SINNAPPOO v. THEIVANAI et al

040-NLR-NLR-V-39-SINNAPPOO-v.-THEIVANAI–et-al.pdf


Sinnappoo v. Theivanai.
121
1937Present: Poyser S.P.J. and Soertsz J.
SINNAPPOO v. THEIVANAI et al.
D. C. Jaffna, 7,163.
Stamp duty—Value of an action—Certificate of decree in appeal—Failure totender correct amount—fatal irregularity—Stamp Ordinance, ScheduleB, Part 11.
The value of an action for the purpose of fixing the stamp duty onthe proceedings under Part II., Schedule B, of the Stamp Ordinance isdetermined by the aggregate value of the claim on the date the actionis filed.
De Silva v. Lever 128 N. L. R. 435) and Silva v. Fernando (11 N. L. R.375) followed.
-Failure to tender the proper amount of stamps for the certificate inappeal is a fatal irregularity.
The defect cannot be cured by tendering the correct amount afterthe time limit.
Salgado v. Peiris (12 N. L. R. 379) followed.
P
LAINTIFF filed an action for restoration to possession of a templeworth Rs. 500. He was ousted from possession in September
and he claimed damages from the date of ouster at the rate of Rs. 10 permensem. The action was filed in November.
H. V. Perera (with him V. Manikavasagar), for defendants, appellants.—The prayer is for ejectment and damages for two months. The stampswere calculated for the Rs. 500 class.. The petition of appeal was stampedin that class. Actions must be classified according to the subject-matter.There may be incidental matter, but in valuing only the main claimmust be taken into account. The Courts of Requests have jurisdiction■where the subject-matter is under Rs. 300. At the same time a claimfor damages can be added to the main action. The stamps too, then,must be according to that class. Under the Stamp Ordinance, 1909ivol. II. at p. 942), actions in the District Court are put into differentclasses.
The amendment, the Stamp Ordinance, No. 19 of 1927 (vol. V. p. 233)is immaterial…
There are some explanatory words with regard to the classificationfor costs in the Civil Procedure Code, 1889 ; but there are none in theStamp Ordinance. These words ought to be added to the StampOrdinance.
[Poyser S.P.J.—Has there been any case before this ?JNone. The practice has not been uniform. There is a similar provision- in the Courts Ordinance, 1889, with regard to the’ jurisdiction of theCourts of Requests (Banda v. Menika1). Unless these words are added,there will be an anomaly, because a person has to pay less stamp dutyif he brings the action immediately.
[Poyser S.P.J.—Some words must be read.]
Yes.
(1919) 21 .V. 1„ R. 279
122
POYSER S.P.J.—Sinnappoo v. Theivanai.
[Soehtsz J.—The matter will be doubtful if those words are not added.]
Yes. The sentence is incomplete. There will be an anomaly withregard to stamps, and costs unless the same rules are applied.
N. Nadarajah, C.C., for Attorney-General.—For the purposes of stampduty the aggregate value must be considered. Chapter EE. of the StampOrdinance, 1909, must be taken with Part II. of Schedule B. The valueof the suit is taken into consideration and not one item of the claim.In India it was held that the value is the aggregate—Court Fees andValuation Acts by Basu, p. 46.
The rates of costs and stamp duty are different (de Silva v. Lever *).
For the purposes of jurisdiction, debt and damage are taken on the onehand and the title on the other. But when both are joined, the aggregatemust .be taken into account. Banda v. Menika (supra) does not applywhere damages are tacked on to land.
Where petitions of appeal are under-stamped, the appeals are dismissed.
[Poyser S.P.J.—What about relief ?]
It seems to be peremptory. (Hurst v. The Attorney-General *; Salgado v.Peiris “; Attorney-General v. Karunaratne 8; James v. Karunaratne “.) InIndia there is relief under an express section. (R. Subrao v. S. Venkata-rao8.) See section 36 of the Stamp Ordinance and section. 756 of the CivilProcedure Code.
Rajapakse (with him J. L. M. Fernando), tor plaintiff, respondent,relied on the argument for the Crown.
