CHAPTER III
OF THE COURT OF INSTITUTION OF ACTION
9. Subject to the pecuniary or other limitations prescribed by any law, action shall be instituted in the court within the local limits of whose jurisdiction -
(a) a party defendant resides; or
(b) the land in respect of 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 be enforced was made.
When it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more courts any immovable property is situate, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect, and thereupon proceed to entertain and dispose of any action relating to that property; and its decree in the action shall have the same effect as if the property were situate within the local limits of its jurisdiction:
Provided that the action is one with respect to which the court is competent as regards the nature and value of the action to exercise jurisdiction.
WHERE A PARTY DEFENDANT RESIDES
An action could be brought in the court within whose jurisdiction one of Several defendants resides, though that court would not have jurisdiction over the land or the party in possession if sued alone.
Fernando Vs. Wage (9 S.C.C. 189)
By a C.I.F contract the defendant, who are merchants domiciled and resident and carrying on business in England, sold certain goods to the plaintiffs, merchants residents and carrying on business in Ceylon. The goods not having been received by the plaintiffs sued the defendants in the District Court of Colombo for damages for non delivery of goods. District Court of Colombo had no jurisdiction.
Arunachalam Chetty Vs. Service Reeve & Co.(12 N.L.R. 188)
A person may be said to “reside” in a place, where he has his family establishment and home. An action on a promissory note made in Kurunegala was held to have been rightly brought in Panadura court against a person who worked in Kurunegala, but whose wife and children, who he occasionally visited, resided in Moratuwa.
Mendis Vs. Perera (13 N.L.R. 41)
The plaintiff obtained a judgement against the defendant in a Calcutta court, but the defendant was not in resident there at the time of the action against him and did not appear to the process. The plaintiff subsequently sued the defendant in the District Court of Colombo on the judgement of the Calcutta court. Court held that the defendant was not bound by the decree of the Calcutta court.
Wormon & Co. Vs. Noorbhai (15 N.L.R. 355)
Where a person resident in one country has his domicile in an another country, a judgement passed against him in absentia cannot be enforced in the country of his domicile.
Shamji Gordhhandas & Co Vs. Ramanathan & Co. (20 N.L.R. 129)
The test of jurisdiction as regards the appointment by court of a guardian or curator for a minor in the residence of the minor.
Keppitipola Kumarihamy Vs. Rambukpotha (30 N.L.R. 273)
An action may be brought in a District court where any party defendant resides against whom right to any relief is alleged to exist. A party defendant means any party defendant.
Hussan Vs. Peiris (34 N.L.R. 238)
In an action to recover money due under a policy of fire insurance the principle of the English law that the debtor must seek out the creditor applies. In such a case the cause of action i.e. the failure to pay arises where the claimant resides.
Sirimane Vs. New India Assurance Company Limited.(35 N.L.R. 413)
Where a promissory note made by the defendant in favour of the plaintiff was silent as to the place of payment.
Held, that an action may be brought on the note in the court within whose jurisdiction the plaintiff resided as the debtor must seek out the creditor at his residence or place of business.
Ponniah Vs. Kanagasabi (35 N.L.R. 128)
Plaintiff sued the defendant in the District court of Colombo as the endorsee of a promissory note made by the defendant in favour of V and endorsed by the letter to plaintiff.
The note which was payable on demand was signed at Badulla and in the body of the note the defendant’s address was given as Lower Street, Badulla.
Held, that the intention of the parties was that Badulla should be the place of payment and that therefore the cause of action arose at Badulla.
Abdul Cader Vs. Meera Saibo (44 N.L.R. 563)
Under section 9 of the Civil Procedure Code an action may be instituted in Ceylon against a defendant who is resident abroad and is not domiciled in Ceylon. The jurisdiction of a Court of any particular State depends upon the local municipal law and is unaffected by the consideration as to whether a judgement once obtained is enforceable in the Courts of a foreign State.
Miller Vs. Murray (54 N.L.R. 25)
A Muslim husband’s obligation to return the ‘kaikuli’ to his wife on demand is first undertaken by him at the place where he marries her.
