063-NLR-NLR-V-09-PLESS-POL-v.-LADY-DE-SOYSA-et-al.pdf
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1909.October 2.
Present: The Hon. Mr. A. G. Lascelles, Acting Chief JUBtice, andMr. Justice Middleton.
PLESS POL v, LADY DE SOYSA et al.
D. C., Kandy, 17,549.
“ Cause of action, ” meaning of—Where it arises—Contract made in oneplace—Performance at a different place—Jurisdiction of Court ofplace ofperformance—“ Cause ofaction ”—“ Wrong ”—Ctrti
Procedure Code, ss. 5 and 9 (c).
The plaintiffandthedefendants enteredinto a contract at
Colombo whichwastobe performed atKandy. Theplaintiff,
alleging a breach of the contract by ' the defendants, sned themfor damages in the District Court of Kandy. On objection takento the jurisdiction of the court to entertain the action,—
Held(affirming the judgment of the District Judge), that the
District Court of Kandy had jurisdiction to entertain the action.
Lascelles A.C. J.—Inorder to give a Courtjurisdiction it is
not necessaryundertheCode that the whole cause ■ ofaction,
namely, both the agreementand the breach, should have taken
place within its jurisdiction.
Lasobllbs A.C.J.—A failure to perform a contract iis a “ wrong ”within the meaningofthe definition ofthe expression" cause
of action.”
English decisions as to the meaning of the expression “ causeof action ” not followed.
T
HIS was an action instituted by the plaintiff in the DistrictCourt of Kandy for damages for breach’ of contract. The
plaintiff alleged that the defendants agreed at Colombo to lease to theplaintiff the premises called Haramby House, situate at Kandy, for aperiod of ten years commencing from 15th June, 1905, as soon ascertain works, buildings, alterations, and improvements had beeneffected; that the defendants agreed to finish the said works, buildings,alterations, and improvements, at their own expense, on or beforethe 15th May, 1905, and in default to pay damages at therate of Rs. 150 a day for each and every day beyond that date thatthe said works, buildings, &c., or any of them shall remain unfinished.The plaintiff further alleged that the defendants had committed abreach of the said agreement at Kandy, and claimed a sum o.fRs. 32,400 as damages and further damages at the rate- of Rs. 150per diem till the works were completed,
® The defendants pleaded, inter alia, that the District Court ofKandy had no jurisdiction to entertain the action, inasmuch asthe whole cause of action did not arise within its jurisdiction.
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On this point the Distriet Judge (J. H. de Saram, E&q.) deliveredthe following judgment: —
“ The first issue is one of law, whether this Court has jurisdictionto hear and determine this action.
" The plaintiff's is founded on 4 deed, whereby the defend-ants contracted to do certain works, and make alterations andimprovements, to the house known as Haramby House, situate inKandy. He claims Rs. 32,400 as liquidated damages, and a furthersum of Rs. 150 a day from the date thiB action was instituted, forbreach of the agreement. The alleged breach is the failure tocomplete the works stipulated for in the contract.
“ The defendants reside, and the contract was made, in Colombo.The only circumstance therefore that will give this Court juris-diction is that the cause of action arose within its territoriallimits.
“ The defendants contend that the cause of action did not so arise,because by ‘ cause of action ’ must be understood the whole cause ofaction, and that is compounded of the contract and the breach.They rely upon Allhusen v. Malgarejo (1), where the Court had tointerpret the provisions of ‘ The Common Law Procedure Act, 1852which entitled a plaintiff to issue a writ of summons against a partyresident abroad, in cases where ‘ there is a cause of action whicharose within the jurisdiction ’, and it was held that ‘ cause of action ’meant the whole cause of action, and therefore included both thecontract and the breach. They also relied upon the definition of‘ cause of action ’ given by Brett J. in CooTce v. Gill (2) in these words:“ ‘ Cause of action ’ has been held from the earliest times to meanevery fact which is material to be proved to entitle the plaintiff tosucceed—every fact which the defendant would have a right totraverse ".
