066-NLR-NLR-V-34-HUSSAN-v.-PEIRIS-et-al.pdf
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Hussan v. Peiris.
1932 Present: Macdonell C.J., Garvin S.P.J., and Dalton J.
HUSSAN w. PEIRIS et al.
209—D. C. Kalutara, 14,612.
Jurisdiction—Partition action—Several defendants—Residence—Test of juris-diction—Any defendant—Courts Ordinance, s. 65 and Civil ProcedureCode, s. 9 (a).
An action may be brought in a District Court where any party defend-ant resides, viz., any defendant against whom the right to any reliefis alleged to exist.
A party defendant in section 65 of the Courts Ordinance and in section9 (a) of the Civil Procedure Code means any party defendant.
T
HIS was an action in which the plaintiff sued the defendants allresident within the jurisdiction of the District Court of Kalutara to
partition a land, situate at Beruwala, a place beyond the jurisdictionof the Kalutara Court. The intervenients, who were residents at Beru-wala, claimed a portion of the land and pleaded that the Court hadno jurisdiction. The District Judge upheld the plea and dismissedthe action.
N. E. Weerasooria (with him D. E. Wijewardene), for plaintiff-appellant.—There is no question that the District Court of Kalutara had jurisdictionat the commencement of the action as the plaintiff and all the defendantswere resident at Kalutara. Jurisdiction is conferred on a District Courtby section 65 of the Courts Ordinance, and section 9 of the Code. Theword used is “ a party defendant ”. The Charter (section 24) says “ theparty or parties defendant ”. In section 65 of Ordinance No. 11 of 1868rthe words used are “ the party defendant ”. This must be construed withOrdinance No. 1 of 1852 (Interpretation Ordinance) which says that thesingular includes the plural. A distinction has therefore been drawn bythe use of the words “ a party defendant This was presumably copiedfrom the Indian Act of 1882, section 17. The change was introduceddeliberately. Section 77 of the Courts Ordinance, which confersjurisdiction on a Court of Requests, says “ the party or parties defendantThe word “ a ” in a statute means “ any ”, Queen v. Justices of Durham *.A court has jurisdiction where one defendant resides within itsjurisdiction, Tirimandura v. DassanaikeMohamedu Meera v. OssenSaibO8. A partition action is an action regarding title plus proceedingsfor partition.
H. V. Perera (with him J. R. J ay aw dr dene), for intervenient-respondents.—Partition actions cannot be brought except where the landis situated. If property is situated outside, a court has no jurisdictioneven if all the defendants reside within its jurisdiction. A partitiondecree gives title good against the whole world. A plaintiff is .merely anapplicant for partition. He cannot claim relief against the defendantsas in an ordinary action. Every party to a partition action is an applicantfor the allotment of a particular lot to him, absolutely and not as against
i (1895) 1 Q. B. SOI.* 2 .V. L. R. 290.
3 Lem. 51.
MACDONELL C.J.—Hussan v. Peiris
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any particular person. Disputes are merely incidental to the proceedings.They are allowed because the court must decide who has title (Jayewar-dene 59; Digest 2, 1, 11, 2; Voet 2, 1, 49). Section 2 of the PartitionOrdinance which deals with jurisdiction makes no reference to defendants.Defendants in partition actions are defendants in name only ; they are notin the same position as defendants in an ordinary action. The plaintiffmerely names the parties interested in the land. A partition action is aproceeding in rem, Mather v. Thamotheram Pillai1. An action whichresults in a decree in rem must be brought where the thing is, HukmChand 516.
[Macdonell C.J.—Take the case of a ship wrecked on the east coast.The interested parties are in Colombo. Can they not bring the action inColombo ?]
In the case of movables there is a fiction by which they are broughtwithin the constructive jurisdiction of the court, Hukm Chand, s. 204.A party defendant in the Courts Ordinance means a defendant againstwhom there is a cause of action. A plaintiff may make a person adefendant who might himself have been a co-plaintiff, e g., if he refuses tojoin as plaintiff. Would his residence be a test if “ a party defendant ”means “ any ” ? The defendant must be a true defendant. There mustbe a cause of action against him, Baker v. Wait2. In a partition action theroles of plaintiff and defendant are reversible. Not so in an ordinaryaction. A defendant in a partition action cannot therefore be said to bea defendant within the meaning of the Courts Ordinance.
