Civil Procedure - I

ATTORNEYS-AT-LAW FINAL YEAR EXAMINATION

COMPILATION – RIKAZ RIFFARD

ATTORNEY-AT-LAW, LLB (HONS) (LONDON)
CONTACT – 0776601016
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SUBJECT AREAS

1. Procedures in a civil action

2. Action & cause of action

3. Jurisdiction

4. Transfer of an action

5. Parties

6. Recognized agents & Proctors

7. Institution of action

8. Service of summons

9. Filing of answer

10. Admissions & issues

11. Amendment of pleadings

12. Interrogatories

13. Witnesses & documents

14. Right to begin

15. Judgment & decree

16. Execution

17. Ex-parte trial

18. Drafting a plaint & answer

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1. PROCEDURES IN A CIVIL ACTION

The procedure of an action may be either regular or summary - Section 7 CPC

If the law is silent on the procedure one should follow the regular procedure – Section 8 CPC

Summary procedure is followed only when the law asks one to follow summary procedure, otherwise
regular procedure is followed.

Summary Procedure – Section 373 to Section 389

Regular Procedure – Section 39 (every action under regular procedure shall be instituted by presenting
a duly stamped written plaint to the court)

Jayawardena V Obeyasekera and 5 Others 2011 1 SLR 349 - Unless the operation and application of
the CPC is expressly prevented (eg. Debt recovery/ Hypothecary Actions) the regular procedure in the
CPC must be applied.

An Action must be filed under regular procedure where

(A) The CPC does not provide for summary procedure

(B) Any other law does not provide for summary procedure

(C) Where the law does not provide for any other procedure

The Default Procedure is the regular procedure.

Civil Procedure

Regular Procedure Summary Procedure (Sections 373 – 379 CPC)

Plaint Petition

Summons (Notice to the D that there is a case against him)

Answer (D answers the allegations)

Replication (Plaintiff files replication)

Exparte Trial/ Dismissal

Pre- trial steps

Trial

Judgement

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REGULAR ACTIONS

Matters to consider:

1. Identify the cause of action

2. Identify procedure

3. Identify Court

4. Identify Prescriptive Period – Divorce: none; Custody: none; Accident: 2 years; Defamation: 2 years;
Any action for damages: 2 years; Oral agreement: 3 years; Written contract: 6 years; Sale of goods: 1
year

5. Identify the parties to the suit. Two types of parties could sue or be sued i.e. natural persons and juristic
persons. Action may be brought against a company as it is a juristic person. Action against a partnership
should be brought against the individual partners as partnerships are not given recognition as juristic
persons. Action for or against the State should be instituted for or against the Attorney General and not
the relevant public officer (nominii officii) unless it is given corporate status i.e. actions against
corporations and statutory boards should be filed in their respective names.

Procedure to follow:

1. CPC Section 5 – accruing cause of action

2. Letter of demand to be sent wherever necessary

3. CPC Sections 23-30 and 39-51 – filing of proxy and plaint

4. CPC Sections 55-71 – service of summons to the defendant

5. CPC Sections 72-78 – filing of proxy and answer by defendant

6. CPC Sections 79 – filing of replication of plaintiff where there is a claim in reconvention

7. CPC Sections 80-83 – fixing the case for trial

8. CPC Sections 121 and 175 – filing of witness and documents list at least 15 days before the trial

9. CPC Section 146 – Recording of admissions

10. CPC Sections 146(a) – Section 149 – Framing of issues

11. CPC Sections 150-183 – Recording of evidence

12. Written submissions if necessary

13. CPC Sections 184-187 – Judgement

14. CPC Section 188 – Decree

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2. ACTION & CAUSE OF ACTION

Sec 5 of the Civil Procedure Code provides that a cause of action is the wrong for the prevention or
redress of which an action may be brought, and includes the denial of a right, the refusal to fulfill an
obligation the neglect to perform a duty and the infliction of an affirmative injury.

In Jackson v Spittle it was held that cause of action means a particular act on the part of the defendant
which gives the plaintiff a cause of complaint.

Cause of action is defined as a

(a) right in the plaintiff and

(b) the violation of that right by the defendant (Lowe V Fernando) – This is the underlying principle
in Civil Law.

Sec 36 of the Civil Procedure Code provides that a plaintiff may write in the same action, several causes
of action against the same defendant or defendants jointly, and any plaintiff having causes of action in
which they are jointly interested in against the same defendant or defendants may unite such causes in
the same action.

The proviso to Sec 36 CPC provides that if it appears to the court that such causes of action cannot be
tried and disposed of together, the court may, at any time before the hearing, order separate trials.

Sec 37 CPC provides that the defendant may apply to the court, at any time before the hearing, for an
order confirming that such causes of action can be tried and disposed of together.

Sec 38 CPC provides that if it appears to the court that such causes of action cannot be tried together,
then the court may order such cause of action to be excluded, and may amend the plaint accordingly.