■ H. V. Perera, in reply, cited Silva v. Fernando
April 23, 1937. Poyser S.P.J.—
In this appeal the plaintiff claimed, inter alia to be restored to posses-sion of a temple and for damages at the rate of Rs. 10 per mensem fromthe month of September, 1934. The plaintiff stated his interest in thesaid temple to'be worth Rs. 500 and his plaint was filed in November,1934.
-The appeal has been listed for dismissal on the ground that thepetition of appeal has belen stamped on the basis of a claim “ up to andincluding Rs. 500 ”, viz., that it was stamped. on the assumption thatthe claim came within Schedule B, Part II, Class 1, of the StampOrdinance.
Mr. Perera, while conceding that the aggregate value of the claim isover. Rs. 500, argued that the claim is really only for land of the value ofRs. 500 and the claim for damages is incidental. In support of thatargument he referred to section 77 of Courts Ordinance which definesthe jurisdiction of Courts of Requests.
The material parts of that section are as follows: —
“ Every Court of Requests shall be a Court of record and shall haveoriginal jurisdiction, and shall have cognizance of and full powerto hear and determine all actions in which the debt, damage, or demand
1 (1927) 28 N. L. R. 435. at p. 436. -8 (1935) 37 N. L. R. 57.
* (1917) 4 C. W. R. 265.-8 (1935) 37 N. L. R. 154.
3 (1909) 12 N. L. R. 379.8 A. I. R. (1918) P. O. 188.
~ (1908) 11 N. L. R. 375.
123
POYSER S.P.J.—Sinnappoo v. Theivanai.
shall not exceed three hundred rupees, and in which the party orparties defendant shall be resident within the jurisdiction of suchCourt, or in which the cause of action shall have arisen within suchjurisdiction, and all hypothecary actions in which the amount claimedshall not exceed three hundred rupees, and the land hypothecated orany part thereof is situated within the jurisdiction of such Court,and also all actions in which the title to, interest in, of right to thepossession of sny land shall be in dispute, and all actions for thepartition or sale of land, provided that the value of the land or theparticular share, right or interest in dispute or to be partitioned orsold shall not exceed three hundred rupees and the same or any partthereof is situated within the jurisdiction of such Court …
That section has been judicially interpreted by a Full Bench in thecase of Banda v. Menika1 and it was held that “the test of jurisdictionin a land case is the value of the land or interest in dispute irrespectiveof any damage or other relief claimed in the cause of action. Any claimfor damages is only incidental and subsidiary, and does not affect thequestion of jurisdiction of the Court. Where the action involves a meremoney claim such as an action sounding in damages only, the continuingdamages are not incidental but are part of the cause of action and mustbe reckoned in determining the monetary jurisdiction of the Court”.
Bertram C.J. stated in the course of his judgment “ it is no doubt asingular result that it should be possible to bring in conjunction a claimto land worth Rs. 300, and a further incidental monetary claim to thesame amount but there is nothing in the section to prevent such claimsfrom being combined”.
I do not however consider that this decision affects the present case,for t’ – section in question gives the Court of Requests specific jurisdictionin cases where the value of the land in dispute does not exceed Rs. 300-and does not exclude such cases where there is an incidental claim fordamages.
There are no explanatory words in the Stamp Ordinance in regard toPart II. as in the Civil Procedure Code, Schedule III., which deals withcosts.
The practice in similar cases is stated to have varied, some proctorsstamping documents according to the value of the land only and othersaggregating the value of the land and damages claimed.
Of the authorities that were .cited the following are the most in point.ide Silva v. Lever *), in which Schneider J. held “ The rates or scales ofcosts and charges in Schedule HI. of the Civil Procedure Code, and thetables containing the duties on law proceedings in Schedule B of theStamp Ordinance, No. 22 of 1909, which is the Ordinance now iir forceare not based upon identical – monetary limits. One common elementthere is, that is, that the * division between class and class in bothenactments turns upon a monetary limit, but the classification of thelimits are different The Stamp Ordinance is silent as to what the sumof money mentioned at the head of each class represents. Obviouslyit refers to the same thing as the Civil Procedure Code does. The Civil
* {1927) 28 -V. L. n. 4S8.
