GALLELAW BLOGGER

Compilation of some decisions on Section 66 (P.C.Procedure Law) by A W A Salam.

78 NLR 280 1976 Present : Sharvananda, J., and Wanasundera, J.

S. C. Application 471/76-M.C. Colombo 42282/1

Administration of Justice Law-Sections 62, 63, 65-Relevance of suit pending in civil court-Conditions precedent to the exercise of jurisdiction-Meaning of dispute affecting land.

(1) The mere fact that a suit is pending in a civil court does not deprive the Magistrate of jurisdiction to make an order under Sections 62 and 63 of the Administration of Justice Law, No. 44 of 1973.

(2) It is sufficient for a Magistrate to exercise powers under Section 62 if he is satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section.

(3) The Magistrate's jurisdiction under section 62 extends to disputes relating to the possession of business premises, and is not confined to disputes affecting agricultural or pastoral land.

(4) The inquiry under section 62 is directed to the determination as to who was in actual possession of the land on the date of the issue of the notice under Section 62 (1) irrespective of the rights of the parties or their title to the said land. On his reaching that finding the Magistrate may unless the facts fall within section 63(3) make an order under section 63(2).

APPLICATION IN REVISION against an order of the Magistrate's Court, Colombo.

M. Tiruchelvam, with N. Tiruchelvam and M. T. M. Faiz, for the Petitioner.

H. L. de Silva, with S. Mahenthiram for the 1st Respondent.

Cur. adv. vult.

September 24, 1976. SHARVANANDA, J.-

This is an application to revise an order made by the Magistrate declining to proceed to act under section 62 of the Administration of Justice Law.

By his report dated 3.5.76. the Inspector of Police, Pettah, stated to Court that on a complaint made by the petitioner Kanagasabai that he was conducting a partnership business at premises No. 68A, 4th Cross Street, Pettah, and that after his closing the shop on 30.4.76 and was about to leave, he was forcibly pushed out by the respondent Mylwaganam who was occupying the other portion of premises No 68, 4th Cross Street, the Police visited the place and found that there was a wall which was separating premises No. 68A, from the rest of premises No. 68 and that this wall was demolished by the respondent Mylwaganam and both the premises were converted into one shop by him. The report also stated that there were two name-boards : (1) N. K. Mylwaganam & Co. (1st respondent's firm) and (2) M. Thasan Trades (Petitioner's firm), and there were two iron safes and three balances and tables and a heap of iron bars. The report also referred to the fact that both parties were inside the shop and could not come to a settlement about the possession of the premises. According to the report, as the Police expected a breach of the peace, they took charge of the keys of the shop from the respondent Mylwaganan and asked both parties to close the shop and go away from the premises.

The Inspector produced both the parties, namely the petitioner and the respondent, and moved the Court to take action under section 62 of the Administration of Justice Law. (Premises No. 68A, the right to possession of which is in dispute, is a defined portion of premises No. 68, 4th Cross Street. There is no dispute regarding the possession of the balance portion of premises No. 68. It is conceded that the respondent Mylwaganam is entitled to possession of that balance portion falling outside premises No. 68A). Though, according to the report dated 3.5.76, both the premises, namely, premises No. 68A and the balance portion of premises No. 68, have been closed on, the orders of Court and the keys of which had been taken charge of by the Police and been produced in Court along with the report on 4.5.76, the Police, without any further order of Court, returned the keys of the balance portion of premises No. 68 to the respondent Mylwaganam. As the learned Magistrate in this case points out, the conduct of the Police, after having filed the report in Court and produced the keys of premises No. 68 in Court, is highly arbitrary The Police should have awaited the orders of Court and should not have done anything to affect the status quo. It is regrettable that the Police should have misconceived their functions and powers. Once the keys were productions in Court, they could have been returned by the Police to any party only on the orders of Court and not of any other authority. I concur with the Magistrate in condemning the action of the Police. Serious notice will be taken of any action by the Police which interferes with the orders of Court.

The inquiry on the Police report commenced on 11.5.76, at which both the petitioner and the respondent were present and represented. Counsel for the respondent Mylwaganam, at the outset informed the Court that his client had instituted action No. 3/1745/RE in the District Court of Colombo for a declaration that the petitioner Kanagasabai is not the tenant of premises No- 68A, 4th Coss Street, Pettah, and that the petitioner had no manner of right to occupy the said premises and for an interim and permanent injunction restraining the petitioner from entering into occupation of the said premises No. 68A. He also stated that in pursuance of his application for an interim injunction, the District Court had issued an ex parte interlocutory order under section 565 of the Administration of Justice Law. He submitted that in view of the proceedings pending in the District Court regarding the possession of premises No. 68A, the Magistrate's Court should not make any order under section 62 or 63 of the Administration of Justice Law.

By his order dated 22.6.76, the Magistrate held that in view of the application pending before the District Court, he should not proceed to act under section 62 of the Administration of Justice Law. According, he refused to proceed to inquire. It is this order which is sought to be revised.

In my view, the learned Magistrate has mis-directed himself as to the nature of the proceedings under section 62 of the Administration of Justice Law and the ambit of his jurisdiction in relation to proceedings pending in a civil Court. As was stated in Imambu v. Hussenbi (A.I.R. 1960 Mysore 203) : " If a civil Court decided the question of possession even for the purpose of giving an interim injunction, the Magistrate, acting under Section 145 of the Indian Criminal Procedure Code (which corresponds to section 62 of our Administration of Justice Law) should respect that decision. But 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."

