INTERIM INJUNCTION-DISCLOSURE OF A CAUSE ACTION-AJL 62 AND PCPA 68-

INTERIM INJUNCTION-DISCLOSURE OF A CAUSE ACTION-AJL 62 AND PCPA 68-

The real nature of the possession of a “caretaker”-deemed as possession on behalf of  the owner. lack of cogent evidence to prove the contrary by the contesting defendants- Requirement to disclose disclosed a prima-facie case and a valid cause of action- misdirection-Under Section 63 of the AJL corresponding to section 68 of the Primary Court Procedure Act a determination when entered, all disturbances or interferences with the exercise of such rights is prohibited other than by the authority or judgement of a competent court- lack of proper appreciation of the Law.

 Kanagasabai vs Mylwaganam 1976-78 NLR 280

Abdul Salam J

This is an application for leave to appeal against an order of the district court of Mt. Lavinia dated 10th June 2003 in Case No. L 1674/02.

To state in few words, the background to the application for leave to appeal of the plaintiff-appellants (hereinafter referred to as the ‘appellants’) can be summarized thus. The ‘appellants’ filed action against the defendants for a declaration of title to the subject matter and ejectment.  By way of interim relief they sought an interim injunction inter alia to restrain them from alienating, disposing, selling, leasing it out, placing any other persons in possession of the subject matter morefully referred to in the plaint.

 The learned district judge having issued an enjoining order later refused the application for interim injunction inter alia on the ground that the plaintiffs have not pleaded a valid cause of action in the plaint.

Leave to appeal having been granted on the question as to whether the learned Addl. District judge has failed to pay attention to the material relevant to the application for interim injunction; both parties filed their written submissions as far back as in October 2004. This judgment concerns the appeal.

The order of the Addl. district judge reveals that in arriving at the conclusion that the plaintiffs are not entitled to any interim relief, the learned judge it appears to have been greatly influenced by the following considerations:-

1.        The deed of declaration written by the caretaker Thangathurai  when the plaintiffs were out of the island;

2.        The order of the learned Magistrate granting possession of the subject matter to the defendants, under section 68 of the Primary Court Procedure Act;

3.        Failure of the plaintiffs to disclose a valid cause of action to sue the defendants .

On a careful reading of the order, it seems that the learned Addl. district judge in refusing the application for interim relief has given undue weightage to the deed of declaration executed by the mother of the defendants. The said deed of declaration  No.12 attested by W.M. Sudarma Bandaratillake, inter alia states that the Mother of the defendants was appointed as the caretaker of the subject matter. It further declares that the owners of the subject matter had  neither contacted nor visited the land and that the declarant has been in the sole, exclusive, undisturbed and uninterrupted occupation by a title adverse to and independent to all others and thereby acquired a prescriptive title to the same. The declarant maintains in the said deed that she entered the property as a “caretaker”.

Strouds Judicial dictionary Volume 1 page 402 defines the word “caretaker” as one whose only business is to guard the premises against injury and does not include one who may create danger. The word “caretaker” has also been described in modern dictionaries as a person legally responsible for another. Accordingly, he should be treated as a guardian or custodian of the property in respect of which he assumes the duties of a “caretaker”.  Further, it is the moral duty of the caretaker to hand over the property, as far as practicable in the same condition, when he relinquishes his duties in such capacity.  A caretaker cannot be heard to say that he possessed the property adverse to the person who assigned him the duty to look after it, as it is not only unbecoming of a caretaker to claim so  but unethical in the strict sense of the word as well.

In the case of Maduanwala Vs. Ekneligoda 3 NLR 213 it was held that a person who is let into occupation of property as a tenant or as a licencee must be deemed to continue to occupy on that footing until by some overt act he manifests his intention of occupying in another capacity. No secret act will avail to change the nature of his occupation.

In the case of Orloff Vs Grebe 10 NLR 183, the Privy Council in dealing with an alleged claim of prescriptive possession stated that where a person enters into occupation of property belonging to another with the latter’s consent and permission, he cannot acquire title by prescription to such property. It can only be done by getting rid of that character, in which    he commences to occupy, by some overt act showing an intention to possess adversely to the owner.

In the case of Naguda Marikkar vs. Mohammadu 7 NLR page 91, the Privy Council overruling the decision in Anthonisz vs. Cannon 3 CLR 65 held that in the absence of any evidence to show that an agent got rid of his character, he is not entitled to the benefit of section 3 of the Prescription Ordinance.

In the instant case, it was alleged that the mother of the defendants have been entrusted with the task of looking after the property in question. As referred to earlier the mother of the defendants has clearly admitted her status in relation to the subject matter as being that of a “caretaker”.  Further, she has declared in deed No 12 that she was entrusted with the task of looking after the said property. The assertion that the owners of the property neither contacted the caretaker nor visited the said property does not give rise to a claim of prescription, unless and until it is established with certainty that the caretaker got rid of her character and began to occupy the property by some overt act showing an intention to possess adversely to the owner.

