SECTION 66 APPLICATIONS- DECIDED CASES

CLICK Ctrl and f , then type name of one party of the desired case and press enter to access a particular judgment

eg:  Ctrl+f   Punchinona enter 

The following judgments are included in this folder...any judgment can be viewed separately.... TYPE CTRL WITH f AND THEN TYPE THE NAME OF A PARTY FROM THE FOLLOWING LIST AND THEN PRESS "ENTER"

1.  PUNCHI NONA v. PADUMASENA

2.  ABEYGUNASEKERA v.SETUNGA AND OTHERS

3.  IQBAL  v. MAJEDUDEEN AND THERS

4.  TUDOR v.  ANULAWATHIE AND THERS

5.  DAYANANDA v. THALWATTE

6.  ALI VS ABDEEN

7.  GANDHI v.MUBARAK

8.  KULAPALA AND ANOTHER v.SOMAWATHIE

9.  KAYAS VNAZEER AND OTHERS

10.                KARUNANAYAKE VS.SANGAKKARA

11.                LOWE VS.DAHANAYAKE AND ANOTHER

12.                SHARIF VS.  WiCKRAMASURIYA

13.                NANDAWATHIE AND ANOTHER V. MAHINDASENA

14.                JAYANTHA GUNASEKARA VS. JAYATISSA GUNASEKARA

15.                Ananda Sarath Paranagama VS Dhammadhinna Sarath Paranagama

                 

PUNCHI NONA v. PADUMASENA AND OTHERS

1994 2 SLR 117

COURT OF APPEAL.

ISMAIL, J.

PRIMARY COURT.

MATARA CASE NO. 47970.

C.A. NO. 104/90.

MAY 03 AND JUNE 09, 1994.

Primary Courts Procedure ‑ Primary Courts Procedure Act, ss. 66(1) (a), (b), 68(1) & (3), 69 ‑ Distinction between section 68(1) & (3) and section 69 ‑Jurisdiction distinction between section 66(1) (a) and section 66(1) (b) ‑ Section 68(1) of the Primary Courts Procedure Act is concerned with the determination as to who was in possession of the land on the date of the filing of the information to Court.

Section 68(3) becomes applicable only if the judge can come to a definite finding that some other party had been forcibly dispossessed within a period of two months next preceding the date on which the information was filed. The distinction in section 69 is that it requires the Court to determine the question as to which party is entitled to the disputed right preliminary to making an order under section 69(2) of the Act.

Where the information is filed under section 66(1) (a) of the Primary Courts Procedure Act by a police officer, a Primary Court is vested with jurisdiction to inquire into the dispute. The Police Officer is empowered to file the information only if there is a dispute affecting land and a breach of the peace is threatened or likely. However, when an information is filed by a party to the dispute under section 66(1) (b) it is left to the judge to satisfy himself that there is a dispute affecting land owing to which a breach of the peace is threatened or likely.

The jurisdiction conferred on a Primary Court under section 66 is a special jurisdiction. It is a quasi‑criminal jurisdiction. The primary object of the jurisdiction so conferred is the prevention of a breach of the peace arising in respect of a dispute affecting land. The Court in exercising this jurisdiction is not involved in an investigation into title or the right to possession which is the function of a civil court. He is required to take action of a preventive and provisional nature pending final adjudication of rights in a Civil Court.

In an information by a private party under section 66(1) (b) it is incumbent upon the Primary Court Judge to initially satisfy himself as to whether there was a threat or likelihood of a breach of the peace and whether he was justified in assuming such a special jurisdiction under the circumstances. Failure to so satisfy himself deprives the judge of jurisdiction.

 

Case referred to:

Velupillai and Others v. Sivanathan [1993] 1 Sri L. R. 123, 126.

APPLICATION for revision of order of the Primary Court Judge, Matara.

W. Dayaratne for respondent‑petitioners.

Ananda Kasturiaratchi for 1st respondent.

2nd  respondent absent and unrepresented.

Cur. adv vult.

October 14, 1994.

ISMAIL, J.

The 1st respondent initiated proceedings in the Primary Court, Matara by filing a plaint and an affidavit together with a letter from the grama sevaka, all dated 31.10.89. The caption to the plaint described it as an action instituted in terms of section 66(1) (b) of the Primary Courts Procedure Act.

It was averred in her plaint and the affidavit that she was in possession of the land called 'Kottege Ruppewatte' in extent of about an acre, and that the petitioners entered the land forcibly on 27.10.89, caused damage by cutting down trees and had built a cadjan house thereon. The grama sevaka's letter annexed to the pleadings and which was issued at the request of the 1st respondent for the purpose of instituting legal proceedings certified that she was in possession of the said land. The 1st respondent prayed that the petitioners be evicted and that she be given vacant possession of the said land. This prayer was stated to be sought in terms of section 66(1) and (2) of the Primary Courts Procedure Act, No. 44 of 1979.

The case for the 1st respondent Punchi Nona was that she was in possession of this land since 1946 and that though her son Abraham Chandratilake Pujitha Thilakawardana had later become its owner, yet she continued to possess the said land along with her son. She did not produce any deed or further evidence in regard to her claim to the said land.

  

The 2nd respondent in his affidavit stated that he purchased the said land called Kottagodage Ruppewatte in extent 1A OR OP from the said Pujitha Thilakawardana by deed No. 2766 dated 26.01.92 attested by D. Samaratunge N.P and that since then he had undisturbed and uninterrupted possession of the land until he sold the same to the petitioners by deed No. 10 dated 3.10.89 attested by P. Batagoda N.P.

The petitioners in their affidavit stated that possession of the said land was handed over to them by the 2nd respondent when they purchased it from him on the said deed No. 10 dated 3.10.89. They confirmed that they commenced clearing the land on 27.10.89 and that on 30.10.89 they erected a cadjan shed in which they are presently living.

The 1st respondent claims to have made a complaint to the police but no such statement was produced in the course of the proceedings. However it is in evidence that the 1st respondent made a complaint to the grama sevaka on 31.10.89.

The grama sevaka who submitted a report dated 3.01.90 on the direction of Court stated that the 1st respondent had made a complaint to him on 31.10.89 to the effect that petitioners had forcibly entered the land and had caused damage to the value of Rs. 5000/‑. The grama sevaka visited the land and met the petitioners who informed him that they had purchased the land for valuable consideration. They produced the deed before him at his office on 3.11.89. According to the observation of the grama sevaka the petitioners had cut 3 coconut trees at the entrance to the land and were engaged in erecting a cadjan shed. He concluded by stating that this was the subject‑matter of the dispute.

The grama sevaka had earlier issued a letter, annexed to the plaint, dated 31.10.89 at the request of the 1st  respondent that she was in possession of the land. He had also issued a letter dated 3.11.89 at the request of the petitioners to the effect that they were in occupation of the land since 27.10.89 after purchasing the same. The land was a bare land with no buildings standing thereon. The report of the grama sevaka to Court and his letters issued at the instance of the parties did not contain any fresh material besides the admitted facts relating to the purchase of the land by the petitioners, entering into occupation by them, clearing the land on 27.10.89 and erecting a cadjan shed on 30.10.89. There is no reference either to the purchase of the land by the 2nd  respondent in 1982 or to his possession of the land since then prior to its sale to the petitioners.

The learned Primary Court Judge at the conclusion of the proceedings found the facts, as admitted, to be that the 2nd  respondent sold the land to the petitioners and handed over possession to them on 3.10.89. As the 1st respondent alleged that the petitioners forcibly entered the land on 27.10.89 and evicted her, the Judge proceeded to consider the question as to who was in possession of the land prior to its sale to the petitioners. The Judge upon a consideration of the report of the grama sevaka and upon a consideration of the affidavits filed by the parties held that the 1st respondent was in possession of the land before its purchase by the petitioners and made order restoring possession of the land to her. He has failed to refer to the deeds produced by the 1st  and 2nd respondents.

The petitioners seek to have the said order dated 31.10.90 revised. The petitioners in the present application filed dated 8.2.90 had pleaded that they have invested money in the purchase of this land and that they were living with their children in a house put up on the land. They therefore moved for an order that no further proceedings be taken consequent upon the order of the Primary Court Judge till the final determination of this application. An interim order to this effect was made by this Court on 28.3.90.

Counsel for the petitioners submitted that there has been no finding by the Judge as to who was in possession of the land at the time of the filing of the information as required by section 68(1) of the Primary Courts Procedure Act. His submission further is that the Judge has failed to arrive at a determination on the affidavits and documents furnished and that he has acted solely on the report of the grama sevaka in arriving at the decision that the 1st respondent had possession of the land prior to its purchase by the petitioners. He alleged that the report of the grama sevaka was based on hearsay material and that he had been posted to the area only a few months previously.

In my view the error is more fundamental. The learned Judge has proceeded to treat the dispute as one in regard to possession of the land under section 68(1) of the Primary Courts Procedure Act when it was in fact a dispute under section 69(1), as to who was entitled to the right to the land other than the right to the possession of such land. It was in the forefront of the case for the 1st respondent that though the ownership of the land passed to her son that she continued to possess the land together with her son. She has not furnished any specific dates in regard to this. It is common ground that the land was a bare land with no buildings standing on it. On the other hand, the petitioners claimed to be entitled to the land on the deed of purchase from the 2nd respondent. The 2nd respondent himself claimed to have purchased the land in 1982 from the 1st respondent's son. It was then the duty of Court to have determined under section 69(1) of the Act as to which of the parties had acquired the ownership of the right to the land or became entitled to the right to the land.

Section 68(1) of the Act is concerned with the determination as to who was in possession of the land on the date of the filing of the information to Court. Section 68(3) becomes applicable only if the Judge can come to a definite finding that some other party had been forcibly dispossessed within a period of 2 months next preceding the date on which the information was filed. The distinction in section 69 is that it requires the Court to determine the question as to which party is entitled to the disputed right preliminary to making an order under section 69(2) of the Act. By failing to appreciate the nature of the dispute between the parties initially, the Court failed to consider the merits of the rival claims in deciding as to who is entitled to the disputed right. The plaint filed was itself no assistance as it claimed relief under unrelated sections in the Act.

However the main submission on behalf of the petitioner was that the Judge did not have the jurisdiction to deal with the information filed by the 1st respondent as there was no finding by him that the dispute was likely to cause a breach of the peace. Where the information is filed under section 66(1) (a) of the Primary Courts Procedure Act by a police officer a Primary Court is vested with jurisdiction to inquire into the dispute. The Police Officer is empowered to file the information only if there is a dispute affecting land and the breach of the peace is threatened or likely. However, when an information is filed by a party to the dispute under section 66(1) (b) it is left to the judge to satisfy himself that there is a dispute affecting land owing to which a breach of the peace is threatened or likely. As observed in Velupillai and Others v. Sivanathan (1)"...when an information is filed under section 66(1) (b) the only material that the Magistrate would have before him is the affidavit information of an interested person and in such a situation without the benefit of further assistance from a police report, the Magistrate should proceed cautiously and ascertain for himself whether there is a dispute affecting land and whether a breach of the peace is threatened or likely".

In the present case the 1st respondent filed a plaint together with an affidavit and prayed for the eviction of the petitioners and for restoration of possession. The petitioners then filed their affidavit setting out the basis on which they lawfully came to occupy the land. The learned Primary Court Judge has failed to express his view in regard to the question of the dispute escalating and causing a breach of the peace. The grama sevaka did not state that he anticipated a breach of the peace and there was no intervention by the police though the 1st respondent claimed to have made a statement. The jurisdiction conferred on a Primary Court under section 66 is a special jurisdiction. It is quasi‑criminal jurisdiction. The primary object of the jurisdiction so conferred is the prevention of a breach of the peace arising in respect of a dispute affecting land. The Court in exercising this jurisdiction is not involved in an investigation into title or the right to possession which is the function of a civil Court. He is required to take action of a preventive and provisional nature pending final adjudication of rights in a civil Court. It was therefore incumbent upon the Primary Court Judge to have initially satisfied himself as to whether there was a threat or likelihood of a breach of peace and whether he was justified in assuming such a special jurisdiction under the circumstances. The failure of the judge to satisfy himself initially in regard to the threat or likelihood of the breach of peace deprived him of the jurisdiction to proceed with the inquiry and this vitiates the subsequent proceedings. For these reasons, acting in revision, I set aside the order of the Primary Court Judge dated 30.1.90.

The Application is allowed with costs.

Application allowed.

Order set aside.

ABEYGUNASEKERA v.SETUNGA AND OTHERS

1997 2 SLR 162

SUPREME COURT.

G. P. S. DE SILVA, C.J.,

KULATUNGA, J. AND

RAMANATHAN, J.

S.C. REFERENCE NO. 1/94.

C.A. APPEAL NO. 18/92 (PHC).

H.C. COLOMBO NO. 22/91 (REV)

M.C. MT. LAVINIA NO. 68192.

MAY 26, 1995.

Jurisdiction of the Court of Appeal to hear appeals from orders of a Provincial High Court made in the exercise of its Revisionary Jurisdiction - Article 154P (3) (b), 154P (6) and 138(1) of the Constitution- Section 74(2) of the Primary Courts' Procedure Act No. 44 of 1979.

The following questions were referred to the Supreme Court for determination in terms of Article 125(1) of the Constitution.

1. Does the Court of Appeal have an appellate jurisdiction in terms of Article 138(1) of the Constitution as amended by the 13th Amendment in respect of a decision of the Provincial High Court made in the exercise of its Revisionary Jurisdiction?

2. Does a party aggrieved by a decision of the Provincial High Court given in respect of a matter coming within Part VII of the Primary Courts' Procedure Act, have a right of appeal to the Court of Appeal in terms of Article 154P(6) of the Constitution as amended by the 13th Amendment read with Section 74(2) of the Primary Courts Procedure Act?

Held:

(i) The Appellate jurisdiction of the Court of Appeal under Article 138(1) read with Article 154P(6) of the Constitution is not limited to correcting errors committed by the High Court only in respect of Orders given by way of appeal. The Court of Appeal has jurisdiction to hear an appeal against a decision of the High Court whether given by way of Appeal or Revision.

(ii) Section 74(2) of the Act No. 44 of 1979 plainly prohibits an appeal from the decision of the Primary Court Judge. Such prohibition cannot affect the right of appeal to the Court of Appeal against a decision of the High Court.

The questions referred to are answered as follows:

1. Yes

 2. Yes

Per Kulatunga, J.,

"There is no warrant for dissecting Article 138(1) into two parts and holding that the powers of Appeal and Revision given by the Second Part are limited to decisions given in the exercise of the original jurisdiction of the High Court. The entire article should be read as a whole."

Cases referred to:

1. Gunaratne v. Thambinayagam (1993) 2 Sri L.R. 355.

Reference to the Supreme Court under Article 125(1) of the Constitution.

J. W. Subasinghe P.C. with D. R. P. Goonetilake and Manohara de Silva for appellants.

S. Mahenthiran with Sampath Welgampola for appellant in C.A. 1/93 (PHC).

Nihal Jayamanne with Prasantha de Silva, Ms Noorania Amerasinghe and Ms. Vasana Perera for 1st respondent.

Other respondents absent and unrepresented.

Cur. adv. vult.

June 8, 1995.

KULATUNGA, J.

A dispute affecting land (between the Party of the 1st Part and the Party of the 2nd Part, hereinafter referred to as the "appellant" and the "1st respondent", respectively) was referred to the Magistrate's Court of Mt. Lavinia under Section 66 of the Primary Courts' Procedure Act No. 44 of 1979. After inquiry, the Magistrate (acting in his capacity of a Primary Court Judge) made order in terms of Section 68 of the Act directing the appellant to be restored to possession. That order was set aside by the High Court of the Western Province acting in revision on an application made by the 1st respondent. The appellant being aggrieved by the judgment of the High Court, appealed to the Court of Appeal.

At the hearing of the appeal a preliminary objection was raised that the Court of Appeal has no jurisdiction to entertain the appeal as the same is in respect of an order made in the exercise of the revisionary jurisdiction of the High Court. A question was also raised as to whether in the light of Section 74(2) of Act No. 44 of 1979 the appellant is entitled to appeal to the Court of Appeal. The Court of Appeal acting under Article 125(1) of the Constitution, referred the following questions to this Court for determination.

(1) Does the Court of Appeal have an appellate jurisdiction in terms of Article 138(1) of the Constitution as amended by the 13th amendment in respect of a decision of the Provincial High Court made in the exercise of its revisionary jurisdiction?

(2) Does a party aggrieved by a decision of the Provincial High Court given in respect of a matter coming within part VII of the Primary Courts Procedure Act, have a right of appeal to the Court of Appeal in terms of Article 154P(6) of the Constitution as amended by the 13th amendment read with Section 74(2) of the Primary Courts' Procedure Act.

Learned Counsel for the 1st respondent submitted that on a proper construction of the relevant provisions, the Court of Appeal cannot entertain the appeal; and the appellant's remedy is possibly by way o? revision to the Court of Appeal. In the alternative he submitted that the decision in Gunaratne v Thambinayagam (1) is wrong when it held that Section 9 of Act No. 19 of 1990 does not permit direct appeals to the Supreme Court from orders made in the exercise of revisionary jurisdiction of the High Court of a Province; and that it is the Supreme Court which has the jurisdiction to entertain an appeal from the impugned judgment. On the second question, Counsel submitted that Section 74(2) of Act No. 44 of 1979 provides that "an appeal shall not lie against any determination or order under this part"; that the right of appeal under Article 154P(6) is subject to law; hence Section 74(2) should be interpreted as prohibiting any appeal to any Court, including the Court of Appeal. Counsel argued that this interpretation will give effect to the intention of the Legislature which is to avoid protracted litigation in respect of orders made by a Primary Court Judge which are of an interim nature.

Learned Counsel for the appellant and Mr. Mahenthiran who was heard (in terms of Article ' 34(3) of the Constitution) in view of the fact that he appears for the appellant in a similar case C.A. No. 1/93 (PHC) submitted that in Gunaratne v. Thambinayagam (Supra) this Court was concerned with the interpretation of Section 9 of Act No. 19/1990; hence that decision has no application here. In the matter before us, there is no justification for eroding the appellate jurisdiction of the Court of Appeal under Article 138(1) to entertain appeals lodged in the exercise of the right of appeal granted by Article 154P(6). Counsel also submitted that Section 74(2) only precludes an appeal from an order of the Primary Court Judge and it would not touch the power of the Court of Appeal to entertain an appeal from the judgment of the High Court.

In order to determine the questions referred to this Court, we have to interpret the provisions of Article 154P (3) (b), Article 154 (P) (6) and Article 138(1) of the Constitution. These Articles are reproduced below.

A. 154 P (3) -

"Every such High Court shall -

(a) ....................

(b)        notwithstanding anything in Article 138 and subject to any law, exercise, appellate and revisionary jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrate's Courts and Primary Courts within the Province".

A. 154 P (6) -

"Subject to the provisions of the Constitution and any law, any person aggrieved by a final order, judgment or sentence of any such Court in the exercise of its jurisdiction under paragraph (3) (b) . . . . . ., may appeal therefrom to the Court of Appeal in accordance with Article 138".

A. 138 (1) -

"The Court of Appeal shall have and exercise subject to the provisions of the Constitution or of any law, an appellate jurisdiction for the correction of all errors in fact or in law which shall be committed by the High Court in the exercise of its appellate or original jurisdiction or by any Court of First Instance, Tribunal or other institution and sole and exclusive cognizance, by way of appeal, revision and restitution in integrum, of all causes, suits, actions, prosecutions, matters and things of which such High Court, Court of First Instance, Tribunal or other institution may have taken cognizance".

In Gunaratne v. Thambinayagam (Supra) the question that came up for consideration was whether the right of direct appeal to the Supreme Court provided by S.9 of Act No. 19 of 1990 is limited to orders made by the High Court in the exercise of its "appellate jurisdiction" in the narrow sense and excluded appeals from orders made in the exercise of its "revisionary jurisdiction". It was held that S.9 would not confer a right of appeal in respect of revisionary orders of the High Court. In so deciding, this Court had regard inter alia, to the following considerations:

(a)        The power of revision is an extraordinary power distinct from the appellate jurisdiction of the Court.

(b)        The right of appeal is a statutory right and must be expressly created and granted by statute.

(c)        Section 9 refers to orders made in the exercise of the appellate jurisdiction of the High Court. In contrast S.31DD(1) of the Industrial Disputes Act as amended by Act No. 32 of 1990 (which also provides for direct appeals to the Supreme Court) provides for an appeal from any final order of a High Court, in the exercise of the appellate jurisdiction or its revisionary jurisdiction, vested in it by law, in relation to an order of a Labour Tribunal.

It is thus clear that the expression "appellate jurisdiction" in S.9 of Act No. 19 of 1990 has a restricted meaning. If so, this Court cannot enlarge the right of appeal granted by that section. It is a matter for Parliament. As such, I am unable to agree that the case of Gunarathe v. Thambinayagam (Supra) has been wrongly decided. In the instant case, we are not concerned with the question whether a statutory right of appeal granted by ordinary law is subject to any limitation. The question here is whether the appellate jurisdiction of the Court of Appeal under Article 138(1) of the Constitution to entertain appeals made in terms of Article 154P(6) is restricted and excludes the power to entertain appeals from revisionary orders of the High Court. If it is so restricted then, it also means that the right of appeal granted by Article 154P(6) is restricted by Article 138(1).

Conceptually, the expression "appellate jurisdiction" includes powers in appeal and on revision. From the time of the Administration  Justice Law No. 44 of 1973 it also includes restitution in integrum. See Sections 36 and 37 of the Courts Ordinance (Cap.6), Sections 11 and 354 of the A.J. L. and Articles 138, 139 and 145 of the Constitution. Prior to the 13th amendment when only the Courts of First Instance, Tribunals and other institutions were subject to the appellate jurisdiction of the Court of Appeal, there was no question that the Court of Appeal was empowered to exercise its jurisdiction "by way of appeal, revision and restitution in integrum". Under the 13th amendment the High Court of a Province which is vested with powers of appeal as well as revision is not a Court of First Instance. Hence, by a consequential amendment to Article 138(1), that Court also has been made subject to the appellate jurisdiction of the Court of Appeal. The amendment provides inter alia that "the Court of Appeal shall have and exercise ... an appellate jurisdiction for the correction of all errors ... which shall be committed by the High Court, in the exercise of its appellate or original jurisdiction".

The power to review the orders of Magistrate's Courts and Primary Courts by way of appeal and revision is conferred on High Courts by Article 154P (3) (b). Section 3 of Act No. 19 of 1993 extended this power to orders of Labour Tribunals and orders made under Sections 5 and 9 of the Agrarian Services Act. Had these provisions conferred appellate jurisdiction on the High Court to be exercised by way of appeal and revision, the questions of interpretation of the kind which have arisen from time to time may not have arisen. However, the use of the expression "appellate and revisionary jurisdiction" has given rise to such questions. Whenever such questions arise as to the meaning of a particular provision, the Court has to interpret the statute and determine its meaning on the basis of the intention of Parliament or the supposed intention of Parliament, having regard to the language of the statute and relevant rules of interpretation. As stated in Bindra's "Interpretation of Statutes" 7th Ed. p.945:

"It is the duty of the Court to determine in what particular meaning or particular shade of meaning the word or expression was used by the Constitution makers, and in discharging the duty the Court will take into account the context in which it occurs, the subject to serve which it was used, its collocation the general congruity with the concept or object it was intended to articulate and a host of other considerations. Above all, the Court will avoid repugnancy with accepted norms of justice and reason".

In the case before us, Article 154P (3) (b) conferred "appellate and revisionary" jurisdiction on the High Court. Article 154P (6) provides that any person aggrieved by a decision of the High Court in the exercise of its jurisdiction inter alia, under paragraph (3) (b) may appeal therefrom to the Court of Appeal in accordance with Article 138. Thus Article 154(P) (6) itself has not limited the right of appeal given by it to orders made by the High Court by way of appeal. However, that Article refers back to Article 138 which spells out the jurisdiction of the Court of Appeal and the manner of its exercise.

Learned counsel for the list respondent relies upon the wording of the first part of Article 138(1) to argue that the right of appeal given by Article 154(p) (6) is limited to correcting errors committed by the High Court in deciding appeals. This argument is based on the use of the words "appellate jurisdiction for the correction of all errors ... committed by the High Court in the exercise of its appellate or original jurisdiction". Counsel next cites the second part of Article 138(1) which gives the Court "sole and exclusive cognizance by way of appeal, revision and restitutio in integrum of all causes, suits actions, prosecutions, matters and things of which such High Court, Court of First Instance, Tribunals or other institution may have taken cognizance". He argues that by this part the Court of Appeal is given appellate and revisionary jurisdiction only with regard to orders made by the High Court in the exercise of its original jurisdiction.

In my opinion there is no justification for the suggested construction of Article 138(1). In using the expression "appellate or original jurisdiction" Parliament intended to refer to the appellate jurisdiction of the High Court as opposed to its original jurisdiction. These words were not used to limit the appellate jurisdiction of the Court of Appeal to correct the errors committed by the High Court only in respect of decisions given by way of appeal. This is the interpretation which is most agreeable to justice and reason.

Secondly, there is no warrant for dissecting Article 138(1) into two parts and holding that the powers of appeal and revision given by the second part are limited to decisions given in the exercise of the original jurisdiction of the High Court. The entire Article should be read as a whole. The second part is complementary to the first part and proceeds to give the Court sole and exclusive cognizance over all the matters referred to in that Article and to spell out the manner of exercise of the appellate jurisdiction of the Court of Appeal. The second part refers to "such High Court" viz. the High Court having appellate and original jurisdiction. Accordingly, I hold that the Court of Appeal has jurisdiction to hear an appeal against a decision of the High Court whether given by way of appeal or on revision.

There is also no merit in the submission that Section 74(2) of Act No. 44 of 1979 is a bar to an appeal to the Court of Appeal from the judgment of the High Court. That section plainly prohibits an appeal from a decision of the Primary Court Judge. Such prohibition cannot affect the right of appeal to the Court of Appeal against a decision of the High Court. It is true that the right of appeal given by Article 154(P) (6) is subject to any law. However, having regard to its plain meaning, Section 74(2) cannot be invoked to deprive the appellant's right of appeal to the Court of Appeal. On the other hand, in the absence of clear and express provision, it is in the interest of justice that such right should be upheld rather than denied lest erroneous decisions of the High Court will be immune from scrutiny by a Superior Court.

For the foregoing reasons, the questions referred to this court have to be answered as follows:

1. Yes.

2. Yes.

The appellant will be entitled to costs in a sum of Rs. 750/- payable by the 1st respondent.

G. P S. DE SILVA, C. J. - I agree.

RAMANATHAN, J. - I agree.

Questions referred answered.

IQBAL  v. MAJEDUDEEN AND THERS

1999 3 SLR 213

COURT OF APPEAL.

YAPA, J.,

GUNAWARDANA, J.

C.A. (PHC) NO. 100/97.

HCRA NO. 820/96

M.C. COLOMBO NO. 72192/3.

SEPTEMBER 7, 1998.

DECEMBER 15, 1998.

MAY 8, 1999.

Primary Courts Procedure Act - Possession - Actual or constructive - Forcible dispossession - S. 68 (3) - Breach of Peace - Dispossession in the absence of the party.

The 1st respondent-respondent upon the death of her husband, went to live with her mother, and the premises in question, where she was living earlier was locked up by her. The 2nd respondent-appellant, after she returned to Sri Lanka, broke open the door of the premises and entered into possession.

The 1st respondent-respondent was restored to possession by the Primary Court and the High Court. On appeal -

Held:

1. The fact for determining whether a person is in possession of any corporeal thing, such as a house, is to ascertain whether he is in general control of it.

2. The law recognises two kinds of possession:

 (i) When a person has direct physical control over a thing at a given time - actual possession.

(ii) When he though not in actual possession has both the power and intention at a given time to exercise dominion or control over a thing either directly or through another person - constructive possession.

3. 'Forcibly dispossessed' in s. 68 (3) means, that dispossession had taken place against the will of the persons entitled to possess and without authority of the law.

4. "Breach of the Peace is likely' does not mean that the Breach of the Peace would ensue for certainty, rather it means that a Breach of the Peace is a result such as might well happen or occur or is something that is, so to speak, on the cards.

S. Mahenthiran with Ms. P. Narendran for petitioner.

M. C. M. Muneer with Ms. Inoka Ranasinghe for respondents.

Cur. adv. vult.

September 30, 1999

GUNAWARDANA, J.

This is an appeal against an order dated 30. 06. 1997 made by the High Court dismissing an application in revision in respect of an order dated 27. 12. 1996 whereby the learned Primary Court Judge had restored, in terms of that order, Samsunnisa Majeebuden (hereinafter referred to as the 1st respondent) to the possession of the premises in dispute, ie No. 24/67, Maha Vidyalaya Mawatha, Colombo 13.

The aforesaid 1st respondent had made a complaint to the Kotahena Police on 15. 08. 1996 to the effect that she was ousted from the possession of the relevant premises on or about the same date by the 2nd respondent-petitioner-appellant, viz Affeerun Nihar Hasnoon Iqbal.

