1942 Present: Soertsz, Hearne and Wijeyewardene JJ.

SENADIPATHY v. SENADIPATHY.



1O4-D. C. (Inty.) Colombo, 477.

Stamp duty-Matrimonial action-Action for divorce by wife--Counter-claim by husband-Damages against co-respondent-Class of case-Amount of damages-Stamp Ordinance (Cap. 189), Schedule F. (Miscellaneous), item (Z).

In an action for dissolution of marriage brought by the wife against her husband. the latter himself claimed a divorce from the plaintiff on the ground of her adultery with the co-defendant from whom he claimed the sum of Rs. 10,000 as damages. The defendant further claimed a sum of Rs. 7,073 on three separate causes of action. viz.:

(a) a sum of Rs. 2,640, which he alleged was the plaintiff's share of the expenditure incurred by him in improving a common land. ;

(b) a sum of Rs. 1,933 on account of articles belonging to him which were damaged by her;

(c) a sum of Rs. 2,500, the value of rubber coupons appropriated by her without his consent.

Held (by Soertsz and Hearne JJ., Wijeyewardene J. dissenting), that the last named causes of action cannot be introduced into a matrimonial action instituted under Chapter 42 of the Civil Procedure Code.

Section 36 of the Civil Procedure Code is excluded by necessary implication .and does not apply to matrimonial actions.

Held, further, that the class of case for purposes of Stamp Duty on matrimonial actions must be determined by item (I) of Schedule F. according to which it is 'fixed by the amount of damages claimed by the defendant, viz., Rs. 10,000.

[Per WIJEYEWARDENE J.-That the separate causes of action could be properly joined in a matrimonial action and that item (I) in the Schedule does not override the general principle that the stamp duty should be assessed on the aggregate value of the various claims, even if such claims have been wrongly joined.

L. A. Rajapakse (with him P. A. Senaratne) for the plaintiff, respondent. took preliminary objection.-Class 5, and not class 4 of Part 2 of Schedule A of the Stamp Ordinance (Cap. 189) governs this case. The appellant furnished stamps on the basis that the proceedings fell under class 4. The tendering of additional stamps subsequently would not cure the irregularity-Balasubramaniam v. Valliappar Chettiar[ (1938) 39 N. L. R. 153.].

Where, in an action, the defendant sets up a claim in reconvention. the stamp duty leviable is calculated upon the value of the claim in reconvention if it is larger than the claim made in the plaint-Vellasamy pulle v. The Uplands Tea Estates of Ceylon, Ltd.[(1912)1 C .A. C108]. And the value of the claim in reconvention would be the aggregate value of the various claims made in the answer-Sinnappu v. Theivanai[(1937) 39N.L.R.121]. The value therefore, of the present action is Rs. 17,073.

[SOERTSZ J.-What is the class of a matrimonial action generally?]

According to, item (l) in Schedule F of the Stamp Ordinance, matrimonial suits shall be charged as of the value of Rs. 1,000, where the amount of damages claimed does not exceed such sum; where the damages claimed exceeds Rs. 1,000, the class shall be determined by the amount of the damages claimed according to .the classification of suits in civil proceedings in the District Courts.

[SOERTSZ J.-The determining factor then seems to be the amount of damages claimed ?]

Proceeding on the basis that the class is determined by the amount of damages, the defendant claims Rs. 10,000 from the added defendant and, under paragraphs 6 and 7 of the answer, Rs. 4,433 from the plaintiff. His action, there fore, is for the sum of Rs. 14,433 as'damages. Thus, whether the value of this action is regarded as Rs. 17,073 'or as Rs. 14,433 the governing class for stamping purposes is class 5. .

[SOERTSZ J.-No damages can be claimed except against the codefendant. Read section 598 of the Civil Procedure Code in conjunction with item (l) of Schedule F of the Stamp Ordin