126-NLR-NLR-V-18-ALUBHAY-v.-MOHIDEEN-et-al.pdf
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Present; Wood Benton C.J. and De Sampayo J.
ALDBHAT v. MGHIDEEN et id.
140—D. C. Colombo, 42,918.
Injunction—Ct&rtsOrdinance,1080, s. 87(8)—Claim to compensation
unddr Biot Damages Ordinance, No. 23 of 1916.
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Before ' granting an injunction voder section 87, sob-section (8),,-of the Courts Ordinance, 18A, the Court should find on sufficientmaterial not only that the. defendant threatened or was about todispose of the property, but that he had the* intention to defraudthe plaintiff thereby.
Dh Sampayo J.—A specific debt due to the defendant from ' athird party may possibly come within that description of property,but 1 find it difficult to regard ‘ a claim for compensation . payableunder: the Biot Damages * Ordinance, No, 23 of 1015, as 'property inthe nature of a debt.
mHE facts are fully set out in .the judgment of De Sampayo
Bawa, K.V. (with him Weinman), for first and second defendants,appellants.
A. SC V. Jayewardene (with him F. M. de Saram), for plaintiff,respondent.
Cur. adv. mlt.
January 28, 1910. Du Sampayo J.-«—
This . is a somewhat extraordinary case. The plaintiff has suedfour defendants, who are alleged to be partners trading at Watte-gama, uppn a number of promissory notes, which appear to ’havebeen signed by the fourth defendant with a certain vilasam. Thetotal sum claimed is Bs. 4,608.98. The plaint, in addition to theordinary allegations, states that the defendants are to be awarded bythe Government Agent of the Central Province a sum of Bs. 12,000as. compensation^ for damages sustained by. them during the ^recentdisturbances, that the defendants are riot possessed of any property,and that " if the- said sum of Bs. 12,000 be paid to them, the'plaintiffwill not be able to obtain satisfaction of her said claim, and theplaintiff Verily believes that the defendants will dispose of the saidsum of Bs. 12,000, when so paid to them, with intent to defraud theplaintiff, and the same is an act in violation of the plaintiff's right,and will tend to render the judgment to be secured ineffectual. *'The plaint concludes with a prayer for ran injunction restraining thedefendants from receiving the said sum of money* and for *axr orderon the. Government Agent not to pay the same td them pending the
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hearing and determination ol the action. With the plaint theplaintiff 'submitted an affidavit containing the same statements "as ]I have jqst quoted, but now other foots or particulars. On presen$ifcgthe plaint with the affidavit, the plaintiff applied for an injunction interms of the prayer of the plaint. The Court'issued an interim,injunction, and fixed a date for consideration of the application.The first and second defendants then appeared and submitted anaffidavit, * in which they denied the alleged partnership and theauthority of the fourth defendant to sign the promissory notes ohtheir behalf, and stated that the first defendant, who had an exten-give businedb as a trader at Wattegama, alone carried it oh. Theyadmitted that the damages due to the first defendant were 'assessedat Rs. 12,000, and stated that of this amount Rs. 6,000 had alreadybeen pud to the first defendant and had been invested by him inrepairing and improving his boutique and residence at Wattegama,which had been destroyed by the rioters, and in re-furnishing theplace and entering into agreements with wholesale dealers for thesupply of the stock in trade, and that the balance Bs. 6,000, whenpaid, would be applied to stocking the place fully. The affidavit,further stated that the sums paid as compensation were intended toenable the recipients to establish themselves in their former locationsand start business on the same lines, as the first defendant' intendedto do, and that at the discretion of the Government the compensa*tion might be given, not in cash, but by means of orders on'merchantsfor goods to be supplied to the traders. The plaintiff filed noaffidavit in reply or furnished any other evidentiary material to theCourt, but the Court allowed an injunction as applied for, dnd alsoan order on the Government Agent requiring him not to pay themoney to the defendants. The first and second defendants haveappealed.
