Mercantile Credit Ltd. v. Sumanapala and Others
MERCANTILE CREDIT LTD
v.SUMANAPALA AND ANOTHER
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 697/93DC KALUTARA NO. 4015/LDECEMBER 03, 2001
Registration of Documents Ordinance, sections 22 and 32 (4) – Caveat – Registrationof a deed whilst caveat in operation – Action to be filed within 30 days of receiptof notice – Judicature Act, section 39 – Can a question of law be consideredand decided by court any time before judgment even in the absence ofan issue?
The plaintiff-appellant sought an order, pronouncing the registration of DeedNo. 1024 which was presented for registration while a caveat had been registeredalleging that the Deed is void for the reason that action bearing No. 94284/Mwas pending in the District Court of Colombo against the 1st defendant-respondentto recover a certain sum which was due on a contract of hire purchase.
The trial judge after trial dismissed the action, on the ground that the action hasnot been filed within 30 days from receipt of notice under s. 32 (4) of theRegistration of Documents Ordinance, even though there was no issue framedor any evidence being led.
A question of law which is not dependent on facts can be considered anddecided by the trial judge any time before judgment even in the absenceof an issue or any evidence.
The plaintiff-appellant conceded that he received the notice under section32 (4) on 14. 08. 1992. The plaint is dated 15. 06. 1992. The plaint hadtherefore being filed after 30 days of receipt of the said notice.
Section 39 of the Judicature Act does not apply to the facts of this case,the finding was not with regard to the jurisdiction of Court.
Sri Lanka Law Reports
 1 Sri L.R.
In the absence of a judgment or a decree in favour of the plaintiff-appellantagainst the defendant-respondent it cannot have and maintain the action.
APPEAL from the judgment of the District Court of Kalutara.
Case referred to :
1. Strong v. Marikkar – 35 NLR 145.
Upul Fernando for plaintiff-appellant.
Rohan Sahabandu for defendant-respondent.
Cur. adv. vult.
January 18, 2002DISSANAYAKE, J.
The plaintiff-appellant by his plaint dated 15th June, 1992, filed this 1action seeking an order from the District Court, pronouncing theregistration of deed No. 1024 dated 01.04.1992, which was presentedfor registration to the Land Registry while a caveat that had beenregistered was in force, alleging that the said deed is void or voidableand/or fraudulent as against the plaintiff-appellant and/or in derogationof lawful rights, for the reason that action bearing No. 94284/M waspending in the District Court of Colombo, against the 1st defendant-respondent to recover a sum of Rs. 83,342.88 which sum was dueon a contract of hire purchase bearing No. 20/M/11237/MB.10
The 1st and the 2nd defendants-respondents by their separateanswers filed whilst denying the various averments in the plaint prayedfor dismissal of the plaintiff-appellant’s action.
The case proceeded to trial on 13 issues and at the conclusionof the trial the learned District Judge by his judgment dated 20thAugust, 1983, dismissed the plaintiff-appellant's action.
It is from the aforesaid judgment that this appeal is preferred.
Mercantile Credit Ltd. v. Sumanapala and Others(Dissanayake, J.)
Learned Counsel appearing for the plaintiff-appellant contended thatthe learned District Judge misdirected himself in dismissing the plaintiff-appellant’s action for the following reasons:20
In the absence of any issue being framed or any evidencebeing led, the finding of the learned District Judge that theplaintiff-appellant cannot have and maintain this action as ithas not been filed within 30 days from receipt of notice undersection 32 (4) of the Registration of Documents Ordinance,was erroneous.
That after the defendants-respondents have alreadypleaded, by virtue of the provisions of section 39 of theJudicature Act the question of jurisdiction cannot be taken.
The finding of the learned District Judge that the aforesaid 30instrument could be rendered void/voidable only if there hadbeen a judgment in case No. 94284/M was erroneous.
It is to be borne in mind that a question of law which is notdependant on facts can be considered and decided by the learnedDistrict Judge, any time before judgment even in the absence of anissue or any evidence.
The plaintiff-appellant in paragraph 7 of the plaint has concededthat he received the notice under section 32 (4) on 14th August, 1992.
The plaint is dated 15th June, 1992. The plaint has been filed after30 days of receipt of the said notice. Therefore, the learned District 40Judge was right in coming to the finding that action has not beenfiled within 30 days of receipt of the said notice.
Section 39 of the Judicature Act does not apply to the facts ofthis case. None of the defendants-respondents raised a question ofjurisdiction of Court.
The finding of the learned District Judge was not with regard tothe jurisdiction of Court. The finding by the learned District Judge wasthat in view of the fact that the plaint has been filed after 30 daysof receipt of the notice under section 32 (4) of the Registration ofDocuments Ordinance, the plaintiff-appellant cannot have and maintain so
Sri Lanka Law F%>ort&
this action. The testimony of Lawrence Ant~n7'J nrnYfhr—**sTitrrofficer of the plaintiff-appellant company was to the effect that theplaintiff-appellant company instituted case No. 94289/M in theDistrict Court of Colombo and while it was pending, the caveatsproduced marked (P1) to (P5) were registered in the Land Registryof Kalutara.
While aforesaid caveats were in force the plaintiff-appellant receivednotice by the Registrar of Lands, Kalutara, that deed bearing No. 1024dated 1st April, 1992, attested by W. K. C. Dharmawardana, NotaryPublic, had been presented for registration where the 1st defendant- 60respondent had sought to transfer the property in favour of thedefendant-respondent.
The witness Lawrence Antony Cooray did not testify to the factthat he was in possession of a judgment or decree in favour of theplaintiff-appellant in case No. 94284/M of the District Court of Colombo.
He asserted that the aforesaid action was filed against the 1st defendant-respondent in the District Court of Colombo, in respect of money dueon a hire purchase agreement entered into with the plaintiff-appellantcompany.
In the case of Strong v. Marikkar,m it was held that section 32 ?oof the Registration of Documents Ordinance does not entitle a creditor,who has not obtained judgment against his debtor, to enter a caveatto prevent alienation of property by his debtor in fraud of creditors.Thus, the learned District Judge has rightly concluded that in theabsence of a judgment or a decree in favour of the plaintiff-appellantcompany against the 1st defendant-respondent it cannot have andmaintain this action.
Therefore, there is no basis for this Court to interfere with thejudgment of the learned District Judge. The appeal of the plaintiff-appellant is dismissed with costs.80
ANDREW SOMAWANSA, J. – I agree.
MERCANTILE CREDIT LTD v. SUMANAPALA AND ANOTHER