RAMEN CHETTIAR v. VYRAVEN CHETTIAR

093-NLR-NLR-V-41-RAMEN-CHETTIAR-v.-VYRAVEN-CHETTIAR.pdf


1940
Ramen Chettiar v. Vyraven Chettiar.
371
Present: Howard C.J. and Wijeyewardene. J.
RAMEN CHETTIAR v. VYRAVEN CHETTIAR.
37—D. C. Ratnapura, 6,472.
Concurrent actions—One action brought outside Ceylon—Application to stayproceedings in Ceylon—Burden on applicant—Evidence relating to lawand procedure in foreign court—No advantage to plaintiff—Incon-venience and expense no ground for application—Civil Procedure Code,s. 839.
A Court has power to order that the proceedings in an action in Ceylonbe stayed pending the decision of a concurrent action in a Court outsideCeylon, where the matters in dispute in the transactions are substantiallythe same.
But the Court will not exercise this power where (a) there is no materialon which the Court could form an opinion as to the law and legal procedurein the Court outside Ceylon, and (b) there is no material before theCourt justifying the finding that by proceeding with the action theplaintiff cannot obtain any advantage from it which he would not obtain• in the foreign Court.
The fact that if the application is not granted it would cause thedefendant inconvenience and expense is not by itself, ground for theexercise of the inherent powers of the Court.
372Ramen Chettiar v. Vyraven Chettiar,
T
HIS was an appeal from an order of the District Judge of Ratnapuradirecting that the proceedings in the present action be stayed
pending the final decisions in two cases in the Chief Court of the(Pudukkottai State.
The plaintiff instituted the present action against the defendant to haveit declared that the defendant held three-eighth shares of an estate called“ Morning Site ” in trust for the plaintiff and for an order against thedefendant to render an account of the profits and income of the estateuntil the execution of a conveyance in favour of the plaintiff. Thedefendant filed answer pleading that the conveyance had been taken inthe defendant’s name pending the payment of the purchase price by theplaintiff of his shares of the property but that the plaintiff hadsubsequently renounced his rights to the property.
The application on which the learned District Judge made the orderappealed against was made on the following grounds : —
That the plaintiff has instituted the present action to harass andoppress the defendant.
?b) It is convenient and necessary to have all the issues tried in theHigh Court of Pudukkottai, as all the parties are permanentresidents of that State.
tc) The defendant will be put to unnecessary expense and hardship ingetting ready for two trials on the same subject-matter inPudukkottai and Ceylon.
N. E. Weerasooria, K.C. (with him J. A. T. Perera), for plaintiff,appellant.—The relief claimed in the two suits is not the same. Even ifthe issues are substantially the same, the Court should clearly see that instaying an action it does not do injustice. It is true that where there aretwo actions for the same matter in two Courts in the same country, such aproceeding is prima facie vexatious and the Court will generally put theplaintiff to his election and stay one of the suits. But if one of theactions is in a foreign country where there are different forms of procedureand different remedies, there is no presumption that the multiplicity ofactions is vexatious, and a special case must be made out to induce theCourt to interfere—McHenry v. Lewis V The meaning of “ vexatious ”is discussed in Peruvian Guano Company v. Bockwoldt2 and Cohen v.Rothfield
[Howard C.J. referred to Carter v. Hungerjord ]
There is no evidence that the procedure in Ceylon and Pudukkottai isidentical. Nor do we know whether the law regarding immovableproperty is the same in the two countries.
The Reciprocal Enforcement of Judgments Ordinance (Cap. 79) hasnot been extended to the State of Pudukkottai.
H. V. Perera, K.C. (with him N. Nadarajah and C. Renganathan), fordefendant, respondent.—The order appealed from is one staying theaction at Ratnapura pending the determination of the two actions inIndia. It amounts to no more than a postponement. The result of thePudukkottai action goes to the root of the present claim. The order ofthe District Judge is an eminently reasonable one.
> (1382) 22 Ch. D. 397.3 (1919) 120 L. T. 434.
3 (1882) 23 Ch. D. 225.* (1915) 59 Sol. J. 428.
