Fernando v. Ronald
1969 Present: Samerawlckiame, J., and Weeramantry, J.LILT FERNANDO, Appellant, and RONALD (alias R. A.Vanlangenberg) and another, Respondents
S. C. 208/67 (Inty.)—D. C. Panadura, 9135Jurisdiction—Action filed in District Court—Objection to territorial jurisdiction ofthe Court not pleaded in defendant's answer—Subsequent denial of jurisdiction6y amendment of answer—Not permissible—Courts Ordinance, e. 71—CivilProcedure Code, s. 93—Death resulting from collision—Action in delict—Forum,
Where, in an action instituted in a District Court, the defendant has notdenied in his answer the territorial jurisdiction of the Court, section 71 of theCourts Ordinance precludes him from raising such objection subsequently bymoving to amend the answer. 1
1 (1933) 3d N. L. R. 438.
WEERAMANTRY, J.—Fernando v. Ronald
Obiter : Where a man dies in consequence of a collision with a motor vehicle,and the death occurs in an area different from that where the accident occurred,the jurisdiction of the Court in which the wife of the deceased may institutetuition for recovery of damages may be determined by the area where theaccident occurred.
Appeal from an order of the District Court, Panadura.
8. Sharvananda, with T. Kanagasabei, for the plain tiff-appellant.
Sam. P. C. Fernando, with D. S. Wijewardene, for the defendanta-respondents.
Cur. adv. vult. ■
February 13, 1969. Weeramantry, J.—
Arising out of an accident in which the plaintiff’s husband was killed,the plaintiff instituted this action against the defendants, who arerespectively the driver and the owner of the motor vehicle which oameinto collision with the deceased.
The accident occurred on February 4th 1962 and the plaintiff cameinto Court as late as 31st January 1964. The defendants enteredno appearance initially and the case was heard ex parte and decreenisi entered. Thereafter objections were filed to the decree nisi andit was vacated of consent. Answer was accordingly filed on 28thJanuary 1967.
Many months later, on 29th September 1967, the defendants moved toAmend their answer. The amendment involved the withdrawal of aspecific admission contained in the original answer, relating to thejurisdiction of the Court to hear and determine the action and a pleathat the Court had no jurisdiction. No reasons are stated for the denialof jurisdiction, and the place at which the accident occurred would seemto be within the territorial jurisdiction of the Court in which the actionwas instituted. The reason for denial of jurisdiction would appear tobe that the death of the plaintiff’s husband occurred outside thejurisdiction of this Court. It is not necessary for the purpose ofdisposing of the present appeal to arrive at a determination on thevalidity of this ground of objection, suffice it to say that if the wrongfulact complained of, namely the collision, occurred within the territoriallimits of that Court’s jurisdiction, it is difficult to see how the merecircumstance that death occurred in another area can deprive that Courtof its jurisdiction.
Objection was taken to this amendment on the ground that section 71«f the Courts Ordinance precludes a defendant who has pleaded in anycause, Buit or action in a District Court, without pleading to thejurisdiction of such District Court, from afterwards objecting to thejurisdiction of such Court. This matter was inquired into by thelearned District Judge who made order allowingthe proposed amendment,t is from this order that the plaintiff appeals.
WEERAMANTRY, J.—Fernando v. Ronald233
The learned District Judge has, in permitting this amendment,proceeded on the basis that no prejudice would be caused to the plaintiff1in consequence of the amendment being allowed. He draws a distinctionbetween the present case, where, in consequence of the lateness of theplaint, the first answer would be filed after prescription has run, and acase where the first answer can be filed within the prescriptive period andthe amended answer, taking exception to the jurisdiction, is filed afterprescription has run. An amendment allowed in the latter circumstances,the learned Judge observes, would cause prejudice whereas in the presentcase there would be none.
Another ground on which the learned District Judge has permitted theamendment is that the attempt to object to the jurisdiction has beenmade, in the learned District Judge’s language, “ before pleadings areclosed ”. He observes that the trial as such has not yet commenced andthat the bar imposed by section 71 would apply only after the trial a&such has commenced or in appeal.
It would appear that both these grounds on which the learned DistrictJudge has relied are untenable.
In regard to the first ground it seems clear upon an examination ofsection 71 that that express provision of statute law does not depend onthe existence or absence of prejudice. All that it stipulates is that thedefendant should have pleaded in the cause without pleading to thejurisdiction and if that requirement is satisfied, irrespective of questionsof prejudice, the consequences set out in that section must follow.Questions of prejudice would indeed be appropriate had the matter forconsideration before the learned District Judge been one falling purelywithin the purview of section 93 of the Civil Procedure Code. Herehowever the proposed amendment must be considered not merely interms of section 93 of the Civil Procedure Code but also in terms ofsection 71 of the Courts Ordinance. Although the latter provision doesnot in so many words speak of amendments to pleadings, it covers thismatter, for by the amendment it is sought to object to jurisdiction afterpleadings have been filed without such objections having been raised.The objection visualised by section71, thoughnot necessarily one by wayof pleading, may well be taken in many a case, as indeed in the present,through the filing of amended pleadings, and in such an event suchamendments of pleadings would be shut out by the bar imposed bysection 71.