A Muslim husband who had deserted his wife was sued by the wife for the recovery of Rs.1,500 that had been paid to him as ‘kaikuli’ at Galle a few days before they were married. The marriage was celebrated at Matara. The plaintiff resided at matara and the defendant at Galle, when the action commenced.
Held, that the District Court of Matara had jurisdiction to hear the case. Scope of the rule that “the creditor must seek out the debtor” examined.
Sowdoona Vs. Abdul Muees. (57 N.L.R. 75)
The defendant, who was residing at Panadura drew a cheque in favour of the plaintiff payable at the Panadura Office of the Bank of Ceylon. When the cheque was dishonoured at Panadura, the plaintiff instituted the present action in the District Court of Colombo for the recovery of the amount of the cheque.
Held, that the cause of action arose in Panadura and the District Court of Colombo had therefore no jurisdiction to hear the case.
Seneviratne Vs. Thaha (65 N.L.R. 184)
Premises of which the landlord is a local authority are “excepted premises” within the meaning of section 12 of the Rent Restriction (Amendment) Act No. 10 of 1961 if they are used neither wholly nor mainly for the purposes of residence. However, for the purpose of determining the jurisdiction of the Court in which an action to evict the tenant may be instituted, such premises are “a place of residence of the defendant” as contemplated in section 9 (a) of the Civil Procedure Code. The words place of residence” in section 9 (a) of the Civil Procedure Code and “residential premises” in the Rent Restriction Act are not synonymous.
Gunawardene Vs.Urban Council, Kalutara (73 N.L.R. 233)
Held, that in deciding an objection to jurisdiction based on the ground that a defendant is resident outside the jurisdiction of the Court, 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 the answer of the defendant is not sufficient to oust jurisdiction.
Perrera Vs. Chelliah (74 N.L.R. 61)
Where, in an action instituted in a District Court, the defendant has not denied in his answer the territorial jurisdiction of the Court, section 71 of the Courts Ordinance precludes him from raising such objection subsequently by moving to amend the answer.
Obiter: Where a man dies in consequence of a collision with a motor vehicle, and the death occurs in an area different from that where the accident occurred, the jurisdiction of the Court in which his wife of the deceased may institute action for recovery of damages may be determined by the area where the accident occurred.
Fernando Vs. Ronald (75 N.L.R. 231)
WHERE THE LAND IS SITUATED
An action was brought by a trustee of Buddhist Vihare against a lessee to set aside a lease entered in Kandy. Court held that the District court of Kandy has the jurisdiction to try the case, notwithstanding that the residence of the defendant and the site of the land beyond it’s limits.
Ranghamy Vs. Kirihamy (7 N.L.R. 357)
A court of Request has no jurisdiction to entertain action on a bond mortgaging immovable property, unless such property is situate within the jurisdiction of such court.
Davith Appuhamy Vs. Perera (11 N.L.R. 150)
Unsuccessful claimant filed an action under section 247 of the code in the District Court of Negombo by which the execution had been issued. But Negombo court had no jurisdiction as the property seized was situated in Kurunegala and action is not on the seizure which is of the violation of the right of ownership. It is competent for the court to return the plaint to be presented to the proper court.
Werthelis Vs.Daniel Appuhamy (12 N.L.R. 196)
Defendant sold a land situated in Kegalle by a deed executed in Colombo, but failed to deliver possession, cause of action to recover possession arose within the jurisdiction of Kegalle and District Court of Kegalle had the jurisdiction to hear the case.
Sunnygama Co Ltd., Vs. Fonseka (23 N.L.R. 20)
An action for the redemption of an otty mortgage and for the release of the mortgaged land from the mortgage is a dispute affecting an interest in land and can, therefore, be brought in the court within the local limits of whose jurisdiction the land in question is situated.
Nallathamby Vs. Somasunderam Kurukkal (57 N.L.R. 166)
An action for specific performance of an agreement to sell land is not an action in respect of land within the meaning of section 9 (b) of the Civil Procedure Code. A Court, therefore, has no jurisdiction to try the case merely on the ground that the land in respect of which the contract was made is situated within the local limits of its jurisdiction.
