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1. Page 1 of 45 SALIENT FEATURES OF PLEADINGS AND PRE-TRIAL PROCEDURES IN CIVIL SUITS Civil litigation in our country is becoming more prevalent and complex and the need for effective case management is considered paramount. Systematic pre-trial procedures can have a dramatic impact on the Court’s ability to manage cases. Effective pre-trial procedures prevent unnecessary delay, encourage settlement, decrease cost of litigation, and facilitate the effective use of judicial resources. On the contrary, ineffective pre-trial management can lead to delays and court congestion which eventually result in the denial of justice. When justice is denied, it is the general public who suffers most. Hence, the objectives of this workshop inter alia are to make the general public the ultimate beneficiary of the whole exercise and ensure that justice is meted out to the aggrieved with the least possible delay at an affordable cost and in a friendly atmosphere. It goes without saying that competence in law is one of the main skills that an attorney at law has to develop to justify the enjoyment of his privileged position over others, as a member of a noble profession. AN ATTORNEY-AT-LAW IS AN OFFICER OF COURT. He has special privileges in the society. Equally he is duty bound to fulfil certain obligations. A legal practitioner has an overriding duty to court, to the standards of his profession, and to the public. A lethargic Bar, can be the root cause of public discontentment, in any legal system. In our country, legal representation in civil courts has become so indispensable, as the Bar plays a remarkably vital role in the dispensation of justice. This is the reason as to why persons of good repute, competent knowledge and ability are enrolled as attorneys at law, subject to conditions. Hence, it is the obligation of every member of the Bar to be well acquainted with the law and its development to 2. Page 2 of 45 make the general public the ultimate beneficiary of the legal system of the country. Steps that are desirable before the institution of an action include taking instructions from the clients before setting the law in motion. Sometimes the plaintiff may have to give notice of action to the defendant. (e.g.; Section 461 of the CPC). In certain other cases to make a positive demand of the defendant to do a particular act or to refrain from doing an act may turn out to be advantageous. The requirement of the dispute having to be previously referred for arbitration (if necessary) and/or mediation also will fall under the category of steps which can be classified as conditions precedent to the filing of an action. TAKING INSTRUCTIONS FROM THE CLIENTS 1. This is absolutely important and should not be lightly disregarded at any stage of the case. 2. Since many a litigants are laymen it is the duty of the attorney-at-law to take instructions and then advise him as to the manner in which further action should be taken. 3. Even if the instructions taken from the client disclose a good case, it is for the attorney-at-law to decide which remedy or the course would be desirable in the best interest of the client. 4. In all matters whether or after the institution of an action subject to the overriding duty to assist court, an attorney-at-law must act in the best interest of his clients. WHAT IS REGULAR PROCEDURE AND WHAT IS SUMMARY PROCEDURE? Chapter 24 of the CPC describes that summary procedure should be followed in certain type of cases. It is trite law that summary 3. Page 3 of 45 procedure can be followed only in cases to which it is expressly stated that "summary procedure" is applicable. Illustrations to section 7 of the CPC shed enough light as to the nature of the two sets of procedures. Regular procedure contemplates on the defendant’s right to answer the allegations made in the plaint before the pronouncement of the judgement. Under summary procedure the applicant supports the contents of his petition by the affidavit and other evidence (by way of exhibits) and the court after consideration of the same, if a prima-facie case is established immediately passes an order on the defendant on condition that if no opposition is shown that the order will be made absolute. This is termed as order nisi under 377 (a) of the CPC. The court is also empowered under summary procedure to enter interlocutory order appointing a day for the determination of the matter of the petition and intimating to the respondents that he will be heard in opposition. This type of orders are made under 377 (b) of the Code. In summary procedure therefore, proceedings are instituted by way of petition supported with proper evidence (affidavit and documentary evidence) enabling the court to act under 377 (a) or (b). Regular