The provision of. the law applicable to the matter is sub-section (3)of section 87 of the Courts Ordinance, 1889, btv which the.Court isauthorised to issue injunctions “ where it appears that: the defendantduring the pendency of the action threatens or is about;to removeor dispose cf his property with intent to defraud .the plaintiff. ” Itseems to me that the provision aims at the removal or disposal ofproperty belonging to, and in the possession and control of, .thedefendant. A specific debt due to the defendants from a thirdparty may possibly come within that description of property, -butI find it difficult to . regard a claim for compensation payable underthe Riot Damages Ordinance, No. 23 of 1915, as properly- in thenature of a debt. In the Court below counsel for ike plaintiffconceded that it was not a debt, but said that it was ihoney whichthe Government had agreed to pay to the defendants, i do notquite°know what species of property is created by such an agreement.
It is said that as the Ordinance disallows all claims against >the' rioters,•the Government is bound to pay compensation to those to, whom the
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IE SaufayoJ.
Alubhay v.Mohideen
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' rioters c&used damage, but it is not clear to me that there is a legalXhs Samvayo cjfum against the Government such gs may be enforced by 'action.
— However this may be, the foundation* kid for the injunction is*n one ^sential yespect. The Court should find, on suffi-cient material, not only that the defendants threatened or wereabout to dispose of the property, but that they hod the intention todefraud the plaintiff .thereby. The District Judge does not recordany express finding on either of these points, nor had he any properevidence before him to enable him to do so. All that he says isthat ** it is not unreasonable for the plaintiff .to ask tha^ the defend-ants should be restrained from doing something which will, accordingto her, militate seriously against her chances of recovering the debtdue to her by them,” but this is not a ground which satisfies therequirements of section .87 (3) of the Courts Ordinance. Even if thecontents of the plaintiff’s affidavit are examined anew here, theywill be found-to be wholly insufficient and of no value as evidence..The person who swore the affidavit in support of the applicationfor the injunction, beyond saying that he verily believes that thedefendants will dispose of the said sum of Bs. 12,000 when paid to-them, with intent to defraud the plaintiff, nowhere states any fact&on which that belief is founded, and there is an absolute lack of anycircumstances from which any such inference may reasonably bedrawn. It appears to have been suggested in the District Courtthat the. defendants might leave the Island with the money. Butwhy or how such a suspicion has been formed does not appear. It is"not even stated that the defendants are foreigners arid not permanentresidents of the Island. Mr. A. St. Y. Jayewardene, for the. plaintiff,strenuously contended that the point of insufficiency of the evidencewas not taken in the District Court, and should not be pressed inappeal. I am not satisfied that it was not in substance taken, buteven if otherwise, this Court is bound to consider the matter in allits bearings, and to interfere if it finds that the injunction, which isan extraordinary remedy, has been granted on insufficient evidence..In my opinion the point was before .the Court in a very effectiveform, when the firsthand second defendants in their answeringaffidavit not only negatived the allegations in the plaintiff’s affidavit,such as they were, but went on to state specific facts vshowing thesubstantial position of the first defendant as a trader, the manner inwhich the Bs. 6,000 already paid by the Government Agent hadbeen applied, and the purpose for which the balance would bedevoted when paid. Mr. Jayewardene sought to draw a distinctionin procedure between an application under, section 653 of the CivilProcedure Code for sequestration on the ground of fraudulentalienation and an application under section 87 of the Courts Ordinancefor an injunction. The former requires that the applicant shouldby affidavit’ or by vivd voce evidence prove facts from which theCourt may conclude, that the defendant is fraudulently alienating
his property, but the latter does not lay down any special directions *on that point. But I have not the lightest doubt that whenever Ds Bj^avcthe Court's interference Jb dought under droumstances whiob. –
require the Court to form an opinion as to the existence oi a sufficient *Alubk9y v.cause, it is for the party to furnish evidence upon which to form* Mohideeathat opinion. The suggested distinction, however, does n<% existin fact. The Courts Ordinance only creates the jurisdiction of theCourt to grant injunctions, and for the relevant procedure we mustlook to tiie Civil Procedure Code. Now, section 662 <of the CivilProcedure Code, in regard to injunction^, provides that the applica-tion should *be “ accompanied by an affidavit of the applicant orsome other person having knowledge of the- foots, containing astatement of facts on which the application is based." In this case 'the plaintiff has stated no facte on which the application cahreasonably be based. This being so, I need not make any commenton the order issued on the Government Agent, though be was noparty to the proceedings. In my opinion the whole appiie&tion iswithout any support, and the order appealed from is erroneous. 1would set aside tiie order, with costs in both Courts.
Wood Benton C.J.—I entirely agree.
Set aside.