The 1st respondent in her statement to the Police, referred to above, had stated that she upon the death of her husband, somewhere in June, 1995, with whom she had been living along with their children, went to live with her mother at No. 49/20, 17th lane, Kotahena, but that she kept the premises in question locked up and retained control there of. The 1st respondent had explained that she went to live with her mother temporarily as she had to live in seclusion on the death of her husband for a period of 04 months in observance of the custom prevalent amongst Muslims.

The statement marked 1 V 21 made by the 2nd respondent petitioner-appellant to the Police on the same date, ie 15. 08. 1996 is revealing, in that she had admitted therein, that some time after she returned to Sri Lanka, somewhere in May, 1995, from the Middle East, she broke open the door of the premises No. 24/67 which is the subject-matter of this case, and entered into possession thereof. The 2nd respondent-petitioner-appellant had, in that statement to the Police, even chosen to give a reason for doing so - the reason given by her being that the premises, ie No. 24/68 occupied by her was not spacious enough for her family consisting, as it did, of six persons or members. In her statement to the Police, the 2nd respondent petitioner-appellant had clearly admitted that she gained entry into or possession of premises No. 24/67 (which is the subject-matter of this case) which premises had been closed or locked up by the 1st respondent. This admission, that is, that the premises in question was kept locked up by the 1st respondent confirms the fact that the 1st respondent had actual control and management of the same which served to show that the 1st respondent had possession of the property in question, before the 1st respondent was, admittedly, ousted by the 2nd respondent-petitioner-appellant. The test for determining whether a person is in possession of any corporeal thing, such as a house, is to ascertain whether he is in general control of it. Salmond observes that a person could be said to be in possession of, say, a house, even though that person is miles away and able to exercise very little control, if any. It is also significant to note that in her statement to the Police, the 2nd respondent-appellant had admitted that the 1st respondent lived in the relevant premises during the life-time of the latter's husband. It is interesting to notice that the 1st respondent's  position that she was in possession and was ousted by 2nd respondent-petitioner-appellant is largely proved, as explained above, on the statement that the 2nd respondent-petitioner-appellant herself has made to the Police.

The law recognizes two kinds of possession:

(i) when a person has direct physical control over a thing at a given time, he is said to have actual possession of it;

(ii) a person has constructive possession when he, though not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing either directly or through another person. In this case in hand, perhaps, it cannot be said that the 1st respondent has actual physical possession because she was not in physical occupation of the house in question; but she clearly had, at least, constructive possession because she, by keeping the premises locked, clearly exercised not only dominium or control over the property in question but also excluded others from the possession there of. By keeping the premises locked, she, ie the 1st respondent, had not only continued to retain her rights in respect of the property in question but also was exercising a claim to the exclusive control there of, and her affidavit evidence is that she had not terminated her intention to revert to the physical occupation of the relevant premises.

The report of the officer in charge of the Police station whereby this dispute was brought to the cognizance of the Primary Court had been filed on 16. 09. 1996 and according to the statements that had been made to the Police, the 2nd respondent-petitioner-appellant had entered into occupation of the relevant premises on or about 15. 08. 1996. But, as the dispossession of the 1st respondent had been effected forcibly within 02 months of the date immediately preceding the date on which information regarding the dispute had been filed by the Police, the 1st respondent is entitled to be restored to possession. "Forcibly dispossessed" in 68 (3) of the Primary Courts' Procedure Act, means that dispossession had taken place .against the will of the person entitled to possess and without the authority of law. Such dispossession is calculated to or tend to a breach of the peace although, in this instance, there had been no such breach, because the dispossession had taken place in the absence of the party, ie the 1st respondent who would have opposed and resisted the dispossession had she been, in fact, present on the scene, at the relevant time.

There is somewhat of an interesting feature in this case: it was the 2nd respondent-petitioner-appellant who had, rather surprisingly, first, made a statement to the Police, regarding this incident, wherein she had made the admissions referred to above - one such admission being, as pointed out above, that she entered into occupation of the premises No. 24/67 which had till then remained locked up by the 1st respondent. This statement had been made on 15. 08. 1996 at 9.30 am, whereas the 1st respondent, who was ousted, had made the complaint, subsequently, on the same day at 4.30 pm. In her statement, the 2nd respondent-petitioner-appellant had stated that she was making that statement to the Police for, to use her own words, her "future safety or protection" - perhaps, protection from or against the consequences of her own wrongful act. it is significant to note that by the time, ie 9.30 am, that the 2nd respondent-petitioner appellant made the statement to the Police, nobody had made any complaint against her regarding her entry into premises No. 24/67, for the 1st respondent's complaint of ouster, although made on the same date, ie 15. 08. 1996 was later in point of time, ie at 4.30 pm. It is not difficult to put two and two together and infer that the 2nd respondent-petitioner-appellant had been prompted, by the consciousness of her own wrongdoing in forcibly entering the premises under the control of the 1st respondent - to make the first move in bringing what she had done to the notice of the Police.

I see no reason to interfere with the said orders made by the learned Magistrate and the High Court Judge respectively, restoring the 1st respondent to possession of the premises in question, viz No. 24/67, Maha Vidyalaya Mawatha, Colombo 13, and I affirm both the said orders. The appeal is hereby dismissed.

In conclusion, it is to be remarked that it would not be inopportune to add to what I have said above, in regard to the vexed or much discussed question: under what circumstances can it be said that a given dispute is likely to lead to a breach of the peace. A hint or slight indication relative to that question may be helpful, in that it would offer a directing principle in regard to the question whether any given dispute or circumstances are likely to lead to a breach of the peace which expression generally signifies disorderly, dangerous conduct and acts tending to a violation of public tranquility or order. One may safely conclude that if the entry into possession is done or effected by force or involves force it is, in the nature of things, such an entry as is likely to evoke resistance which would invariably be fraught with the danger that it would be productive of friction. "BREACH OF THE PEACE IS LIKELY" DOES NOT MEAN THAT THE BREACH OF THE PEACE WOULD ENSUE FOR A CERTAINTY; RATHER, IT MEANS THAT A BREACH OF THE PEACE (OR DISORDER) IS A RESULT SUCH AS MIGHT WELL HAPPEN OR OCCUR OR IS SOMETHING THAT IS, SO TO SPEAK, ON THE CARDS.

HECTOR YAPA, J. - I agree.

Appeal dismissed.

TUDOR v.  ANULAWATHIE AND THERS 

1999 3 SLR 235    COURT OF APPEAL  YAPA, J.,

GUNAWARDANA, J. C.A. NO. 95/94 (PHC).  HC KANDY REV. NO. 158/94. PRIMARY COURT KANDY NO. 11493/93.  MAY 26, 1998. AUGUST 24, 27, 1998.

Primary Courts' Procedure Act ss. 66, 68 (1), (3), 69 (1), (2) - Has the Primary Court jurisdiction under s. 68 and s. 69 to make an order of demolition or removal of a structure - Quando Lex Aliquid Concediture Et Id Sine Que Ipsa Esse Non Potest - Should reasons be given?

Held:

1. The ultimate object of s. 68, and s. 69 being to restore the person entitled to the right to the possession of land to the possession thereof or to restore the person entitled to the right (other than the right to possession of land) to the enjoyment thereof - the said provision of the law must be rationally construed to authorise by necessary implication if in fact they had not in terms done so, the removal of all obstructions if the need arise, in the process of restoring the right to the person held to be entitled to such right.

Per Gunawardana, J.

'It is true that there is no specific provision in the Primary Courts' Procedure Act expressly enabling the Court to Order removal of obstructions in the way of restoration of the right to the person entitled thereto in terms of the determination made by the Court nor is there a prohibition either against the Court exercising such a power or making such an order ... but the Courts are not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the Code.'

2. The correctness of the finding by the Primary Court cannot be tested for want of reasons, which finding lacks the aura of moral persuasiveness - a quality which a reasoned Order alone can have.

APPEAL from the Provincial High Court of Kandy.

Cases referred to:

1. Jamis v. Kannangara - [19891 2 Sri L.R. 350 (not followed).

2. A. R. v. Bristol Dock Co. - (1827) 6 B & C 181.

3. Wright v. Scott - 1855 26 LT (05) 180 HL.

4. Gas Company v. City of Perth Corporation - (1991) AC 506.

5. - 1845 4 0131) 46.

6. -1881 8 QBD 86.

7. Cooksen v. Lee - (1854) 23 L Ch. 473.

8. Bannerjee v. Rahaman - 29 AIR (1942) Cal. 244.

9. Narasingh v. Mangal Dubey - (1883) 5 Allahabad 163.

S. Costa for the appellant.

Reza Muzni for the respondent.

Cur. adv. vult.

May 27, 1999.

GUNAWARDANA, J.

This is an appeal from an order dated 11. 11. 1994 made by the High Court of Central Province dismissing an application for revision of an order made by the Primary Court on 02. 02. 1994 "and such other subsequent orders as had been made by the Primary Court".

In fact, the "order" that had been made by the Primary Court on 02. 02. 1994 is not strictly speaking, couched in terms of a direction as such but partakes also, to all external appearance, of the character of terms of a settlement entered into, more or less by mutual consent. But, upon a closer scrutiny of the relevant facts there is no mistaking that the order dated 02. 02. 94 is an imposed one so far as, at least, the 6th respondent-appellant was concerned and not one to which he had genuinely agreed or consented of his own free will, as such - as the sequel would show. The said order, which had been made by the Primary Court Judge upon an inspection of the site, reads thus:

The learned Primary Court Judge has stated in the aforesaid order, or whatever one may call it, that the 6th respondent-appellant "agrees" to remove the concrete post No. 3 and virtually widen the road "in order to allow a vehicle to go or pass through". It is manifest from the order of the learned Primary Court Judge that the removal of post No. 3 was necessary as it would otherwise obstruct the passage of a vehicle.

It is also equally clear that the 6th respondent-appellant had (as stated in the order) agreed, if, in fact, the 6th respondent-appellant could be said to have genuinely agreed, to remove the concrete post No. 3, upon, to use the very words of the learned Primary Court Judge, "the matters being explained" (by the Primary Court Judge) to the 5th respondent-appellant. What does the expression "the matters being explained" connote in the context? One does not even have to read between the lines to know that it meant that some degree of persuasion had been brought to bear upon the 6th respondent-appellant, by the learned Primary Court Judge in order to induce or prevail upon the 6th respondent-appellant, to remove the concrete post No. 3. It cannot be truly said that the 6th respondent-appellant had "agreed" to remove the concrete post No. 3 in the sense he had volunteered to do so. It would be closer to the truth and reality to say that he had been "made to agree to remove the said concrete post upon the "matters being explained". Perhaps, no Judge can ever be faulted for persuading parties to come to a just settlement of the dispute which can be arrived at as between the parties only upon a true insight being gained by the Court into the real or the true factual position. But, I am afraid the visual inspection of the site that had been undertaken by the learned Primary Court Judge had not enabled him to fully investigate the matter, if one were to take his own order dated 2. 2. 1994 as a guide - for although the learned Primary Court Judge had in the said order, stated that the 6th respondent-appellant had "erected new concrete posts and constructed a parapet wall taking in a part of the roadway into his land' - none can fathom from the Judge's order how the learned Primary Court Judge reached that finding for he had not chosen to give any reasons with respect to that question, viz as to why or how he formed the view or reached the decision that a part of the roadway had been encroached upon. Justice must not only be done but must be seen to be done on a rational basis and this can happen only when reasons are given for a finding and not otherwise. Then only will justice be rooted in confidence.

Of course, the learned Primary Court Judge had in his order said thus: "new concrete posts had been erected and a parapet wall had been built". But, erection of a new parapet wall per se cannot constitute proof of the fact that a part of the roadway had been incorporated into the land of the 6th respondent-appellant for one can construct a new wall along the old boundary, as well, which is precisely the case of the 6th respondent-appellant.

However, in his order the learned Primary Court Judge is silent as to whether it was the existence of new concrete posts which prompted him to take the view that a part of roadway had been encroached.

It is clear from the order of the learned Primary Court Judge made on 02. 02. 1994 that he had 'explained matters" to the 6th respondent-appellant presumably, if not, obviously, with a view to persuading him to remove the concrete post No. 3 obviously because of his (Judge's) impression that a part of the roadway had been taken into the 6th respondent-appellant's land in consequence of the erection of the wall or the post. But, I am not in a position to say whether that impression of the Primary Court Judge is erroneous or not for the Primary Court Judge had omitted to give reasons therefor. Even an order made after an inspection must be demonstrably fair, in fact, even fairer than an order made in the course of or after a trial or inquiry for at an inspection the Judge has, perhaps, a greater scope or freedom to take a view untramelled by the technicalities although even such an order must still be based on reason and justice. The considered order of a Court made after a visual inspection is not such an order as will rise or fall on fine and subtle distinctions based on an overly legalistic approach but one that will be based on straight talk and stark truth.

Although, according to what is stated in the order of the Primary Court dated 2. 2. 1994, the 6th respondent-appellant had "agreed to remove" the concrete post No. 03, yet he had failed to do so and on 15. 6. 1994 the Primary Court had made an order to enforce, the said order, dated 2. 2. 94 which was the date on which the aforesaid inspection was held. The order made on 15. 6. 94 to enforce the order of 2. 2. 94 is, in the circumstances, substantially, if not wholly, and for all practical purposes, an order of demolition with respect to the said concrete post No. 3.

It will be readily noticed that there is a direct causal connection between "explaining matters" by the Primary Court Judge which in this context meant, to put it euphemistically, persuading the 6th respondent-appellant to remove the concrete post No. 03 so as to widen the roadway and the finding or the impression of the Primary Court Judge formed (after a visual inspection) that erection of the parapet wall had constituted an encroachment on a part of the roadway which finding may or may not be erroneous. Realistically, viewing the matter, there is no gainsaying that it was the impression or the finding by the learned Primary Court Judge that a part of roadway had been encroached upon that prompted him to "explain matters" primarily with a view to prevail upon the 6th respondent-appellant to remove the concrete post No. 3. The correctness of that finding or the impression, as pointed out above, cannot be tested for want of reasons, which finding lacks the aura of moral persuasiveness - a quality which a reasoned order alone can have.

When a Court exercising an appellate jurisdiction finds that it cannot say for certain that the order of the subordinate Court is neither right nor wrong, inasmuch as the subordinate Court had omitted to give reasons for the order, there is little else that the superior can do than to-direct a fresh inquiry and I do so accordingly. This, I think, is the only choice open to me because, so far as I know, there is no practice of requesting reasons for a decision at this stage; nor is there a provision which enables me to do so. But, the parties are well-advised to pause and consider calmly and dispassionately whether it would not be an exercise in futility to proceed with this inquiry afresh as the rights of parties in respect of the same dispute are being currently investigated in the District Court which would hopefully produce a lasting solution.

The long and short of all this is that the aforesaid order dated 2. 2. 1994 (which order is, in fact, it may be observed, described or referred to as an "order" in the Primary Court Judge's order of 15. 6. 1994 itself directing enforcement of the previous order of 2. 2. 1994) may or may not be correct and I cannot sitting in appeal, as 1 do, tell either way. It is possible that the order dated 2. 2. 94 is correct although it is equally possible that it is wrong for, as pointed out above, no reasons had been given for the finding on which the order dated 2. 2. 1994 is rested. An application in revision had been made in respect of that order of the Primary Court dated 2. 2. 1994 which application, as stated above, had been refused by the High Court on 15. 11. 1994. Perhaps, to put it at its lowest, one may even infer doubtfully or even say, of course, tentatively, that it is more probable than not that the order dated 2. 2. 1994 is wrong, inasmuch as in the complaint made on 7. 9. 1993 to the Police upon which complaint these proceedings had been initiated in the Primary Court - no mention whatsoever had been made of any encroachment on the roadway in question. It is worth reproducing the relevant excerpt of that statement which is as follows:

1st respondent must be taken to have said in her complaint what she meant and also meant what she said. Nowhere in the above statement had she said that a wall had been built by Tudor (the 6th respondent-appellant) encroaching on the roadway. In fact, what the 1st respondent had explicitly stated in the above statement was that wall   was being put up along the "edge of the road" which means the edging or the border or the line of demarcation between the 6th respondent's land and the roadway. If, as stated in the complaint, the construction was on the border or the boundary it could be said by way of argument, that the roadway could not have been encroached upon by reason of that construction although I am backward in reaching a finding to that effect on such a tenous and rarefied ground. Last, but not the least, the fact that there is no reference to or mention of any encroachment as such even in the report filed by the Police in the Primary Court calls for remark in this regard.

The point on which this appeal is allowed to the extent of directing a fresh inquiry, viz that no reasons are given for the finding that a part of the roadway had been encroached upon, was not urged before the High Court Judge who had been wholly oblivious to that aspect; nor was that point urged before us.

This should suffice to dispose of this matter. But, since what is, in fact, a point of great nicety has been raised in regard to the law, viz that the Primary Court had no jurisdiction either under section 68 or under section 69 of the Primary Courts' Procedure Act to make an order of demolition or removal of a structure, I wish to deal with that point as well although it is only of academic interest as the order of the High Court dated 11. 11. 1994 has, in any event, to be vacated because, the High Court had by such order upheld the order of the Primary Court Judge dated 2. 2. 1994, which latter order (of the Primary Court) as explained above, is not substantiated with reasons. It is to be observed that upon the failure of the 6th respondent appellant to remove the concrete post No. 3 the learned Primary Court Judge had on 15. 6. 1994 directed that the order dated 2. 2. 94 made by the Primary Court be carried out.

In this matter, irrespective of whether the dispute in this case falls under section 68 or section 69 of the said Act, the Primary Court, in making any order with respect to a dispute affecting land is clothed with the jurisdiction, (if necessary, for the due execution of its duty, viz to restore to the person entitled thereto the possession of the land or the enjoyment of the right, as the case may be, and "prohibit all interference" therewith, ie respectively with possession or enjoyment of the right) to make an order directing the removal or demolition of any structure - be it a house, concrete post or anything else that has been constructed or built - if that structure, whatever it may be, constitutes a hindrance to the execution of the aforesaid duty of the Primary Court.

The Primary Court is vested in express terms with the power under sections 68 (3) and 68 (4) of the Primary Courts' Procedure Act to make a tentative order restoring to possession of the land or part thereof, the person who is entitled to possess in terms of the determination made by the Primary Court under sections 68 (1) and 68 (3) respectively and also prohibiting disturbance of possession in the two instances contemplated by sections 68 (1) and 68 (3). To further explain the two instances or the situations referred to above: Section 68 (1) of the Primary Courts' Procedure Act requires or authorizes the Primary Court to determine who was in possession of the land or part thereof on the date of the filing of the information in Court regarding the dispute. After such determination the said Court is empowered under section 68 (4) of the relevant Act to restore possession to that person who was found by the Court to be entitled thereto which section 68 (4) reads thus: "An order under subsection (1). . . may contain a direction that any party specified in the order shall be restored to possession of the land or any part thereof.

(i) The Primary Court is expressly empowered under section 68 (4) of the said Act to restore to possession of the land or part thereof the party who was in actual possession on the date of filing of information regarding the dispute by the Police under section 66 of the Act and the Primary Court is also vested with the jurisdiction under section 68 (2) to make order protecting and prohibiting disturbance of possession of such person, ie the person who was found to be in possession on the relevant date, ie the date of filing of information, until such person is evicted there from under an order or decree of a competent Court;

(ii) the Primary Court makes an identical or the same order under 68 (3) of the said Act, ie prohibiting disturbance of possession when it (the Court) makes order under section 68 (3) of the said Act, restoring to possession a person who had been in possession previously but had been forcibly dispossessed within a period of two months immediately before the date on which the information was filed by the Police in Court pursuant to section 66 of the Primary Courts' Procedure Act. To reproduce the relevant section 68 (3) of the said Act: "Where at an inquiry into a dispute relating to the possession of any land or any part of a land the Judge of the Primary Court is satisfied that any person who had been in possession of the land or part has been forcibly dispossessed within a period of two months immediately before the date on which the information was filed under section 66 he may make a determination to that effect and make an order directing that the party dispossessed be restored to possession and prohibiting all disturbance of such possession otherwise than under the authority of an order or decree of a competent Court".

Thus, it is to be observed that in the two situations described above the Primary Courts' Procedure Act, expressly and in so many words had conferred on the Primary Court the power to restore to possession of a piece of land the person who is entitled to possess pursuant to a determination by the Court arrived at after inquiry in that regard.

The Primary Court is also empowered under section 69 (2) of the relevant Act, to make an order, ie prohibiting disturbance or interference with the exercise of the right of any person who is entitled to exercise that right when the dispute relates to any right other than the right to possession of land. For example, when the Primary Court makes a determination that a person is entitled to the exercise of the right of a servitude of a roadway - the Primary Court will make an order prohibiting interference with the exercise of that right which order will cease to have any binding effect only if a decree of a competent Court is entered in respect of the right as against that person, ie the person in whose favour the Primary Court had earlier made the determination.

But, when the Primary Court makes an order or determination under section 69 of the Act, as to any right to land other than the right to possession of land - the Act, nowhere had stated in express terms as in the case of two situations described above, ie where right to possession of land was in dispute, that the person who, after inquiry, is held by the Court to be entitled to exercise that right (other than the right to possession of land) shall be restored to the possession or exercise of that right. According to the definition of "dispute affecting land", as explained in section 75 of the Primary Courts' Procedure Act, the 'dispute as to any right other than the right to possession of land" refers to or means or embraces all such "disputes as to the right to cultivate any land or part thereof or as to right to the crops or produce thereof or any right in the nature of a servitude affecting land." Then the question arises: when the dispute affecting land relates to any right (enumerated above) other than the right to possession of land - is the Primary Court endowed with the power to make an order restoring that right to the person entitled to the exercise thereof, ie of that right, thereby facilitating the exercise of that right by that person unless and until that person is deprived of that right by an order or decree of a competent Court? The answer must necessarily be in the affirmative. Sometimes, the legislature either through forgetfulness or through erratic or bad drafting or because it is so obvious, (because one need not labour the obvious) fails to expressly incorporate into the section, terms or provisions which, had the legislature adverted to the situation, it would certainly have inserted to give such clarity or rather efficacy to the section, so to speak, that the legislature must have intended, at all events, that it, ie the provision of law, should have. It cannot for a moment be said that implying such a power defeats the intention of the relevant legislative provision; rather by implying such a power the Court carries into effect or effectuates the clear intention of the sections 69 (1) and 69 (2) which two subsections, respectively reads thus.

69 (1): "Where the dispute relates to any right to any land or any part of a land other than the right to possession of such land or part thereof, the Judge of the Primary Court shall determine as to who is entitled to the right which is the subject of the dispute and make an order under subsection (2)" which subsection is as follows: 'An order under this subsection may declare that any person specified therein shall be entitled to any such right in or respecting the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of an order or decree of a competent Court and prohibit all disturbance or interference with the exercise of 'such right . . . other than under the authority of an order or decree as aforesaid."

The intention of the above legislative provision, ie sections 69 (1) and (2) of the Primary Courts' Procedure Act, is all too clear : it is to ensure that the relevant right in question is exercised by the person who, the Primary Court determines, is entitled to the right and by nobody else.

The above subsections, 69 (1) and (2), require the Primary Court after inquiry to -

(i) determine as to who is entitled to the right.

(ii) make an order that the person specified therein shall be entitled to such right until such person is deprived of that right by virtue of an order or decree of a competent Court.

(iii) prohibit all interference with or disturbance of that right other than under the authority of an order or decree of a competent Court.

One cannot reasonably assume that section 69 of the Primary Courts' Procedure Act, required the Court to take all such steps as are enunciated or itemised above but stop short of restoring the right to the person who is, according to the determination (of the Primary Court), entitled to that right so that he may exercise that right without any hindrance. It is worth observing that the section 69 of the Act, requires the Primary Court not only to specify in the order the person who is entitled to such right which means as explained above, any right enumerated or contemplated in section 75 of the Act (other than the right to possession of land) but also make further order prohibiting interference with and disturbance of that right. The power conferred on the Primary Court under section 69 (2) of the Act to prohibit disturbance of the exercise of the rights, I take it, necessarily carries with it the power, if not expressly, at least, by necessary implication, to restore the right to that person who is found or determined by the Primary Court to be entitled to that right if, in fact, that person who is held to be entitled to that right had been deprived of it. The Court cannot and in, fact, need not prohibit disturbance of possession or exercise of a right by a person as required by section 69 (2) of the Primary Courts' Procedure Act, if that person is not, in fact, in possession or restored to possession or rather the enjoyment of the same, ie of that right - so that he can exercise it. Prohibiting disturbance of the exercise of the right as required by section 69 (2) is called for or rendered necessary (as required by the said subsection) because of the restoration of the exercise of the right to the person held to be entitled thereto.

Thus, it is clear that sections 69 (1) and (2) of the Act, authorizes by implication (as explained above) the restoration of the right (other than the right to possession of land) to the person who is held to be entitled to such right just as much as restoration of the right to possession of land is expressly authorized, as explained above, by sections 68 (2) and 68 (4) respectively.

The counsel for the 6th respondent-appellant had referred us to Jamis v. Kannangara(1) which had held that no order of removal of a structure could be made under the said section 69 (2) and submitted on the authority thereof that the learned Primary Court Judge had no authority or power to order the demolition of the concrete post No. 3 as the Primary Court Judge had in fact seems to have done 15. 06. 1994. The said order itself is not all that clear and the whole of which order reads thus and amounts to this:

The so-called order dated 2. 2. 1994 (that being the denomination into which the said order appropriately would fall) is reproduced verbatim at page 01 hereof and nowhere is it contemplated there in the demolition of a wall or a parapet wall which the fiscal in pursuance of the order of 15. 6. 1994 had effected or caused, as stated in his (fiscal's) report, submitted to Court after carrying out the order (of 15. 6. 1994), the relevant excerpt of which report reads as follows:

The above excerpt reproduced from the fiscal's report states that not only the concrete post No. 3 but also a wall or structure or embankment2 feet high which was "connected to the concrete post No. 3 was also removed by the fiscal.

Be that as it may, the basic argument of the learned counsel for the 6th respondent-appellant was that Primary Court was destitute of any power to order the removal of any structure to facilitate the handing over of possession to the person held by Court to be entitled thereto.

A perusal of the order dated 2. 2. 1994 (which was carried out in terms of the order dated 15. 6. 1994) would show that although there is mention of the removal of a concrete post No. 3 – there is no mention whatever about the removal of any kind of wall. In fact, the order of 2. 2. 1994 (which as explained above was implemented by the order made by the Primary Court on 15. 6. 1994) contemplates or makes mention not of a demolition of any wall but the erection of one, ie a wall. This confusion is attributable, perhaps, to the lack of care and neatness, on the part of the Primary Court Judge, in recording or committing his order into words or writing.

We are not bound by the decision referred to above, ie Jamis v. Kannangara 'and we choose not to follow it as the Court had not considered therein the doctrine of implied powers embodied in the maxim: "Quando Lex Aliquid Councedit Concediture Et Id Sine Quo Res Ipsa Esse Non Potest". Its full and true import was set out in the judgment Fenton v. Hampton (referred to in Bindra). To quote: "Whenever anything is authorized and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something not authorized in express terms be also done, then that something else will be supplied by necessary intendment ... " What the doctrine of implied power means is this : that where an Act, confers jurisdiction, it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution. CAN ONE RATIONALLY ASSUME THAT ALTHOUGH THE LEGISLATURE CLEARLY IMPOSED ON THE PRIMARY COURT, AS POINTED OUT ABOVE, THE DUTY UNDER SECTION 69 OF (I) DETERMINING WHO IS ENTITLED TO THE RIGHT OTHER THAN THE RIGHT TO POSSESSION OF THE LAND AND EVEN (II) MAKING AN ORDER SPECIFYING THE PERSON ENTITLED TO THAT RIGHT AND ALSO MAKING AN ORDER PROHIBITING ALL INTERFERENCE with OR DISTURBANCE OF THAT RIGHT - YET DENIED THE NECESSARY POWER TO COURT TO ACCOMPLISH THAT END OR TO PERFORM THAT DUTY IMPOSED BY THE LAW, BY CLEARING AWAY OR REMOVING SUCH OBSTRUCTIONS AS STOOD IN THE WAY OF THE ENJOYMENT OF THAT RIGHT BY THAT PERSON SPECIFIED IN THE ORDER (MADE BY THE PRIMARY COURT) AS THE PERSON WHO IS ENTITLED TO THE SAID RIGHT? (It has to be repeated that 69 (2) of the Primary Courts' Procedure Act, empowers the Primary Court to prohibit all interference with the exercise of the right to which the person is entitled to in terms of the declaration in terms of section 69 (1). When a statute grants a power or privilege it carries with it everything necessary for its exercise. I think, it is one of the first principles. For instance, by the grant of mines, the power to dig is impliedly conferred. A. R. v. Bristol Dock Co.(2); Wright v. Scott(3); Gas Co. v. City of Perth Corporation(4). Similarly, authority to build a bridge on a stranger's land carries with it the right of erecting on the land the temporary scaffolding which was essential to the execution of its work 1845 4 Q. B. 46(5). 1881-8 QBD-86(6). Implied powers are as much an integral part of any Act, as if those powers had been specifically expressed in the Act, itself.

