030-NLR-NLR-V-55-MURUGAPPAN-CHETTIAR-Appellant-and-NADARAJAN-CHETTIAR-Respondent.pdf
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JHurugappan Chelliar v. Nadar ajart Chetliar
Present: Gratiaen J. and Gunasekara J.
MUBUGAPPAiST CHETTIAR. Appellant, and NADARAJANCHETTIAR, Respondent
8. C. 42—D. C. Colombo, 20,470
Lis alibi pendens—Stay of proceedings—Conditions precedent—Civil Procedure Code,s. 839.
An order staying all proceedings in an action until the conclusion of a litigationwhich is pending between the parties in a foreign Court cannot be made exceptupon proper material. A mere balance of convenience is not a sufficientground for depriving a plaintiff of the advantages of prosecuting his action ina court in Ceylon if it is otherwise properly brought.
j^LPPEAL from an order of the District Court, Colombo.
.r
G. Thiagalingam, Q.G., with S. Sharvananda and G. A. Thavathurai,for the plaintiff appellant.
E. B. Wihramanayake, Q.G., with S. Thangarajah, for the defendantrespondent.
Cur. adv. vult.
GRATIAEN J.—Ddurugappan Chettiar v. Nadarajan Ohettiar
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June 5, 1952. Gbatiaejst J.—•
This is an appeal from an order of the District Court of Colombo, dated22nd November, 1950, directing that all proceedings in the present actionshould be stayed until the conclusion of a litigation which was pendingbetween the parties in the Sub-Court of Sivaganga in India. Section 839of the Civil Procedure Code certainly confers upon trial Judges in thisIsland an inherent jurisdiction to make orders of this nature upon propermaterial and in accordance with the well-recognised principles of thedoctrine of Us alibi pendens. In Ramen Chettiar v. Vyvaven Chettiar1Wijeyewardene J. {Howard C.J. concurring) laid down, the followingrules which should guide a Judge who is invited to order a stay on theground that the same lis is already pending between the parties in aforeign Court:—
“ (1) The burden is on the party asking for the interference of Courtto prove that he is doubly vexed by reason of two actions beingbrought against him.
Where the two actions are brought in the same country there is
a prima facie presumption of an intent to cause vexation.
Where the party is sued in one country and also in a foreign country
or where a party is sued in two countries subject to the sameParamount Power a Court will not presume an intent to causevexation—
(a.) in the absence of evidence that the plaintiff cannot obtain anadditional advantage in continuing both his actions, or
(6) from the mere fact of inconvenience or additional expensecaused to a party, or
(c) from the fact that by staying one action less evidence wouldhave to be ultimately led in the first action. ”
The plaintiff asks that the learned District Judge’s order under appealshould be set aside because he has misdirected himself as to the matterswhieh should have weighed with him in exercising his discretion to stayproceedings on the ground of vexation or abuse of process—a discretionwhich must, without doubt, be very cautiously applied. For our Courtsare “ freely open to all persons, including persons foreign to this country,seeking to enforce their rights …. in cases in which the Courts
can properly exercise jurisdiction ”. Logan v. Bank of Scotland 2. Therule was stated thus by Scott L.J. in St. Pierre v. S. American Stores{Gath and Chavis) Ltd. 3 :—
“ (1) A mere balance of convenience is not a sufficient ground fordepriving a plaintiff of the advantages of prosecuting his action in anEnglish Court if it is otherwise properly brought. The right of accessto the King’s Court must not be lightly refused. (2) In order to justify
1 (1940) 41 N. L. R. 371.* (1906) 1 K. B. 141, 159.
s (1936) 1 K. B. 382, 398.
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GRATIAEN J.—M.urugappan Ghettiar v. Nadarajan Okettiar
a stay, two conditions must be satisfied, one positive and the othernegative ; (a) the defendant must satisfy the Court that the continuanceof the action would work an injustice to him because it would be oppres-sive or vexatious to him or would be an abuse of the process of theCourt in some other way ; and (6) the stay must not cause an injusticeto the plaintiff. On both the burden of proof is on the defendant. ”
These observations are in conformity with those enunciated by Wijeye-wardene J. in Ramen Chettiar’s case (supra) and, with respect, they shouldalways be borne in mind by a Judge who is called upon, in effect, to denyto a litigant the privilege of obtaining legal redress in proceedings overwhich our Courts are vested with jurisdiction.
The conclusion at which I have arrived is that the defendant, on whomthe burden of proof clearly lay, has not adduced any evidence whichwould have justified a stay of the proceedings in the present action. Theelements of vexation or oppressiveness or abuse of process have not beenestablished. Still less has the onus been discharged of proving that theplaintiff would not derive any advantage by a continuation of theproceedings in this country in the normal way. '
I now proceed to set out my reasons for deciding that the learned Judge’sorder should be set aside.
