032-NLR-NLR-V-10-CARO-v.-AROLIS.pdf
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Present: Mr. Justice Wood Kenton.
CARO v. AROLIS.
0. R., Balapitiya, 5,668..
Court ofRequests—Jurisdiction—Rupees threehundredend further
damages—Waiver of claim in excess of jurisdictionofCourtof
Requests^Power of Appeal Court—Civil Procedure Code, s. 34.
Wherea plaintiff sued in the Court ofRequestsfor.B&.300
damagesand further damages at the rateof Rs*50perday
pendente Irte,—
Held, that the Court of Requests had no jurisdiction to entertainthe suit.
Maclachlan v. Maitland (1) and Cassim t)„ Sanhait (2) distin-guished.
i.
A
PPEAL by the defendant from . a judgment of the Commis-sioner.
A. St. V. Jayewardene, for the defendant, appellant.
Zoysa, for the plaintiff, respondent.
25th March*, 1907. Wood Renton J.—
The only question that I have to determine is whether the res-pondents' action is within the jurisdiction of the Court of Requests.He sues the appellant for having wrongfully closed* a plumbagopitf belonging to him, and claims by way of damages Rs. 300 “ with
(1888) 8 S. C. C. 133.(2) (1906) 3 Bad. 20.
1907.March 25.
1907.
March 25.
Wood
Renton
J.
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further damages at the rate of Rs. 50 per day pendente lite,*' ifthe damages pendente lite are to be added to the substantive claim,the case is, of course, one that the Court of Requests has no juris-diction to try. The learned Commissioner has taken the view thatdamages after action brought are not to be computed for thepurpose of ascertaining whether a suit is within the jurisdictionof a Court of Requests. Under the circumstances of the presentcase I am unable to agree with him.
It was held by Dias J., then Acting Chief Justice, in Maclachlan v.Maitland (1), that a sum due by way of interest, accruing afterthe date of the plaint, was not included in the amount to beconsidered from the point of view of jurisdiction in the Court ofRequests; and in Cassim v. Sanhait (2) I have myself held, withhesitation, that in an action for declaration of title to land the valueof the land itself is the test of whether jurisdiction exists or not,and that the jurisdiction so conferred is not defeated merelybecause a plaintiff claims incidental and subsidiary relief, in con-nection with ouster, by way of damages. Neither of these cases,however, ■ in my opinion, helps the present respondent. InMaclachlan v. Maitland the interest ^ allowed was only compensationto the plaintiff for being kept out of the use of his money. Itwas an incident of the real subject-matter of the suit, out of whichit grew. In Cassim v. Sanhait my decision (if it was right) restson two grounds: (i.) that section 4 of Ordinance No. 12 of 1895—repealing in regard to . this matter section 77 of “ The CourtsOrdinance, 1889 ”—makes actions for the recovery of land aheading distinct from actions of debt or damages, and seems to haveintended that in the former case the value of the land itself shouldbe the test of jurisdiction; and (ii.) that where that test has beencomplied with there is nothing in .the section to prevent a plaintifffrom obtaining ancillary damages on the ground of ouster. Suchdamages are in the nature of interest for the use of the land re-covered. Like interest, they are connected with, and grow out of,the subject claimed.p
Here, in any event, the circumstances are quite different. Therespondent doe6 not seek to recover his plumbago pit or complainof ouster from it. His action sounds in damages alone, and theadditional damages claimed pendente lite are not in the nature ofinterest, nor are they referable to the principal demand; they arean independent head of claim. Does the fact that they are claimedafter action brought, or that if the respondent had obtained judg-ment at the moment of filing his plaint the amount awaked to himwould have been within the jurisdiction of the Court of Requests,make any ^difference? I do not think so. Section 4 of OrdinanceNo. 12 of 1895, in cases of this character, makes the amount
(3) (1888) 8 S. C. C. 133.(2) (1906) 3 Bal 20.
. ( 175 )
demanded, and not the lunount awarded, the test of jurisdiction.Here the respondent at the date of his plaint demanded damagesin excess of the' jurisdiction of the Court of Bequests. I cannotthink that it was competent for him to do so.
The question was argued before me whether the claim foradditional damages could be abandoned on the hearing of theappeal, so as to obviate the plea to the jurisdiction. The appellantscounsel expressed his readiness to take this course. But Mr.' A.St. Y. Jajewardene for fhe respondent naturally objected to itsbeing permitted. In my opinion the suggested waiver comes toolate. Section 34 of the Civil Procedure Code, which enables aplaintiff to relinquish a part of his claim in order to bring the actionwithin the jurisdiction of any Court, cannot, I think, apply in theAppeal Court, except by consent, in favour of a litigant who hascontested a plea to the jurisdiction in the Court- below. Therespondent in thin case had the law well in view; for, after esti-mating his principal damages at Bs. 400 he restricted that partof his claim to Bs. 300, in order to satisfy, as he thought, theprovisions of Ordinance No. 12 of 1895. On the question as tothe additional damages; he stood firm; and he must now abidethe event. The appeal is allowed with all costs here and in theCourt of Bequests.
Appeal allowed.
1907.
March 95.
Wood
Rhntok
J.
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