In Don Simon Appuhamy v Marthelis Rosa it was held that the two causes of action were separate
and distinct and thus could not be tried together.

Prescription Ordinance

The Prescription Ordinance No. 22 of 1871 governs the whole field of jurisdiction of the Civil Courts of
the Island and only applicable to actions. (Writs are not prescribed by the ordinance/ Writ is not an action,
court will only look at undue delays)

Sec 6 of the Prescription Ordinance provides that action shall be instituted within 6 years from the date
of breach of partnership deed or written promise, contract, bargain or agreement, or other written security,
or the date on which the notice or bill was due, or the date of the last payment of interest thereon.

Sec 9 of the Prescription Ordinance provides that action for any loss, injury or damage may be instituted
within 2 years from the time when the cause of action accrued.

Sec 10 of the Prescription Ordinance provides that no action shall be maintainable in respect of any
cause of action not herein expressly provided for, or expressly exempted from the operation of this

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Ordinance, unless the same shall be commenced within three years from the time when such cause of
action shall have accrued.

Sec 12 of the Prescription Ordinance provides that acknowledgement takes a case out of prescription
when it is in writing.

Sec 15 of the Prescription Ordinance provides that there will be no prescription against the state and for
matrimonial actions.

Sec 44 of the Civil Procedure Code makes it clear that, if there is a bar on prescription, it is incumbent
that the plaintiff states in his plaint, the ground upon which exemption from prescription is claimed.

3. JURISDICTION

‘Jurisdiction’ refers to the power or competency to decide.

Sec 9 CPC - Actions shall be instituted in the court within the local limits of whose Jurisdiction :

a) Where the party, defendant resides

b) Where the land in respect of which the action is brought lies or is situated in whole or in part

c) Where the cause of action arises

d) Where the contract sought to be enforced was made

(a) a party defendant resides;

“party defendant” – Hassan v Peiris – means “any party defendant”.

“residence” – Vaidyalingam v Arunasalam – where he eats drinks and sleeps, the courts look for the
defendant’s intention to return;

Mendis v Perera – held that a place where a person has his family establishmen and home could be
regarded as his dwelling place.

(b) the land in respect of which the action is brought lies or is situate in whole or in part;

Appuhamy v Gunasekara – held that an action by a lessee compelling his lessor to accept rental can
not be considered as an action relating to land. Further, in such an instance, such an action should be
filed based on the agreement and more preferably where the agreement was made.

(c) the cause of action arises;

If the place of performance is mentioned in the contract, action could be filed under this heading.

Plesspol v Lady de Zoysa – parties entered into a contract in Colombo which was to be performed in
Kandy. It was held that action could be validly filed in Kandy District Court.

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(d) the contract sought to be enforced was made.

Dias v Constantine – plaintiff, a resident of Galle, entered into an agreement with the defendant from
Kaluthara to supply goods at Kaluthara. There was no express agreement regarding payment. The
plaintiff instituted action to recover the value of the goods in the Galle District Court. On the basis of the
English law principle that the debtor must seek out the creditor, it was held that the action was correctly
filed.

Ponnaiah v Kanagasaby – promissory note was silent regarding the place of payment and it was
decided that action should be filed where the plaintiff (creditor) resides.

Sowdoona v Abdul Muees – Gratien J stated that “performance of a contractual obligation must prima
facie be made where the obligation was contracted unless another place of performance has been
expressly or impliedly agreed upon”

A juristic person is a corporate body, or corporation.

In Blue Diamond ltd V Amsterdam V Rotterdam Bank NL 1993 2 SLR 249 it was held that a juristic
person cannot be sued on the basis of it being resident at a particular place.

In the case of Martin Silva V Central Engineering Consultance 2002 2 SLR 228 Court held that despite
the failure to effect the legislative clarification as spelt out in the Civil Courts commission report a liberal
interpretation is permissible to include a corporate body as residing at its registered office, where there
is no other place of business.

Somasiri V Ceylon Petroleum Corporation 1992 1 SLR 39 - Is the residence of the Defendant is not
distinctly averred it is not a ground to reject the plaint, if the principle place of the business is situated
withing the jurisdiction of the court.

Fernando V Standard Charted Bank 2011 2 SLR 126 - When a foreign organization engages in
business and operates from a place of business in Sri Lanka, the Principle place of business would come
within the meaning of residence in Section 9 of the Civil Procedure Code.

MORTGAGE BOND:

David Appuhamy V Perera 11 NLR 150 - A mortgage bond action based on immovable property must
be filed within the territorial limits of the court where the mortgage property is situated.

ACCIDENT:

Fernando V Ronald 75 NLR 231 - Cause of action arises where the accident occurred.

SPECIFIC PERFORMANCE:

Pelis Vs Silva 60 NLR - An action for specific performance of n agreement to sell a land was held not to
be an action in respect of land within the meaning of Section 9(b) CPC. 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.

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LEASE RENTAL:

Appuhamy V Gunasekera 2 NLR 155 - An action by a lessee compelling his lessor to accept rental
cannot be considered as an action relating to land since the claim is based on the lease agreement.