The present action was instituted by the plaintiff on 1st December,1948,against the defendant, who is his elder brother, for the recovery of twosubstantial sums of money aggregating over Its. 160,000 and for certainadditional relief upon these causes of action. The jurisdiction of theCourt to entertain the action is not denied, and the defendant himselfseems to concede that, in respect of the second cause of action on which hehas admitted partial liability, the District Court of Colombo is the mostconvenient forum for an adjudication of the dispute (paragraphs 18 and 20of the document PI). On that basis, a sum of money representing theamount of his admitted liability has been brought into Court to the creditof the action.•
On 15th December, 1948, the plaintiff also instituted an action againstthe defendant and two others in an Indian Court upon several causes ofaction including, but not restricted to, the causes of action which formthe subject matter of the present proceedings. We have no evidencebefore us as to the rules of procedure governing litigation in the Sub-Courtof Sivaganga, but I find that the defendant’s answer in the Indian casehad specifically pleaded inter alia that the prior institution of this actionin Ceylon is an absolute bar to the maintainability of the Its in India. Ifthat be a valid plea, it certainly affords a most compelling argumentagainst the application for a stay of the proceedings in the Ceylon case.
To return to the progress of the proceedings in the District Court ofColombo. The trial was originally fixed for 18th July, 1950; and bothparties, who had attended Court with their respective witnesses, wereready to proceed with the action on its merits. Unfortunately, however,the case was postponed by the Court for want of time, and the trial stoodadjourned for 22nd November, 1950. On that date, without any previous
GRATXAEN J.—Murugappan Chettiar v. Nadarajan Clietiiar
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notice to the plaintiff or his proctor, an oral application on the defendant’sbehalf was made for a stay of proceedings on the ground that the Indianlitigation was still pending. The failure of the defendant to invoke thediscretionary jurisdiction of the Court until long after the time when hecould reasonably and properly have applied for a stay was itself a groundfor rejecting his belated application. Spencer Rower on Res Judicata,page 213. But apart from that, the application was in my opinionentirely devoid of merit, and the trial should have been proceeded withon the appointed date for the following compelling reasons :—•
(а)it was not proved or even suggested that any events had occurred
since 18th July, 1950 (on which date the defendant had expressedhis willingness to submit to the Court’s jurisdiction to try the case),which would operate to prejudice his position as a litigant in theCeylon Court;
(б)both parties had cited witnesses resident in Ceylon to support their
respective cases, and these witnesses cannot be subpoenaedto attend the Sub-Court of Sivaganga in India ;
the defendant had conceded in the document P2 that the trans-
action to which one at least of the causes of action relates “ hadarisen in Ceylon and has to be decided under the law governingin Ceylon ” ;
the defendant has also pleaded in P2 that, should the defendant
obtain a money decree in India upon the second cause of action,that decree should direct payment to be made in Ceylon. If thatbe so, the final adjudication of the Indian Courts would not byitself conclude the litigation, and further proceedings in thisIsland would be necessary for the purpose of enforcing part atleast of the Indian decree ;
the trial in the present action would, but for the granting of the
order applied for, have commenced on 22nd November, 1950,and been concluded, presumably, not very long afterwards ; byway of contrast, there was no evidence that the litigation inSivaganga could reasonably have been expected to be broughtto a speedy conclusion. (Indeed, 18 months have since passed,and it would appear that the Indian case has even at this datenot reached a stage beyond the preliminary “ framing ofissues ”.)
(/) should the plaintiff ultimately fail in his action in the Ceylofr Courts,he would enjoy the advantage of preferring an appeal as of rightto the Judicial Committee of the Privy Council; that privilegeis no longer enjoyed by litigants ir India.
The learned iJistrict Judge does not seem to have had the advantage ofbeing reminded of the reported decisions on the doctrine of Us alibi pendens—an omission for which the plaintiff’s counsel, whohad no previous noticeof the defendant’s application, was certainly not to blame. In consequence,the learned Judge has not given due weight to any of the material factorsreferred to by me, and his judgment proceeds solely upon his attempted
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QRATT AEN J.—Dissanayake v. Pun chi M.enikkc
assessment of what he described as the “ balance of conveniences Inthe result, the discretion which he purports to have exercised in orderinga stay of proceedings is •vitiated by misdirection.
I would set aside the order under appeal and direct that the case he sentback for trial in the normal way. The appellant is entitled to his costsboth here and in the Court below. The District Judge in fixing fresh datesOf trial will no doubt pay due regard to the fact that this action wasinstituted nearly 4 years ago.
Gttjjasekaba J.—I agree.
Order set aside.