Pelis Vs. Silva (60 N.L.R. 289)
WHERE THE CONTRACT WAS MADE
The plaintiff and the defendant entered into a contract at Colombo which was to be performed at Kandy. On breach of the contract by the defendant, the plaintiff filed action in the District court of Kandy Court held that it had the jurisdiction to entertain the action.
Pless Pol Vs. Lady de Soysa (9 N.L.R. 316)
The plaintiff who was a resident in Galle entered in to an agreement with the defendant who was resident in India and temporarily resident at Galle. On breach of contract the plaintiff sued in Galle. Court held that the Galle court had jurisdiction as the English law is debtor must seek the creditor unless there is any thing in the contract to the contrary.
Fernando Vs. Arunasalam Pillai (21 N.L.R. 126)
WHERE THE CAUSE OF ACTION AROSE
Where the cause of action arises must be ascertained with reference to the rule that in the absence of a special agreement an obligation must be performed at the place at which the contract was entered into.
Haniffa Vs.Ocean Accident and Guarantee Corporation Limited. (35 N.L.R. 216)
Under the Roman Dutch Law, a creditor is obliged to seek out the debtor.
Concannon Vs. Vanderpoorten (65 N.L.R. 538)
Even if the residence of the Corporation is not distinctly and clearly averred, it is no ground to reject the plaint or dismiss the action, when the plaintiff-appellant has averred the principal place of business at the mentioned address as within the jurisdiction of the court.
The true definition of ‘cause of action’ is the act on the part of the defendant which gives the plaintiff his cause of complaint.
The cause of action arises at Kollupitiya where the decision to transfer complained of was made and from where the letter was issued transferring the defendant.
Somasiri Vs. Ceylon Petroleum Corporation (1992 (1) S.L.R. 39)
In an action founded on an account stated there must be some antecedent liability or some previous transaction with reference to which an account is stated and in such case the plaintiff is suing upon a new contract upon a new cause of action which is independent of his liability to pay for goods sold and delivered.
To an action on an account stated the law applicable is the Roman Dutch Law according to which the creditor must seek out the debtor.
Chidambaram Nadar Vs. Elasto Ltd. (1994 (2) SLR 325)
OTHER LIMITATIONS
An action cannot be prosecuted in an inferior court with direct object of setting aside a decree of a Superior Court.
Buyzer Vs. Eckert (13 N.L.R. 371)
Where in an action for ejectment, a Court has jurisdiction over the subject matter but there has been non compliance with the procedure prescribed as essential for the exercise of jurisdiction, the defect can be waived by consent of parties.
Thomas Vs. Bawa (46 N.L.R. 215)
In order to ascertain whether an action is within or beyond the pecuniary jurisdiction of a court it may be necessary to examine not only the plaintiff’s claim but also the defendant’s answer to it.
The plaintiff instituted action in the Court of Requests praying for damages and an order of ejectment against the defendant in respect of certain premises which were of the value of over Rs.300. The defendant pleaded that he was tenant under the plaintiff and, in the alternative, that the court had no jurisdiction to try the action as the value of the subject matter of the action exceeded Rs.300. The Commissioner rejected the defence of tenancy as false and gave judgement for the plaintiff.
Court held:- That as the substance of the dispute was whether the defendant was the tenant under the plaintiff or a bare licensee the court of request had jurisdiction to try the action.
Devasagayam Vs. Azeez (57 N.L.R. 19)
The district court lacks the jurisdiction where the owner of a paddy field seeks to have his tenant cultivator ejected from it.
Thilakeratne Banda Vs. Kalubanda (1993 (1) S.L.R. 95)
1.In terms of section 14 of the Conciliation Board Act there was a condition precedent for the Court to have jurisdiction, but as regards section 56 of the Debt Conciliation Ordinance there is no such condition precedent attached to it, but there is an absolute bar to jurisdiction.
2.The want of jurisdiction is patent and not latent, objection to jurisdiction can be taken at any time.
“In such a case it is, in fact, the duty of Court itself ex mero motu to raise the point even if the parties fail to do so.”
