PEDRIS v. MOHIDEEN

025-NLR-NLR-V-25-PEDRIS-v.-MOHIDEEN.pdf


( 105 )
[Full Bench.]
PEDRIS v. MOHIDEEN.Present: De Sampayo A.C. J. and Porter and Schneider JJ.
Jurisdiction—Court of Requests—Continuing damages—Action againstoverholding tenant—Damages exceeding Rs. 300 at date of decree.
Where a plaintiff claims continuing damages for being kept outof possession of any land, the relief as regards damages which theCourt of Requests can grant is not restricted to the ordinary limitof its jurisdiction.
Plaintiff instituted this aotion in the Court of Requests on May 3,1922, against an overholding tenant, alleging that the tenancyterminated on January 31, and claiming Rs. 50 as rent for Januaryand damages thereafter at Rs. 50 per mensem till he recoveredpossession. Decree was entered on January 31, 1923, as prayedfor.
Held, that the Court had jurisdiction to award damages prayedfor, even though it exceeded Rs. 300.
'PHIS case was referred to a Bench of three Judges by thefollowing judgment:—
Gabvtn A. J.—This appeal fails on all grounds save on the question oflaw formulated below. The facts are as follows : The plaintiff sued histenant, the defendant, in the Court of Requests for rent and ejectment.His plaint was filed on May 3, 1922. He pleaded that he haddetermined thrftenancy by a notice to quit served on December 17, 1921,and claimed Rs. 50 as rent for the month of January, and for damagesat the rate of Rs. 50 a month till delivery of possession. His prayerruns as follows :—
“ The plaintiff prays for judgment against the defendant—
(а)For the sum of Rs. 50.
(б)For an order to eject the defendant and have plaintiff plaoed in
quiet possession.
For damages at Rs. 50 a month from February 1, 1922, till
defendant is ejected.
For costs.”
After trial judgment was entered for the plaintiff as prayed for withcosts, and the following decree was entered on the same day :—
“ It is ordered and decreed that the defendant do pay the plaintiff thesum of Rs. 50 and costs of suit. It is further ordered anddecreed that the defendant be ejected from the house andpremises …. and that the plaintiff be placedand quieted in possession thereof, and it is further orderedand decreed that the defendant do pay the plaintiff furtherdamages at the rate of Rs. 50 a month from February 1, 1922,till plaintiff is restored to possession of the said premises.”
1923,
( 100 )
1923.
Pedrts v.Mohideen
H. V. Perera, for appellant—Section 77 of the Courts Ordinance,as amended by section 4 of Ordinance No. 12 of 1895, conferredjurisdiction in Courts of Requests in all cases where the debt,damage, or demand did not exceed Rs. 300, or in which the valueof the land or the particular interest claimed in the land did notexceed Rs. 300. In Banda v. Menika1 the Full Court held that aclaim for an interest in land not exceeding Rs. 300 in value would becombined with a claim for incidental damages, provided that such' damages did not exceed the monetary limit of the jurisdiction ofthe Court. The question raised in this appeal is whether theCourt of Requests had jurisdiction to enter a decree for a sumexceeding Rs> 300 as continuing damages where the damages werewithin the monetary limit of the jurisdiction of the Court when theaction was first brought, but had exceeded such limit at the timeof entering the decree. This question was considered by Shaw J.in Usoof v. Zainudeen 2 where he held that though the Court ofRequests had jurisdiction to entertain a case of continuing damages,where the damages that had accrued at the time of action werewithin its limits of jurisdiction, yet it could not enter a decree foran amount exceeding Rs. 300 as such damages, though the damagesmay have amounted to more during the course of the trial. Thisview was adopted by De Sampayo J. in Banda v. Menika (supra)while the Chief Justice and Loos J. reserved their opinion on thepoint. The remarks made by the Chief Justice, however, indicatesthat he was of opinion that cases of continuing damages could notbe entertained at all by the Court of Requests.
