006-SLLR-SLLR-1992-V-1-SOMASIRI-v.-CEYLON-PETROLEUM-CORPORATION.pdf
SOMASIRI
v.CEYLON PETROLEUM CORPORATION
COURT OF APPEALWIJETUNGA, J. ANDANANDACOOMARASWAMY,
COURT OF APPEAL NO. 614/83 (F)
D.C. COLOMBO CASE NO. 2068/SPL13 FEBRUARY, 1991.
Civil Procedure – Civil Procedure Code, section 9 – Jurisdiction – Residence -Cause of action.
Held :
Even if the residence of the Corporation is not distinctly and clearly averred, it isno ground to reject the plaint or dismiss the action, when the plaintiff-appellanthas averred the principal place of business at the mentioned address as withinthe jurisdiction of the Court.
The true definition of ‘cause of action’ is the act on the part of the defendantwhich gives the plaintiff his cause of complaint.
The cause of action arises at Kollupitiya where the decision to transfercomplained of was made and from where the letter was issued transferring thedefendant.
Cases referred to:
Sulaiman v. Ibrahim (1890) 9 SCC 131.
Ranghamyv. Kirihamy (1904) 7 NLR 357.
APPEAL froifrjgdgment of the District Court of Colombo.
KithsiriP. Gunaraslhewith S. M. Senaratne and Saliya Mathew for appellant.
D. H. N. Jayamaha for respondents. .
Cur adv vult.
7th March ,1991.
ANANDACOOMARASWAMY, j.
This is an appeal from the judgment of the Learned District Judgeof Colombo dated 5th September, 1983, dismissing the Plaintiff’saction with costs on the ground that the Court had no jurisdiction tohear and determine the said action, as the cause of action set out inthe plaint did not arise at Kollupitiya within the jurisdiction of theCourt.
The facts relevant to this appeal are briefly as follows:-
The Plaintiff-Appellant instituted the action in August, 1981 againstthe Defendants-Respondents praying inter alia
To declare the transfer order dated 11th August, 1981 madeby the 1st Defendant transferring the Appellant from Batticaloa
to Kolonnawa is unlawful/illegal/null and void and is of no forceor effect in law.
To grant permanent, interim injunction and enjoining order asstated in the plaint.
Fourteen, issues were raised and parties agreed to the LearnedDistrict Judge trying issues Numbers 7 and 8 relating to jurisdictionas issues of law first. The Learned District Judge answered thoseissues against the Plaintiff-Appellant, stating that the Court had nojurisdiction and dismissed the action with costs. It is from thisjudgment that the Plaintiff-Appellant has appealed to this Court.
The first Defendant-Respondent having its Head Office at 113,Galle Road, Kollupitiya issued a transfer order dated-11.8.1981transferring the Plaintiff-Appellant from Batticaloa to Kolonnawa.
The plaint has the following averment,;-
“1. The first Defendant is a Corporation established under CeylonPetroleum Corporation Act No. 28 of 1961 and is deemed tobe a corporate body having its principal place of business atthe above address and the cause of action hereinafter set outarose at Kollupitiya within the jurisdiction of this Court”.
The transfer order was sent by the first Defendant-Respondentthrough the 2nd Defendant-Respondent to be served on the Plaintiff-Appellant who was then employed in the Petroleum CorporationBranch at Batticaloa, whose area Manager was the 2nd Defendant-Respondent.
Jurisdiction of the Court is governed by Section 9 of the CivilProcedure Code which reads as follows
"9. Subject to the pecuniary or other limitations prescribed by anylaw, action shall be instituted in the Court within the local limitsof whose jurisdiction
(a) a party defendant resides; or
the land in respect- of which the abtiphr'isbrought lies or issituate in-whole or in part: or
the Pause of actidn arises; or –
the contract sought to be enfpirced ,yiras made.. .. ”
The Ceylon. Petroleum Corporation was’having. its Head Office atKollupitiya and carried on its business all over the-lsiand through itsBranches, but had its principal place of business at Kollupitiya whereit had its Head Office, from where it had its centraT control andadministration. Therefore it is quite clear that the Ceylon PetroleumCorporation is deemed to, reside for purposes of suit wherever itcarried pn business in its own name.
