Sri Lanka Law Reports
(2006) 3 Sri L R.
As the parties were residing outside the local jurisdiction of theDistrict Court of Mt. Lavinia she had correctly proceeded to determinewhether the property in suit was situated within the jurisdiction of theDistrict Court of Mt. Lavinia. However in considering this issue the twodocuments viz the certificate of the Grama Sevaka Niladhari markedA7 and the Gazette notification marked A8 which were crucialdocuments should have been taken into consideration. She hasmisdirected herself when she rejected the aforesaid two documentsas having no evidentiary value and basing her finding on the decisionin W. Robinson Fernando vs. Henrietta Fernando(1> and placing anadditional burden of proof on the petitioner. I would hold that theaforesaid two documents were of evidentiary value sufficient for her toarrive at a correct finding as to whether she had jurisdiction to hearand determine the action of the respondent and in any event thepetitioner by tendering the aforesaid documents has discharged hisburden of proving that the District Court of Mt. Lavinia had no jurisdiction.
It is contended by counsel for the respondent that the area wherethe property is situated viz W. A. de Silva Mawatha, WellawatteColombo 6 falls within the Wellawatte Police area which is apparentby the Police complaints marked 'C' and 'D' which are annexed to theplaint. That the summons and the notice of interim injunction wereserved on the petitioner by the Fiscal officer of the District Court of Mt.Lavinia and that too establishes that the address concerned falls withinthe administrative area of the Mt. Lavinia District Court and that more

Ariyaratne vs.
Premadasa (Andrew Somawansa, J. (P/CA)
than 100 cases of the same area are presently pending before theDistrict Court of Mt. Lavinia.
He further submits that if the petitioner is objecting to the jurisdictionafter receiving the summons and notice of interim injunction in thesaid case he should have filed a motion and objected to the jurisdictionand moved Court to try the said jurisdictional objection before takingany steps whatsoever in the said action. Therefore the petitioner whohas filed objections to the application for interim injunction cannot bepermitted to raise the said jurisdictional objection by way of hisobjection and invite the Court to try the said jurisdictional objectionalong with the interim injunction inquiry.
It is important to note that in the District Court the Court had alreadygone into the application of the interim injunction sought by therespondent and granted the said interim injunction on 15.12.2004.Therefore he submits that in considering the provisions contained inSection 39 of the Judicature Act No. 2 of 1978, the petitioner cannotbe permitted to object to the jurisdiction of the original Court at abelated stage. Section 39 of the Judicature Act No. 2 of 1978 reads asfollows:
"Whenever any defendant or accused party shall havepleaded in any action, proceeding or matter brought in anyCourt of First instance neither party shall afterwards beentitled to object to the jurisdiction of such court, but suchcourt shall be taken and held to have jurisdiction over suchaction, proceeding or matter".
He further submits that the lack of local jurisdiction is a contingentand/or latent want of jurisdiction and therefore waiver or acquiescencedisentitles a party from objecting to such jurisdiction at a belated stage.
I am not at all impressed with the aforesaid submissions for neitherthe police complaint marked 'C' and 'D' nor the fact that an enjoiningorder, notice of an interim injunction and summons have been issued
Sri Lanka Law Reports
(2006) 3 Sri LR.
by the District Court of Mt. Lavinia or that more than 100 cases of thesame area is pending in the District Court of Mt. Lavinia would berelevant in any way to the objecting to the jurisdiction and movingCourt to try the said issues of objection to the jurisdiction of Courtbefore the objection or answer is filed is a novel innovation unknown tolaw and counsel for the petitioner has failed to cite any authority tosubstantiate this procedure. In the absence of such procedure asproclaimed by counsel for the petitioner, it must be accepted that thepetitioner has taken up objection to the jurisdiction at the earliestpossible opportunity.
In Jaladeen vs. RajaratnamP> and in David Appuhamy vs. YasassiThera™ it was held that:
"An objection to jurisdiction must be taken at the earliest possibleopportunity”.