procedure Under regular procedure an action commences with the filing of the plaint. In terms of section 40 of the Code, the plaint shall be set forth in duly numbered paragraphs and distinctly written upon good and suitable paper, disclosing the name of the court, date of filing the plaint, the name, description, and place of residence of the plaintiff and that of the defendant so far as the same can be ascertained, a plain and concise statement of the circumstances constituting each cause of action, and where and when it arose and if more causes of action than one are set out, the statement of the circumstances 4. Page 4 of 45 constituting each cause of action and finally a demand of the relief which the plaintiff claims. The court to which the plaint is presented must be the court which has territorial jurisdiction in terms of Section 3 of the Judicature Act read along with the relevant determination made by the Minister by order published in the gazette. In deciding the court where the action has to be instituted one has to strictly adhere to Section 9 of the CPC. Section 9 deals with the jurisdiction of court. The existence of any one of the four matters referred to in section 9 confers jurisdiction to that particular court. Subject to pecuniary or other limitations prescribed by 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 bought 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. Here, any party defendant resides means the place where any one of the defendants resides – Hussain Vs Pieris et al 34 NLR 238. A temporary residence of a defendant does not fall within the meaning of this section and residence means where the family of the defendant resides. If any doubt arises as to the permanent residence of the defendant it may be appropriate to be guided by the electoral register, probably the best evidence to establish the permanent residence of a person. It has been held in many cases that wherever, the defendant physically resides in a place other than the place of residence of his family, the court would look for evidence whether the defendant had 5. Page 5 of 45 the intention to return (animus revertendi) to the dwelling place of the family. Residence means the place of abode at the time when action was filed and not where he resided thereafter - Jayamanna Vs Shabra Unico Finance Ltd. 2001 3 SLR 321. Where in an action instituted in a district court the defendant has not denied in his answer the territorial jurisdiction of the court section 39 of the Judicature Act (71 of the Courts ord. then) precludes him from raising such an objection subsequently by moving to amend the answer. ACTION BY AND ON BEHALF OF AND AGAINST JURISTIC PERSONS, NATURAL PERSONS, PARTNERSHIP, SOLE PROPRIETORSHIP, STATE, ATTORNEY GENERAL Etc. There are two categories of persons who are entitled to have access to a court of justice for relief and against whom relief can be sought. They are primarily the natural persons and juristic persons. The law does not recognise anyone other than those two categories of persons, unless the law creates such other legal entities that can sue and be sued. In such a case the plaint has to be filed in the designated name. e.g. - The Council of Legal Education. When a plaint is filed by the State, the Plaintiff would be the Attorney-General. In the case of a Partnership, the partners have to be made plaintiffs and the name of the Partnership needs to be mentioned in the caption. In the case of a sole proprietorship, the plaintiff would be the proprietor of the business and the name of the business needs to be inserted in the caption. CAN JURISTIC PERSONS SAID TO RESIDE AT THE REGISTERED OFFICE 6. Page 6 of 45 A juristic person cannot be sued on the basis of it being resident at a particular place- In Blue Diamond Ltd Vs Amsterdam Rotterdam Bank N.L 1993 2 SLR 249. A liberal interpretation is permissible to include a corporate body as residing at its registered office, where there is no other place of business- MARTIN SILVA VS CENTRAL ENGINEERING CONSULTANCY 2003 SLR 2 228 (CA) Although the decision in Martin Silva has provoked new jurisprudential thinking with regard to the residence of a juristic person, one must keep in mind that the judgement in Blue Diamond case (supra) has been delivered by the Supreme Court. Even if the residence of the defendant is not distinctly averred it is not a ground to reject a plaint if the principal place of business is situated within the jurisdiction of court- SOMASIRI VS CEYLON PETROLEUM CORPORATION 1991 SLR 39 CONDITIONS PRECEDENT When the jurisdiction is ousted by Statute no action is maintainable in respect of such matters in the district court. No action is maintainable to evict a tenant cultivator from a paddy land by reason of the mandatory provisions of the Agrarian