Weerasooria, in reply.—A party to a partition action other than theplaintiff is really a defendant in every sense of the term. Even otherwise,he is in fact called a defendant. Once he is called a defendant he comeswithin the operation of section 65. Section 14 of the Code suggests adefinition of defendant. There can be a right to relief without a cause ofaction- In a partition action, there is clearly a right to relief, see section 6.It is true that every party to a partition action is in the position of aplaintiff but he is also in the position of a defendant. A partition decreeis not a decree in rem. It is only in the nature of a decree in rem (HukmChand 493). Even if it is a judgment in rem, the court has constructivepossession of the thing. (Hukm Chand 520.)
December 9, 1932. Macdonell C.J.—
This was an action in which the plaintiff-appellant and the sevendefendants, all resident within the jurisdiction of the District Court ofKalutara, sought to partition a land at Beruwala, situate beyond thejurisdiction of that court. Two persons resident in Beruwala, therespondents on this appeal, intervened, claiming a portion of the land tobe partitioned and pleaded that the court had no jurisdiction. TheDistrict Judge dismissed the action on that ground, want of jurisdiction,and from this dismissal plaintiff brings the present appeal. It wasreferred by Drieberg J. to a bench of three Judges because of twoapparently conflicting decisions. In Fernando v. Waas*, it was held thatan action could be brought in the court within the jurisdiction of which
1 6 N. L. R. 246.'2 (1869) 9 Equity 103.
3 (1891) 9 S. C. C. 189.
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MACDONELL C.J.—Hussan v. Petris
one of several defendants resided, though that court would not havejurisdiction over the land or the party in possession if sued alone, CivilProcedure Code, section 9 (b), (c) and (d). In Tirimandura v. Dissanaike it was held, in effect, that to satisfy the requirements of section 9 (a)all the defendants should reside within the jurisdiction of the court, ifit was sought to get a judgment against all of them.
The appeal necessitated the interpretation of the words “ a partydefendant ” in section 65 of the Courts Ordinance, No. 1 of 1889, and insection 9 (a) of the Civil Procedure Code, also a decision on the nature andproper description of parties to a partition action.
For the appellant, it was contended that the words in the sectionsjust cited “ a party defendant ” mean any party defendant, and thatconsequently a District Court has jurisdiction if any party sought to hemade a defendant resides within its district. I think the contention that44 a ” here means “ any ” is right, but it is as well to examine theauthorities on which it is put forward. The Interpretation Ordinance,No. 21 of 1901, section 3 (23), says “ words in the singular number shallinclude the plural and vice versa”, and a similar provision existed inOrdinance No. 1 of 1852 which it replaced. Section 65 of the repealedAdministration of Justice Ordinance, No. 11 of 1868, spoke of “ the partydefendant resident within the district ”, and this phraseology has beenretained for Courts of Requests in section 77 of the Courts Ordinancewhich says “ Every Court of Requests …. shall have cognizanceof …. all actions (within a certain figure) …. in which
the party or parties defendant shall be resident within the jurisdiction ofsuch court ”, but section 65 of the same Ordinance in defining thejurisdiction of District Courts says “ Every District Court shall havecognizance'of … all . pleas, suits, and actions in which a party
defendant shall be resident within the district in which any such suit oraction is brought ”, and section 9 (a) of the Civil Procedure Code repeatsthis provision. There has been then an alteration in the law to whicheffect must be given. Several English cases were cited to us in support' of the contention that 44 a ” means “ any ”. Thus in Reg. v. Justices ofDurham2 a case under the Summary Jurisdiction Act, 1879, section 31 (3)which required an appellant to 44 enter into a recognizance before a court ofsummary jurisdiction ” to prosecute an appeal, it was held that “ acourt ” meant 44 any court ”. In In Re Saunderss, a case under theAgricultural Holdings Act, 1883, section 52, which enacted, that a bailiffwas not to levy distress unless authorized 44 by a Judge of a CountyCourt ”, it was held that these last three words meant 44 any CountyCourt”. Again in Reg: v. School Board of London 4, where the Valuation(Metropolis) Act, 1869, section 4, defined 44 gross rent ” as 44 the annualrent which a tenant might reasonably be expected …. to pay foran hereditament”, it was held that 44 a tenant” meant 44 any tenant”.These decisions certainly serve to support the remarks of Burnside C.J. inFernando v. Waas (supra), to the effect that, 44 one of the defendants, 4 aparty defendant’, resides within the jurisdiction of the court', and thecourt therefore has jurisdiction over the matter in that suit ”.