CHEQUES:

Sri Lanka Co-operative society V Susai 2009 1 SLR 67 - Jurisdiction in a case concerning a cheque
must be decided on English law principles of debtor seeking out the creditor.

Ranghamy V Kirihamy 7 NLR 357 - The plaintiff sued the defendant in the district court of Kandy. The
Defendants in this case were residents outside Kandy and the land itself was situated outside the
Jurisdiction of the Kandy DC. The District Court of Kandy was yet held to have had jurisdiction by reason
of the fact that the lease agreement was entered into in Kandy.

Pless Pol V Lady De Soyza et al 15 NLR 57 - The plaintiff and the defendants entered into a contract
at Colombo, which was to be performed in Kandy. The plaintiff alleging a breach of the contract by the
defendant, sued them for damages in the district Court of Kandy. HELD : District Court of Kandy had the
jurisdiction to entertain the action.

(If in a bank agreement, the agreement states that the money shall be released on demand at a
“Specific Location” then action must be filed in the DC having jurisdiction over the “specific
location”)

Cornel & Company V Mitsui and Company Ltd and ORS (2000)1SLR 57 - In deciding the jurisdiction,
one must also be conscious of the provisions of the High Court of the Provinces (Special Provisions) Act
No. 10 of 1996.

LITIGATION IN DISTRICT COURTS / COMMERCIAL HIGH COURTS

Writ Applications District Court Applications

1. Public Law Remedy 1. Private Law Remedy

2. Against Public Officers 2. Disputes between people

Kularathne V Gunapala Perera CALA 546/2002 - Somanwansa J An administration can only be

challenged by way of writ of certiorari and or mandamus in terms of Article 140 of the constitution in the
Court of Appeal and not in the District Court.

Supreme Court

Court of Appeal Civil Appellate High Court (Same as COA)

District Court District Court

(Before Amendment) (After the amendment of the CPC by Act No. 05 of 2006)

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Types of High Courts:

 Criminal High Court (Exercising Original Criminal Jurisdiction)

 Provincial High Court (For Writ Applications) (Introduced through the 13th amendment)

 Civil Appellate High Court (2 Judges must sit) (Appeals from the District Court)

 Commercial High Court

Civil Procedure regulates procedure with regard to private claims in the District Court and the Commercial
High Court. (Merchant Bank of Sri Lanka V Wijeyawardena SC Appeal 81/2010; 15.02.2112)

THE PREVIEW OF THE DISTRICT COURT UNDER THE CPC

The relief that can be granted by a district court in an action is spelt out Section 217 of the CPC.

This includes the power:

i. To pay money

ii. To deliver movable property

iii. To yield up possession of immovable property

iv. To grant, convey or otherwise pass from himself any right to, or interest in any property

v. To do any act not falling under any one of the foregoing heads; or it may enjoin that person

vi. Not to do a specified act, or abstain from specified conduct or behavior, or it may, without
affording any substantive relief or remedy

vii. Declare a right or status

Jurisdiction of the District Court:

1) Unlimited Jurisdiction in all civil, revenue, trust matrimonial insolvency and testamentary
matters and estates of persons with unsound minds and minors (Section 19 Judicature Act)

2) Any other matters where jurisdiction has been given to the District Court (Section 19 Judicature
Act)

3) Custody of persons (Section 20 Judicature Act)

4) Testamentary matters (Section 21 Judicature Act)

5) Injunctions (Section 54 Judicature Act)

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Limitations to the powers of the District Court:

The District court has no power to

(a) Grant injunctions, or specific performance against State or public officials (Section 24
Interpretation Ordinance)

(b) Grant declarations in respect of decisions of statutory bodies

(c) To make orders where a specific remedy has been provided by law.

Interpretation ordinance takes away some powers vested with the District Court through the Judicature
Act.

Harsha P De Silva V Attorney General CA Application 73/79 CA minutes - CA held that the District
Court is precluded from making an order against a public officer if the effect of making such an order
would directly or indirectly compel performance by the state.

Section 23 Interpretation Ordinance – No power to make a declaration against decisions of the

statutory authority.

Proviso – Can make an order or decree on payment of damages.

*Example - A Divisional Secretary cancels A’s permit. He has the power to do so through a statute. To
challenge this decision, A has to go to the Court of Appeal. (If the land is a state land) The DC cannot
nullify the order of the DS & make a declaration making A as the permit holder. (By going to the DC, A
would be indirectly asking the court to give an order favouring him.) Such matter should be taken to the
court of appeal by way of a writ against the decision of the public officer. DC does not have jurisdiction
over writ applications.

Paddy Marketing Board V Dissanayake - In view of Section 23 of the interpretation Ordinance, a court
exercising original civil jurisdiction is not to empower to entertain or to enter decree or make any order in
any action for a declaration of a right or status upon any ground whatsoever.

