W. M. PELIS, Appellant, and K. N. SILVA, Respondent

072-NLR-NLR-V-60-W.-M.-PELIS-Appellant-and-K.-N.-SILVA-Respondent.pdf


BASNAYAKE, CJ.—Pelis v. Silva
280
Present; Basnayake, C.J., and Sinnetamby, J.W. M. PELIS, Appellant, and K. N. SILVA, Respondent
8. C. 89 Indy.—D. G. Hambantola, 462/L
Jurisdiction—Agreement to sell land—Action for specific performance—Forum—Civil Procedure Code, s. 9 (6).••
An action for specific performance of an agreement to sell land is not anaction in respect of land within the meaning of section 9 (6) of the Civil Procedure'■ Code. A Court, therefore, has no jurisdiction to try the case merely on theground that the land in respect of which the contract was made is situated withinthe local limits of its jurisdiction.
A
AVPPEAL from a judgment of the District Court, Hambantota.
H. W. Jayewardene, Q.G., with G. T. Samerawickreme and N. B. M.Daluwatte, for Defendant-Appellant.
E. B. Wikramanayake, Q.G., with V.J. Martyn, for Plaintiff-Respondent.
August 29,1958. Basnayake, C.J.—'. , . ;
This is an action to enforce two agreements to sell, No. 15346,of 30t3hMarch 1940 and No. 15494 of 5th June 1940. Each agreement is to sellten acres out of the lot that would be allotted to the promissors in D. C.Tangalle Partition Action No. 3199. It is sufficient to quote the terms ofthe first of them which are as follows :—•? '
“ This is the Agreement to sell entered into oh the 30th day of March1940 between Samararatnappuli Kodikara Kankanage PodihamyWeerasinghe Magam Pattuwe Vidana Aratchige Siyoris Pelis and—do.—Gunawathie all of Dondra in Wellaboda Pattu of Matara beingparties of the first part and Kalubadanage Nadoris Silva of Nakulu-gamuwa in West Giruwa Pattu of Hambantota District being party ofthe second part.
“ The party of the first part do hereby agree to transfer ten acresextent to the party of the second part within two months Of the,,entering of the final Decree in case No. 3199 of the District Court ofTangalla from the lot that would be allotted to the first party out of .the subject matter in the said case and described in the schedule belowfor a sum of Rupees Pour Hundred (Rs. 400) and subject to the condition—herein contained and further that the ten acres extent hereby agreedto be sold be surveyed by a Surveyor and a Plan thereof be made. *
*“ Conditions above referred to.
“ That out of the consideration Rs. 400 a sum of Rs. 200 be paidat the execution of these presents and the balance Rs. 200 be paid atthe tinab of signing the transfer deed in favour Qf the party of thesecond part._•
13' -XX
3—-J. N. B 1004-1)593 (3/69)
ik>-'BASNAYAKEj O.J.—Peliaii. Siim ■
“ That the party of the first part shall pay survey fees, assessmentcharge and all other costs due in the said case No. 3199 in respect ofthe said premises.
I
“ That .survey fees for surveying and preparing a plan of the saidten acres be also paid by the party of the first part.
“ And that the parties of the first and second parts do hereby forthemselves, their heirs, executors, administrators and assigns firmlybind for due performance of the condition herein contained. ”
The plaintiff instituted this action at Hambantota and he averred inhis plaint that during the pendency of Partition Case No. 3199 in theDistrict Court of Tangalle, the defendant Weerasinghe Magam PathuweVidana Arachchige Siyoris Pelis, his sister Gunawathie, and Samara-ratnappuli Kodikara Kankanage Podihamy by deeds Nos. 15346 and 15494dated 30th March 1940 and 5th June 1940 respectively agreed to transferto the plaintiff a total extent of 20 acres out of the lot that would beallotted to them on the Final Decree within two months of its beingentered. Final Decree in the partition action was entered on 24thNovember 1954 and the defendant was allotted lot P in extent 46 acresand 34 perches. The plaintiff had requested the defendant to executea transfer and convey to him the extent of 20 acres out of the extentallotted to him but the defendant had failed and neglected to complywith his request. The plaintiff says that a cause of action has accruedto him to sue the defendant for a decree ordering him to execute a transferin his favour in respect of 20 acres of the land in question, and on thefailure of the defendant to do so prays that the Court be pleased toexecute a deed ip his favour conveying 20 acres out of the. said land.
As a preliminary issue the question of jurisdiction of the Court wastried. The following was the issue that was framed “ Has this courtjurisdiction to hear and determine this action ? The learned DistrictJudge held that the Court had jurisdiction to entertain the action on theground that it fell within the ambit of section 9 (b) of the Civil ProcedureCode. This is not an action in respect of land. It is an aotion for theenforcement of an agreement to sell land. In the instant case theagreement was exeouted at Dondra where the defendant resides, a placeoutside the jurisdiction of the District Court of Tangalle. Hambantotawhere this action has been instituted is a place at which the District iJudge of Tangalle sits. A Court has jurisdiction to try an action wherewithin the local limits of its jurisdiction—
(«) a party defendant resides, pr
'fr' 4^
the land in respect of which the action is brought lies or is situate ’
in whole or in part, or
the cause of action arises, or
the contract sought to be enforced was made.
291
■ WEERASOORIYA, J.—Sellammah v. Attorney-General
The District Judge of TangaUe sitting either at TangaUe or Hambanfotatherefore had no jurisdiction to try this action.
We accordingly allow the appeal with costs, in both Courts. Theplaintiff’s action will stand dismissed,
Sinnetamby, J.—I agree.
Appeal allowed. '