029-SLLR-SLLR-2010-V-2-S.-V.-OBEYSEKERA-AND-OTHERS-vs.-J.-P.-OBEYSEKERA-JNR-AND-OTHERS.pdf
414
Sri Lanka Law Reports
[2010] 2 SRI LR.
S. V. OBEYSEKERA AND OTHERS VS.J. P, OBEYSEKERA (JNR) AND OTHERSCOURT OF APPEALSTHYA HETTIGE, J. (P/CA)
GOONERATNE, J.
CA 963/2008 – CA 967/2008 (TR)
DC ATTANAGALLE 520/L, 519/L, 518/1, 517/LCA 966/2008 (TR)
DC MT. LAVINIA 2425/07LJUNE 19, 2009
Civil Procedure Code • Section 10 – Judicature Act 2 of 1978 •Section 46 (1) d • Transfer of cases – Expedient? – Transfer •Balance of convenience?
Defendants – petitioner made application to transfer 5 D.C. Attangaliecases and 1 D. C. Mt. Lavinia case to Colombo District Court – it wascontended that the plaintiff and all the defendants are residing withinthe territorial jurisdiction of the District Court of Colombo, and thecauses of action pleaded are similar in terms and the relief prayed forare same except it relates to different properties and different quantumof damages.
The respondents contended that, the application does not fall withinthe meaning of expedient as stipulated under Section 46 (1) d – insteadit would lead to more inexpedient situation, and scheme of Section 46is not meant to transfer cases on the ground of mere inconvenience oflitigants.
Held
The applications are made in terms of Section 46. The transferapplications in terms of Section 10 of the Civil Procedure Codeshould be decided on a balance of convenience.
Per Anil Gooneratne, J.
“Decision to transfer is not based on convenience but it is for thereason that it would be expedient to transfer in the best interest ofjustice”.
CA
415
S. V. Obeysekera And Others vs. J. P, Obeysekera (Jnr) And Others
(And Gooneratne, J.)
Per Anil Gooneratne, J.
“I wish to add that the Court decide to transfer cases not in flimsyor light grounds. Expedient to do so would also mean fit or proper.A common question of fact and law and to avoid a multicipalityin trials as well as conflicting documents would be the reason totransfer all the applications to one original Court.
APPLICATION to transfer cases to one Court.
Cases referred to:
Somawathie vs. Danny – 76 NLR 751
In Ranawatte – 68 NLR 211
In Re Sivasubramaniam – 1980 – 2 Sri LR 68
Romesh de Silva PC with Kushan D. Alwis and M. E. Wickremasinghe fordefendant-petitioner.
Wijayadasa Rajapakse PC with Dasun Nagasteruia for plaintiff-respondents.
Cur.adv.vult
July 17th 2009
ANIL GOONERATNE, J.
Applications have been made to this court to transferthe following cases to the District Court of Colombo, by theDefendant-Petitioners named in the caption to the fiveapplications.
D. C. Attanagalla 520/L
D. C. Attanagalla 518/L
D. C. Attanagalla 519/L
D. C Attanagalla 517/L
D. C. Mt. Lavinia 2450/07/L
It is pleaded in all these applications that the Plaintiffand the Defendants in all the above cases are resident within
416
Sri Lanka Law Reports
12010] 2 SRI L.R.
the terrirotial jurisdiction of the District Court of Colombo,but the properties described in each of the plaints filed in therespective District Courts are within the jurisdiction of theabovementioned courts. It is further averred that the causesof action pleaded in all the above actions are similar in terms,and the relief prayed for in all the above actions are the sameexcept it relates to different properties and different quantumof damages.
In support of the transfer applications the followingmatters are pleaded inter alia in all the applications beforethis court.
The Defendants plead that the evidence to be led in eachof the aforesaid actions are similar.
The Defendants plead that the issues of law in each of theaforesaid actions are very similar if not identical.
The Defendants plead that it is a waste of time andexpense of all parties to conduct 7 trials in three differentCourts involving similar issues, similar evidence andsimilar questions of law.
The Defendants plead that it is a waste of valuablejudicial time and resources to cover the same groundin three different Courts involving similar evidence andsimilar issues and similar questions of law.
The Defendant plead that in the aforesaid circumstancesit is expedient that sill 7 trials be conducted in the DistrictCourt of Colombo and if possible consolidated.
Plaintiff-Respondent on the other hand oppose a transferof the said cases and move for dismissal of these applicationsin the objections filed in this court. In the objections it ispleaded inter alia that:
CA
S. V. Obeysekem And Others us. J. P, Obeysekera (Jnr) And Others
(Anil Gooneratne, J.)
417
the parties to the actions are not identical as parties arevaried from case to case.
the evidence to be taken in one case cannot be adopted inanother case.
even if the cases are transferred to one court all the trialscannot be taken up before one Judge and shall be takenup before different Judges.
In the above circumstances, this application does not fallwithin the meaning of expedient as stipulated in section46(1) (d) of the Judicature Act No. 2 of 1978, instead itwould lead to more inexpedient situation.
The scheme of section 46 of the Judicature Act isnot meant to transfer cases on the ground of mere
convenience of litigants.