Services Act No: 58 of 1979- TILLEKERATNE BANDA VS KALU BANDA (1993 1 SLLR 95) PECUNIARY AND OTHER LIMITATIONS Pecuniary limitations are generally interwoven with Jurisdiction. In terms of Section 32 of the Judicature Act where the debt, damage, demand or claim does not exceed Rs 1500/- original civil 7. Page 7 of 45 jurisdiction is vested in the Primary Court. But irrespective of the value of such claims all those matters referred to in the Fourth Schedule to the Judicature Act are taken away from the jurisdiction of the Primary Court. For instance any action to obtain an injunction is excluded. Vide- 4th Schedules to the Judicature Act for the items that are specifically excluded from the jurisdiction of the Primary Court. FILING ACTION IN THE AREA OF THE COURT WHERE THE LAND IS SITUATED No confusion can arise as regard the invitation to exercise jurisdiction based on the situation of a land. When the cause of action pertains to a land, then the plaintiff could bring an action in respect of that land in the court where the whole OR the part of that land is situate. In a mortgage bond action based on immovable property should be filed within the territorial limits of the court where the mortgaged property is situated - DAVITH APPUHAMY V PERERA 11 NLR150 The question as to whether certain types of actions could be, categorized as being "actions relating to land" was the subject of interpretation in several cases. 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. APPUHAMY VS. GUNASEKARA 2 NLR 155 In a similar decision an action for specific performance of an agreement to sell land was held not to be 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 a case merely on the ground that the land in respect of which the contract was made is 8. Page 8 of 45 situated within the local limits of its jurisdiction- PELIS V SILVA 60 NLR 289 The above Judgment has to be compared with the case of Ranghamy. The plaintiff in that case sued the defendant in the District Court of Kandy. The defendants were resident outside Kandy and the land itself was situated outside. 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. RANGHAMY VS KIRIHAMY 7 NLR 357. An action for the redemption of an OTTY mortgage (where the mortgagor reaps only the benefits or fruits of the property) and for the release of the mortgaged land from the mortgage was considered a dispute affecting an interest in land and therefore, be brought in the court within the local limits of whose jurisdiction the land is situate- NALLATHAMBI VS KURUKKAL 57 NLR 166,. On a writ issued by the DC Negombo a land in Kurunegala was seized, and a claim made and reported to the District Court of Negombo. The claim being disallowed by the said Court, the claimant brought an action, under section 247 of the Civil Procedure Code, in the Court of Requests of Negombo against the judgment-creditor, who resided outside the jurisdiction of such Court. It was held in that case that the Court of Requests of Negombo had no jurisdiction to entertain the action- WERTHELIS VS DANIEL APPUHAMY 12 NLR 196 When it is uncertain as to which local limit of a court any immovable property would fall, or where any immovable property is located within the territorial jurisdiction of more than one court, anyone of the courts within whose jurisdiction the land is situated 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. The decree in such an action shall have the 9. Page 9 of 45 same effect as if the property was situated within the local limits of the jurisdiction of such court. 2. Preparation and filing of Plaint. Institution of civil suit under regular procedure begins with the presentation of a plaint to court conforming to Section 40 which requires that the plaint should contain a plain and concise statement of the circumstances constituting each cause of action and where and when it arose and such statement shall be set forth in duly numbered paragraphs; and where two or more causes of action are set out the statement of the circumstances constituting each cause of action must be separately numbered. The plaint must be simple, precise and short. Odgers' says that pleading must state facts and not law. It must state material facts only. It must state the facts and not the evidence by which they are to be proved. It must state such facts concisely in a summarized form. Section 46(2) deals with circumstances as to when can a court refuse to entertain a plaint. In terms of 46(2) (a) to (f) a plaint may be refused if it does not state correctly, and without prolixity, the several particulars required to be specified therein, if it contains any particulars other than those so required and/or Where plaint is presented to a wrong court, if it is not subscribed to by the attorney- at-law or the party concerned as the case