least inquired from her as to whether she needed an adjournment to make preparation for the trial. It is quite unreasonable on the part of the leaned judge to expect  the 1st defendant to immediately prosecute the matter without any notice.

In the circumstances the order of dismissal dated 29.04.2002 appears to have been made in flagrant violation of Section 70. Hence, the order of dismissal dated 29.04.2002 is set aside. The learned District Judge is directed to notice all the parties and proceed from the step where the 1st Defendant has expressed her willingness to prosecute the case. Parties shall bear their own costs.
                                                               Sgd/-
                                         Judge of the Court of Appeal   
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                  I do hereby certify that the foregoing is a true copy of the judgment dated 03.07.2007 filed of record in C.A. 224/03.
Typed by            :
Compared with  :                                  Chief Clerk-Court of Appeal





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