If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance and essential to the proper and effectual performance of the duty or the work which the statute has in contemplation the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out. In Cookson v. Lee (7) the facts were: a private Act, vested certain lands in trustees for the purpose of enabling them to sell the lands for building purposes. But, the Act, contained no express provision or power to expend any portion of the purchase moneys in setting out the lands or in making the roads. In these circumstances, the Court held that, having regard to the object of the Act, - viz the sale of the property as building land - such power, to make roads and give facilities for putting the property in a state in which it is capable of being sold and immediately used for building purposes, ought to be implied. Lord Crawford who decided that case said: "We must take it (the Act) as we find it and one very natural question - whether if it does not in terms do so - it does not do it by implication/ whether we must not infer from the powers given, the legislature considered that they had given the power which is contended for, or whether by directing something to be done, they must not be considered by necessary implication to have empowered that to be done which was necessary to accomplish the ultimate object".

The ultimate object of the aforesaid sections 68 and 69 respectively, being to restore the person entitled to the right to the possession of land to the possession thereof or to restore the person entitled to the right (other than the right to possession of land) to the enjoyment thereof - the said provisions of the law must be rationally construed to authorize by necessary implication, if, in fact, they had not in terms done so, the removal of all obstructions, if the need arose, in the process of restoring the right to the person held (by the Primary Court) to be entitled to such right. (The right other than the right to possession of land, would include such rights as the right to cultivate any land, or as to the rights to crops of any land or right in the nature of a servitude) So, that it is plain that the case of Jamis v. Kannangara (supra) which held that no order of removal of a structure could be made under section 69 (2) of the Primary Courts' Procedure Act, had been decided, with respect, overlooking the doctrine of implied powers as explained above, as sections 68 (1) and 68 (3) expressly and section 69 (2) by necessary implication, if not expressly, enable, if not require, the Primary Court to restore the benefit of the right to possession to the person entitled to it by placing him in possession or in enjoyment of the right respectively - the legislature must be taken to have given the power to the Court by necessary implication to do everything which is indispensable for the purpose of carrying out the purpose in view - purpose being to restore to possession the person who according, to the determination made by the Primary Court in terms of section 68 (1) or 68 (3) is entitled to possess the land or enjoy or exercise the right (other than right to possess land) in terms of a determination made under section 69 (1) of the Primary Courts' Procedure Act.

That the implying of such a power, ie the power to sweep away all such obstructions and impediments in the way of restoration of the person to possession or enjoyment of the right, ie every kind of right coming within the definition of dispute affecting land as stated in the aforesaid section 75 is necessary, would be made dearer by demonstrating the absurdities and inconvenience of adopting a contrary view, viz that the power to remove obstructions had not been granted by implication. Suppose, the Primary Court holds under section 69 (1) that a particular party or several parties to the application before it had been exercising the right to a servitude of a foot-path – three feet in width, from time immemorial - that being the one and only way to gain access. The owner of the servant tenement over which the foot-path runs blocks it, in a matter of an hour or two, by constructing a wall across it. In such a case as the above, is the Primary Court bound to stop short of making an order to clear the path by directing the demolition or removal of the obstructing wall? One can visualise other similar situations, say, the only opening to a piece of land which is surrounded on all sides by a wall seven feet in height is an entrance which is six feet in width. A person (A) forcibly oust the man (B) who had been in possession thereof and erects a barbed-wire fence or bars the opening with a wall thus effectively preventing the person who had lawfully been in possession from entering even after the Primary Court had held (after inquiry) that "B".was entitled to possess and should be restored to possession. If the power to remove a structure which hinders the recovery of possession by the person who is declared entitled to the right is not implied - order of the Court declaring a man's right to possess or granting a declaration that he is entitled to any other right, eg a right of servitude will for certain be frustrated even if the obstruction is put up after the order or declaration by the Primary Court for if a structure or construction cannot be removed that had been put up before the Court makes an order - then the same rule will apply in the case of obstructions in the form of structures that have been erected even subsequent to the Court making of the order or declaration that a certain person is entitled to the right to possess a land or to the enjoyment or exercise of. a right (other than right to possession of land).

The learned High Court Judge in his order dated 11. 11. 1994 had distinguished James v. Kannangara (supra), viz Bannerjie v. Rahaman(8), being the Indian judgment which was followed in the decision of Jamis' case, on the footing that the structures in question in James' case and Bannerjie's case was a shed for human habitation and a stable respectively and what was ordered to be demolished or removed in this case by the Primary Court Judge was a concrete post. The learned High Court Judge's reasoning was that no construction could be removed or demolished if it was a house or a stable but that a concrete post could be ordered to be removed. But, the  learned High Court Judge had signally failed to explain on what principle or rather on what principle of law he had drawn a distinction between a shed put up for human habitation and a stable on the one hand and a concrete post on the other because all those structures are things that are constructed and fall under the same genus of structures.

It is true that there is no specific provision in the Primary Courts' Procedure Act, expressly enabling the Court to order removal of obstructions in the way of restoration of the right to the person entitled thereto in terms of the determination made by the Court; nor is there a prohibition either, against the Court exercising such a power or making such an order as had been held in Narasingh v. Mangal Dubey(9). The Courts are not to act, on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the Code.

The order made by the High Court on 11. 11. 1994 is hereby set aside as also the orders made on 2. 2. 1994 and 15. 6. 1994 by the Primary Court. I direct that a fresh inquiry be held by the Primary Court.

HECTOR YAPA, J. - I agree.

Appeal allowed.

DAYANANDA v. THALWATTE

2001 2 NLR 273

COURT OF APPEAL.

JAYASINGHE, J.

JAYAWICKREMA, J.

MC NUWARAELIYA : 9616/97

CA 912/97

2nd DECEMBER, 1999.

1st FEBRUARY, 2000.

24TH MAY, 2000.

Primary Court Procedure Act - S. 66 - Petitioner declared entitled to possession - Steps under State Lands Recovery of Possession Act, 7 of 1979 - Prerogative writs - Failure to sped - Declaration that Magistrate had no jurisdiction - Can an application for Writ be combined with an application for Revision - Constitution Articles 133 and 140.

The Petitioner instituted proceedings under S. 66 Primary Courts Procedure Act alleging that, the Superintendent of the Estate attempted to interfere with the possession of the petitioner. The Primary Court made order that he was entitled to possession of the said land. Thereafter the Superintendent of the Estate instituted proceedings in the Magistrates Court in terms of Act 7 of 1979.

The Petitioner sought a declaration that the Magistrate's Court had no jurisdiction to hear and determine the matter and sought by way of certiorari and quo warranto to quash the decision of the 1st Respondent to evict the Petitioner and also to declare null and void the steps taken by the 1st Respondent. The application made to the High Court by the Petitioner was withdrawn, and an Application was made to the Court of Appeal to quash the decision by the 1st Respondent to institute proceedings in terms of Act 7 of 1979 and to declare that the quit Notice is of no avail or force, and for an order declaring that the Magistrates Court of Nuwara Eliya has no jurisdiction to hear the case.

Held :

(i) Application for Revision in terms of Article 138 and an application for writ of Quo Warranto, Certiorari and Prohibition under Article 140 cannot be combined as they are two distinct remedies.

(ii) Even though the Petitioner has set out in the caption that 'In the matter of an Application....... for Writs of Quo warranto and Prohibition' there is no supporting averment specifying the writ and there is no prayer as regards the writ that is being prayed for. The failure to specify the writ renders the Application bad in law.

(iii) The institution of proceedings in the Magistrates Court in terms of quit notice is not a determination affecting legal rights "warranting the issuance of a Writ of Certiorari.

It was open for the Petitioner to seek to quash the quit notice by way of certiorari when the determination was made by the 1st Respondent, or to move in Revision at the conclusion of the Magistrates findings.

APPLICATION for Revision and Writs of Quo Warranto, Certiorari and Prohibition under Article 140 of the Constitution.

Cases referred to :

1. K. M. Karunarathne vs Ratnayake - 1986 1 CALR 478

2. Fernando vs University of Ceylon - 58 NLR 285

3. Wijesinghe vs Tharmaratnam - Vol. IV - Sri Kantha Law Reports 47

I. S. de Silva with Siddhi Daluwatte for Petitioner.

Faiz Musthapha PC, with Dr. Jayampathy Wickremaratne for 1st Respondent.

Ms Murdu Fernando SSC for 2nd Respondent.

Cur. adv. vult.

September 29, 2000.

JAYASINGHE, J.

The Petitioner instituted proceedings in the Primary Court of Nuwara-Eliya under Section 66 of the Primary Courts Procedure Act; and alleged that the Superintendent of the Court Lodge Estate attempted to interfere with the possession of the Petitioner of the land morefully described in the schedule to this application, handed over to him for cultivation on a profit sharing basis in June 1994. The learned Primary Court Judge made order that the Petitioner was entitled to possession of the said land and restrained the Udapussellawa Plantations Limited, the lessee its agents from interfering with the possession of the Petitioner. The Petitioner alleged that the 1st respondent wrongfully and unlawfully with a view of negating the order made by the learned Primary Court Judge instituted proceedings in the Magistrate's Court of Nuwara Eliya seeking to eject the Petitioner in terms of the State Lands Recovery of Possession Act No. 7 of 1979 as amended. The petitioner thereafter instituted proceedings in the High Court of Kandy seeking a declaration that the Magistrate's Court had no jurisdiction to hear and determine the said action and sought by way of Writ of Certiorari and Quo Warranto an order to quash the decision of the 1st Respondent to evict the Petitioner and also to declare null and void the steps hither to taken by the 1st Respondent. The 1st Respondent filed objections to the said application: and contended that the High Court of Kandy did not have jurisdiction to hear and determine the said application: that the subject matter of the said application was outside the Provincial Council list in terms of Article 154(P) (4) (b) of the Constitution. Thereafter the Petitioner moved to with-draw the said application before the High Court of Kandy which was allowed. The present application is to quash the decision of the 1st Respondent to institute proceedings in terms of the State Lands Recovery of Possession Act No. 7 of 1979 as amended to eject the Petitioner and, to declare that the quit notice of 08.04.1997 is of no avail or force in law; for an order declaring that the Magistrate Court of Nuwara-Eliya has no jurisdiction to hear and determine this action; for an order staying proceedings pending before the Magistrate's Court of Nuwara-Eliya until the final determination of this application.

When this matter came up for argument on 02.12.1999 Mr. Musthapha, PC. raised a number of preliminary objections regarding the maintainability of this application. He contended that an application for revision cannot be combined with an application for writ as they are two distinct remedies available to a party aggrieved.

(ii). that the Petitioner has failed to identify the writ he has sought from this Court.

(iii). that the prayer sought

a). to quash the decision of the 1st Respondent to institute proceedings in terms of State Lands Recovery of Possession Act and

b). to declare that the quit notice dated 08.04.1997 . . . is of no force or avail

are misconceived and unknown to the law and therefore neither relief could be granted.

Mr. I. S. de Silva for the Petitioner submitted that the contention of the 1st Respondent that to quash the decision to institute proceedings, one has to wait till the proceedings are instituted and that as in this instance only a decision to institute proceedings has been made and therefore writ does not lie is an argument that is not maintainable for the reason that an action has already been instituted in the Magistrate's Court of Nuwara-Eliya to eject the Petitioner and that the said action is pending. He submitted that it was during the pendency of this action that these proceedings were instituted to quash the decision of the 1st Respondent and to declare the said quit notice of no avail or force in law. He submitted that a party need not wait until legal proceedings are instituted to preserve his lawful rights. In K. M. Karunaratne Vs. Ratnayake(1) the Court of Appeal having held that there was a contract of tenancy, proceeded by way of writ of certiorari and quashed the quit notice on the ground that the said quit notice was not valid in law. In this case the Assistant General Manager of National Savings Bank a Competent Authority for the purpose of Government Quarters Recovery of Possession Act No. 7 of 1969 as amended gave notice to the Petitioner to vacate certain premises occupied by him. The Petitioner in the said case challenged the quit notice on the ground that there was a tenancy agreement between the parties which was not covered by the said Act No. 7 of 1969. He submitted that in the present case the Respondent not only issued quit notice but also instituted action and the Petitioner has sought both to quash the proceedings that has already been instituted in the Magistrate's Court of Nuwara-Eliya and that can only be done byway of a writ of certiorari; that the Petitioner has also sought a declaration that the Magistrate's Court of Nuwara-Eliya has no jurisdiction. Mr. de Silva then submitted that even though it was contended that in the prayer of the Petition the word certiorari had not been specified and thus there is no basis for application of writ, an examination of the Petition would show both from the caption and the body of the Petition that the Petitioner has sought by way of writs of certiorari and quo warranto to quash the decision of the 1st Respondent to eject the Petitioner and to avoid all consequential steps taken by the 1st Respondent. Mr. de Silva while conceding that the words writ of certiorari does not appear in the petition submitted that there is clear proof of the fact that the Petitioner has sought to invoke the writ jurisdiction particularly byway of certiorari. He also submitted that Courts of England have from time to time held that an applicant might seek any of the five remedies of mandamus, certiorari, prohibition, declaration or injunction and that in Fernando Vs. University of Ceylon(2) Supreme Court has held that where a remedy by way of certiorari may not be available, Courts may intervene by way of a declaration or injunction notwithstanding the absence of a right of appeal.

Mr. Musthapha, PC. submitted in support of his argument that Revision and Writ Jurisdiction cannot be combined in that Writ Jurisdiction is original jurisdiction while Revisionary Jurisdiction is review jurisdiction. In Wijesinghe Vs. Tharmaratnam(3) the caption was as follows:

"In the matter of an application for leave to appeal under Section 156(2) of the Civil Procedure Code and/or for the

exercise of the revisionary powers under Section 753 of the said Code." Paragraph 18 of the petition of the above case stated that "in the circumstances aforementioned it is respectfully urged that Your Honours Court be pleased to grant relief to the Defendant-Petitioner by exercising the revisionary powers vested in Your Honours Court in the event that Your Honours Court is pleased to maintain that the Defendant-Petitioner is not able to maintain an application for leave to appeal in this matter." A preliminary objection was raised in appeal that an application for leave to appeal cannot be joined together with an application for revision. It was also urged that stamps furnished have been only for the leave to appeal application and none for the application for revision. The Court did not proceed to make a determination on the objections taken namely, as to misjoinder and the consequent under stamping. Jameel, J. expressed the view that "these two objections are not devoid of merit but they could await a fuller argument in an appropriate case. Mr. Musthapha, P. C. relying on the above case submitted that the two applications cannot be joined for the reason that. different criteria applies for stamping. Mr. Musthapha then submitted that since Mr. De Silva conceded that writ jurisdiction cannot be combined with revisionary jurisdiction the present application could be dismissed on this ground alone.

Mr. Musthapha then submitted that the Petitioner has failed to specify the writ he was seeking even though in the caption he has referred to quo warranto, certiorari and prohibition, there is no reference made to any of these writs either in the body of the application or in the prayer. He submitted that in England due to the confusion resulting from the need to identify a specific writ an important reform was made in 1997 with the introduction of a new form of procedure known as The Application for Judicial Review. In the Administrative Justice Report of the Committee of the Justice - all Souls Review of Administrative Law in the UK laid down the procedural innovation vide order 53 of the Rules of the Supreme Court -

"An important reform was made in 1977 with the introduction of the new form of procedure known as 'the application for judicial review'. The change had been proposed in 1976 by the Law Commission of England and Wales in Remedies in Administrative Law (Law Com. No. 73 Cmnd. 6407). Earlier Commonwealth precedents were Ontario's Judicial Review Procedure Act, 1971 (now Revised Statutes of Ontario 1980 c. 224), and New Zealand's Judicature Amendment Act, 1972 as subsequently amended. The Australian Parliament in 1977 enacted the Administrative Decisions (Judicial Review) Act, though not proclaimed until 1 October 1980."

The learned President's Counsel referred to A. A. De Smith in Judicial Review of Administrative Action 4th Edition at Page 568 "On an application for judicial review made under order 53 of the Supreme Court Rules it is now possible for a Court to award in a single proceeding any one or more of the prerogative orders of certiorari, prohibition or mandamus, declaration or an injunction. This was a reform enacted in England by an amendment to the rules by which a specific remedy known as an Application for Judicial Review stated above was introduced to avoid having to specify a writ. However in the absence of such a procedure in Sri Lanka the omission to specify the writ is a fatal irregularity and Mr. Musthapha submits that a bald prayer to quash the decision of the 1st Respondent to institute proceedings in terms of State Lands Recovery of Possession Act is misconceived and cannot be granted. Similarly the prayer to declare the quit notice dated 08.04.1997 as of no force or avail is also misconceived as a fatal error for the same reason.

Mr. Musthapha also submitted that in order to obtain certiorari there must be a determination affecting legal rights. The institution of proceedings in the Magistrate's Court in terms of a quit notice is not a determination affecting legal rights.

I have very carefully considered the submissions of the learned President's Counsel and Mr. I. S. de Silva. I hold that the application for revision in terms of Article 138 and on application for Writs of Quo Warranto, Certiorari and Prohibition under Article 140 of the Constitutions cannot be combined as they are two distinct remedies available to an aggrieved party and for that reason the Petition is fatally flawed. The Petitioner has failed to aver the basis for his entitlement why he is invoking the writ jurisdiction of this Court: Nor has the Petitioner averred in his Petition that he is seeking to invoke the Revisionary Jurisdiction of this Court. The Petitioner in paragraph 13 of his Petition has only stated that the " . . . aforesaid matters constitute exceptional circumstances and grounds warranting the invocation of the jurisdiction of Your Lordships Court." This averment is vague indistinct, ambigious and without a legal basis and therefore cannot be maintained. Mr. I. S. de Silva did concede that revisionary jurisdiction cannot be combined with writ jurisdiction.

An aggrieved person who is seeking to set aside an unfavourable decision made against him by a public authority could apply for a prerogative writ of certiorari and if the application is to compel an authority to perform a duty he would ask for a writ of mandamus and similarly if an authority is to be prevented from exceeding its jurisdiction the remedy of prohibition was available. Therefore it is necessary for the Petitioner to specify the writ he is seeking supported by specific averments why such relief is sought. Even though the Petitioner has set out in the caption that "In the matter of an application . . . for writ of quo warranto and prohibition" there is no supporting averment specifying the writ and there is no prayer as regards the writ that is being prayed for. The failure to specify the writ therefore renders the application bad in law.

The learned President's Counsel's objection that the institution of proceedings in the Magistrate's Court in terms of the quit notice is not "a determination affecting legal rights" warranting the issuance of a writ or certiorari is well founded. It was open for the Petitioner to seek to quash the quit notice by way of ceriorari when the determination was made by the 1st Respondent or to move in Revision at the conclusion of the Magistrate's finding.

The preliminary objections of the learned President's Counsel is sustained. I am unable to grant the relief prayed for by the Petition.

Application is dismissed with costs fixed at Rs. 5000/-.

JAYAWICKRAMA, J. - I agree.

Application dismissed

  ALI VS ABDEEN

2001 1 SLR 413

COURT OF APPEAL

GUNAWARDENA, J.

CA 1329/90

MC WARAKAPOLA NO. 17641

Primary Courts' Procedure Act, No. 44 of 1979 - Sections 66(6) and 66(7) of the Primary Courts' Procedure Act - Jurisdiction to make Order - Precedent condition - Duty to encourage to facilitate dispute settlement.

Held :

(i) The Primary Court Judge was under a peremptory duty to encourage or make every effort to facilitate dispute settlement before assuming jurisdiction to hold an inquiry into the matter of possession and impose on the parties a settlement by means of Court order.

(ii) The making of an endeavor by the Court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under section 66(7) began to consider who had been in possession.

(iii) The fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

APPLICATION for revision from the Order of the Magistrate's Court of Warakapola.

Faiz Musthapha, P.C., with S.N. Senanayake for petitioner.

Aloy Ratnayake, P.C., with R.A.D. Kumarawickrema for 1st respondent.

May 25, 2001.

U. de Z. GUNAWARDENA, J.

This is an application to revise an order made on 21. 11. 1990, by the learned Primary Court Judge (Warakapola) under section 68(2) of the Primary Courts' Procedure Act, whereby he had held that the 1st respondent (A. M. M. Abdeen) had been in possession and so was entitled to continue to possess lot 9 of the land called Nugagahamulahena. The learned Primary Court Judge, although he had not said so in so many words, presumably intended to say that the 1st respondent-respondent had been in possession at the relevant date i.e. 25. 07. 1990 that being the date on which information had been filed by the police under section 66 of the Primary Courts' Procedure Act, No. 44 of 1979 (as amended), in regard to the dispute between 2nd respondent-petitioner (Ameer Ali Halaldeen Ali) and the 1st respondent-respondent with respect to the possession of the relevant lot. It is common-ground that the said lot .9 which is the subject-matter of this application had been left un-allotted by the final decree in the partition action No. 13256 D.C. Kegalle which appears to have been entered on 15. 05. 1979. The 2nd respondent-petitioner states that this lot was owned and possessed by Nisi Umma and Sattu Umma Husaima who on deed No. 251816. 06. 1986 (P3) transferred the same to Hassen. The said Hassen had transferred the same on deed No. 6257 dated 31. 12. 1989 to the 2nd respondent-petitioner.

In this case, the court is called upon to reach a decision on affidavits. The decision arrived at after accomplishing such a feat would be an example of a process of something akin to guessing.

The order dated 21. 11. 1990 made by the learned Primary Court Judge has to be vacated since he had made that order without complying with a precedent-condition, as explained in the sequel. And, as such he had no jurisdiction to make the order he did. Conditio praecedens adimpleri debet prius quam sequatur effectus. It means that the condition-precedent must be fulfilled before the effect can follow. To explain the matter further, it is pertinent to consider the effect, respectively, of the operation of sections 66(6) and 66(7) of the relevant Act, which, merits quotation, in this context, and are as follows: sec. 66(6) : on the date fixed for filing affidavits and documents . . . the court shall before fixing the case for inquiry make every effort to induce parties and persons interested (if any) to arrive at a settlement of the dispute . . ." sec. 66(7) : where the parties and persons interested (if any) do not arrive at a settlement, the court shall fix the case for inquiry . . ."

Thus, it is to be observed that the Primary Court Judge was under a peremptory duty to encourage or make every effort, so to say, to facilitate dispute settlement, before assuming jurisdiction to hold an inquiry into the matter of possession and impose on the parties a settlement by means of the court order. It was obligatory on the Primary Court as a condition-precedent to holding an inquiry, to have made a conscious endeavor to have composed or ironed out the differences between the parties-a duty which, in this instance, had been neglected. The making of an effort by the court was such a duty as should have been done or performed before the court could have validly embarked upon an inquiry in pursuance of or rather in compliance with sec. 66(7) set out above. That is a preliminary requirement which has to be fulfilled before the jurisdiction of the Primary Court exists to hold an inquiry under section 66(7). When Parliament has enacted that provided a certain situation exists, then a tribunal may have certain powers it is clear that the tribunal will not have those powers unless that situation exists. The making of an endeavor by the court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under sec. 66(7) began, that is, to consider who had been in possession. Since the Primary Court had acted without jurisdiction in proceeding to determine the question of possession, its decision is, in fact, of no force or avail in law. Accordingly the decision dated 21. 11. 1990 is hereby set aside. It is the making of an effort to induce parties and the fact that the effort was not attended with success that clothe the Primary Court with jurisdiction to initiate an inquiry with regard to the question as to who was in possession. The fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

For the sake of completeness, I must say that the fact, that the judgment in this case was due was brought to my notice only towards end of March 2001.

The order dated 21. 11. 1990 is set aside. The Primary Court is directed, if the parties so desire, to hold a fresh inquiry in compliance with the provisions of the Primary Courts' Procedure Act, No. 44 of 1979 (as amended).

Order of the Primary Court set aside.

GANDHI v.MUBARAK

2003 3 SLR 31    COURT OF APPEAL

AMARATUNGA, J.  BALAPATABENDI, J.  CA(PHC) 8/2000

H.C. RATNAPURA HCRA 134/96

P.C. RATNAPURA 16246  AUGUST 23, 2001 AUGUST 20, 2002

Primary Courts Procedure Act 44 of 1979- S. 66(1) (a) - Can a Primary Court Judge order the demolition of a wall erected across the doorway? - Constitution Article 154P (3) (b)

Held:

1. The only way to restore possession of the store room to the respondent was by demolishing the wall which was forcibly erected which prevented his effective possession of the store room.

2. The Primary Court Judge was correct and justified in making an order to demolish the wall.

APPLICATION for Revision of the Order of the High Court Ratnapura.

Case referred to :

1. James v Kannangara - 1989 2 Sri LR 350 (Not followed)

2. Tudor v Anulawathie - 1999 3 SLR 235 (Followed)

Manohara de Silva with W.D. Weeraratne for petitioner.

Ms. Chamantha Weerakoon - Unamboowa for respodnent.

cur. adv. vult

September 30, 2002

GAMIN1 AMARATUNGA, J.

This is an application to revise the order of the learned High Court Judge of Ratnapura made in the exercise of the revisionary jurisdiction vested in the High Court under Article 154 P(3)(b) of the Constitution. The subject matter of the revision application filed by the present petitioner's mother (who is now dead) was an order made by the learned Primary Court Judge of Ratnapura in a proceeding commenced in terms of section 66(1 )(a) of the Primary Courts Procedure Act No 44 of 1979 regarding a land dispute that existed between the petitioner, (and his mother) on one side and the 3rd party respondent-respondent on the other side.

The dispute that was referred to the Primary Court was that the present petitioner and his mother had dispossessed the 3rd party respondent-respondent of the store room used by him by forcibly erecting a wall at the place which he had used to enter the store room from his shop premises. On being noticed the parties appeared in the Primary Court, filed their affidavits and led oral evidence in support of their respective claims. Thereafter the learned Primary Court Judge inspected the premises in question. After considering the material placed before him and his own observations recorded at the time he inspected the premises the learned Primary Court Judge held that the 1st and 2nd party respondents have dispossessed the 3rd party respondent-respondent by erecting a wall across the doorway between his shop premises and the store room.

Therefore he made order placing the 3rd party respondent-respondent in possession of the store room and ordered to demolish the newly built wall closing the door way.

The present respondent's mother who was the 1st party respondent before the Primary Court made a revision application to the High Court of Ratnapura against the decision of the learned Primary Court Judge. The learned High Court Judge having considered the revision application dismissed it. The present petitioner who was the 2nd party respondent before the Primary Court was not a party to the revision application filed in the High Court. His mother who had made the revision application died one week before the High Court dismissed the revision application. No appeal was filed against the order of the learned High Court Judge perhaps for the reason that the present petitioner was not a party to the proceedings before the High Court. The present revision application had been filed five months after the date of the order of the High Court.

The order of the Primary Court was executed on 10.2.2000 and the wall across the doorway was demolished and the store room was handed over to the respondent. This application had been filed on 11.2.2000, the day after the execution of the order of the Primary Court.

The petitioner in his petition has stated that there are exceptional circumstances warranting the exercise of the revisionary jurisdiction of this Court but has not set out what those exceptional circumstances are. The petitioner has stated that the learned High Court Judge has failed to identify the mistakes and errors of the order of the Primary Court but has not explained what those mistakes and errors are. The petitioner has prayed that the order of the High Court be set aside. But as pointed out in the written submissions of the respondent the petitioner has not prayed that the order of the Primary Court be set aside. Instead the petitioner has prayed that the order of the Primary Court be suspended. As pointed out by the respondent's written submissions such an order cannot be granted by way of substantive relief. The wall in question has already been demolished. Now there is case No 14201/L pending in the District Court of Ratnapura in respect of the same dispute. It appears that the only point taken against the order of the learned Primary Court Judge is that he did not have jurisdiction to order the demolition of the wall erected across the doorway. The petitioner has relied on the authority of the case of James v Kannangara (1), a decision of this Court. But as Gunawardana J has observed in Tudorv Anulawathie (2) there is no point in making an order unless the court has the power to enforce it.

The only way to restore possession of the store room to the respondent was by demolishing the wall which prevented his effective possession of the storeroom and in these circumstances the learned Primary Court Judge was quite correct and justified in making an order to demolish the wall. The petitioner has not made out a case for the intervention of this Court by way of revision and accordingly the revision application is dismissed with costs fixed at Rs. 5000/-.

BALAPATABENDI J. - I agree

Application dismissed

KULAPALA AND ANOTHER v.SOMAWATHIE

2001 3 SLR 317

COURT OF APPEAL

WIGNESWARAN, J.

TILAKAWARDENA, J.

CA. 123/96

D.C. RATNAPURA 10162/L

JANUARY 21, 2000

Possesory action - Prescription Ordinance S.4 - Institution of Action - time period - Dispossession - Primary Courts procedure Act - S.66

Held :

(i) It is incumbent upon the Plaintiff Appellants to have instituted action within one year of the alleged dispossession.

(ii) The action, by the institution of proceedings envisaged in S.4 of the Prescription Ordinance was one where the Plaintiff in such action shall be entitled to a decree against the Defendant for the restoration of such possession without proof of title.

(iii) Dispossession is not an essential ingredient for actions instituted under the Primary Courts Procedure Act.