Attorney General V D.W. Abeyasinghe 78 NLR pg.361 - Tennakoon CJ Held “If a right is
unenforceable in the ordinary court of law, it is not one in respect of which even which a declaration can
be obtained. If it we otherwise, our courts would be inundated with declaratory actions in respect of
causes of actions that are prescribed in the hope that by obtaining a declaration from court the defendant
might be persuaded to do what the court cannot order him to do. It seems to me that in those cases in
which a declaration is prayed for and no substantive relief is asked merely because the substantive relief
if asked for, must necessarily fail, it cannot be entertained by our courts.”

Perera V People’s Bank 78 NLR 239 - Court has no jurisdiction to grant a declaration in a regular action
where such declaration is sought as a supervisory remedy to challenge the validity of a judicial or quasi-
judicial determination of a statutory body. The Remedy lies in invoking the supervisory jurisdiction of the
superior courts.

Ranasinghe V State Mortgage Bank 1980 2 SLR 11 - The original court cannot by means of a
declaration entertain what amounts to an appeal from decisions of inferior bodies.

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(SC had a different view) Ranasinghe V State Mortgage Bank 1981 1 SLR 121 - Court held that
District Court has the power to make a declaration despite Section 23 of Interpretation Act. The
Judgement was based on the fact that the bank did not have authority to make the resolution and
therefore the decision was void. (Additional Info – Don’t take the risk in going to the original court to
challenge the decision, go to the appellate court)

The Proviso to Section 23 Interpretation Ordinance states that:

One can go to the District Court to obtain Damages and not to challenge the decision of public officers.
Can enforce payment under a contract based on a gov. contract with a private entity.

To challenge a decision, a right court is the Court of Appeal (by way of a writ) and not the District Court

When there is a specific remedy provided by the law:

Hendrik Appuhamy V Pendrick Appuhamy 69 NLR 29 - It is undoubtedly good law where a statute
creates a right and in plain language gives a specific remedy or Appoints a specific tribunal for its
enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not
others.

COMMERCIAL HIGH COURT

The Commercial High Court was established under the High Court of the provinces (Special Provisions)
Act No.10 of 1996. This act provides for the CHC to exercise jurisdiction to hear and determine certain
Civil Actions.

Article 154(P) of the Constitution provides for the establishment of High Courts in the Island.

(Can go to the Supreme Court directly after a decision of the Commercial High Court)

The parliament enacted this enabling the high court to to exercise jurisdiction over some civil matters in
specifically identified areas.

These areas cover disputes in respect of high value commercial transactions and of the matters falling
into the categories such as litigation under the Intellectual Property Law and a few matters under the
Companies Act.

Schedule I

Section 2 of the High Court of Provinces Special Provinces Act:

Every High Court established for a province shall have jurisdiction to hear the following:

(a) Disputes arising out of commercial transactions

(b) Where the debt damage or demand is over 20 million rupees

(c) Where the defendant resides or the cause of action arose or the contract sought to be enforced
was made within the province of the court.

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(d) In the case of application or proceedings under the Companies Act No. 17 of 1982 the registered
office of the Company is situated.

Also included are :

(a) Proceedings under the Intellectual Property Act (vide first schedule)

(b) Proceedings under the Companies act

*Debt recovery matters are excluded through the schedule. Therefore, debt recovery actions above 20
million will still go to the District Court.

*It need not always be the recovery of Rs. 20 Mn or above, it can be regarding a transaction which
involves Rs. 20 Mn or above.

*There’s only one CHC in the Western Province which hears matters falling within the Western Province.

However, CHC of the Western province has exclusive jurisdiction in the following instances (can hear
even outside its jurisdiction)

Schedule II of the High Court of Provinces Special Provisions Act:

Exclusive Jurisdiction of the Commercial High Court of the Western Province:

1. All actions in which injunction against the registrar of companies or the securities and exchange
commission

2. All proceedings required to be taken in the District Court of Colombo under the Code of
Intellectual Property Act

3. All Appeals required to be made to the Court of Appeal under Section 17 of the Fair trading
Commission Act No. 1 of 1987.

Brunswick Exports LTD. V Hatton National Bank Ltd 1999 1SLR 219 - Item No. (1) of the First
Schedule manifestly embraces within its fold all banking transactions except actions instituted under the
Debt Recovery (Special Provisions) Act No. 2 of 1990

The Media upon which the plaintiff has instituted the action was a commercial transaction and therefore
action must necessarily stand removed to the High Court

Cornel and Company Limited V Mitsui and Company Ltd and ORs 2000 1 SLR 57 (READ) - Not
limited to actions for the recovery of debt exceeding 20 million but includes action which relates to /
involves 20 million.

Autralanka Exporters Pvt. Ltd V Indian Bank 2001 2SLR 156 - Appelate Jurisdiction in respect of
judgements and orders of the high court of the provinces (CHC) made in exercise of its civil jurisdiction
is vested exclusively with the supreme court.

