013-SLLR-SLLR-2008-V-2-DARLEY-BUTLER-Co.-Ltd-v.-ANOOS-AND-OTHERS.pdf
CADarley Butler Co. Ltd. v149
Anoos and others
DARLEY BUTLER & Co. Ltd
v
ANOOS AND OTHERS
COURT OF APPEAL.
CHANDRA EKANAYAKE, J.
GOONERATNE, J.
CA 506/95 (F)
DC COLOMBO 15527/MBSeptember 10, 2007
Civil Procedure Code -Defendants sued jointly and separately – Onedefendant dead as at the date of institution of action – Could the suit beproceeded against the other – Should there be substitution? Action nullity?Coram non judice – Civil Procedure Code – Section 18 – Section 14A -Amendment 6 of 1990 – Jurisdiction?
The plaintiff-appellant instituted mortgage bond action seeking judgmentagainst the 1-4 defendants-respondents jointly and severally in a certain sumwith interest. The 2nd defendant in his answer contended that, due to thedeath of the 4th defendant prior to the institution of the action, the suit/plaintbecome invalid in law and is null and void and action cannot be maintained.The District Judge dismissed the action against the 1-3 defendants.
Held:
When the defendants were sued on their joint and several liability actionhas to proceed against the other defendants but no substitution can beaffected in the room of the deceased 4th defendant who was dead at thedate of institution of the action.
Per Chandra Ekanayake, J.
"By substitution, one person is placed under another to do something. It isclear that to substitute a legal representative another person should haveexisted – in the instant case when the 4th defendant was dead as at the dateof institution of action no substitution could be effected".
The death of the 4th defendant prior to the institution of the action does notrender the action against the others a nullity. Action could be proceededwith against the other defendants – but not against the legal representativeof the 4th defendant.
150Sri Lanka Law Reportsf2008] 2 Sri L.R
Court is always clothed with jurisdiction to see whether it has jurisdiction totry the cause submitted to it. Jurisdiction divides itself into three heads. Inorder to the validity of the judgment — the Court must have jurisdiction ofthe persons, of the subject matter and of the particular question which itassumes to decide. If the Court has no jurisdiction it is of no consequencethat the proceedings had been formally conducted for they are coram nonjudice.
APPEAL from the Judgment of the District Court of Colombo.
Cases referred to-
Dassanayake v People's Bank and others CALA 169/96.
Pratap Chand Meheta v Smt. Krishan Devi Meheta 1988 Delhi 267,271.
Nevandra v D.A. Gandhi AIR Bom. 589.
Ittapana v Hemawathie 1981 1 Sri LR 483.
Nigel Hatch PC with K. Geekiyanage for plaintiff-appellant.
Hemasiri Withanachchi for 2nd defendant-respondent.
Cur.adv. vult
November 2, 2007
CHANDRA EKANAYAKE, J.
The plaintiff-appellant (hereinafter sometimes referred to as theplaintiff) had instituted the action bearing No. 15527/MB seekinginter alia, judgment and decree against the 1 st to 4th defendant-respondents (hereinafter sometimes referred to as the 1st to 4thdefendants) jointly and severally in a sum of Rs. 350,852.89 withinterest thereon as mentioned in sub-paragraph(a) of the prayer tothe plaint, a declaration that the land and premises morefullydescribed in the scheduled to the plaint is bound and executableand the other reliefs sought by sub-paragraphs (d) to (j) of theprayer to the plaint.
The 2nd defendant in his answer dated 09.10.1992 whilstdenying the averments in the plaint had taken up the position that,due to the death of the 4th defendant prior to the institution of theaction, the suit and/or plaint becomes invalid in law or null and voidand therefore the action cannot be had and maintained. In theaforesaid premises 2nd defendant had sought a dismissal of theaction of the plaintiff.
QADarley Butler Co. Ltd. v151
Anoos and others (Chandra Ekanayake, J.)
When the trial commenced against the 2nd defendant in theabsence of any admissions between the parties, the issues 1 to 14and 15 to 18 had been raised by the plaintiff and the 2nd defendantrespectively. Issues 15(a) and (b) of the 2nd defendant beingconsidered as preliminary issues those had been tried by thelearned trial Judge first. By the order dated 22.08.1995 the learnedJudge having answered those issues 15(a) and 15(b) in favour ofthe said defendant had proceeded to dismiss the action of theplaintiff. This is the judgment which has been impugned by thisappeal.