“ Now, if the enactment upon which the jurisdiction of this Courtdepends was in the same words as . those which the Courthad to consider in Allhusen v. Malgarejo (1) and in similar cases,I should be disposed to adopt the interpretation there given, but,while section 9 of our Civil Procedure Code gives that Court juris-diction within whose local limits the ‘ cause of action arises ’, theterm ‘ cause cf action ’ .itself is expressly defined by section 5 to be“ the wrong for the prevention or redress of which an action may bebrought, and to include the denial of a right, the refusal to fulfil anobligation, the neglect to perform a duty, and the infliction of anaffirmative injury ”.
“ The English Common Law Procedure Act contained no defini-tion whatever. The cases cited, therefore, cannot be regarded as
a) L. R. 3 Q. B. 340.(2) L. R. 8 G. P. 107 at p. 116.
1006.October 2.
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1006. ruling authorities. Our section 9 must be construed, in the light ofOctober 2. our 0wn definition.
‘ ‘ What then is the wrong for the redress of which the present actionbrought? It is the refusal to fulfil the obligation to execute thestipulated works at Haramby House, and as the obligation had tobe fulfilled in Kandy, the failure to do so constitutes a wrong donein Kandy, and therefore the cause of action arose in Kandy.
“ The definition in the Code of ‘ cause of action ’ leaves no room forthe contention that the making of the contract is part of the wrongfor the redress of which the action is brought.
“ I am confirmed in this view by the decision of the SupremeCourt in the case of Ranghamy v. Kirihamy (1), which was an actionunder the Buddhist Temporalities Ordinance to set aside an impro- .vident lease, and the jurisdiction of the Court depended on the factthat the lease was executed within its territorial limits. Layard C.J.citing the definition of ' cause of action ’ in our Code, said that thewrong alleged was the execution, within the Court’s jurisdiction,of a lease whereby an injury was inflicted to the temple revenues,payable to the trustee within such jurisdiction, and the executionof the lease constituted the cause of action in that case. He thenreferred to the cases of Gooke v. .Qill (2) and Jackson v. Spittal (3),apparently relied upon by the defendant, and pointed out that evenaccepting the definitions of ‘ cause of action ’ there adopted, theKandy Court had'jurisdiction. He did not mean to decide, and didnot decide, that these definitions were decisive of the interpretationto be put upon our Code, and Wendt J. pointed out that the defi-nition in the Code was apparently intended to embody that interpre-tation which was put upon it in the case of Jackson v. SpittaU (8) andafterwards adopted at a Conference of all the Judges, viz., the act onthe part of the defendant which gives the plaintiff his cause of com-plaint.
“ The case of Ranatte v. Sirimal and others (4), cited on behalfof the defendants, was an action against some Praveni Nilakarayasof the Maha Dewale in Kandy for failure to perform services. Thetenants were bound to. perform certain services in Kandy andcertain other' services in Alutnuwara in the District of Kegalla. Itwas then held that as the whole cause of action did not arise withinthe jurisdiction of the Court of Bequests of Kandy, that Court hadno jurisdiction.
“The decision in that case does not apply to the present
action.
«•
(1903) 7 N. L. it. 357.(3) L. it. 5 C. P. 542.
L. R. 8 C. P. 107.(4) (1891) 1 S. C. it.’ 57.
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Por these reasons I answer the first issue in the affirmative and
fix the case for shearing on the 16th instant.”
The defendants appealed.
Walter Pereira, K.G., S.-O., for the defendants, appellants.
Van Langenberg, for the plaintiff, respondent.
[The following cases were cited in the course of the argument:Allhusen v. Malgarejo (1); Jackson v. Spittall (2); Vaughan v.Weldon (3); Read v. Brown (4); Paullick Pvlle v. Gan Chetty (5);Narayen Chetty v. Fernando (6); Ranatte v. Sirimala (7); andRanghami v. Krishamy (8)].
Cur. adv. vult.
2nd October, 1906. Lascelles A.C.J.—
The claim in the action is for damages in respect of an allegedbreach by the defendants of an agreement to carry out certain worksat Kandy.