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Merchant Bank of Sri Lanka V Wijeyawardena SC Appl 81/2010 15/02/12 - The expression “In the
manner provided for by law” brings in the provisions of the CPC in respect of invoking civil jurisdiction.
(CHC applies apart from jurisdiction)

Other laws relating to pecuniary and other limitations:

i. Mediation Board Act – Where the value does not exceed Rs. 500,000/-, action cannot be instituted
in the DC without first having referred the matter to mediation.

ii. Admiralty Jurisdiction Act - For civil cases relating to ships and admiralty, the CHC will have
jurisdiction no matter where the cause of action has arisen.

iii. Arbitration Act (Sec 5) – The ordinary jurisdiction of the DC will be ousted wherever an arbitration
clause is contained within the agreement which forms the basis of the action.

iv. Acts of Public Officers - Writ Application - CA

Sec 211 CPC provides that the Commercial High Court has the power to award costs against the plaintiff
for jurisdictional defects, and the fact that the court has no jurisdiction is not a bar to the exercise of this
power.

*Example: When a person receives a loan of Rs. 21 million from Bank of Ceylon (Anuradhapura branch),
the contract will state “where the loan shall be settled on demand”. When defaulted, the bank will send a
letter of demand. They would file an action based on the contract. In such a case, the plaintiff would be
Bank of Ceylon, Address – Head Quarters Colombo. But, the case will be filed in the DC of Anuradhapura
as the contract made mentions the place to settle (usually where the contract was made). In addition, it
also doesn’t matter even if the address of the plaintiff is mentioned as Bank of Ceylon Anuradhapura. It
can be cured by amending the plaint.

OBJECTION TO JURISDICTION

Navarathna Singham V Arumugam 80 2SLR 1 – After filing a plaint in a wrong court, if no objection is
taken, and if the matter is within the plenary jurisdiction of a court, the court will then have jurisdiction to
proceed on with the matter and make a valid order.

A defendant can object to the jurisdiction of the court under Section 9 of the CPC.

Section 39 of the Judicature Act – if the objection to the court’s jurisdiction is not taken at the first
instance, then the case can proceed at whichever court where the action was filed at.

Proviso – states that if no objection is made and both parties intentionally bring action in a court without
jurisdiction under Section 9, the judge can declare the proceedings null and void, (ex meri moto – The
court itself) (Dismissing a case ex meri moto means the judge declaring the case null and void on its
own)

*Example – X and Y are brothers living in Colombo. Rest of the siblings reside in Trincomalee and the
land at dispute is also in Trincomalee. But X and Y file an action in Colombo for their convenience. The
the judge can declare such a case as null and void.

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Ariyarathne V Premaratne 2006 SLR161 – the trial judge is presumed to know the local limits of his or
her jurisdiction.

Sec 47 CPC – if the action is instituted in a court not having jurisdiction, the plaint can bereturned to be
presented at the proper court. Date of filing will be the date the case is properly filed.

Sec 76 CPC - if the defendant decides to dispute an averment in the plaint as to the jurisdiction, he must
do so by a separate and distinct plea, traversing such averments (this has no application to patent lack
of jurisdiction).

Sec 636 CPC – it is the duty of the court to dismiss the action on this preliminary issue at the earliest
stage of action.

JURISDICTIONAL DEFECTS

Lack of competency of a court to hear a case.

Lack of competency may arise in one of two ways;
i. Patent lack of Jurisdiction
ii. Latent lack of Jurisdiction

PATENT LACK OF JURISDICTION LATENT LACK OF JURISDICTION

Lacking competence because of a failure to

A court may lack jurisdiction over the cause or
comply with such procedural requirements that
matter / over the parties
are necessary for the exercise of power.

Section 636 CPC

Example – Colombo HC hearing a case on land
Example – DC hearing a criminal / FR case / in Trincomalee (can be cured)
Injunctions against the state (cannot be cured)
Rodrigo V Raymond - Where there is a latent
Perera V Commissioner of National Housing lack of jurisdiction, it can be validated by the
- distinction was clearly made conduct of the parties, such as by waiver,
acquiescence or objection
Also known as total lack of jurisdiction / Also known as contingent want of jurisdiction /
defectus juris defectus triationis

Judicature has not given power. Action or Can be cured by the conduct / waiver / inaction
inaction will not help / acquiescence of parties

Judgement / Order will be declared void

SUMMARY:

 If the defendant intends to dispute jurisdiction he must include a separate plea. General denial is
insufficient – Blue Diamond LTD V Amsterdam Rotterdam Bank MV & Others.

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 If lack of jurisdiction is apparent, no burden is on the defendant. The trial judge is presumed to
know the local limits of his jurisdiction – Ariyaratne V Premadasa
 If no objection is taken, but if the matter is within the plenary juris of the court the court will then
have jurisdiction to proceed and make a valid order – Navaratne V Arumugam

4. TRANSFER OF AN ACTION

Sec 10 CPC – Application for transfer of action must be made before the case is taken up for trial. All
parties to the action must be noticed. Application must be made by way of an affidavit or a motion. The
Court of Appeal will conduct an inquiry where the parties have a right to be heard. If the court of appeal
is convinced that the case should be transferred it must allow the application.