may be, if it does not disclose the cause of action, if it is not so framed as to afford a final decision on the dispute or if it is wrongly framed by reason of misjoinder or non-joinder of parties or misjoinder or non-joinder of causes of action. When refusing to accept a plaint the court can impose its own conditions including a deadline before which the amendment has to be effected. This would facilitate the plaintiff to amend the plaint so as 10. Page 10 of 45 to fall in line with the provisions of the law. However it must be noted that upon the refusal of the court to entertain the plaint in terms of section 46 (2), no amendment is permitted so as to convert an action of one character to an action of another and inconsistent character. Generally, in terms of section 46(2) of the CPC acceptance of a plaint is refused before the issuance of summons on the defendant. If the plaint had been accepted and summons issued on the defendant, it is not a matter for the court to act under 46 (2) but for the defendant to raise the point in his answer- MOHIDEEN VS GNANAPRAKASAM 14 NLR 33.. The question as to the fate of an insufficiently stamped plaint was considered in a few cases. When a plaint or an answer is not rejected by a District Judge under section 46 or section 77 of the Civil Procedure Code for deficiency of stamps, the presumption is that the Judge has adjudicated in favour of the party who had tendered the pleading on the question as to the sufficiency of the stamp thereon - JAYAWICKRAMA VS AMARASOORIYA 17 NLR 174. The question whether the plaint should be dismissed on the ground of insufficiency of stamps when a deficiency has been supplied was considered in a series of decisions. The authorities on this matter are quite clear that when the plaintiff supplies the deficiency even after objection is taken in the answer, the court has no power to dismiss the plaint on that account. It is well established principle of law that the plaint cannot be dismissed on the ground of insufficiency of stamps alone. 37 NLR 436 On the question of stamping a very important decision needs to be adverted to here. That is the case of Sita Rajasingham. It is an important decision and would be applicable not only to the plaint but to the answer, application and petition filed in court under the Civil Procedure Code. The principle laid down here was that in the absence 11. Page 11 of 45 of any statutory provision in relation to the petitions filed under section 86 of the CPC, requiring that stamps should be supplied at the time of its presentation; or that such a petition filed without stamps is valueless and therefore should be rejected, or that such a petition which is unstamped should not be acted upon, such a document cannot be rejected. It was held in this case that when a petition, affidavit and proxy filed under section 86 to purge default have not been stamped the proper course is to call for the deficiency of stamps to be supplied by the party who tendered that document – SITA RAJARATNAM VS MAUREEN SENEVIRATNA 1995 2 SLR 69 Note: It was held that the decision in Sathasivan v. Cadiravel Chetti (1919) 21 NLR 93 had been misapplied in Sita Rajaratnam’s case. On the aspect of the failure to provide sufficient stamps or providing insufficient stamps along with the plaint or other pleadings, it can be concluded that neither the failure to stamp the pleadings nor the insufficiency of stamps on the pleading will give rise to a dismissal of the action. It is never treated as a fatal defect. The proper procedure to be followed when pleadings are not stamped or insufficiently stamped is to call for the stamps to be provided with and upon failure to reject the plaint or other pleadings - YUSUF MOHAMED VS INDIAN OVERSEAS BANK 1999 3 SLR 278 AND 1999 1 SLR 332. ISSUE AND SERVICE OF SUMMONS ON THE DEFENDANT Service of summons on the defendant is considered to be a significant step during the pre-trial stage and a sacred duty. This is the only means by which the defendant notified of the case against him and therefore afforded the opportunity of being heard. As a matter of fact the principle of AUDI ALTERAM PARTEM is given effect to and made meaningful by due service of summons. 12. Page 12 of 45 The Summons along with a copy of the Plaint and the translation if necessary as required, should be delivered with a precept in Form No: 17 to Court and subsequently required to be personally served on the defendant through the fiscal or Grama Niladari concerned. The requirement of a proper service of summons on the defendant is an imperative requirement under the Code. In the recent case of Leelawathie enjoining order was served on the defendants and no summons was served. The Plaintiff contended that the service of the enjoining order was sufficient notice of the p