It is clear that the Court of Requests can have no jurisdiction' beyond what has been conferred by Ordinance, and there is noprovision which enables it to enter a decree exceeding the limit ofits usual jurisdiction. If the Court of Requests had jurisdiction toenter a decree as in this case, a party would be able to make use ofthis Court to recover an unlimited amount and to oust the jurisdic-tion of the District Court in a very important class of cases. Section81 of the Courts Ordinance shows that the relief to be granted isto be limited, and that this limit is to be the same as its limit ofjurisdiction.
1 (1919) 21 N. L R. 279.
The point, of law raised in the appeal is that the decree is in effecta decree for approximately Rs. 400, exclusive of costs, and for furtherdamages at the rate of Rs. 50, and that, the decree to the extent, that it isin excess of a sum of Rs. 300 is one which the Court of Requests has notthe jurisdiction to enter. In effect the contention is that upon a decreeof the Court of Requests no sum in excess of Rs. 300, exclusive of costs,is recoverable. The question is one of the great importance, and Ithink it should be speedily settled.
I would, therefore, direct that the matter be submitted to the ChiefJustice with a view to the case being listed for argument before a Benchof three Judges.
*(1918) 21 N. L. R. 86.
( 107 )
M. W. H. de Silva, for respondent.—In this case it is concededthat the Court of Requests has jurisdiction to entertain cases ofcontinuing damages, and that this action when first brought waswell within the monetary limit of jurisdiction of the Court ofRequests. Under the circumstances the contention that though theCourt had jurisdiction to entertain the action, it could not give theplaintiff the full relief to wliich he was entitled is inconceivable.The plaintiff coidd not have gone to the District Court withoutincurring the risk of being condemned to pay the difference betweenthe costs of the District Court and of the Court of Requests.
Once a plaintiff comes to Court he has no further control over theconducting of the case, and it is not passible for him to limit itsduration. A defendant can always obstruct and delay the pro-ceedings, and if the contention of the appellant be correct, it willalways be to his advantage to do so, as the amount of continuingdamages will automatically stop when it reaches the limit ofRs. 300. Thereafter he will be able to enjoy the premises wrong-fully held by him without any liability to pay as long as he canmanage to delay the proceedings. There must be some unequivocalprovision of law to make the Court to come to such a conclusion, butno such provision has been pointed out. Section 81 to whichreference has been made does not help the appellant, because itcarefully avoids referring to Rs, 300 as the limit of relief.
The practice of the Courts for a number of years has been to enterdecrees for sums amounting to over Rs. 300 in such cases. Veryfrequently decrees are entered for Rs. 300 and interest from thedate of action, and even the case of Banda v. Menika (supra) underthat was conceded. In Ooonesekera v, Pompeus Loos A.J. heldthat a writ for over Rs. 300 in conformity with a decree of theCourt of Requests was regular.
H. V. Perera, in reply.—If it is generally recognized that the Courtof Requests cannot enter a decree for over Rs. 300, there would beno difficulty in instituting the action in the District Court wherethere is a probability of damages exceeding Rs. 300 at the time ofdecree.
If a plaintiff comes to the Court of Requests he must be taken tohave waived the amount in excess of the limit of jurisdiction.Courts of Requests cannot assume jurisdiction by reason of the factthat they have done so for a number of years. It is for the Courtto decide what jurisdiction has been conferred by law.
June 25, 1923. De Sampayo A.C.J,—
I have reconsidered the opinion which I ventured to express inBanda v. Menika (supra) to the effect that where a plaintiff claimscontinuing damages for being kept out of possession of any land,the relief as regards damages which the* Court of Requests can grantmust be restricted to the ordinary limit of its jurisdiction. My25/0
1923.
Ptthis i».Mob ideen
( 108 )
1923, brother Schneider has fully discussed that question in his judgmentDe Sampayo in this case, and I now agree with his view that where the subjectof the action is within its'jurisdiction, the Court may award inciden-Pelria v. tal damages, even though it may in the result exceed the Rs. 300 limit.Mokideen j agree that this appeal should be dismissed, with costs.
