004-NLR-NLR-V-19-SITHAMPARAM-v.-PONAN.pdf
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Present : De Sampayo 3.
SITHAMPABAM v. PONAN.
105—-G. JR. Colombo, 48,650.
Jurisdiction—Court of Bequests—Civil Procedure code. s. 9—CourtsOrdinance, a.77—Contract sought to be enforced entered into 'withinthe local limits of the jurisdiction of Court of Bequests.
A Court of Bequests has jurisdiction in respect of an action forenforcing a contract if the ‘‘ contract. sought to be enforced waamade '** within the local limits of its jurisdiction.
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HE plaintiff sued the defendant in the Court of Bequests,Colombo, for wages due him from defendant, alleging that the
contract. of service was entered into at Colombo. The defendanttook objection to the jurisdiction of the Court on the ground thatthe cause of action arose at Kalutara. The defendant furthercontended that even if the contract was entered into at Colombothe Court had no jurisdictionT
The following preliminary issue was agreed to;—“ Has this Courtjurisdiction? ” The learned Commissioner (T. W. Roberts, Esq.),although he was of opinion that the Court had jurisdiction, thoughtthat he was bound by the decision reported in Davith Appuhamy v.Perera,1 and dismissed the plaintiff’s action with costs.
The plaintiff appealed.
Anilanandam, for plaintiff, appellant.—The decision relied on bythe Commissioner was with regard to a hypothecary action, and has noapplication to the present case. Section 77 o£ the Courts Ordinance,No. 1 of 18fi9, no doubt creates the jurisdiction of the Courts ofBequests. This* section has to be interpreted in the light of theprovisions of section 9 of the Civil Procedure Code. The omissionof paragraph (d) occurs, m both sections 77 and 65. In Lollyettv. Negris & Co.2 it was assumed that the Court of Bequests hadjurisdiction in an exactly similar case.
., Wordsworth, for respondent.—Lolly ett v. Nagris & Co 2 is noauthority, as the point was not expressly raised. Davith Appuhamyp. Perera 1 is a binding authority. The omission of paragraph (d) insection 77 of the Courts Ordinance, as amended by OrdinanceNo. 11 of 1895, was intentional. The cause of action is the non-payment of the wages, and that took place at Kalutara.
Cur. adv. vult.
1 (190S; 11 N. L. B. 160.2 (1911) 44 It. L. R. 047.
iwe.
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1916.
Sitftam-param v.Penan
April 3, 1916. Db Sampayo J.—
This case raises an important point touching the jurisdiction of ,the Court of Bequests. The plaintiff, who is a licensed toddy,drawer, made a contract with the defendant, who is a distiller ofarrack, to draw toddy for him on certain terms. The contract is, alleged to have been made in Colombo, but it appears the work wasto be done and paid for at Kalutara, where also, the defendantresides. The Commissioner has upheld an objection taken to thejurisdiction of the Court of Bequests-mf Colombo, and has dismissed^the action.
Section 9 of the Civil Procedure Code provides for actions being^instituted in the Court within the local limits of whose. jurisdiction,inter alia, (c) “ the cause of action arises," or (d)“ the contractsought to be enforced was made." The contention on behalf ofthe defendant is that, by reason of the provisions of section 7? ofthe Courts Ordinance, No. 1 of 1889, as amended by section 4 ofthe Ordinance No. 12 of 1895, which created the jurisdiction of theCourt of Bequests, paragraph (d) of section 9 of the Civil ProcedureCode does not apply to Courts of Bequests, and that the makingof the contract within the local limits of such Courts does nottherefore give them jurisdiction.Now, the material portion of
section 77 of the Courts ordinance is as follows:* ‘ Every Court of
Bequests] shall have cognizance of and full power to hear and
determine all actions in whichthe party or-parties defendant
shall be resident within the jurisdiction of such Court, or in whichthe cause of action shall have arisen within such jurisdiction, and
all hypothecary actions in which the land hypothecated
-or any part thereof is situated within the jurisdiction of suchCourt," &c.
I may say at once that Davith Appuhamy v. Perera,1 upon whichthe Commissioner relies, has no bearing on the present question.That case had to do with a hypothecary action, and it was thereheld that the Court of Requests had no jurisdiction to entertain anaction on a mortgage bond, unless the property mortgaged wassituate within its jurisdiction. This case turns upon the truemeaning of the earlier words, " in which the cause of action shallhave arisen within such jurisdiction." If the contention on behalfof the defendant—that because a place in which a contract is madeis not mentioned in section 77 of the Courts Ordinance as a test ofjurisdiction, paragraph (d) of section 9 of the Civil Procedure Codeis not applicable to Courts of Bequests—be sound, then' we wouldbe confronted by a still greater difficulty. For section 65 of theCourts Ordinance creates the jurisdiction of District Courts insimilar terms, and omits any refernce to the place in which acontract is made. If, therefore, the present contention is to prevail,
i (1908) 11 N. h. R. 180.
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even a District Court will have no jurisdiction in cases in which thecontract sought to be enforced was made within its local limits,and the provision of paragraph (d) of section 9 of the Civil ProcedureCode will be wholly meaningless and futile, as it will be inapplicableequally to the District Courts and the Courts of Bequests, whichare the only civil courts of original jurisdiction constituted by theCourts Ordinance. The difficulty raised by the defendant is moreapparent than real, and its solution lies in the proper apprehensionof terms. The fact appears to be that the argument is foundedupon # fallacious interpretation of the expression “ cause of action,*'occurring in both the above sections of the Courts Ordinance, Thedefendant in this case relies On the definition of “ cause- of action ”in section 5 of the Civil Procedure Code, but it must be fioted thatthe definitions of words and expressions in that section are prefacedby the qualification " unless there is something in the subject orcontext repugnant thereto.” There is clearly a great deal in sections65 and 77 of the Courts Ordinance repugnant to the maning of“ cause of action ” as defined in section 5 of the Civil ProcedureCode. Moreover, that section is confined to words and expressionsas used in the Civil Procedure Code itself, and does not purport todefine them as used in the Courts Ordinance. It is obvious that“ cause of action ” in sections 65 and 77 of the Courts Ordinancehas a much wider signification than in the interpretation sectionof the Civil Procedure Code. Even in the Civil Procedure Codethe expression has often a wider meaning than the mere definition.It includes, for instance, ” the grounds of the plaint ” and '* themedia on which the plaintiff1 asks for judgment.” Dingiri MeniltaV. Punchi Mahatmaya,1 Samichi v. Pieris.2 In this case one of thegrounds set out in the plaint, and of the media on which the plaintiffasks the Court to arrive at a conclusion in his favour, is that thedefendant made a Contract with him in Colombo. This, I think,is the plaintiff’s cause of action, so far- as section 77 of the CourtsOrdinance is concerned, and on the assumption that the contractwas made in Colombo the Court of Bequests of Colombo would havejurisdiction, to hear and determine the action.
The judgment appealed from is set aside, and the case is remitted
to the Court of Bequests for further proceedings. The plaintiff will
have the costs of the trial already had, and of this appeal.-
Set aside.
» (1910) 13 N. L. R. 59.* (1913) 16 N. L: R. 257.
1916.
De SampayoJ.
Sitham-param vPenan