Baby Vs. Banda (1999 (3) S.L.R. 416)
The plaintiff-respondent (the plaintiff) was a manufacturer and exporter of ceramic tiles and the defendant-appellant (the defendant) was the licensed shipping agent of the vessel MV Falak. The defendant obtained from the Central Freight Bureau shipping space for the plaintiff on the said vessel sailing in July 1979 for approximately 340 metric tons of ceramic tiles. Thereafter, on the invitation of the defendant 333-31 metric tons of ceramic tiles belonging to the plaintiff were loaded in MV Falak. Soon thereafter the plaintiff became aware that the vessel was incapable of moving on its own steam and was under arrest in consequence of an order made by the Admiralty High Court of Colombo. The plaintiff promptly moved the High Court and in consequence of an order obtained from Court, managed to get the cargo off loaded from the vessel. The plaintiff claimed that the operation of off loading cost him Rs. 333,310/. The plaintiff alleged that at the time accepted for loading the defendants were aware that the ship was under seizure on a Court order and that its agents and servants fraudulently or negligently failed to notice that fact to the plaintiff. The plaintiff filed an action in the District Court and obtained judgment for the recovery of the sum of Rs. 333,310/-. The action was filed on the 13th July 1979 after the Judicature Act No. 2 of 1978 came into force on 2.7.1979 and before Admiralty Jurisdiction Act No. 40 of 1983 was brought into operation on 1.11.83.
Dheeraratne J. held that,
(i) the High Court sitting in the Judicial Zone of Colombo had admiralty jurisdiction during the period between 2.7.79 and 31.10.83 in terms of section 13 (1) of the Judicature Act read with section 3 (2) of the Administration of Justice Law No. 44 of 1973 which had not been repealed by the AJL and which kept in force the Admiralty Rules of 1883.
(ii) section 13 (1) of the Judicature Act does not confer exclusive jurisdiction on the High Court in Admiralty matters. In England an aggrieved party may institute proceedings in the Queens Bench Division in respect of certain matters within admiralty jurisdiction. Similarly, the District Court had concurrent jurisdiction to hear and determine the plaintiff’s action which entailed consideration of a contract of carriage of goods in a ship. This view is supported by the wording of section 19 of the Judicature Act.
M.A. Razak & Co. Ltd. Vs. Lanka Walltiles Ltd.(2000 (1) S.L.R. 1)
The plaintiff-appellant instituted action in the High Court of the Western Province as a share-holder of the 5th defendant-respondent Company, praying inter alia, for a declaration that four agreements entered into by the 5th defendant-respondent with Mitsui Company Ltd. Japan, Taiser Corporation of Japan and one Amaraskera (the 1st, 2nd and 4th defendants-respondents) for the payment of certain monies to the 5th defendant-respondent were null and void, not binding and were unenforceable against the 5th defendant-respondent. In filing the said action the plaintiff invoked the jurisdiction conferred upon the High Court by section 2(1) of the High Court of the Provinces (Special Provisions) Act, No. 10 of 1996 read with item (1) of the First Schedule to the Act.
The High Court Judge granted enjoining orders which were also sought by the plaintiff, but on 31.3.98 refused the plaintiff’s application for interim injunctions, holding that he had no jurisdiction in respect of the action; but he did not dismiss the action. Having realised it the Judge proceeded ex mero motu to dismiss the plaint on 27.8.98. The plaintiff challenged both orders in two separate proceedings (i) a leave to appeal application in the Supreme Court (ii) a notice of appeal in the High Court followed by a petition of appeal to the Supreme Court. Counsel for the 1st and 2nd defendants took a preliminary objection that the plaintiff could not proceed with both matters but must first opt which one he wished to pursue and abandon the other.
Fernando J. held that,
(i) taking into consideration the Sinhala text of item (1) of the First Schedule to the Act which must prevail over the English text in view of an inconsistency and the provisions of sections, 7, 8, and 9, a wider construction should be given to item (1). Accordingly, it is not limited to actions for the recovery of a debt exceeding the prescribed amount but includes an action which “relates to” or “involves” such a debt. Therefore, the plaintiff’s action which is for the annulment or denial of a debt is within the jurisdiction of the High Court, conferred by item (1).
