Roorbhoy v. Uusair
1959Present: Sansoni, J., and Sinnetamby, J.NOORBHOY, Petitioner, and HUSAIR, Respondent
S. 0. 105—Application for the transfer of Case No. 71,322from G. R.
Colombo to D. C. Colombo.
Courts Ordinance (Cap. 6)-—Section 79—Transfer of case fro-m Court of Requeststo District Court—Factors for consideration.
An application made under section 79 of the Courts Ordinance for thetransfer of a case from the Court of Requests to the District Court will notbe granted if, although the plaintiff’s claim and the defendant’s claim inreconvention are intimately connected, a right to possession. .of immovableproperty is involved only in the plaintiff’s claim. Accordingly, a landlord’saction against his tenant for rent and ejectment will not be transferred tothe District Court solely on the ground that the tenant’s claim in. reconventionof a sum of money overpaid as rent exceeds the monetary jurisdiction of theCourt of Requests.
/APPLICATION’ for the transfer of a case from the Court of Requests,
Colombo, to the District Court, Colombo.
V. Thillainathan, for the defendant-petitioner.
K. Shinya, for the plaintiff-respondent.
Cur. adv. vuk.
SINtJBTAJVlBY, J.—Noorbhoy v. Huaair
April 20, 1959. Sjmstetamby, J.—
The plaintiff instituted the present action in the Court of Requests-Colombo, against the defendant-petitioner claiming arrears of rent andseeking to eject the defendant from premises No. 79, New Moor Street.The premises are situated within an area to which the Rent RestrictionAct applies. The defendant petitioner in his answer alleged that he hadregularly paid the plaintiff rents in excess of the authorised rentand claimed in reconvention the amounts so overpaid aggregating toRs. 2,767.
In these proceedings the defendant petitioner invokes the provisionsof section 79 of the Courts Ordinance and seeks to obtain from thisCourt an order transferring the whole case to the District Court on theground that the claim in reconvention exceeds the monetary jurisdiction,of the Court of Requests and is so intimately connected with the claimthat it is convenient and desirable that both should be tried together.
Section 79 of the Courts Ordinance is in the following terms:—
“ 79. Where in any proceeding before any Court of Requestsany defence or claim in reconvention of the defendant involves matterbeyond the jurisdiction of the court, such defence or claim in recon-vention shall not effect the competence or duty of the court to disposeof the matter in controversy so far as relates to the demand of theplaintiff and the defence thereto, but no relief exceeding that which,the court has jurisdiction to administer shall be given to the defendant,upon any such claim in reconvention :
Provided always that in such case it shall be lawful for the SupremeCourt, or any Judge thereof, if it shall be thought fit, on the application,of any party to the proceeding, to order that the whole proceeding betransferred from the court in which it shall have been instituted to somecourt having jurisdiction over the whole matter in controversy;and in such case the record in such proceeding shall be transmittedby the clerk of the court to the court to which by such order theproceeding shall be so transferred ; and the same shall thenceforth becontinued and prosecuted in such court as if it had been originallycommenced therein ”. (Cap. 6 of Legislative Enactments—Vol. 1p. 56.)
The terms in which this section is drafted rather suggest that theordinary rule is for the Court to adjudicate upon the claim of the plaintiffand the competence of the Court to so adjudicate is not to be affectedby the fact that the claim in reconvention exceeds the jurisdiction of theCourt of Requests. The proviso enables an order of transfer beingmade by the Supreme Court “if it shall be thought fit ” to a Courthaving jurisdiction over the whole matter in controversy. The burden,therefore, is upon a defendant to satisfy the Supreme Court that acase is a fit one for a transfer order to be made.
Learned counsel for the petitioner submitted that the mere fact thatthe claim in reconvention is intimately connected with the claim of theplaintiff is sufficient ground for an order of transfer. In view of this
SINXETAMBY, J.—Noorbhoy v. Husair
submission, I think it desirable to consider the cases bearing on thisquestion cited to us in the course of the arguments and to deduce theprinciple on which the Supreme Court has acted in exercising its discretionin favour of a transfer.
In Veeravaku v. Suppramaniam1 the plaintiff sued the defendant inejectment. It was a tenancy case and the defendant interposed a claimin reconvention in which he claimed a sum of Rs. 2584 for goods soldand money advanced by him to the plaintiff. The Court refused to granta transfer on the ground that the plaintiff’s claim was for possession andtherefore urgent and on the ground that the granting of the applicationfor a transfer would prejudice the plaintiff and delay Ms claim.
Jinasena v. Moosajee * was a case in which the plaintiff sought toeject a defendant from premises alleging a tenancy and in which thedefendant interposed a claim for compensation for improvements amount-ing to Rs. 6500 and also claimed a jus retentionis. It would appearthat certain buildings had been put up by the tenant’s father under anagreement with the then owner of the land, according to the terms of whichthe tenant was entitled to possess the land on payment of a sum ofRs. 540 per mensem. Defendant claimed the right to possess under theagreement or in the alternative to a jus retentionis till compensationfor improvements was paid to Mm. Hearne, J., allowed a transfer■differentiating the case he was considering from the case of Veeravalcu v.Suppramaniam. He did not consider it appropriate to express an opinionon a tenant’s right at common law to claim a jus retentionis till compensa-tion was paid but expressed the view that in the circumstances of thatcase the disadvantage to the plaintiff of a transfer was far outweighedby the advantage to the defendant of having the questions of the allegedtenancy, and compensation and the j ms retentionis decided at one and thesame time. It is to be noted that apart from the claim based on commonlaw the tenant claimed the right to possess under an agreement, andthat question arose for decision. It must, I think, be conceded thatapart from agreement under our law a tenant has no right to a jusretentionis till compensation for improvements has been paid. In thatparticular case, apparently, the question of tenancy was also disputedand that was one of the facts which, no doubt, weighed with the learnedJudge in ordering a transfer.