Somawathie V Danny – court must consider the convenience of the parties

Sivasubramanium V Sivasubramanium – sufficient grounds must be urged to effect transfer under

Section 10

Judicature Act Section 46 - Whenever it appears to the Court of Appeal –

(a) that a fair and impartial trial cannot be had in any particular court or place; or

(b) that some questions of law of unusual difficulties are likely to arise; or

(c) that a view of the place in or near which any offence is alleged to have been committed may be
required for the satisfactory inquiry into or trial of the same ; or

(d) that it is so expedient on any other ground,

the court may order upon such terms as to the payment of costs or otherwise as the said court thinks fit,
for the transfer of any action, prosecution, proceeding or matter pending before any court to any other
court and accordingly in every such case, the court to which any such action, prosecution, proceeding or
matter is so transferred shall, notwithstanding anything to the contrary in this or any other law, take
cognizance of and have the power and jurisdiction to hear, try and determine such action, prosecution,
proceeding or matter, as fully and effectually to all intents and purposes as if such court had an original
power and jurisdiction.

Jayasinghe V Dassanayaka & Another 3 SLR 346 – Sec 10 of the CPC and Sec 46 of the JA empower
the Court of Appeal to transfer a case if a person apprehends threat to his life by reason of attending any
particular court which the person would attend with confidence and without fear of life to seek justice on
the causes pleaded.

Sivasubramaniam V Sivasubramaniam (1980) 2 SLR 58 - A party who seeks the transfer of a pending
action in court must adduce sufficient grounds to satisfy the CA that it is expedient to make order for its
transfer and in this context it meant expedient as fit and proper.

A transfer would not be ordered on light ground.

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5. PARTIES

LEGAL AND NATURAL PERSONS

Where there is no live defendant before court it has no jurisdiction to hear and determine the case.

Abeyasinghe V Abeyasekera 1995 1SLR 104 - Cannot file action against a partnership (Must mention
the names of the partners as a partnership is not a live defendant)

PLAINTIFF/ DEFENDANT

Natural persons:

Sec 476 CPC – minors or people with unsound mind cannot come before the law as it is even though
they are natural persons. They have to come through a next friend or guardian. They cannot go alone
before court.

Legal persons:

COMPANIES STATUTORY AUTHORITIES ATTORNEY GENERAL

Section 15 of the Companies Created by Law Sec 456 CPC – all actions by or
Act against the state shall be
instituted by or against the AG

Example – A & B Co. Example – Tourist Board, Tea When the public officer acts
Board, Rupavahini Corporation bona fide in the exercise of his
office the action should be filed
against the AG representing the
state not against the public
officer.

Words like body corporate, Suit against the public officer in

perpetual succession, may sue his personal capacity will be a
and be sued can be found in suit for tort or where the public
the statute. officer has acted mala fide.

Tourist Board Act section 3 - The Board shall by the name assigned to it by section 2 be a body
corporate and shall have perpetual succession and a common seal and may sue and be sued in that
name

Ceylon Tea Board Section 3.(1) - The board shall be a body corporate having perpetual succession
and a common seal and may sue and be sued in its corporate name.

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AGAINST WHOM SHOULD ACTION BE FILED

Section 456 CPC – All actions by or against the state shall be instituted by or against the attorney
general.

Where a public officer acts bona fide in the exercise of his office, any suite in respect of that act must be
filed against the AG as representing the state and not as against the public officer.

The only instance where a suit can be instituted against a public officer in his personal capacity is where
the suit is for tort or where the officer is deemed to have acted mala fide.

Singer Sewing Co V Bowes CWR 78 - Where a public officer acts bonafide in the exercise of his office,
any suit in respect of the act must be filled against the AG as representing the state and not against the
public officer.

Muttupillai V Bowes 17 NLR 453 - The only instance where a suit can be instituted against a public
officer in his personal capacity is where the action is for a tort or when the officer is deem to have acted
malafide.

WHEN IS THE STATE BOUND BY AN ACT OF A PUBLIC OFFICER

A public officer is defined in Article 170 of the Constitution as “A person holding any office udner the
republic”

Wijeyawardene V Director of Local Government 2004 1 SLR 179 - The Acts of public officers binds
the government only when he acts in the discharge of his duty within the limits of his authority or

In instances where that public officer has exceeded his authority, where the state has in fact or in law
directly or by implication ratified the said act

AG V Wijeyasuriya 47 NLR 385 at 392 - The acts of a Government officer bind the Government only
when he is acting in this discharge of a duty within the limits of his authority, or, if he exceeds that
authority, when the Government, in fact or in law, directly or by implication ratifies the excessThe state
would not ratify the act if a charge sheet has been issued or explanations have been called.

NOMINIE OFFICIO & EO NOMINEE

Nominee Officio:

Filing action against a public officer which is not a legal person.