{1919) 21 N. L. R. 279.
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POYSER S.P.J.—Sinnappoo v. Theivanai.
Procedure Code (Schedule III.) says that the sum is the value of ‘thecause of action title to land or property ’ or of the ‘ estate or subject-matter of the action ’. Costs do not mean stamp duty alone
In Silva v. Fernando *, Wendt J. Held, “ In the absence of such statementI think we ought to appraise the “ subject-matter ”, meaning therebythe thing (whether land, chattel, money, or interest in one of these,or right or status) which the Court in deciding the action has to deter-mine the ownership of, not merely ‘ relief * in the sense of that whichthe plaint expressly asks for and the decree expressly grants. If there-fore, plaintiff says defendant trespassed on his land, and removed partof that land, to wit, plumbago worth Rs. 10 and prays for judgmentfor the Rs. 10, and defendant says the land is his own, but the Courtfinds 'plaintiff is the owner and gives him judgment for Rs. 10, in thatcase the subject-matter dealt with by the Court is not the Rs. 10 onlybut the land in addition, and if plaintiff has reason to suppose that defen-dant’s act was done in assertion of a claim to the land he ought tohave stamped his plaint according to the aggregate of the value of theland and of the plumbago.
These cases certainly support the argument on behalf of the Attorney-General and the respondent that you cannot read into the StampOrdinance provisions contained in the Civil Procedure Code or the CourtsOrdinance, and I am of the opinion that in the absence of any explanatorywords in the Stamp Ordinance the words “ up to and including Rs. 500 ”must mean the aggregate value of the claim, and if that is so, the conten-tion of the Attorney-General and respondent must succeed.
There is one further point, viz., whether this appeal must be dismissedor whether the defect can now be cured. There seems no doubt that theCourt must dismiss the appeal and this point is settled by authority.In this connection I would refer to two cases, viz., Salgado v. Peirisa Full Bench case, in which it was held a petition of appeal in insolvencycases must bear a stamp of Rs. 2.50 at the time it is presented to theCourt. The Court has no power to allow it to be stamped after thetime for appealing has expired. In the course of the. judgment ofHutchinson C.J. at page 380 of the following passage occurs “ In myopinion the effect of the Stamp Ordinance is that a petition of appeal ininsolvency cases must bear a stamp of Rs. 2.50 and that the Court hasno power to allow it to be stamped after time for appealing has expired ”.
The other case is Hurst & Another v. The Attorney-General1 in whichEnnis J. held at page 265—“ Objection has beer, taken that the petitionof appeal in this case is not correctly stamped. It is stamped withstamps to the value of Rs. 101 instead of Rs. 107. This appears to. becorrect, and, on the authority of the cases of Sinnatamby v. Thangamma 'and Salgado v. Peiris (supra) the appeal must be dismissed with costs.I would add that section 36 of the Stamp Ordinance prohibits the Courtfrom acting upon the instrument and there is no proviso or any provisionin the Stamp Ordinance allowing the defect to be cured other than possiblysection 43 ”.
For the' above reasons this appeal must be dismissed with costs.
3 (1917) 4 ('ey. Weekly Rep. 2Gi.
J 1. C. A. C. 151.
(190S) 11 X. L. R. 377,.(1909) 12 X. h. R. 379.
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POYSER S.P.J.—Sinnappoo v. Theivanai.
There were two other appeals, viz., 251, D. C. Kurunegala, No. 13,943and 77, D. C. Galle, No. 35,107 in which exactly the same point aroseand it was conceded by Counsel appearing in these cases that the aggregateclaims as in this case, exceeded Rs. 500 and that those cases should bedecided by the decision in this case. Consequently those appeals alsowill be dismissed with costs.
Soertsz J.—I agree.
