017-NLR-NLR-V-74-U.-L.-PAUL-PERERA-Appellant-and-R-CHELLIAH-and-another-Respondents.pdf
SIRIMANE, J.—Perera v. Chelliah
61
1970Present: Sirimane, J., and Wijayatilake, J.
U.L. PAUL PERERA, Appellant, and R. CHELLIAH andanother, Respondents
S.C. 555(67 (F)—D. C. Chilaw, 17653
-Juru'diilion—Civil Procedure Code—Section 9 (a)—Action on a cheque.
Ill an action for tho rocovory of a cortoin sum on two cheques—
Held, that in dociding an objection to jurisdiction based on tho ground that adefondant is rosidont outside tho jurisdiction of the Court, tho Court has to lookat tho case on tho facts ns pleaded by tho plaintiff, in the nbsonco of any ovidcncoto tho contrary. A moro denial in tho answor of tho dofondant is not sufficientto oust jurisdiction.
Appeal from a judgment of the District Court, Chilaw.
Nimal Senanayake, with (Miss) Sherine Obeyesekere, for tho plaintiffappellant.
R. P. Goonelilleke, for the 1st defendant-respondent.
G. D. S. Siriwardene, with (Miss) S. M. Senaratne, for the 2nddefendant-respondent.
May 3, 1970. Sibimane, J.—
This action was filed by the plaintiff in the District Court of Chilawfor the recovery of a sum of Rs. 4,950 on two cheques drawn by the 1stdefendant on the Mercantile Bank of Colombo, and endorsed by the 2nddefendant to the plaintiif.
The plaintiff alleged in this plaint that the 2nd defendant resided atNathandiya within the jurisdiction of the District Court of Chilaw.It was conceded at the argument that if that averment was factuallycorrect the Court had jurisdiction to hear the action under Section 9 (a)of the Civil Procedure Code, despite the fact that the 1st defendant wasresident outside the Court’s jurisdiction and tho cause of action alsoarose outside the jurisdiction of that Court.
Tho plaintiff also averred in his plaint that he had given duo noticeof dishonour to both the defendants. At the trial several issues wereraised of which only No. 9 is relevant for the purposes of this appeal.That issue reads as follows :—
“Has this Court jurisdiction to hear and determine this action in asmuch as the first defendant, resides in Colombo ; the cheques weredrawn in favour of the Bank, in Colombo and presented for paymentand dishonoured in Colombo.”
02
Samarakoon v. Gunadasa
The Court was invited to try this issue first. It makes no referenceat all to the residence of the 2nd defendant.
In deciding an objection to jurisdiction based on the residence of a party*,the Court has to look at the case on the facts as pleaded by the plaintiff,in the absence of any evidence to the contrary. A mere denial in theanswer of the defendant is not sufficient to oust jurisdiction. In thiscase we notice that the defendant’s substantial objection to jurisdictionwas that the cheques had been drawn in Colombo.
The 2nd defendant gave no evidence in this case, and it was pointedout to us that summons had in fact been served on him at the addressgiven in the plaint within the jurisdiction of the District Court of Chilaw.The learned District Judge dismissed the action relying on the case ofSeneviralne v. Thalia1 which he thought was “on all fours” with thepresent case. In that case the only defendant was admittedly residentoutside the jurisdiction of the Court in which the action was filed. Thelearned District Judge appears to have decided the case against the 2nddefendant on the ground that he had no due notice of dishonour. Thiswas not a question which the Judge was called upon to decide at thatstage.
We set aside the order dismissing the action and send tho case backfor re-trial, at which the parties are entitled to raise issues afresh if theyso desire. The plaintiff is entitled to the costs of this appeal.
Wl.TAYATir.AKE, J.1 agTCC.
Case remilled for re-trial.