“Even if there had been some ambiguity.............. the wider interpretation must be preferred.”
(ii) sections 7 to 9 indicate that the jurisdiction of the High Court (a) is not exclusive in some respects, and (b) is wider than section 2(1) and the First Schedule suggest. “Accordingly, section 8 gives the District Court competence to dispose of any claim in reconvention even though it involves a matter beyond its jurisdiction. Where an action, which should have been filed in the High Court, is filed in the District Court, section 9 compels transfer to the correct Court,...................... But the 1996 Act makes no provision for the converse case, where an action that should have been filed in the District Court is filed in the High Court; expressio unius, exclusio alterius, and so the inference would be that the transfer to the District Court was not permissible.”
(iii) section 7, considered in the context of section 9 impliedly confers on the High Court jurisdiction to entertain and determine certain actions which otherwise would have been within the exclusive jurisdiction of the District Court subject to the power to deny the successful plaintiff his costs, unless the Court chose to exercise its discretion in his favour.
(iv) on the preliminary objection- “.................... it has long been recognized that it is the clear right of every litigant to invite the Appeal Court to consider on a final appeal any interlocutory decree (or order) even if he does not directly challenge it at the time when it was made.
Cornel & Company Ltd. Vs. Mitsui and Company Ltd. (2000 (1) S.L.R. 57)
The petitioner obtained an ex-parte judgment against the respondent Company (the respondent) from the High Court of England for damages for the publication of an alleged defamatory statement published in a newspaper printed by the respondent and distributed in England by an English Company. The respondent did not appear or subscribe to the jurisdiction of the High Court of England. The respondent was not ordinarily resident in the United Kingdom. Thereafter, the petitioner sough to enforce the judgment in Sri Lanka under the Reciprocal Enforcement of Judgments Ordinance by registering it under section 3(1) of the Ordinance on an order of the District Court of Colombo. The respondent objected to the jurisdiction of the Court to register the judgment on the ground that section 3(2)(b) of the Ordinance prohibits registration inter alia, if the Judgment-Debtor was neither carrying on business nor ordinarily resident within the jurisdiction of the original Court.
S.N. Silva C.J. held that, in view of the denial by the respondent the petitioner should have led evidence to satisfy the Court that the respondent was carrying on business in the United Kingdom. The petitioner had failed to discharge that burden.
Prins Gunasekera Vs. The Associated Newspapers of Ceylon Ltd. (2000 (3) S.L.R. 122)
The plaintiff-respondent sought and obtained an enjoining order preventing the defendant-petitioner from using or disclosing directly or indirectly a technology described as scientifically optimized process protocol which is said to be used in the manufacture of the plaintiffs production - “Samahan,” in producing, launching, selling or marketing, offering for sale the product called “Suvane” and restraining the defendant-petitioner from using or stimulating either directly or indirectly get up, design, packaging, marketing and other means which bears similarity or resemblance to that of the plaintiffs in marketing “Suvane.”
On leave being sought the defendant-petitioner challenged the jurisdiction of the District Court, Colombo to entertain the plaintiff’s action.
Nanayakkara J. held that, section 2 (1) of Act No. 10 of 1996 has empowered the Minister to nominate any High Court to exercise exclusive jurisdiction in regard to matters stipulated in the 1st schedule of the Act.
The minister is also empowered under section 2 (3) to nominate the High Court of the Western Province to exercise the jurisdiction in respect of matters referred to in the 2nd schedule to the Act.
The Minister has by Gazette Notification No. 943/12 dated 1.10.96 nominated the High Court of the Western Province in terms of the said Act to exercise the jurisdiction in respect of the matters stipulated in the said schedule.
Tropical Herbs Pvt. Ltd. Vs. Link Natural Products Ltd. (2001(3) S.L.R. 141)
Since the learned High Court Judge who heard this matter appears to have expressed a concluded opinion on the merits of the case, it is desirable that the case be heard by another Judge. Under the provisions of the High couts of the Provinces (Special Provisions) Act No. 10 of 1996 every High Court Judge of the Western Province sitting in Colombo has jurisdiction to hear cases relating to commercial matters.