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. The section requires that the Magistrate should be satisfied, before initiating the proceedings, that a dispute affecting land exists and that such dispute is likely to cause a breach of the peace. But, once he is satisfied of these two conditions, the section requires him to proceed to inquiry and make order under section 63. The pendency of a civil suit in respect of the right in question is no bar to action being taken under section 62 of. the Administration of Justice Law. 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. Section 65 of the Administration of Justice Law expressly states that no order under section 62 or section 63 shall affect or prejudice any right or interest in any land or part of land which any person may be able to establish in a civil suit. Sub-sections (2) and (6) of section 63 of the Administration of Justice Law under line 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 plaint in Case No. 3/1745/RE by the respondent Mylwahganam was filed in the District Court of Colombo on 7.5.76 subsequent to the commencement of proceedings in the Magistrate's Court. In that action, the respondent prayed for a declaration that the defendant (the present petitioner) was not the tenant of the said portion No. 68, 4th Cross Street ( commonly referred to as No. 68A, 4th Cross Street), and that the defendant had no manner of right to occupy the said portion and for an interim injunction preventing the defendant from entering into occupation of the said portion until a final determination of the action and also for a permanent injuction restraining the defendant from entering the said portion and premises. By the interlocutory order dated 10.5.76 made in terms of Section 365 (1) (b) of the Administration of Justice Law, the District Judge ordered that " the 17th day of May, 1976, is hereby appointed for a determination of the matter of the applicant and that the matter will be inquired into on the said 17th day of May, 1976 ". This is the interlocutory order referred to by Counsel for the respondent in his submissions made before the Magistrate on 11.5.76 and by the Magistrate in his order dated 22.6.76. It is to be noted that interim injunction in terms of the prayer in the plaint had not been granted by the Court on the application, but the Court had only made an interlocutory order fixing a date for inquiry. The defendant had not been enjoined from doing anything until the hearing and decision of the application for an interim injunction. Hence, no enjoining order or an interim injunction restraining the petitioner from entering into occupation of premises No. 68A was in operation at the material time of the inquiry by the Magistrate which inhibited the exercise of his powers under sections 62 and 63. The Magistrate has fallen into an error in conceiving that his jurisdiction has been ousted by the proceedings taken by the respondent in the District Court subsequent to the institution of the present proceedings by the Police. As stated earlier, the mere pendency of a suit in a civil Court is an irrelevant circumstance for the Magistrate to take into consideration when making an order under sections 62 and 63 of the Administration of Justice Law. His primary function is to maintain law and order. If the mere institution of a suit in a civil Court is sufficient to divest the Magistrate of his jurisdiction, the whole purpose of section 62 will be defeated. A scheming party will be enabled to play hide and seek. A person who has taken forcible possession, realising that the decision of the Magistrate would go against him, may rush to a Civil Court to stall for time and in the meanwhile continue to be in unlawful possession of the premises. The law cannot countenance any such action which is calculated to render nugatory the proceedings before the Magistrate. A party, by merely instituting a civil proceeding, cannot hamstring the Magistrate from proceeding with the inquiry under section 62. Such confrontation does not justify the Magistrate abdicating his functions under section 62. Of course, if the civil Court has already given a decision, final or interim, prior to the Magistrate making his order under section 63, to that extent as the dispute between the parties is decided by a competent Court, the Magistrate would be justified in making his order on the basis of such decision. But, in the absence of such a decision, the Magistrate's jurisdiction to make an order under section 63 is not affected. Correspondingly, a civil Court, before making any decision in the shape of an interim order on the dispute, will have regard to the proceedings pending in the Magistrate's Court under section 62 of the Administration of Justice Law and will, unless there are special circumstances, refrain from proceeding to make an interim decision if proceedings under section 62 are pending in the Magistrate's Court. If the Magistrate has already made an order under section 63 of the Administration of Justice Law, in my view, the civil Court will not have jurisdiction to make any interim order which will in any way prejudice the right of a party who has succeeded in getting an order in his favour under section 63 of the Administration of Justice Law. For, in terms of section 63 (2) and (6), the successful party will be entitled to be in possession until he is ejected therefrom under a judgment, order, or decree of a competent Court, and all disturbance of such possession, otherwise than by a judgment, order, or decree of a competent Court, is prohibited. Similarly, under section 63(6), the right of a successful party can be deprived of only by virtue of a judgment of a competent Court, and all disturbance or interference with the exercise of such right is prohibited other than by the authority or judgment of a competent Court. " Injunctions are not granted directing something to be done, but that something should not be done."-Thamotherampillai v. Arumugam, (29 N.L.R. 406 at 409 & 10). A Court has no power (by way of an Interim injunction) to remove a defendant who is already in possession of the subject matter of the action on the strength of an order made by a Magistrate under section 63 and to place the plaintiff in possession pending the result of the action.-vide Pounds v. Ganegama (40 N.L.R. 73). The eviction referred to in section 63 (2) and deprivation of the right referred to in section 63(6) cannot be achieved by any interim injunction or by any other interim order emanating from a civil Court. The order made under section 63 endures until it is superseded by a final. order or judgment of a competent Court.

The inquiry under section 62 is directed to the determination as to who was in actual possession of the land or part, in dispute on the date of the issue of the notice under section 62(1), irrespective of the rights of the parties or their title to the said land or part. The Magistrate, acting under section 62, is not deciding the rights of parties. The proviso to section 63(7) postulates the determination being made without reference to the merits of the claims of the persons to the possession of the land or part in dispute. The Magistrate is concerned only with finding who was in actual possession on that date and with maintaining the status quo. On his reaching that finding, he may, unless the facts fall within the provisions of section 63(3), make an order under section 63(2) declaring the persons so found to be in possession on the date of the notice to be entitled to possession of the land. Such an order should be based on his prior determination in terms of section 63(1). The provisions of section 63(3) and (4) apply to a case where, though one party is found to have been in possession of the land or part in dispute on the date of the issue of the notice some other party who is found to have been in possession of the land or part in dispute had been forcibly dispossessed within a period of two months immediately before the date of issue of the notice under section 62(1); in which event, the party so found to have been forcibly dispossessed may be ordered to be restored to possession of the land or part in dispute. The party in possession on the relevant date, but who had come into such possession by forcibly dispossessing the other party, may prove that such dispossession took place more than two months next preceding the date of the notice, and in that case the Magistrate cannot make an order under section 63(4). On the other hand, if he is satisfied that forcible dispossession had taken' place within the said two months, he may make an order under section 63(4) directing the party so dispossessed to be restored to possession in terms of section 63(4).