APPEAL from the Judgment of the District Court of Ratnapura.

Cases referred to  :

1. Perera v. Wijesooriya - 59 NLR 529

N. Malalasekera, for Plaintiff Appellant.

T. A. J. Udawatte for Defendant Respondent.

Cur. adv. vult.

March 14. 2000.

SHIRANEE TILAKAWARDANE, J.

The Plaintiff Appellants by Plaint dated 14. 12. 1990 filed this action for a declaration of title to the land described in the second schedule to the said plaint with consequential relief.

The Defendant Respondent by her answer dated 15. 09. 1992 denied the averments in the Plaint and prayed for dismissal of the Plaintiff Appellant's action with costs.

Thereafter the Plaintiff Appellants filed amended Plaint dated 07. 07. 1993 and prayed for a possessory decree and eviction of the Defendant Respondent from the land in dispute and other reliefs.

By amended Answer dated 21. 01. 1994 the Defendant Respondent, inter alia, took up the position that the Plaintiff Appellants could not convert the original action for declaration of title to one of possessory decree. In any event it was pointed out that the action for possessory decree was prescribed in law since the action had been filed more than one year after the alleged dispossession in 1989.

When the case came up for trial on 12. 10. 1995 three preliminary issues were raised on behalf of the Defendant Respondent. They were:

(a) In accordance with the provisions of the Prescription Ordinance, should a possessory action be filed within a year of the date of dispossession?

(b) According to the averments contained in paragraph 9 of the Amended Plaint, was this action instituted after such period of one year?

(c) If so, can the Plaintiff obtain the reliefs claimed in the Amended Plaint?

The District Judge, Ratnapura by his Order dated 08. 02. 1996 held in favour of the Defendant Respondent on these preliminary issues and dismissed the Plaintiffs action with costs. This is an Appeal from the said Order.

The question that has arisen in Appeal is whether there is mandatory statutory requirement that proceedings should be instituted within one year of the date of dispossession. The relevant Section 4 of the Prescription Ordinance reads as follows:

"It shall be lawful for any person who shall have been dispossessed of any immovable property otherwise than by process of law, to institute proceedings against the person dispossessing him at any time within one year of such dispossession. And on proof of dispossession within one year before action is brought, the Plaintiff in such action shall be entitled to a decree against the Defendant for the restoration, of such possession without proof of title.

Provided that nothing herein contained shall be held to affect the other requirements of the law as respects Possessory cases."

Counsel for the Plaintiff Appellants contended that there was no need for a possessory action to be instituted within one year of dispossession. He relied on the Judgment of Basnayake C. J. in Perera v. Wijesuriya(1). It appears that the learned Counsel has misunderstood the ratio decidendi of that case. The matter resolved in that case was whether it was necessary for a party to have had possession of the land for a period of one year and a day at least to entitle such party to maintain a Possessory action. This case did not deal with the issue of the time limit after dispossession within which a Possessory action should be instituted. Furthermore, the case also held that the Plaintiff could maintain an action under section 4 of the Prescription Ordinance, as long as the ousting was within one year. (Vide Page 536).

In the circumstances, we find that it was incumbent upon the Plaintiff Appellants in this case to have instituted this action within one year of the alleged dispossession on or about 20. 07. 1989. It is to be noted that Police complaint in this regard was made not by the Plaintiff Appellants but by the Defendant Respondent. We therefore hold that the action had been filed out of time and was prescribed in terms of the Prescription Ordinance adverted to above.

The learned Counsel submitted further that since action had been instituted within one year in the Primary Court of Ratnapura, there had been substantive compliance with the provisions of the Prescription Ordinance.

However, the action instituted in terms of section 66 of the Primary Courts' Act was not by the Plaintiff Appellants. In fact, while the Defendant Respondent filed the first complaint in this case, the institution of proceedings was a result of the report to Court lodged by the Officer in Charge of the Kiriella Police Station. Furthermore this section dealt with any dispute that may have arisen pertaining to land which led to a breach of the peace. Dispossession Is not an essential ingredient for actions instituted under the Primary Courts' Act. The purpose of the action so filed was to obtain a temporary Order to maintain status quo ante, until a competent Court of civil jurisdiction could make a final Order on the dispute, based on the merits of the case.

The action by the institution of proceedings envisaged in Section 4 of the Prescription Ordinance was one where "the Plaintiff in such action shall be entitled to a decree against the Defendant for the restoration of such possession without proof of title." In other words "the action" referred in Section 4 of the aforesaid Ordinance was a Possessory action filed in the District Court and not an information fled in the Primary Court in terms of Section 66 of the Primary Courts' Act.

We therefore find the contention of the Counsel for the Plaintiff Appellants untenable in law.

We accordingly dismiss the Appeal. We Order taxed costs payable by the Plaintiff Appellants to the Defendant Respondent.

WIGNESWARAN J. - I agree.

Appeal dismissed.

KAYAS VNAZEER AND OTHERS

2004 3 SLR 202

SUPREME COURT

FERNANDO, J. AMEER ISMAIL, J. WEERA SURIYA, J.

SC 49/2002 CA 105/96 PRIMARY COURT, PANW1LA 8113

JANUARY 27, 2003 MARCH 4, 2003 MAY 8, 29, 2003 JUNE 5, 2003

Primary Courts Procedure Act - Section 23-36, Section 37-53, Section 66, Section 68 (1), Section 68(3), Section 68(7), Section 76, Section 78 - Who is an aggrieved party - Locus Stand) - Issuing of a writ of ejectment - Validity? -Restoration to possession? - Circumstances - What is the object of Revision? When could the Primary Court activate the fiscal to eject a person in possession?

In a Section 66 inquiry, the Primary Court held that the 1st respondent N was in possession of the land on the date of filing the information and prohibited any interference by the 2nd respondent T. The application in Revision filed in the Court of Appeal was dismissed, Thereafter - when the 1st respondent N sought a writ from the Primary Court for restoration of possession, he was resisted by the petitioner, The Primary Court dismissed the claim of the petitioner. The application in Revision filed in the High Court was dismissed on the ground that the petitioner lacked locus standi. The appeal lodged in the Court of Appeal was also dismissed.

On appeal to the Supreme Court.

Held (1) Section68 (4) does not make It obligatory for the Primary Court to make an order for restoration of possession. It is an additional order a Primary Court Judge could make at his discretion if the facts and circumstances warrant such a direction.

(2) It is superfluous for the Primary Court Judge to make an additional order in favour of the 1st respondent in terms of Section 68 (4) to order restoration of possession since the 1st respondent was in actual possession.

(3) Section 68(3) mandates the primary Court Judge directing restoration, if he is satisfied that any person who had been in possession has been forcibly dispossessed within two months immediately preceding the date of filing the information.

(4) The Primary Court could activate the fiscal to eject a person in possession in terms of Section 76 in the following circumstances.

(a) Where there is an order under Section 68 (3).

(b) Where this is an order under Section 68 (4)

(c) By using of inherent power of Court arising from a conviction for violating orders under Section 68 (1) and (2).

This remedy is not available to a person who had voluntarily parted his possession flowing from transferring his proprietary rights.

(5) The Primary Court Judge lacked jurisdiction to issue a writ against the appellant ordering restoration of possession to the 1 st respondent N as -

(a) He has parted with his possession when he transferred his proprietary rights.

(b) The order of the Primary Court Judge did not contain an order under Section 68 (4) to restore possession to the 1st respondent.

(6) However it appears that a new dispute had arisen as regards possession 11 years after the 1st respondent N parted with his possession, the appellant was not a stranger to the execution proceedings in the Primary Court, being a person directly affected by such proceedings as it would entail his ejectment from a property where the 1st respondent had no claim to possession from 9.11.1985, in that sense the appellant is an aggrieved party being a victim of an erroneous decision by the Primary Court.

(7) The object of Revision is the due administration of justice and correction of errors and that power can be exercised in respect of any order of a lower Court to prevent an injustice on an application by an aggrieved person who is not even a party to the case.

The High Court/Court of Appeal has taken ihe mistaken view that the appellant has no locus standi. Appeal from the judgment of the Court of Appeal.

Cases referred to:-

1. Mariam Bee Bee v Seyed Mohamed - 69 CLW 31

2. AbdulSamad v Musajee -1982 -2-CALR147

3. A. G. v Gunawardane - 1996-2 Sri LR 149

S, K. Sangakkara with David Weeraratne for petitioner-petitioner- appellant Dr. J. de Almeida Gunaratne with Kishaii Pinto Jayawardane and Mangala Wijesinghe for 1st respondent-respondent-respondent.

Cur. adv. vult.

August 8, 2003

WEERASURIYA, J.

Pursuant to an information filed by Wattegama Police in terms of c Section 66 of the Primary Court Procedure Act the learned Primary Court Judge of Panwila held an inquiry into the dispute between Nazeer {1st respondent) and Thaha (2nd respondent) in respect of the land called Uduwannawalta and held that the 1st respondent was in possession of the land in dispute on the date of filing the information and accordingly prohibited any interference by the 2nd respondent. Dissatisfied with that order the 2nd respondent invoked the revisionary jurisdiction of the Court of Appeal without success. Thereafter on 25.04.1996, the 1st respondent obtained a writ from the Primary Court for restoration of possession which was resisted by the petitioner-petitioner-appellant (appellant) on the basis that he had come into possession on the strength of a deed of conveyance by the 2nd respondent (Thaha). The Primary Court Judge rejected his claim for relief by his order dated 16.05.1996.

Against that order the appellant filed an application in revision in Kandy High Court which was dismissed on a preliminary objection that he had no locus standi to make the revision application. Thereafter he invoked the appellate jurisdiction of the Court of Appeal and by order dated 14.12.2001, the Court of Appeal dismissed his appeal affirming the order of the High Court. The appellant sough special leave to appeal against the Court of Appeal order and this Court granted him leave on the following questions of law:

(1) was the Court of Appeal correct in upholding the judgment of the High Court that the appellant has no status to file a revision application as an aggrieved party in view of the binding judgments Mariam Beebi v Seyad Mohamed 0) and Abdual Samad v Musajee (2) and A. G. v Gunawardena (3)  which had been cited at the argument?

(2) Was the Court of Appeal correct in its pronouncement that there is no merit in the appeal and which matter was not considered by the High Court and when it is patent;

(i) that the Primary Court lacked the jurisdiction to issue a writ of ejectment as the order of 24.10.1985 affirmed by the Court of Appeal was only a declaratory order under Section 68(1) and (2) without an enabling order under Section 68(4) of the Primary Court Procedure Act.

(ii) that the 1st respondent had divested his possession of the land by deed No. 1928 on 09.11.1985, that is eleven years prior to the order.

(iii) that the Primary Court had failed to follow the procedure mentioned in the Civil Procedure Code in execution proceedings with adaptations in terms of the casus omissus procedure laid down in Section 76 of the Primary Court Procedure Act or the procedure in Section 73 of the Act to the prejudice of the appellant.

(3) Can an order under Section 68(1) and (2) of the Primary Court Procedure Act be made use of by a party after he has divested his possession by a deed to a third party to obtain writ and eject a bona fide purchaser for value without notice of the order thereby destroying his jus retentionis right and acquire valuable improvement without payment of compensation when he had not made any protest while the improvements were being made?

Submissions

Learned Counsel for the appellant contended that appellant had ample status in law to appear in Court as an aggrieved party; that in the absence of orders under Section 68{3) or 68(4) the 1st respondent cannot apply to resolve a dispute after 11 years between assignees; that failure to follow the provisions of Section 78 is an illegality.

Learned Counsel for the 1st respondent contended that 1st respondent had merely sought the enforcement of the original order made by the Primary Court: that during the pendency of the Court of Appeal case the appellant had obtained possession from the 2nd respondent and that an order made under Section 68(1); entitles the Primary Court by using its inherent powers to make an order for ejectment.

Sections 68(1), and 68(2) of the Primary Court Procedure Act

Sections 68(1) & 68(2) read as follows:

68(i) - "Where the dispute related to the possession of any land or part thereof, it shall be the duty of the Judge of Primary Court holding the inquiry to determine as to who was in possession of the land or the part on the date of the filing of the information under Section 66 and make order as to who is entitled to possession of such land or part thereof.

68(2) "An order under Sub Section (1) shall declare any one or more persons therein specified to be entitled to the possession of the land or the part in the manner specified in such order until such person or persons are evicted therefrom under an order or decree of a competent Court and prohibit all disturbance of such possession otherwise than under the authority of such order or decree".

The order of the Primary Court Judge of Panwila dated 24,10.1985 affirmed by the Court of Appeal contain following directions.

(1) A declaration that the 1st respondent is entitled to possession of the land;

(2) A prohibition on the 2nd respondent to desist from disturbing such possession of the 1st respondent; and that

(3) Any violation of the order will tantamount to commission of an offence under Section 73 and liable for punishment.

Undoubtedly, this order had been made in terms of the provisions of Section 68(1) and 68(2) of the Primary Court Procedure Act.

Section 68(4) of the Primary Court Procedure Act

Section 68(4) reads as follows:

68(4) - "An order under Section (1) may contain in addition to the declaration and prohibition referred to in Sub Section (2) a direction that any party specified in the order shall be restored to the possession of the land or any part thereof specified in such order".

Section 68(4) does not make it obligatory for the Primary Court Judge to make an order for restoration of possession, it is an additional order a Primary Court Judge could make at his discretion if the facts and circumstances warrant such a direction.

In the instant case, the Primary Court Judge had made a finding that the 1st respondent was in possession of the land on the date of filing of the information. The complaint of the 1st respondent was that, the 2nd respondent had erected a barbed wire fence obstructing his entry into the land and prayed for the removal of the fence, reiterating his position that he was in possession of the land. In the light of that material, the learned Primary Court Judge declared that the 1st respondent was entitled to possession of the land and rightly prohibited any interference with such possession by the 2nd respondent on pain of punishment.

It was superfluous for the Primary Court Judge to make an additional order in favour of the 1st respondent in terms of Section 68(4) to order restoration of possession since he was in actual possession of the land. The fact that the 1st respondent was in actual possession is manifest by his subsequent divesting of possession arising from his deed of conveyance No. 1928 dated 09.11.1985 in favour of Luthufik and Mohamed AN.

The significance of this position could be highlighted by contrasting it with the provisions of Section 68(3) of the Primary Court Procedure Act. This section mandates the Primary Court Judge to make an order directing restoration of possession if he is satisfied that any person who had been in possession has been forcibly dispossessed within two months immediately preceeding the date of filing the information.

The revision application filed by the 2nd respondent in the Court of Appeal was finally dismissed on 19.10.1994. Pending the final determination of this application, the 2nd respondent had obtained a stay order effective from 26.11.1985. Before the stay order was obtained by the 2nd respondent, the 1st respondent had transferred his ownership and possession of the land on 09.11.1985 by deed No. 1928 to Luihufik and AN. The stay order could make no impact on Luthufik and AN since by that time they had obtained possession. There was no material to suggest that between 09.11.1985 (deed of conveyance) and 19.10.1994 (date of dismissal of the revision application) that either Luthufik or AN was dispossessed by the 2nd respondent. The 1st respondent has not complained of any disturbance to his possession either by the 2nd respondent or by the appellant after the Primary Court made its initial order on 24.10.1985. However, Luthufik had complained of his dispossession on 05.04.1996 as evident from his complaint to Wattegama Police on 06.04.1996 (1 D 3 page 481 of the brief) and complaint to the Grama Niladari of Madige on 10.04.1996 (18 5 page 483 of the brief). These two complaints had been made 1 1/2 years after the dismissal of the revision application. On this material it would be clear that Luthufik was dispossessed on 05,04.1996 after the 1st respondent transferred his proprietory rights and parted with possession to Luthufik and AN on 09.11.1985 (Vide deed No. 1928 dated 09.11.85). Therefore, no question could arise of any disturbance of the 1st respondent's possession. The order made on 24.10.1985 in favour of the 1st respondent ceased to have any legal effect on the 1st respondent with his divesting of possession to Luthufik and AN on 09.11.1985.

Section 76 of the Primary Court Procedure Act

Section 76 states as follows:

"The Fiscal of the Court shall where necessary execute all orders made under the provisions of this part"

The Primary Court could activate the Fiscal to eject a person in possession in terms of this Section in the following instances.

(1) Where there is an order under Section 68(3)

(2) Where there is an order under Section 68(4) and

(3) By using inherent power of Court arising from a conviction for violating orders made under Section 68(1) and (2).

It follows that the Primary Court has jurisdiction to issue a writ against a person in possession, where there is an order under Section 68(3) or 68(4) of the Act, independent of any direction to restore possession arising from a conviction in terms of Section 73 of the Act.

A person who has the benefit of an order made in terms of Section 68(1) and (2) can be restored to possession only on a conviction arising from a complaint of his dispossession. Thus a condition precedent to obtain an order for restoration of possession in favour of a person whose possession had been protected by a Section 68(1) and 68(2) order, is the existence of a conviction arising from a complaint of a violation of such order, in terms of Section 73 of the Act. This remedy is not available to a person who had voluntarily parted his possession flowing from transferring his proprietory rights.

Casus Omissus Clause (Section 78)

Section 78 of the Primary Court Procedure Act is in the following terms.

78 - "If any matter should arise for which no provision is made in the Act, the provisions in the Code of Criminal Procedure Act governing a like matter which the case or proceeding is a criminal prosecution or proceedings, and the provisions of the Civil Procedure Code governing a like matter where the case is a civil action or proceeding shall with suitable adaptations as the justice of the case may require be adopted and applied."

Section 2 of the Primary Court Procedure Act stipulates that subject to the provisions of the Act and other written law, the civil and criminal jurisdiction of the Primary Court shall be exclusive. Part III of the Act comprising Sections 24 - 36 provides for the mode of institution of criminal prosecution; while part IV of the Act comprising Sections 37 - 53 provides for the mode of institution of civil actions. Thus, Section 78 has been designed to bring in provisions of the Criminal Procedure Code Act or the provisions of the Civil procedure Code Act only in situations where either a criminal prosecutions or a civil action within part Ml or part IV of the Act respectively are involved. Inquiries into disputes affecting land where a breach of the peace is threatened or likely to be threatened under part VII comprising Sections 66 - 76 are neither in the nature of a criminal prosecution or proceeding nor in the nature of civil action or proceeding. Those proceedings are of special nature since orders that are being made are of a provisional nature to maintain status quo for the sole purpose of preventing a breach of the peace and which are to be superseded by an order or a decree of a competent Court. Another significant feature is that Section 78 while making reference to criminal prosecutions or proceedings and civil actions or proceedings, has not made any reference to disputes affecting land. This exclusion would reveal the legislative intent that Section 78 is not intended to be made use of, for inquiries pertaining to disputes affecting land under part VII of the Act.

Locus Standi

The appellant has not challenged the legality of the order of the Primary Court made on 24.10.1985 which was affirmed by the Court of Appeal. The appellant has made it clear that he is challenging the writ obtained by the 1st respondent to eject him from the land. The initial order of the Primary Court Judge to issue the writ was made on 25.04.1996 (page 248 of the brief). Admittedly, the appellant was not a party to the proceedings of the Primary Court and therefore was not a party when the Primary Court made the order on 24.10.1985, declaring that the 1st respondent was entitled to possession.

The complaint by Luthufik of his dispossession to the Police was made on 06.04.1996 and the complaint to Grama Niladari was made on 10.04.1996. Both these complaints were to the effect that 2nd respondent and some others were making preparations to build on the land. The Fiscal came to the land on 30.04.1995 (P2) to execute the writ obtained by the 1st respondent and Luthufik accompanied the Fiscal claiming that he was the agent of the 1st respondent. While the 2nd respondent did not object to the writ the appellant resisted the Fiscal and he was directed to appear before Primary Court on 02.05.1996- The appellant presented himself in Court on 02.05.1996 with his Attorney-at-Law and after hearing oral submissions, the learned Primary Court Judge directed him to tender written submissions as to why he should not be ejected. The appellant tendered written submissions on 14.04.1996 and the learned Primary Court Judge delivered his order on 13-05.1996 directing the issue of writ to eject the appellant.

The Primary Court Judge lacked jurisdiction to issue a writ against the appellant ordering restoration of possession to the 1st respondent on two grounds.

(1) The 1st respondent has parted with his possession of the land when he transferred his proprietory rights by deed No. 1928 on 09.11.1985.

(2) The order of the Primary Court Judge dated 24.10.1985 did not contain an order under Section 68(4) to restore possession to the 1st respondent.

It would appear that a new dispute had arisen between Luthufik and the appellant as regards possession 11 years after the 1st respondent parted with his possession to the land.

In the circumstances, the appellant was not a stranger to the execution proceedings in the Primary Court being a person directly affected by such proceedings as it would entail his ejectment from a property where the 1st respondent had no claim to possession from 09.11.1985. In that sense the appellant is an aggrieved party ; being a victim of an erroneous decision by the Primary Court. The error is caused by misconceiving of the applicability of the order made on 24.10.1985 vis-a-vis the 1st respondent.

In the light of the above material, the case of the appellant is clearly covered by the dictum of Sansoni J. in Mariam Beebi v Seyad Mohamed (6 supra 34) that the object of revision is the due administration of justice and correction of errors and that power can be exercised in respect of any order of a lower Court to prevent an injustice on an application by an aggrieved person who is not even a party to the case.

The High Court and the Court of Appeal has taken the mistaken view that the appellant has no locus standi to seek relief. 1 hold that the appellant being an aggrieved party has sufficient status to seek relief in the circumstances of this case. Therefore, I set aside the order of the Court of Appeal dated 04.12.2001, and the order of the High Court dated 26.08.1996 and the order of the Primary Court dated 16.05.1996 and allow this appeal with costs fixed at Rs. 10,000/= payable by the 1st respondent to the appellant.

FERNANDO, J. -I agree.

ISMAIL, J. -I agree.

Appeal allowed.

KARUNANAYAKE VS.SANGAKKARA

2005 2 SLR 403

COURT OF APPEAL SOMAWANSAJ (P/CA) WIMALACHANDRA. J

CA 475/2002  CA (PHC) 213/2001 H. C. KANDY 21/2001

PRIMARY COURT, KANDY 73143   MAY 9,2005.

Primary Courts Procedure Act. S66(2), S68, S69, A71, S72, S78-Administration of Justice Law 44 of 1973 - S62-Can a Primary Court Judge summon witness of his choice ex mero motu ? - Closure of case-Can the Primary Court Judge reopen case and summon a witness ?

    The Primary Court Judge after having fixed the matter for order, without delivering his order issued summons on the Grarna Sevaka and another witness and re-fixed the matter for inquiry. The respondent- petitioners moved the High Court in Revision and the said application was rejected. On appeal to the Court of Appeal -

    (1) The objective of the procedure laid down in the Primary Courts procedure Act is to do away with long drawn out inquiries and determinations to be founded on the information filed affidavits, documents furnished by parties.

    (2) There is no provision for the Judge to call for oral evidence of witnesses of his own choice. He cannot be permitted to go on a voyage of discovery on his own to arrive at a decision when the parties have placed before him the material on which they rely and it is on this material that, he is expected to arrive at a determination.

Per Somawansa. J (PICA)

    "If this procedure is to be permitted then S72 would become redundant. It will also be opening the flood gates for long drawn out protracted inquiries when the primary object was for the speedy disposal of the dispute that has arisen".

Appeal from the Provincial High Court of Kandy.

Cases referred to :

1. Ramalingarn vs. Thangarah 1982 2 Sri LR 693.

2. Kanagasabai vs. Mailvanaganarn 78 NLH 280 S. N. Wjithsingh for petitioners.

L. C. Seneviratne, I? C., with A. Dharmaratne for Is' and Znd respondents.

July 1,2005

Andrew Somawasa, J. (PICA)

    The petitioners-respondents initiated proceedings in the Primary Court Kandy seeking a declaration that they are entitled to the lawful possession of lot 01 in plan No. 2019 and an interim order to evict the respondents petitioners from the aforesaid land and premises and to place the petitioners respondents in possession thereon. The learned Primary Court Judge granted the interim order as prayed for by the petitioners-respondents. The respondents-petitioners objected to the said interim order but the learned Primary Court Judge having considered the objections refused to vacate the interim order. Thereafter three others namely the two Casichettys' and one Heen Kumari Sangakkara Ranasinghe were also added as intervenient-respondents to the proceedings and they too filed their objections to the petitioner-respondent's application. After the filing of objections and counter objections by way of affidavit by all parties along with their documents the learned Primary Court Judge fixed the matter for order on 07.02.2000 on which day the Primary Court Judge without delivering his order issued summons on the Grama Seva Niladhari and Y. L. Sumanaratne and re-fixed the matter for inquiry. Against the aforesaid order dated 07.1 2.2000 the two Casiechettys' filed a revision application in the High Court of Kandy and obtained an interim order in the first instance restraining the Primary Court from proceeding further. However, after inquiry the learned High Court Judge by his judgment dated 30.08.2001 dismissed the said revision application. From the aforesaid judgment of the High Court Judge the aforesaid two Casiechettys' appealed to the Court of Appeal and the said appeal is numbered CA(PHC) 213/2001.

In the meantime the original respondent-petitioner filed an application for acceleration of the said appeal and this Court having considered the point in issue in appeal, made order that the application for acceleration of the appeal as well as the main appeal be heard together and all parties agreed to tender written submissions by 13.12.2000 and the judgment thereon was to be delivered by Amaratunga, J. on 16.01.2003 but unfortunately the judgement was never delivered. When this matter came up before the present bench, parties called upon Court to deliver judgment on the written submissions already tendered by them.

The substantial question that this Court is called upon to decide is the correctness and the validity of the decision of the learned Primary Court Judge to summon the Grama Seva Niladhari and Y. L. Sumanaratne after fixing a date for the delivery of the order in this case.

It is contended by counsel for the petitioners-respondents that as all parties to the instant action claim to have been ousted from possession by other parties the desire to have independent as well as important evidence on the question of possession prior to dispossession has led to this decision to call the two witnesses. He further submits that though Part VII of the Primary Court Act has no specific provision giving the Judge the right to call witnesses, the casus ommisu Section 78 of the Primary Court Procedure Act permits this to be done having referred to the provisions of the Civil Procedure Code with relevant adaptation. Therefore he submits that the decision of the Court to call the evidence of the Grama Sevaka and Y. L. Sumanaratne is permissible and valid.

The question whether the Primary Court Judge has the jurisdiction to summon witnesses of his choice exmero motu without stating the reasons for it when the evidence of such witnesses is already on record with the other reliable evidence to test its credibility and specially after he had decided to give his order without calling for oral evidence and parties having agreed to it has been aptly dealt by Sharvananda, J. as he then was in his judgment in Rarnalingarn vs.Thangarajah(1).Before I come to that decision it would be useful to consider the relevant section that is applicable to the issue at hand Section 72 of the Primary Courts Procedure Act.

"A determination and order under this Part shall be made after examination and consideration of…

(a) the information field and the affidavits and documents furnished ;

(b) such other evidence on any matter arising on the affidavits or documents furnished as the Court may permit to be led on that matter ;

(c) such oral or written submission as may be permitted by the Judge of the Primary Court in his discretion."

The objective of the procedure laid down in the Primary Court Procedure Act is to do away with long drawn out inquiries and determination to be founded on the information filed, affidavits and documents furnished by the parties. With reference to the aforesaid Section 72 of the Primary Courts Procedure Act, Sharvananda, J as he then was in Ramalingam vs. Thangarajah (supra) at 701 observed :

"The determination should, in the main, be founded on "the information filed and the affidavits and documents furnished by the parties". Adducing evidence by way of aff idavits and documents is the rule and oral testimony is an exception to be permitted only at the discretion of the Judge. That discretion should be exercised judicially, only in a fit case and not as a matter or course and not be surrendered to parties or their counsel. Under this section the parties are not entitled as of right to lead oral evidence."

It was held in that case :

"That where the information filed and affidavits furnished under section 66 are sufficient to make a determination under Section 68 further inquiry embarked on by the Judge was not warranted by the mandatory provisions of Section 72 and are in excess of his special jurisdiction".

Counsel for the petitioners-respondents accept the position that Part VII of the Primary Courts Procedure Act has no specific provisions which give the Judge the right to call witnesses. However, he submits as aforesaid that the casus ommisus Section 78 would provide the procedure for such an eventuality to have recourse to the provisions in the Civil Procedure Code. I am unable to agree with this proposition for the simple reason that the inquiry being held in terms of Part VII of the Primary Courts Procedure Act should not be made a protracted trial as in a civil court. As Section 72 indicates, oral evidence is frowned upon and only permitted on matters arising on the affidavit or documents furnished as the Court may permit to be led on that matter. Clearly there is no provision for the Judge to call for oral evidence of witnesses of his own choice. He cannot be permitted to go on a voyage of discovery on his own to arrive at a decision when the parties have placed before him the material on which they rely and it is on this material that he is expected to arrive at a determination. The learned Primary Court Judge as well as the High Court Judge has clearly misunderstood the primary object of the Part VII of the Primary Courts Procedure Act. In this respect, I would refer to the observation made by Sharvananda, J as he then was in Ramalingam vs. Thangarajah (supra) at 299 :

"The procedure of an inquiry under Part VII of the Act is suigeneris.The procedure to be adopted and the manner in which the proceedings are to be conducted are clearly set out in Sections 66,71 and 72 of the Act. Section 66 (2) mandates that the special jurisdiction to inqure into disputes regarding which information had been filed under Section 66(1) should be exercised in the manner provided for in Part VII. The proceedings are of a summary nature and it is essential that they should be disposed of expeditiously. The importance of a speedy completion of the inquiry which culminates in the order under Section 68 or 69 is underscored by the specific time-schedule prescribed by the provisions of the Act."