Ceylon Tea Marketing Ltd. Vs. CTP Pre Packed Exports (Pvt.) Ltd. (S. C. Appeal No. 118/97, S.C. (H.C.) L.A. No. 3/97, H. C. (Civil) No.8/96(3), D.C. Colombo No. 4545 / Spl,C.A. Minute dated 12.01.2001, 1999 B.L.R., page 42, B.A.S.L. News Letters, April, 2000, page 5).
The plaintiff- appellant, the Mercantile Credit Ltd and the defendant-respondents entered into a hire-purchase agreement in which the Mercantile Credit Ltd was described as the owner of the vehicle referred to therein. Clause 25 thereof stipulated that the agreement is deemed to have entered into at the place where it had been signed by the owner.
The preamble to the contract described the owner as the, Mercantile Credit Limited. Therefore it is observed that the owner as disclosed in the agreement is the Mercantile Credit Limited and the registered office is at Colombo 1. The two witnesses who had signed on behalf of the company were employees at the head office.
The 1st defendant-respondent in his testimony sought to make out that all the documents were signed at Negombo and all the payments namely the first initial payment and the 7 installments were effected at Negombo. However there was no material placed before the Court to establish that the initial payment and the other installments were made at Negombo. The letter of demand was sent from Colombo and the correspondences by the 1st defendant-respondent were addressed to Mercantile Credit Limited, Colombo 1. Therefore the agreement was entered into at Colombo.
In terms of section 9 of the Civil Procedure Code jurisdiction in an action also depends on the question where the cause of action arose. The cause of action in this case is the breach of the contract entered into between the plaintiff-petitioner and the defendant-respondents. The agreement stipulates that all payments must be made in Colombo. Therefore a breach of payment constitutes a cause of action for which action could be instituted.
Mercantile Credit Limited Vs. Liyanage Titus Perera (C.A. No. 553/91(F), D.C. Colombo No. 5698/ M.H.P., C.A. Minute dated 31.8.2001)
The High Court of the Provinces (Special Provisions) Act No. 10 of 1996 was enacted to empower the Provincial High Court to exercise jurisdiction in respect of certain civil matters. The first schedule to the Act specifies that such jurisdiction shall be exercised in relation to actions where the cause of action has arisen out of commercial transactions. The Minister has in terms of section 2(1) of the Act appointed the High Court of the Western Province and in terms of section 2(2) (a) the High Court of the Western Province sitting in Colombo will exercise that jurisdiction.
Where an application has been made to the High Court for the enforcement of an arbitral award, an appeal lies to the Supreme Court in terms of section 37 of the Arbitration Act on a question of law with leave.
Vanik Incorporation Ltd. Vs. L.J. Silva (S.C. Appeal No. (C.H.C) 27/98, Spl. L.A. No. H.C. 5/98. (Civil) 10/97/ ARB, S.C. Minute dated 24.08.2000.)
The District Judge in a partition action delivered judgement and entered an interlocutory decree on the basis of a settlement entered into between some of the parties. The Court of Appeal allowed the revision application to set aside that judgement and interlocutory decree by holding that, the duty of the Judge in a partition action is to ascertain who the actual owners of the land are and it is an imperative duty of the Court to fully investigate and decide on the title of each party of the action on evidence and not on any admission.
P. D. M. Kularatne Vs. M.G. Ariyasena (C.A. No. 605/97, D.C. Kandy No. 12786/P, B.A.S.L. News Letter, April 2001,page 5, 2001 B.L.R., page 6)
The plaintiff-respondent instituted an action, inter alia, for ejectment of the defendant-petitioner from the premises in suit.
After the plaintiff-respondent’s evidence the defendant-petitioner sought to formulate three issues which were based on the value of the action and the jurisdiction of the Court to entertain the respondent’s case.
The District Court rejected the additional issues.
It was contended that the action cannot be maintained without first obtaining a certificate of non-settlement from the Mediation Board.
Nanayakkara J. held that,
(i) absence of a certificate does not create an absolute bar to the institution and the maintenance of an action even where the value of the action is less than Rs. 25,000.