Counsel for the respondent submitted that a report of the Police is not sufficient to justify the Magistrate taking proceedings under section 62. It is essential for the assumption of jurisdiction under section 62 that the Magistrate should have reason to believe from a Police report or other information that a dispute relating to land, which is likely to cause a breach of the peace, exists. The report or other information should contain sufficient material to enable the Magistrate to form the belief that the dispute is likely to cause a breach of the peace. The jurisdiction conferred on a Magistrate to institute an inquiry under this section can be exercised only when the dispute is such that it is likely to cause a breach of the peace. It is the apprehension of a breach of the peace, and not any infringement of private rights or dispossession of any of the parties, which determines the jurisdiction of the Magistrate. It is sufficient for a Magistrate to exercise the powers under this section if he is satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section. Power is conferred by section 62 in subjective terms-the Magistrate, being the competent authority, is entitled to act when he has reason to believe that the existence of a dispute affecting land is likely to cause a breach of the peace. The condition precedent to the exercise of the power is the formation of such opinion-the factual basis of the opinion being the information furnished by any Police officer or otherwise. A Magistrate is not bound to take action on a Police report or upon an expression of opinion by the Police. But, before he takes action, he should have a statement of facts before him so that he may exercise his own judgment in arriving at a conclusion as to the necessity of taking action under this section. The question whether, upon the material placed before him, proceedings should be instituted under this section is one entirely within the Magistrate's discretion. He may form his opinion on any information received. In my view, he can base his action on a complaint filed by any of the parties, or on a Police report. The Magistrate should however proceed with great caution where there is no Police report and the only material before him are statements of interested persons.

Counsel for the respondent contended that the Magistrate had no jurisdiction to proceed under section 62 as the dispute between the petitioner and the respondent did not affect 'land'. According to him, the subject of dispute should be bare land and not a building or any other structure erected on the land. In the present case, the dispute relates to the possession of business premises in 4th Cross Street, Pettah. Counsel referred to section 62 (4) which reads as follows :-

" In this section, 'dispute affecting land' includes any dispute as to the right to the possession or to the boundaries of any land or part of a land, 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."

This is an interpretation clause. The use of the word 'includes' in significant. Where the word defined is declared to 'mean' so and so, the definition is explanatory and prima facie restrictive; where the word defined is stated to 'include' so and so, the definition is extensive. " ' Include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute, and when it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include."- per Lord Watson Dilworth v. Commissioner of Stamps (1899-A.C. 105 & 106), An interpretation clause which extends the meaning of a word does not take away its ordinary meaning as understood in our jurisprudence. The expression must be given its ordinary meaning and, in addition, it must, in relevant cases, be given the special meaning which the statute says is to be included. The ordinary meaning must however harmonise with the subject of the enactment and the object which the legislature has in view. It must fall within the scope and object of the statute and must not extend to ground foreign to its intention.

Our law does not recognise ownership of a house or building apart from the land on which it stands. The building loses its independent existence and becomes part of the land on which it is constructed. The principle of accessio in the case of buildings is embodied in the maxims, 'Omne quod inaedifecatur solo solo cedet' (All that is built on the soil belongs thereto) and 'Superficies solo cedet' (Things attached to the earth go with the immovable property). Thus, land, in its signification, means not only the surface of the ground, but also everything built on it. Cujus est solum ejus est usque ad caelum (He who possesses land possesses also that which is above it). On a conveyance of land, all buildings erected thereon pass with the land, even though there is no specific mention of such buildings in the deed of transfer. Thus, 'land', in our law, includes houses and buildings, and when the legislature employs the term 'land' in any statute, the word is presumed to include 'houses and buildings', unless there are words to exclude 'houses and buildings'. The language of section 62 does not repel such inclusive meaning. A breach of the peace can ensue from a dispute relating to an agricultural land as well as from a dispute relating to a house or building. There is no justification for restricting or confining the Magistrate's jurisdiction under section 62 to a dispute affecting agricultural or pastoral land only. In my view, the Magistrate's jurisdiction under section 62 extends to disputes affecting business premises and residential premises.

Accordingly, in the exercise of this Court's revisionary powers, I set aside the order of the Magistrate dated 22.6.76 and remit the case to the Magistrate's Court with the direction that he should proceed to act under section 62 and make his order under section 63 regardless of the proceedings in Colombo 1745/RE instituted by the respondent Mylwaganam. The Magistrate should proceed to inquire into the matter expeditiously and endeavour to make his order under section 63 within six weeks of the Registrar, Supreme Court, communicating the order of this Court. It is hoped that the District Court will stay its hands pending the final order of the Magistrate in this matter.

The 1st respondent will pay Rs. 420/- to the petitioner as costs of the application to this Court.

WANASUNDERA J.-I agree.

NAVARATNASINGHAM Vs. ARUMUGAM

Sri Lanka Law Reports

1980 - Volume 2 , Page No – 1

COURT OF APPEAL.

SOZA, J. AND ATUKORALE, J.

C. A. APPLICATION No. 266/80-M. C. JAFFNA 20319.

AUGUST 15,1980.

Supreme Court Rules, 1978, Rule 46-Revision application-Objection taken for non-compliance therewith-Meaning of the term "proceedings" in such Rule-Application rejected.

jurisdiction-Objection to be taken at the earliest opportunity-Waiver Judicature Act, No. 2 of 1978, section 39.

Administration of Justice Law, No. 44 of 1973,section 62-Requirement that breach of peace imminent-Has Magistrate jurisdiction to proceed in the absence of such material.

The petitioner filed this application to revise the, orders dated 19th and 21st February. 1980, made in the Magistrate's Court of Jaffna in proceedings under section 62 of the Administration of Justice Law, No. 44 of 1973. in the Court of Appeal a preliminary objection was raised on behalf of the 1st respondent that the petitioner had not complied with Rule 46 of the Supreme Court Rules which required, inter alia, that "originals of documents material to the case or duly certified copies .......................and also two sets of copies of proceedings in the Court of first instance " should be filed along with the petition and affidavit. It was also submitted on behalf of the petitioner that the learned Magistrate was not vested with jurisdiction to proceed with the matter as he had failed to satisfy himself that a breach of the peace was imminent before he issued process.

Held

(1) In relation to an application in revision the term "proceedings" as used in Rule 46 means so much of the record as would be necessary to understand the order sought to lie revised and to place it in its proper context. The expression can and often Will include pleadings, statements, evidence and judgment.

(2) As the petitioner in the instant case had come into Court only with a certified copy of the proceedings of 10th February, 1980, and the order delivered on 19th February, 1980, and the orders canvassed by him could not be reviewed in the absence of the earlier proceedings, the evidence and original complaint which were procured subsequently, the petition should have been rejected for non-compliance with Rule 46.

(3) Where a petitioner invokes the jurisdiction of the Appellate Court by way of revision as in the present case, the Court expects and insists on uberrima fides and where the petitioner's affidavits contradict the record of the trial judge the Court would be very slow to permit this.