The case of Kanagasabai vs.Mailvanaganam(2) considered Section 62 of the Administration of Justice Law No. 44 of 1973 (now repealed) and the observation made therein by Sharvananda, J. with reference to Section 62 apply equally well to Sections 66 and 68 of the Primary Courts Procedure Act which correspond to them.

"Section 62 of the Administration of Justice Law confers special jurisdiction on a Magistrate to make orders to prevent a dispute affecting land escalating and causing a breach of the peace. The jurisdiction so conferred is a quasi-criminal jurisdiction. The primary object of the jurisdiction so conferred on the Magistrate is the prevention of a breach of the peace arising in respect of a dispute affecting land. The section enables the Magistrate temporarily to settle the dispute between the parties before the Court and maintain the status quo until the rights of the parties are decided by a competent civil Court. All other considerations are subordinated to the imperative necessity of preserving the peace ..... At an inquiry under that section the Magistrate is not involved in an investigation into title or right to possession, which is the function of a civil Court. The action taken by the Magistrate is of a purely preventive and provisional nature in a civil dispute, pending final adjudication of the rights of the parties in a civil Court. The proceedings under this section are of a summary nature and it is essential that they should be disposed of as expeditiously as possible ....... ".

In view of the foregoing reasons my considered view is that the learned Primary Court Judge having closed the case and fixing the matter for judgment erred in re-opening the inquiry and further erred in summoning two witnesses ex mero motu when there was no provision for such a procedure.

It is to be seen that the learned High Court Judge in dismissing the revision application filed by the two Casiechettys' has also failed to address his mind to the jurisdiction of the Primary Court Judge to call for further evidence ex mero motu and has erred in coming to a finding that the Primary Court Judge was at liberty to call for further evidence if the evidence on record is insufficient to determine the issue. I would say it is an erroneous supposition of the learned High Court Judge when he observed : "What steps primary Court Judge could take if he finds that he has no sufficient facts to write the judgment other than to call for further evidence". If this procedure is to be permitted in making a determination in terms of Part VII of the Primary Courts Procedure Act then Section 72 of the aforesaid Act would become redundant. It would also be opening the flood gates for long drawn out protracted inquiries when the primary object of Part VII of the Primary Courts Procedure Act was for the speedy disposal of the dispute that has arisen. Furthermore, it would permit the Primary Court Judge to go on a voyage of discovery on his own contrary to provisions in Section 72 of the Primary Courts Procedure Act.

For the foregoing reasons, I would allow the appeal and set aside the judgment of the learned High Court Judge as well as the order of the learned Primary Court Judge dated 07.12.2000 issuing summons on the two witnesses. I also direct the learned Primary Court Judge to make his determination in accordance with the provisions of Section 72 of the Primary Courts Procedure Act. He is further directed to make his determination and order as expeditiously as possible. The petitioners-appellants are entitled to costs fixed at Rs. 5,000-.

    Wimalachandra, J. 1 agree.

Appeal allowed.

LOWE VS.DAHANAYAKE AND ANOTHER

2005 2 SLR 413

COURT OF APPEAL,

WIMALACHANDRA, J.

CALA 37/2005

DC NEGOMBO 6385/L

22ND AUGUST, 2005

Interim injuction - Preventing access being obstructed - A person having no soil rights, can he obstruct another using the road ? - How does a right of way Come into existence ? Interim relief-Ingredients- an the District Court invalidate an order made by the Primary Court - Primary Courts Procedure Act, Sections 66, 67, 68 and 69.

The plaintiff-respondents Instituted action and prayed inter-alia, for a declaration that they are entitled to a right of way over the roadway depicted in the plan and further Sought an enjoining order / interim injuction restraining the defendant from obstructing the plaintiffs from using the roadway. The Court granted interim I I relief sought. The defendant petitioner sought leave to appeal from the Court of Appeal.

Held :

(1) A right of way can come into existence, by an agreement duly registered, by Crown Grant, by prescriptive possession, by dedication to the public or by a declaration by a competent statutory authority that a right of way of necessity has been granted.

(2) The defendant is not the owner of the roadway - She is not the owner of the servient tenement - she is a mere user of that road, and as she has no soil rights in respect of the right of way, she has no right to obstruct the plaintiffs from using the roadway.

(3) It is only the owner of the servient tenement who can oppose the plaintiff using the road way.

(4) The plaintiffs have a prima facie case, the balance of convenience favours them, and the equitable considerations favour the grant of an injunction.

Per Wimalachandra J.

"The District Court cannot issue an interim injunction which will nullify or invalidate an order made by a Primary Court - if the Primary Court had already made an interim / final order for possession of land, in the instant case the effect of the interim injunction granted by the District Court is not contrary to the order made by the Primary Court Judge."

APPLICATION for leave to appeal from an order of the District Court, Negombo

Cases referred to :

1.Jinadasa Vs. Werasinghe 31 NLR 33

2.Perera Vs. Gunatilleke, 4 NLR 181 at 182

3.Kanagasabai Vs. Mylvaganam, 78 NLR 288 (distinguished)

D. H. Siriwardane for defendant petitioner Ranjan Suwandaratne with Ranjith Perera for plaintiff-respondents

Cur.adv. vult.

2nd November, 2005

WIMALACHANDRA, J.

The defendant-petitioner (hereinafter referred to as the defendant) filed this application for leave to appeal from the order of the learned District Judge of Negombo dated 20.01.2005. By that order the learned judge granted the interim injunction prayed for by the plaintiff-respondents (hereinafter referred to as the plaintiffs) in their plaint. Briefly, the facts as set out in the petition are as follows :

    The plaintiffs instituted this action bearing No. 6385lL in the District Court of Negombo against the defendant and prayed inter-alia for a declaration that the 1st plaintiff is, subject to the life interest of the 2nd plaintiff, the owner of the land described in the 2nd Schedule to the plaint, which is a divided portion of the land described in the 1st Schedule to the plaint (depicted in Plan No. 7815/2000) and for a declaration that the plaintiffs are entitled to a right of way over the roadway depicted in the plan No. 7815/2000 shown as the southern boundary. The plaintiffs also sought an enjoining order and an  interim injunction restraining the defendant from obstructing the plaintiffs from using the said roadway. When the application for the interim injuction was taken up, both parties agreed to file written submissions and invited the Court to make the order on the written submissions and the documents filed by the parties. Accordingly, the Court made the order on 20.01.2005 granting the interim injunction sought by the plaintiff. It is against this order that the defendant has filed this application for leave to appeal.

 The plaintiffs' title to the land described in the 2nd Schedule to the plaint. which is in  extent of 17.2 perches, is not disputed. The land described in the 1st schedule to the plaint is bordering on the north by a 30 ft. wide road and the south by the roadway described as Devata. The plaintiffs' father Don Cyril Samarasekera became the owner of the land described in the 1st schedule by deed of purchase No. 403 dated 15.01.1955 marked "P1". The said Don Cyril Samarasekera gifted the said land to the 1st plaintiff subject to the life interest of the said Don Cyril Samarasekera by deed No. 65689 dated 14.05.1988 marked "P3. The said Don Cyril Samarasekera constructed a house on the land described in the 2nd Schedule to the plaint, which is on the southern part of the land described in the 1st Schedule. This is shown in Plan No. 7815/2000 made by Hugh L. C. Dabrera, Licensed Surveyor marked "PC. It is the plaintiffs' case that the said Don Cyril Samarasekera built the said house and garage close to the southern end of the land facing the roadway described as the "Devata" in deeds marked "P1" and "P3. It is not in dispute that the said road "Devata" is now named Jayaratne Road, which is 20 ft. in width. The plaintiffs' position is that if Don Cyril Samarasekera had not used the said roadway in the south as a means of access, he would not have built the said house and the garage facing the said roadway. The architectural plan of the said house was produced marked "P5 and the plan showing the house built close to Jayaratne Road (previously called Devata Road) marked "P4".

The counsel for the defendant submitted that the plaintiffs have access to the land from the roadway shown to be 30 ft. in width as the northern boundary. The learned counsel further submitted that the learned Judge has not examined whether the plaintiffs have made out a prima facie case, in that, they were in fact entitled to a servitude over the said roadway and therefore the order of the learned Judge granting the interim injunction cannot stand. The learned counsel contended that only the defendant is entitled to the right of way over the said roadway by deed No. P13.

In order to entitle the plaintiffs to an interlocutory injunction, the plaintiffs must establish that there is a prima facie case in their favour. Once they clear that hurdle the next requirement is that the balance of convenience should favor the plaintiffs. The Court must also consider whether the equitable considerations favour the grant of an injuction. As regards the above-mentioned first requirement, the Court must be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a possibility of success if the facts alleged by the plaintiffs are proved. (Dalton J. in JinadasaVs. Weerasinghe(1)

A right of way can come into existence by an agreement duly registered, by Crown Grant, by prescriptive acquisition, by dedication to the public, or by a declaration by a competent statutory authority that a way of necessity has been granted (Servitudes by Hall & Kellaway, page 70).

Before I proceed to consider the requirements of prescriptiive acquisition, it must be noted that the defendant is not the owner of the said roadway, in that the defendant is not the servient tenement, and she is a mere user of the said road. Title to a servitude may be acquired by prescription if the occupation or use of something over which a right is asserted has been exercised nec vi, nec clam, nec precario. (Servitudes by Hall and Kellaway, page 29). It must be openly exercised and the person asserting must have suffered no interference from the true owner, Further, the use of the roadway must take place without the consent of the true owner. These are essential elements to a prescriptive claim against the owner of the roadway. As I mentioned above, the defendant is not the true owner and she is one of the users of the roadway among several others. It is only the owner of the servient tenement who can oppose the plaintiff using the said roadway. In this case the defendant is not the owner but merely another user of the said roadway. It is to be noted that an adverse user for the purpose of prescriptive rights has to only show that he has been a user of the definite roadway. According to the evidence placed before the Court, the plaintiffs' father who bought this land on 15.01.1 955 has this roadway as the southern boundary of his land. Thereafter the plaintiffs had build a house bordering the southern boundary of the said land facing the said roadway, which is the subject matter of this action. The certificate of confirmity was obtained for the said house on 30.11.1 998 (videUP6A) ll these are prima facie proof that they have been using the said roadway for well over ten years. Any sporadic interruption coming from another user of the said road, namely, the defendant is immaterial since she is not the owner of the said roadway.

It seems to me that the plaintiffs have used the said roadway, which is the southern boundary of their land as of right for a long period of time. This is borne out by the construction of the house and garage by the plaintiffs in close proximity to the southern boundary of their land facing the said roadway.

In the case of Perera Vs. Gunatilleke(2) at 182, Bonsor C. J, observed:

"It seems to me that, where a person establishes that he has used a way as of right openly and continuously for a long period and is forcibly prevented from using it, he is entitled to an injuction to restore him to the quasi possession of the way, irrespective of whether he can establish the existence of a servitude. We will treat this action as a possessory action and grant an injuction which will restore the status quo ante"

It is also to be noted that the defendant who has no soil rights in respect of the said right of way, has no right to obstruct the plaintiffs from using the said roadway.

The balance of convenience too favours the plaintiffs. Even if the injuction sought by the plaintiff is granted, it will not prevent the defendant from using the said roadway.  It will only prevent the defendant from obstructing the plaintiffs from using the roadway. However, it the injunction is not granted their is nothing to prevent the defendent from obstructing the plaintiffs from using the roadway. Accordingly, the inconvenience which the plaintiff will suffer by the refusal of the injuction is greater than that which the defendant  will suffer, if it is granted.

Finally, I will consider the objection raised by the learned counsel for the defendant that in view of the  order made by the Primary Court, Negombo in Case No. P/3660, dated 20.11.1998, the District Court will not have jurisdiction to grant an interim injuction according to the judgment in the case of Kanagasabai vs. Mylvaganam.(3)

The facts which led to the filing of an information by the Police under Section 66 of the Primary Courts Procedure Act, No. 44 of 1979 was due to a dispute between the 1st party respondent, Yasasiri Ruwan Balasuriya, the 2nd party respondent W. Shereen Malcon Lovi and the 3rd party respondent Don Cyril Samarasekera over the said roadway, namely, Deveta alias Jayarathe road. The plaintiffs were not parties to the primary Court proceedings but the plaintiffs' predecessor in title to land was the 3rd partv respondent. After an inquiry the learned Primary Court Judge made order under Section 69(2) directing the 3rd party-respondent not to cause any obstruction to the 2nd party-respondent in using the said roadway. The learned Magistrate observed that the 3rd party respondent had not used the said roadway as of right.

The order reads as follows:

The operative part of the order is the 2nd paragraph where the learned Judge ordered the 1st and 3rd respondents not to obstruct the 2nd respondent when she uses the road. It is to be noted that nowhere in the order is it stated that the 1st and 3rd respondents are prohibited from using the said road. In the case of Kanagasabai vs Mylvaganam (Supra) it was held that where a Primary Court had already made an interim or final order for Possession of land, the District Court will not have jurisdiction to grant an interim injunction which have the effect of nullifying such order. That is, the District Court cannot issue an interim injunction which will nullify or invalidate the order made by the Primary Court Judge in terms of sections 66,67, 68,69 of the Primary Courts Procedure Act. In the circumstances it is my considered view that in the instant case the effect of the interim injunction granted by the learned District Judge is not contrary to the order made by the Primary Court Judge. Accordinaly, I cannot agree with the submission made by the learned counsel for the defendant that the interim injuction granted by the learned District Judge will prejudice the rights of the defendant. For there reasons I see no grounds to set aside the order of the learned District Judge dated 20.01.2005. Accordingly, the application for leave to appeal is dismissed with costs fixed at Rs. 5,000.

Application Dismissed

SHARIF AND OTHERS VS.  CKRAMASURIYA AND OTHERS

2010 1 SLR 255

COURT OF APPEAL

ERIC BASNAYAKE, J .

CHITRASIRI, J.

CA 972/2007

PR. LT. PUTTALAM 16097/P

SEPTEMBER 10,2008

JUNE 1, 5,2009

OCTOBER 8,2009

NOVEMBER 18, 2009

Restitutio-in Integrum -Primary Courts Procedure Act - Section 66 - Section 66 (1) (a) (i). Jurisdiction of the Court of appeal to entertain Revision/Restitutio-in-Integrum applications from Primary Court orders? Constitution Article 138 - 13th Amendment Article 154P(3) - High Court of the Provinces (Special Provisions) Act 19 of 1990 - Section 9 as amended by Act 54 of 2006.

The petitioner sought an order by way of restitutio in integrum and or revision to set aside an order made by the Primary Court Judge under Section 66 of the Act.

It was contended by the respondent that the Court of Appeal has no jurisdiction to hear revision applications filed against the orders or judgments of Magistrate Courts and that after the 13th amendment to the Constitution and Act 19 of 1990 the aggrieved parties should move the respective High Courts of the Provinces in Revision.

Held

(1) In terms of Article 138 Court of Appeal shall have and exercise sole and exclusive cognizance by way of appeal, revision. However Article 154 (3) has given the High Court Appellate and revisionary jurisdiction in respect of orders by Magistrateslprimary Courts. Hence the Court of Appeal ceased to enjoy sole and exclusive jurisdiction. Article 154 P did not take away the powers exercised by the Court of Appeal under Article 138.

Per Eric Basnayake, J.

"High Court is vested with original jurisdiction and is placed lower to the Court of Appeal in the order of Courts on superiority".

(2) Jurisdiction enjoyed by the Court of Appeal through Article 138 remains intact. Both Courts enjoy concurrent jurisdiction on matters referred to in Article 154 P (3)

(3) High Court of the Provinces (Sp. Prov) Act 19 of 1990 had made provision for the Court of Appeal either to transfer such appeal or application to High Court or to hear and determine such applications.

Per Eric Baaeyake, J.

"I am of the view that it is more expedient for the Court of Appeal to hear and conclude this case rather than to transfer it to High Court  and for the reasons given on the merits I find that the learned Judge has gravely erred in her order.

(4) The fact that the Primary Court had not made an effort to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

APPLICATION for Revision/Restitutio in Integrum from an order of the Primary Court of Puttalam.

Cases referred to:-

(1) Kanagasabai vs. Mylvaganam 78 NLR 280

(2) Ramalingam vs. Thangarajah 1982 2 Sri LR 693

(3) David Appuhamy vs. Yassassi Thero 1987 1 Sri LR 253

(4) Punchi Nona vs. Padmasena 1994 2 Sri LR 117

(5) Tundor us. Anulawathie 1999 3 Sri LR 235

(6) Ali vs. Abdeen 2001 1 Sri LR 413

(7) In Re the Thirteenth Amendment 1987 2 Sri LR 312 at 323

(8) Abeywardane vs. Ajith de Silva 1998 1 Sri LR 134

(9) Gunaratne vs. Thambinayagam 1993 2 Sri LR 335

(10) Kanaglingam vs. Logeswaran CA (Rev) 686197 C.A.M. 9.6.1999

(11) Ramalingam vs. Paramashwary 2000 2 Sri LR 340

257

lkram Mohamed PC with Manjula Niyalpola for petitioner.

Rohan Sahabandu with Athula Perer for respondents.

October 21st 2010

ERIC BASNAYAKE J.

The Petitioners-second party (petitioners) are seeking inter alia an order by way of restitution in integrum and/or revision and to set aside the order dated 17.10.2007 of the learned Additional Magistrate of Puttalam. By this order the learned Judge had determined that the respondents (1st and 2nd respondents) were in possession of the land (subject matter) two months prior to the date the information was filed and thus not to disturb their possession.

The petitioners' case

    The extent of the disputed land is 14 acres. The original owners of this land were one Naina Marrikar and his wife. They sold this land by deed No. 11616 of 1967 to one Bashir. Bashir sold it by deed No. 383 of 1971 to the lst petitioner's wife and her sister. Naina Marikar died in 1975. On 25.5.1997 the intestate heirs of Naina Marikar namely, the wife and the children executed deed No. 13501 and purportedly gifted the land in dispute to one of the children, namely, Munawer Ali. The petitioners claim that the deed 13501 did not convey anything as there was nothing left to be conveyed

1st case under section 66 of the Primary Court Procedure Act

On 26.06.1997 Munawer Ali made a complaint to Wanathawiluva police against Letiff, the father of the present owners. In this complaint to the police Munawer Ali stated that he became aware that his father owned 14 acres of land in Puttalam and that one Latiff was claiming ownership. This resulted in a section 66 application being filed. The court dismissed this application as the information was filed two months after the complaint.

   On 22.6.2006 the 1st respondent who had a special power of attorney from Munawer Ali had placed the 2nd respondent in the land in a temporary cadjan hut. The first respondent is a retired Grama Sevaka of this province. On 9.7.2008 the 2nd respondent was evicted allegedly by the petitioner or his agents. This resulted in a complaint being made to the police by the 2nd respondent on 10.7.2006. The police filed information on 26.9.2006 and initiated the present case No. 16097/06/P. The petitioners had complained that the court has no jurisdiction to hear this case as two months have lapsed from the date of the complaint to the date of filing the information.

  The order of the Judge

    The learned Judge having referred to section 68(3) of the Primary Court Procedure Act stated that "the documents filed by the respondents reveal that the respondents have been in possession for more than 6 months prior to the date of the dispute. The learned Judge stated that "by considering the affidavits tendered the court decides that two months prior to the filing of the information by the police, possession was with the respondents (first party). There was no determination as to who was in possession at the time of filing the information and whether there was dispossession.

The objections of the respondents

The respondents claimed that Munawer Ali was the owner by deed No. 13501 and the 1st respondent was in possession throughout until the petitioners disturbed the 1st respondent's possession in 2006.

Written submissions of counsel for the 1st and 2nd respondents

In the written submissions tendered on 18.11.2009 the learned counsel for the respondents confirmed the following facts, Namely:

1. The date of eviction - 9.7.2006

2. The date of complaint - 10.7.2006

3. The date the information was filed 26.9.2006

Thus there is no dispute that the information was filed out of time. Whilst admitting that the information should have been filed within 2 months of the date of complaint, the learned counsel finds fault with the police for not having filed same. However the learned counsel justified the court entertaining this application. The learned counsel submitted that the act of the police should not be held against the aggrieved party. When the aggrieved party acted under Section 66(1) (a) (i), the aggrieved party expected the police also to act according to the law. When section 66(1) (a) (i) lays down that the police shall with the least possible delay file an information and the failure to adhere to the provisions in Section 66 (1) (a) (i) should not be held against the aggrieved party. The learned counsel submitted that a scheming party could prevent the aggrieved party from proceeding with the section 66 application by making the police file information after two months.

The Primary Courts procedure

The court shall before fixing the case for inquiry make every effort to induce the parties to arrive at a settlement (66(6)). At the inquiry the court is required to determine as to who is in possession of the land on the date of the filing of information under section 66 and make order as to who is entitled to possession of such land (68(1)). If any person who had been in possession is forcibly dispossessed within a period of two months immediately before the date on which the information was filed, he may make a determination to that effect and make an order directing that the party dispossessed be restored to possession (Section 68 (3)) (Kanagasabai vs. Mylvaganarn(1) Ramalingm vs. Thangarajah(2), David Appuhamy vs. Yassassi Thero (3) Punchinona vs. Padumasena (4) Tudor vs. Anulawathie (5)

The learned President's Counsel for the petitioners complained that no effort whatsoever was made by the learned Judge to pursue a settlement. The fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of Competence to hold an inquiry in to the question of possession Ali us. Abdeen ". The learned counsel further submitted that the learned Judge has totally misdirected herself in law and made no determination in terms of sections 68(1) or 68 (3) of the Act.

It appears that the learned Judge has taken as easy path by not following the procedure laid down by the Act. There was no determination by the learned Judge as to who was in possession on the date of filing the information as required by section 68(1). The other limb of this section is to make an order as to who is entitled to possession. To make this order the Judge is required to make a determination as to who was in possession on the date of filing the information. Once the court decided as to who was in possession on the date of filing the information, the court must make an order as to who is entitled to possession. Necessarily the person who was in possession at the time of filing the information is entitled to possession, unless there was dispossession within a period of two months immediately before the date on which the information was filed.

 Admittedly it was the petitioner who was in possession on the date of filing the information. The information was filed on 26.09.2006. Two months period immediately before the date of the filing of the information would be 26.7.2006. The dispossession was on 9.7.2006 which falls outside the period. If the dispossession is outside the two months period, section 68(3) will have no application. A party dispossessed could be restored back in to possession under section 68(3). If section 68(3) has no application the court cannot make an order of restoration. In that event the court will have to make an order declaring the petitioner entitled to possession as it was the petitioner who was in possession on the date of filing the information.

The jurisdiction of the Court of Appeal

The learned counsel for the respondents submitted that the Court of Appeal has no jurisdiction to hear revision applications filed against the orders or judgments of Magistrates. He submitted that after the 13th Amendment to the Constitution and the Act of No. 19 of 1990 (High Court of the Provinces (Special Provisions) Act the aggrieved parties should move the respective High Courts of the provinces in revision.

The Constitution

Article 138 of the Constitution gives jurisdiction to the Court of Appeal with regard to its revisionary powers. Article 138 is as follows:-

138 (1): The Court of Appeal shall have and exercise (subject to the provisions of the Constitution or of any law) an appellate jurisdiction for the correction of all errors in fact or in law which shall be committed by any court of first instance, tribunal or other institution and sole and exclusive cognizance, by way of appeal, revision and restitution in intearum, of all cases, suit, action, prosecutions matters and things of which such courts of First instance, tribunal or other institution may have taken cognizance (emphasis added).

Proviso not reproduced

(2) Is not reproduced.

The sole jurisdiction given by Article 138 was expended to High Courts by Article 154P (3) (b) under the 13th Amendment to the Constitution. The Article is as follows:

154P (3) Every High Court shall -

(b) Notwithstanding anything in Article 138 . . .  exercise, appellate and revisionary jurisdiction in respect of orders. . . by Magistrate Courts and Primary Courts within the province

In terms of Article 138 the Court of Appeal shall have and exercise. . . sole and exclusive cognizance by way of appeal; revision. . . However Article 154(3) (b) has given the High Court appellate and revisionary jurisdiction in respect of orders by Magistrate Courts and Primary courts. Hence the Court of Appeal ceased to enjoy sole and exclusive jurisdiction. Article 154P did not take away the powers exercised by the Court of

Appeal under Article 138.

However section 9 of the High Court of the Provinces (Special Provisions) Act appears to have caused a conflict with regard to the jurisdiction enjoyed by the Court of Appeal. According to this section an aggrieved person by a final order of a High Court in the exercise of the appellate jurisdiction vested in it by paragraph (3) (b) of Article 154P may appeal to the Supreme Court on a substantial question of law with leave first obtained from High Court.

Section 9 of High Court of the Provinces (Special Provisions) Act No. 19 of 1990 is as follows:-

Subject to the provisions of this Act or any other law any person aggrieved by (a) a final order. . . of a High Court. . . in the exercise of the appellate jurisdiction vested in it by paragraph (3) (b) of Article 154P. . . which involves a substantial question of law, may appeal there from to the Supreme Court if the Court grants leave to appeal to the Supreme Court. . .

High Court is vested with original jurisdiction and is placed lower to the Court of Appeal in the order of Courts on superiority. However when a party chooses to go to High Court with a right of appeal to the Supreme Court, one may argue that the appellate powers of the Court of Appeal have been removed.

Has the powers of the Court of Appeal with regard to its appellate and revisionary jurisdiction been removed?

This is not so. Articles 138 and 154P give jurisdiction to Court of Appeal and High Court respectively to hear appeals and revision from the Magistrate's Court Against the orders of these courts appeal lie to the Supreme Court with leave first obtained from the Court of Appeal or the High Court as the case may be, on a question of law. This does not mean that the powers enjoyed by the Court of Appeal had been taken away. The powers of the High Court are limited to the Province. The Court of Appeal exercises its powers for the whole island.

The High Courts are given jurisdiction with regard to appeals and revision against judgements and orders of the Magistrate's Courts and Primarv Courts through the Constitution (13th Amendment). High Courts are given appellate and revisionary jurisdiction with regard to judgements, decrees and orders of the District Courts in the Provinces through an Act of Parliament (Act No. 54 of 2006). Against the judgments and orders of the High Court, appeal would lie again to the Supreme Court with leave first obtained on a question of law from the Supreme Court. In this respect the High Courts have been given concurrent jurisdiction along with the Court of Appeal.

Act No. 54 of 2006

This Act amended Act No. 19 of 1990 with the insertion of sections 5A, 5B, 5C and 5D. Section 5A(1) gives the appellate and the revisionary jurisdiction which is as follows:-

5A (1) A High Court established by Article 154P of the Constitution for a province, shall have and exercise appellate and revisionary jurisdiction in respect of judgments, decrees and orders delivered and made by anv District Court or a Family Court within such a province and the appellate jurisdiction for the correction of all errors in fact or in law, which shall be committed by any such District Court or Family Court, as the case may be (emphasis added).

I am of the view that the jurisdiction enjoyed by the Court of Appeal through Article 138 remains intact. Through Article 138 one has the liberty to invoke the jurisdiction of the Court of Appeal or to resort to a Provincial High Court in terms of Article 154P (3) (b). If one chooses to go to the High Court, an appeal would lie to the Supreme Court with leave first obtained from the High Court (Section 9 of the Act 19 of 1990). If one invokes the jurisdiction of the Court of Appeal under Article 138 an appeal would lie from any final order or judgement of the Court of Appeal to the Supreme Court with leave of Court of Appeal first obtained (Article 128(1) of the Constitution). It is thus clear that both courts enjoy concurrent jurisdiction on matters referred to in Article 154P (3) (b). The jurisdiction enjoyed by the Court of Appeal had not been disturbed by Articles of the Constitution or by the Acts of Parliament.

Sharvananda C. J., Colin-Thome, Atukorale and Tambiah J. in the case of In Re the Thirteenth Amendment to The Constitution and The Provincial Councils Bill (7) at 323 in their determination held as follows:-

    "The Bill do not effect any change in the structure of the courts judicial power of the people. The Supreme Court and the Court of Appeal continued to exercise unimpaired several jurisdictions vested in them by the Constitution. There is only one Supreme Court and one Court of Appeal for the whole Island. The 13th Amendment Bill only seeks to give jurisdictions in respect of. . . Without prejudice to the executing jurisdictions of the Court of Appeal. Vesting of this additional jurisdiction in the High Court of each province only brings justice nearer home to the citizen and reduces delay and cost of litigation."

