URBAN COUNCIL, MORATUWA AND SERASINGHE V. CEYLON PAINT INDUSTRIES

038-SLLR-SLLR-1995-2-URBAN-COUNCIL-MORATUWA-AND-SERASINGHE-V.-CEYLON-PAINT-INDUSTRIES.pdf


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Urban Council, Moratuwa and Serasinghe v. Ceylon Paint Industries
191
URBAN COUNCIL, MORATUWAAND SERASINGHEv.
CEYLON PAINT INDUSTRIES
COURT OF APPEAL.
S. N. SILVA, J. P/CA.,
RANARAJA, J.
A. 675/88.
C. MT. LAVINIA 563/SPL.
DECEMBER 15, 1995.
Urban Councils – Urban Councils Ordinance S. 170- Seizure Notice – MovableProperty – S. 5, S. 217(g) S. 241 of Civil Procedure Code – Denial of a Right -Cause of Action – Residence – Territorial jurisdiction.
The Plaintiff-Respondent instituted proceedings against the Defendantchallenging the legality of the seizure notice. By this Notice issued from the officeof the Defendant at Moratuwa, the Plaintiff was informed that the 2nd Defendantwould seize movable property lying at Kaldemulla in the event of the Plaintifffailing to pay up before a certain date a sum of Rs. 342,800/-. The position of theDefendant was that the District Court of Mt. Lavinia had no jurisdiction as bothDefendants were resident and the cause of action arose outside the jurisdiction ofthat court.
Held:
The cause of action is the threat to peaceful possession of the goodsbelonging to Plaintiff. The Plaintiff is entitled to seek a declaration that it has theright to enjoy peaceful possession of the movables at the factory without beingliable to seizure.
Where a party seeks relief of a Declaratory Nature, in respect of movableproperty, the court that has territorial jurisdiction over the location of the subjectmatter in respect of which the declaration is sought, should have jurisdiction to tryand determine the action.
Notice was served and the goods under threat of seizure were stored atKaldemulla, within the jurisdiction of the District Court of Mt. Lavinia.
APPLICATION in Revision from the order of the District Court of Mt. Lavinia.
Cases referred to:
Hewavitharane v. Chandrawathie – 53 NLR 169.
Naganather v. Velautham-55 NLR 319.
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11995} 2 Sri LR.
Selvam v. Kuddipillai – 55 NLR 426.
Ranatte v. Sirimal-1 SCR 57.
N. R. M. Daluwatte, P.C., with L. Fernando and Ms. S. Abeyjeewa for Defendants-Petitioners.
D. S. Wijesinghe, P.C., for Plaintiff-Respondent.
Cur. adv. vult.
July 9,1995.
RANARAJA, J.
This is an application in revision from the order of the DistrictJudge dated 10.6.88 holding that the District Court of Mt. Lavinia hadjurisdiction to hear and determine the action. The plaintiff-respondent(plaintiff) instituted action against the defendants-respondents(defendants) challenging the legality of the notice (P5), issued by the2nd defendant on the plaintiff, purportedly under the provisions ofsection 170 of the Urban Councils Ordinance. By that notice theplaintiff was informed that the 2nd defendant, acting under theauthority of a warrant issued to him, would seize the movableproperty lying at premises no. 19, Thelawala Road, Kaldemulla, inthe event of the plaintiff falling to pay before 30.5.87, a sum ofRs. 3,42,800/- due to the 1st defendant by way of arrears of rates andpenalty up to the 4th quarter of 1986. The plaintiff prayed inter alia;
For a declaration that the seizure notice (P5) issued by the2nd defendant is contrary to the provisions of the Urban CouncilsOrdinance, and is null and void and is of no force in law,
For a declaration that the notice (P5) stating that an amountof Rs. 3,42,800/- is due by way of arrears of rates and penalty inrespect of premises no. 19, Thelawala Road, Kaldemulla is bad inlaw, and
For a permanent injunction restraining the defendants fromseizing and selling the movable property lying at the said premises insatisfaction of the amount claimed in the notice.