*
At the hearing of this Appeal this Court had the benefit ofhearing oral submissions of Counsel who represented both parties.
It was strenuously urged by the Counsel for the plaintiff that asthis was an instance where the 4th defendant being one of thedefendants sued in this action jointly and severally with the otherdefendants and he was dead as at the date of institution of theaction, the suit can be proceeded with against the other defendantsand legal representatives of the deceased 2nd defendant aftersubstitution. In view of this contention an unreported decision ofthis Court i.e. – Dassanayaka v People's Bank and 3 others(*> wascited.
Situation would have been entirely different if it was a suitagainst a sole defendant since the suit filed against a soledefendant who was dead is a nullity. In law of Civil Procedure – 8thEdition – Part – 2 at page 1162 – Sarkar states thus –
"The suit filed against a sole defendant who wasdead is a nullity and the plaintiff cannot be allowedsubsequently to amend the suit and substitute thelegal representatives in place of the defendant.[Pratap Chand Mehta v Smt. Krishna Devi Mehta(2l"
In this case it had been brought to the notice of the District Courtthat as at the date of institution of the action the 4th defendant hadbeen dead. Here also the 4th defendant was a person sued jointlyand severally with the other defendants to obtain reliefs sought bythe prayer to the plaint. It is common ground that the saiddefendant was dead as at the date of the action (20.8.1987). Thisposition was supported by the Death Certificate subsequently
152Sri Lanka Law Reports[2008] 2 Sri L.R
tendered to the District Court after trial commenced. As evidencedby the death certificate of the 4th defendant, the date of death is18.12.1986, which is definitely after the institution of the action.
What needs consideration now is the contention of the 2nddefendant's Counsel that in view of the Journal Entry dated03.01.1989 since Fiscal had reported that the 4th defendant wasdead by that time, the 2nd defendant had the full knowledge of thedeath of the 4th defendant at the time of filing the answer. Whetherthe 2nd defendant had the knowledge of the death of the 4thdefendant or not is immaterial since it is undisputed that the 4thdefendant was dead as at the time of institution of the action. ThisCourt has to be mindful of the position that case at hand is a suitwhich was filed not against a sole defendant who was dead as atthe date of institution of the suit. Therefore what has to bedetermined is since this being a case where the 4th defendant wassued jointly and severally with the other defendants on their jointand several liability and the 4th defendant was only one of the 4defendants, whether the suit could proceed against the otherdefendants and the legal representatives of the deceased 4thdefendant after due substitution. On the other hand proceedings of30.09.94 makes it amply clear that the case had being fixed for trialonly against the 2nd defendant. Thus trial commenced only againstthat defendant. Further it is undisputed that on that day issues wereraised on behalf of that defendant namely the 2nd defendant. Assuch it is not proper to have raised an issue such as 15(b) whichbeing an issue covering the suit against the other defendants also.However issue No. 15(b) had been allowed by the trial Judge.
Since this is a case where the defendants were sued on theirjoint and several liability as already observed, action has toproceed against the other defendants, but no substitution can beeffected in the room of the deceased 4th defendant who was deadat the date of institution of the suit. In this regard the meaning of theword 'substitute' needs consideration. According to Stroud’sJudicial Dictionary of words and Phrases (6th Edition) – Vol. 3 atpage 2557.
"SUBSTITUTE. – “Substitute, 'substitutus', one placed under
another to transact or do some business" "
q/Darley Butler Co. Ltd. v153
Anoos and others (Chandra Ekanayake, J.)