*2 N. L. R. 290.3 54 L. J. Q. B. 331.
* (1895) 1 Q. B. 801.* 17 Q. B. D. 738.
MACDONNEL G.J.—Hussan v. Peiris
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These cases, and none was cited to us to the contrary, seem to establishthat “ a defendant ” in the sections in question means “ any defendant ”,and that consequently if any party defendant to an action resides within aparticular district, action may be brought against him in the District Courtof that district; one of the four jurisdictional features—if the expressionbe permitted—required by section 9 of the Civil Procedure Code ispresent, consequently the action may be brought there.
More difficulty will be found in determining what the words “ partydefendant ” mean. I will consider the meaning of these words first inrelation to the particular form of action before us, and then generally.This was a partition action and it was contended for the respondent thatin such an action there are no defendants in the proper sense of the term,consequently that the provisions as to “ a party defendant ” in section 65of Ordinance No. 1 of 1889, and in section 9 (a) of the Civil ProcedureCode have no application where the action is one for partition, and thata partition action must be brought in the district where the land to bepartitioned is situate and not elsewhere. In the present case there was,it was argued, an inherent want-of jurisdiction, a defect which could notbe waived; see John Russell & Co., Ltd. v. Cayzer, Irvine & Co., Ltd.1This contention was supported by a number of authorities and requiresexamination.
In the first place it has been decided definitely that a partition actionis a proceeding coming within the meaning of the word “ action ” as givenin section 3 of the Courts Ordinance, No. 1 of 1889, and in section 5 of theCivil Procedure Code, that is, “ a proceeding for the prevention or redressof a wrong ”, per Shaw J. in de Silva v. de Silva3.“ I think that a
partion action may fairly be said to be a proceeding taken for theprevention or redress of a wrong. That suits for partition are intendedby the Ordinance itself, No. 1 of 1889, to come within thedefinition of actions, seems clear from section 77 where they arereferred to as such ”, and see also Soisa v. Sepohamya. As to the partiesto such an action, each partakes of the character of a plaintiff in so farthat if he seeks any share or interest in the land being partitioned, hemust prove his right to the same strictly ; this I take to be the meaning ofthe words of Bertram C.J. in Lucihamy v. Hamidu “ It has beenrepeatedly referred to in our books as an action in which every party isreally a plaintiff ”. But this does not exclude parties to that actionfrom partaking of the character of defendants, as indeed the plaintiffhimself may do in so far as he seeks to resist the claims of others to a shareor interest in the land. The passage from Voet X. 1, 3, quoted in the casejust cited puts this quite clearly. “In ea singulae personae duplex inshabent, puta, agentis, et eius cum quo agitur”. The passage cited to usfrom Gaius in the Digest V. 1, 13, to show that there are no defendants inpartition actions, really tells the other way. It is as follows : — “In tribusistis judiciis, familiae erciscundae, communidividundo, et finium regundo-rum, quaeritur quis actor intellegatur quia par causa omnium videtur. Sedmagis placuit eum videri actorem qui ad indicium provocasset ”, whence itwould follow that “ eum qui ad indicium provocatus esset ”, will be “eo cumquo agitur ”, i.e., a defendant. And note that pretty much the same point
(1916) 2 A. C. 298.* 3 'App. C. Rep. 93.
