KEUNEMAN J.—Dharmatilake v. Brampy Singho.
1838Present: Kenneman and Nihill JJ.
DHARMATILAKE v. BRAMPY SINGHO et al.
165—D. C. Kalutara, 19,564.
Claim inquiry—Absence of judgment-creditor at inquiry—Order upholding claimwithout investigation—Failure of claimant to adduce evidence—Order notres judicata—Civil Procedure Code, ss. 243, 244 and 247.
The terms of section 243 of the Civil Procedure Code render it impera-tive on the claimant to adduce evidence in support of his claim, whetherthe judgment-creditor be present or not at the inquiry.
Where the requirements of section 243 have not been followed, anorder allowing a claim cannot be regarded as one made under section 244,to which the conclusive effect given to it by section 247 would apply.Isohamine v. Munasinghe (29 N. L. R. 277} followed.
Section 114 (e) of the Evidence Ordinance means that if an official actis proved to have been done, it will be presumed to have been regularlydone. It does not raise any presumption that an act was done ofwhich there is no evidence and the proof of which is essential to a case.
PPEAL from a judgment of the District Judge of Kalutara.
N. Nadarajah (with him U. A. Jayesundera and V. F. Gunaratne), forplaintiff, appellant.
N. E. Weerasooria, K.C. (with him Gilbert Perera and A. E. R. Corea),for second defendant, respondent.
Cur. adv. vult.
December 21, 1938. Keuneman J.—
This action was brought by plaintiff under section 247 of the CivilProcedure Code. The plaintiff was the substituted plaintiff in D. C.Colombo, 53,771 where in execution of the decree against the presentfirst defendant certain premises were seized and were claimed by thepresent second defendant. The claim of the second defendant wasupheld on January 20, 1936, and plaintiff thereafter brought the presentaction against the first and the second defendants. In this action thesecond defendant pleaded that an earlier order of August 30, 1934,upholding his claim in action D. C. Colombo, 53,771 was res judicata.Certain issues were framed, but issues. 4 and 5 relating to the question ofres judicata were by agreement taken up for decision first. The learnedDistrict Judge decided these issues in favour of the second defendant,and dismissed plaintiff’s action, and the plaintiff appeals from thatjudgment.
In D. C. Colombo, 53,771, the original plaintiff obtained judgment anddecree on October 5, 1933, and writ was issued on October- 10, 1933,returnable on October 9, 1934. Thereafter on January 29, 1934, theoriginal plaintiff assigned his decree to the present plaintiff by deed, andon February 5, 1934, an application was made by the present plaintiff tohave himself substituted as plaintiff in that case. The original plaintiffconsented to the substitution on March 9, 1934, but objections were .filedby the defendant in that case, and substitution was not in fact allowed40/36
KEUNEMAN J.—Dharmatilake v. Brampy Singho.
by the District Judge till November 19, 1934. An argument wasaddressed to us that substitution was effected earlier, but I think thatargument cannot be maintained.
Meanwhile on July 12, 1934, the Fiscal had seized under the decree theproperty in question, and claim was made by the present second defendanton July 30, 1934. The right under which the claim was made was statedtube deed No. 1,735 dated January 16, 1934. As the land was situatedin Kalutara, the claim was referred to the District Court of Kalutara.On July 31, 1934, the learned District Judge ordered stay of sale, andnotice for August 30, 1934. On that latter date the journal entry by anacting District Judge runs as follows : —
“ Claimant in person. Present.
Notice served on plaintiff personally.—Absent—Claim upheld”.
It seems clear that the original plaintiff addressed a letter P 3 datedAugust 25, 1934, to the District Judge stating that he had assigned thedecree and that the present plaintiff had been substituted as plaintiffThis letter certainly reached the permanent District Judge whose initialsappear on it as against the date August 28. But there is nothing to showthat it was brought to the notice of the District Judge who acted onAugust 30. The statement in the letter that the present plaintiff hadbeen substituted plaintiff by that date was however not correct, and theplaintiff on the record was still the original plaintiff.
Neither the original plaintiff nor the present plaintiff instituted anaction under section 247, Civil Procedure Code, within fourteen days ofAugust 30, 1938, and the second defendant now claims that this order isres judicata.
Counsel for the appellant argued that the District Judge, in view of theletter P 3, should have postponed his order, and issued notice on thepresent plaintiff. As far as the notice was concerned, it was served onthe party who was then plaintiff on the record, and I do not agree thatany notice had to be given to the present plaintiff at that stage of theproceedings.
Counsel for the appellant next'argued that the order made by thelearned District Judge could not be regarded as an order under section 244of the Civil Procedure Code, in view of the fact that the claimant hadnot adduced any. evidence to show that at the date of the seizure he hadsome interest in or was possessed of the property seized. He dependedon the wording of the order which I have quoted earlier, and argued thatthe District Judge upheld the claim merely because the judgment-debtorwas absent. He argued that under section 243 it was the imperativeduty of the claimant to adduce evidence in support of his claim, and thatit was only when such evidence was adduced that an order releasing theproperty from seizure could be made under section 244. He also arguedthat under ' both those sections an investigation was necessary eventhough the judgment-debtor was absent, and that no investigation hadbeen made by the District Judge. He accordingly argued that thisorder could not be regarded as conclusive within the terms of section 247.