(4) Although the learned Magistrate did not in the first instance have in material beore him on which he could have been satisfied that a breach of the peace was likely there was evidence led thereafter which was sufficient not only to found the belief that the breach of the peace was likely on the date the application was made but also to rectify any defect in the earlier proceedings.

(5) In any event, an objection to jurisdiction such as that in the present case must by virtue of section 19 of the Judicature Act, No. 2 of 1978, be taken as early as possible. and the failure to take such objection when the matter was being inquired into must be treated as a waiver on the part of the petitioner. Where a matter is within the plenary jurisdiction of the Court, if no objection is taken, the Court will then have jurisdiction to proceed and make a valid order. In the present case, the objection to jurisdiction was raised for the first time when the matter was being argued in the Court of Appeal and the objection had not even been taken in the petition filed before that Court.

Cases referred to

(1) Orathinahamy v. Romanis, (1900) 1 Browne's Reports 188.

(2) Gunawardene v. Kelaart, (1947) 48 N.L.R. 522.

(3) Bisnam v. Kamta Pd., A.I.R. 1945 (32) Oudh 52.

(4) Jose Antonie Baretto v. Francisco Antonio Rodrigues, (1910) 35 Bombay 24.

(5) Alagappa Chetty v. Arumugam Chetty, (1920) 2 C. L. Rec. 202.

(6) Gurdeo Singh v. Chandrikah Singh; Chandrikah Singh v. Rashbehary Singh, I.L.R., (1907) 36 Cal. 193.

(7) Pisani v. Attorney-General for Gibraltar, (1874)-L.R. 5 P.C. 516; 30 L.T. 729.

(8) Thevagnanasekeram v. Kuppammal, (1934) 36 N.L.R. 337.

APPLICATION to revise orders of the Magistrate's Court, Jaffna.

C. Motilal Nehru, for the petitioner.

C. Ranganathan, Q.C., with S. Mahenthiran, for the respondent.

Cur. adv. vult.

September 10, 1980.

SOZA, J.

This is an application for revision of the orders of the 19th and 21st February, 1980, made by the Magistrate of Jaffna in M.C. Jaffna Case No. 20139.The orders complained of were made when the learned Magistrate dealt with an information filed in his court under section 62 of the Administration of Justice Law, No. 44 of 1973; by the 2nd respondent to the present petition ho is the officer in charge of the Annaicoddai Police Station. The 2nd respondent had himself acted after inquiry into a complaint made to him by the present 1st respondent who was the 1st respondent in the Magistrate's Court proceedings also. The present petitioner was the 2nd respondent in the Magistrate's Court proceedings.

A preliminary objection was raised by learned counsel for the 1st respondent. He pointed out that according to Rule 46 of the Supreme Court Rules of 1978 (published in Gazette Extra ordinary No. 9/10 of 8.11.1978) an application for revision should be made by way of petition and affidavit accompanied originals of documents material to the case or duly certified copies thereof in the form of exhibits and also two sets of copies of proceedings in the Court of First Instance. The term "proceedings" has not been defined. Rule 46 appears in part 4 of the Supreme Court Rules of 1978. In part 2 of these rules we have Rule 43 which reads as follows:-

"In this part ' record ' means the aggregate of papers relating to an appeal (including the pleadings, proceedings, statements, evidence and judgment) necessary for the consideration of the appeal by the Supreme Court".

The reference to Pleadings, proceedings, statements, evidence and judgment, as I see it, is there for the purpose of emphasis and completeness and to prevent argument on the meaning of the term "record". Form this definition it cannot be argued that the terms "Pleadings", "proceedings", "statements", "evidence" and "judgment" are in watertight compartments and should be assigned separate meanings. Indeed the expression "proceedings" can include pleadings, statements, evidence and the judgment. In any event the term "proceedings" as it appears in part 4 has not been defined. The definition given in Rule 43 cannot be invoked to ascertain the exact meaning of the term "proceedings" as used in rule 46. The expression "proceedings" as used in legal phraseology can bear varying meanings depending on the particular statute or rule where it occurs-see Stroud's Judicial Dictionary (1974) 4th Ed. Vol 4 pages 2124 to 2128 where a wide range of definitions of the term is given. In relation to an application for revision the term "Proceedings" as used in Rule 46 means so much of the record as would be necessary to understand the order sought to be revised and to place it in its proper context. The expression can, and often will, include the pleadings, statements, evidence and judgment. In the instant case the petitioner has come into this Court only with a certified copy of the proceedings of 10.2.1930 and the order delivered on 19.2.1980. The orders canvassed before us cannot be reviewed in the absence of the earlier proceedings, evidence and original complaint. These were procured only subsequently. This petition therefore should have been rejected for non-compliance with Rule 46 of the Supreme Court Rules of 1978.

I might further add that not only has the 2nd respondent-petitioner failed to supply the Court with the necessary documents, he has even made averments in his petition which do not accurately reflect the state of the true facts. The proceedings filed show that the order of Court of 19.2.1980 was delivered in open Court in the presence of the parties. Mr. Nagarajah had appeared for the 1st respondent. On that occasion the 2nd respondent-petitioner moved for one month's time to vacate the land without causing any damage to the buildings and to hand over possession. The 2nd respondent-petitioner has however stated In his petition that he was dragged into the Magistrate's Chambers and peremptorily asked, to leave the land in one month. This Court would be very slow indeed to permit contradiction of the record of the trial Judge. On this question I like to remind myself of the words of Bonser, C.J. in Orathinahamy v. Romanis (1)

"With the appeal was filed an affidavit which I have not read........................and I understand that the affidavit is to the effect that the record of the evidence taken by the Magistrate does not give a correct account of the statements of the witnesses, and it is sought to impeach the record, and to prove that certain statements were made Which do not appear on the record.................................it seems to me to be contrary to all principle to admit such an affidavit, and I certainly will not be the first to establish such a novelty in appellate proceedings. The prospect is an appalling one, if on every appeal it is to be open to the appellant to contest the correctness of the record................ If such a procedure is to be introduced it must be introduced it must be introduced by some other Judge than myself".

This dictum was cited with approval by Canekaratne, J. in the case of Gunawardene v. Kelaart (2). I am in respectful agreement with these views .I would like to emphasise that in applications of this type the Court expects and insists on uberrima fides.

What I have said in regard to the preliminary objection is sufficient to conclude this matter but as we heard considerable argument on the question of jurisdiction also I would refer to it.

