NEW LAW REPORTS OF CEYLONVOLUME XLVIII.
1946Present: Wijeyewardene and Canekeratne JJ.
THE CHETTINAD CORPORATION, LTD., Appellant, andFERNANDO et al., Respondents.
112 Inty.—D. C. Kegalla, 3,473.
Civil procedure—Plumbago mine of plaintiff—Encroachment from adjoiningmine of defendant—Ascertainment of true extent of encroachment—Order for inspection of defendant's property—Validity of such order—Civil Procedure Code, s. 669.
The plaintiffs who were the owners of a plumbago mine alleged, andmade a prima facie case, that the defendant company which was theowner of an adjoining plumbago mine had encroached on the plaintiffs’property by tunnelling into it and had wrongfully removed plumbagofrom their mine. They applied for the issue of a commission to twoLicensed Surveyors to survey and inspect the land and undergroundtunnels of the defendant company for the purpose of ascertaining thetrue extent of the encroachment made by the defendant company uponthe plaintiffs’ property.
Held, that the Court had power, under section 669 of the Civil ProcedureCode, to issue a commission for the survey and inspection, of thedefendant’s property.
^^PPEAL from an order of the District Judge of Kegalla..
The plaintiffs alleged that the defendant company was working from-its own plumbago mine into the adjoining mine which belonged to theplaintiffs, and estimated tentatively the damages caused to them bythe encroachment at Rs. 102,500.
The main question for consideration in appeal was whether theprovisions of section 669 of the Civil Procedure Code were wide enoughto enable an order for inspection and survey of the defendant’s landand underground tunnels for the purpose of ascertaining the extent ofencroachments made by the defendant upon the plaintiffs’ property:.It was contended on behalf of the defendant that section 669 of theCivil Procedure Code referred to the inspection and survey of only “ anyproperty being the subject of such action ” and that no inspection could’be ordered thereunder in respect of defendant’s land or his tunnels.It was argued that the jurisdiction under that section was not so wideas under Order 50 Rule 3 of the English “Rules of the Supreme Court,1883 ” which provide for “ the inspection of any property or thing beingthe subject of such cause or matter or as to which: any question mayarise therein ”.
J. N. B 36046-1,00 6 (6/54)
The Chettinad Corporation, Ltd., v. Fernando.
F. A. Hayley, K.C. (with him N. E. Weerasooria, K.C., E. F. N.Gratiaen, K.C., G. C. Crosette Thambyah and S. Nadesan), for thedefendant, appellant.—The appeal is from the* order of the DistrictJudge allowing (a) an injunction to restrain the defendants from causingdamage to the plaintiffs’ mine, and (b) a commission for inspection andsurvey of the defendant’s mine under section 669 of the Civil ProcedureCode.
Taking the matter of inspection and survey first, there are two groundson which the appellant relies to set aside the order cf the District Judge,viz., (1) The Court has no power to order inspection and survey of thedefendant’s property under section 669, (2) even if the Court had suchpower sufficient material has not been placed before the Court to justifythe exercise of that power.
Under section 669 the Court has no power to grant a commissionfor inspection and survey of any property other than the property whichis the subject of the action. This action is for declaration of title toplaintiffs’ land and therefore clearly the subject of this action is theland of the plaintiffs and not the defendant’s land or mine. Section 669seems to have been taken over from Order 50 Rule 3 of English Rulesof the Supreme Court, 1883. But certain words have been omitted.The omission seems to be deliberate and therefore must be given effectto. The position then is that English Courts under Order 50 Rule 3have wider powers than our Courts have under section 669.
[Canekebatne J.—Section 669 may have been taken over from anearlier statute.]
If that is so it is clear that wider powers were given by a later statutebecause powers under an earlier statute were found to be insufficient.If the plaintiffs wanted only to enter through the defendant’s mine inorder to inspect and survey plaintiffs’ land or mine the position wouldhave been different. In this case plaintiffs want the liberty to surveyand inspect the whole of the defendant’s land.
The material placed before the Court is utterly insufficient tojustify the commission ordered in this case. The plaintiffs should haveproduced a proper plan of both their land and mine. A sketch like theone filed with the plaint is not sufficient. It is not even identified byanyone. The evidence of Seneviratne is valueless. He has no miningexperience and is not even a surveyor. The District Judge has mis-directed himself in stating and acting upon the assumption that thedefendant admitted that there was an encroachment. There was nosuch admission. At any rate no prima facie case for a survey andinspection of the defendant’s land or mine has been made out.
