1952 Present   :  Rose C.J. and Gunasekara J.

MILLER, Appellant, and MURRAY, Respondent

S. C. 440-D. C. Kandy, 3,818

Jurisdiction-Cause of action arose in Ceylon-Defendant resident abroad-Right of plaintiff to sue in Ceylon-Civil Procedure Code, ss. 9, 69-Private International Law.

Under section 9 of the Civil Procedure Code an action may be instituted in Ceylon against a defendant who is resident abroad and is not domiciled in Ceylon. The jurisdiction of a Court of any particular State depends upon the local municipal law and is unaffected by the consideration as to whether a judgment once obtained is enforceable in the Courts of a foreign State.

APPEAL from a judgment of the District Court, Kandy.

H. V. Perera, Q.C., with P. Somatilakam and S. Sharvananda, for the plaintiff appellant.-This is an action for breach of promise of marriage. The promise was made within the jurisdiction of the Kandy Court. Thereafter the defendant went to Australia. Summons was duly served under section 69 of the Civil Procedure Code. The defendant gave proxy to a Proctor at Kandy to defend the action. The proctor filed answer denying liability and alleged that as defendant had gone to Australia the Court had no jurisdiction to hear the action. The question for decision in this appeal is one of jurisdiction. The cause of action arose in Ceylon. Therefore the question of jurisdiction is determined by the law of Ceylon. Section 69 of the Civil Procedure Code gives the power to Court to issue summons out of the Island, the condition precedent being that the Court must have jurisdiction. Jurisdiction is dealt with in section 9 of the Civil Procedure Code. In the present case authorities relating to actions on foreign judgments were erroneously cited before the trial Judge. The moment a person is properly served with summons under section 69 he is precisely in the same position as a person who is in this country. See Schibsby v. Westenholz 1[(1870) L. R. 6 Q. B. 155.] and In re Liddell's Settlement Trusts 2[(1936) 1 Ch. D 365.]. Emanuel v. Symon 3[(1908) 1 K. B. 302.] and Worman & Co. v. Noorbhai  4[(1912) 15 N.L.R. 355.] relate to actions on foreign judgments and are therefore distinguishable.

E. B. Wikramanayake, Q.C. (N. E. Weerasooria, Q.C., with him, Ivor Misso and P. Colin Thome), for the defendant respondent.-Where one party to a dispute is a foreigner domiciled abroad the question of jurisdiction must be decided according to the Rules of Private International Law. Section 9 of the Civil Procedure Code presupposes the existence of a defendant subject to the jurisdiction of the Court. Jurisdiction is limited to persons who are subjects of the Sovereign. See Cheshire: Private International Law, 2nd. ed., Ch. 3, and Sirdar Gurdyal Singh v. Rajah of Faridkote  5[(1894) A. C. 670.]. Section 69 of the Civil Procedure Code presupposes that the Court has jurisdiction under section 9. Section 9 is further " subject to limitations prescribed by law ", which would include the

Rules of Private International Law. According to Private International Law the Courts of any country have no jurisdiction over any matter with regard to which they cannot give an effective judgment-Tallack v. Tallack 1[(1921) Probate 211.]. See also Schibsby v. Westenholz (supra); Worman & Co. v. Noorbhai (supra) ; Hukm Chand: Res Judicata, p. 373. Section 69 only applies to persons domiciled in the country who are at the moment abroad. It does not apply to persons who are permanently outside the country.

H. V. Perera, Q.C., replied.

Cur. adv. vult.

July 10, 1952. ROSE C.J.-

The appellant seeks to recover damages from the respondent for breach of promise of marriage. The matter went to trial on the following issues :-

1. Did the defendant by his letters dated 19th November, 1947, 9th December, 1947, 29th June, 1949, 11th July, 1949, 9th August, 1949, and 19th September, 1949, promise to marry the plain