[It was later brought to the notice of the Court that the petitions ofappeal in 15 D. C. Jaffna and S. C. 77, D. C. Galle, were correctlystamped according to Part II. of Schedule B of the Stamp Ordinance,as amended by Ordinance No. 19 of 1927. The cases were listed againfor argument.]
H. V. Per era, K.C. (with him H. W. Thambiali), for defendantsappellants in S. C. 15.—Damages accrued are Rs.. 30. The claim is forRs. 530. The petition of appeal and the certificate in appeal comeunder the District Court proceedings. By the amendment of 1927, class Xis deleted. Class 2 is made class I with an upper limit of Rs. 1,000.Hence the stamp fees for the petition of appeal and the certificate arecorrect.
The judgment of the Supreme Court appears in the Supreme Courtproceedings. The old classification remains but the headings of thevarious classes are changed so as to make them mutually exclusive.The stamp fee paid is Rs. 3 but since the value of the action is Rs. 530,a fee of Rs. 6 ought to have been paid.
E. A. L. Wijeyewardene, S.-G. (with him H. H. Basnayake, C.C.), asamicus curiae stated the facts.
P. A. Senaratne (L. A. Rajapakse with him), was not called upon.
H xr. Perera, K.C. (with him P.'A. Senaratne) f for plaintiff, appellantin S. C. 77, D. C. Galle, 35,107.—The value of the subject:matter isRs. 2,500. The plaintiff claimed damages at the rate of Rs. 15 per mensemfrom the date of the plaint. For the petition of appeal and the certificatein appeal, the appellant has paid Rs. 12 and for the judgment of theSupreme Court Rs. 15. The stamp duties had been paid correctly.
E. A. L. Wijeyewardene, S.-G. (with him 11. H. Basnayake, C.C.), asamicus curiae.—The plaint was dated. July -22, 1936, but it was filedon July 23, 1936. When he came into Court, some damages had accrued.Date of filing is the date of action.
Er B. Wickremenaydke (with him N. E. Weerasooriya), for thedefendants, respondent, had no objection for the case to be listed forargument.
H. V.. Perera, K.C. (with him C. Seneviratne), for defendants,appellant, in S. C. 215, D. C. Kurunegala, 13,943.—There is a deficiencyin the stamp fees….
E. A. L. Wijeyewardene, S.-G. (with him H. H. Basnayake, C.C.), as.amicys curiae.—The deficiency had been tendered after the appealabletime..'
Croos Da Brera (with him Cored), for plaintiff, respondent, was not.called upon.
126Sithayamma v. Sinniah.
September 28, 1937. Poyser J.—
Several weeks after- our judgment had been pronounced in this case,it was brought to our notice that the Stamp Ordinance had been amendedin regard to duties on law proceedings by Ordinance No. 19 of 1927.The argument had proceeded on the basis that the dutips in the Ordinanceof 1909 applied. Counsel state that they were not aware of the amend-ments effected in 1927 and our recollection did not serve us on thispoint. The result of the amendments now brought to our notice is toshow that the petition of appeal and the certificate in appeal had beenprovided with sufficient stamps, but the stamps supplied for the judg-ment of the Supreme Court were insufficient. There is a deficiency ofthree rupees.
The order dismissing the appeal, therefore, stands, and so does theprinciple enunciated in our judgment in regard to the assessment of the•value of a claim made in a case for the purpose of fixing the correctstamp duty.
Two other cases, in which the isame question arose; were disposed ofby us in accordance with the principle stated by us in this case. Thesecases were—(1) S. C. No. 77—D. C. Galle, No. 35,107 and (2) S. C. 251—
C. Kurunegala, No. 13,943.
In view of the amendments referred to above, the former of these caseswas wrongly dismissed. The proceedings appear to have been duly• stamped. We therefore direct that this case be listed for argument indue course. It is not necessary that it should be listed before us.
In regard to the latter case, the order of dismissal stands, for althoughthe petition of appeal has been stamped in accordance with the amendedschedule of the Stamp Ordinance, the stamps for the certificate in appealand for the Supreme Court judgment are insufficient.
Soertsz J.—I agree.