In the case of Abeywardene vs. Ajith De Silva the question was whether a direct appeal lies to the Supreme Court from an order of the High Court in the exercise of its revisionary jurisdiction without first preferring an appeal to the Court of Appeal. Anandacoomaraswamy J held (with four Justices agreeing)"

There is no right of appeal from an order of the Primary Court Judge. . . However parties appeal to the Court of Appeal by way of revision under Article 138 of the Constitution read with Article 145 to have the order set aside. After the 13th Amendment, section 5 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 read with Article 154P (3) (b) of the Constitution entitled him to file such application in the High Court of the province. The Jurisdiction of the High Court in the matter is concurrent (In re 13th Amendment to the Constitution (supra)) In the result, he may file an application in the Court of Appeal or in the High Court" (emphasis added). In Gunaratne vs. Thambinayagam(9) Kulatunga J., G.P.S. De Silva C. J. and Ramanathan J agreeing) referring to Article 138 of the Constitution read with Act No. 19 of 1990 and 154P (3) (b) of the Constitution held that "The jurisdiction of the High Court in the matter is concurrent. . . In the result he may file his application in the Court of Appeal or in the High Court" (at 357) (Also Kanagalingam us. Logeswaran(10) vy J . A. N. De Silva J. (now Chief Justice). Ramalingam us. Parameshwary(11) Act No 19 of 1990 had made provision for the Court of Appeal either to transfer such appeals or applications to High Court or to hear and determine such applications (by the Court of Appeal). It appears that Act 19 of 1990 was introduced for the purpose of expediting and disposing of cases. The relevant section is as follows:-

12(a) Where any appeal or application is filed in the Court of Appeal and an appeal or application in respect of the same matter has been filed in a High Court established by Article 154P of the Constitution invoking jurisdiction vested in that Court by paragraph (3) (b) or (4) of Article 154P of the Constitution, within the time allowed for the filing of such appeal or application, and the hearing of such appeal or application by such High Court has not commenced, the Court of Appeal may proceed to hear and determine such appeal or application or where it considers it expedient to do so, direct such High Court to hear and determine such appeal or application:

Provided, however, that where any appeal or application which is within the jurisdiction of a High Court, . . . is filed in the Court of Appeal, the Court of Appeal may if it considers it expedient to do so, order that such appeal or application be transferred to such High Court and such High Court shall hear and determine such appeal or application.

(b) Where the Court of Appeal decides to hear and determine any such appeal or application, as provided for in paragraph (a), the proceedings pending in the High Court shall stand removed to the Court of Appeal for its determination (emphasis added).   (c) Not reproduced  (d) Not reproduced

This application was filed in the Court of Appeal on 16.11.2007. The parties were noticed by the Court of Appeal and objections were filed by the respondents on 7.2.2008. The submissions were filed on 10.9.2008 and 1. 6.2009 & 18.1 1.2009. This was taken up for argument on 8.10.2009. When this case was taken up for argument counsel for both parties had addressed court with regard to the merits and the court was ready and had time to hear both counsel on its merits. Thus the Court of Appeal is in a position to make an order on its merits. Therefore there is no reason for the Court of Appeal to send it back to High Court. I am of the view that it is more expedient for the Court of Appeal to hear and conclude this case rather than to transfer it to the High Court.

Provisions have been made in the event an appeal or revision is filed in the Court of Appeal and without filing in the High Court of the Province, to transfer such cases. This is by Act No. 54 of 2006.

The section is as follows:

5D (1) Where any appeal or application in respect of which the jurisdiction is granted to a High Court established by Article 154P of the Constitution by section 5A of this Act is filed in the Court of Appeal, such appeal or application, as the case may be, may be transferred for hearing and determination to an appropriate High Court as mav be determined by the President of the Court of Appeal and upon such reference the said High Court shall hear and determine such appeal or the application, as the case may be, as if such appeal or application was directly made to such High Court.

Thus both courts enjoy concurrent jurisdiction with regard to judgments and orders of the Magistrate/Primary Courts and District Courts. The powers enjoyed by the Court of Appeal had been given to the High Court of the Provinces to facilitate the litigants in the provinces and also to reduce the work load of the Court of Appeal. I am of the view that the petitioners are at liberty to file this application before the Court of Appeal and the petitioners are before the correct forum. For the reasons given on its merits I find that the learned Judge has gravely erred in her order. Thus, I set aside the order of the learned Judge and make order directing the Judge to issue a writ of possession forthwith and repair the injustice caused to the petitioner. I allow this application with costs.

CHITRASIRI J. - I agree.

Application allowed.

NANDAWATHIE AND ANOTHER V. MAHINDASENA

2009 2 SLR 18

COURT OF APPEAL

RANJIT SILVA. J

SALAM, J.

CA( PHC) 242/2006

HC AVISSAWELLA (REV) 67/2004

MC AVISSAWELLA 66148 (66)

JANUARY 15TH, 2009

MAY 4TH, 2009

Primary Court Ordinance Sections 68, 69, 74 (2), 78 - Relief granted - Moved High Court in revision - Application allowed - Appeal lodged - Can the writ be executed while the appeal is pending? - Is there an automatic stay of proceedings? Civil Procedure Code Sections 754, 757 (2), 761, 630 - Amended by Act No. 38 of 1998 - Judicature Act - Section 23 - High Court of the Provinces (SpI Prov) Act No.19 of 1990 - Constitution 154 P 13th amendment- Supreme Court Rules 1940 - Industrial Disputes Amendment Act No. 32 of 1990 - Maintenance Act No. 34 of 1990 - Section 14 - Criminal Procedure Code No.15 of 1979 Section 323 - Bail Act - Section 19- Constitution Article 138 - Examined - Compared. - Obiter dicta.

Held

(1) When an order of a Primary Court Judge is challenged by way of revision in the High Court the High Court can examine only the legality of that order and not the corrections of that order.

(2) On appeal to the Court of Appeal the Court of Appeal should not under the guise of the appeal attempt to re-hear or re-evaluate the evidence led and decide on the facts which are entirely and exclusively falling within the domain of the jurisdiction of the Primary Court.

(3) Orders given by the Primary Court should be executed or implemented expeditiously as possible without undue delay unless there is a stay order currently in operation there should be no automatic stay of proceedings for whatever reason otherwise that would negate and frustrate the very purpose for which that provisions were enacted.

Per Ranjith Silva J.

"I am of the opinion that this particular right of appeal in the circumstances should not be taken as an appeal in the true sense but in fact an application to examine the correctness, legality or the propriety of the order made by the High Court Judge in the exercise of revisionary powers. The Court of Appeal should not under the guise of an appeal attempt to rehear or re-evaluate the evidence led in the main case."

Per Ranjith Silva. J.

"General laws, concepts and general principles whether they have been there from time immemorial should not be applied mechanically to new situations which were never in contemplation when those laws, principles or concepts came into being, extraordinary situations demand extraordinary remedies. It is the duty of Court of law to give effect to the laws to meet new situations, by brushing aside technicalities, the so called rules and concepts which cannot be reconciled should not be allowed to stand in the way of the administration of justice causing hindrance impeding the very relief the legislature wanted to enact".

Per Ranjith Silva, J.

"The decision in R. A. Kusum Kanthilatha and others v. Indrani  Wimalaratne(1) and two others placing reliance on the dictum in Edward v. Silva(2) as authority for the proposition that once an appeal is taken against a judgment of a final order pronounced by a High Court in the exercise of its revisionary jurisdiction ipso facto stays the execution of the judgment or order is clearly erroneous. Lodging of an appeal does ipso facto stay execution. Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the judgment or order - it is not automatic".

Cases referred to:-

1. R.A. Kusum Kathilatha and others v. lndrani Wimalaratne and two others - 2005 1 Sri LR411 (not followed)

2. Edward v. de Silva - 46 NLR343 (distinguished)

3. AG v. Silem -11 Eng. Reports at 1208.

4. Sokkalal ram Sart v. Nadar- 34 NLR 89

5. Charlotte Perera v. Thambiah 1983 - 1 Sri LR at 352

6. Brooke Bond (Ceylon) Ltd., v. Gunasekera - 1990 1 LR 71

7. Nayar v. Thaseek:Ameen - 20003 Sri LR at 103

8. Kulatunga v. Perera - 2002 - 1 Sri LR at 357

APPLICATION in revision from an order of the High Court of Avissawella.

W Dayaratne for petitioners

Rohan Sahabandu for respondent.

Cur.adv. vult

November 11th, 2009

RANJITH SILVA, J.

 The Petitioners Respondents Petitioners, who shall hereafter be referred to as the Petitioners, filed an information by affidavit regarding a dispute over a right of way between the Petitioners and the Respondent, in the Primary Court of Avissawella on 25th March 2004 under and in terms of Section 66(1)(b)of the Primary Court Procedure Act No.44 of 1979.

The Learned Magistrate (learned Primary Court Judge) by his order dated 1st of July 2004 granted the roadway as prayed for by the Petitioners in their petition and thereafter the said order was executed by the fiscal and accordingly the use and enjoyment of the said roadway was granted over to the 1st Petitioner.

 Being dissatisfied with the said order of the Learned Primary Court Judge, dated 01.07.2004, the Respondent moved the High Court of Avissawella in revision. The Learned High Court Judge on 16.03.2006 allowed the application for revision filed by the Respondent and set aside the order of the learned Primary Court Judge, dated 1st July 2004.

Aggrieved by the said order of learned High Court Judge dated 16.03.2006 the Petitioners, have preferred an appeal to this Court on 29th March 2006, which is pending before another division of this Court.

Thereafter the Respondent filed a motion in the High Court and made an application to obtain an order to close the road which was opened in accordance with the order made by the learned Primary Court Judge and the said application of the Respondent was allowed by the learned High Court Judge on 29.03.2006, the same day the petition of appeal against the order of the learned High Court Judge ,was lodged and accepted. The petition of appeal was accepted by the registrar of the High Court at 3.15 p.m. on 29.03.2006. The Petitioners lodged the appeal 13 days after the final order in the application for revision, was made by the High Court. Thus it appears that the appeal was lodged within the appealable period namely within 14 days of the date of the final order.

On 30th ofMay2006 on a motion filed by the Respondent, learned High Court Judge affirmed both the orders dated 16th March 2006 and 29th March 2006. Consequently the learned Primary Court Judge ordered the execution of the final order made by the learned High Court Judge restoring the Respondent to possession of the land over which the said right of way is claimed by the petitioners

Being aggrieved by the said orders of the learned High Court Judge dated 29th of March 2006 and 30th May2006 the Petitioners have filed this application in this Court seeking to revise/set-aside the orders of the learned High Court Judge dated 29th of March 2006 and 30th May 2006 and the order for execution of the writ made by the learned Magistrate while the appeal is pending and to restore the Petitioner to possession of the land over which the said right of way is claimed by the petitioner's.

It was virtually the main and only contention of the Counsel for the petitioners that the learned High Court Judge (the learned Primary Court Judge) had no jurisdiction to execute the orders after an appeal was taken to the Court of Appeal in that there aren't any provisions to execute a writ while the appeal is pending in the Court of Appeal as  such power is given only under Section 761 and 763 of Civil Procedure Code which have no effect, relevance or bearing at all to the instant case. In support of his contention the Counsel for the petitioners cited the judgment delivered by His Lordship Justice Gamini  Amaratunga, in R.A. Kusum Kanthiltha and Others v. Indrani Wimalaratne and Two others"

In the said case His LordshipJustice GaminiAmaratunga, citing Edward v. DeSilva(2) at 343, held as follows;

"Asstated above, a party dissatisfied with an order made by the High Court in a revision application has a right of appeal to this Court against such order. In terms of the Court of Appeal (procedure for appeals from the High Courts) rules of 1988, such an appeal has to be filed in the High Court within 14 days from the order appealed against. Once an appeal is filed, the High Court has to forward its record together with the petition of appeal to the Court of Appeal. In the meantime, as has happened in this case, the party who is successful in the High Court may make an application to the original Court supported by a certified copy of the order of the High Court, to execute the order of the High Court. Several revision applications which have come before this Court indicate that in such situations, some of the original Court Judges have taken the view that in the absence of a direction from the Court of Appeal directing the stay of execution pending appeal, the order appealed against is an executable order. With respect, this is an erroneous view. It appears that the learned Magistrate in this case has fallen into the same error when the order was made to execute the order of the High Court pending the receipt of an order from the Court of Appeal. There is no provision or necessity for issuing a direction to stay execution. The filling of an appeal ipso facto operate to suspend the jurisdiction of the original Court to execute the order appealed against.

There is a practical difficulty faced by the original Courts when an application to execute the order of the High Court is made. The appeal is filed in the High Court and it is then transmitted to the Court of Appeal. There is no provision to officially intimate the original Court that an appeal has been filed, In such situations it is the duty of the party resisting execution on the basis of the pending appeal to furnish proof by way of a certified copy of the petition of appeal to satisfy the original Court that an appeal has been made. When such proof is tendered, the original Court should stay its hand until the appeal is finally disposed of."

Counsel for the Respondent argued to the contrary and submitted that the judgment of Justice Gamini Amaratunga in Kanthiltha's case (supra) is wrongly decided. (Decided per incuriam) for the reason that their Lordships in that case have not considered the statutes and the relevant authorities referred to in that judgment and also for the reason that their

Lordships have followed the decision in Edward v. De Silva (supra) to arrive at the conclusion it arrived at, since the Judges  who decided the case decided that case, relying on the Judgment in AG v. Sillem(3)at 1208. It is quite significant to note that AG v. Sillem (supra) is a criminal case, to be precise a case dealing with breach of statutory provisions.

AG v. Sillem (Supra) relied on by their Lordships in arriving at their decision in Edward v. De Silva (supra) is a criminal case. In Criminal matters, the normal practice and the rule is that once an appeal is taken from a Judgment of an inferior Court the jurisdiction of the inferior Court with regard to the execution of the judgment and sentence, in respect of that case, is suspended.

In Edward v. De Silva (Supra) the ratio decidendi was that in an application for execution of decree after an appeal has been filed by the judgment debtor it is the duty of the Judgment creditor to make the Judgment debtor a party respondent. The failure to comply with this requirement stipulated in Section 763 of the Civil Procedure Code would result in a failure of jurisdiction of the Court to act and would render anything done or any order made thereafter devoid of legal consequences. The observations made by their Lordships in the said case, regarding the suspension of the jurisdiction of a lower Court after the lodging of an appeal was an obiter dictum as that was never the issue that had to be decided in the case.

Proceedings under Section 66 of the Primary Court Procedure Act, are generally considered as quasi criminal in nature, yet matters with regard to execution of orders of a Primary Court Judge are very much civil in nature. The particular section dealing with casus omissus secures this position beyond any doubt.

Section 78 of the Primary Court Procedure Act is as follows;

If any matter should arise for which no provision is made in this Act, the provisions in the Code of Criminal Procedure Act governing a like matter where the case or proceeding is a criminal prosecution or proceeding and the provisions of the Civil Procedure Code governing a like matter where the case is a civil action or proceeding shall with such suitable adaptations as the justice of the case may require be adopted and applied."

Counsel for the Respondent contended that if a stay of the order of the High Court is required it is for the aggrieved party to move the Court of Appeal to get a stay of the order of the High Court. The mere filing of an appeal does not ipso facto stay the execution of the judgment or order. He contended further that in civil maters, the decided cases, the rules of the Supreme Court and the statutes clearly lay down the principle that the execution of the decree is the rule and the stay of execution is the exception and for a stay order to be obtained specific provision must be provided for in the Act.

The provisions of chapter LV 111 of the Civil Procedure Code dealing with appeals do not contain any provisions for stay of execution of the judgment. Sections 761 and 763 in chapter L1V are the only provisions that deal with stay of execution of orders, judgments or decrees. But it has to be borne in mind that none of these provisions are applicable to the instant case as part V11 of the Primary Court Procedure Act does not provide for an appeal against an order. Not only does it not provide for an appeal but also specifically debars an appeal.

Section 74 (2t of the Primary Court Procedure Act

"An appeal shall not lie against any determination or order under this Act. "

By an amendment to the Civil Procedure Code provisions were made for stay orders in Leave to Appeal matters. Section 757(2) as amended by ActNo.38of 1998 has provided for stay orders, interim injunctions and other relief, unlike section 754 of the Civil Procedure Code dealing with appeals.

Section 757(2)

 "Upon an application for leave to appeal being filed, in the registry of the Court of Appeal the Registrar shall number such application and shall fort hunih: sent notice of such application by registered post, to each of the respondents named therein, together with copies of the petition, affidavit and annexure, if any. The notice shall state that the respondent shall be heard in opposition to the application on a date to be specified in such notice. An application for leave to appeal may include a prayer for a stay order, interim injunction or other relief". (Emphasis added)

By contract the provisions of Section 754 dealing with appeals are silent with regard to stay orders. Even the Supreme Court rules dealing with appeals do not provide for stay of execution. But the Supreme Court rules provide for stay orders in application such as revision application and leave to appeal applications.

The Civil Procedure Code contains specific provisions with regard to the staying of execution of the decree pending appeal. If no application to stay execution is made the judgment creditor is entitled to apply for execution of the decree. Such application cannot be made before the expiry of the time prescribed for tendering the notice of appeal. The stay of execution of decree will not be made unless the judgment debtor can establish that substantial loss will be caused to him if the judgment is executed pending appeal. The Judicature Act too contains specific provisions with regard to stay of execution of judgment pending appeal. Thus it is seen that under the Civil Procedure Code the rule is to execute the judgment and the exception is to stay the execution pending appeal on proof of substantial loss. In this regard I would like 'to quote the following provisions of the Civil Procedure Code and the Judicature Act.

Section 763(2) of the Civil Procedure Code.

The Court may order execution to be stayed upon such terms and conditions as it may deem fit, where.

(a) the Judgment debtor satisfies the Court that substantial loss may result to the Judgment debtor unless an order for stay of execution is made, and

(b) security given by the Judgment debtor for the due performance of such decree or order as may ultimately be binding upon him.

In Sokkalal Ram u. Nadar" it was held that stay of execution pending appeal is granted only where the proceedings would cause irreparable injury to the appellant and where 'the damages suffered by the appellant by execution of decree, would be substantial.

Section 23 of the Judicature Act No.2 of 1978.

Any party who shall be dissatisfied with any judgment, decree, or order pronounced by the District Court may (except where such right is expressly disallowed) appeal to the Court of Appeal against any such judgment, decree or order for any error in law or in fact committed by such Court, but no such appeal shall have the effect of staying the execution of such Judgment, decree or order unless the District Judge shall see fit to make an order to that effect, in which case the party appellant shall enter into a bond, with or without sureties as the District Judge shall consider necessary, to appear when required and abide the Judgment of the Court of Appeal upon the appeal.

In Charlotte Perera us. Thambiabr' at 352 it was held that the mere filing of an appeal does not stay the execution of the decree appealed against. The Court may stay the execution if an application is made for stay of execution on the grounds mentioned in Section 761.

In Brooke Bond (Ceylon) Ltd v. Gunasekaras' it was held in that Section 761 should not be construed in such a way as not to lightly interfere with the decree holders rights to reap the fruits of his victory as expeditiously as possible.

The Counsel for the Respondent in support of his case has cited two cases. In Nayar u. Thaseek Ameen[7] the District Court held with the plaintiff, aggrieved by the judgment, the defendant appealed to the Court of Appeal but the appeal was dismissed by the Court of Appeal. The defendant filed a motion stating that he intended to appeal to the Supreme Court and moved for a stay of execution of the Judgment. The Supreme Court held that the Court of Appeal has no power to stay proceedings and the jurisdiction is with the Supreme Court. In fact in that case leave to appeal to the Supreme Court was granted by the Court of Appeal, yet the Court of Appeal did not have the jurisdiction to grant a stay order.

It is discernible from the said Judgment that once the Court of Appeal or the High Court gives its Judgment the proceedings are not automatically stayed in the High Court. the Court of Appeal or the Supreme Court, as the case may be, should be moved, to obtain a stay order. In the earlier. case referred to above it is the Supreme Court which had the power to grant a stay order, staying the execution of the order of the Court of Appeal. By the same token and by parity or reasoning it is only the Court of Appeal that can grant a stay order against an order of the High Court and the mere loading of an appeal does not automatically stay the execution of the Judgment or Order of the High Court. This is yet another aspect that their Lordships had failed to consider by an oversight in Kanthilatha's case (supra).

The second case cited by the Counsel for the respondent IS Kulatunga v. Peiris". This case deals with interim restraining orders as distinct from stay orders staying the execution of a judgments or orders. An average interim order should be distinguished from an interim order in the nature of a stay order especially the stay orders that tend to stay the execution of judgments or orders. Their Lordships in the above case held that the Court of Appeal has the inherent power to restrain a party from destroying the subject matter of the action and also to authorize a party to take necessary steps (subject to such terms and conditions as the Court may prescribe) to preserve the subject matter of the action, his Lordship Justice Mark Fernando observed I quote; "However such inherent jurisdiction can be invoked only by way of a proper application supported by an affidavit and giving the opposite party an opportunity of being heard before making an order."

The Supreme Court further held in that case that the tenant had the right to do so in the exercise of his rights under;

(a) the tenancy agreement,

(b) in the discharge of his duty to mitigate loss and damage which he would otherwise suffer,

(c) or in the fulfillment of his mutual obligations,

(d) or to avoid criminal liability.

Therefore I find that the decision in Kalutunga v. Peiris (supra) would not be directly relevant to a decision of this Court in the instant case. But from the decision of that case we can derive some support to augment that the mere lodging of an appeal does not ipso facto stay the execution of the Judgment or the order appealed against. Even to obtain an interim order from the Court of Appeal there ought to be a proper application.

Nowhere in the Civil Procedure Code it is stated that lodging of an appeal will stay the writ of execution of the decree, Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the decree. It is not automatic. When an appeal is taken against a final order of a High Court Judge made in the exercise of its revisionary jurisdiction, the Supreme Court Rules do not provide for a stay of execution of that order whereas in application for revision, in application for leave to appeal and also in applications for special leave to appeal, although there is no automatic stay, the Supreme Court rules provide for applications for stay of execution pending such applications but this is not so in appeals. Therefore a party, who wishes to have the execution of the impugned order stayed pending appeal, could file a revision application to obtain a stay of execution of the impugned order.

Prior to the 13th Amendment and the High Court of the Provinces Special Provisions Act No. 19 of 1990 which conferred upon the High Courts the jurisdiction to entertain applications for revision, a person aggrieved by an order made by a Primary Court Judge or a Magistrate had to move  the Court of Appeal in revision. If any person was dissatisfied with the order of the Court of Appeal he had to seek special leave to appeal From the Supreme Court within 42 days. (Vide Rule 42 of the Supreme Court Rules). The Supreme Court Rules of 1990provides for stay of proceedings. Where special leave is granted, if a party wants a suspension of the Judgment of the Court of Appeal, he has to make an application to the Supreme Court and thus it would be seen that the mere lodging of an application for special leave to appeal to the Supreme Court does not ipso facto stay the order of the Court of Appeal. Generally such stay orders are given exparte by the Supreme Court and such stay orders remain in force for a period of 14 days which fact is indicative of the fact that stay of execution is the exception and execution of the Judgment is the rule. According to rule 43 (3) if an interim stay is granted and if special leave is granted subsequently the Petitioner has to make yet another application to get a stay of the execution of Judgment pending the final determination of the appeal. These matters have not been considered by their Lordships who decided Kanthilaths's case (supra).

Unlike in applications for special leave to appeal to the Supreme Court where the Supreme Court Rules provide for stay orders, (vide 43(3))Article 154 P or the High Court of the Provinces Special Provisions Act, or the Supreme Court Rules do not provide for stay orders in appeals.

The modern trend in some of the recently enacted. legislations Industrial Disputes

The Industrial Disputes (amendment) Act No. 32 of 1990 contains provisions dealing with security that has to be deposited in case an appeal is to be taken against an order, by an aggrieved party. The purpose of deposit of security is to ensure satisfaction of the Labour Tribunal order. Thus there is a guarantee of satisfaction of the order of the Labour Tribunal in case the appeal is not successful. In terms of the provisions of the Industrial Disputes Act, the order of the Labour Tribunal will not be implemented during the pendency of the appeal provided that sufficient funds have been deposited as security to satisfy the order of the Labour Tribunal in case the appeal is unsuccessful.

Maintenance Matters

Section 14 (1) of the Maintenance Act No. 37 of 1999 is as follows;

Any person who shall be dissatisfied with any order made by the Magistrate under Section 2 or Section 11 may prefer an appeal to the relevant High Court established by Article 154 P of the Constitution in the like manner as if the order was a final order pronounced by a Magistrate's Court in criminal cases or matters, and Section 320 and 330 both, inclusive of Section 357 and 358 of the Code of Criminal Procedure Act No. 15 of 1979 shall mutatis mutandis apply to such appeal.

Provided however, not withstanding anything to the contrary in Section 323 of the Criminal Procedure Code Act No. 15 of 1979 such order under Section 2 shall not be stayed by reason of such appeal, unless the High Court directs otherwise for reasons to be recorded.

It is evident from the above provisions that even under the new Maintenance Act the rule is not to stay the execution of the order unless the High court directs otherwise for reasons to be recorded.

Section 14 (2) states that, any person dissatisfied with an order of the High Court may lodge an appeal to the Supreme Court on a question of law with the leave of the High Court and where such leave is refused, with the special leave of the Supreme Court ,first had and obtained.

Then the question arises, whether the order of the High Court is ipso facto stayed the High Court grants leave to Appeal to the Supreme Court. To answer this question one must look at rule 42 of the Supreme Court Rules, wherein it is stated that, if the Court of Appeal grants leave the party seeking to stay the execution of the judgment or final order, should obtain such relief from the Supreme Court. In the same way, when the High Court grants leave to appeal to the Supreme Court, the order is not automatically stayed. The party will have to move the Supreme Court to obtain a stay.

According to the old Criminal Procedure Code when a person is convicted in the Magistrate's Court the Magistrate has no discretion but to grant bail on the accused. If the accused was condemned to undergo hard labour he shall be detained in custody without hard labour until the Judgment of the Court of Appeal is made known to the Superintendent of the prison. If an accused is convicted for murder, by the High Court, the sentence of death will not be carried out and the execution of the Judgment will be stayed during the pendency of the appeal. This position of the law was changed/altered by Section 19 and 20 of the Bail Act No. 30 of 1997. Under the current law the Magistrate has the discretion to grant or refuse bail pending appeal. It is significant to note that even after a conviction in the Magistate's Court if the ,sentence is not hard labour the punishment will not be stayed unless the Magistrate decides to grant bail on the accused; it is only hard labour that is automatically stayed. This position is not the same in the High Court as the High Court Judge has the discretion to either release the accused on bail or keep him in custody pending appeal whether the sentence is hard labour or otherwise. But if an accused is sentenced to death the execution is stayed pending appeal.

Criminal cases - Magistrate's Court Section 323 (1) of the Criminal Procedure Code

 (When an appeal has been preferred the Court from which the appeal is preferred shall order the awellant if in custody to be released on his entering into a recognizance in such sum with or without a surety or sureties as such Court may direct conditioned to abide the judgment of the Court of Appeal and to pay such costs as may be ordered. (emphasis added)

Section 323 (4) of the Criminal Procedure Code

When a person sentenced to a term of rigorous imprisonment has preferred an appeal, but is unable to give the required recognizance or other security he shall be detained in custody without hard labour until the Judgment of the Court of Appeal is made known to the Superintendent of the prison.

Section 19 of the Bail Act is as follows;

Where an appeal has been preferred from a conviction in the Magistrate's Court the Court from which the appeal is preferred may having taken into consideration the gravity of the offence and the antecedents of the accused, refuse to release the appellant on bail.

Bail Act Section 19(6)

When a person sentenced to a term of rigorous imprison. ment has preferred an appeal, but is unable to give the required recognizance or other security he shall be detained in custody without hard labour until the Judgment of the Court is made known to the Superintendent of the prison.  According to this Section it is only hard labour that is ipso facto stayed.

Criminal cases - High Court

Section 333(1' of the Criminal Procedure Code Act No.1S of 1979 Upon the appeal being accepted all further proceedings in such case shall be stayed (not the law anymore) and the said appeal together with the record of the case and eight copies thereof and the notes of evidence taken by the Judge shall be forwarded as speedily as possible to the Court of Appeal.

Section 333 (2' Criminal Procedure Code

When an appeal against a conviction is lodged, the High Court may subject to subsection (4) admit the appellant to bail pending the determination of his appeal. An appellant who is not admitted to bail shall pending the determination of the appeal be treated in such manner as may be prescribed by rules made under the Prisons Ordinance.

Section 20 (2) of the Bail Act is as follows;

"When an appeal against a conviction by a High Court is preferred, the High Court may subject to subsection (3) release the appellant on bail pending the determination of his appeal. An appellant who is not released on bail shall, pending the determination of the  appeal be treated in such, manner as may   be prescribed by the rules made  under the Prisons Ordinance.

As far as the High Court is concerned the position has now changed. The law that prevailed prior to the Bail Act to the effect that " Upon the appeal being accepted all further proceedings in such case shall be stayed" is not the law any more. The High Court Judge has the discretion to either grant or refuse to grant bail. If bail is refused the appellant will be treated in such manner as may be prescribed by rules made under the Prisons Ordinance. According to Section 20 (3) of the Bail Act it is only the death sentence that is automatically stayed pending appeal.

