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Present: Bertram C.J., De Sampayo J., and Loos A.J.
BANDA v. MENIKA et al
G. B. Kurunegala, 28,660.
Action for recovery of land—Incidental claim for damages—Jurisdiction
of the Court of Requests—Courts Ordinance, s. 77.
The test of jurisdiction in a land case is the value of the land orinterest in dispute irrespective of any damages or other reliefclaimed on the cause of action. Any claim for damages is onlyincidental and subsidiary, and does not affect the question ofJurisdiction of the court.
Where the action involves a mere money claim, such as anaction sounding indamages only,the continuing damagesarenot
incidental, but are part of the cause of action, and must be reckonedin determining the monetary jurisdiction of the court.
Bkbtbam C.J.—" Itisno doubta singular result thatit should
be possible to bringinconjunctiona claim to land worthBs.300,
and a further incidentalmonetaryclaim to the same amount,but
there iB nothing in the section to prevent such claims from beingcombined. "
rJ1HE facts appear from the judgment of De. Sampayo J.
Croos-Dabrera (with him Sansoni), for defendants, appellants.—
The Court of Bequests has no jurisdiction, as the value of the landand the damages claimed amount to over Bs. 800. Under section77 of the Courts Ordinance, No. 1 of 1889, the Court of Bequests hasjurisdiction to hear all actions in which the debt, damage, or demandshall not exceed Bs. 800, and also actions in which the title to,interest in, or right to the possession of any land shall be in dispute,provided the value of the land or the particular share, right, orinterest in dispute shall not exceed Bs. 300. The claim for damagesshould, therefore, be added to the value of the land in order todetermine jurisdiction. The value of a suit should be ascertainedby looking at the relief claimed. If a claim for damages is allowedto be made where the land is worth Bs. 800, it will be giving tothe Court of Bequests'a jurisdiction which was never contemplatedby the Legislature. [De Sampayo J.—The claim for deunages maybe limited to Bs. 300.] But there is no reason why such a limitationshould be imposed. Once damages are allowed to be claimed asbeing incidental to the main cause of action, there can be no limitto the amount. It is .the principle that is in question. Undersection 81 of Ordinance No. 11 of 1868, which was substantially the
21/23( 280 )
. same as section 77, it was held, in the case of Dingirihamy v.Dureya,1 that when the value of the land in dispute came up to theextreme monetary limit of the jurisdiction of the Court of Bequests,no further claim could be made by way of damages. WoodBenton J. took a contrary view in Cassim v. Sanhait,2 and heldthat the value of the land alone is the test of jurisdiction, andincidental damages need not be taken into consideration, but inthe later caise of Hewavitarane v. Marikar 3 dissents from this view.In doing so he followed the judgment of the Full Court in ThaynappaChetty v. PaMr Bawa.A The case of Cassim v. Sanhait 3 has alsobeen doubted in Silva v. Salman Appu 5 and Caro v. Arolis * It wasnot the intention of the Legislature- to enlarge the jurisdiction ofthe Court of Bequests by giving them authority to deal with caseswhere the relief claimed is over Bs. 300. The claim for damagesis independent of the claim to the land, and if by amalgamatingthem it is found that the relief claimed is in value over Bs. 800, thejurisdiction of the Court of Bequests is ousted.
Counsel also cited Mohideen v. Hapuwa 5 * 7 and Usoof v. Zainudeen .*■
R. L. Pereira, for plaintiff, respondent.—It is clear from thelanguage of section 77 that the Legislature intended to conferjurisdiction to Courts of Bequests in all land cases where the valueof the land in dispute did not exceed Bs. 300, regardless of anyclaim for damages. The claim for damages is merely incidental.Section 35 of the Civil Procedure Code supports this view. TheCourt may limit the claim for damages to Bs. 300. Counsel citedMarikar v. Ismail Lebbe.*
Cur. adv. vult.