The Land Commissioner, the Divisional Secretary, the Inspector General of Police are not legal persons
and therefore cannot be sued nomine officio (can’t file against a designation – absolutely prohibited)

*Example:

Mahesh Perera
Divisional Secretary correct
Dehiwala

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Divisonal Secretary
Dehiwala incorrect – not a legal person

In certain instances action could be filed against a public officer which has been expressly incorporated
by law.

Eg. Section 3 of the Public Trust Ordinance permits an action to be instituted by or against the Public
Trustee.

Section 456 – Action can be filed by or against the Attorney General.

An objection of this nature shall be taken up at the earliest possible opportunity by way of a motion.

W.A. Mendis and CO, V Excise Commissioner 1999 1SLR 351 – an objection of this nature should be
taken at the earliest possible opportunity by way of a motion.

Mohideen V Director General of Customs CA 784/98 – The failure to sue a legal/ juristic and or natural
person is a material defect which cannot be cured by amendment. The proper remedy would have been
to withdraw the plaint and file a fresh plaint.

*Example: NOMINE OFFICI

IN THE DISTRICT COURT OF COLOMBO

Kodithuwakku Archdioceses
No. 123 Kerewalapitiya Rd
Hendala
Wattala

Case No. 1234

Army Commander
Sri Lanka Army
Sri Lanka Army HQ
Colombo 12

 No case as there is no juristic or natural person as “Army Commander”

EO Nominee:

Filing action against a public officer in his personal capacity.

When the PO has acted within his official capacity, it has to be the AG.

Singho Mahattaya V Land Commissioner 66 NLR 94

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*Example: EO NOMINEE

IN THE DISTRICT COURT OF COLOMBO

Kodithuwakku Archdioceses
No. 123 Kerewalapitiya Rd
Hendala
Wattala

Case No. 1234

Lt. General A.B.C. Perera

Army Commander
Sri Lanka Army
Sri Lanka Army HQ
Colombo 12

 Will clear the initial hurdle of getting the case filed. However the person (A.B.C. Perera) will take
up the objection that he acted in his official capacity and the proper person to file the case against
is the Attorney General.

JOINDER OF PLAINTIFFS AND DEFENDANTS

Sec 11 CPC – (Joinder of parties) All persons may be joined as plaintiffs in whom the right to any relief
claimed is alleged to exist, weather jointly or severally, or in the alternative, in respect of the same course
of action. And judgement may be given for such one or more of the plaintiffs as may be found to be
entitled to relief for such relief as he or they may be entitled to, without any amendment of the plaint for
that purpose. But the defendant though unsuccessful, shall be entitled to his costs occasioned by so
joining any person who is not found entitled to relief, unless the court is disposing of the costs of the
action otherwise directs.

Don Simon Appuhamy et al V Marthelis Rosa 9 NLR 68 - Where two persons who were arrested and
charged together with the same offence in the same case and were acquitted, sued in one action for
damages for malicious arrest and malicious prosecution. HELD: That the cause of action accruing to
each was separate and distinct, and that the two causes of action should not have been combined, and
that the suit was bad for misjoinder of cause of action.

Thangammah et al Appellants and Kanagasabai et al Respondents 51 NLR 500 - If the contract is

joint, then there can be no objection to several joint contractors instituting a single action to enforce their
rights.

Ibrahim DIDI et al V Ali DIDI 13 NLR 181 - Several Co-owners joined in one action against another co-
owner, who appropriated all the rents of the common property without accounting to the other co-owners
for their respective shares. HELD - that the joinder of the co-owners in one action was not irregular.

Sec 12 CPC - (a group of co-owners can file action without joining some other co-owners in the action)
Where 2 or more persons are entitled to the possession of an immovable property as joint tenants or
tenants in common, one or more of them may maintain an action in respect of his or their undivided
shares in the property in any case where such an action might be maintained by all.

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Rockland Distilleries Appellant, And Azeez, Respondent 52 Nlr 490 - One Co-owner can institute an
action for damages caused to common property without joining the other co-owners either as defendants
or plaintiffs.

Sec 13 - (Substituted and added plaintiffs) If wrong plaintiff mentioned in the action is a bona fide mistake,
court can allow for the plaintiff to be substituted or added.

Sec 14 - (Naming or defendants) All persons may be joined as defendants against whome the right to
any relief is alleged to exist, wether jointly severally or in the alternative, in respect of the same cause of
action.

Darley Butler & Co. Ltd V Anoos and Others 2008 2 SLR 149 - When the defendants were sued on
their joint and several liability action has to proceed against the other defendant but no substitution can
be affected in the room of the deceased 4th defendant who was dead at the date of the institution of
action.

By substitution, one person is placed under another to do something. It is clear that to substitute a legal
representative another person should have existed – in the instant case when the 4th defendant was dead
at the date of institution of action, no substitution could be affected.

