SHABRA UNICO FINANCE LTD
COURT OF APPEALWIGNESWARAN. J.
C. MT. LAVANIA 23/91/SJUNE 18, 1999AUGUST 27, 1999
Jurisdiction of the District Court to hear case – Relevant time of residence,and jurisdiction – ascertained as at the time offiling action – territorialJurisdiction – relevant gazette notification to be examined.ClvllProcedure code S. 696, S. 697, cap SI
The relevant time of residence and jurisdiction were to be ascertainedas at the time of filing action. The fact that the Respondent – Respondenthad changed its office subsequent to the filing of the action, to anotherpremises, should not have been taken into consideration.
Prior to the enactment of A. J. L. 44 of 1973, Colombo 4.5, 6 as wellas Colombo 3 were within the territorial limits of the District Courtof Colombo.
Thereafter Grama Seva Niladharis Divisions of Wellawatte and thePolice Station area of Bambalapitiya in the G. S. Niladharis divisionof Kollupitiya in the administrative District of Colombo fell withinthe territorial limits of the District Court of Mt. Lavania (Gazetteextraordinary 43/3 02. 07. 1979).
The relevant gazette notification should have been examined and properevidence led in court to come to the conclusion as to whether thepremises fell within the territorial limits of the District Court ofMt. Lavania or not.
With no such finding, the Court should not have proceeded to give itsorder on the basis that the Defendant was resident elsewhere (i. e. atan address other than that mentioned in the caption to the Plaint).
APPEAL from the Judgment of the District Court of Mt. Lavania.
Cases referred to :
1. W. Robinson Fernando v. S. Henrietta Fernando – 74 NLR 57 at 58.
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Ranjan Suwadaratne for Petitioner Appellant.Lasantha Mudalige for Respondent Respondent.
Cur. adv. vult.
January 19th, 2000.
WIGNESWARAN. J.By order dated 07.07.1993 the District Judge of Mt. Laviniadismissed the Petitioner – Appellant's case due to lack of jurisdictionon the part of his Court to hear and determine same. It was thelearned District Judge's position that prima facie the DistrictCourt of Mt. Lavinia had no jurisdiction to hear and determinethis action. In this connection he referred to the decision deliveredin Court of Appeal Case No. L 64/79. (D. C. Chilaw Case No.1055/L) and to the provisions of Sections 696 and 697 of theCivil, Procedure Code.
It is relevant to note that the learned District Judge. Mt. Laviniahad taken it for granted that the Defendant was resident at NewBullers Road, Colombo 3. (Vide Page 109 of the Brief)
According to the Petition dated 01. 11. 1991 filed underthe provisions of Chapter 51 of the Civil Procedure Code theRespondent – Respondent was a limited liability Company havingits registered office at No. 2, R. A. de Mel Mawatha. Colombo 3.The relevant time of residence and jurisdiction were to beascertained as at the time of filing action. The fact that theRespondent – Respondent had changed its office to premisesNo. 61, New Bullers Road. Colombo 3 subsequent to the filingof this action should not have been taken into consideration.Jurisdiction of a Court to hear a case depended on its territorialjurisdiction as at the time of filing action.
But if the defendant on the other hand was residentelsewhere under the jurisdiction of one Court while the plaintgave another address within the territorial jurisdiction of anotherCourt such a matter should be brought to the notice of suchCourt by adequate evidence or documentary proof.
In the instant case it must be remembered that prior to theenactment of the Administration of Justice Law No. 44 of 1973
Jayamaha v. Shabra Unico Finance Lid
Colombo 4, 5, 6 as well as Colombo 3 fell within the territoriallimits of the District Court of Colombo. Thereafter the GramaSeva Niladhari's Division of Wellawatte and the Police Stationarea of Bambalapitiya in the Grama Seva Niladhari's Divisionof Kollupitiya in the Administrative District of Colombo fell withinthe territorial limits of the District Court of Mt. Lavinia as perGazette Extraordinary No. 43/3 dated 02. 07. 1979.
It must also be noted that R. A. de Mel Mawatha had beenextended from Colombo 3 to Colombo 4 and therefore part ofR. A. de Mel Mawatha fell within the territorial limits of theDistrict Court of Mt. Lavinia while part fell within the limits ofthe District Court of Colombo. It is in this background that theterritorial jurisdiction pertaining to this case should have beengone into.
No evidence seems to have been called by Court to find outwhether at the time of filing action the Defendant's place ofbusiness was at No. 2, R. A. de Mel Mawatha, Colombo or not.If it was so, the relevant Gazette Notification should have beenexamined and proper evidence led in Court to come to theconclusion as to whether premises No. 2, R. A. de Mel Mawathafell within the territorial limits of the District Court of Mt. Laviniaor not. There was nothing "obvious" about the Defendant'sresidence being situated outside the limits of the District Courtof Mt. Lavinia. Clearly if the address was at premises No.2, R. A.de Mel Mawatha, then there was doubt as to whether thesepremises situated at the boundary between the two jurisdictionsfell within the limits of the District Court of Mt. Lavinia orColombo. Premises No. 61, New Bullers Road, Colombo 03 didnot come into the equation at all.
Courts must not be in a hurry to dismiss a case on puretechnical grounds. Parties come into Court for relief totheir problems. If on technical grounds a case has to bedismissed, Court must be very definite of their grounds.They must check on the veracity of the arguments placedbefore them in this regard.
There is no reason given by the learned District Judge as towhy he chose to give his judgment on the basis that the Defendant
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was resident at premises No. 61, New Bullers Road. Colombo 3and not at premises No. 2, R. A. de Mel Mawatha. If the Plaintiffhad wilfully given an old address just to bring the case withinthe local limits of the District Court of Mt. Lavinia then thereshould have been a finding on that. With no such finding, theCourt should not have proceeded to give its order on the basisthat the Defendant was resident elsewhere (that is, at an addressother than that mentioned in the caption to the plaint). If in facton the date of filing action the Defendant had its office atpremises No. 2, R. A. de Mel Mawatha there was a probabilitythat such premises were situated within the territorial limits ofthe District Court of Mt. Lavinia. In this connection, it is usefulto remember the dictum of Justice Samarawickrama inW. Robison Fernando v. S. Henrietta Fernando(n at 58 withregard to burden of proof, where it was stated as follows:-
"The position however appears to be different wherethe want of jurisdiction is not apparent on the face ofthe record but depends upon the proof of facts. Insuch a case, it is for a party who asserts that theCourt had no jurisdiction to raise the matter and provethe necessary facts. A Court had to proceed upon thefacts placed before it and its jurisdiction musttherefore depend upon them and not upon the factsthat may actually exist.”
We therefore set aside the order of the learned DistrictJudge and send back the case for inquiry into the question ofthe actual address of the Defendant at the time of filing actionand as to whether such address fell within the territorial limitsof the District Court of Mt. Lavinia or Colombo. It is incumbenton the part of the Original Court to have reference to the relevantGazette Notification in this regard and if necessary obtainevidence thereon regarding its contents when coming to itsconclusion.
Parties shall bear their own costs of this appeal.TILAKAWARDANE, J. – I agree.