The question now before us is whether the District Court of Kandyhas jurisdiction to try the case. The defendants reside in Colombo,where tbc contract was made; but the agreement was to be performedat Kandy. The District Judge has decided that by virtue ofsection 9 (c) and the meaning assigned to the term “ cause of action ”by section 5 of the Civil Procedure Code, the District Court has juris-diction to try the action. The appellants relying on certain decisionsof the English Courts, contend that it is not enough that the breachof the agreement should have taken place within the jurisdictionof the District Court of Kandy, and maintain that it is necessary,in order to give that Court jurisdiction that the whole ‘ cause ofaction ’ namely, both the agreement and the breach, should havetaken place within its jurisdiction. In my opinion the decision of theDistrict Judge is right. Section 9 (c) of the Civil Procedure Codeprovides that actions shall be instituted in the Court within the locallimits of whose jurisdiction “ the cause of action arises. ” ” Causeof action ” is defined by section 5 to be “ the wrong for the pre-vention or redress of which an action may be brought, and includesthe denial of *a right, the refusal to fulfil an obligation, the neglectto perform a duty, and the infliction of an affirmative injury.The term “ action ” is defined as “ a proceeding for the preventionor redress of a wrong. ” It is clear to me that the words ” the wrong
(lj L.R.3Q. B. 341.(5)(1891)1C..L.R.102.
L.R.6C. P. 542.(6)(1891)20. L.R.80.
L.R.10C. P. 47.(7)(1891)18. C. R. 57.
L.R.22Q. B. D. 128.(8)(1903)7N. L.R.357.
1906.October 2.
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1908. for the prevention or redress of which an action may be brought ”'October2. states generally what is connoted by the term ‘‘ cause of action,”Xasobu.es and that the remainder of the sentence enumerates some—not neces-A.C.J. sarily all (for the word used is “ includes ”)—of the acta of defend-ants which constitute causes of action.
t
Taking the first part of the definitions alone—namely, the words“ the’ wrong for the prevention or redress of which an actionmay be brought ”—I cannot doubt that a failure to perform a con-tract is a “ wrong ” within the meaning of these words. It is clearfrom the definition of the word “ action ” that the word “ wrong ”in the definition is not restricted to “ torts. ” If the plaintiff hadaverred an express refusal to fulfil the contract the jurisdiction ofthe Court of Kandy could not have been disputed, .for refusal tofulfil an obligation is specified in the definition as a cause of action.But it is clear that failure to fulfil an obligation is, equally with re-fusal to fulfil the obligation, a wrong for the prevention or redressof which an action may be brought.
It may be noted that under Ordinance No. 11 of 1868, which re-gulated the Procedure of our Courts before the Civil Procedure Code,the action would have been triable at Kandy. Section 65 of thatOrdinance gave jurisdiction to District Courts in cases where thecause of action arose wholly or in part within their local jurisdiction.The Civil Procedure Code seems to have continued this system.Further, the decision of the District Court is in harmony with thedecision of this Court in Paulickpulle v. Casie Chetty (1) and inNarayen Chetty v. Fernando (2). As the Civil Procedure Code in myopinion. affords a complete answer to the question before us, it isonly necessary briefly to refer to the English authorities cited bythe Solicitor-General in support of the appeal.
The Solicitor-General referred to a line of cases upon the con-struction of section 18 of the Common Law Procedure Act, whichprovided for the maintenance of actions against defendants, beingBritish subjects, residing out of the jurisdiction, in cases where ” thecause of action arose within the jurisdiction. ” In these cases therewas a conflict of opinion among the Courts, the Queen’s Bench hold-ing in AUhueen v. Malgarejo (8) that in order to bring a case with-in the section both the contract and the breach must have beenwithin the jurisdiction; the Common Pleas holding in Jackson v.Spittall (4) that it was enough if the breach arpse within thejurisdiction. Ultimately, in Vaughan v. Weldon (5) the Judgesagreed to follow the Court of Common Pleas in Jackson v. Spittall (4).
a) (1891) 1 C. L. Ii. 102.(3) L. R. 3 Q. B. 341.