Court is always clothed with the jurisdiction to see whether it has jurisdiction to try the cause submitted
to it. Jurisdiction divides itself into three heads. In order to the validity of the judgement – the court must
have jurisdiction of the persons, of the subject matter and of the particular question which it assumes to
decide. If the court has no jurisdiction it is of no consequence that the proceedings had been formally
conducted for they are coram non judice (before a judge not competent or without jurisdiction)

Aiyampillai V Vairavanatha Kurrukel et al 16 NLR 231 - Plaintiff brought this action to recover the
value of 24 sheep which he alleges were killed at the same time by several dogs owned (not jointly) be
various persons and joined several owners as defendants in this [Link] : The defendants should
not have been sued in one action.

Lowe V Fernando et al 16 NLR 398 - That where a plaintiff claimed the entirety of a block of land on
one title and complained that the defendants were severally in possession of separate and defined
portions of it, it would be misjoined of defendants and causes of action to institute one action against all
the defendants for the recovery of the whole block, unless it could be shown that the defendants were
acting in concert in depriving the plaintiff if the possession of the entire block.

Don Alwis et al Appellants and Village Committee of Hiripitiya 54 NLR 225 - Where a plaintiff has
instituted action against a wrong party as the defendant the plaint cannot be subsequently amended so
as to have the proper person added as a defendant. In such a case the proper cause of action is for the
plaintiff to drop the action which has been wrongly instituted and commence a new action against the
proper person who should have been made the defendant.

Dr. Vinya Ariyarathne V Padmakulasuriya CA/LA/488/2003; 11.09.2004

Sec 16 - (numerous parties with common interest, one may sue or defend for all) Where there are
numerous parties having a common interest in bringing or defending an action, one more of such parties
may, with the permission of the court, sue or be sued, or may defend in such an action on behalf of all
parties so interested.

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But the court shall in such case give, at the expense of the party applying so to sue or defend, notice of
the institution of the action to all such parties, either by personal service or (if from the number of parties
or any other cause such service is not reasonably practicable, then) by Public advertisement, as the court
in each case may direct.

Ranasinghe V Nandanie Abeyadeera 97 3 SLR 401 - It is an established principle of law that the failure
to comply with Section 16 is a fatal irregularity. It is imperative for the plaintiff respondent to have issued
notice as contemplated under Section 16, if it were not so all members of the unincorporated body would
have to be brought before court. Section 16 has be promulgated with this in view so that out of a large
body of persons who form an unincorporated society, a particular number of persons would be nominated
to represent the entire body.

Felix Premawardena V Basnayake and Ors 2005 3SLR 205 - On an examination of the facts and
circumstances of this case, I am unable to agree with the order of the learned district judge in refusing
the application made by the plaintiff petitioner to comply with the provisions contained in Section 16 of
the Civil Procedure Code before the trial commenced. If the trial commenced without such notice then
certainly the failure on the part of the plaintiff petitioner to comply with the provisions of Section 16 would
be a fatal irregularity.
(You have to do it at the very earliest stage of the case)

Sugathananda Thera V Ajith Bodhinagoda and Ors 2006 3SLR 315 - Even an unregistered or
unincorporated Society can sue and be sue provided that the procedure as set out in Section 16 of the
Civil Procedure Code as followed.

Sec 17 - (Misjoinder not to defeat action) Misjoinder or non-joinder of parties shall not defeat an action.
Does not enable plaintiffs to join in respect of distinct causes of action.

Sec 18 – (striking off improper parties) The court may on or before the hearing, upon the application of
either party, and on such terms as the court thinks just, order that the name of any party, whether as
plaintiff or as defendant improperly joined, be struck out; and the court may at any time, either upon or
without such application, and on such terms as the court thinks just, order that any plaintiff be made a
defendant, or that any defendant be made a plaintiff, and that the name of any person who ought to have
been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in
order to enable the court effectually and completely to adjudicate upon and settle all the questions
involved in that action, be added.

Hilda Perera v Somawaithie – in order to avoid multiplicity of actions and to diminish the cost of litigation
and for the effective and complete adjudication of all questions, the District Court was correct in ordering
the addition of the company as a party defendant.

Sec 21 – (amendment of plaint) Where a defendant is added, the plaint shall, unless the court direct
otherwise, be amended in such manner as may be necessary, and a copy of the amended plaint shall
be served on the new defendant and on the original defendants.

Sec 22 – (objections for mis joinder / non joinder – taken before hearing) All objections for want of parties,
or for joinder of parties who have no interest in the action, or for misjoinder as co-plaintiffs or co -
defendants, shall be taken at the earliest possible opportunity, and in all cases before the hearing. And
any such objection not so taken shall be deemed to have been waived by the defendant.

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Sec 23 – (plaintiff or defendant to authorize other P/D) When there are more plaintiffs than one, any one
or more of them may be authorised by any other of them to appear, plead, or act for such other in any
proceeding under this Ordinance; and in like manner, when there are more defendants than one, any
one or more of them may be authorised by any other of them to appear, plead, or act for such other in
any such proceeding. The authority shall be in writing signed by the party giving it, and shall be filed in
Court.

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