In deciding the  question  as to  whether an  interim injunction  lies  against

the defendants, the learned district Judge has totally overlooked the position taken up by the 3rd defendant in his statement of claim. The 3rd defendant is the eldest son of the caretaker.   Above all  he  was  the

administrator of the estate of his mother as well. His position was almost in harmony with that of the plaintiff’s version.  It is of vital importance to note that the learned additional district Judge has made no conscientious effort to appreciate the controversy, regard being had to the position taken up by the 3rd defendant who was quite competent to speak as to dealings of his mother regarding the subject matter.  Moreover, in the testamentary case, the 3rd defendant has not included the subject matter of this action as a property held by the mother of the defendants nor have his brothers taken any steps to include the same as a property left by the deceased caretaker.  This clearly shows that both Josephine Felicia Thangathurai and her children had never considered the subject matter as being owned by them, on prescriptive rights.

Nevertheless, the impugned order clearly shows that the learned judge has also failed to recognize the statutory protection conferred on the 1st plaintiff, against prescription during the period she lived abroad. Section 13 of the prescription ordinance enacts inter alia that so long as the owner of a property is absent beyond seas, no prescription shall run against him until such time he returns to the country. In other words, the absence from the country of the owner of a property is considered as a disability against prescription. The operative words of section 13 of the prescription ordinance, with the omission of the inapplicable words read as follows...

“Provided nevertheless, that if at the time when the right of any person to sue for the recovery of any immovable property shall have first accrued, such person shall have been under any of the disabilities hereinafter mentioned, that is to say-

  (a)… (b)…(c)…

           (e) absence beyond the seas,

then and so long as such disability shall continue the possession of such immovable property by any other person shall not be taken as giving such person any right or title to the said immovable property, as against the person subject to such disability or those claiming under him”..

The plaint presented in this case is to the effect that the plaintiffs on the title pleaded in the plaint have acquired a valid title to the subject matter and the defendants as the legal heirs of the deceased “caretaker” were disputing the title. On the face of the plaint, no doubt can arise as to whether the plaintiffs have disclosed a valid cause of action to sue the defendants for a declaration of title and ejectment. 

The learned counsel of the contesting defendants has urged that no interim injunction lies against his clients in view of the decision in the case of Kanagasabai vs Mylwaganam 1976-78 NLR 280. In that case it was laid down that once an order under section 63 of the Administration of justice law No 44 1973, which corresponds to section 68 of the Primary Court Procedure Act is entered, all disturbances or interferences with the exercise of such rights is prohibited other than by the authority or judgement of a competent court.

The pith and substance of the argument advanced by the learned counsel for the contesting defendants is that the order of the learned magistrate made under section 68 of the Primary Court Procedure Act cannot be disturbed by an interim injunction.  Based on this, it was submitted on behalf of the contesting defendants that the learned additional district judge was right in refusing the application for interim injunction.

It is appropriate at this stage to note that the interim injunction sought by the plaintiffs did not in any way amounts to an interference with the order of the learned magistrate or have the effect of nullifying the implementation of the order made under section 68. The interim injunction sought by the plaintiffs is limited to the paper title.

In my view the learned additional district Judge should have favourably considered the application for interim injunction as the plaintiffs have satisfied the requirements necessary to obtain such interim relief. The learned additional district judge should have been mindful of the fact that the interim relief applied was not to dispossess the defendants of the subject matter but to maintain the paper title unchanged.

As far as the requirements for the issuance of the interim injunction is concerned the learned additional district Judge has failed to evaluate the version of both parties on the face of the pleadings. Looking at the whole case it appears that it would have been appropriate had the learned additional district Judge granted the interim injunction.

The assertion of the contesting defendants that they had been in possession of the subject matter for a period of 39 years and therefore should be considered as having prescribed to the property, in terms of the proviso to section 13 appears to me as baseless since the mother of the contesting defendants has entered the property admittedly as a caretaker.  As far as the version of the contesting defendants is concerned, I find it difficult to conclude without the adverse comment that there is not a vestige of evidence adduced by the said defendants  to   establish the commencement of possession by the caretaker by change of character coupled with an overt act.

For the above reasons, it appears that the learned Addl. district judge has failed to appreciate the real nature of the possession of a “caretaker”, which in law is deemed as possession on behalf of  the owner. She has also failed to appreciate the lack of cogent evidence to prove the contrary by the contesting defendants.

Hence, it is my considered view that the learned additional district Judge has misdirected herself as to the finding that the plaintiffs have not disclosed a prima-facie case and a valid cause of action.   She has also erred in coming to the conclusion that the plaintiffs are not entitled to the interim injunction prayed for in the plaint.

Consequently, I allow the appeal and direct that interim injunction be issued as prayed for in the plaint.

The appellants are entitled to recover the cost of this appeal from the contesting defendants.

                   Sgd.

  Judge of the court of appeal.

 END OF JUDGMENT




other datails

C.A.L.A: CA 224/2003

DC.Mount Lavinia:  L1674/02

Antonitta Emencia Jayakumari , Plaintiff-appellants

 vs   

Clament Felix Rodrigo and others

 Defendant Respondents

                                                                                                              

Before:            A.W.A. Salam,J.

Counsel:          A.M.Faiz with U.A.Mowjuth for Plaintiff- Appellant

                         S.Gunawardena 1^st and 2^nd  defendant-respondents

Decided on:   18^th October 2007