3 C. W. R. 318.*26 N. L. R. at 46.
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MACDONELL C.J.—Hussan v. Peiris
seems to have been raised for Gaius’ opinion as that before us ; “par causaomnium ”, each party has an interest and must prove it. Section 14 ofthe Civil Procedure Code says “ All parties may be joined as defendantsagainst whom the right to any relief is alleged to exist Tested by this,
I do not think it can be maintained that a person made a defendant in theeaption to a partition action is not a defendant in the proper sense of theword, and he does not seem not to be defendant because when the timecomes for him to establish his own claim to a share of or interest in theland, he has to take on .him the person a of a plaintiff. One can take thesimplest form of a partition action to demonstrate this. A and B claimto be, and admit each other to be, owners in common in half shares ofland X, and they agree that they will partition X and that A shall be theplaintiff, and A files action accordingly making B sole defendant. Thefriendly nature of the action does not prevent it being, in final analysis,an allegation by A that he has a right, that such right exists, to relief asagainst B. If he makes out his case to the moiety he claims, and whichB admits to be his, still he will have got the declaration of a court of hisindisputable right to that moiety against all the world including B. Atthe moment he has a right only to an undivided moiety .on to which Bmay lawfully come at any time and over which B has the rights of an•owner frui utendi abutendi. After partition decree, those rights of Bto A’s undivided moiety will have disappeared, A can enclose that moietyagainst all the world including B, a right or relief which he certainly didnot possess while it was still undivided, prior, that is, to the partitiondecree. If this then is the case with the simplest conceivable form ofpartition action—a half share admitted by each of two co-owners—it willcertainly be so a fortiori in every partition action which is in ever so slighta degree more complex or less undisputed than the instance one has taken.It is certainly germane to this question to note the language of thePartition Ordinance, No. 10 of 1863, itself, since this speaks definitely ofthe party instituting the action as “ plaintiff ” and of the other parties.specified by him as “ defendants ”, sections 3 and 4, nor does there seemany reason for refusing to hold that the “ defendant ” to a partition action,is a defendant in the proper sense of the term. The fact that during^ thataction he will at a certain stage or stages have to take upon him the•character of a plaintiff, does not prevent this.
In the main the argument, want of jurisdiction, proceeded on theground that a partition decree was a judgment in rem, and that•consequently a partition action could be brought only in the jurisdictionwhere the res was situate, but I understood in the end that this contentionwas abandoned.
To return to the question of the meaning of the words “ a partydefendant”. Section 14 of the Civil. Procedure Code speaks of adefendant as one “ against whom the right to any relief is alleged toexist ”. Then the term “ party defendant ” will not include a person whois made a defendant because he should have joined as plaintiff but declinedto do so, nor will it include a person made a party for the reason only thatthis is necessary for the proper constitution of the action but not becauseany relief against him is claimed by the plaintiff. Further : if a “ partydefendant ” means one “ against whom the right to »any relief is alleged
MACDONELL C.J.—Hussan v. Peiris.
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to exist ”, this definition of the term will prevent a plaintiff commencingan action in a particular district against one residing in the same who is inthe same interest as the plaintiff and is therefore only a nominal defendant—one who in Baker v. Wait was described as “ a pocket defendant ”—whereby he would compel, by a side wind, the real defendant, the oneagainst whom a right to relief was alleged to exist, to come and be suedout of his own district. An instance of this would be where a firstmortgagee commenced action in his own district against a puisnemortgagee who was resident therein, making him defendant to foundjurisdiction, although the mortgagor might be resident in another district,and another instance would be an action on a negotiable instrument wherethe holder of the instrument brought action in the court of the districtwhere the drawer was resident, the drawer being, let us suppose, entirelyin his, the plaintiff’s interest, while the parties against whom the relief1was really sought, the acceptor and indorsers, resided in another district.These were pretty much the facts in Baker v. Wait, cited supra, perJames V.C. “ If the plaintiff having only, as he may be called, this* pocket ’ defendant of his own within this district, were to go on with a- plaint filed in the County Court of this district, in which none of the otherdefendants reside, I should not hesitate to say that all orders made insuch a matter. would be wholly void and of no effect ”. In any casesection 46 of the Courts Ordinance seems adequate to check this mischief.The real defendant, the one, that is, against whom right to a relief wasalleged to exist, could apply to have the action struck out on the groundthat he was not a party defendant within the meaning of section 65 of theCourts Ordinance or of section 9 of the Civil Procedure Code, or, if hepreferred, could apply for the transfer of the case to the court of thedistrict where he himself resided, and in that case the plaintiff who hadsummoned him to the court of a district where he did not, could be orderedto pay costs. There are also the powers given by section 18 of the CivilProcedure Code as to parties improperly joined.
This, then was an action which could properly be brought in the courtwhere it was instituted since a party defendant thereto resided in thedistrict of that court. The law does not require a partition action to bebrought in the District Court of the district where the land is situate.The repealed Partition Ordinance, No. 21 of 1844, enabled it to be broughtin “ any District Court having jurisdiction ”, section 10, and the existingPartition Ordinance, No. 10 of 1863, enables it to be brought “ in anycourt of competent jurisdiction ”, section 2, and in this connectionsection 77 of the Courts Ordinance, No. 1 of 1889, giving jurisdiction toCourts of Requests is important.. These courts have jurisdiction inpartition actions, subject to a limit . as to value, where “ the land. . . . or any part thereof is situate within the jurisdiction of suchcourt ”. No such restriction as to locality is placed by section 65 to thejurisdiction of a District Court and by virtue of that section and ofsection 9 (a) of the Civil Procedure Code, it is “ a court of competentjurisdiction” in partition actions if any.party defendant thereto resideswithin its jurisdiction. It is possible that this is a provision which isopen to inconveniences, and that it would be better if all partition actions
i L. R. 9, Eq. 103.
