028-NLR-NLR-V-48-PERERA-Appellant-and-WIJESINGHE-Respondent.pdf
SOERTSZ SJ’J.—Perera v. Wijesinghe.
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1947Present: Soertsz S.P.J.
PKRERA, Appellant, and WIJESINGHE, Respondent.
98—C. R. Panadure, 10,360
Court of Requests—Action ostensibly for damages—In reality, question of titleto interests in land worth over Rs. 300 involved—Propriety of transfer ofcase to District Court—Courts Ordinance, s. 79.
An action brought in the Court of Requests although, ostensibly, onefor damages was, in reality, an action in which “ the title to, interest inor right to the possession of a land ” which was worth over Rs. 300 wasin dispute. The defendant, in his answer, took objection to the juris-diction of – the Court of Requests and raised an issue questioning thatjurisdiction.
Held, that, in the circumstances, the case was one which should betransferred to the District Court.
A
PPEAL from a judgment of the Commissioner of Requests,Panadure.
V. Perera, K.C. (with him Kingsley Herat), for the defendant,appellant.
W. Jayewardene (with him G. T. Samarawickreme), for the plaintiffs,respondents.
Cur. adv. vult.
February 19, 1947. Soertsz S.P.J,—
In this action, the plaintiffs claiming to be entitled to a half share of acertain land, and alleging that the defendant was in wrongful possessionof that share, sued to recover Rs. 290 as damages sustained by them onaccount of this wrongful possession, together with interest thereon.The defendant, in his answer, averred that the plaintiffs were not entitledto any share of the land, and that the land belonged, in its entirety, tohim. He prayed for the dismissal of the plaintiffs’ action. It isadmitted that a half share of this land is worth over Rs. 300 and apreliminary question arose whether the Court of Requests had jurisdiction
SOERT3Z SJP-T.—Perera v. Wijesinghe.
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to try the case in view of the fact that although the amount claimed asdamages was under Rs. 300, the question of title to interests in landworth over Rs. 300 was involved by the defence set up in the answer.
The Commissioner relying on the Divisional Bench ruling in the caseof Been Banda v. Aluvihare ° held that the Court had jurisdiction andproceeded to try the case and gave judgment for the plaintiffs in acertain sum on account of damages on the ground that the plaintiffs hadacquired a prescriptive title to the half share that they claimed of theland.
In my view, this action although, ostensibly, one for damages was, inreality, an action in which “the title to, interest in, or right to thepossession of a land” was in dispute. But, I am bound by the rulingI have referred to and I must accept the decision given by the Com-missioner on the question of jurisdiction. It is, however, open to meby virtue of the proviso to section 79 of the Courts Ordinance, to orderthat the whole proceeding be transferred to the District Court of Panadure.Section 79 enacts as follows : —
’ “ Where in any proceeding before any Court of Requests any defenceor claim in reconvention of the defendant involves matter beyond thejurisdiction of the Court, such defence or claim in reconvention shallnot affect the competence or duty of the Court to dispose of the matterin controversy so far as relates to the demand of the plaintiff and thedefence thereto, but no relief exceeding that which the Court hasjurisdiction to administer shall be given to the defendant upon anysuch claim in reconvention:
Provided always that in such case it "shall be lawful for the SupremeCourt, or any Judge thereof, if it shall be thought fit, on the applicationof any party to the proceeding, to order that the whole proceeding betransferred from the court in which it shall have been instituted tosome court having jurisdiction over the whole matter in controversy ;and in such case the record in such proceeding shall be transmitted bythe clerk of the court to the court to which by such order the proceedingshall.be so transferred; and the same shall thenceforth be continuedand prosecuted in such court as if it had been originally commencedtherein.”
In the circumstances and on the facts of this case I think it just and fairthat it should be tried in the District Court. When the defendant pleadedas he did and took objection to the jurisdiction of the Court of Requestsand raised an issue questioning that jurisdiction, he in effect applied for atransfer of the case.
Parties will of course take the steps necessary for enabling the case tobe tried by the District Court. I set aside the judgment and decreeentered by the Commissioner. All costs incurred up to date will becosts in the cause and will abide the final result and such order in regardto them as the District Judge may make.
Judgment and decree set aside.
1 {1929) 31 N. L. R. 152.