In regard to the second ground which has weighed with the learnedDistrict Judge I need only observe that what the section requires is thatthe-party should have pleaded. It does not state that the case shouldhave reached the stage where, the entirety of pleadings which he wouldfile in the action has already been filed, for till the close of the trial itwould not be possible to say whether a party may seek and be grantedpermission to file amended pleadings. There is no limitation in law onthe number of amended pleadings that may be filed or on the time21 – Volume LXXV
WEERAMANTRY, J.—Fernando v. Ronald
within which they should be filed and there is nothing in section 71 toindicate that the entirety of pleadings should have been filed or that thestage of possible amended pleadings should have been passed before adefendant is precluded thereby from challenging the jurisdiction. Indeedif the construction placed by the learned District Judge on this sectionbe correct it would be well nigh impossible to give effect to section 71 inthe trial Court, for the possibility would always exist that amendedpleadings would be filed even at a late stage of trial. If therefore■objection were taken to the amended pleading in which it is sought tochallenge jurisdiction, such an objection could be met by the plea thatall the party’s pleadings in the action had yet not been filed and thatapplication would be made to Court for permission to file fresh pleadingstaking objection to the jurisdiction. Such a conclusion is clearly onewhich cannot be sustained.
An examination of section 71 shows that two consequences followfrom the fact that a party has pleaded in the first instance withoutpleading to the jurisdiction. The first is that he shall not afterwards beentitled to plead to the jurisdiction and the second is that the Court shallbe taken and held to have jurisdiction over such proceedings. Whentherefore a defendant pleads without pleading to the jurisdiction itwould appear that the section brings into operation the legal result thatthe Court is taken and held to have jurisdiction. That legal result whenonce it has come into effect cannot be negatived or taken away by anysubsequent pleading.
In the present case it would appear that the defendants had more thanone opportunity of registering their objection to the jurisdiction of theCourt. They had that opportunity in the first place when they filedpapers seeking to have the decree nisi vacated. They had their secondopportunity when they filed their original plaint. On neither of theseoccasions was the opportunity availed of for objection to the jurisdiction.It may well be argued that these acts amount to a submission to thejurisdiction. Furthermore, in the special circumstances of this case it isnecessary to note that the decree nisi was vacated of consent—a consentwhich may not have been forthcoming from the plaintiff had the plaintiffbeen aware that the defendants would take advantage of the vacation ofthe decree nisi to object to the jurisdiction.
It would thus be seen that it is not merely the provisions of section 71but the conduct of the defendants as well which would stand in the wayof the proposed amendment. It is also pertinent to observe that therewas not in the original answer a mere general denial of avermentsincluding averments relating to jurisdiction, but a specific admission in somany words that the Court did have jurisdiction.
This is a type of action and a claim for relief which would undoubtedlyfall within the jurisdiction of a District Court. It is only on the basisthat the cause of action falls outside the territorial limits of its jurisdiction
WEERAMANTRY, J.—Fernando v. Ronald
that it is sought to be urged that this.particular Court lacks jurisdictionto hear this particular suit. It will be seen then that such a case iscompletely different from cases of total and absolute want of jurisdictionin a particular Court or Tribunal, as where a matter exclusively withinthe purview of the District Court comes before the Court of Requests or amatter clearly outside the jurisdiction of a Tribunal is brought before it,In such cases, unlike in the present, no amount of submission to thejurisdiction can confer on the Court or Tribunal a jurisdiction italtogether lacks. The case before us is rather one where the Court isspared the trouble of satisfying itself of the facts on which its juris-diction depends, for the party by his conduct is taken to have acceptedthose facts, thus dispensing with the need for an inquiry into theirexistence. This would appear to be the principle underlying the section.So also it would appear that in English law by virtue of a similarprinciple, a defendant is considered to waive an objection to the juris-diction if, knowing the facts, he enters an unconditional appearance tothe writ.1
As Sansoni, J. observed in Kandy Omnibus Co. Ltd. v. Roberta 8 there isa sharp distinction between cases of patent and latent want of jurisdiction.Where it appears on the face of the proceedings that the Court had nojurisdiction, the case is differently treated from cases where the difficultyis not apparent and depends upon some fact in the knowledge of theapplicant which he might have put forward but has kept back. In theformer case conduct does not preclude a party who took part in theproceedings from raising the question of jurisdiction whereas in,the lattercase the parties may, by appearing without protest or by taking anysteps in the action, waive their right to object to the jurisdiction.8It is in cases where there is a total lack of jurisdiction not dependingon the existence of any fact that questions of estoppel or consent■do hot arise.4
In conclusion, a contrast should be drawn between section 71 of the■Courts Ordinance and section 21 of the Indian Code of Civil ProcedureV of 1908. The latter section provides that objection to the territorialjurisdiction will not he allowed by on Appellate or Revisional Courtunless taken in the Court of first instance at the earliest possible oppor-tunity and in all cases where issues are settled, at or before such settlement,and unless there has been a consequent failure of justice. It will be seenthat section 71 of the Courts Ordinance is more absolute in its terms andthat the notion that objection may be taken at any time before issues,which finds a place in the Indian section, finds no place in ours. ' Wherethe Statute is in the absolute terms in which section 71 is framed, therewould thus be no room for giving to it the extended interpretation whichthe learned District Judge has sought to give, for which express statutoryprovision, totally absent in-our law, was required in India.
1 Odgera on Pleadings, 19th ed. p. 125.
(1954) 56 N. L. R. 301.
Halsbury, Vol. 9 Part 824.
4 See Spencer Bower’s Estoppel by Representation, 1st. ed. pp. 18S-9.
STRUM ANE, J.—Urban Council, Panadura v. Cooray
In all the circumstances, therefore, it Beems that the learned DistrictJudge’s order conflicts with the provisions of section 71 of the CourtsOrdinance and cannot be upheld. Consequently the application foramendment by a denial of jurisdiction is refused with costs both here andin the Court below.
Sameba'wickba&te, J.—I agree.
LILY FERNANDO, Appellant, and RONALD (alias R. A. Vanlangenberg) and another, Re