The Supreme Court has overturned a Commercial High Court order that threw out a commercial claim at the pre-trial stage, holding that a court cannot decide it lacks jurisdiction by weighing evidence it has not yet heard. The ruling restores a case dismissed in 2024 and awards costs against the defendant for both rounds of litigation.
The judgment was delivered by a three-judge bench of Justices Mahinda Samayawardhena, Dr Sobhitha Rajakaruna and Gihan Kulatunga, the Daily Mirror reported on Monday.
How the case was lost
The Commercial High Court hears commercial disputes above a monetary threshold of Rs 50 million. The defendant in this case first objected that the dispute was not commercial at all, arguing there was no written contract or agreement between the parties.
At the pre-trial stage the defendant changed that objection. It now contended that the Rs 50 million threshold had not been met — and that the plaintiff’s claim had been artificially inflated to reach it. The Commercial High Court accepted this, found there was no evidence placed before it to support the claim, and in 2024 dismissed the plaintiff’s entire case.
The appeal
The plaintiff-appellant, Kish International (Pvt) Ltd., appealed on three grounds. It argued the transaction was intended to be denominated in US dollars; that the sums claimed in the plaint — demurrage, loss of profits and interest — cumulatively exceeded the statutory threshold; and that a pre-trial conference is not the stage at which evidence is led or evaluated. It further argued the judge should not have allowed the defendant to recast a jurisdictional objection that had never been pleaded in its original defence.
What the court held
Two holdings give the judgment reach beyond this case.
Jurisdiction, once properly attached, is not retrospectively divested. A court that validly takes a case cannot later be deprived of it because a lesser amount is ultimately proved. The question at the outset is what the plaint claims, not what the evidence eventually establishes. Justice Samayawardhena addressed the role of the pre-trial conference directly, describing it as a pivotal stage in civil proceedings — but one whose function is to define issues, not to try them.
“Commercial transactions” must be read broadly. The court noted that Parliament used the word “including” when describing the transactions within the Commercial High Court’s reach. That word signals an illustrative list rather than an exhaustive one, and the expression must be given a broad and purposive interpretation rather than being confined to the categories expressly enumerated in the enacting Act.
The Supreme Court set aside the Commercial High Court’s order, awarded costs against the defendant-respondent covering both the Commercial High Court proceedings and the Supreme Court appeal, and directed the Commercial High Court to hear and conclude the case expeditiously.
Why it matters beyond one company
The practical effect is to close a route that defendants could otherwise use to end a case before it starts. On the Commercial High Court’s approach, a defendant could demand at pre-trial that the plaintiff prove the value of its claim, and win outright if the court was unpersuaded — converting a procedural conference into a trial on the merits without the protections of one. The Supreme Court’s answer is that the threshold is tested against the pleaded claim.
The costs order points the same way. Awarding costs for both courts against a defendant whose objection succeeded below signals that the tactic carried a price.
The Commercial High Court was established by an Act of Parliament in 1996 and sits in the Western Province. Alongside general commercial disputes it hears matters involving intellectual property, admiralty, debt recovery and arbitral referrals.
Counsel Nishan Premathiratne appeared for the plaintiff-appellant with Vikum Jayasinghe and Manith Dasanayake, instructed by Gamindu Karunasena.
Not reported
The filing does not name the defendant-respondent, state the value of the claim, describe the underlying transaction, or give the case number or judgment date. It does not report counsel for the defendant. The full text of Justice Samayawardhena’s observations on the pre-trial conference was not carried in the report, so this account describes their effect rather than quoting them.
Update: Hiru files, and sharpens the pre-trial holding
A second verified newsroom has now carried the judgment. Hiru News reported it at 1.15 p.m. on Monday, several hours after this article was first published, and corroborates the account above on every material point: the three-judge bench, the plaintiff company, the 2024 dismissal at pre-trial for want of evidence, the defendant’s recast objection on the monetary threshold, and the setting aside of that order.
Its filing also renders Justice Samayawardhena’s observation on the pre-trial conference more sharply than the account this article was able to give. On Hiru’s version, the judge said the main purpose of a pre-trial conference is not to go outside the scope of the case, add new matters, or widen the ambit of the proceedings.
That phrasing goes directly to what the defendant did here. The objection that won below — that the Rs 50 million threshold had not been met — was never pleaded in the original answer and surfaced only at pre-trial. On this rendering the court is not merely saying that evidence should not be weighed at that stage; it is saying the stage cannot be used to enlarge the dispute at all.
One divergence, immaterial to the substance: Hiru gives the plaintiff’s name as “Kish Inteational (Pvt) Ltd”, dropping a letter pair from International. The Daily Mirror’s spelling is used here.
Sourcing note: this report rested on a single verified newsroom when first published — the Daily Mirror’s breaking-news listing was then the only rail carrying the judgment, and NewsFirst had not filed. Hiru News filed later the same day and has been added above. Ada Derana has been unreachable from this desk for 44 consecutive days.