The Learned Counsel for the Resqpndent contended that theaverment in paragraph one (1) did nptiShow that the 1st Defendant-Respondent (Ceylon Petroleum Corporation) resided at the addressmentioned for the purpose of Section 9 (a) of the Civil ProcedureCode, as the words “within the jurisdiction of this Court” refer to “the.cause of action hereinafter set put arose at Kollupitiya and not to thewords “its principal place of business at the above address”. Hefurther contended that “the fact'Of such residence must be distinctlyaverred and it is not sufficient to describe Defendant in the caption asof such and such a place within such limits”, if the Plaintiff relies forthe Couifs jurisdiction on the residence of the Defendant within theterritqriallirnits of the Court. In support of this contention he relied onthe decision in the case of Sulaiman v. Ibrahimm where the SupremeCourt (Clarence, A.C.J., and Dias, J.) held “In an action on a foreignjudgment it is not necessary for Plaintiff to aver that the foreign Courthad jurisdiction over the parties or the cause. The want of jurisdictionmay be shown by Defendant upon plea.
“The caption to a pleading cannot supply necessary averment.Where, therefore, a Plaintiff relies for the Court’s jurisdiction on theresidence of the Defendant within the territorial limits of the Court, thefact of such residence must be distinctly averred, and it is notsufficient to describe Defendant in the caption as of such and such aplace within such limits."
We find from tlie averment in paragraph one (1) of the plaint thatthe 1st Defendant-Respondent Corporation has its principal place ofbusiness at the mentioned address within the jurisdiction of theCourt. The words “within the jurisdiction of this Court” refer to bothplace of business and the cause of action. Even if the residence ofthe Corporation is notdfstindlty and clearly averred it is no ground toreject the plaint or disrriiss the action, when the PlaintiffrAppellant hasaverred the/principql plac&Cf business'at the mentioned address aswithin the jurisdiction of the Court.
On the second question whether the cause of action arose withinthe jurisdiction of the Court, the Learned Counsel for the Appellantrelied on the decision in the case of Ranghamy v. Kirihamy{2) wherethe Supreme Court (Layard, C.J., and Wendt, J.) held “In art;actionraised by a trustee of a Buddhist Vihare against the lessee of certainlands to set aside the leasf. which had. been executed within thejurisdiction of the District Court of Kandy, on the ground that suchlease was an improvident alienation. .
“The true definition of “Cause of Action” was the act on the part ofthe Defendant which gives the Plaintiff his‘ cause of complaint; that,,the wrongful act of the Defendant .ppmplained 0f was done in Kandy,in accepting a lease from the incumbent which the latter hadimproperly executed for his own benefit and to the injury of thevihare; and that therefore the District Court of Kandy had jurisdictionto try the case, notwithstanding that the residence of the Defendantand the site of the lands were beyond its limits."V”;
The act complained of is the decision to transfer the Plaintiff-Appellant and the issuance of the letter transferring him fromBatticaloa to Kolonnawa and not the acceptance of the said letterwhich gives rise to the cause of action, for, if the acceptance of thesaid tetter gives rise to the cause of action, it is meaningless in thefacts and circumstances of this case, because one cannot avoidcomplying with an order transferring by not accepting or refusing toaccept the letter conveying such order. Therefore the cause of actionarose at Kollupitiya where the decision to transfer was made andfrom where the said letter was issued, within the jurisdiction of theCourt. It follows therefore that the District Court of Colombo hasjurisdiction to hear and determine this actio#and .accordingly issuesNumbers 7 and 8 have tovbe answered iri- fayd.tir of the Plaintiff-Appellant.
For the foregoing reasons we set aside the judgment of .theLearned District Judge dated 5th September,. -1983 and remit thecase back to the Learned District Jud’pe. ‘Colombo to hear,determine and deliver judgment in accordance with, law in thisaction.
The appeal is accordingly allowed with costs.
WIJETUNGA, J .-I agree.
Appeal allowed.