011-NLR-NLR-V-06-VEERAVAKU-v.-SUPPRAMANIAN.pdf
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1002.July 2,
VEERAVAKU v. SUPPRAMANIAN.
C. B., Colombo, 20,085.
Action in ejectment—Claim in reconvention in excess of jurisdiction of Court of
Bequests—Motion for transfer of case to District Court—Courts Ordinance,s. 81—Civil Procedure Code, ss. 76 (e), 196, and 819—Discretion ofSupreme Court.
Where the plaintiff raised in the Court of Requests an action in eject-ment, and the defendent claimed the right to remain in possession of theleased premises until the sum of Rs. 2,584 advanced by him to theplaintiff was liquidated by the accrual of rent; and where the defendantmoved the Supreme Court, under section 81 of the Courts Ordinance,that the case be transferred from the Court of Requests of Colombo tothe District Court of Colombo, on the ground that the claim in recon-vention was in excess of the jurisdiction of the Court of Requests,—
Held, that the Supreme Court had a discretion as to the transferenceof a case on account of want of jurisdiction, and that as the plaintiff'sclaim for possession was urgent,- and an order of transfer to the DistrictCourt would involve delay in the trial of the case there, there was nojustification for allowing the defendant's motion.
O
N the 17th June, 1902, Walter Pereira, on behalf of thedefendant, moved the Supreme Court that the above action be
transferred, under the provisions of section 81 of the Courts Ordi-nance, from the Court of Requests of Colombo to the DistrictCourt of Colombo. The facts of the case appear in the followingjudgment.
Jayawardene was heard for the plaintiff, respondent.
Cur. adv. vult.
2nd July, 1902. Moncbeiff, A.C.J.—
The plaintiff sued the defendant in ejectment. He also claimeddamages because the defendant had remained in occupation afterdue notice to quit. The defendant pleaded that he had, in goodsand in other ways, advanced money to the plaintiff to, the amountof Rs.- 2,584, and he claimed the right to remain in possession ofthe leased premises' until that amount was liquidated by theaccrual of rent. He also claimed in reconvention that the sumdue to him should -be paid to him by the plaintiff in settling themerits of the action.
The defendant applied, under section 81 of the Courts Ordinance,that the action might be transferred to the District Court, on theground that the amount at issue under reconvention was in excessof the jurisdiction of the Court of Requests. On the other hand,it was urged that in this case, the action being for ejectment and
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not for rent (.there being no rent due), the defendant could notclaim in reconvention, because his claim had no relation to theclaim of the plaintiff, and could not be adjusted with reference toit. Some colour is given to .this contention by sections 195 and819 of .the Civil Procedure Code, which look as if the intention ofthe Legislature was that a claim in reconvention should be a claimwhich could be adjusted with the plaintiff’s chum. It is, however,declared in section 75 (e) of the Civil Procedure Code to be across-action, .that is, a separate action independent of the plaintiff ’saction; and in the Code I find nothing to indicate that it is to bein any way related to the plaintiff’s claim. It is perhaps unfortu-nate that there does not appear to be any provision giving thisCourt a discretion with regard to the admission of a claim inreconvention.
It would appear from a passage in Voet’s Commentaries on thePandeets (5, 1. 86) that there are some applications to which aclaim in reconvention cannot be put forward by the defendant-He is of opinion that there are probably cases in which somethingis required which is not properly the subject of an action, where,as he puts it, imploratio non est actionis loco, where the petitionis not in the nature of an action; and he adds precision .to thisopinion by saying cum reconventio precedentem requital conven-tionem, conventio autem judicialis non sit, ubi nihil ab adversariapetitum est, nullave actio institute, i.e., where there is noconvention there can be no reconvention. It cannot be said thereis no convention in this case; the plaintiff’s proceeding is anaction founded upon contractual relations, and the defendant iswithin his right in bringing forward fiis claim in reconvention.At the same time this Court has a discretion under section 81of .the Courts Ordinance as to toe transference of cases on accountof want of jurisdiction, and following the principle, which I thinkis a correct principle, .that inasmuch as in this case the plaintiff’sclaim is for possession, and therefore is urgent, and inasmuchas to order a transfer of toe case to the District Court wouldput it at the bottom of toe list in that court, toe delay wouldbe unfair to the plaintiff. I do not think I should be justified inordering a transfer. The case will therefore proceed in so faras it can proceed in the Court of Requests.
1009.
July t,
Mohcbeott
A.C.J.
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