Section 20(3) of the Bail Act

Where the accused is sentenced to death, execution shall be stayed and he shall be kept on remand in prison pending the determination of the appeal.

It is discernible from the contents of these provisions in the Bail Act that the trend now is not to stay the execution of the Judgments unless the sentence is one of hard labour imposed by the Magistrate's Court or a sentence of death imposed by a High Court. Therefore it is seen that even in criminal matters stay of execution pending appeal is limited in scope. Automatic stay of execution operates only when the sentence is one of hard labour or death sentence.

Section 68 or 69 of the Primary Court Procedure Act does not provide for an appeal against an order made by a Primary Court Judge. If at all the only remedy against such an order or determination is to move the High Court of the province in revision under Article 154 P of the High Court of the Provinces Special Provisions Law Act No.19 of 1990, or to move the Court of Appeal in revision under Article 138 of the Constitution. The intention of the legislature is not to provide an appeal against such orders because proceedings under the particular chapter are meant to be disposed of expeditiously as possible in order to prevent a breach of the peace. On the other hand orders under the Primary Court Procedure Act are temporary in nature subject to a final decision of a competent Court of civil jurisdiction. Legislature has deliberately refrained from granting the relief of appeal against such orders because the parties have an alternative remedy which is more effective and also which will finally and conclusively determine the rights of the parties. If an appeal is provided against such an Order, this process will be delayed and litigation will continue for a long period of time like in a civil suit. This is the mischief the legislature intended to avoid. The only inference that one could draw is that these provisions are meant to prevent a breach of the peace by obtaining an appropriate order as speedily as possible from the Primary Court Judge, after an inquiry held, and thereafter, if necessary, for the parties to have recourse to a properly constituted civil suit, in the relevant District Court, to have the matter fully and finally adjudicated. On the other hand although not specifically provided for, an aggrieved party can move in revision under Article 154 P of the High Court of the Provinces Special Provisions Act, against an order of a Primary Court Judge made under the particular chapter. In an application for revision, what could be decided is whether the decision is legal or illegal and not whether the decision is right or wrong. Therefore in an application for revision there is no question of a rehearing or the re-evaluation of evidence in order to arrive at a decision. In an application for revision the task of the High Court is to decide, not whether, the decision is right or wrong but simply whether the decision is legal or illegal. Revision applications could be disposed of easily and quickly unlike appeals, where the parties are allowed to re-agitate the entire matter. It is for this reason that the legislature has in its wisdom devised this stratagem to prevent inordinate and undue delay. Parties should not be allowed to achieve indirectly by resorting to devious or indirect methods, the very thing that the legislature directly intended to deprive them of. When an order of a Primary Court Judge made under this chapter is challenged by way of revision in the High Court the High Court Judge can examine only the legality of that order and not the correctness of that order. The High Court may be able to prevent a breach of the peace by issuing interim stay orders or by allowing an interim order made by the Primary Court Judge to remain in force. But what is the position when a person aggrieved by such an order made in revision by the High Court is also appealed against to the Court of Appeal. Is the Court of Appeal vested with the power to re-hear or allow the parties to re-agitate the main case by reading and evaluating the evidence led in the case in the Primary Court or is it that the Court of Appeal is restricted in its scope and really have the power only to examine the propriety or the legality of the order made by the learned High Court judge in the exercise of its revisionary jurisdiction. I hold that it is the only sensible interpretation or the logical interpretation that could be given otherwise the Court of Appeal in the exercise of its appellate jurisdiction may be performing a function the legislature, primarily and strictly intended to avoid. For the reasons I have adumbrated I am of the opinion that this particular right of appeal in the circumstances should not be taken as an appeal in the true sense but in fact an application to examine the correctness, legality or the propriety of the order made by the learned High Court Judge in the exercise of its revisionary powers. The Court of Appeal should not, under the guise of an appeal attempt to re-hear or re-evaluate the evidence led in the main case and decide on the facts which are entirely and exclusively matters falling within the domain of the jurisdiction of the Primary Court Judge. For the reasons I have stated I hold that orders given by Primary Court Judge under this chapter should be executed or implemented expeditiously as possible without undue delay. Unless there is a stay order currently in operation, there should be no automatic stay of proceedings for whatever the reason, otherwise that would negate and frustrate the very purpose for which these provisions were enacted, The Primary Court Procedure Act is an act promulgated by the legislature in recent times. Although there were similar provisions in the Indian Criminal Procedure Code, we in Sri Lanka, did not have such provision till the enactment of the Administration of Justice LawNo.44 of 1973 (Section 62) and later by the Primary Court Procedure Act. General laws, concepts and general principles whether they have been there from time immemorial should not be applied mechanically to new situations which were never in contemplation, when those laws, principles or concepts came into being. Extraordinary situations demand extraordinary remedies. It is the duty of a Court of law to give effect to the laws to meet new situations, by brushing aside technicalities, the so-called rules and concepts which cannot be reconciled should not be allowed to stand in the way of the administration of justice, causing hindrance impeding the very relief the legislature wanted to enact.

Thus I hold that their Lordships decision arrived at in R.A. Kusum Kanthilatha and Others v. Indrani Wimalaratne and Two Others, (supra) placing reliance on the dictum in Edward v. De Silva (supra) as authority for the proposition that once an appeal is taken against a judgment or a final order pronounced by a High Court in the exercise of its revisionary Jurisdiction ipso facto stays the execution of that judgment or order, is clearly erroneous. Lodging of an appeal does not ipso facto stay execution. Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the judgment or order. It is not automatic.

For the reasons adumbrated I hold that there is no merit in this application for revision and dismiss the same without costs.

SALAM, J. - I agree.

appeal dismissed.

JAYANTHA GUNASEKARA VS. JAYATISSA GUNASEKARA

AND OTHERS

2011 1 SLR 284

COURT OF APPEAL SISIRA DE ABREW. J SALAM. J LECAMWASAM. J

CA PHC APN 17/2006 (DB) HC AWISSAWELLA 55/04

MC AVISSAWELLA 65720 FEBRUARY 25,2011

MARCH 3,4,2011 MAY 16,2011

Constitution Article 154 (P) 3 (b) - Primary Courts Procedure Act - Section 2, Section 66, Section 68-Section 76-High Court exercising revisionary jurisdiction -Appeal to Court of Appeal- Does the filing of an appeal ipse facto stay the execution of the judgment of the High Court? - Cassus omissus clause in the Primary Courts Procedure Act -Applicability of the provisions of the Civil Procedure Code - Stare decisis - Obiter dicta -Ratio decidendi - Approbation  reprobation - Principles

The petitioner sought to revise the judgment of the Provincial High Court entered in the exercise of its revisionary jurisdiction under Art 154 (3) b. The High Court set aside the order made by the Primary Court under Section 68 (3) by which order the Magistrate had determined that the petitioner had forcibly been dispossessed of the subject matter by the respondent. The respondent moved in revision, the High Court held that the respondent is entitled to possession. The petitioner preferred an appeal to the Court of Appeal. The respondent sought to enforce the judgment of the High Court.

The petitioner contended that, on the lodging of the appeal to the Court of Appeal the order of the High Court to execute the order was automatically stayed.

Held:

(1) Mere lodging of an appeal against the judgment of the High Court in the exercise of its revisionary power in terms of Section 154 P (3) (b)of the Constitution to the Court of Appeal does not automatically  stay the execution of the order of the High Court.

Per Abdus Salam.J

"In the case of Kanthilatha and Nandawathie the decision reached is on the assumption that the cassus omissus clause is applicable and therefore the approach reached by inadvertence needs to be set right. Further in Kathilatha's case obiter dictim has been given prominence ignoring the ratio decedendi; the judgment of Sillem (7) relied and referred to in Edward vs. de Silva (8) is a criminal matter arising from a statutory offence".

Per Abdus Salam.J

"In any event to rely on the decision in Attorney General vs. Sillem for our present purpose may amount to destructive analysis of Chapter VII of the Primary Courts Procedure Act than the ascertainment of the true intention of the Parliament and carry it out by filling in the gaps - obviously to put off the execution process until the appeal is heard would tantamount to prolong the agony and to let the breach of the peace to continue for a considerable length of time".

Held further:

(2) In view of the decision in Kayas vs. Nazeer (3) the cassus omissus clause (Section 78 of the Primary Courts Procedure Act) has no application to proceedings under Cap VII of the Act.

(3) The High Court set aside the order of the Magistrate solely based I on the purported failure to endeavour to settle the matter prior to the inquiry. This was one of the objections taken by the respondent. The Magistrate has taken meaningful steps to settle the matter, on that aspect of the matter the learned High Court Judge has erred when he came to the conclusion that such an attempt is not in compliance with the provisions of the Primary Courts Procedure Act.

(4) The objection to jurisdiction must be taken at the earliest possible opportunity. If no objection is taken and the matter is within the plenary jurisdiction of the Court, court will have jurisdiction to proceed with the matter and make a valid order.

It is the respondent before the High Court Judge who had benefitted by that argument. He has not adverted the Magistrate to the non compliance of Section 66 (6) before the commencement of the inquiry.

APPLICATION in revision of an order of the Provincial High Court of Avissawella- on a preliminary objection taken.

Cases referred to:-

1. R.A. Kusum Kanthilatha vs. Indrasin - 2005 1 Sri LR 41 1 (overruled)

2. R.P. Nandawathie vs. K. Mahindasena - CA PHC 242/06

3. Kayas vs. Nazeer - 2004 1 Sri LR 202

4. Perera vs. Gunathilake (1900) 4 NLR 181

5. Imampu vs. Hussenbi AIR 1960 Mysore- 203

6. Kanagasabai vs. Mylvaganam 78 NLR 280- 282

7. Edward vs. de Silva 46 NLR 343

8. A.G. vs. Sillem 11 Eng. LR 1208

9. Keel vs. Asirwathan 4 CLW 128

10. Ragunath Das vs. Sundra Das Khelri AIR 1914 PC 352

11. Malkav Jun vs. Nahari NLR 25 Bombay 338

12. Charlotte Perera vs. Thambiah and another - 1983 1 Sri LR 352

13. Rustom vs. Hapangama Co. Ltd 1978-79- 2 Sri LR225,1978/79/80- 1 Sri LR 353

14. Ali vs. Abdeen 2001- 1 Sri LR 413

15. Mohamed Nizam vs. Justin Dias CA PHC- 16/2007

16. David Appuhamy vs. Yassasi Thero 1987-1 Sri LR 253

17. Visuwalingam and others vs. Liyanage and others - 1983- 1 Sri LR 203

18. Banque Des Marchands De Hoscou v. Kindersley and another - 1950 - 2 All ER 549 at 552.

19. Evans vs. Bartlam 1937- 2 All ER 646 - 652

20. Lissenden vs. Bosh Ltd 1940 A1 412- (1940) 1 All ER 405,412

W. Dayaratne PC with Rangika Jayawardane, D.M. Dayaratne and 1 Nadeeka Karachchi for 1st party respondent-petitioner.

 Rohan Sahabandu for 2nd party respondent.

September 30th 2011

ABDUS SALAM, J.

This is an application to revise the judgment of the Provincial High Court entered in the exercise of it's revisionary jurisdiction under Article 154 P (3) (b) of the constitution. By the impugned judgment, the Learned High Court Judge set aside the determination made in terms of section 68 (3) of the Primary Court Procedure Act (PCPA) and ordered the unsuccessful party in the Magistrate's Court to be restored to possession of the subject matter, pending the determination of an appeal preferred to this court. (Emphasis is mine)

The important events leading up to the present revision application began with the filing of an information in the Magistrate's Court, under section 66 (a) (i) of PCPA. The dispute was over the right of possession of a land between two brothers, viz. Jayantha Wickramasingha Gunasekara1 (1st party-respondent-petitioner) and Jayathissa Wickramasingha Gunasekara2 (2nd party - 1st respondent-petitionerrespondent). The involvement of the other parties in the dispute is not dealt in this judgment, as they had merely I acted as the agents of the two main rival disputants.

The learned Magistrate, in making his determination, held inter alia that the petitioner had forcibly been dispossessed of the subject matter by respondent, within a period of two months before the filing of information and accordingly directed that he (the party dispossessed) be restored to possession.

Against the determination, the respondent moved in revision in the High Court which set aside the same, purportedly due to the failure to induce the parties to arrive at a settlement of the dispute under section 66(8) of the PCPA, and held that the respondent is entitled to the possession of the disputed property and directed the Magistrate to forthwith handover the same to him.

The Petitioner (Jayantha) preferred an appeal to this Court against the said judgment of the High Court. Pending the determination of the appeal, he also filed a revision application challenging the validity of the judgment of the learned High Court judge and in particular the part of the order of the judge of the High Court directing the execution of his judgment forthwith, pending the determination of the appeal. The legality of the impugned judgment of the learned High Court judge, based on the sole ground of failure to settle the dispute will be examined in this judgment at another stage.

There are two conflicting views expressed on the question as to whether the filing of an appeal against the decision of a High Court in the exercise of its revisionary powers in respect of a determination made under part VII of the PCPA would ipso facto stay the execution of its judgment or it operates otherwise.

In order to resolve the conflict, the present divisional bench was constituted to hear and dispose of the revision application. Being mindful of what prompted the constitution of the divisional bench, I now venture to embark upon a brief discussion on the pivotal question. It is worthwhile to briefly refer to the two conflicting decisions. In point of time the first decision was made in R A Kusum Kanthilatha Vs Indrasiri(1) where it was held inter alia that upon proof of an appeal being preferred to the Court of Appeal against a judgment of the High Court acting in revision in respect of an order made I under part VII of the PCPA, the original court should stay its hand until the determination of the appeal. (Emphasis added)

The second and subsequent view was expressed in the case of R P Nandawathie Vs K Mahindasena(2) where it was held inter alia that the mere lodging of an appeal does not automatically stay the execution of the order of the High court. (Emphasis added)

At the argument we were adverted to the position that prevailed immediately prior to the vesting of the revisionary powers in the High Court in respect of orders made under chapter VII of the Primary Courts Procedure Act. Prior to the introduction of the Constitutional provision in Article 154 P (3) (b), the revisionary jurisdiction in relation to orders of the Primary Court concerning land disputes where the breach of the peace is threatened or likely had to be invoked through the Court of Appeal. Any person dissatisfied with the order of the Court of Appeal had to seek special leave to appeal from the Supreme Court within 42 days. Under Supreme Court Rules of 1990 a party aggrieved by the judgment of the Court of Appeal in the exercise of its revisionary powers had to apply for stay of proceeding till special leave is granted. Every party aggrieved by such a judgment of the Court of Appeal had to seek the suspension of the execution of the judgment of the Court of Appeal in the Supreme Court. As has been submitted by the learned counsel this shows that by mere lodging an application for special leave to appeal invoking the jurisdiction of the Supreme Court, does not ipso facto, stay the order of the Court of Appeal. It does not stay the execution of judgment. This shows that even prior to the recognition of the revisionary powers of the High Court

in terms of Article 154 P (3) (b) of the Constitution the rule was to execute the judgment and exception was to stay proceedings.

Be that as it may, the fact remains that in both cases referred to above the question relating to the execution of orders made under part VII of the PCPA pending appeal has been decided on the premise that the provisions of the Civil I Procedure Code are applicable. This is basically an incorrect approach which should stand corrected by reason of the decision Kayas Vs Nazeed(3). In the circumstances, I do not propose to delve into the applicability of the casus ommisus , clause in the Primary Courts Procedure Act, in respect of proceedings under chapter VII, in view of the decision of His Lordship T B Weerasuriya, J who held that the casus omisus clause (Section 78) of the Act has no application to proceedings under chapter VII. The relevant passage with omission of the inapplicable words from the judgment in the case of Kayas (supra) is deservedly chosen for reproduction below:

"Section 2 of the Primary Court Procedure Act stipulates that subject to the provisions of the Act and other written law, the civil and criminal jurisdiction of the Primary Court shall be exclusive. Part I11 of the Act .... Provides for the mode of institution of criminal prosecutions; while part IV of the Act comprising provides for , the mode of institution of civil actions. Thus, Section 78 has been designed to bring in provisions of the Criminal Procedure Code Act or the provisions of the Civil

Procedure Code Act only . . . . . . ... Inquiries into disputes affecting land . . . . . . . . under part VII comprising Sections 66 - 76 are neither in the nature of a criminal prosecution ..... nor in the nature of civil action. Those proceedings are of special nature since orders that are being made are of a provisional nature to maintain status quo for the sole purpose of preventing a breach of the peace and which are to be superseded by an order or a decree of a competent Court. Another significant feature is that Section 78 while making reference to criminal prosecutions or proceedings and civil actions or proceedings, has not made any reference to disputes affecting land. This exclusion would reveal the legislative intent that Section 78 is not intended to be made use of, for inquiries pertaining to disputes affecting land under part VII of the Act "- (Emphasis is mine)

The vital question that needs to be resolved now is whether execution of orders made under Part VII would be automatically stayed by reason of an appeal filed under 154 P (3) (b) of the Constitution or it would operate otherwise. To find an answer to this question one has to necessarily examine chapter VII of the legislation in question which deals with what is commonly known among the laymen as "section 66 cases".

Historically, there has always been a great deal of rivalry in the society stemming from disputes relating to immovable properties, where the breach of the peace is threatened or likely. In the case of Perera Vs. Gunathilakd(4) His Lordship Bonser C.J, with an exceptional foresight, spelt out the rationale well over a century and a decade ago, underlying the principle as to why a court of law should discourage all attempts towards the use of force in the maintenance of the , rights of citizens affecting immovable property. To quote His Lordship

"In a Country like this, any attempt of parties to use force in the maintenance of their rights should be promptly discouraged. Slight brawls readily blossom into riots with grievous hurt and murder as the fruits. It is, therefore, all the more necessary that courts should be strict in discountenancing all attempts to use force in the assertion of such civil rights".

Let us now look at how the Indian court had once viewed the importance of preserving the peace. In the case of Imambu v. Hussenbi(5)  the court emphasized the importance in this manner . . . . .

"The mere pendency of a suit in a civil Court is wholly an irrelevant circumstance and does not take away the dispute which had necessitated a proceeding under section 145. The possibility of a breach of the peace would still continue."

In the case of Kanagasabai Vs Mylvaganam(6)  Sharvananda, J (as His Lordship was then) whose outspokenness needs admiration stated as follows ....

"The primary object of the jurisdiction so conferred on the Magistrate is the prevention of a breach of the peace arising in respect of a dispute affecting land. The section enables the Magistrate temporarily to settle the dispute between the

parties before the Court and maintain the status quo until the rights of the parties are decided by a competent civil Court. All other considerations are subordinated to the imperative necessity of preserving the peace. ........... The action taken by the Magistrate is of a purely preventive and provisional nature in a civil dispute, pending final adjudication of the rights of the parties in a civil Court. The proceedings under this section are of a summary nature and it is essential that they should be disposed of as expeditiously as possible .............. Sub-sections (2) and (6) of section 63 of the Administration of Justice Law underline the fact that the order made by the Magistrate under sections 62 and 63 is intended to be effective only up to the time a competent Court is seized of the matter and passes an order of delivery of possession to the successful party before it, or makes an order depriving a person of any disputed right and prohibiting interference with the exercise of such right."

The emphasis added by me in the preceding paragraph in the process of quoting Sharvananda, J speaks volumes about the sheer determination and the commendable courage adopted by the Supreme Court as to need for prompt execution of orders made in "66 matters". To recapitulate the salient points that are in favour of expeditious execution of orders under part VII, the following points are worth being highlighted.

1. It is quite clear, that the intention of the legislature in enacting Part VII of the PCPA is to preserve the peace in the society. If an unusual length of time (sometimes more than a decade) is taken to execute a temporary order for the prevention of peace, the purpose of the legislation would definitely be defeated and the intention of the Legislature in introducing the most deserving action of the era in the nature of sui generis would be rendered utterly ridiculous.

2. In as much as there should be expeditious disposal of a case stemming from the breach of the peace there should correspondingly be more expeditious and much efficient methods to give effect to the considered resolution of the dispute, with a view to arrest in some way the continued breach of the peace and to avoid justice being frustratingly delayed.

3. All other considerations being subordinate to the imperative necessity of preserving the peace, the execution mechanism also should keep pace with the Legislative commitment designed under Chapter VII of the PCPA.

The word "appeal" generally signifies legal proceedings of a Higher Court to obtain a review of a lower court decision and a reversal of it or the granting of a new trial. It is said that the wisest of the wise is also bound to err. The Judges are no exception to this rule. Justice Cardozo a well known American judge once observed that "the inn that shelters for the night is not the journey's end" but "we are all on the journey, a journey towards ............. our legal response, to the legal needs of the public. We are at various stages in this long journey have devised various structures and various solutions and they might be inadequate for the night, but they are not our journey's end".

This thought becomes particularly appropriate when one considers the specific prohibition imposed by the legislature in its own wisdom against appeals being preferred under Chapter VII, with the full knowledge of the fallibility of judges as human beings. It is common knowledge that an appeal is a statutory right and must be expressly created and granted. Under Chapter VII not only the Legislature did purposely refrain from creating such a right but conversely imposed an express prohibition. Presumably, as the determinations under chapter VII are categorized as of temporary nature even with regard to the execution of them we are required to ensure a meaningful construction of the statute as shall suppress the mischief and advance the remedy.

The next question which needs to be addressed is, what then is the nature and the purpose of the right of appeal conferred under Article 154 P (3) (b) of the Constitution. Such a right is unquestionably not against the determination made under 66(8)(b), 67(3),68(1)(2)(3)(4) 69 (1)(2),70,71 or 73 by the primary court. It is quite clear on reading of section 74(2) which is nothing but a draconian measure taken in the best interest and absolute welfare of a society. However, the fact remains that such a measure is necessary to safeguard their rights until a court of competent jurisdiction is seized of the situation to find a permanent resolution.

There is no gainsaying that the revisionary powers of this court are extensive and extremely far and wide in nature. It is an absolutely discretionary remedy. Such powers are exercised only in exceptional circumstances. This reminds us of the right of appeal granted under Article 154 P (3) (b) is a right to challenge the judgment of the High Court exercising revisionary powers and not to impugn the primary court judge's order by way of an appeal. When section 74(2) of the Primary Court Procedure Act is closely 1 scrutinized along with Article 154 P (3) (b), it would be seen that it makes a whale of difference as to the purpose, nature, 1 and scope of such right of appeal. Had the right of appeal been granted under chapter VII at the very inception of its  introduction, the interpretation under consideration would have been totally different. Appeals contemplated under I Article 154 P (3) (b) on one hand and appeals permitted under the Civil, Criminal, Admiralty, Labour, Agrarian, Judicature and other laws on the other hand are worth examining to find out whether an appeal under 154 P (3) (b) in fact ipso facto should stay proceedings in the original court.

Needless to state that in an application for revision as contemplated under Article154 P (3) (b), what is expected to be ascertained is whether there are real legal grounds for impugning the decision of the High Court in the field of law relating to revisionary powers and not whether the impugned decision is right or wrong. Hence, in such an application the question of a re-hearing or the re-evaluation of evidence in order to arrive at the right decision does not arise. The appeal in the strict sense is not one against the determination of the judge of the primary court but against the judgment of the High Court exercising revisionary powers. Therefore, it would be correct to say that the right of appeal is not unconditional as in the other cases but a qualified right provided one has the legal ground to invoke the discretionary jurisdiction of the High Court against an order under chapter VII.

In the case of Kanthilatha(supra) relying heavily on the decision in Edward Vs De Silva (7) it was observed that the ordinary rule is that once an appeal is taken from the judgment of an inferior Court, the jurisdiction of the court in respect of that case is suspended. The judgment in Edward Vs de Silva (supra) was based on the decision of A.G. vs. Sillem(8).

The judgment in Edward Vs De Silva (supra) relates to the question of the procedure to be followed when a judgment creditor is desirous of reaping the reward of his hard work in the District Court, pending the determination of the appeal. The provisions of the Civil Procedure Code being applicable in such an instance, it was held it is a condition precedent for execution pending appeal to notice the judgment debtor in terms of section 763 of the CPC and also make him a party to such incidental proceedings. Commenting on the failure to take such steps, it was held that it would result in a failure of jurisdiction and none of the orders made thereafter would be of any legal consequences. Further, commenting on the effect of issuing writ pending appeal in a civil action Soertsz A.C.J opined that the ordinary rule is that once an appeal is taken from the judgment of an inferior Court, the jurisdiction of that Court is suspended except, of course, in regard the perfecting of the appeal. His Lordship then cited with approval the dictum of Lord Westbury, Lord Chancellor (1 864), who observed in Attorney-General v. Sillem (supra) at 1208 as follows . . .

"The effect of a right of appeal is the limitation of the jurisdiction of one Court and the extension of the jurisdiction of another"

Having cited the above dictum, Soertsz A.C.J expressed that the right of appeal being exercised the case should be maintained in status quo till the appellate Court has dealt with it. His Lordship then expressed that the language of Chapter 49 of the Code makes it sufficiently clear that the Legislature was creating an exception to the ordinary rule in a limited way.

Soertsz A.C.J was greatly influenced by the decision of the Privy Council in three Indian cases Keel Vs Asirwathan(9), Ragunath Das v. Sundra Das Khelri(10)  and Malkar Jun v. Nahari(11) when His Lordship decided Edward's case. Surprisingly, neither the three Indian cases nor the case of Edward Vs De Silva (supra) were either relevant or have any bearing whatsoever in respect of the pivotal issue before us. With due respect even the dicta of Lord Parker and Lord Westbury, had no bearing upon the present revision application, especially with regard to the question of execution pending appeal under chapter VII of PCPA.

The stare decisis in the case of Edward Vs De Silva (supra) centered round the right to maintain an application for writ pending appeal without making the judgment-debtor a party and with no notice to him. Whatever pronouncement made in that judgment as to the limitation of the jurisdiction of one court, extension of the jurisdiction of another and the status quo to be maintained till the appellate court has given - its decision when an appeal is pending is nothing but an obiter. It is in any event extremely inapposite to an application for execution of a determination/order made under chapter VII of the PCPA pending appeal.

In passing it might be useful to observe that the Legislature like in the Civil Procedure Code has not provided a mechanism for an aggrieved party to obtain an order staying the execution of the judgment, when it conferred the right of appeal under Article 154 P (3). The presumption is that when Article 154 P (3) was introduced the Legislature was not unaware of the existence of section 74(2) of the Primary Court Procedure Act, particularly chapter VII

If such provisions are not made in the Constitution or in any other Acts including the High Court of the Provinces (Special Provisions) Act 19 of 1990, then the observations of His Lordship Chief Justice Samarakoon would be of some use, although strictly may not be relevant. Nevertheless, let me reproduce the words of His Lordship for the sake of clarity.

"Today's legal position thus appears to me to be that it is not competent for the Court to stay execution of the decree merely on the ground that the judgment-debtor has preferred appeal against it, but it is competent for the Court to stay execution of a decree against which an appeal is pending, if the judgment - debtor satisfies the Court that substantial loss may result to him unless an order for stay of execution is made and furnishes the necessary security for the due performance of such decree, as may ultimately be binding upon him". (Charlotte Perera Vs Thambiah and Another(12)

Hence, we are constrained to state that in the case of Kusum Kanthilatha (supra) and Nandawathie (supra) the decision reached is on the assumption that the casus omisus clause is applicable and therefore the approach reached by inadvertence needs to be set right. Further, in Kanthilatha's case the obiter dictum has been given prominence ignoring the ratio decidendi. The judgment of Sillem relied and referred to in Edward Vs De Silva is a criminal matter arising from a statutory offence namely to refuse to pay certain revenues due to Her Majesty. As was rightly observed in the case of Attorney General us Sillem (supra) the creation of a right of appeal is an act which requires legislative authority. Neither the inferior nor the superior tribunal, nor both combined can create such a right, it being essentially one of the limitations and the extension of jurisdiction.

In any event to rely on the decision in Attorney General us Sillem for our present purpose may amount to destructive analysis of Chapter VII of the PCPA than the ascertainment of the true intention of the Parliament and carry it out by filling

in the gaps. Obviously, to put off the execution process until the appeal is heard would tantamount to prolong the agony and to let the breach of the peace to continue for a considerable length of time. This in my opinion cannot be the remedy the Parliament has clearly decided upon. Hence I am confident that the construction we are mindful of placing by this judgment would definitely suppress the mischief and subtle inventions and evasions for continuance of the mischief.

In the result subject to the slight variation as to the basis of the decision, we are inclined to follow the decision  in R P Nandawathie Vs K Mahindasena (supra) and therefore hold inter alia that the mere lodging of an appeal against the judgment of the High Court in the exercise of its revisionary power in terms of Article 154 P (3) (b) of the Constitution to the Court of Appeal does not automatically stay the execution of the order of the High court.

The petitioner has filed a petition of appeal and also a revision application. As the determination of the petition of appeal is still pending in order to avoid duplicity of work, it would be convenient to consider the merits of the revision application in this judgment itself. It is trite law that when there is alternative remedy available the existence of special circumstances need to be established necessitating the indulgence of court to exercise such revisionary powers vested in terms of the Constitution. VideRustum v. Hapangama Co. Ltd.(13).