On behalf of the petitioner it was submitted that the learned Magistrate had failed to satisfy himself that a breach of the peace was imminent before he issued process. As the Magistrate failed initially to satisfy himself of the likelihood of a breach of the peace he was not vested with jurisdiction to proceed in the matter. Reliance was had on the Indian case of Bisram v. Kamta Pd (3) where the Court in interpreting a provision of the Indian Criminal Procedure Code similar to our section 62 held that the Magistrate must make an order stating in writing the grounds of his being satisfied that a dispute likely to cause a breach of the peace exists. The Indian statutory provision however is not identical with ours. The local decisions on section 62 of the Administration of Justice Law, No. 44 of 1973, are agreed that all that is necessary is that the Magistrate himself must be satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section. On this point I might straight away say that it is true that in the first instance the learned Magistrate had no material on which he could have been satisfied that a breach of the peace was likely but thereafter evidence was led on the question and this evidence is sufficient not only to found the belief that the breach of the peace was likely on the date the application was made, but also to rectify any defect in the earlier proceedings.

It is significant that no objection to jurisdiction has been raised by the 2nd respondent-petitioner until the matter was argued before us. It is also significant that the objection to jurisdiction has not been taken even in the petition that has been filed before us. It is necessary to remember that an objection to jurisdiction must be taken as early as possible. Section 39 of the Judicature Act, No. 2 of 1978 (and prior to that section 43 of the Administration of Justice Law, No. 44 of 1973) laid down that-

" Whenever any defendant or accused party shall have pleaded in any action, proceeding or matter brought in any Court of First Instance neither party shall afterwards be entitled to object to the jurisdiction of such court, but such court shall be taken and held to have jurisdiction over such action, proceeding or matter". (cf. also sections 30 and 71 of the old Courts Ordinance).

Further the failure to object to jurisdiction when the matter was being inquired into must be treated as a waiver on the part of the 2nd respondent-petitioner. It is true that jurisdiction cannot be conferred by consent. But where a matter is within the plenary jurisdiction of the Court if no objection is taken, the Court will then have jurisdiction to proceed on with the matter and make a valid order. This point has been well explained by Chandavakar, J. in the case of Jose Antonio Baretto v. Francisco Antonio Rodrigues (4) :

"But it is urged that the parties cannot by consent give jurisdiction where none exists. That is so where the law confers no jurisdiction. Here the consent is not given to jurisdiction where none exists ".

This was a case where the plaintiff had sued the defendant regarding a property the market value of which he fixed at an amount so as to bring it within the monetary jurisdiction of a second class subordinate judge. The defendant did not object to the value. The Court held that where parties expressly or by conduct agree to treat the suit as one for property of a value so as to bring the suit within the monetary jurisdiction of the Court, the parties must be treated as having waived inquiry by the court as to the facts necessary for the determination of the question as to jurisdiction based on monetary value where that question depends on facts to, be ascertained.

In the case of Alagappa Chetty v. Arumugam Chetty (5), Bertram. C.J. on the same point cited with approval a dictum of Mookerjee, J. in the case of Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehary Singh (6) :

"........where jurisdiction over the subject matter exists requiring only to be invoked in the right way, the party. who has invited or allowed the Court to exercise it in a wrong way, cannot afterwards turn round and challenge the legality of the proceedings due to his own invitation or negligence."

In the case of Pisani v. Attorney-General for Gibraltar (7), the Privy Council affirmed this same doctrine that unless there is an attempt to give the Court a jurisdiction which it does not possess, the Court can, in the absence of objection, hear a case where it has jurisdiction over the subject. These principles were followed also in the case of Thevagnanasekeram v. Kuppammal (8) where Macdonell, C.J. held that a party was not entitled to challenge the jurisdiction of the Court to give the decision invited by such party, so long as the Court had jurisdiction over the subject.

The distinction between elements which are essential for the foundation of jurisdiction and the mode in which such jurisdiction has to be assumed and exercised is of fundamental importance. Non-compliance with the prescribed mode in which a particular jurisdiction should be assumed and exercised can be waived, provided there is jurisdiction over the subject matter.

Therefore in the instant case as there was no objection to the jurisdiction of the Magistrate, he was entitled to proceed on with the matter as it was within his plenary jurisdiction.

For the reasons I have given I dismiss this application with costs.

ATUKORALE, J. -I agree.

Application dismissed.

PARAMASOTHY v NAGALINGAM

Sri Lanka Law Reports 1980 - Volume 2 , Page No - 34

COURT OF APPEAL.

SOZA, J., AND L. H. DE ALWIS, J.

C. A. APPLICATION NO. 807/80.

OCTOBER 22, 1980.

Primary Courts Procedure Act No. 44 of 1979, sections 66, 67, 72-Breach of the Peace threatened or likely-Objection that failure to consider such requirement deprived court of jurisdiction-Opportunity to lead evidence-When necessary-Discretion of court-Requirement that objection to jurisdiction be taken at earliest opportunity-Judicature Act, No. 2 of 1978, section 39.

The petitioner moved to have an order made in the Primary Court under Part VII of the Primary Courts Procedure Act, No. 44 of 1979, revised. It was submitted on his behalf that

(a) the court had failed to clothe itself with jurisdiction in that it had not considered whether on the Police report a breach of the peace was threatened or likely ; and

(b) the learned judge of the Primary Court had failed to give the petitioner an opportunity to led evidence although such an application was made.

Held

(i) By virtue of the provisions of section 39 of the Judicature Act it was incumbent on any party who objects to jurisdiction to do so at the very first opportunity. In this case the court inspected the site in dispute on the invitation of parties and the order was made after hearing submissions. The petitioner was therefore not entitled to complain on the ground of jurisdiction. The court had plenary jurisdiction and. unless the objection was raised the court must be deemed to have jurisdiction.

(ii) Sections 72 of Act No. 44 of 1979 leaves the question f permitting evidence to be led to the discretion of court and the scheme of these Provisions is to prevent long drawn out inquiries. The court had inspected the land and heard the parties and no prejudice had been caused. Accordingly there was no necessity to grant the petitioner's application to lead evidence.

APPEAL from the Primary Court, Velanai.

S. Navaratnam- for the petitioner.

S. C. Dickens, for the 1st respondent

October 22, 1930.

SOZA, J.