In regard to the injunction which was issued the defendant is notcausing any damage; therefore it is unnecessary. As the defendantis unaffected by the injunction the order of the District Judge mightstand so long as it does not violate defendant’s right of property.
H. V. Perera, K.C. (with him N. Nadarajah, K.C., andH. W. Jayewardene), for the plaintiffs, respondents.—It is possible foreven one who is not an expert to find out whether there is an encroach-ment underneath a certain land if the encroachment comes well
WUEYEWARDENE J.—The Chettinad Corporation, Ltd., v. Fernando. 3
within a certain land. The plaintiffs have come to know that there is anencroachment of their property and now seek the assistance of Courtto find out the nature and extent of such encroachment, as the plaintiffscould not get any assistance in that respect from the defendant. Theobjections of the defendant to the survey and inspection seemsentimental and fanciful.
Sub-sections (a), (b) and (c) of section 669 confer cumulative powers.Section 499 of the Indian Civil Procedure Code of 1882 wast the same assection 669 of our Civil Procedure Code. In Dhomey Dhur Ghose v.Radha Gobind Kur1 Ameer Ali J. held that subject-matter of suitreferred to in section 499 of the Indian Code was comprehensive enoughto include all matters in issue in suit. Order 52 Rule 3 of 38 and 39Victoria Chapter 77 was identical with our section 669. Under thatOrder 52 Rule 3, on facts similar to the present case, the plaintiffs wouldhave the right to inspect defendant’s mine. See Cooper and others v.Ince Hall Company *; The Earl of Lonsdale v Curven5; Bennit v.Whitehouse'; Strelly v. Peeurson5; Bervnet v. Griffiths and another *.These cases show that on making a prima facie case that an encroach-ment exists the plaintiff is entitled to an inspection. The position isthe same according to well known text books. See McSwinney onMines, 3rd Edition, 596, Bainbridge on Mines and Minerals, 5th Edition,445.
Hayley, K.C., in reply.—The observations in 24 Calcutta case arepurely obiter because in that case it was the defendant who asked forinspection of the plaintiff’s house in respect of damages to which theaction was brought by the plaintiff. Order 52 Rule 3 referred to isdifferent from section 669. It omits reference to a survey. All thecases cited were for inspection and not for survey. The case reportedin 3 Law Times was decided under a different statute giving much widerpowers. The position has been summarised in Halsbury (2nd ed.),Vol. 22, p. 577. See Lewis v. Marsh7 about the limits to be imposedif an inspection is allowed.
Cur. adv. vult.
December 18, 1946. Wijeyew ardene J.—
The plaintiffs and the defendant company claim to be the ownersof two adjoining plumbago mines called Maha Bogala Mine and Karanda-watta Mine respectively.
The plaintiffs filed their plaint on August 5, 1944, alleging that thedefendant had encroached on the plaintiffs’ property by tunnelling intoit and had wrongfully removed plumbago from their mine. They allegedthat it was necessary to have access to the tunnels in question through,the defendant’s mine for a proper inspection of the encroachment so asto enable them to submit to Court an accurate description of the courseand extent of the wrongful tunnelling operations of the defendant andascertain the quantity of plumbago wrongfully taken by the defendant.They said that before filing action they asked permission of the defendant
1 (1896) I. L. R. 24 Cal. 117 at 122.5 (1880) L. R. IS Ch. 113.
(1876) Weekly Notes 24.• (1861) 3 Law Times 735.
(1799) 4 E. R. 566.7 (1849) 8 Bare 97.
(1860) 54 E. R. 311, also 28 Beav. 119.
•.4 WIJEYEWARDENE J.—The Chettinad Corporation, Ltd., v. Fernando.
Sor such an inspection and the defendant refused to grant such permission.They stated further that “ the defendant was proceeding to fill up,flood and in other ways damage the said tunnels ” and alter their existingcondition, and that they applied for and obtained from this Court, undersection 20 of the Courts Ordinance, an injunction restraining the defendantfrom doing such acts for twenty-one days from July 21, 1944. Theyannexed to the plaint the sketch B drawn to scale showing the encroach-ment so far as they could ascertain from an inspection through theirmine and estimated tentatively the damage sustained by them atUs. 102,500. They prayed inter alia for an interim injunction and aninjunction during the pendency of the action restraining the defendantsfrom causing damage as stated in the plaint.