It has already been stated that the judgment of the learned district judge setting aside the determination of the magistrate was solely based on the purported failure to endeavour to settle the matter prior to the inquiry. In order to come to this conclusion the learned High Court judge has relied heavily on the judgment of Ali Vs. Abdeen(14)  in which it was held inter alia that the making of an endeavor by the Court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under section 66(7) began to consider who had been in possession and the fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

As far as the present case is concerned admittedly the learned magistrate has endeavoured to settle the dispute among the parties. This is clearly borne out by the record maintained by the learned Magistrate. The journal entry which demonstrates the attempt made by the Magistrate had been reproduced by the learned High Court Judge at page 13 of the impugned judgment. In terms of the judgment at page 13 the learned High Court Judge has reproduced some of the proceedings of the Magistrate in the following manner.

 Upon perusal of the journal entries it is quite clear that the learned Magistrate has taken much interest to endeavour the parties to settle the matter. In terms of Section 66(7) it is the duty of the Primary Court to endeavour to settle the matter amicably before the matter is fixed for inquiry.

A different view has been taken by a Bench of two Judges in Mohomed Nizam v. Justin Dias(15)  where His Lordship Sisira de Abrew, J clearly held that the delayed objection regarding non compliance of Section 66(7) cannot be taken for the first time at the stage of the appeal. This view was totally different to the basis of the decision in Ali v. Abdeen (supra) on the ground of laches.

On the facts, the present case is much stronger than the case of Ali v. Abdeen (supra) and Mohomed Nizam v. Justin Dias (supra) as regards the question or laches or acquiescence or express consent

For purpose of completeness let me reproduce the relevant part of the judgment of Sisira de Abrew, J. which reads as follows:-

"According to the above judicial decisions, the P.C.J. does not assume jurisdiction to hear the case if he fails to act under section 66(6) of the Act. In the present case, have the parties taken up the issue of jurisdiction in the Primary Court? The answer is no. The appellant in this appeal takes up the issue of jurisdiction only in the Court of Appeal. If the appellant or the respondent wants to keep up the issue of jurisdiction it must be taken up at the earliest opportunity."

This view is supported by the judicial decision in David Appuhamy Vs. Yassasi Thero(16) where it was held that an objection to jurisdiction must be taken at the earliest possible opportunity. If no objection is taken and the matter is within the plenary jurisdiction of the Court, the Court will have jurisdiction to proceed with the matter and make a valid order.

By reason of the argument advanced before the learned High Court judge as to the non-compliance of section 66(6), it is the respondent before the High Court judge who had benefited by that argument. He has not adverted the Magistrate to the non-compliance section 66 (6) before the Magistrate commenced the inquiry. In any event as has been stated above there has been meaningful steps taken by the Magistrate to settle the matter. On that aspect of the matter the learned High Court judge has erred when he came to the conclusion that such an attempt is not in compliance with the provisions of the PCPA.

In the land mark case of Visuvalingam And Others Vs Liyanage And Others(17) it was held that where a person by words or conduct made to another a representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or so conducts himself that another would as a reasonable man, understand that a certain representation of fact was intended to be acted on, and that other has acted on such representation and alters his position to his prejudice, an estoppel arises against the party who has made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be.

"The phrase "approbating and reprobating" or "blowing hot and cold" must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and secondly, that he will not be regarded .......... as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent" - Per Evershed M.R., (1950) 2 A.E.R. 549 at 552.

 "The doctrine of approbation and reprobation requires for, its foundation, inconsistency of conduct, as where a man, having accepted a benefit given to him by a judgment cannot allege the invalidity of the judgment which confers the benefit" - Lord Russel in Evans v. Bartlam(19).

"In cases where the doctrine of approbation and reprobation does apply, the person concerned has a choice of two rights either of which he is at liberty to accept, but not both. Where the doctrine does apply if the person to whom the choice belongs irrevocably and with knowledge adopts the one, he cannot afterwards assert the other," Per Lord Atkin in Lissenden v. Bosh Ltd(20).

Therefore it is quite clear that the petitioner who invoked the revisionary jurisdiction of the High Court having taken part in the settlement and clearly expressed his unwillingness to have the matter settled (although the settlement was  tried at a premature stage) cannot be allowed to take the advantage to attack the determination on the ground.

Taking into consideration all these matters, it is my considered view that the learned High Court Judge was clearly wrong when he reversed the determination of the learned Magistrate based on the ground of non compliance of Section 66(7) of the PCPA. For the foregoing reasons, I allow the revision application and accordingly set aside - the impugned judgment of the Judge of the High Court. Consequently the determination that was challenged by way of revision in the High Court will now prevail and the learned Magistrate is directed to give effect to the same. The registrar is directed to cause a copy of this judgment filed in the relevant file pertaining to appeal No CA PHC 35/2006. There shall be no costs.

SISIRA DE ABREW, J- I agree LECAMWASAM, J. - I agree

  

Ananda Sarath Paranagama VS Dhammadhinna Sarath Paranagama   (unreported)

C A(PHC) APN 117/2013 HC Galle HCRA 32/13

Before: A.W.A.Salam, J (P/CA) and Sunil

Rajapaksha, J

Counsel: Dr Sunil Cooray with R. M Perera for the 2nd party-petitioner-petitioner and Janaka Balasuriya for the parties of the 1st respondent- respondents.

Argument on: 10 February 2014 Decided on: 07 August 2014 

A.W.A.SALAM, J (P/CA)

This application is aimed at revising an order of the I Provincial High Court entered in the exercise of the revisionary jurisdiction vested in it under Article 154 P(3)(b) of the Constitution. A narrative description of the main events preceded the instant revision application, briefly are as follows; Proceedings began under Chapter VII of the Primary Court Procedure Act (hereinafter referred to as the “Act”), before the learned Magistrate (who is deemed to be a Judge of the Primary Court1) upon a dispute referred for adjudication under Section 66(1)      (a) regarding the obstruction of a pathway. The parties to the dispute were three siblings. The learned Magistrate declared the parties of the 1st part-respondents-respondents (referred to in this judgment as the “respondents”) as being entitled to use the pathway of 17 feet in width.

Based on this decision, the learned Magistrate directed the removal of the obstruction that was constructed across the pathway so as to facilitate the use of it.

Discontented with the determination, the party of the 2nd Part- Petitioner-Petitioner (referred to in the rest of this judgment as the “petitioner”) sought to invoke the revisionary jurisdiction of the Provincial High Court. Upon hearing the parties as to the maintainability of the revision application, the High Court refused to entertain the same, on the ground that the petitioner has failed to adduce exceptional/special  grounds. The instant revision application has been filed thereafter, with a view to have the impugned order refusing to entertain the revision application set aside and revised inter alia on the following grounds.

1.  The impugned refusal to entertain the revision application is contrary to law and the facts of the case.

2.  The learned High Court Judge has failed to

consider, evaluate, and give reasons for not considering    or accepting     as exceptional

circumstances, the several matters set out in paragraphs 10 and 11 of the said petition.

3.  No other remedies are available to the petitioner to prevent the wall being demolished although the High Court had set out as the second ground that there are other remedies available;

4.  No reasons whatsoever are given in the said judgment for dismissing the revision application on the two grounds stated therein.

When an alternative remedy is available the type of restrain imposed on the exercise of the revisionary powers, had been discussed in several cases both in our Courts and other jurisdictions. Suffice it to discuss the principle embodied in the judgment of the well-known case of Rustom Vs Hapangama [1978-79-80 SLR Volume IV Page 352] where it is laid down that the revisionaiy powers of a Court will not be invoked, if an alternative remedy is available, unless the existence of special circumstances are C A (PHC) APN 117/2013 HC Galle HCRA 32/13 urged and established necessitating the indulgence of Court to exercise its powers in revision.

The term ‘revision’ means the examination of a decision with a view to correction. The material points that may arise for consideration in a revision application inter alia are whether a subordinate Court has exercised jurisdiction which is not vested in it in law or whether it has failed to exercise such jurisdiction which is so vested or has acted in the exercise of the jurisdiction illegally or in excess of jurisdiction or with material irregularity. In other words, strictly speaking a revision application calls for the correction of errors concerning illegalities and patent irregularities which are of such magnitude that call for the discretionary powers of Court to correct them.

Hence, it is the duty of a High Court and the Court of Appeal vested with the revisionaiy jurisdiction under the Constitution, to ensure that the revisionary powers of such Courts are not invoked as a matter of course, at the expense of a successful party in the original Court having to needlessly wait for the fruits of his victory to be reaped.

Inasmuch as the facts of this case are concerned, the trend of authority not being in favour of the exercise of the discretionary remedy unless upon the applicant showing the existence of special circumstances warranting the clemency of Court to exercise the revisionary jurisdiction, the petitioner was obliged to adduce special or exceptional circumstances. This is a condition precedent to entertain the revision application by the High Court.

Similarly, as there is a right of appeal to this Court against the refusal of the learned High Court Judge to entertain the revision application, the petitioner has to establish exceptional circumstances to have the impugned order revised by this Court as well.

It was contended on behalf of the petitioner that the High Court Judge without giving any reasons by a judgment of two lines refused to issue notices and dismissed the application stating that there were no exceptional circumstances on which its revisionary jurisdiction could be exercised. He complains that this has culminated in a miscarriage of justice.

On a consideration of the practice ordinarily adopted by Courts in disposing revision applications at the threshold stage, it is manifest that the contention raised by learned Counsel is wholly untenable and devoid of merits. In other words, in an order refusing to entertain an application, the High Court Judge can most of the time able to state that there are no exceptional circumstances that warrant the entertainment of the application and no more. He is not obliged to give details regarding the existence or nonexistence of special or exceptional circumstances. In passing it might be of some relevance to mention that this is the procedure adopted even in the Supreme Court when application for special leave is refused.

The main ground alleged in the revision application made to the High Court was that the learned Magistrate had not given his mind as to the proof required of the right in question in a Section 66 matter, as the action is commonly known. It was submitted on behalf of the petitioner that the respondents were obliged to establish in the Magistrate’s Court the entitlement to use the pathway by proof of user for an uninterrupted period of 10 years adverse to the petitioner’s rights. This ground alleged as a special circumstance warranting the intervention of the High Court by way of its revisionary powers should fail inlimine as there is no requirement under Chapter VII - Section 69 to establish the entitlement in the same manner as is usually proved in a civil case.

The ingredients necessary to be proved to obtain a declaration of ‘entitlement’ as contemplated in Section 69 of the Act will be discussed at a different stage.

On a consideration of the material available, it appears to me that the petitioner has failed to impress upon this Court that there are exceptional circumstances to warrant the intervention of this Court by way of revision. Therefore, the endeavour made by the petitioner to involve this Court in the correction of the purported error committed by the High Court should fail.

The learned Counsel for the petitioner has submitted that a glaring error of law has been committed by the learned Magistrate when failing to address his mind as to whether one brother has used the right of way over the other brother’s land adversely to the latter, and for a period of not less than 10 years. The glaring error said to have been committed in coming to the conclusion as to the existence of the pathway followed by the order of demolition to remove the impediment, according to the petitioner, has ended up in serious miscarriage of justice.

It is elementary principle of law that under Chapter VII of the Act, when the dispute relates to the possession of an immovable property, the Judge of the Primary Court is duty-bound under Section 68 to restrict to the issue of actual possession as at the date of filing the information, except where a person who was in possession of the subject matter is dispossessed within a period of two months immediately preceding the date on which information under Section 66 was filed.

Unlike in the case of a dispute relating to possession of immovable property, no timeframe has been laid down as to the length of time during which the right should have been enjoyed in relation to the purported entitlement. In resolving such a dispute the Judge of the Primary Court is expected to determine as to who is entitled to the right which is the subject of the dispute and make an order under Section 69(2).

The marginal note to Section 69 of the Act reads as “Determination and order of Judge of the Primary Court when dispute is in regard to any other right”. For purpose

of ready reference, Section 69 of the Act is reproduced below...

    (1) Where the dispute relates to any right to any land or any part of a land, other than the right to possession of such land or part thereof, the Judge of the Primary Court shall determine as to who is entitled to the right which is the subject of the dispute and make an order under Sub-Section (2).

(2) An order under this Sub-Section may declare that any person specified therein shall be entitled to any such right.inor

Respecting the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of an order or decree of a competent Court, and prohibit all disturbance or interference with the exercise of such right by such party other than under   the authority of an order or decree as aforesaid.  The question that arises for determination at this stage is whether a party claiming a right to any land other than the  right to possession should establish his right precisely as  he is expected to do in a civil case or whether he could     succeed in obtaining the declaration as contemplated in Section 69, merely by proving that he enjoyed the right as at the time when the dispute arose. It is to be understood that the proof of the acquisition of the right is totally ! different from proving the enjoyment/existence of the right at the time the    dispute arose. In dealing with the nature of the right, a Judge of the      

Primary Court is expected to adjudicate under Section 69 of the Act, Sharvananda, J (later Chief Justice) in the case of Ramalingam Vs Thangarajaha 1982 Sri Lanka Law Reports - Volume 2 , Page - 693 stated that in a dispute in regard to any right to any land other than right of possession of such land, the question for decision, according to Section 69(1), is who is entitled to the right which is subject of dispute. The word "entitle" here connotes the ownership of the right. The Court has to determine which of the parties has acquired that right or IS ENTITLED FOR THE TIME BEING TO EXERCISE THAT RIGHT. In contradistinction to Section 68 of the Act, Section 69 requires the Court to determine the question as to which party is entitled to the disputed right preliminary to the making of an order under Section 69(2). (Capitalization is mine).

According to the decision in Ramalingam (supra) the Judge of the Primary Court has two options, in deciding as to which of the parties should be declared entitled to the right. Since the word “entitle” as used in Section 69 implies ownership of the right, the Judge of the Primary Court could determine as to who in fact has acquired the disputed right. In the larger sense it means any kind of proof of the acquisition of the disputed right as envisaged by any law dealing with the ingredients to be proved. For instance, if the disputed right is the existence of a right of way, the party who desires the Court to pronounce his entitlement may establish the uninterrupted and undisturbed use of the pathway, by a title adverse to or independent of the owner that is to say, a use of the pathway unaccompanied by any payment from which an acknowledgment of a right existing in another person would fairly and naturally be inferred for ten years previous to the filing of the information under Section 66 of the Act.

This may not be possible in every case relating to a dispute over a right concerning an immovable property, as the proceedings under Chapter VII of the Act is required to be held in a summary manner, concluded within three months of the commencement of the inquiry and the order under Section 68 or 69 as the case may be, having to be delivered within one week of the conclusion of the inquiry. Further, under Section 72 of the Act before the pronouncement of the order, the material on which the Judge of the Primary Court may act are limited to certain types of material unlike in a civil case where parties have the option to lead evidence of any volume as long as it is admissible and relevant to the facts in issue and facts relevant to the facts in issue.

It is now trite law that in an inquiry under Chapter VII of the Act, adducing evidence by way of affidavits and documents is the rule and oral testimony is an exception to be permitted only at the discretion of the Judge. The discretion is hardly exercised to permit oral testimony and generally not granted as a matter of course. In such an instance it is not only impracticable but beyond the ability of a party to establish a right as is usually accomplished in a civil Court under the regular procedure.

Although in certain limited number of disputes, a party may be able to establish the right he claims strictly in accordance with the substantial law, in a large number of cases they may not be able to do so, by reason of the limited time frame within which the inquiry has to be concluded, the restricted mode of proof and the sui generis nature of the procedure.

There are two ways in which an entitlement can be proved in the Primary Court. They are ...

1.  By adducing proof of the entitlement as is done in a civil Court.

2.  By offering proof that he is entitled to the right FOR THE TIME BEING.

The phrase “for the time being” as used in the decision in Ramalingam’s case connotes the exercise of right by one party, temporarily or for the moment until such time such person is deprived of his right by virtue of a judgment of a Court of competent jurisdiction. If you describe a party as being entitled to enjoy a right but for the time being, it means that it will be like that for a period of time, but may change in the future. This is exactly in keeping with legislative wisdom embodied under part VII of the Act.

The rationale behind this principle is that the conferment of the special jurisdiction on a Judge of the Primary Court under Chapter VII of the Act is quasi-criminal in nature and is intended to facilitate the temporary settlement of the dispute between the parties so as to maintain the status quo until the rights of the parties are decided by a competent civil Court. Subject to this, every other concerns however much prominent they may appear to be, will have to be placed next to the imperative necessity of preserving the peace.

As has been emphasized in the case of Ramalingam (supra) at an inquiry under Chapter VII, the action taken by the Judge of the Primary Court is of a purely preventive and provisional nature, pending the final adjudication of the rights of the parties in a civil Court and the proceedings under this Section are of a summary nature. Moreover, it is essential that they should be disposed of as expeditiously as possible. In the circumstances, although it is open to a party to prove the right he claims to be entitled to as is required under the substantial law dealing with a particular right, it is not impossible for him to be content with adducing proof to the effect that he has the right to enjoy the entitlement in dispute for the time being.

Even in a civil action when the plaintiff had failed to prove a clear case of servitude there had been instances where the Courts have issued restraining orders against the right of way being obstructed. One such case is Perera Vs. Gunatilleke where Bonsor C. J, observed as follows:

"It seems to me that, where a person establishes that he has used a way as of right openly and continuously for a long period and is forcibly prevented from using it, he is entitled to an injunction to restore him to the quasi possession of the way, irrespective of whether he can establish the existence of a servitude. We will treat this action as a possessory action and grant an injunction which will restore the status quo ante" [4 NLR 181]    .

Historically, unlike in India which introduced laws to combat the breach of the peace arising from disputes relating to immovable properties very early, the Magistrates here did not have the jurisdiction to adjudicate over such disputes until recently. As it was unaffordable to permit violence in the name of civil disputes which generally culminates in the devastation of the progress of a nation, the bench and the bar had continued to clamour for Laws to be introduced to meet the challenges.

In 1953 the Criminal Courts Commission headed by E F N Gratian (Chairman) and M S F Pulle (Commissioner) accompanied by its Secretary M C Sansony 2 forwarded its report to His Excellency the Governor suggesting that changes be brought into the law to put an end to this menace.

The suggestions made by the commission with regard to disputes affecting lands, resulting in the breach of the peace are found at page 8 and 9 of the report. The suggestion made by the Criminal Courts Commission was to strengthen the hands of the Magistrates to adjudicate summarily on disputes affecting land where the breach of the peace is threatened or likely and to permit the enjoyment of the rights relating to lands to those who are entitled to enjoy them FOR THE TIME BEING.

It took almost two decades to pass Laws- in terms of the suggestion made by the Criminal Courts Commission, when the National State Assembly in 1973 made Provisions by enacting law No 44 of 1973 with the inclusion of Section 62 which was later replaced by Act No 44 of 1979 (Vide Chapter VII).

As the original Provision of Section 62 in the Administration of Justice Law was based on the report of the Criminal Courts Commission, it is pertinent at this stage to reproduce the relevant passages from the said report concerning the suggestions made with regard to disputes affecting immovable properties. For purpose of ready reference the suggestions made by the commission are reproduced below...

“Dispute as to immovable property

10.       Many disputes and resulting offences spring from rival claims to land. There is at present no method by which a Magistrate can deal speedily and summarily such disputes. It is essential that the Magistrate should be vested with statutory powers to make orders with regard to the possession of lands where disputes affecting such lands may result in a breach of the peace. The procedure suggested by us in Section 98 A is based in part on the provisions of Section 145 of the Indian Code of Criminal Procedure. As far as possible, notice will be given to the parties alleged to be concerned in the dispute, but whether such notice reaches the parties or not the Magistrate will hold summary inquiry and may, even before the inquiry is concluded, make an interim order on the question of possession in order to maintain the peace. The purpose of the inquiry is to enable the Magistrate to determine in a summary manner who should FOR THE TIME BEING permitted to enjoy the right in dispute, but he will make an order which may not be founded strictly on the legal merits of the claim of the rival parties but rather with the view to the necessities of the immediate emergency. It will be directed rather to resorting to the status quo and to ensure that interference, except by due process of law, which possession does not give rise to a breach of the peace. The ultimate decision as to the legal right of the parties will necessarily have to be made, in subsequent proceedings, by a competent civil Court. No particular procedure has been prescribed in regard to the manner of holding the inquiry, for that would only have introduced technicalities. The order eventually made by the Magistrate will be purely a temporary one and a refusal to comply with it in breach of it is made punishable. [Capitalisation added]

11.       We have sought to give effect to the principle that parties should not take the law into their own hands. Therefore, any party who dispossesses another forcibly should not gain any advantage thereby, when the Magistrate makes his final order. The scope of the Section has been deliberately made as wide as possible in order to embrace all possible disputes concerning any rights affecting land, and the intention is that in making an equitable interim order, a Magistrate is empowered to order a party placed in possession FOR THE TIME BEING to furnish security for the purpose of complying with the final decision of the dispute”. [Capitalisation added]

From the above report, it would be seen that the commission has given the highest priority to orders being made FOR THE TIME BEING, permitting those who enjoy the rights to continue with it, until such time the Court of competent jurisdiction resolves the dispute on a permanent basis.

Insistence on the proof of a right as in the case of a civil dispute, in this type of proceedings, would lead to two original Courts having to resolve the identical dispute on the same evidence, identical standard of proof and quantum of proof twice over. This would indeed an unnecessary duplicity and is not the scheme suggested by the Criminal Courts Commission and could neither be the intention of the Legislature.

One has to be mindful of the fact that there are still judicial officers in this country who function simultaneously as Judges of the Primaiy Court, Magistrates, and Judges of the Juvenile Court, Judges of the family Court and District Judges. If disputes affecting lands under the Primary Court Procedure Act are to be heard by the Primary Court Judges and later the civil case as District Judges on the same evidence, same standard of proof and identical quantum of proof, it would not only result in the utter wastage of the precious time of the suitors and the Courts but will be a meaningless exercise as well.

Turning to the determination, the learned Magistrate has addressed his mind to the averments in the affidavits of both parties and considered the documents annexed and given cogent reasons for his findings. In short, the findings of the learned Magistrate are quite logical, stand to reasons and consistent with the material available. He has referred to the petitioner as having stated at the inspection that the respondents used the pathway in question as permissive users. As a result, the parties in the Magistrate’s Court were at variance only as to the nature of the pathway and not whether the respondents used the pathway. There is thus an implied admission of the road having been used by the respondents. Therefore the issue is whether the pathway used by the respondents is a right of servitude or a merely permissive user in nature. The wall has been put up overnight to obstruct the pathway.

In the Primary Court Procedure Act under Section 75 a dispute is defined as follows...    •

" dispute affecting land includes any dispute as to the right to the possession of any land or part of a land and the buildings thereon or the boundaries thereof or as to the right to cultivate any land or part of a land, or as to the right to the crops or produce of any land, or part of a land, or as to any right in the nature of a servitude affecting the land and any reference to " land" in this Part includes a reference to any building standing thereon. (Emphasis added)

In the case of Kandiah Sellappah Vs Sinnakkuddy Masilamany (CA application 425/80- C A. minute dated 18 March 1981, Abdul Cader, J with the concurrence of Victor Perera, J held inter alia that the claimant of a footpath who started using it in 1966 August and was obstructed a few months before the prescriptive period of 10 years, in June 1976 was not entitled to a declaration under section 69.

Having analysed the evidence led in the lower court his Lordship formed the opinion that there had been no satisfactory evidence on which it can be held that the claimant exercised a right which has been in continuous existence for a period of time prior to his use.

I am of the view that the decision in Kandiah Sellappah’s case has been entered per incuriam without properly defining or appreciating that all what section 76 mandates is “a dispute in the nature of a servitude” and not a dispute touching upon a servitude per se. Therefore, when the right concerned is in the nature of a servitude relating to a right of a pathway, the period of 10 years plays no important role.

Further, the answer to this issue is found in the Judicature Act No 2 of 1978 by which the primary court had been created. In terms of section 32 (2) of the Judicature Act the primary court shall have no jurisdiction in respect of the disputes referred to in the 4th schedule, irrespective of the value thereof. According to the 4th schedule the actions excluded from the jurisdiction of the primary court inter alia are as follows..

12.       Any action for a declaratory decree including a decree for the declaration of title to a land.

24 (i) for obstruction to or interference with the enjoyment of any servitude or the exercise of any right over property.

The two exclusions referred to above provide clear authority for the proposition that the right intended to be declared under section 69 is definitely not with the regard to servitude per se but a right in the nature of a servitude.

Since the dispute in this case therefore is a right connected with land in the nature of servitude there is no doubt that the learned Magistrate had jurisdiction to adjudicate on the issue in terms of the Act.

He also had jurisdiction to order the demolition of the construction that obstructed the pathway. In Tudor Vs. Anulawathie and Others - 1999 - Sri Lanka Law Reports Volume 3, Page No - 235 it was decided that although there is no specific Provision in the Primary Courts' Procedure Act, expressly enabling the Court to order removal of obstructions in the way of restoration of the right to the person entitled thereto in terms of the determination made by the Court, there is no such prohibition, against the Court exercising such a power or making such an order.

As was held in Narasingh v. Mangal Dubey - (1883) 5 Allahabad 163, the Courts are not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by law. What in fact matters here is the converse that every procedure is to be understood as permissible till it is shown to be prohibited. As such, I can see no reason as to how the order of demolition made by the learned magistrate can be faulted as being illegal. It axiomatic wisdom that prohibitions are generally not presumed and therefore a court cannot be faulted for acting on the converse.

The photograph produced marked as 2D9b, by the petitioner has been observed by the Magistrate as an attempt to mislead Court with regard to certain important features of the subject matter.

According to the affidavit of the Postmaster of the relevant area, following the construction of the wall, postal authorities had experienced difficulties in delivering the mails, addressed to the respondents.

Further, the affidavit of the sister of both parties bears testimony that the pathway had existed over a period of 40 years serving as access road' to buildings bearing assessment No’s 195/1 and 195/2.

According to the affidavit of the Grama Niladhari the pathway in question had been used for a period of 50 years as access to the aforesaid buildings.

In addition, a lawyer practising in Galle and a science teacher had affirmed severally that the right of way had been used over a period of time.

The employees of the respondents also have affirmed to the existence of the road in question. Further, certain others who had used the pathway also had given affidavits.

Upon a consideration of the material referred to in Section 72 of the Act, the learned Magistrate has formed the opinion that the respondents are entitled to use the said pathway. This being a finding based on the credibility of the witnesses and parties, I do not think the High Court Judge or this Court should interfere with it, as the law permits the reversal of such a strong finding only if it had ended up in a miscarriage or travesty of justice. No such eventualities appear to have taken place by reason of the magisterial determination.

By placing a permanent obstruction in a haste, with no justification or explanation warranting such a quick action, carried into effect over a weekend, the petitioners appear to have aimed at making the respondents unable to turn to Court for redress, a compelling reason that had influenced the Magistrate to look for a draconic measure to undo the damage.

I feel obliged here to reiterate the concern of Bonser CJ penned over a century and a decade ago (4 NLR 181) which needs to re-echo in the minds of every officer exercising judicial, quasi-judicial and administrative powers in resolving or investigating into a complaint touching upon the breach or apprehension of a breach of the peace emanating from a dispute affecting land. It reads as follows...

"In a Country like this, any attempt of parties to use force in the maintenance of their rights should be promptly discouraged. Slight brawls readily blossom into riots with grievous hurt and murder as the fruits. It is, therefore, all the more necessary that Courts should strict in discountenancing all attempts to use force in the assertion of such civil rights".

BONSER CJ- Perera Vs. Gunathilake (1900 - 4 N.L.R 181 at 183)

In conclusion, I wish to place it on record that land disputes can cause social disruption and sometimes loss of life. They can have a negative impact on the development of lands and eventually on the economy of the Country. An efficient and effective system for settling land disputes is essential in any Country although the resolution of land disputes may appear to be complex. However trivial the dispute may be, it is the duty of the law enforcing authorities to pay serious attention to the issue, particularly with a view to take a preventive measure against possible violence. The determination of the learned Magistrate points to a right decision taken at the right time in the best interest of the parties, in consistent with the Law and the Legislative aim. Any decision to overturn such a decision by the High Court would have ended up in a miscarriage of justice.

Hence, it would be seen that the petitioner has failed to adduce exceptional circumstances or made out a case deserving the exercise of the revisionary powers of this Court under Article 138 of the Constitution.

He has neither unfolded a case deserving the intervention of the Provincial High Court by way of revision under Article 154 (3) (b) of the Constitution. In the circumstances, the fate of the petition could not have been different from how it culminated in the High Court.

Hence, the Magistrate and the Learned High Court Judge are amply justified in their respective conclusions which effectively had prevented the petitioner from taking the law into his own hands. The decision allowing the respondents to continue to enjoy the disputed right in the nature of a servitude for the time being, is the only order that could have been lawfully made by the Magistrate.

Revision application is therefore dismissed subject to costs fixed at Rs 1,03,0/-.

President/Court of Appeal

Sunil Rajapaksha, J I agree

Judge of |he Court Of Appeal

TW/-

C A (PHC) APN 117/2013 HC Galle HCRA 32/13