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MARTIN SILVA AND ANOTHERv
CENTRAL ENGINEERING CONSULTANCYBUREAU AND ANOTHER
COURT OF APPEALWEERASURIYA, J. (P/CA) ANDBALAPATABENDI, J.
A. 207/96 (F)
C. COLOMBO 14485/MRFEBRUARY 18,AND
. APRIL 29, 2002
Civil Procedure Code, sections 9 and 45 – Defendant a legal person – Whereis the "residence" ? – Does section 9 apply to a legal person?- Is the regis-tered office the residence ?
The plaintiff-appellant instituted action in the District Court of Colombo againstthe defendants-respondents seeking damages arising from an accident whichcaused the death of the son. The defendants-respondents, whilst denying lia-bility contended that the 1 st defendant-respondent being a corporate body hasno "residence" within the meaning of section 9.
The trial court held with the defendant-respondents.
On appeal
Held Per Weerasuriya, J.
"Despite the failure to effect the legislative clarification as spelt out inthe Civil Courts Commission Report, it seems to me that a liberal inter-pretation is permissible to include a corporate body as residing at itsregistered office, where there is no other place of business."
Procedural enactments should be construed liberally in such manneras to render the enforcement of substantive rights effective and thatrules of procedure are not by themselves an end and the means toachieve the ends of justice.
Rules of procedure are tolls forged to achieve justice and are not hur-dles to obstruct the pathway to justice.
"Courts are not to act upon the principle that every procedure is to betaken as prohibited unless it is expressly provided for by the Code, butin the converse principle that every procedure is to be understood as
CA
Marlin Silva and another v Central Engineering Consultancy
Bureau and another (Weerasuriva, J)
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permissible till it is shown to be prohibited by law. As a matter of gen-eral principle, prohibition cannot be presumed.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to :
Govindarajajuiu Naide v Secretary of State (1927) AIR Madras 689
Mendis v Perera – 13 NLR 39
Kanappa Chetty v Saibo & Company – CLR Vol. II – 37
Hevavitharana v Themis de Silva – 63 NLR 68 at 72
Narasingh Das v Mangal Dubey- (1883) 5 Allahabad 163 at 172
Blue Diamonds Ltd., v Amsterdam Rotterdam Bank (1993) 2 Sri LR249
Sirimavo Bandaranaike v Times of Ceylon Ltd., (1995) 2 Sri LR 22(SC)
De Beers Consolidated Mines Ltd., v Howe – The Law Times – VolXC111 -63
Somasiri v Ceylon Petroleum Corporation (1992)1 Sri LR 39.
Ranjan Suwandaratne for plaintiff-appellant
Y.J.W. Wijayatilake, Deputy Solicitor General for defendants-respondents.
Cur.adv.vult
May 14, 2002
WEERASURIYA, J. (P/CA)
The plaintiff-appellants brought this action against the defen- 01
dant-respondents seeking damages in a sum of Rs.881,000/= aris-ing from an accident which caused the death of their son,Dharmasiri Silva. The defendant-respondents in their joint answerwhilst denying liability prayed for dismissal of the action. This casewas taken up for trial on 31.03.1995 and issues Nos. 7 and 8 wereaccepted as preliminary issues of law for adjudication. Learned dis-trict Judge having directed the parties to tender written submissionsby her order dated 07.05.1996, dismissed the action. It is from the –
aforesaid order that this appeal has been preferred.
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At the hearing of this appeal, learned counsel for the plaintiff-appellants contended that learned District Judge has erred in hold-ing that the 1st defendant-respondent being a corporate body hasno 'residence' within the meaning of section 9 of the CivilProcedure Code.
Section 9 of the Civil Procedure Code lays down that subject tothe pecuniary or other limitations prescribed by any law, action shallbe instituted in the Court within the local limits of whose jurisdiction;
a party defendant resides; or
the land in respect of which the action is brought lies or 20situate in whole or in part; or
the cause of action arises; or
the contract sought to be enforced was made.
The 1 st defendant-respondent admitted in its answer –
that it is a duly incorporated bureau by an Act of Parliamentand it is a legal person; and
that the registered office of the 1st defendant-respondent issituated at the address given in the caption namely No.415,Bullers Road, Colombo 7.
Learned counsel for the plaintiff-appellants contended that a 30person can be a natural person or a legal person and therefore the'party defendant referred to in section 9 includes a natural personas well as a legal person.
Learned Deputy Solicitor General contended that section 9being a section conferring jurisdiction on the District Court does notapply to a legal person as it does not "reside" within the meaning ofsection 9 of the Civil Procedure Code. He cited the case ofGovindarajulu Naide v Secretary Stated) where it was held that theword "resides" must be taken to refer to natural persons and not tolegal entities such as limited companies or governments.40
Therefore, the question to be decided is whether in terms of sec-tion 9 of the Civil Procedure Code the plaintiff-appellants are enti-tled to institute action against the 1st defendant-respondent on thebasis that the 1st defendant-respondent "resides" within the juris-diction of the District Court of Colombo.