WIJEYEWARDENE J.—Ramen Chettiar v. Vyraven Chettiar.373
A narrow view should not be taken of the inherent powers which aCourt has for regulating its own proceedings and internal management..Section 839 of the Civil Procedure Code; Hukm Chand Boid v. Kamala-ncnd Singh D. C. Inty. Jaffna, 11,503 (S. C. No. 139)'; Chitaley andRao’s Code of Civil Procedure, p. 1024.
Pudukkottai has already been selected by the plaintiff as a suitablevenue, the deed under consideration was executed there, the acts ofundue influence are alleged to have taken place there, and all the witnessesare there. In these circumstances, it will be quite unfair to proceed withthe action at Ratnapura.
.V. E. Weerasooria, K.C.. in reply.—Stay of action is possible only whenthe two actions are exactly similar.
The scope of section 839 of the Civil Procedure Code has been consideredin Fernando et al. v. Cadiravelu*.
There is no provision in law to suspend a case indefinitely until aconnected case is decided—Fernando v. Curera *; Tillekeratne et. al. v.Keerthirotner.
No evidence has been led by the defendant to show that there is noadvantage gained by proceeding with the action in Ceylon. The burdenis on him to establish that the later action is vexatious—Hyman v.Helm “.
Cur. adv. vult.
February 1. 1940. Wijeyewardene J.—
This is an appeal against the order of the District Judge directing theproceedings in the present action to be stayed pending the final decisionsin cases bearing Nos. O. S. 1,624 of 1933 and O. S. 547 of 1937 in the ChiefCourt of Pudukkottai State. The plaintiff instituted the present actionon July 10, 1937, against the defendant to have it declared that thedefendant held three-eighth shares of an estate called “ Morning Site ” intrust for the plaintiff and for an order against the defendant to render anaccount of the profits and income of the estate from January 11, 1931,until the execution of a conveyance in favour of the plaintiff in respect ofthe three-eighth shares. It is stated in the plaint that the defendant .entered into a notarial agreement No. 1,636 of January 15, 1931, with thethen owner of the property and that in pursuance of the agreement thedefendant purchased the property by deed No. 1,091 of December 22, 1933.The plaintiff pleads that the defendant held the deed of agreement inrespect of the three-eighth shares in trust for the plaintiff and that it wasintended that the deed of conveyance should operate in favour of and forthe benefit of the plaintiff with regard to those shares which the plaintiffsays are held and possessed by the defendant in trust for him.
The defendant filed his answer on December 13, 1937, stating—
i a) that it was agreed to purchase the property “ in the proportions ofone-fourth share each to the plaintiff and one Muttiah Chettiarand the remaining half share to the defendant”;
1 /. L. R. (1905) 33 Cal. 927.1 (1896) 2 N. L. R. 29.
– S. C. Minutes of 21.1.40.8 (1935) 14 C. L. Rcc. 142.
1 (1927) 28 A L. R. 492.8 (1SS3) 49 L. T. 376.
374WIJEYEWARDENE J.—Ram.cn Chettiar v. Vyraven Chettiar.
that the deed of conveyance “ was taken in the name of the
defendant pending the payment by the plaintiff and MuttiahChettiar of their shares and on payment of their shares of thepurchase price the defendant had to convey to the plaintiff andMuttiah Chettiar their shares in the said estate
that in March, 1933, the plaintiff wanted to be released from his
liability to pay his share of the purchase price and agreed toMuttiah Chettiar taking over his share ;
that the plaintiff thereafter executed the deed of release of March
18, 1933, “ renouncing inter alia his rights in and to the saidestate
It is somewhat difficult to understand the plea in paragraph (b) aboveif by the deed of release the plaintiff intended to renounce his rights tothe estate. The deed of release was executed in March, 1933, and thedefendant has not made it clear in his pleadings why in December, 1933,the conveyance was taken “ pending the payment by the plaintiff andMuttiah Chettiar of their shares of the purchase price
The plaintiff instituted action O. S. No. 1,624 in the Chief Court ofPudukkottai State on October 5, 1933, against the present defendant andMuttiah Chettiar asking for a “ cancellation ” of the gleed of release ofMarch 18, 1933, on the following grounds as set out in the issues framed inthat action : —
“ Is the release deed void, because it was bought in fraud of
plaintiff’s right when he was not of sound mind and body by theexercise of undue influence ? ”
“Is the release deed void, because it was subject to the condition
that it was not to be enforced if the plaintiff recovered ? ”
The defendants filed answer in that action referring to a partnership
E. R. M. of which the plaintiff and the defendants were partners,denying the allegations of the plaintiff with regard to the deed of releaseand pleading that “the plaintiff can only bring an action for the dissolu-tion of the partnership and the action brought only to cancel the releasedeed is not proper ”. In this answer too there is an averment to thefollowing effect—“ the estate called ‘ Morning Site ’ was purchased from thepartnership business V. E. R. M. In that too first defendant (MuttiahChettiar) is entitled to one-fourth share. The other partners too areentitled to shares in that according to their respective shares”. It isagaiYi difficult to reconcile this allegation with the statement made in thepresent action that before the execution of the deed of conveyance, it wasagreed about March, 1933, that the property shoiild.be held in equalshares by the plaintiff and Muttiah Chettiar.