The plaintiffs filed with the plaint two affidavits—one from D. T.Senewiratne, the Managing Supervisor of the plaintiffs’ mine, and theother from J. L. Fernando, the Secretary of a Company working theMaha Bogala Mine under the plaintiffs. These affidavits substantiatedthe various material allegations in the plaint. Both these affidavitsshowed that D. T. Senewiratne “ made a survey ” of the encroachmentby inspection through the plaintiffs’ mine shortly after it was broughtto his notice on June 30, 1944.
The defendant filed in September, 1944, a statement opposing thegrant of the injunction and submitted two affidavits dated September 13,1944, denying that the defendant encroached on the plaintiffs’ mine orremoved plumbago from it, or that the defendant’s agents “ have beenfilling up, flooding and in other ways damaging any tunnels alleged to■hav.e been made on the plaintiffs’ land ”,
On January 25, 1945, the plaintiffs applied to the Court, under section•669 of the Civil Procedure Code, for the issue of a commission to twoLicensed Surveyors, named therein, to survey and inspect “the land ofthe defendant company and the tunnels made therein which the saidsurveyors and experts may consider necessary for the purpose of ascertin-ing the trace and extent of the encroachments made by the defendantcompany upon the petitioners’ land ”. The allegations in the petitionwere supported by an affidavit of the first plaintiff who stated that itwas necessary to have access to the underground tunnels through the■defendant’s mine for a proper survey and inspection of the encroachment,and that it was also necessary for the purpose “ to make a survey bothof the surface of the defendant company’s land and of the tunnels duginto our land and the defendant company’s land by the defendantcompany
The defendant filed on March 2, 1945, a statement objecting to theissue of the commission asked for by the plaintiffs, but did not file acounter affidavit traversing the averments in the first plaintiff’s affidavit.
The District Judge held an inquiry with regard to the granting of aninjunction and the issue of a commission. No further affidavits weretendered at that inquiry and no oral evidence was led. The plaintiffstendered certain letters marked PI to P7 which had passed betweenthe parties and their Proctors shortly after the discovery of the allegedencroachment and before the filing of this action. The District Judgeadmitted those documents though objected to by the defendant- I
WUEYEWARDENE J.—The Chettinad Corporation, Ltd., v. Fernando. 5
may add that at the hearing of the appeal before us no argument wasaddressed .to us against the admissibility of the documents, and theCounsel for the defendant appellant himself referred to these documentsand read passages in support of his case.
The present appeal is from the order of the District Judge grantingboth the applications of the plaintiffs.
It was not seriously contended before us that the injunction shouldnot have been granted. I fail to see what reasonable objection thedefendant could have with regard to that injunction. If he is doing theacts complained of, it is right that he should be restrained from doingthem. If he is not doing these acts, the injunction cannot do him harmas it will not hamper him in the working of his mine.
It was argued before us that the Commission for survey and inspectionshould not have been issued as : —
the Court had no power under section 669 to issue a commission
for the survey and inspection of the defendant’s property ;
in any event, the material placed before the Court by the plaintiff
was not sufficient to justify the issue of such a commission.
The argument of Counsel on the first point was that, as section 669of the Civil Procedure Code referred to the inspection and survey ofonly “ any property being the subject of such action ”, the DistrictJudge had no jurisdiction to authorise the commissioners to inspect and1survey the defendant’s land or his tunnels. It was argued that thejurisdiction under that section was not so wide as under Order 50 Rule 3of the English “ Rules of the Supreme Court, 1883 ” which provide for■“the inspection of any property or thing being the subject of such causeor matter or as to which any question may arise therein ”.
I do not think the jurisdiction of the Court is as limited as it is saidto be by the appellant’s Counsel. While sub-section (o) of the sectionspeaks of “ the inspection and survey of any property being the subjectof such actions ”, sub-sections (b) and (c) say that for the purpose of suchinspection and survey the persons authorised by the Court could “ enterupon or into any land or building in the possession of any party to suchaction” and could make any “observation” “which may seem necessaryor expedient for the purpose of obtaining full information or evidence
The section of the Indian Code of 1882 corresponding to section 669of our Code is section 499, and that section provided for the survey andinspection only of “any property which is the subject matter of suchsuit ”. In Dhoroney Dhur Ghose v. Radha Gobind, Kur where the HighCourt of Calcutta had to consider the scope of section 499 of the IndianCode, a similar argument was addressed to Mr. Justice Ameer Ali whosaid:—
Mr. Plough contended that the last words (Le., the words “ or as towhich any question may arise therein”) not being contained insection 499 the powers contained in-Rule 3 (i.e., of Order 50mentioned above) were not intended to be given by the Code.I entirely diffier form that view. It seems to me that the words,
1 (1896) 24 Calcutta 117.