(2) (1892) 2 C. L. R. 30.(4) L. R. 5 C. P. 542.
(5) L. R. 10 C. P. 47.
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I very much doubt, if any of those decisions are a safe guide to the ■ ijDjj,meaning of the expression “ cause of action in our Code. A October 2.perusal of the judgments show that they are largely based uponconsiderations which have no bearing upon the question now beforeA.CJ.
us, such as the jurisdiction of the English Courts to try transitoryactions, the previous practice of the Courts, and the policy of theCommon Law Procedure Act. These observations apply to Read v.
Brown (1), which turned upon the construction of the words “causeof action arising wholly or in part within the city of London or theLiberties thereof ” in the Mayor’s Court Procedure Act.' Therethe decisions turned largely upon the construction of section 25 (b)of. “ The Judicature Act, 1873 regarding the assignment of debts.
If the provisions of the Civil Procedure Code are sufficient, as Ithink they are, to determine the question before us, it is unnecessary,and may be dangerous, to have recourse to the decisions of theEnglish Courts as to the meaning of the term “ cause of action ”in English Statutes. I entirely agree with the decision of theDistrict Judge, and would dismiss the appeal with costs.
Middleton J.—
I entirely agree. As we have a definition of the term “ cause ofaction ’’ in section 5 of our Civil Procedure Code, which is capableof interpretation from its context, I think it is not necessary to putforward the constructions of its meaning in the English Courts, whichfrom the authorities quoted by the learned Solicitor-General hasclearly differed as a basis for its exposition.
Those constructions it would appear have been founded on thewording of different Acts of Parliament.
Looking at section 5, the general meaning of the term “ cause ofaction ” there is the “ wrong for the prevention or redress of whichan action may be brought, ” including amongst other things therefusal to fulfil an obligation. This shows that the word “ wrong ”is not confined to torts.
In the present case the wrong the redress of which is sought isthe failure to fulfil an obligation. This failure occurred at Kandy.
The Solicitor-General argues that the word “ wrong ” implies thecontract as well as the breach. To a certain extent it does, but it .seems to me to be putting an artificial construction on the word toimply it here, and to say that the word “ wrong " means anythingmore than the act of breach, omission, neglect, injury, &c., whichgives the right to bring the action. The location of the wrong,or what is argued to be a part of the cause of action alone, gives*the
a) L. B. 22 Q. 3. D. 128.
n1. N. A 99412 (8/50)
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1906.October 2.
Middleton
J.
jurisdiction. This would be in harmony with Jackson v. Spittal (1),said at one time to have been acquiesced in by the fnajority oi theJudges. Vaughan v. Weldon (2), and in consonance with OrdinanceNo. 11 of 1868, section 65, our former Procedure Ordin&nce.
Blackburn J.’s reasons given in Cherry v. Thompson (3) for adheringto his own construction of section 18 of “ The Crown Law ProcedureAct, 1852, ” in AUhusen v.. Malgarejo (4) seem to me, if 1 may bepermitted to say so, extremely sound, but in that case he was con-sidering the term “ cause of action ” with reference to the scope andmeaning of a particular statute as it might affect a foreigner andthe usurpation by the English Courts of foreign jurisdiction.
In Bead v. Brown (5) Lord Esher was contemplating the juris-diction of the Mayor’s Court under the Mayor’s Court ProcedureAct, 20 and 21 Victoria, ch. 157, s. 12, and gave a definition of“ cause of action ” which would include the contract for the breach ofwhich a person was suing.
■ In the present case we are construing a definition.in our Code ofProcedure which seems to show that the location of the wrong, orwhat may be argued to be part of the cause of action, as defined inAlihusen v. Malgarejo and Bead v. Brown will, and indeed in theold Ordinance of 1868 did, give jurisdiction.
i think that the decision of the learned District Judge is correct,and that the appeal must be dismissed with costs.
♦ *
*1) L. R. 6 C. P. 642.(3) L. R. 7 Q. B. at p.
(2) L. R. 10 C. P. 48.(4) L. R. 3 Q. B. 341.
22 Q. 8. D. 129.
677.