Porter J.—
I have had the opportunity of reading through the judgment ofmy brother Schneider, with which I am in entire agreement.Schneider J.—
The plaintiff sued the defendant in ejectment upon the groundthat the defendant’s tenancy of certain premises under him hadbeen terminated on January 31, 1922, by due notice. He prayedfor Rs. 50 as rent for the month of January, and for the same sumby way of damages per mensem for overholding from February 1,1922, till he recovered possession.
The defendant denied that any rent was due, and that his tenancyhad been terminated as alleged. The action was instituted onMay 3, and the decree was entered on January 31,1923. It directedthe defendant to be ejected and the plaintiff to be restored to posses-sion. It ordered that the defendant to pay to the plaintiff Rs. 50 asrent and damages at the rate of Rs. 50 per mensem from February 1,1922, till the plaintiff was restored to possession. It should benoted here that, at the date the decree was entered, the sum awardedas rent and damages amounted to Rs. 600 without reckoning thecontinuing damages from the date of the decree.
From this decree the defendant appealed. Garvin A. J., beforewhom, sitting by himself, the appeal came, referred to a Bench ofthree Judges, the question whether it was within the competenceof the Court of Requests to enter a decree, in the circumstances ofthe case, for a sum exceeding Rs. 300.
The jurisdiction of Courts of Requests is entirely the creature ofStatute law. . The ordinary general jurisdiction of Courts of Requestsis conferred by section 77 of the Courts Ordinance, No. 1 of 1889,and might be summarized as confined to—
(a) Actions in which the debt, damage, or- demand shall notexceed Rs. 300.
(5) (1) Hypothecary actions in which the amount claimed shallnot exceed Rs. 300 ;
All actions in which the title to, interest in, or right to the
possession of, any land shall be in dispute ;
All actions for the partition or sale of land ;
provided that the value of the land or the particular share, right,or interest in dispute, or to be partitioned or sold, shall not exceedRs. 300.
This action as well as the action Banda v, Menika (supra) bothfall into the category of cases comprised under the head (6) above.
( 109 )
Banda v. Menika {supra) is the decision of a Full Bench of thisCourt, and must be regarded as a binding authority upon the pointwhich it decided. The question raised there was whether, whenthe interest in land which was in dispute was Rs. 266 in value, anydamages beyond Rs. 34 (which would make Rs. 300 when added toRs. 266) could be claimed. It was held that the test of jurisdictionin cases falling under head (6) is the value of the interest- in dispute,.irrespective of any damages or other relief claimed on the cause ofaction, that any claim for damages was only incidental and subsi-diary and did not affect the question of the jurisdiction of the Court.In the course of his judgment De Sampayo J. observed that thedamages which a Court of Requests might award in such a caseshould be restricted to Rs. 300, as that is the ad valorem limit of itsjurisdiction. This is only an obiter dictum, but even so it is entitledto weight coming from a Judge of his experience and his learningin the law. He cited with approval the case of Usoof v* Zainudeen(supra) decided by Shaw J. to the same effect. Referring to thisobservation Bertram C.J. in his judgment said : “ With regard tothe suggestion made by Shaw J. in a previous case and adopted bymy brother De Sampayo in this case, that in cases of continuingdamages the Court should impose its own limitation on the measureof the relief to be accorded, I desire to reserve my opinion. Such aresult is no doubt very satisfactory, but I am not sure that it doesbelong not to the sphere of legislation rather than to that of inter-pretation. It would, therefore, appear that the Full Bench decisiondoes not decide the precise question raised by this appeal whichmust therefore be decided upon first principles. It would be usefulto refer very shortly to the history of Courts of Requests to see if itwould throw any light which might be of assistance in deciding thequestion under consideration. There is a very strong resemblanceboth in the language and the provisions between our law and theEnglish law. In both systems the same division of actions into thetwo broad categories, which I have indicated above exists. Inboth systems the same provisions exist as regards transfer to ahigher Court when a counter claim involves matter beyond thejurisdiction of a Court of Requests, as regards the extent to whichsuch a counter claim might be entertained, as regards abandoning theexcess in a claim in order to maintain it in a Court of Requests andas regards the prohibition against dividing a cause of action.