This is an application for revision of the order of the Judge of the Primary Court, Velanai made under the provisions of the Primary Courts Procedure Act, No. 44 of 1979. Two main points have been argued, namely, that the Primary Court had failed to advert its attention to whether on the police report a breach of the peace was threatened or likely. Accordingly, it is submitted that the court had failed to clothe itself with the necessary jurisdiction.

In this connection it is only necessary to refer to section 39 of the Judicature Act, No. 2 of 1978. By virtue of the provisions of this section it is incumbent on any party who raises an objection to jurisdiction to do so at the very first opportunity. In this case the parties have invited the court to inspect the site in dispute and the order was made after hearing the submissions. Having participated in the proceedings it does not lie in the mouth of the petitioner to complain that the learned Judge of the Primary Court has not clothed himself with the necessary jurisdiction to hear this case by forming an opinion in regard to the likelihood whether a breach of the peace was threatened or likely. The court had plenary jurisdiction to hear this matter and therefore unless objection was raised the court must be deemed to have jurisdiction. Hence the first objection fails.

In regard to the second question that there was no proper inquiry, our attention has been drawn to section 67 and section 72 of the Primary Courts Procedure Act, No. 44 of 1979. Section 67 stipulates that inquiry should be held in a summary manner and concluded within three months of the commencement of the inquiry. This stipulation shows what the legislature has intended, the inquiry should be held summarily and concluded speedily. Learned counsel for the petitioner complains that the Judge of the Primary Court had failed to give him an opportunity to lead evidence although such an application was made. Section 72 of the Primary Courts Procedure Act, No. 44 of 1979, leaves the question of permitting evidence to be led to the discretion of the court. The entire scheme of the new provisions is to prevent long drawn out inquiries where evidence is led on both sides. In the present case the court had inspected the land and heard the parties and no prejudice has been caused. There was no compelling need for evidence. Section 72 (b) and (c) are so drawn up as to leave to the discretion of the court the question of permitting written or oral submissions. These are not imperative provisions requiring the court to call for evidence to be led. In our view there was no necessity to grant the application of the petitioner to lead evidence. We see no ground on which we can interfere with the order of the learned Judge.

The Application is dismissed with costs

L. H. DE ALWIS, J.- I agree.

Application dismissed.

ARLIS V. ABEYNAYAKE

Sri Lanka Law Reports

1980 - Volume 2 , Page No - 84

COURT OF APPEAL.

RANASINGHE, J., AND K. C. E. DE ALWIS J.

C. A. APPLICATION 618/80-PRIMARY COURT, EMBILIPITIYA 1452.

OCTOBER 1. 8, 1980.

Primary Courts Procedure Act, No. 44 of 1979, section 67(2)-Requirement that order be delivered within one week of conclusion of inquiry Non-compliance-Whether judge has jurisdiction to deliver order thereafter.

Held:

Section 67 (2) of the Primary Courts Procedure Act which requires the judge to deliver his order within one week of the conclusion of the inquiry is clear in laying down a definite period of time within which the order must be delivered and the judge ceases to have jurisdiction after the expiry of such period. Accordingly an order delivered after the expiry of such period will be set aside.

Case referred to:

(1) Dias et al, v. Suwaris, (1978) 79 (2) N. L. R. 258.

APPLICATION to revise an order of the Primary Court, Embilipitiya.

D. C. R. Collure, for the petitioner.

P. Jayasekera, for the respondent.

Cur. adv. vult.

November 12 , 1980.

K. C. E. DE ALWIS, J.

This is an application for the revision of an order made by the judge of the Primary Court in favour of an informant party purporting to act under section 67 (2) of the Primary Courts' Procedure Act, No. 44 of 1979. On a consideration of the facts in the case I am of opinion that his decision thereon is correct. However, two questions of law were raised by counsel for the petitioner, namely, (i) the order of the Judge is bad in law as more than one week had lapsed when delivering the order after the conclusion of the inquiry, and (ii) no material has been placed before the Court to indicate that a breach of the peace was likely or was threatened.

With regard to the objection (i), it must be noted that the order, after the inquiry, has been delivered by the Judge sixteen ,weeks after the conclusion of the inquiry in disregard of section 67 (2) which says:

"The Judge of the Primary Court shall deliver his order within one week of the conclusion of the inquiry ".

The inquiry has been concluded on 29.2.80 and the order has been delivered on 25.5.80. It seems that the Judge alone could explain why the law was so flagrantly disregarded.

Counsel for the respondent submitted that the time limit laid down in that section is not an imperative requirement and submitted a number of authorities in support of his submission. It is unnecessary to discuss them here as they do not interpret the terminology in or even any analogous terminology to that which we find in section 67 (2) with regard to the period of time within which the act should be done. The Criminal Procedure Code required that a magistrate shall "forthwith" record a verdict of " guilty " or " not guilty ", after taking the evidence, and that a District, Court shall record a verdict of acquittal or conviction " forthwith " or " within not more than twenty four hours ". Cases cited by counsel for the respondent dealt with such unprecise terminology as above. In that context these expressions needed judicial interpretation.

The Criminal Procedure Code was repealed by the Administration of Justice Law, No. 44 of 1973, which took its place. The latter Law provided that the Magistrate and the District Judge shall record the verdict " not later had twenty four hours after the conclusion of the taking of evidence. ". It would be seen that there is a similarity with regard to the delivery of the verdict under the Administration of Justice Law and the delivery of the order under section 67 (2) of the Primary Courts Procedure Act. Both enactments lay down a definite period of time within which a verdict or an order as the case may be, shall be delivered.

In the case of Dias et al. v. Suwaris et al. (1), Wijesundera, J. said, "Where the meaning of a statute is plain nothing can be done but to obey it ". When one statute stated that the act in question should be done " within one week " and another said that it should be done " not later than twenty four hours ", both enactments said the same, except, of course, with regard to the actual period of time. They fixed two definite terminals and expressed a duration of time without ambiguity. Therefore the dictum in the above cited case is applicable to the. present case. When section 67( 2) is so clear and there has been a clear departure from it by the Judge of the Primary Court, there is nothing that this court could do but to set aside the order of the Judge, as the order has been made when the Judge has ceased to have jurisdiction.

In the result, I allow the application but without costs.

RANASINGHE, J.-I agree.

Application allowed.

RAMALINGAM vs THANGARAJAH

Sri Lanka Law Reports

1982 - Volume 2 , Page No - 693

SUPREME COURT

SHARVANANDA, J., VICTOR PERERA, J., AND COLIN THOME, J.

