KULUTH v. MOHAMADU

009-NLR-NLR-V-38-KULUTH-v.-MOHAMADU.pdf


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Kuluth v. Mohamadu.
1936
Present: Abrahams C.J. and Fernando A.J.KULUTH v. MOHAMADU.
25—D. G. Kandy, 46,975.
Jurisdiction—Action under section 247 of the Civil Procedure Code brought inCourt of Requests—Objection to jurisdiction—Transfer of case toDistrict Court—Limitation.
Where an action under section 247 of the Civil Procedure Code whichwas instituted in the Court of Requests was found to be beyond thepecuniary jurisdiction of that Court, and the Supreme Court on theapplication of the plaintiff allowed a transfer of the case under section46 of the Courts Ordinance to the District Court having jurisdiction,subject to the defendant being given an opportunity of raising the pointthat the delay in presenting the plaint to the District Court made theaction under section 247 out of time,—
Held, that the action was prescribed, as the trial in a District Courtcould not be deemed to be a continuation of the proceedings in theCourt of Requests.
Mudianse v. Siriya1 followed.
1 23 N. L. B. 233.
ABRAHAMS C.J.—Kuluth v. Mohamadu.
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^^PPEAL from a judgment of the District Judge of Kandy.
H. V. Perera (with him G. E. Chitty), for plaintiff, appellant.
N. E. Weerasooria, for defendant, respondent.
Cur. adv. vult.
August 5. 1936. Abrahams C.J.—
The appellant brought an action under section 247 of the Civil Pro-cedure Code in the Court of Requests, Gampqla. In so doing he waswithin the fourteen days allowed by that section. The defendant to theaction in his answer said that the Court of Requests had no jurisdictionas the value of the land concerned, and the amount of the writ, wasbeyond the pecuniary jurisdiction of the Court. The Court havingjurisdiction in the case was the District Court of Kandy, but the plaintiffobviously did not propose to remedy his mistake by instituting proceedingsin that Court, since the fourteen days fixed by section 247 had expiredlong since. Therefore, he took the course of applying to the SupremeCourt for a transfer of the case to the District Court of Kandy, underthe provisions of section 46 of the Courts Ordinance.
The hearing of the application came before Mr. Justice Koch. Thelearned Judge found himself faced by conflicting decisions of the SupremeCourt in cases where a plaint having been filed under section 247 of theCivil Procedure Code in a Court having no jurisdiction to entertain theaction, the question has then arisen whether if the plaint is then returnedto the plaintiff under section 47 of the Code and is subsequently presentedto the right Court, it can be said to have satisfied the provisions of section247 when it was filed in the wrong Court within the fourteen daysallowed by that section. Mr. Justice Koch said that as the authoritieswere conflicting he was disposed to allow the application for a transfer,subject to the respondent being given an opportunity of raising, if hewas so disposed, the point as to whether the delay in presenting theplaint to the District Court of Kandy, made the action under section 247out of time.
The case duly came on to the District Court of Kandy. The learnedDistrict Judge held that the order of transfer left it open to him toconsider whether he had jurisdiction to hear the case, and he held thathe had no jurisdiction and dismissed the plaintiff’s action. From thatdecision the plaintiff now appeals.
The conflicting decisions which were cited before Mr. Justice Kochhave been cited before us. In Werthelis v. Daniel Appuhamyl, Wendit J.,having held in appeal that the Court of Requests in which an actionunder section 247 of the Code had been brought had no jurisdiction toentertain the action, was then of the opinion that the proper order forhim to make was one under section 47 of the Code and that it was not toolate for him to do so. Again in Nagan v. Rodrigo *, de Sampayo A.J.,
» 12 N. L. R. 196.
* 17 N. L. R. 34S.
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ABRAHAMS C.J.—Kuluth v. Mohamadu.
having upheld the dismissal of an action brought in the Court of Requestson the ground of want of jurisdiction, was of the opinion that he mightjustly follow the course pursued by Wendt J. in Werthelis v. DanielAppuhamy (supra). On the other hand, in Mudianse v. Siriya1 Ennis J.and Garvin A.J. refused to hold that the day of the institution of theaction was the date of the first presentation to the wrong Court, Ennis J.observing that, in his opinion, section 47 of the Civil Procedure Codecannot be used indefinitely to prolong the period of limitation providedin section 247. In Chinnadurai v. Rajasuriyaa, Garvin A.C.J. and Jaye-wardene A.J. examined the case referred to above, Marthelis v. DanielAppuhamy (supra), but apparently disapproved of it, Garvin A.C.J.observing that Wendt J., in making the order he did, said that he feltjustified in doing so by reason of certain Indian cases which were citedto him; but an examination of those decisions showed that they werebased on what is said to have been the inveterate practice in those Courts,but that in Ceylon the practice has always been the other way.
I am not disposed to disagree with the two cases which were citedagainst the appellant, and I would add that the views expressed byEnnis J. in Mudianse v. Siriya (supra) commend themselves to me.But it is urged on behalf of the appellant that this is an unprecedentedcase for there is no question of the return of the plaint from the wrongCourt to be filed in the right Court, but here there has been an actualorder for the transfer of the case. So far as 1 can understand, what isimplied. by this distinction seems to me that it is being argued that acontinuation of the proceedings that were instituted in the Court ofRequests can follow from the transfer, and therefore that there is noquestion as to two conflicting dates when there has been only one pre-sentation of the plaint in the case. If that contention is sound, obviouslythe appellant here is in a better position than he would have been had hisaction been dismissed or if he had sought to move the Supreme Courtto act under section 47 of the Civil Procedure Code. But I think there isa fallacy in his reasoning, for to contend that the hearing in the DistrictCourt of Kandy is a continuation of the proceedings in the Court ofRequests of Gampola, postulates that the Court at Gampola had juris-diction to entertain the action. There can be no continuation of thoseproceedings, in my opinion, unless either the Court to which the plaintwas presented in the first instance had jurisdiction to determine the case,and that of course is not so, or that Mr. Justice Koch had actually con-ferred jurisdiction upon it by making the order of transfer as suggested,the absurdity of which proposition is manifest. In making the order hedid, with the reservation attached to it, Mr. Justice Koch, it seems to me,thought that the appellant should have the change of proving his caseprovided he was not out of time under section 247, but that the oppositeparty should not be debarred from taking the point of limitation.
In my opinion the learned District Judge had no option but to dismissthe action, and I would therefore dismiss the appeal with costs.
Fernando A.J.—I agree.
Appeal dismissed.
1 23 jtf. L. R. 285.
2 32 K. L. R. 86.