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In Mendis v Perera(2) it was held that a person may be said toreside where he has his family establishment and home.
In Kanappa Chetty v Saibo & Company<3) it was held that theplace where a party defendant carries his business is not a placewhere he resides.
In Bindra's Interpretation of Statutes (8th Edition – 1997 p.582)it is stated that there is a difference in the matter of constructionbetween a law dealing with substantive rights which are alreadyvested and one relating to procedure. It emphasises that procedur-al enactments should be construed liberally in such manner as torender the enforcement of substantive rights effective and that rulesof procedure are not by themselves an end but the means toachieve the ends of justice. Rules of procedure are tools-forged toachieve justice and are not hurdles to obstruct pathway to justice.Construction of the rule of procedure which promotes justice andprevents its miscarriage by enabling the court to do justice in myri-ad situations, all of which cannot be envisaged, acting within thelimits of permissible construction must be preferred to that which isrigid and negatives the ends of justice.
In Hevavitharana v Themis de SilvaW Thambiah, J. quoted withapproval dictum of Mahamood, J.' in Narasingh Das v MangalDubey<5> that "Courts are not to act upon the principle that everyprocedure is to be taken as prohibited unless it is expressly provid-ed for by the Code, but on the converse principle that every proce-dure is to be understood as permissible till it is shown to be pro-hibited by the law. As a matter of general principle prohibition can-not be presumed".
In Blue Diamonds Limited v Amsterdam-Rotterdam Banbt$) itwas held that section 45 of the Civil Procedure Code requires astatement of facts setting out jurisdiction of the Court to try anddetermine the claim and the necessary averments must appear inthe body of the.plaint in the form of distinct averments. It was fur-ther held that the plea based on the residence in the plaint wasinsufficient as there was no unequivocal assertion that Amroresides within jurisdiction.
In this case (Blue Diamonds Ltd.) the Supreme Court left open
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the question whether the word 'resides' appearing in section 9(a)applies to a corporate body. Despite reference to cases of Mendisv Perera (supra) and Chetty v Saibo (supra) and the failure of theauthorities to incorporate the recommendations of the Civil CourtsCommission of 1950, Supreme Court stated that it was unneces-sary to decide this question since it took the view that the pleabased on residence in the plaint was insufficient to establish resi-dence.
It is true that section 9 of the Civil Procedure Code while con- 90ferring jurisdiction on the District Court to entertain action withinwhose jurisdiction, a party defendant resides, has not defined orspecified circumstances in which a defendant who does not actual-ly reside is nevertheless deemed to reside.
Section 20 of the Civil Prodecure Code of India (1908) providedthat the place where a defendant was carrying on business woulddetermine jurisdiction. The explanation to the section provided asfollows.
"A corporation shall be deemed to carry on business at itssole or principal office in India or in respect of any cause of 100action arising at any place where it has a subordinate officeat such place".
There is no similar provision in our Code despite a recommen-dation to that effect by the Civil Courts Commission appointed in1950 which brought out a revised Draft Code (Vide SessionalPaper No.XXIV of 1955 – Draft Code section 3(1) (a)).
In Sirimavo Bandaranaike v Times of Ceylon LtdS7) it wasobserved that a registered office gives the company a domicile anda residence.
In De Beers Consolidated Mines Ltd. v Howe (0) it was held that 110for the purposes of Income Tax Acts a foreign corporation may be"a person residing within the United Kingdom".
Despite the failure to effect the legislative clarification as speltout in the Civil Courts Commission Report – Draft Code section3(1) (a) (published as Sessional Paper No.XXIV of 1955), it seemsto me that a liberal interpretation is permissible to include a corpo-rate body as residing at his registered office where there is no other
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Martin Silva and another v Central Engineering Consultancy
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place of business. In the instant case, the defendant-respondentdid not take up the position that it has several branch offices in theisland. The 1st defendant-respondent stated in its answer that it 120has its registered office at No. 415, Bullers Road, Colombo 7.
In Somasiri v Ceylon Petroleum Corporation(9) it was held thateven if the residence of the corporation is not distinctly and clearlyaverred, it is no ground to reject the plaint or dismiss the action,when the plaintiff-appellant has averred the principal place of busi-ness at the mentioned address as within the jurisdiction of theCourt.
The plaintiff-appellants have distinctly averred that the regis-tered office of the 1st defendant was at No.415, Bullers Road,Colombo 7. Therefore, this averment is sufficient for the purpose of 130conferring jurisdiction on the District Court of Colombo.
For the above reasons, I set aside the order of the District Judgedated 07.05.1996 and remit the case to the District Court for furthertrial on the remaining issues.
BALAPATABENDI, J. – I agree.
Appeal allowed.