Under section 241 after the Fiscal sends the report of the claim, theCourt proceeds to investigate the claim “in a summary manner”.Under section 242 the sale may be postponed for the purpose of making
KEUNEMAN J.—Dharmatildke v. Brampy Singho.
this investigation. Section 243 states that “ the "claimant ….must on such investigation adduce evidence to show that at the date ofthe seizure he had some interest in or was possessed of the propertyseized”. Section 244 states that “If upon the said investigation theCourt is satisfied that, for the reason stated in the claim or objection,such property was not, when seized, in the possession of the judgment-debtor …. or that …. it was so in his possession noton his own account or as his own property, but on account of or in trustfor. another person …. the Court shall release • the property. . . . from seizure”. Under section 245 if the Court is satisfiedthat the property was at the time of seizure in possession of the judgment-debtor as his own property, the Court shall disallow the claim. Section243 is in its terms imperative, and places a duty'on the claimant to“ adduce evidence ”. In Chelliah v. Sinnacutty1 Pereira J. stated,“ Under section 243 of the Code it is incumbent on the claimant to adduce.evidence in the first instance ”. In fact so heavy was this burden, thatthe learned Judge held that if the claimant was absent on the date of theinquiry after notice, his claim should be disallowed. Justice Garvin, inthe case of Isohamine v. Munasinghe emphasized the importance ofsection 243. He made certain interesting comments on the sectionsrelating to claims. First he held that “ the words ‘on such investigationcan only mean at the sitting of the Court for the investigation of theclaim ”. He continued, “ if at the sitting of the Court or, to use thelanguage of section 243, ‘ on such investigation ’ the claimant fails toadduce evidence, the Court can but disallow the claim since the claimanthaving failed to establish that he had an interest in or was possessed ofthe property, it may surely be inferred that the judgment-debtor andnot the claimant is in possession”. It was held by the Divisional Courtthat when a claim was disallowed under these circumstances, that,amounted to an order under section 245, which became conclusive whenthe claimant failed to bring an action under section 247.
The learned District Judge was of opinion that where the judgment-creditor was absent at the date of the inquiry, it was equally open to theCourt merely in consequence of that fact to uphold the claim. I do notthink this result follows from the judgments cited. No duty is placedby the relevant sections of the Code on the judgment-creditor to adduceevidence, while an imperative duty is imposed on the claimant to do so.The ratio decidendi of these judgments accordingly does not apply. Onthe contrary, I think that the terms of section 243 make it necessary forthe claimant to adduce evidence, whether the judgment-creditor is presentor not at the inquiry, and where the requirements of section 243 have notbeen observed, I do not think that any allowance of the claim can beregarded as an order under section 244.
The District Judge rested his finding in this connection partly on theform of notice issued to the judgment-creditor, who was noticed to appearand “show cause if any why the claim preferred by the above-namedclaimant should not be upheld with costs ”. It was contended beforeus that this matter.was governed by the sections relating to summaryprocedure, and that the effect of the District Judge’s order taken in• 18 N. L. R. 65.* 29 N. L. R. 277 (Divisional Court).
KEUNEMAN J.—Dharmatilake v. Brampy Singho.
conjunction with the notice was to establish an order nisi under section377 (a). In the first place the claim sections, section 241 et seq., do notauthorize the use of summary procedure, but section 241 merely saysthat the “investigation” shall be made “in a summary mannerNext, the sections relating to summary procedure require petition andaffidavit to be filed before order is obtained, and that requirement has noapplication to claim inquiries. Again the only order made by theDistrict Judge on July 31, 1934, was “ Notice for August 30, 1934No order nisi was entered by the Judge, nor does the notice indicate thatany such order nisi had been entered. Further, I do not think that theDistrict Judge was entitled to enter an order nisi in view of the burden .placed on the claimant under section 243.
The only case cited to us which most nearly resembled the present onewas Kiri Banda v. Assen In that case a claim was made in 1891 to aproperty seized, where after investigation the property was released fromseizure. Three years later the same property was seized under the samedecree, and was again claimed and the claim allowed. In the action. under section 247 which followed, it was held that the order in the originalclaim inquiry was conclusive. There is, however, the vital differencethat in the case cited, there had been investigation of the claim in thefirst instance, before the order allowing the claim was made.
