Murugappan Chettiar V. Nadarajan Chettiar

1952 Present: Gratiaen J. and Gunasekara J.

MURUGAPPAN CHETTIAR,  Appellant, and NADARAJAN
CHETTIAR, Respondent

S. C. 42-D. C. Colombo, 20,470
 

Lis alibi pendens-Stay of proceedings-Conditions precedent-Civil Procedure Code, s. 839.

An order staying all proceedings in an action until the conclusion of a litigation which is pending between the parties in a foreign Court cannot be made except upon proper material. A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in a court in Ceylon if it is otherwise properly brought.

APPEAL from an order of the District Court, Colombo.

C. Thiagalingam, Q. C., with S. Sharvananda and G. A. Thavathurai, for the plaintiff appellant.

E. B. Wikramanayake, Q .C., with S. Thangarajah, for the defendant respondent.

Cur. adv. vult.

June 5, 1952. GRATIAEN J.

This is an appeal from an order of the District Court of Colombo, dated 22nd November, 1950, directing that all proceedings in the present action should be stayed until the conclusion of a litigation which was pending between the parties in the Sub-Court of Sivaganga in India. Section 839 of the Civil Procedure Code certainly confers upon trial Judges in this Island an inherent jurisdiction to make orders of this nature upon proper material and in accordance with the well-recognised principles of the doctrine of Us alibi pendens. In Ramen Chettiar v. Vyvaven Chettiar1[(1940) 41 N. L. R. 371] Wijeyewardene J. (Howard C.J. concurring) laid down the following rules which should guide a Judge who is invited to order a stay on the ground that the same Us is already pending between the parties in a foreign Court.

" (1) The burden is on the party asking for the interference of Court to prove that he is doubly vexed by reason of two actions being brought against him.

(2) Where the two actions are brought in the same country there is a prima facie presumption of an intent to cause vexation.

(3) Where the party is sued in one country and also in a foreign country or where a party is sued in two countries subject to the same Paramount Power a Court will not presume an intent to cause vexation-

(a) in the absence of evidence that the plaintiff cannot obtain an additional advantage in continuing both his actions, or

(b) from the mere fact of inconvenience or additional expense caused to a party, or

(c) from the fact that by staying one action less evidence would have to be ultimately led in the first action. "

The plaintiff asks that the learned District Judge's order under appeal should be set aside because he has misdirected himself as to the matters which should have weighed with him in exercising his discretion to stay proceedings on the ground of vexation or abuse of process-a discretion which must, without doubt, be very cautiously applied. For our Courts are " freely open to all persons, including persons foreign to this country, seeking to enforce their rights .... in cases in which the Courts can properly exercise jurisdiction ". Logan v. Bank of Scotland 2[(1906) 1 K. B. 141, 159.]. The rule was stated thus by Scott L.J. in St. Pierre v. S. American Stores (Gath and Chavis) Ltd. 3[(1936) 1 K. B. 382, 398.] :-

" (1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English Court if it is otherwise properly brought. The right of access to the King's Court must not be lightly refused. (2) In order to justify

a stay, two conditions must be satisfied, one positive and the other negative ; (a) the defendant must satisfy the Court that the continuance of the action would work an injustice to him because it would be oppressive or vexatious to him or would be an abuse of the process of the Court in some other way ; and (6) the stay must not cause an injustice to the plaintiff. On both the burden

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