The same reason is given for the establishment of these Courtsin both countries. For their establishment in England the reasongiven is : “ The proceedings in the County Court having becomeexpensive and dilatory Courts of Requests, in which the partieswere examined and judgment awarded in a summary manner, wereestablished.”1 From 1845 to 1887 a number of Statutes were passedin England dealing with the extension of the jurisdiction of Courts
1 Encyclopaedia of the Laws of England, vol, 4, p, 216.
1923.
Schneider
J.
Pedris v.Mohhleen
( 110 )
1923. of Requests. The earliest Ordinances in Ceylon creating andSchneider remodelling. Courts of Requests are No. 10 of 1843 and No. 22 of8fe1852. In the book, which is called Noll's Reports, but which is
Peiris v. really a practical treatise on the constitution of and the procedureMohideen jn Courts of Requests combined with reports of cases on the subject,the author says : “ These Courts of small causes were not con-templated by the Charter of 1S33.” He points out that theGovernor availing himself of the powers vested in him by LettersPatent dated January 28, 1843, established Courts of Requests byOrdinance No. 10 of 1843. Speaking of their object he remarks :
“ The Legislature thought it expedient to establish Courts of CivilCauses exercising jurisdiction in suits of less importance and divestedof the tedious formalities observed in the District Courts with theview of placing/within reach of litigants a cheaper and more speedyprocess of obtaining a legal decision.” 1
These resemblances are not merely accidental, but clear indicationsthat our Legislature adapted the English legislation to our needs.I have been unable to find any decisions of the English Courts uponthe precise question to be decided on this appeal. There is nothingto be found in the history of the legislation to suggest that therelief which a Court of Requests might grant in an action such asthe present one, which it can take cognizance of , is to be confinedto any ad valorem limit. It may', therefore, be asked why shouldit be assumed that the damages which the Court could awardas in this case are limited to Rs. 300, Section 81 of the CourtsOrdinance was pointed out as supporting the argument that therelief must be limited to Rs. 300. I am unable to agree. Thatsection deals with a case where the Court has no jurisdiction, as theclaim in reconvention involves matter beyond its jurisdiction.It therefore confers a special jurisdiction to enable the Court todeal with the claim to 'a limited extent. It enacts “ but no reliefexceeding that which the Court has jurisdiction to administer shallbe given to the defendant upon such claim in reconvention.” Thesewords cannot be construed as meaning that the relief must berestricted to Rs. 300. On the contrary, they suggest to me thatsuch a restriction was avowedly avoided, because if such a restrictionhad been intended nothing was easier to say in express terms that■ no relief exceeding Rs. 300 in value shall be given. What the words“ the relief which the Court has jurisdiction to administer ” meanis precisely what we are endeavouring to ascertain for the decisionof this appeal. Banda v. Menika (supra), already referred to,is authority for the proposition that it is competent for a Court ofRequests to grant relief exceeding Rs; 300. It seems to me there-fore that the language of section 81 does not help the contentionthat the damages should be restricted to Rs. 300. Althoughsection 77 limits the jurisdiction in actions for debt, damage, or
1 Nell’s Reports 2.
( 111 )
demand to Rs. 300, no such limitation is imposed as regards thedamages which may be claimed in actions for recovery of possession.De Sampayo J. in his judgment in Banda v. Menika (supra) says :“ As regards damages in land cases it is possible that the reason whyno special provision is made is that it is intended that the generallimitation in regard to pecuniary jurisdiction should be observed.”I find it difficult to accept this view.
