MOHAMADO v. SILVA

057-NLR-NLR-V-16-MOHAMADO-v.-SILVA.pdf


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Present: Lascelles C.J. and Wood Benton J.MOHAMADO v. SILVA.
334—D. C• Colombo, 33,454,
. Promissory note—Printed form headed 44Colombo ”—Note madeelsewhere—Oral evidence may be led to prove where the note wasmade—Place of payment—Evidence.
The plaintiff sued in the District Court of Colombo the defendant,who was a resident of Kotadeniya, on a promissory note made atKotadeniya, within the jurisdiction of the District Court ofNegombo, but which was headed “Colombo, January 14, 1909,”The note was made on a printed form, and the word “ Colombo ”and the figures 44 190 ” were in print. It was contended for theplaintiff that the form of the note was suoh that the District Judgeshould not have heard evidence as to the place where the note wasmade, and that the word “ Colombo ” was a term of the contractwhich could not be varied by oral evidence.
Held, that under the circumstances oral evidence was admissible toprove that the note was made at Kotadeniya and not in Colombo.
Held, further, that as the plaintiff had sought to confer jurisdic-tion on the District Court of Colombo, by averring in his plaint thatthe note was made in Colombo (and framing an issue on it), it wasnot open to him to urge in appeal that the word “ Colombo ” wasa clear indication of the place of payment without having raisedthat issue at the proper stage.
Wood Renton J.—The appearance of the word “ Colombo ” onthe note constitutes only primd facie evidence of the place wherethe note was made and possibly where it was paid. It cannot inany sense be regarded as a term of the contract between theparties.
A
PPEAL from a judgment of the District Judge of Colombo(H. A. Loos, Esq.). The facts appear from the judgment.
E. W. Jayewardene, for the plaintiff, appellant.—The place of-*ynfllring of the note is stated on the face of the note to be Col*
Oral evidence is hot admissible to show that the note wa'
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Mohamado«. BUva
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elsewhere. 'The word “ Colombo ” at the top of the note is a termof the written contract which cannot be varied by oral evidence..
Wherever the note was made, the note was payable in Colombo,inasmuch as the only place mentioned in the note was Colombo.The Colombo Court had, therefore, jurisdiction to try the case.
Counsel cited Narayen Ghetty v. Fernando;1 Bills of Exchange Act.section. 45, sub-section (4); Vanderdockt v. Thettusson*
Wadsworth, for defendant, respondent.—Every plaint mustcontain a statement of facts setting out the jurisdiction of the Courtto try and determine the claim (section 45, Civil Procedure Code).The plaintt here stated that the note was made at Colombo, withinthe jurisdiction of the Colombo Court. This statement wasspecially traversed as required by section 76, Civil Procedure Code..An issue was framed, the. plaintiff consenting, as to whether thenote was made at Kotadeniya, within the jurisdiction of the NegomboCourt. And on that issue alone the parties went, to trial. Noquestion of place of payment arose in the lower Court, and nomention of it is made in the petition pf appeal. The plaintiff shouldnot be allowed in appeal to make a different statement of factswhich will give jurisdiction to the Colombo Court.
Oral evidence can be led to show where the note was made. Theword. “ Colombo ” on the top of the note does not form part of theterms of the contract. –
Jayewardene, in reply.
February 3, 1913. Lascelles C.J.—
This is an appeal against a judgment of the District Court ofColombo dismissing the plaintiff’s action on a promissory note onthe ground that the District Court of Colombo had no jurisdictionto entertain the action. The plaintiff in his plaint averred that thenote in question was made at Colombo, within the jurisdiction ofthe District Court of Colombo. The defendant by his answertraversed his plea, and averred that the promissory note was madeat Kotadeniya, outside the jurisdiction of the District court ofColombo, and that that Court had no jurisdiction to entertain theaction. On this plea an issue was framed whether the promissorynote sued on was made at Colombo or at Kotadeniya. Thus, thejurisdiction which the plaintiff claimed was based on the contentionthat the note was made at Colombo, and it was on this footing thatthe action went to trial. After hearing a good deal of evidence onboth sides, the learned District Judge came to the conclusion that'he note was made at Kotadeniya, and that his Court had no;sdictiod to try the action. On the appeal, it has been suggestedthe note, wherever it was made, was payable at Colombo, andm) 2 C. L. R. 80.2 (1849) 19 L. J. Com. PI. 12.
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on that ground the District Court had jurisdiction to deal with theaction. I ain of opinion that we ought not now to go into thatquestion. The plaintiff was required by the Code to indicate theground on which he founded the jurisdiction of the Court. Theground which he named was that the note was made at Colombo,and the case having gone to trial on an issue on this point acceptedby both parties, we ought not now to allow the plaintiff to allegejurisdiction on another and distinct ground. Against the finding*of the District Judge on the facts no very serious argument hasbeen addressed to us. But it is alleged that the form of thepromissory note is such that the District Judge should not haveheard evidence as to the place where the note was made. Thepromissory note is in a common form. It is headed M Colombo,January 14, 1009,” ” Colombo ” and the figures " 190 ” being inprint. It is contended that the presence of the word M Colomboat the head of the bill is a term of. the contract which cannot bevaried by oral evidence. The presence of the word “ Colombo ”at the head may or may not be an indication of the place where thenote is payable. But, in my opinion, it is in no sense a term of the ■contract which cannot be varied by oral evidence. It is quite apartand distinct from the body of the note in which the terms of thecontract are contained. No authority has been cited which really■ bears out the contention of the appellant. The only case citedwhich in any way resembles the present one is the case of Vanderdocktr. ciluason.1 But there the words indicating the place of paymentof the promissory note were in the body of the note. In my opinionthe judgment of the District Judge is right, and the appeal must bedismissed with costs.
Wood Renton J.—;
I entirely agree. The appeal has been argued before us on a pointof law which was not taken at the trial, and i& not mentioned in thepetition of appeal. Both sides were content to go to trial on thefooting that the issue of jurisdiction depended upon the question offact whether the promissory note in suit was made at Colombo or atKntadeniya. The finding of the learned District Judge on thatissue of fact has not been seriously contested here. But theappearance, at a later stage of the proceedings in the District Court,of the learned counsel for the appellant here was signalized by theemergence of a point of law on the face of the record. He invitedthe District Judge to frame an issue raising the contention that theword ” Colombo ” was a term of the written contract between the •parties and that it was not competent for the defendant to leadevidence that the note was made elsewhere. The District Judgedeclined to accept that issue at the late stage of the hearing at which* (1849) 19 L. J. Com. PL 12.
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he was invited to frame it. But I agree 'with my Lord the ChiefJustice that the point is. untenable. It may be that the appearanceof the word11 Colombo ” on the note constitutes primd facie evidenceof the place where the note was made, and possibly where it wasto be paid. But it is primd facie evidence only. It cannot in anysense be regarded as a term of the contract between the parties.Tfie issue, however, on which the case has been argued in appealis that the word “ Colombo ” is a clear indication of the place ofpayment. It appears to me that that issue was j&ot taken at theproper stage of the proceedings, and that we should not entertainit now,
Appeal dismissed.