In the case of Blue Diamonds Ltd., vs. Amsterdam-Rotterdam M.V.W
What section 76 required is a specific denial of jurisdiction. Noparticular formula is required. A plea which ex facie and unambiguouslyinvolves a denial of jurisdiction would suffice.
Counsel for the respondent also contends as it were in desperationthat the Court cannot act merely upon the Grama Sevaka's report andif Court wants to properly determine an objection relating to the localjurisdiction, the party who is objecting to jurisdiction should lead vivavoce evidence such as Grama Sevaka/Registrar and Fiscal of the Courtto testify with regard to the exact location of the property in suit andwhether such property falls within the jurisdiction of such Court. In thepresent case the petitioner has not moved for an viva voce inquiry toestablish his purported jurisdictional objection that the property inquestion falls outside the boundary of the District Court of Mt. Laviniajurisdictional area, further he submits that in the Gazette Notificationbearing No. 43/3 dated 2nd July, 1979, it is not expressly, mentionedthat the Pamankada West falls within the Colombo jurisdiction.
Ariyaratne vs.
Premadasa (Andrew Somawansa, J. (P/CA)
The aforesaid submissions are without any merit and are merelysurmise and conjecture. In any event, the plaint in the instant actionhas been filed on 18.08.2004 and in terms of the government gazetteNo. 1223/5 dated 11.02.2002 limits of jurisdiction which were to beoperative from 15.02.2002 clearly indicate that Pamankada West fallswithin the jurisdiction of Colombo and not within the jurisdiction of Mt.Lavinia. In the circumstances the lack of jurisdiction is apparent andthere was no burden cast on the petitioner to lead viva voce evidence,such as Grama Sevaka, Registrar and Fiscal of the Court to testify asto the exact location of property in suit and that its outside thejurisdiction of such Court for the trial Judge is presumed to know thelocal limits of his or her jurisdiction. In the circumstances the facts inRobinson Fernando’s{i) case has no application to the facts of thiscase for the same reasons that part of Section 9 of the Civil ProcedureCode which provides for a situation where there is uncertainty as tothe Court that has jurisdiction also has no application to the instantaction.
The aforesaid provision in Section 9 of the Civil Procedure Codereads as follows:
"When it is alleged to be uncertain within the local limits of thejurisdiction of which of two or more courts any immovable property issituate, any one on the those courts may, if satisfied that there isground for the alleged uncertainty record a statement to that effect,and thereupon proceed to entertain and dispose of any action relatingto that property; and its decree in the action shall have the sameeffect as if the property were situate within the local limits of itsjurisdiction".
However in view of the material placed before Court specially thetwo documents viz : the certificate of the Grama Sevaka Niladharimarked A7 and the gazette notification marked A8 there cannot beany uncertainty as to the jurisdiction of the Court Counsel also citedthe W. Robinson Fernando vs. Henrietta Fernando (supra) whereinCourt observed:
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"The position however appears to be different where the want ofjurisdiction is not apparent on the face of the record but depends uponthe proof of facts. In such a case, it is for a party who asserts that thecourt has no jurisdiction to raise the matter and prove the necessaryfacts".
As stated above, the certificate from the Grama Sevaka NiladhariPamankada West counter signed by the Division SecretaryThimbirigasyaya maked A7 and a copy of the government gazettenotification marked A8 was available to the learned District Judge whenshe was called upon to decide the question whether the District Courtof Mt. Lavinia had jurisdication to entertain the action.
In any event, journal entry No. 6 dated 22.09.2004 reads asfollows:
It appears that the learned District Judge had directed the inquiry tobe concluded by written submissions. Having directed so she cannotnow be heard to say that the petitioner should have proved that shelacked jurisdiction to hear and determine the case by viva voce evidence.
For the foregoing reasons, I would set aside the impugned order ofthe learned District Judge dated 15.12.2004 with costs fixed atRs. 20,000/-
Application allowed.