WUEYEWARDENE J.—Selvadurai v. Rajah.
1940Present: Howard CJ. and Wijeyewardane J.
SELVADURAI v. RAJAH et al.
139—D. C. Jaffna, 11,503.
Court’s powers—Order, to lay by case—Pending decision of another case—Identical matters in dispute—Civil Procedure Code, s. 839 (Cap. 86).
A Court has inherent power to lay by a case pending the decision of anaction in another Court between the same parties in which the maters indispute are identical.
^ PPEAL from an order of the District Judge of Jaffna.
N.Nadarajah (with him H. W. Thambiah), for plaintiff, appellant.
No appearance for defendants, respondents.
Cur. adv. vult.
January 24, 1940. Wijeyewahdene J.—
The plaintiff-appellant filed this action in July, 1937, in order to obtaina declaration of title to a property in Kandy and to have a deed No; 78 ofApril 27, 1927, executed by the second defendant in favour of the firstdefendant set aside as having been executed in collusion, with intent todefraud the plaintiff and other creditors of the second defendant.
The plaintiff did not take out summons on the defendants for some timeand ultimately the summons was served on the defendants in October,1938. The defendants filed answer in January, 1939, and the case wasfixed for trial before the District Judge of Jaffna.
The first defendant in the meantime filed action L 141 in the DistrictCourt of Kandy in September, 1938, against the plaintiff and a tenantunder the plaintiff in order to obtain a declaration of title in respect ofthe same property. The present plaintiff filed answer in that case andclaimed that the deed -on which the first defendant (the plaintiff in theKandy case) based his title should be set aside. The second defendantin the present action has been made a party to that action. The issues inthat case were framed in February, 1939, and the trial commenced inAugust, 1939. An examination of the record of the Kandy case showsthat the plaintiff in that action (first defendant in this case) and twowitnesses-have given evidence and that the trial has been adjourned forJanuary 30, 1940, for further hearing.
In July, 1939, the plaintiff in this action filed a petition and an affidavitand moved in the District Court of Jaffna that the present action be laidover pending the final decision of the Kandy case. The defendantsopposed the application and the District Judge made order dismissingthe application of the plaintiff as he thought he had no power under theCivil Procedure Code to grant the application of the plaintiff except withthe consent of the defendants. The present appeal is preferred againstthat order.
The trial of this action has not commenced as yet in the District Courtof Jaffna in view of the present appeal.
The question of law that arises on this appeal is whether a Court hasno powers in matters of procedure other than those expressly providedfor by the Code. There can be no doubt as to the answer to that question
WIJEYEWARDENE J.—Selvadurai v. Rajah.
especially in view' of section 839 of the Civil Procedure Code which corre-sponds to section . 151 of the Indian Code of Procedure. Section 839provides :—
“ Nothing in this Ordinance shall be deemed to limit or otherwiseeffect the inherent power of the Court to make such orders as may benecessary for the ends of justice or to prevent abuse of the process of thecourt. ”
I do not think that the powers of a Court are strictly confined withinthe narrow limits of the express provisions of the Code. A Court has,and it is necessary that it should have, inherent powers to make orderswhich are absolutely essential in the interests of justice. A Court, nodoubt, should guard against the exercise of such powers in an arbitrary■ and capricious manner and should invoke such powers only in matters forwhich no express provision is made by the Code. Even where a Courthas recourse to such inherent powers in must be careful to see that itsdecision is in harmony with sound general legal principles and it is notinconsistent with the intentions of the Legislature.
In Hukam Chand Boid v. Kamala Nand Singh' Woodroffe J. said :
“ The Court has in many cases where the circumstances require itacted upon the assumption of the possession of an inherent power to actex debito justitiae and to do real and substantial justice for the adminis-tration of which it alone exists. It has been held that, although theCode contains no express provision on the matters hereinafter mentionedthe Court has an inherent power ex debito justitiae to consolidate ;postpone pending the decision of a selected action ; to advance thehearing of suits ; to stay on the ground of convenience cross suits ;
.. .- to decide one question and to reserve another for investi-
gation, the Privy Council pointing out that it did not require anyprovision of the Code to authorise a judge to do what in this matter wasjustice and for the advantage of the parties …. Theseinstances (and there.are others) are sufficient to show, fistly that theCode is not exhaustive, and, secondly, that in matters with which itdoes not deal, the Court will exercise an inherent jurisdiction to do■justice between the parties, which is warranted under the circumstancesand which the necessities of the case require. ”
It appears to me that the present appeal is one in which the Courtshould exercise its inherent powers. If the plaintiff’s application isrefused there will be two District Courts of the Island, each tryingsimultaneously a case between the same parties with regard to matters indispute which are identically the same. The trial in the Kandy case hasnow reached, its final stages and I think it necessary in the interests ofjustice that the case in the District Court of Jaffna, which has not comeup for trial, should be laid by pending the final decision in the Kandy case.
I would allow the appeal with costs and order that the trial in this actionbe not taken up pending the final decision in D. C. Kandy L. 141.
Howard C.J.—I agree.
' (1900) 33 Calcutta 927.
SELVADURAI v. RAJAH et al