The issues were framed in the Pudukkottai action No. 1,624 on December11, 1933, and judgment was delivered on January 3, 1937, dismissing theplaintiff’s action with costs. It appears from an affidavit filed by theplaintiff that he has appealed against the judgment of the Chief Court ofPudukkottai State, that the appeal has not been heard, and that a partydissatisfied with the decision of that appellate Court has a right of appealto another Court of appeal. During the pendency of that action thedefendant appears to have given to the plaintiff a writing dated August 22,
375
WIJEYEWARDENE J.—Ramen Chettiar v. Vyraven Chettiar.
1938, agreeing to render an account to the plaintiff of the income derivedfrom the three-eighth shares claimed by the plaintiff and to execute atransfer of those shares of the estate in favour of the plaintiff. There isa dispute between the plaintiff and the defendant on the question whetherthat writing was given subject to certain conditions on the occurrence ofwhich alone the writing was to have legal effect.
I shall now proceed to consider the action No. 547 instituted by theplaintiff against the defendant and Muttiah Chettiar in the Chief Courtof Pudukkottai State on April 13, 1937. That action has been brought toestablish the rights of the plaintiff as based on the agreement of August22, 1938, referred to by me earlier in the judgment. The plaintiff asksfor judgment, declaring him entitled to a one-fourth, share in the businesscarried on under the vilasam of V. E. R. M. and R. M. V. E. and three-eighth shares of “ Morning Site ”.
According to an affidavit filed by the defendant in the present actionanswers have been filed in action No. 547 and that case has now been setdown for trial. There is no evidence on record to show whether the trialof that action has commenced.
The application on which the learned District Judge made the orderappealed against was filed in the District Court of Ratnapura in October,1938. The grounds on which the application is made are set out in thedefendant’s petition as follows : —
(a) The plaintiff has instituted the action in the District Court ofRatnapura to harass and oppress the defendant,fb) It is convenient and necessary to have all the issues raised by theplaintiff tried in the High Court of Pudukkottai as all parties afepermanent residents of Pudukkottai State.
<c) T{ie defendant will be put to unnecessary expense and great deal ofhardship in getting- ready for two trials on the same subject-matter in Pudukkottai and in Ceylon.^
The plaintiff has filed a counter-affidavit, stating that in filing thepresent action he acted bona fide in the exercise of his legal rights andwithout any intention of harassing the defendant.1
At the inquiry before the District Judge the Counsel for the defendantrendered in evidence certified copies of (a) the plaint in case No. 547 of theChief Court of Pudukkottai; (b) the plaint, answer and issues in caseNo. 1 624 of the Chief Court of Pudukkottai, and (c) the judgment in caseNo. 1,624 of the Chief Court of Pudukkottai “ for the limited purpose ofshowing what the findings were on the issues framed No otherevidence was led before the District Judge.
I have no doubt that this Court has the power to make an order stayingan action in a Court in Ceylon pending the final decision in another actionbetween the parties where the matters in dispute in the first case arediTectly and substantially in issue in the second case (vide Civil ProcedureCode, section 839). But as these inherent powers are very wide andindefinable a Court has to guard against an arbitrary exercise of suchpowers. While conceding the existence of such powers the learnedCounsel for the appellant cited certain authorities as indicating the limitswithin which such powers should be exercised. He referred us to
376WIJEYEWARDENE J.—Ramen Chettiar v. Vyraven Chettiar.
