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PERERA v. PERERA.D. C., Colombo. 12,118.
Action under a. 247 of the Civil Procedure Code— Right of plaintiff to instituteaction in District Court even though the amount in dispute falls within thejurisdiction of the Court of Requests—Courts Ordinance, s. 74.
Where plaintiff brought an action under section 247 of the CivilProcedure Code in the District Court of Colombo, though the amount ofthe writ under Which the land had been seized Was under Rs. 300, andsuch action was dismissed,—
Held, that the order of dismissal was not justified by section 74 ofThe Courts Ordinance, and that the risk Of losing his costs was the onlypenalty incurred by a plaintiff who came into the District Court insteadof the Court of Requests.
HE defendant caused the Fiscal to seize and put up for sale anundivided half share of a certain land under writ sued out in
case No. 6,047 of the* Court of Requests of Colombo. The plaintiffclaimed that share, but after dye inquiry his claim was dismissed,whereupon he instituted the present action under section 247 ofthe Civil Procedure Code, alleging the value of the share in disputeto be Rs. 450.
On the day of trial the defendant’s counsel contended that as theamoimt of the Court of Requests writ under which the land hadbeen seized was only Rs. 232.75, the matter of the present claimwas one within the jurisdiction of the Court of Requests.
The District Judge upheld the objection in these terms:—
“ It seems to me that the plaintiffs had no richt to bring thisaction here. An action under section 247 is not intended to
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decide questions of title, as the plaintiffs at first seem to havethought when they framed their plaint. The right which anunsuccessful claimant asserts to the property in dispute is not hisright to the land, but the right which he claims in the executionproceedings, i.e., the right to have the land released from seizure.The amount for which the land has been seized is only Rs. 232.75,an amount which is within the jurisdiction of the Court ofRequests (vide- 2 N.L.B. 166 and 2 N.L.R, 225). It does notmatter what the value of the present land may be, but plaintiff’sinterest in the execution proceedings can be no more than theamount for which the Fiscal has made the’ seizure.
“ I dismiss the plaintiff’s action with costs.”
Morgan, for appellant.
Browne, for respondent.
The only question raised by this appeal is whether the DistrictJudge has the right to dismiss an action because the Court ofRequests has concurrent jurisdiction.
In this case the District Judge, being of opinion that the subject-matter of this action was within the jurisdiction of the Court ofRequests, refused to hear the case and dismissed it. The resultwill be very serious for the plaintiff, because the action was oneunder section 247 of the Civil Procedure Code, which must bebrought within fourteen days of the order made on claim. Theresult cf the order of the District Judge would be that he wouldbe for ever debarred from prosecuting his claim.
Now, there is nothing in any of the Ordinances, so far as wehave been referred to them, which affords any ground for theorder now appealed from. Section 74 of The Courts Ordinancedeals with this case, and provides that, where an action is broughtin a District Court which might have been brought in a Court ofRequests, the plaintiff shall lose all right to costs even if hesucceeds in the action.
It seems to me that the risk of losing his costs is the onlypenalty incurred by a plaintiff who brings an action in the DistrictCourt instead of bringing it in the Court of Requests.
The case must go back to the District Judge to be dealt withaccording to law.
Browne, A.J., agreed.
PEREE A v. PEEEEA