December 19, 1919. De Sampayo J.—
The plaintiff sued the defendants for declaration of title to. anundivided two-thir.ds share of a certain land, which in the plaintwas valued at Bs. 200, and he claimed Bs. 50 as damages, and further damages at Bs. 10 per mensem until he was quieted inpossession of the share in question. The defendants in theiranswer stated that the entire land was of the value of Bs. 500, andobjected to the jurisdiction of the Court of Bequests. The Com-missioner after inquiry found that the entire land was of the valueof Bs. 400, and as the two-thirds share in dispute would then beworth, only Bs. 266.66, he decided the issue as to jurisdiction inplaintiff’s favour, and ultimately entered a decree declaring plaintiffentitled to the two-thirds share, and giving him judgment for Bs. 50per annum as damages. The contention on behalf of the defendants
i (1887) 8 S. C. C. 121.
»(1906) 3 Bal. 20.
3 (1916) 19 N. L. B. 239.
* (1866) Ram. (1863-68) 216.
5(1915) 1 C. W. R. 145.
7 (1915) 1C. W. R. 117.* (1918) 21N. L. R. 86.
(1919) 6 C. W. R. 63.
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is that, even taking Rs. 266.66 as the value of the share in dispute,the amount of damages claimed and'awarded should be added tothat value in determining the jurisdiction of the Court. Thequestion referred to a Bench of three Judges is whether this conten-tion is right.
Section 77 of the Courts Ordinance, as amended by section 4 ofthe Ordinance No. 12 of 1895, confers jurisdiction on. the Court ofRequests to hear and determine, inter, alia, “ all actions in whichthe title to, interest in, or right to the possession of any land shall
be in disputeprovided that the value of the land or
the particular share right or interest in dispute …. shall notexceed Rs. 300.” So far as language goes, it is clear that the testof jurisdiction in a land case is the value of the land or interest indispute irrespectively of any damages or other relief claimed on thecause of action. In a land case the subject-matter is the land, andthe main purpose of the action is its recovery, and it appears to methat any claim for .damages " consequential on the trespass whichconstitutes the cause of action,” as section 35 of the Civil ProcedureCode describes them, is only incidental and subsidiary, and doesnot affect the question of jurisdiction of the Court. There maybe some difficulty arising from the fact that the amount of damages,especially if they are continuing damages, may itself exceed Rs. 300.But,, inasmuch as there is no uncertainty in the actual provisionof the Ordinance, the difficulty is, I think, apparent only. Thesolution of it probably lies in drawing a distinction between thesubject-matter of the action and the relief to be granted. Theplaintiff in an action no .doubt makes his own estimate of the reliefto which he is entitled, but it is for the Court to grant it wholly orpartially according to the limitation imposed on its own powers.Section 77, for instance, gives jurisdiction in actions in which thedebt, damage, or demand does not exceed Rs. 300, and as regardsdamages in land cases, it is possible that the reason why no specialprovision is made is that it is intended that the general limitationin regard to pecuniary jurisdiction should be observed. This viewreceives some support from the judgment in Usoof v. Zainudeen.1That' was a case against an over-holding tenant, and the plaintiffclaimed ejectment and damages at a certain rate until the defendantwas ejected from the premises, and Shaw J., who decided the case,observed that, continuing damages might be claimed without theeffect of ousting the jurisdiction of the Court, but that the judgmentshould be restricted to the monetary jurisdiction of the Court.Where the action involves a mere money claim, such as mi actionsounding in damages only, the further damages are not incidentalbut are part of the cause of action, and must be reckoned in.determining the monetary jurisdiction of the Court. Such actionsare distinguishable from actions for recovery of' land with a prayer
> (1918) 21N. L. R. 86.