S.C. 6/82; CA 2460/80; P.C. AKKARAIPATTU PCA/398

SEPTEMBER 29, 1982

Primary Courts Procedure Act, Sections 66 to 76 ‑ Duty of Judge in disputes as to possession ‑ Consequence of failure to keep to time limits laid down in Act.

The respondent owned a land in extent 8A.1R.22P and had been cultivating it for decades but appellant dispossessed him of the land, on 6.10.79 and continued in possession. The Officer in Charge of the Police Station having failed to bring about a settlement filed information on 10.12.79.

Inquiry was fixed by , the Judge for 17.1.80. Inquiry was postponed from time to time and witnesses were examined and cross examined at length till the Judge brought about a settlement on 24.9.80.

The appellant complains that the above proceedings offend the mandatory provisions of Part VII of the Primary Courts Procedure Act and are therefore null and void.

Held ‑

(1) That a Judge should in an inquiry under Section 66 confine himself to the question of actual possession on the date of filing information except in a case where a person who had been in possession of land had been dispossessed within a period of two months immediately preceding filing of information.

(2) 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 Eire in excess of his special jurisdiction.

(3) that non‑compliance by Court of the provisions of Sections 66 and 67 does not divest Court of jurisdiction conferred on it by Section 66(2).

Cases referred to:

(1) Kanagasabai v. Mailvaganam (1976) 78 NLR 280, 283.

(2) Nagalingam v. Lakshman de Mel (1975) 78 NLR 231, 237.

APPLICATION in revision of order of the Primary Court of Akaraipattu.

S.C. Crossette Thambiah with K. Thevarajah and S.H.N. Reeza for appellant.

K. Kanag‑Iswaran for respondent. .

Cur. adv. vult.

October 19, 1982

SHARVANANDA, J.

This is an appeal from a judgment of the Court of Appeal dismissing the appellant's revision application to have the proceedings No. 398 in the Primary Court of Akkaraipattu declared null and void.

On 10.12.79, the Officer‑in‑Charge of the Police Station, Akkaraipattu filed information under section 66 of the Primary Courts Procedure Act No. 44 of 1979 (hereinafter referred to as the Act) regarding a dispute relating to the possession of a land, between the petitioner-appellant (hereinafter referred to as appellant) and the respondent‑respondent, (hereinafter referred to as respondent), in the Primary Court of Akkaraipattu. He stated in the information that he had inquired into a complaint made by the respondent on 22.10.1979 to the effect that he owned a land 8 acres, 1 rood and 22 perches in extent which he had been cultivating continuously for decades and that the petitioner had entered this land forcibly and was cultivating the same. According to the information, the Officer‑in‑Charge had summoned both parties to the Police Station and had tried to effect a peaceful settlement, but his efforts had failed and he feared a

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serious breach of the peace as a result of the dispute. The appellant and, respondent appeared in Court on that date and filed their respective affidavits but annexed no documents thereto. In hi s affidavit the appellant stated that he was cultivating and possessing the said land from 1977. On the other hand the respondent in his affidavit dated 8.12.79 stated that while he was in possession of the land the appellant had "on 6.10.79 without any manner of right put him out of the land forcibly and cultivated the land" and prayed that he be restored to possession.

The Judge, Primary Court fixed the matter for inquiry on 17.1.80. On that date the inquiry commenced and counsel for the respondent led the evidence of one, David, Land Officer. Though this witness stated that he did not know who cultivated the land after 1974, the record shows that his evidence had gone on for a fair amount of time. After his lengthy evidence the inquiry was postponed to 22.2.80. On that date, on the application of both parties for a postponement on the ground that their lawyers were not present, further inquiry was re‑fixed for 6.3.80. On 6.3.80 however the inquiry was postponed for want of time for 28.4.80 on which date the Court, stenographer was not available and inquiry was put off again for 23.6.80. On the latter date the respondent gave evidence at length as to how he came into possession of the land and was in possession of it from 1976, till he was, forcibly dispossessed by the appellant on 6.10.79. The respondent's evidence covers eleven pages of the record. Thereafter one Stanislaus, Cultivation Officer gave evidence for the respondent. This witness in examination in chief, referred to the cultivation of the land by the respondent in 1978 but stated that the appellant cultivated the land during the 1979 cultivation season which started in October 1979. This witness was cross‑examined and re‑examined at length. His evidence covers about fifteen pages of the record. His evidence was not concluded that day when further inquiry was refixed for 25.6.80. The inquiry could not be taken up on 25.6.80, nor on 2.7.80 nor on 11.7.80, on which dates the case was postponed, as the. stenographer was on leave. On 11.7.80 on the application of both parties for a long date "as. they had to go to Kataragama", the inquiry was refixed for 6.8.80. On this date too the inquiry had to be postponed as the stenographer was on maternity leave and the inquiry was fixed for 10.9.80. On this date too the Attorney for the appellant moved for a postponement on the ground that his Senior Counsel had gone abroad, and that some documents pertaining to

696

the case were with him. The Judge then inquired from the appellant's Attorney, whether he could assist the Court "as the‑ inquiry had to be completed within three months, in terms of section 67(1) of the Primary Courts Procedure Act No. 44/79". On the Attorney expressing willingness, the cross‑examination of Stanislaus was resumed. After Stanislaus, the next witness called was one Sambanther who testified to a complaint made by the appellant to, the Assistant Government Agent on 10.8.78 regarding the land in dispute. This witness however stated that he did not know who was in possession of the land at the relevant times. Further inquiry was fixed for 24.9.80. On this date the lawyers for the parties were absent, but "as they had not sent any intimation to Court about their appearance", the Judge, proceeded with the inquiry. The respondent called as his witness one Vasantharasapillai, who stated quite early in the course of his examination‑in‑chief that he cultivated this land from 1972‑75 but did not know who cultivated the land after that. On the respondent closing his case with that witness's evidence the appellant got into the witness box and stated that he cultivated the land for the 1977/78 and 1979/80 seasons and for the last cultivation season. Then the appellant was cross examined by the respondent. Thereafter ‑ the appellant called one Mailvaganam to give evidence on his behalf, This witness stated that he knew the land in dispute and that the appellant was possessing it. In cross‑examination this witness was shown two receipts marked 1R4 and 1R5. On the witness denying the signature appearing on the said receipts, the respondent stated that he would be calling the Examiner of Questioned Documents to prove the signature. When he was further being cross examined at length by the respondent the witness fainted. The record sets out what happened then:-

"Inquiry put off. I release him on bail in Rs. 1000/‑ in default of bail remand him for two weeks.