By substitution, one person is placed under another to do
something So it is amply clear that to substitute a legal
representative another person should have existed. In the presentcase when the 4th defendant was dead as at the date of institutionof the suit, there was no person in existence/alive. So nosubstitution could be effected. Substitution could be effected only inthe room of or on behalf of some one who was alive at the time ofinstitution of the suit. So this situation has to be distinguished froman instance such as bringing on record the heirs of a deceaseddefendant. Probably that has to be considered under an applicationmade under Section 18 of the Civil Procedure Code. In this contextit would be appropriate to consider the decision in Nevandra v D.H.Gandhft), which being a case dealt with an application to bring onthe record under 0.1.R. 10 of Civil Procedure Code 1908. Furtherit appears that the relevant clause of the said rule being clause (2)which appears to be identical with the provisions of Section 18 ofour Code. In the above case at 592 it was observed as follows-:
In the present case it is the admitted position that someof the defendants are alive and it is not as if defendantNo. 1 was the only real defendant in the suit and in sucha case, in my view, it is the settled position as shown bythe decisions referred to earlier, that the mere fact thatone of the defendants was dead at the time of theinstitution of the suit does not render the suit a total nullityso that the heirs of the deceased defendant cannot bebrought on record at all."
Having observed as above the application for bringing the heirsof the deceased defendant No. 1 (in that case) was allowed.
A careful review of the above decisions would demonstrate thatwhen the defendant who was dead as at the institution of the suit isnot the sole defendant still no substitution can be effected in hisroom, but the action could proceed against other defendants.However one has to be mindful of the position that an applicationmade to bring the legal heirs on record by invoking remedies to wit- under Section 18 or Section 14(A) of the Civil Procedure Code(amended by Act No. 6 of 1990) could be considered.
Obviously the answer to issue 15(a) has to be – Yes, because it iscommon ground that the death of the 4th defendant had occurredprior to the institution of the action and further same was wellsupported by the death certificate of the 4th defendant already filedof record.
With regard to issue 15(b) the death of the 4th defendant priorto the institution of the action does not render the action against theothers a nullity. With regard to validity of a judgment theobservation of the Supreme Court in Ittapana v Hemawathiei4)would be of importance here. PerSharvananda, J. (as he then was)at 483.
" Therefore, a Court is always clothed with
jurisdiction to see whether it has jurisdiction to try thecause submitted to it.
Jurisdiction naturally divides itself into three heads. Inorder to the validity of a judgment, the Court must havejurisdiction of the persons, of the subject matter and ofthe particular question which it assumes to decide. Itcannot act upon persons who are not legally before it,
upon one who is not a party to the suit ; upon a
defendant who has never been notified of theproceedings. If the Court has no jurisdiction, it is of noconsequence that the proceedings had been formallyconducted, for they are coram non judice. A judgmententered by such Court is void and a mere nullity (Black onJudgments – P.261)"
In the present case there was no 4th defendant inexistence/alive as at the date of the institution. So in the light of theabove principle of law, in any event the District Court was not
15(a)
(b)
154Sri Lanka Law Reports(2008] 2 Sri L.R
However in the case at hand, the learned Trial Judge by hisjudgment had proceeded to answer issues 15(2) and 15(b) of the2nd defendant in the affirmative. The above 2 issues arereproduced below:
QADarley Butler Co. Ltd. v155
Anoos and others (Chandra Ekanayake, J.)
clothed with jurisdiction to try the cause submitted to it with regardto the 4th defendant.
From the very inception the action was instituted against severaldefendants on their joint and several liability. Therefore action couldbe proceeded with against the other defendants (1 to 3defendants). In view of the above, answer given to issue 15(b) iserroneous and it should have been answered as – "No."
For the above reasons my considered view is that the learnedTrial Judge had erred when concluding that plaintiff's action wasliable to be dismissed (which means action against 1 to 3defendants).
For the reasons stated as above I am unable to agree with thesubmissions of the learned Presidents Counsel for the plaintiff thatthe suit can be proceeded with against the other defendants andthe legal representatives of the deceased 4th defendant after duesubstitution. Definitely suit can proceed against the otherdefendants (1 to 3).
In the light of the above this becomes a fit instance to set asidethe aforesaid judgment and same is hereby set aside. I wouldaccordingly allow the appeal and the learned District Judge isdirected to proceed with the action according to law against theother defendants. However no order is made with regard to costsof this appeal.
Registrar of this Court is directed to forward the original recordin D.C. Colombo Case No. 15527/MB to the Registrar of therespective District Court with a copy of this judgment forthwith.
GOONERATNE, J. – I agree.
Appeal allowed.
District Judge directed to proceed against the 1 – 3 defendants.