HEAR.NE J.—Jinaaena v. Moosajee.
1938Present: Hearne J.
JINASENA, Petitioner, and MOOSAJEE, Respondent.
Application for the transfer of C. R. Colombo, 33,312 to D. C.
Court of Requests—Action for ejectment—Claim in, reconvention beyond juris-diction of Court—Application fon transfer of case to District Court—-Courts Ordinance (Cap. 6), s. 79.
Where, in a tenancy action in a Court of Requests, the claim inreconvention of the defendant was beyond the jur isdiction of the Courtand the convention and reconvention were dependent on the samefacts and involved an interpretation of the same law—
Held, that the Supreme Court should allow the transfer of the wholeproceeding to the District Court if it was satisfied tliat the disadvantageto the plaintiff of a transfer was outweighed by the advantage of havingthe questions of the alleged tenancy and the claim in reconventiondeoided at one and the same time.
rpms was an application for the transfer of a case from the Court ofI Requests, Colombo, to the District Court.
W. Fernando, for the defendant, petitioner.
V. A. Kandiah, for the plaintiff, respondent.
Cur. adv. vuU.
March 22, 1938. Hearne J.—
The plaintiff in C. R., Colombo, No. 33,312 sued the defendant prayingfor an order that the defendant be ejected from certain premises whichhe “ had let to the defendant ” for Rs. 100 damages and for furtherdamages at the rate of Rs. 5 per diem “ till the defendant is ejectedfrom the said premises and placed in possession thereof ”.
The defendant filed an answer praying in convention that the plaintiff saction be dismissed with costs and in reconvention that he be declaredentitled to the buidings that his father had erected on the land in conse-quence of an agreement with G. T. Pieris, the then owner of the land,that he be declared entitled to possess the land and buildings on paymentof an annual rent of Rs. 540 in accordance with the terms of the saidagreement, and in the alternative that he be declared entitled to com-pensation in a sum of Rs. 6,500 and to retain possession of the land andbuildings until payment thereof.
Jeremiah v. Itapielpillai.
In the circumstances of this answer the defendant has .applied for anorder transferring C. R. Colombo, 33,312, to the District Court of Colombo
There can be no doubt that the defendant is within his right in bringingforward his claim in reconvention. The question is whether this Courtshould exercise its discretion under section 81 of the Courts Ordinance andtransfer the case as the petitioner prays. As the plaintiff’s claim is forpossession and as an order transferring the case to the District Courtwould put it at tho bottom of the list in that Court I recognise, as wasrecognised in Veeravaku v. Suppramaniam,1 that such an order wouldimpose a hardship on the plaintiff. The facts in that case were verydifferent from the facts in this case. There the claim in. reconventionwhich was founded upon an alleged loan was a separate action independentof the plaintiff’a action. It was in no way related to the plaintiff’sclaim. Here we have a convention and a reconvention which aredependent on the same facts and which involve an interpretation of thesame law. It would be manifestly inappropriate if I indicated in thisapplication the view I take of the jus retentionis asserted by the defendant.But I am satisfied in my own mind that the disadvantage to the plaintiffof a transfer is outweighed by the advantage of having the questionsof the alleged tenancy, of the right to compensation and to the jusretentionis decided at one and the same time.
I therefore allow the application, and order that C. R. Colombo,33,312, be transferred to the District Court of Colombo.
JINASENA, Petitioner, and MOOSAJEE, Respondent