McHenry v. Lewis', Peruvian Guano Co. v. Bockwoldt Cohen v. Roth-field.a, and Hyman v. Helm*, in which the Courts had to considerapplications for restraining parties from proceeding in connected actions.In McHenry v. Lewis the Court dealt with the application of a defendantsued in the English Court to stay the proceedings in view of an actionpending in the United States of America, Jessel M.R. pointed out thatvery different considerations arose where both the actions were broughtin England and where one of them was brought in a foreign country.He said : —
“ In this country where the actions are by the same man in Courtsgoverned by the same procedure, and where the judgments are followedby the same remedies, it is prima facie vexatious to bring two actionswhere one will do …. It is by no means to be assumed, in the
absence of evidence, that the mere fact of suing in a foreign country aswell as in this country is vexatious
In Peruvian Guano Co. v. Bockwoldt (supra), an English company sued afirm of French merchants in the English Courts for the delivery of cargoesof seven ships or in the alternative for damages. Shortly after the institutionof the action, the ships which were in British waters were removed by thedirection of the defendants to ports in France and the cargoes were takenpossession of by the defendants. The plaintiffs thereupon commencedproceedings in France for the recovery of the cargoes of six of the ships.Refusing an application by the defendant that the plaintiff should beordered to elect between the two actions, Jessel M.R. gave as one of thereasons the fact that the matters in dispute were not identically the same.He said : —
“ Supposing the plaintiff elected to go on with his French action forthe six (ships) and in England for one …. what good wouldthat be to anybody ? The two actions would go on, and all that issuggested is that a witness or two less would be required possibly, notnecessarily, in carrying on the litigation. That is not a ground forputting a man to his election …. It is no sufficient reason tostop a plaintiff to say that you can have a little less evidence in oneaction or try it in a less expensive modeIn the same case, Lindley L.J. said : —
“ The Court here is not and cannot be alive to all the advantageswhich a person may expect to derive from suing in a foreign Court.The Court does not know with accuracy unless the matter is broughtto its attention what reasons there may be for preferring one Court toanother.”
Bowen L.J. expressed his view as follows : —
“ We have no sort of right, moral or legal, to take away from theplaintiff any real chance he may have of an advantage. If there is afair possibility that he may have an advantage by prosecuting a suit intwo countries why should this Court interfere and deprive him of it.”
* (1882) 52 L. J. Ch. 325.1 (1883) 23 Ch. D. 225.
3 (1018) 120 L. T. 434.‘ (1883) 49 L. T. 376.
377
WIJEYEWARDENE J.—Ramen Chettiar v. Vyraven Chettiar.
In Cohen v. Rothfield (supra) there were cross suits between the parties inEngland and Scotland and the Court laid down the principle that theburden was on the party making the application for stay of proceedingsto satisfy the Court of the existence of a state of things justifying theCourt’s exercise of its powers. In the course of his judgmentScrutton L.J. said : —
“ It is obvious, for instance, that an action in South Africa where theDutch procedure prevails, Mauritius or Quebec where French procedureexists, Malta with its peculiar law, or Scotland with its Roman procedure,may produce quite different results from an English action. It appearsto me that unless the applicant satisfies the Court that no advantage canbe gained by the defendant by proceeding with the action in which heis plaintiff in another part of the King’s Dominions, the Court shouldnot stop him from proceeding with the only proceedings which he asplaintiff can control.”
In Hyman v. Helm1 Bowen L.J. said : —
“ A man may wish to sue abroad as well as in England both becausehe has superior facility of execution abroad and also because of superiorfacility of procedure before execution and before judgment ….I think it lies on the persons who wish to put an end to concurrentlitigation here and abroad to make out a case of oppression. It doesnot do simply to say ‘ Why should the action go on in two places at thesame time ? ’ ”
There remains also the case of Carter v. Hungerford to which theattention of Counsel was drawn by My Lord the Chief Justice. A fullreport of the case is not available to me but from a brief note givenin the Annual Practice I find that it decided that a Court shouldnot ordinarily stay an action where there is an action in a foreigncourt dealing with the same subject matter in which the Englishplaintiff is defendant.