CA
Urban Council, Moratuwa and Serasinghe v. Ceylon
Paint Industries (Ranaraja, J.)
193
The defendants filed answer praying for a dismissal of theplaintiff's action, on the ground, amongst others, that the DistrictCourt of Mt. Lavinia had no jurisdiction to entertain the action, as bothdefendants were resident and the cause of action arose outside thejurisdiction of that court. On the invitation of both parties the DistrictJudge tried the question of jurisdiction as a preliminary issue on oralsubmissions. It was conceded by counsel for the defendants thatnotice (P5) was a seizure notice and that it was served on the plaintiffat its factory at premises no. 19, Maligawa Road, Kaldemulla, whichis within the jurisdiction of the District Court of Mt. Lavinia. Thelearned District Judge held that it had jurisdiction to hear anddetermine the action. This application is to have that order revised.
Learned President's Counsel for the defendants submitted that(P5) is only a notice and no seizure of the plaintiff's property hadtaken place. Since the plaintiff’s action was founded on the notice(P5), which was issued by the 2nd defendant from the office of the1st defendant at Moratuwa, outside the jurisdiction of the DistrictCourt of Mt. Lavinia, it was submitted that court had no jurisdiction toentertain the action.
Learned President’s Counsel for the plaintiff on the other handsubmitted that the 2nd defendant had acted contrary to theprovisions of the Urban Councils Ordinance in sending notice (P5)threatening to seize the said movables. Hence, he submitted, theplaintiff’s action was primarily intended to seek relief of a declaratorynature in terms of section 5 read with section 217(g) of the CivilProcedure Code, consequent to the denial of a right, namely, the rightto peaceful possession of the movables lying at premises no. 19,Maligawa Road, Kaldemulla, until the defendants held a properinquiry into the plaintiff’s appeal against the sharp increase fromRs. 4300/- to Rs. 75,000/- as rates payable per quarter for thepremises. Since the movables sought to be seized lay within thejurisdiction of the District Court of Mt. Lavinia, Learned President’scounsel submitted there was no error in the order of the DistrictJudge.
The right of a plaintiff to the benefit of a declaratory decree underthe provisions of the Civil Procedure Code in certain circumstances,for the purpose of settling concrete disputes with a defendant hasbeen recognised. – Hewavitharane v. Chandrawathie(1). Cases may
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[1995] 2 Sri LR.
well occur in which such a decree would be justified to accomplishthe ends of precautionary justice for the protection of future orcontingent rights. – Naganathar v. Velautham (2>. The law does notcompel an owner to postpone his claim to relief until the dispute as totitle has led to physical dispossession. – Selvam v. Kuddipillai(3).
In the light of the principles laid down in the authorities cited,where a party seeks relief of a declaratory nature in respect ofmovable property, the court that has territorial jurisdiction over thelocation of the subject matter in respect of which that declaration issought should have jurisdiction to try and determine the action. Thisview finds support in the proviso to section 241 of the civil ProcedureCode.
The 2nd defendant has by notice (P5) threatened to seize themovables lying at the plaintiff’s factory at Maligawa Road,Kaldemulla, within the jurisdiction of the District Court of Mt. Lavinia.The cause of action is the threat to the peaceful possession of thegoods belonging to the plaintiff. The plaintiff is entitled to seek adeclaration that it has the right to enjoy peaceful possession of themovables at the factory without being liable to seizure until a properinquiry is held into the validity of the increase in the rates payable forthose premises.
Learned President’s Counsel for the defendants cited the case ofRanatte v. Sirimal(4), which held that where a cause of action hasarisen within the jurisdiction of more than one court, the court havingjurisdiction to try the case must depend on where the defendantresides, or where the land in respect of which the action is brought issituate, or where the contract sought to be enforced is made. In thepresent case there is no doubt as to where the cause of action arose.Notice (P5) was served and the goods under threat of seizure werestored at no. 19, Maligawa Road, Kaldemulla, admittedly within thejurisdiction of the District Court of Mt. Lavinia. Therefore that courthas jurisdiction to hear and determine the action.
S. N. SILVA, J. -1 agree.
Application dismissed.