Counsel for the respondent next argued that the order allowing theclaim was an order which the District Judge had jurisdiction to make,and that we must not look behind that order. He relied on the case ofSinnatamby v. Ramanathan In that case all that appeared on therecord was “ parties absent, claim set aside ”. Pereira J. said: “ I donot think it is competent in this case to look behind the order settingaside, or, in other words, disallowing the claim. The order is one that the.Court had jurisdiction to make under section 245 Civil Procedure Code.Being an order made in the absence of the claimant, he might possiblyhave moved on proper material that it be vacated, but so long as theorder stood it was operative although made on insufficient materials”.It is to be noted that this also was a case where the claimant was absenton the date of inquiry, and it is difficult to know whether the specialconsiderations applicable to the case of the absence of the claimant weretaken into consideration by the learned Judge. At any rate, in latercases in Ceylon the question whether an order was properly made undersection 244 or 245 has been considered, and the. proceedings examinedfor the purpose of deciding the question. For example, in Perera v.Fernando where a claim was dismissed on a preliminary objection takenby the other side without hearing evidence or going into the merits, thiswas held not to be a disallowance of the claim under section 245 and theclaimant was later allowed to vindicate title to the property, althoughhe had failed to bring an action under section 247. Again in Marikar v.Perera am order was made by the District Judge after, obtaining certaininformation from the Secretary, without a sitting in Court directed to theinvestigation of the claim. It was held that this was not an order madeunder section 245, and that it was not conclusive,'in the absence of anaction under section 247. In this case Garvin – J. refers to “ a long seriesL. R. 27.31 C. W. R. 17.
3 2 Bal. Reports 88.*29 AT. L. R. 61.
KEUNEMAN J.—Dharmatilake v. Brampy Singho.SOI
of judgments of the Court, based upon an examination of sections 244,245, and 246 and the kindred sections of the Code, that the order which ismade conclusive by section 247 is an order passed by the Court afterinvestigation of the claim ”.
The case of Sardhari Lai v. Ambika Pershad1 was also cited to us.lord Hobhouse delivering the judgment of their Lordships of the PrivyCouncil said:“ the Code does not prescribe the extent to which the
investigation should go; and though in some cases it may be proper thatthere should be as full an investigation as if a suit was instituted for thevery purpose of trying the question, in other cases it may also be the mostprudent and proper course to deliver an opinion on such facts as arebefore the subordinate Judge at the time leaving the aggrieved party tobring the suit which the law allows to him. However …. theorder was made, and it was an order within the jurisdiction of the Courtthat made it ”. It is to be remembered that (in the words of LordHobhouse) “ the sole question in this suit is whether it is brought in timeto satisfy the exigencies of the Law of Limitations”. Further there wasnothing before their Lordships to show what took place before the sub-ordinate Judge, except that both parties were before him, and it waspossible that they had so far agreed on the facts that he was enabled todeliver his opinion off-hand. The main point discussed was not theabsence of any investigation, but the extent of the investigation necessary.This Privy Council judgment has been discussed in subsequent cases inIndia. In Koyyana Chittemma v. Doosy Gavarama3 it was held that anorder that purports to be an adjudication on the merits of the case can beregarded as made after investigation, and in Bal Makund v. Maqsud AH',that an order passed is not operative only if there has been no investigationwhatever, but that it is operative if there has been some investigationwhether perfunctory or satisfactory.
In the present case it appears to me that there has been no investigationhowever perfunctory, and that there has been no adjudication on themerits from which we may presume that there has been some investigation.The journal entry of June 30, 1934, reads “ claimant in person—present.Notice served an the plaintiff personally—absent. Claim upheld ”.The natural presumption is that the claim was upheld, because of theabsence of the plaintiff. But it is argued that in virture of section 114,illustration (e), we must presume that the necessary evidence had beenadduced by the claimant under section 243. But that illustration onlyTaises a presumption as to the regularity of official acts. I think it is not-possible to stretch it to a presumption that all necessary evidence hasbeen taken before an order is made, of the dictum of Woodroffe J. iriNavendra Lai Khan v. Jogi Hari. “The meaning of section 114 (e) ofthe Evidence Ordinance is that if an official act is proved to have beendone, it will be presumed to have been regularly done. It does not raiseany presumption that an act was done, of which there is no evidence andthe proof of which is essential to the plaintiff’s case ”. In this case, Ithink it was incumbent on the second defendant to show that the orderof August 30, 1934, was an order which was conclusive under section 247,and I think the burden lay upon him to establish that the requirementsi I. L. R. 15 Colo. 521.» (1917) A. J. R. Otulh 99.
» I. b. R. 29 Madras 229.* I. L. fl. 32 Colo. 1107.
HEAHNE J.—Aseervatham v. Seveity.
of section 243 were satisfied. Further, the fact whether he had adducedevidence on that occasion was a matter which was especially within hisknowledge under section 106 of the Evidence Ordinance, and if he wishedto supplement the entries on the record, it was within his power, to do so.
In. all the circumstances I hold that the order of August 30, 1934, wasnot an order duly made under section 244, Civil Procedure Code, and thatit was not conclusive under section 247. The issues 4 and 5 must beanswered in favour of the plaintiff. I allow the appeal and set aside thejudgment of the learned District Judge, and send the case back for thedecision of the other issues. The plaintiff is entitled to the costs of theappeal and of the trial already had. All other costs will be costs in thecause.
Nihill J.—I agree.
DHARMATILAKE v. BRAMPY SINGHO et al