6 WIJEYEWARDENE J.—The Chettinad Corporation, Ltd., v. Fernando.
“or as to which any question may arise therein” were omittedbecause it was thought that the words, “ the subject matter ofsuch suit” were sufficiently comprehensive to cover all mattersin issue in the suit.
No doubt, these remarks were made obiter, but they are entitled to thegreatest respect as expressing the views of a great Indian Judge.
Before 1883 the law in England on this matter was contained inOrder 52 Rule 3 in the First Schedule to the Supreme Court of JudicatureAct, 1875. That Rule provided for the inspection only “ of any propertybeing the subject of such action ”. In Cooper and others v. luce HallCompany1 decided under that Rule, the plaintiffs who were proprietors ofa colliery of seven acres brought an action for trespass against thedefendants, the proprietors of an adjoining colliery of eight hundred acres.The plaintiffs applied for an order of inspection of the defendants’ collieryand for that purpose for the removal of the barriers erected by thedefendants between the mines, for liberty to go down into the defendants’mine and for liberty to take measurements, &c. The defendants objectedon the ground that the Rule was never intended to enable a colliery-proprietor to get an inspection of his neighbour’s mine by mereallegation of trespass. They further filed an affidavit to the effectthat it was “ important for reasons apart from the action that the workingof the defendants’ mines should not be seen by the plaintiffs ”. Grantingthe plaintiffs’ application Lindley J. said : —
An order for inspection of this kind is so common in Chancery thatI should have thought this was a matter of course. Myimpression is that the plaintiffs are entitled, almost as matterof course, to inspect the defendants’ mines about the allegedboundaries ”.
In Bennitt v. Whitehouse 1 the plaintiff who was the lessee of a coalmine stated that he had reason to suspect that the defendant, the leaseeof the adjoining coal mine, was working from his own mine into theplaintiff’s mine. He sued the defendant praying for an account of thecoal wrongfully removed by the defendant and payment of its value.The defendant denied any encroachment and opposed an applicationof the plaintiff for an inspection of the defendant’s mine. Sir JohnRomilly, M.R., allowed the application and said : —
“ Wherever it appears that a person has power to make use of hisland to the injury of another, and there is prima jade evidenceof his doing so, though it is contradicted, still, as the only way ofascertaining the fact is by an inspection, the Court alwaysallows it, if it can be done without injury to the defendant”.
As regards the second point I need only say that in my opinion theplaintiffs have made a prima jacie case affording a reasonable groundfor belief that the defendants are trespassing on their mine. No doubt,the plaintiffs’ statements are contradicted by the statements in thedefendant’s affidavit, but the issue of a commission of this nature does1 (1876) Weekly No tee 24.‘ (1860) 54 E. R. 311.
Ramiah v. Rayner.
not depend on the balance of testimony (vide Bennitt v. Whitehouse(supra) ). The best evidence of the truth or the falsity of the plaintiffs’assertions will be supplied by an inspection and survey, and it is neces-sary that the trial Court should have such evidence before it.
The Order allowing the issue of the commission should, however, bemade subject to certain conditions. In the first instance the inspectionand survey should be at the expense of the plaintiffs. The plaintiffsshould also deposit a sum of Rs. 5,000 in Court as security against anydamages that may be caused to the defendants by such inspection andservey. The District Judge should, after notice to the parties, fix (a) theperiod of time during which the inspection and survey will be madereserving to himself the right to extend such period from time to time,as it seems to him to be necessary, (b) the period of notice that should begiven in writing by the Commissioners to the defendants before suchinspection and survey and (c) the maximum number of persons thatshould accompany the Commissioners on such inspection and survey.The written notice should give the names and descriptions of persons whowould accompany the Commissioners. Such persons should be selectedfrom a panel of persons submitted by the plaintiffs to the District Judgeand approved by him after notice to the defendant. The Court will havethe right to give such other and further directions as it may find neces-sary with regard to the execution of the commission even after the issueof the commission.
Subject to the modification indicated above, the order of the DistrictJudge will stand. The respondents are entitled to costs of this appeal.
Canekeratne J.—I agree.
THE CHETTINAD CORPORATION, LTD., Appellant, and FERNANDO et al., Respondents