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for damages as incidental to the cause of aotion. This distinctionwas emphasized in Garo v.Arolis,1 in which the plaintiff sued thedefendant for having wrongfully closed a plumbago pit belonging tohim, and claimed by way of damages Rs. 300, with further damagesat the rate of Rs. 50 per day pendente Ute. Wood Renton J. heldthat the Court of Requests had no jurisdiction, and observed asfollows:“ The respondent' (plaintiff) does not seek to recover his
plumbago pit or complain of ouster from it. TTin action sounds indamages alone, and the additional damages claimed pendente liteare not in the nature of interest, nor are they referable to theprincipal demand; they are an independent head of claim.” Asregards an action for recovery of land with a . claim for damages,Cassim v. Sanhait,2 decided by Wood Renton J., is an authorityfor the proposition that under section 77 of the Courts Ordinancethe value of the land itself should be the test of jurisdiction, andthat where that test has been complied with, the jurisdiction soconferred is not ousted merely because the plaintiff claims subsidiaryand incidental relief by way of damages. . I- am in entire accordwith that decision, though the soundness of it was doubted obiterby Ennis J. in Silva v. Salaman Appu.3 What renders the positionsomewhat embarrassing is that Wood Renton J. himself withdrewthe opinion expressed by him in Cassim v. Sanhait (supra), for inthe subsequent case, Hewavitarane v. Marikar,* the learned Judgesaid that after further consideration he had come to the conclusionthat his judgment in Cassim v. Sanhait was wrong. So far as Ican see the only new material he had for the purpose of reconsidera-tion was Thaynappa Chetty v. Packir Bawa,5 to which his attentionhad not been called. I should say, with deference, that that casedid not afford sufficient ground for altering the previously expressedopinion. That was an action in the District Court on a promissorynote. The amount due at the date of action was £10, or Rs. 100,but judgment was given, with interest calculated up to the date ofjudgment, for a sum exceeding that amount. The District Judge^disallowed the costs of the action, because he said that the plaintiffmight have brought the action in the Court of Requests, whosepecuniary jurisdiction at that time was £10, or Rs. 100. TheSupreme Court however, differed from the District Judge’s opinionas to further interest being only subsidiary to the main claim, and. laid down that it was not something incidental to the ■ cause ofaction, but formed part of the cause of action itself, and furthercited Byles on Bills to the effect that where interests is made payableon the face of the instrument itself, as in the case under considera-tion, it is recoverable, not as mere damages, but as an actual partof the debt. This is a good authority in regard to an action of the
1 (1907) 10 N. L. B. 173.> (1915) 1 o. W. B. 145.
* (1906) 3 Bat. 20.«(1916) 19 N. L. B. 239.
(1866) Bam (1863-68) 216.'
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character declared in the first part of section 77 of the CourtsOrdinance, namely, an action for the recovery of “ a debt, damage,or demand," but has, I think, no bearing on the class of cases inwhich title to or interest in land is in dispute, an^ which are providedfor later in the same section. I think that the reasoning in Gassim v.8ariha.it 1 with regard to the latter class of cases is quite sound,and that its withdrawal is based on a decision which has no realconnection with it.
I am, therefore, of opinion that the Court of Bequests had juris-diction in this case, and that the appeal must be heard on the meritsof idle case. The plaintiff should, I think, have the costs of theargument before the Full Bench.
I agree. With regard to the limit of the incidental monetaryclaim, I think that the section itself imposes one. If a man claims a. declaration of title to land and damages exceeding Bs. 300, this willbe an action in which the demand exceeded Bs. 300, and would,therefore, be outside the jursidiction. This monetary claim wouldnot be brought within the jurisdiction merely because it was madein conjunction with a claim to the title to land.
It is no doubt a singular result that it should be possible to bringin conjunction a claim to land worth Bs. 300, and a further incidentalmonetary claim to the stune amount, but there is nothing in thesection to prevent such claims from being combined, and ourLegislature may well have thought it expedient that for the speedysettlement of small land cases the Court of Bequests should havejurisdiction to deal, not only with claims to title in such cases, butalso with such incidental claims as are recognized as naturallyarising in connection with them by the Civil Procedure Code itself(section 35), subject always to the ordinary limitation of the Court'sjurisdiction.
With regard to the suggestion made by Shaw J. in a previouscase, and adopted by my brother De Sampayo in this case, thatin cases of continuing damages the Court should impose its ownlimitation on the measure of the relief to be accorded, I desire toreserve my opinion. Such a result is no doubt very satisfactory,but I am not sure that it does belong not to the sphere of legislationrather than to that of interpretation.
I have had the advantage of reading the judgments of my brotherDe Sampayo and of my Lord the -Chief Justice, and I agree withthe judgment of the former, subject to the remarks of my Lord theChief Justice with regard to the judgment of Shaw J. in the case of
Usoof v. Zainudeen.2
1 (1906) 3 Bal. 20.
* (1918) 21 N. L. B. 86.
BANDA v. MENIKA et al