No doubt . application in the present action is not for an absolute butconditional iy of the proceedings and to that extent the present appli-cations diffe’ from the applications made in the cases considered by me.In the absence, however, of any definite authority on the question of theCourt’s jurisdiction in respect of an application to stay proceedingispending an action in a Court outside Ceylon. I think it desirable to beguided to some extent by the principles that may be deduced from theEnglish cases to which I have referred. The principles deducible fromthe authorities cited in the course of the argument before us may be.summarized as follows : —
The burden is on the party asking for the interference of Court to
prove that he is doubly vexed 'by reason of two actions beingbrought against him.
Where the two actions are brought in the same country there is a
prima facie presumption of an intent to cause vexation.
: (18X3) 49 L. T. 376.
•- {1915) 59 Sol. J. 428.
378WIJEYEWARDENE J.—Semen Chettiar v. Vyraven Chettiar.
Where the party is sued in one country and also in a foreign countryor‘where a party is sued in two countries subject to the sameParamount Power a Court will not presume an intent to causevexation—
in the absence of evidence that the plaintiff cannot obtain
an additional advantage in continuing both his actions, or
from the mere fact of inconvenience or additional expense
caused to a party, or
from the fact that by staying one action less evidence
would have to be ultimately led in the first action.
The present application is made by the defendant in view of two casespending in the High Court of Pudukkottai. Now Pudukkottai is a NativeState outside British India. It is not clear whether the whole Code(Indian) of the Civil Procedure, 1908, is in force in that State. Section 1of the Code shows that some of the sections do not extend even to whatare knowt^ as Schedule Districts in British India. The pleadings filed inthe High Court of Pudukkottai certainly differ so largely from the pleadingsthat are normally filed in our Courts that one is left in doubt whetherthere are any provisions there similar to sections 46 (a) and 77 of our Codeof Civil Procedure. Moreover there is the fact that the Indian Codeof Procedure differs in many particulars from our Code. I may also addthat the Reciprocal Enforcement of Judgments Ordinance (Cap. 79) ofVolume II. of the Legislative Enactments has not been extended to theState of Pudukkottai. The defendant has failed not only to lead definiteevidence of the procedure obtainable in the State of Pudukkottai but alsoto furnish any material on which the Court could form an opinion as tothe law and the legal remedies in that State.
It is clear from a perusal of the pleadings in the various cases that thedecisions in the Pudukkottai cases will not do away with the necessity ofcontinuing the proceedings in the present action. Assuming that thefinding of the High Court of Pudukkottai with regard to the validity of thedeed of release may be pleaded as res judicata it will still be open,to theplaintiff to prove a trust relying on circumstances arising after the deedof release. It is not conceded by the plaintiff that the High Court ofPudukkottai had jurisdiction in case No. 1,624 to give a decision as to thescope of that deed, and the plaintiff may contend that the deed of releasehas no bearing on the matters in dispute in the present action. In thisconnexion I may refer to what I observed earlier that some of the allega-tions in the defendant’s answer do not appear to be reconcilable with theplea that by the deed of release the plaintiff renounced his rights to“ Morning Site ”.
We do not know anything about the state of the cause lists in Puduk-kottai, but we know that the action 1,624 which was instituted in 1933was decided by the Chief Court in 1937, and that before finality could bereached the proceedings would have to go before two Appeal Courts. Inthese circumstances there is no material before us to justify our holdingthat by proceeding with the present action the plaintiff will not get adecision more expeditiously.
Nadar v. Attorney-General.
379
The defendant has stated that if his application is not granted, it wouldcause him inconvenience and expense. That is hardly a ground to justifya Court in exercising its inherent powers where the two actions are notboth in Ceylon. Besides making a mere statement that the intention ofthe plaintiff in instituting the present action was to harass him, thedefendant has made no effort to satisfy the Court that the plaintiff cannotobtain any advantage from the present action which he would not obtainin the Pudukkottai cases.
1 do not think in the present action it is desirable that we should exercisethe powers vested in this Court and support an order staying the proceed-ings pending the final decision of the cases in the Pudukkottai Court.
I would therefore allow the appeal and set aside the order of the learnedDistrict Judge. The appellant is entitled to the costs of the appeal andthe costs of the inquiry in the lower Court.
Howard C.J.—I agree.
Appeal allowed.