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TIRIMANDURA v. DISSANAIKE.
D. C., Tangalla, 357.
Jurisdiction of Court—Purchaser of property mortgaged—Residence—
Place of execution of bond.
A, a resident at Matara, purchased certain lands situate atMatara, which had been mortgaged by a bond executed at Tangalla.
. The mortgagee sued the mortgagor in the District Court ofTangalla and made A also a' party to the action.
Held by Lawrie and Withers, J.J., that the District Court ofTangalla had no jurisdiction to entertain the action as against A,who was not resident within the local limits of its jurisdiction, andagainst whom no cause of action had arisen within its jurisdiction,and whose lands were not situate within its jurisdiction.
Fernando v. Waas (9 S. C. C. 189) referred to.
rpHE facts appear in the judgments.
Domkorst, for appellant.
Wendt and Blaze, for respondent.
Cur. adv. wit.
9th February, 1896. Lawrie, J.—
This is an action brought in the District Court of Tangalla toenforce a, mortgage bond executed within that district. Theplaintiff called as defendants the mortgagor and a purchaser fromhim since the mortgage, alleged to be in possession at the date ofthe institution of this action. The plaintiff has no direct causeof action against the second defendant. All he asks for againsthim is a declaration that the lands are bound by the mortgage,and that the second defendant is entitled to redeem the lands bypayment of the mortgage debt.
Now, this second defendant does not reside in the district ofTangalla, neither are the lands purchased by him within thatdistrict. The second defendant .pleads to the jurisdiction. Bythe Charter of 1833, section 24, District Courts had jurisdictionto determine all suits in which the party or parties defendantsshall be resident within the district.
Sir Charles Marshall, p. 258, cites a‘case in which an actionrelating to land in the district of A was brought in the DistrictCourt of B against two defendants, one of whom lived in B andthe other in A.
The defendant who lived ip B disclaimed title, and the SupremeCourt ordered the action to be transferred to the District Courtof A, “ as being the Court under the jurisdiction of which the“ decision of the case properly fell.”
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The case is also reported in Morgan's Dig., p. 45. The next caseI find on this point is a judgment of Oliphant, G.J., 19th Feb-ruary, 1890, reported in Austin’s-Reports, p. 136:—
“ The District Judge of Kandy said :—‘ The Court is of opinion“ that one of the defendants having been served with process“ within the District of Kandy, this Court has jurisdiction in the“ matter over all the defendants.’
“ In appeal set aside.
“ The 24th clause of the Charter is quite dear on the point at" issue, and the Supreme Court does not perceive that this case“ comes within it.”
So stood the law until the Ordinance No. 11 of 1868.
By the 65th section District Courts have jurisdiction in suits inwhich the party defendant shall be resident within the district.
It is to be noticed that the Charter said “ the party or parties ”defendant; the Ordinance of 1868 bears “ the party defendant.”This may be due to the Ordinance No. 1 of 1852, where it wasenacted, “ that in all Ordinances words importing the singular“ shall be deemed to include the plural unless the contrary is“ expressly provided.”
I do not know of any decision interpreting the 65th section ofthe Ordinance No. 11 of 1868 respecting the residence of defendants.Then came The Courts Ordinance of 1889 : “ Every District Court“ shall have cognizance of and full power to hear and determine“ all pleas, suits, &c., in which a party defendant shall be resident“within the district in which any such suit, &c., shall be brought,” 'and in the Civil Procedure Code, section 9, “ actions shall be,,“ instituted in the Court within the local limits of whose jurisdiction“ a party defendant resides.”
In Fernando v. Waas (9 S. C. C. 189), Burnside, C.J., said :
“ One of the defendants, a party defendant, resides within the“ jurisdiction of the Court, and the Court has therefore jurisdiction“ over the matter of the suit.” Now, of course the District Courtof Tangalla has jurisdiction in this action between the plaintiffand the first defendant, because the contract sought to be enforcedwas entered into in Tangalla. The question is, Has the TangallaCourt any jurisdiction to pronounce an order affecting the seconddefendant ?
I think *not, because the Legislature has not expressly givenjurisdiction. I do not read either The Courts Ordinance or thedictum of Sir Bruce Burnside*as asserting more than that theCourt has jurisdiction over the subject-matter of a suit whereope of the defendants lives within the district. The Ordinanceand the decision do not necessarily mean that the Court has
. January 29and
February 9.Lawrie, J.
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jurisdiction over an absent defendant: the suit can go on as againstthe defendant’s property before the Court. I find nothing whichgives jurisdiction against a man who is not resident unless he beinterested in land within the district in respect of which the actionis brought, or unless he be party to a cause of action which arosein the district, or was a party to a contract made with it.
I was disposed to transfer this action to the District Court ofMatara, and I thought we had powers to do so under sub-section(c) of section 46 of The Courts Ordinance. I thought that thiswould be a just exercise of our equitable powers facilitating thespeedy and economical decision of the issues between the parties.But as my brother Withers dissents from this procedure, I amcontent to strike the name of the second defendant out of thisaction.
