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Present: Ennis J. and Garvin A. J.MUDIANSE et al. v. SIRIYA el al.
180—D. O. Regatta, 5,717.
Action under 8. 247—Plaint returned for want of jurisdiction—CivilProcedure Code, a. 47—Subsequent presentation of plaint to rightCourt—Date of action—Prescription.
Where a plaint returned to the plaintiff under section 47 ofthe Civil Procedure Code for want of jurisdiction is presentedsubsequently to the right Court, the plaint is not to be deemed tohave been presented from the date of the earlier presentation to thewrong Court.
rjlHE facts are set out in the judgment.
Keuneman (with him Schokman), for defendants, appellants.Canakaratne, for plaintiffs, respondents.
November 3, 1921. Ennis J.—
This was an action under section 247 of the Civil Procedure Code.It appears that the present defendants were successful intheir claim in the claim inquiry, the order in which was passed onSeptember 30, 1919.
On October 10 the plaintiffs filed an action in the Court ofRequests. On December 13 the defendants filed answer, in whichthey took exception to the jurisdiction of the Court. On January25, 1921, on the day fixed for trial, the plaint was returned undersection 47 of the Civil Procedure Code. It would seem to have beenclear that the Court of Requests had no jurisdiction vin the case,as the amount and the value involved was over Rs. 300. OnJanuary 25 the plaint was presented to the District Court.
In that Court an issue was framed whether the action was barredin that it had been instituted fourteen days after the order in theclaim inquiry.
The learned Judge held that action had not been barred, and thisappeal is from that order.
Two cases have been cited to us in support of the contentionthat the action was not out of time. These two oases areW&ihelis v, Daniel Appuhamy1 and Nagan v. Rodrigo.a In eachof these cases the Supreme Court allowed the plaint to be returnedunder section 47, even though the case had reached the stage of an
1(2909)12N.L. R. 196.
* (1914) 17 N. L. B. 34.
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appeal, but neither of these cases decides the point as to whetheron a plaint being returned under section 47 and presented to anotherCourt, the day of the institution of the action is the date of the firstpresentation to the wrong Court. In my opinion such a contentionis untenable. There is nothing in the provision of section 47to show within what time the returned plaint is. to be presented tothe right Court, and there is nothing to compel the plaintiff topresent the plaint to any other Court. Neither are there any wordsexpressly saying that the plaint when so presented shall be deemedto have been presented from the date of its earlier presentationto the wrong Court.
In my opinion the section cannot be used indefinitely to prolongthe period of limitation provided in section 247.
In the circumstances I would allow the appeal, with costs, anddismiss plaintiffs1 action, with costs..
Garvin A. J.—I agree.
MUDIANSE et al. v. SIRIYA et al