In Joseph v. Kasupathy3 the claim in convention did not concernpossession of land though counsel in the course of his argument saidit did, and this fact influenced Nagalingam, J., in ordering a transfer.The tenancy had, according to the plaint, in no way been terminatedand plaintiff was not entitled to possession : the claim was for rent, thereconvention was for compensation. The learned Judge allowed atransfer.
Waidyachandra v. Nanayakkara1 is a case in which the facts arevery similar to the facts under consideration in the present case. There,
1(1902) 6 N. L. R. 52.
(1938) 47 N. L. R. 142.
(1946) 48 N. L. R. 326.(1953) 49 C. L. W. 63.
SINNET AMBY, J.—Noorbhoy v. Husair
as here, the claim was for ejectment, rent, and damages, and the claimin reconvention was for excess rent paid over and above the authorisedrent payable under the Restriction Acts. The learned Appeal Judgeallowed a transfer and in doing so referred to certain observations madeby Heame, J., in Jinasena v. Moosajee and by Nagalingam, J., in Joseph v.Kaspupathy. It is to be noted, however, that in the former case theclaim in reconvention also involved in addition to the other factors aclaim to possession of the same land while in Joseph v. Kasupathy theclaim of plaintiff did not involve a claim to possession of land. Thesefacts were, if I may say so with great respect, not given sufficient consider-ation by the learned Judge in Waidyachandra v. Nanayakkara when hereferred to certain observations made by the Judges who decided the twocases in question.
Observations of a general character made in the context of a particularcase having reference to the facts established therein are apt to bemisleading when applied to a case in which the facts are quite dissimilar.
It is to be noted that the observations of Hearne, J., in regard to therelative advantage to defendant and disadvantage to plaintiff made inJinasena v. Moosajee would not justify an order for transfer on thefacts of the present case. The disadvantage to plaintiff is great if atransfer is allowed. He would be kept out of possession for a long period.That is not disputed. What precisely is the advantage gained by the-defendant if a transfer order is made. The defendant is entitled underour law if he has made overpayments to set off the overpayments againstrents that have become due and would not for the purposes of the RentRestriction Act be in arrears; the plaintiff’s action must accordingly^fail and the defendant would continue to be in occupation. If, however,he fails to establish overpayment he would get an undue advantageand that was not the kind of advantage Heame, J., contemplated. Inthese circumstances the refusal to transfer would cause- the defendantno hardship whatever whereas a transfer would cause the plaintiff'hardship in the event of a false claim being interposed in reconvention.In Joseph v. Kasupathy the claim did not include a claim for ejectmentand in that respect it differs from the present case.
The cases in which applications for transfer are generally made maybe categorised as follows :—
When claim and claim in reconvention are independent of and
unconnected with each other and there is no right to possession
of land involved;
When they are so unconnected and independent but a claim to
possession is involved in the plaintiff’s claim (Veeravaku, v.
When claim and claim in reconvention are intimately connected
and right to possession is involved in both claims (Jinasena v..
SINNETAMBY, J.—Noorbhoy v. Husair
When claim and claim in reconvention are intimately connected
but no right to possession is involved in either (Joseph v.
When the claim and the claim in reconvention are intimately
connected but a right to possession of immovable property
is involved only in the plaintiff’s claim (Waidynchandra v.
In classes 1 and 2 the Court would, it seems to me, refuse to grant atransfer; the ordinary rule would apply as no justifiable grounds existfor the intervention of the Supreme Court in the exercise of its-discretion.
In cases falling under classes 3 and 4 the Court would order a transfer.In both cases no prejudice would be caused to a plaintiff: indeed, a■refusal to do so in cases coming under class 3 would considerably prejudice-a defendant and, it seems to me, it is the one case in which the Supreme■Court has consistently exercised its discretion under section 79. Inregard to class 4, the ground on which the Court would exercise its•discretion in favour of a transfer is convenience.
The present case would fall under class 5. In my opinion, on thefacts averred, in this case too an order of transfer should not be made.-As I stated earlier when considering the case of Waidyciichandra v.Nanayakkara1 the defendant in this case would suffer no hardshipwhatever if his application is not granted. If the averments in hisanswer are at the trial found to be correct he is entitled to set off theoverpayments against current and future rents and to continue to remainin possession till the full amount of the overpayments has been soliquidated: the plaintiff’s action would then be dismissed. The Courtwould, in terms of section 79, “ dispose of the matter in controversyso far as it relates to the demand of the plaintiff and the defence thereto ”,but it would not give any relief to the defendant in excess of its juris-diction. On the other hand, if a transfer is made and it is establishedthat no overpayments have, in fact, been made the plaintiff would•suffer considerable hardship by being deprived for a considerable lengthof time of his common law right to be restored to possession. On aconsideration of these facts I do not think this is a case in which a transferorder should be made.
I would accordingly dismiss the application with costs.
Saktsohi, J.—I agree.
(1953) 49 C. L. W. 63.
NOORBHOY, Petitoner, and HUSAIR, Respondent