The policy of the Civil Procedure Code is to prevent a multiplicityof actions. It is, therefore, enacted in section 33 : “ Every regularaction shall, as far as practicable, be so framed as to afford groundfor a final decision upon the subjects in dispute, and so to preventfurther litigation concerning them.” And in section 34 : “ Everyaction shall include the whole of the claim which the plaintiff isentitled to make in respect of the cause of action: but a plaintiffmay relinquish any portion of his claim in order to bring the actionwithin the jurisdiction of any Court. If a plaintiff omits to suein respect of, or intentionally relinquishes any portion of, his claim,he shall not afterwards sue in respect of the portion so omitted orrelinquished. A person entitled to more than one remedy in respectof the same cause of action may sue for all or any of his remedies :but if he omits (except with the leave of the Court obtained beforethe hearing) to sue for any such remedies, he shall not afterwardssue for the remedy so omitted.” The provisions in these sectionsare strengthened by the “ Explanation ” under section 207 : “ Everyright of property, or to money, or to damages, or to relief of anykind which can be claimed, set up, or put in issue between theparties to an action upon the cause of action for which the action isbrought, whether it be actually so claimed, set up, or put in issueor not in the action, becomes, on the passing of the final decreein the action, a res adjudicata, which cannot afterwards be madethe subject of action for the same cause between the same parties.”These provisions make it clear that the plaintiff must claim inone action all the relief he is entitled to upon the one cause ofaction, and that his failure to ask for continuing damages will debarhim from claiming them in any other action. It is no answer to saythat he. should not expect to obtain more than Rs. 300 by way ofcontinuing damages if he comes to the Court of Requests. At thedate of the institution of his action, the Court of Requests was theproper forum. If he should go to the District Court he runs therisk which is almost a certainty, that he would be mulcted in costsfor prosecuting his claim in a higher Court. It is impossible to saytill the final stage of execution is reached what would be the quantumof damages when they are continuing damages. Their continuationis due to circumstances beyond the plaintiff's control. In mostcases they are to be attributed to the wilful act of the defendant.Is the law to be interpreted to be so inequitable that it punishesa person if he goes to the District Court because he should have
1923.
SCHKELDER
J.
Pedris v.Mokhleen
( 112 )
1923.
Schneider
J.
Pedri$ v»Mohideen
sought relief in the Court of Requests, and if he goes to the Court ofRequests it also punishes him by depriving him of a part of hisclaim which, has been swelled by the defendant’s own wrongful act.It is not possible to take such a view of the law. Banda v. Menika(supra) might be regarded as impliedly holding that the damageswhich might be awarded are not limited. It held that in land casesthe test of jurisdiction is the value of the interest in land which is indispute, and that damages were not to be reckoned for that purpose.Therefore, if damages are not to be reckoned why should a limitationbe presumed to have been placed as to the amount of damageswhich can be awarded. The Court has jurisdiction to entertainthe action and grant relief, why should the relief which it can giantbe presumed to 'be restricted when there is no express provisionto that effect. The Civil Procedure Code was in operation in 1890.The Courts of Requests Ordinance, No. 12 of 1895, which amendedsection 77 of the Courts Ordinance dealing with the jurisdiction ofCourts of Requests was a later enactment. It is by virtue of theprovision in section 35 (6) of the Civil Procedure Code that continuingdamages can be claimed in an action of this character. There is nolimit to the damages which might be claimed. It seems to me thatthis a fair argument to say that the Legislature advisedly refrainedfrom fixing any limit to the quantum of the damages which might beclaimed.
It is not opposed to any principle for full relief to be granted by aCourt of Requests, although it may involve a sum larger thanRs. 300. On the contrary, as I have endeavoured to show, thepolicy of the Code is that an action shall decide all matters whichcould be put in issue upon the cause of action. When, therefore,the law grants a Court of Requests jurisdiction to take cognizanceof an action of the character of the present one it contemplated thatthe Courts of Requests should have jurisdiction to finally disposeof the claim by granting such relief as the cause of action entitledthe plaintiff to demand, looking at the matter from a practicalpoint of view, I could see difficulties which must arise if the conti-nuing damages which are to be awarded are to be confined to Rs. 300.It would drive persons to the District Courts who otherwise couldobtain relief in the Court of Requests. It would place a premiumupon wrong doing, for the longer the trespasser manages to keep thelawful holder out of possession in an action in the Court of Requests,the more he stands to gain, as his liability to pay damages automati-cally stops when the Rs. 300 limit is reached. How is the decreeto be worded so that the damages may be limited. How is such adecree to be reconciled with the provisions of sections 196 and 197of the Civil Procedure Code ?
I am, therefore, of opinion, that it was competent for the Courtof Requests to award the damages it awarded in this action. Idismiss the appeal, with costs.
Appeal dismissed