(ii) it only creates a latent want of jurisdiction as opposed to total lack of jurisdiction or patent want of jurisdiction, where there is a latent want of jurisdiction it can be validated by the conduct of parties, such waiver, acquiescence and inaction unlike in the case of total or patent want of jurisdiction, no such conduct will confer jurisdiction on the Court.
Rodrigo Vs. Raymond (2002 (2) S.L.R. 78)
(i) The relevant time of residence and jurisdiction were to be ascertained as at the time of filing action. The fact that the respondent-respondent had changed its office subsequent to the filing of the action, to another premises, should not have been taken into consideration.
(ii) Prior to the enactment of Administration of Justice Law No. 44 of 1973, Colombo 4, 5, 6 as well as Colombo 3 were within the territorial limits of the District Court of Colombo.
(iii) Thereafter Grama Seva Niladharis Divisions of Wellawatte and the Police Station area of Bambalapitiya in the G.S. Nildharis Division of Kollupitiya in the administrative District of Colombo fell within the territorial limits of the District Court of Mt. Lavinia (Gazette extraordinary 43/3, 2.7.1979).
(iv) The relevant gazette notification should have been examined and proper evidence led in Court to come to the conclusion as to whether the premises fell within the territorial limits of the District Court of Mt. Lavinia or not.
(v) With no such finding, the Court should not have proceeded to give its order on the basis that the defendant was a resident elsewhere (i.e. at an address other than that mentioned in the caption to the plaint).
Jayamaha Vs. Shabra Unico Finance Ltd. (2001 (3) S.L.R. 321)
Action was instituted in the High Court of Colombo invoking its admiralty jurisdiction to recover a certain sum and arrest of the ship as security in respect of detention due to the plaintiff-respondent. After the evidence was concluded the High Court Judge was elevated as a Judge of the Court of Appeal. On an application made for a trial de novo, the High Court dismissed the application for trial de novo, stating that the whole case rests on documents.
On leave being sought-
Kulathilaka J. held that;
(i) The Law relating to Admiralty matters is contained exclusively in the Admiralty Jurisdiction Act and the Rules set out in the Government Gazette No. 672/7 of 24.07.1991.
(ii) Section 12 provides that where there is no provision or inadequate provision in the Act, the Admiralty Court shall have the power to make such order/directions for which the Court exercising admiralty jurisdiction in England had power to make.
(iii) If the Act is silent and if there is no provisions in the Law of England for de novo trials specially when the trial has been concluded, it is for the Judge of the Admiralty Court to use his judicial discretion and decide whether an application for a trial de novo should be allowed or not.
(iv) The evidence rests mainly or if not wholly on documents and as such demeanour and deportment of the witness will have no bearing on the adjudication of the case.
M.V. “Ocean Envoy” Vs. Al-Linshirah Bulk Carriers Ltd. (2002 (2) S. L.R. 337)
The plaintiff complained that the defendant had issued 5 cheques and the cheques were dishonoured by the bank. The plaintiff resided in Colombo, the transaction took place in Colombo, the defendant resided in Nuwara Eliya, the trial judge granted leave unconditionally. It was contented that the cheques were drawn on banks situated outside the jurisdiction of the District Court of Colombo and therefore the District Court of Colombo has no jurisdiction
Held that,
In the absence of express agreement as to the place where the plaintiff is to be paid, the English law will apply. Accordingly as to the place of payment, the debtor must seek out the creditor in the absence of an express agreement with regard to payment. The cheques were issued from the banks at Nuwara Eliya, Hanguranketha and Padiyapalalla, payments were to be made in Colombo, the plaintiff resides in Colombo and the cheques were dishonoured in Colombo. It is the District Court of Colombo which has jurisdiction.
Sri Lanka Co-operative Society Vs. Susai (2009 (1) S.L.R. 67)
Jurisdictional objections are required to be taken at the first opportunity, the failure of which would constitute acquiescence to jurisdiction of the court.
Gunatilake Vs. Sunil Ekanayake (2010 (2) S.L.R 191)
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