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DALTON J.—Hussan v. Peiris.
had to be brought in the court of the district where the land is situate,subject to the powers of transferring actions given by section 46 of theCourts Ordinance, but that is not the law at present.
I would answer both the questions raised by this appeal in theappellant’s favour. “ A party defendant ” in section 65 of the CourtsOrdinance and in section 9 (a) of the Civil Procedure Code means, “ anyparty defendant”, and a partition action may be brought in any DistrictCourt wherein any party defendant resides, meaning by those words, anydefendant against whom the right to any relief is alleged to exist.
For the above reasons I am of opinion that this appeal should be allowedwith costs here and below and that this action should be reinstated forhearing in the District Court, Kalutara, with liberty to plaintiff to recallany witnesses already examined, himself included.
Dalton J.—
The District Judge has held that he had no jurisdiction to try this case,since the eighth defendant lives outside the jurisdiction of his court.His conclusion is supported by the decision in Tirimandura v. Dissanaikel,whereas an earlier decision of this court, in Fernando v. Waas2, is againsthim. After consideration of the arguments and the authorities put.before us I have no doubt that the latter and earlier decision is the correct .one. I feel compelled to read section 9 (a) of the Civil Procedure Code asmeaning what it seems to me to' say, namely, that an action may beinstituted in the court within the local limits of whose jurisdiction ‘‘a■ party defendant ” resides. I am unable to interpret this as meaning “ aparty defendant or parties defendant ”, as was held in Tirimandura v.Dassanaike (supra).
Mr. Perera sought to show, however, that neither case, whichever mightbe held to be correct, had any application in.a partition action, which inits result is in the nature of a proceeding in rem. In that event he urged. the property to be partitioned must be situated within the localjurisdiction of the court, before which the action is brought.
A partition suit, under the Partition Ordinance, is an action under theCivil Procedure Code and the Courts. Ordinance, and the PartitionOrdinance and the Code must be worked together. There are numerousauthorities for this (see Jayewardene on.Partition, pp. 17-19, 337. I haveheard nothing to satisfy me that the provisions of section 9 of the Codedo not apply to a partition action. It is to be noted that in the case ofthe Court of Requests, section 77 of the Courts Ordinance, 1889, provides^invngSu oLher Ininas that such courts shall have jurisdiction in partitionsuits provided the land or any part thereof is within the jurisdiction of thecourt. There is no such limitation in regard to the jurisdiction of DistrictCourts.
It has been pointed out that in partition actions each party has thedouble capacity of plaintiff and defendant. There is no question as to thecorrectness of that argument. It is therefore necessary for the courtto be satisfied in any such action, • where one person who is named as adefendant resides within the jurisdiction of the court where the action isbrought, that that person is a real or substantial defendant, and not ai 2 N. L. R. 290.* 9 S. C. C. 189.
Government Agent, Western Province v. Ibraim Ahmed.
245
mere “pocket” defendant within the jurisdiction set up by plaintiff forhis own purposes, as mentioned in Baker v. Wait1. Subject to that,where a party defendant in a partition action resides within the jurisdictionof the court, other defendants residing outside its jurisdiction, andalthough the land may not be within the local jurisdiction, the DistrictCourt nevertheless has jurisdiction.
In the case before us, although the eighth defendant, the respondent tothis appeal, lived outside the jurisdiction of the court, and the land isalso outside its local jurisdiction, nevertheless the original defendantslived within the jurisdiction, and there is nothing before us to suggest theywere not substantial defendants, or that they were put up by plaintiff asdummies for the purpose of maintaining his action in the court where itwas instituted. The giving of security for costs in the case of non-residence is amply provided for in the Code.
I would, for the reasons I have given, in answering the reference holdthat the decision in Fernando v. Waas (supra) was rightly decided on thequestion of jurisdiction.
The appeal must therefore be allowed, with costs, and the decreeentered dismissing plaintiff’s action must be set aside. The action mustbe remitted for further hearing.
Garvin S.P.J.—I agree.
Appeal allowed.