Withers, J.— .
The question we are called upon to decide is whether the DistrictCourt of Tangalla had jurisdiction to try the claim against thesecond defendant in the following circumstances.
The first defendant is a resident within the jurisdiction of theDistrict Court of Tangalla. The second defendant is a resident atMatara outside the jurisdiction of that Court.
. The action against the first defendant is on a mortgage bond, andthe claim is to have him adjudged liable to pay a certain sum ofmoney, and in default to have the lands which are speciallyhypothecated to secure the payment of the principal amount andinterest due on the bond spld in satisfaction of the sum adjudged'to be paid. Some of the lands so mortgaged are situate in theDistrict of Matara, and they were bought by the second defendantin execution of a judgment against the first defendant. Theplaintiff being desirous of following those lands in the possessionof the second defendant, and having them declared bound andexecutable for the defendant, alleged to be due and owing under.the first defendant’s bond to him, joined him in this action. Thesecond defendant specially pleaded to the jurisdiction, but theDistrict Judge repelled his plea relying in the 35th section ofthe Civil Procedure Code ; but this section is not in point.
The Court’s jurisdiction to try an action must be determined by
the provisions of The Courts Jurisdiction Ordinance, No, 1 of 1889.
Those relating to the jurisdiction of the District Court are to be
found in section 65 of that Ordinance
“ Every district court shall have cognizance of and full power“to.hear and determine all pleas, suits, and actions in which a party“defendant shall be resident within the district in which any
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“ such suit or action shall be brought, or in which the cause of“action shall have arisen within Buch district, or where the land“ in respect of which the action is brought lies, or is situate wholly“ or partly, within such district.”'
Now, this party defendant does not reside within the Tangalladistrict. The cause of action against him did not arise withinthat district; it arose within the distriot of Matara, by reason ofhis being a tenant of lands there secured by third party’s mortgagewhich the plaintiff was desirous of realizing. Lastly, all the landsso bought and held of the second defendant are wholly withinthe district of Matara. Section 9 of the Civil Procedure Code laysdown rules conforming to those provisions. It enacts that actionssba.ll be instituted in the Court within the local limits of whosejurisdiction (a) a party defendant resides or (b) the land in respectof which the action'is brought lies or is situate in whole or in part;or (c) the cause of action arises; or (d) the contract sought to beenforced is made.
This action was brought against the second defendant in defianceof. those rules. Counsel who supported the judgment in appealpressed upon us the case of Fernando v. Waas reported in 9 S. G. C.189.
This at first sight seemed to favour his contention, but whenexamined it will not be found to help him.
A plaintiff had bought a land from A, which B, -who claimed A’shalf share, would not let him enjoy. The land was in the Chilawdistrict, and so apparently was the residence of B.
The plaintiff sued A in the District Court of Negombo. Heresided in that district. The prayer against A was, that if theplaintiff was evicted by the Court in his suit to get possession of theland from B, A might be adjudged to restore the price of the land.A moved to have the plaint taken off the file because the plaintiffhad improperly joined two distinct causes of action, one.againsthimself and one against B. -B did not plead to the jurisdiction.
The Appeal Court overruled the objection because A was aparty defendant who resided in the district of Negombo, wherethe action was brought, *and because the alternative claim was onewell directed against him.
Mr. Wendt argued as if the words “ a party defendant ” wereequivalent to the words “ any one of the parties defendant,” andhe referred us to the Indian Ceylon, Pfenal Code, section 17, whichenacts that, “subject to the limitations aforesaid, all other suits“ shall be instituted in a Court within the local limits of whose“ jurisdiction—
February 9.Withers, J.
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February 9.Withers, J.
“ (6) All the defendants -reside.
“ (c) Any of the defendantsresides.”
This Act, however, relates to procedure, and as our Legislaturewas not minded to follow its language, I think the difference oflanguage works against Mr. Wendt.
The question is, What is meant by the words “ a party defend-ant ? ” In the 65th section of The Courts Ordinance, can it meananything else than “ a party defendant or parties defendant.”
In the Ordinance No. 11 of 1868, which Ordinance No. 1 of 1889repealed, the words where “ the party defendant.” Is there anysubstantial difference ?. Section 65 does not say where any of thedefendants resides ; “ a ” does not necessarily mean “ any.” Whyshould we declare it does or ought to 7 It cannot be that a courtof justice is competent to touch a person who does not reside inits jurisdiction, and against whom no cause of action has arisenwithin its jurisdiction, and in whose jurisdiction there is noimmovable property with which the non-resident party is so con-nected as to bring him, it may be, into some jural relations withthe party plaintiff. It seems to me clear beyond all doubt thatthe District Court of Tangalla had no jurisdiction over the seconddefendant, and his name should be struck out of the record, theplaintiff paying his costs in the Court below and in appeal. Thejudgment against him, and the lands alleged to have been acquiredby him within the district of Matara, must be set aside.
TIRIMANDURA v. DISSANAIKE