At the hearing of this application the learned President’sCounsel on either side expressed the view and both of themwere in agreement to the issue which has to be tried of aforged power of Attorney being made use of to execute severaldeeds in all the aforesaid cases.
In fact on an examination of the several plaints filed ineach of abovementioned cases it is evident that it is pleadedthat forged power of Attorney bearing No. 1493 of27. 10.2000in all cases being made use of to execute several transfers,and in the plaints it is averred that a cause of action hasaccrued to the plaintiff to:
obtain a declaration of title to the property described inthe schedule to the plaint
eviction of the defendants
to have declared a forged power of Attorney bearingNo. 1493 of 27. 10. 2000
418
Sri Lanka Law Reports
[201012 SRI LR.
to declare the respective transfer deed a nullity in each of
the plaints.
damages etc. (vaiy from case to case)
It is also apparent that the relief prayed for are basedon the above and several causes of action are similar andthe parties in all the above mentioned District Court,Attanagalla cases are the same. In the District Court ofMt. Lavinia Case (2425/07/L) only the 1st to 3rd Defendantsare the party Defendants, in that case, and the 4th defendantnamely K. W. Rajakaruna in all the Attanagalla cases is nota party Defendant in the District Court of Mt. Lavinia case.
I have been able to gather this information from the materialand draft files submitted to the Registry of this court alongwith the several dockets.
What is important and significant in all the actions filedin the District Court of Attanagalla and Mt. Lavinia is that theoriginal court in all the said cases need to decide the questionof forgery partaining to the above No. 1493 of 27.10.2000,power of Attorney (applicable to all cases). Then comes thecauses of action in each case and the relief claimed, betweenthe same parties, except in the District Court of Mt. Lavinia(2425) case, the 4th Defendant in the other cases does nothappen to be a party Defendant. 4th Defendant’s absencewould not make each case different from the other, by it’snature and character.
The applications before this court are made in terms ofSection 46 of the Judicature Act. The transfer applicationsin terms of Section 10 of the Civil Procedure Code should bedecided on a balance of convenience. Somawathy vs. Danny<*•Ratnawathie’s case121 However it is the view of this courtthat the Defendant-Petitioner has placed before this courtsufficient, relevant and indeal material to invite this courtto transfer the cases to a court in a particular jurisdiction.
CA
S. V. Obeysekera And Others vs. J. P, Obeysekera (Jnr) And Others
(Anil Gooneratne, J.)
419
Decision to do so is not based on convenience but it is forthe reason that it would be expedient to transfer in the bestinterest of justice, and avoid a multiplicity of actions, and aconflict of decisions.
I had the benefit of perusing the authourity made avail-able to court by either party. However before I refer to theseauthorities I wish to add that Section 46 of the Judicature Actenables this court, and gives wide powers to transfer caseswhen it is expedient to do so. The following authoritiesthough, relevant to other jurisdictions, if of much persua-sive value and demonstrate the principle to be followed andapplicable to transfer of cases which need to be considered asa yard stick to guide out Courts in the proper administrationof justice.
Mulla Civil Procedure Code – 14th Edition pg. 240
Where two persons file suits against each other indifferent Courts on the same cause of action. It was helddesirable that the suits should be tried by one and thesame Court (w). Where there are two suits in differentCourts which raise common questions of fact and lawand the decision in which are interdependent, it isdesirable that they should be tried together by the samejudge so as to avoid multiplicity in trial of the same issuesand conflict of decisions (x). It has likewise been held thatwhere different suits by different plaintiffs were filed indifferent Courts raising the same questions under sec.13 of the Pensions Act it was desirable that all of themshould be tried by one Court and that orders of transfershould be made for that purpose under Sec. 24(y). Anorder of transfer would also be made to prevent abuse ofthe process of the Court.
420
Sri Lanka Law Reports
[2010] 2 SRIL.R.
Halsbury Laws of England 4th Edition pg. 55 – para 64- 65
General power of transfer. The court’s power to transferproceeding from one court to another is a useful correctiveto ensure that proceeding, whatever began or whateverforum the plaintiff has initially chosen, should be dealtwith or heard or determined by the court most appropriateor suitable for those proceedings. When making orrefusing an order for transfer, the court will have regardto the nature and character of the proceedings, thenature of the relief or remedy sought, the interests ofthe litigants and the more convenient administration ofjustice, It is a discretionaiy power which will be exercisedhaving regard to all the circumstances of the case.
I wish to add that this court decided to transfer cases noton flimsy or light grounds. Expedient to do so would also meansfit or proper. Sivasubramaniam’s Case131. The petitioner’shave adduced sufficient grounds. A common question offact and law and to avoid a multiplicity in trials as well asconflicting decisions would be the reason to transfer all theapplications to one original court. Accordingly we make orderthat all the five actions instituted be transferred to beDistrict Court of Colombo in terms of sub paragraph (b) of theprayer to the several petitions filed before this court. Registrarof this court is directed to convey the order of this court, tothe relevant Registrars of the respective District Court, andthe Registrar of the District Court of Colombo. The learnedDistrict Judge of Colombo would decide to nominate orallocate the aforesaid cases and that the cases could be heardby a Judge of the District Court of Colombo.
SATHYA HETTIGE J. P/CA – I agree.application allowed.