Ott. v. The District Judge, Kalutara
1948Present: Nagalingam J.
ORR, Petitioner, and THE DISTRICT JUDGE, KALUTARA,
In the Matter of an Application for a Writ of Mandamus on the District
Mandamus—Court's refusal to issue process in a civil case—Plaintiff's remedy—Civil Procedure Code, section, 46.
Where a District Judge refused to issue process in a civil case on the groundthat the plaint which was filed was wanting in necessary particulars—
Held, that, as the Judge had not refused to exercise jurisdiction, a writ ofmandamus could not be issued.
NAGALIXGAM J.—Orr v. The District Judge, Kalutara.
/Application for a writ of mandamus to compel the DistrictJudge of Kalutara to accept a plaint and order process on thedefendants.
Petitioner in person.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
January 23, 1948. Nagalingam J.—
This is an application by the petitioner for a writ of mandamus tocompel the District Judge of Kalutara to accept a plaint filed by himand to order process on the defendants.
The petitioner tendered a plaint on August 7, 1947, claiming a sum ofRs. 20,000 as damages against certain defendants, all of whom wereeither advocates or proctors practising in the Kalutara Courts, on theground of their having committed “ grave and reckless acts of conspiracy,fraud, treachery and forgery practised on plaintiff On receipt of theplaint, the Judge scrutinized it, as he had to do, and made order onAugust 12, 1947.
“ The plaint is prolix. It does not appear to me to disclose a causeof action. I therefore reject it ”.
It is unnecessary to dwell at length on the legality of this order, butit will suffice to observe that under section 46 of the Civil Procedure Code,where a plaint is in the opinion of the Court prolix or does not disclosea cause of action the Court cannot reject it but must return it for amend-ment either then and there or within a fixed time. The proceedingsin the District Court, however, were carried to stages beyond.
On August 13, 1947, the petitioner filed a motion contending that hecould amend his plaint at any time before trial and applied for the issue ofsummons on the defendants. It would thus be apparent that the plain-tiff regarded the order made on August 12, 1947, as one which tanta-mounted to an order directing the amendment of the plaint. On thismotion, the Court amplified its earlier order by ruling that the plaint wasdefective for the reason that, to quote the words of the order,—
“ it offends against section 46 (2) (a), (6) and (d) Civil Procedure
Code. No summons can in the circumstances be ordered unless the
plaint is amended to comply with the provisions I have referred to.”
This order clearly shows that the Judge had directed his mind to thequestion whether the plaint presented conformed to the provisions ofsection 46, and having formed the view that it did not, he made an orderwhich was perfectly legitimate and in accordance with the provisions ofthe law.
In compliance with this order the petitioner filed on August 27, 1947,an amended plaint and on the following day, in regard to it the Courtmade order as follows :—
“ The amended plaint is still defective in the particulars referred,to by me in my order of August 20, 1947, and I reject it.”
N'AG-AJLING-AM J.—Orr. v. The District Judge, Kalutara
The various orders made by the Judge establish quite clearly that heexercised the functions appertaining to his office, and having consideredthe matters relevant to the question before him he reached the conclusionthat the plaint offended against express provisions of the law and in theexercise of the discretion vested in him by section 46 of the Code madeorders which give rise to this application. That the Judge declined toexercise jurisdiction it is impossible to assert in the circumstances.
In this state of facts the question arises whether a writ of mandamuscan be said to lie. The petitioner contends that it does. He relies uponcertain rulings of this Court and argues that on a refusal of process theonly remedy is by way of a writ of mandamus. That proposition is trueif properly understood. An examination of the rulings relied upon,which relate to Magistrates’ Courts, reveals that the true principle to bededuced from them is that where a magistrate refuses to entertain a plaintdeclining to hear any evidence a writ of mandamus would he, but notwhere the magistrate exercises jurisdiction and thereafter refuses to issueprocess. I need only refer to the case of Application for a Writ of Man-damus on the Police Magistrate, Mataraf where Bertram A.C.J. referringto the earlier cases enunciated the doctrine as follows :—
“ Tt in settled by a senes of decisions of this Court, namely, dPu.nchi,-hewage Baba Singhov. Don Leiois Wijesingne Patabendirala 2, Normanv. Perera3 and Ramanathan Pillai v. Ramanathan Pillai4, that theremedies given by section 337 of the Criminal Procedure Code arealternative remedies, but that the remedy by mandamus only lieswhere a Magistrate has actually refused to exercise jurisdiction. Itcannot be said in this case that the Magistrate refused to exercisejurisdiction inasmuch as he actually heard the complainant and decidedthe case upon his evidence.”
Generally, in regard to the issue of a writ of mandamus to inferiorCourts, Shortt in his well known work sets out the proposition at page295 as follows :—
“ Wherever granted (i.e., a Writ of Mandamus) it is to compel theexercise of a jurisdiction which the inferior tribunal possesses butrefuses to exercise, never to compel the exercise of such jurisdictionin any particular manner.”
It cannot be said in this case that the Judge refused to exercisejurisdiction, and sufficient has already been said to indicate that theJudge, far from declining jurisdiction, has with meticulous care and-precision, examined the plaint and reached certain judicial conclusions.The writ, therefore, cannot in these circumstances issue.
The petitioner also submitted an argument based on considerationsab inconvenienti, namely that as the plaint had been rejected none of thedefendants could have been named respondents to an appeal, and that asthe law also prohibited the naming of a Judge as a respondent for an actdone by him.in his judicial capacity, no remedy lay by way of appeal,and there being no other method of obtaining redress the only remedyopen to him was by an application for a writ of mandamus. The fallacy
1 [1918) 5 C. W. R. 225.s (1900) 4 N. L. R. 85.
* (1886) 7 S. C. G. 201.1 (1909) 1 Cur. L. R. 29.
WINDHAM J.—Pelpola v. Ounaumrdena.
underlying this argument is the assumption that t<y every appeal thereshould be a respondent named. Ex parte appeals with no respondentsnamed therein are quite a common feature in our Courts. This argumenttoo, therefore, has no merit in it.
In my opinion, the proper remedy for the petitioner was to haveappealed from the order of the Judge within the appealable time, butnot having done so he is even now not v ithout a remedy if he wishes,to pursue the matter further. Section 46 of the Code expressly enablesa j lain tiff whose plaint has been rejected tc present a fresh plaint in respectof the samr cause of action.
In view of the conclusions reached, the application of the petitionerfails and is dismissed with costs.