At this stage the respondents propose to settle the case. Case is settled on the following terms:

Terms of Settlement

Both respondents agree that the 1st respondent Thangarasa should possess 4 acres and 32 perches from the northern boundary of this land and the balance portion to be possessed by the 2nd respondent ‑ Ramalingam."

In consideration, of the motion of the 1st respondent to withdraw his application to have the signature of the witness Mylvaganam on 1R4 and 1R5 examined by the Examiner of Questioned Documents, the Judge cancelled the bail on the witness and warned and discharged him."

The appellant complains that the above proceedings offend the mandatory provisions of Part VII of the Primary Courts Procedure Act and are null and void.

Before I proceed to discuss the main contentions urged by the Counsel for the appellant, I would like to express my disapproval of the order for bail made by the Primary Court Judge on Mailvaganam. This order is absolutely unwarranted in law and cannot be. justified The witness was not facing any criminal charge for him to be subject to any remand. An order of this nature tends to discourage witnesses coming forward to give evidence. Courts should not hold out such threats or terrors to witnesses. Such an arbitrary order is not calculated to do any credit to a Court of Justice. Judges should be chary of making such orders.

The lackadaisical fashion in which the inquiry has been carried on reveals a lack of appreciation on the part of the Primary Court Judge and attorneys of the parties concerned, of the proper scope and objective of an inquiry under Part VII of the Act. Had the Judge addressed himself to the relevant issues involved in the case he could have spared himself the exercise of the long and protracted, inquiry which was characterised by digressions into irrelevancies and was conducted in disregard of the time limits prescribed by the provisions of the Act. On the undisputed facts of the case, as disclosed by the affidavits of the parties, the determination and order under section 68 of the Act could have been made on the first day of the inquiry itself. According to the affidavits filed by the appellant and respondent, prior to the commencement of the inquiry it was common ground and, it was not disputed that on the date of the filing of the information under section 66 of the Act, namely 10.12.79 the appellant was in possession of the land in dispute and had been in, such possession at least from 6.10.79. The respondent alleged in his affidavit that he was forcibly dispossessed of the land by the appellant on 6.10.79. Thus, on the respondent's own admission the appellant had entered into and commenced possession of the land prior to the period of two months immediately before the date on which the information was filed viz. prior to 10.10.79. On this uncontested fact

698

of possession by the appellant from 6.10.79, the Judge could have and should have made his, determination and order under section 68 of the Act in favour of the appellant and terminated the proceedings. In law, that was the only order which the Judge could have made, on the facts; no additional evidence was necessary or relevant to enable the Judge to make the said determination and order.

In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is. Actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof 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 proceeding the date on which the information was filed under section 66. The effect of this sub‑section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

That person is entitled to possession until he is evicted by due process of law. A Judge should therefore in an inquiry under Part VII of the aforesaid Act, confine himself to the question of actual possession on the date of filing of the information except in a case where a person who had been in possession of the land had been dispossessed within a period of two months immediately before the date of the information. He is not to decide any question of title or right to possession of the parties to the land. Evidence bearing on title can be considered only when the evidence as to possession is clearly balanced and the presumption of possession which flows from title may tilt the balance in favour of the owner and help in deciding the question of possession.

On the other hand, if the dispute is 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, section 69 requires the Court to determine the question which party is entitled to the disputed right preliminary to making an order under section 69(2).

The procedure of an inquiry under Part VII of the Act is sui generis. 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 inquire 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. Section 66(3), requires the Court to appoint a date "which shall not be later than three weeks from the date on which the parties were produced or the date fixed for their appearance under Section 66(1), directing the parties to file affidavits setting out their claims and annex thereto any documents on which they rely. When such affidavits are filed the Court is required on application made by parties to grant them time not exceeding two weeks to file counter affidavits with documents, if any. Sub‑section 6 provides that where no application has been made for filing counter affidavits or on the date fixed for filing counter affidavits the Court should endeavour, before fixing the case

700

for inquiry to induce the parties to arrive at a settlement of the dispute and if there is no such settlement Court should fix the case for inquiry on a date not later than two weeks of the date fixed for filing affidavits or counter affidavits as the case may be. Section 67 specially postulates that the inquiry should be concluded within three months of its commencement and the Judge should deliver his order within one week of its conclusion. It is incumbent on the Judge to conform to these time limits and to discountenance any elaborate and prolonged inquiry in breach of the time limits.

In this connexion what I said with reference to the provisions of section 62 of the Administration of Justice Law No.44 of 1973 (now repealed) in Kanagasabai Vs. Mailvanaganam, (1) apply equally well to the Section 66 and 68 of the Act which correspond to them: ‑

"Section 62 of the 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 .........

The scheme embodied in this Part is geared to achieve the object of prevention of a breach of the peace. Section 68(2) enjoins the Judge to decide the dispute which gave rise to the threat to a breach of the peace, provisionally and to maintain the status quo until the right of parties are decided by a competent Civil Court. Section 72 prescribes the material on which the determination and order under section 68 and 69 of the Act is to be based. The determination should, in the

701

main, be founded on "the information filed and the affidavits and documents furnished by the parties". 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. That discretion should be exercised judicially, only in a fit case and not as a matter of 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. Section 72 provides: ‑

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

(a) the information filed 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;

The information, affidavits and documents of parties will identify their respective positions in regard to the issue of possession at the time of the filing of the information, for the purpose of the determination and order under section 68. If the question of possession or dispossession by any of the parties at the relevant time is disputed then the Court may permit oral evidence of the parties and their witnesses directed to that question only, for the purpose of ascertaining the true position. It is imperative that the Judge should so contain the inquiry and not allow parties to enlarge or convert the inquiry into a full scale trial of civil issues, as in a civil case.

Hence, where the information filed and the affidavits furnished under Section 66(2) were sufficient to make a determination under Section 68, the further inquiry embarked upon by the Judge was not warranted by the mandatory provisions of section 72 and was in excess of his special jurisdiction. The Judge should have made his determination on the first day of the inquiry itself, namely 17.1.80, that the appellant was in possession of the land and made order that the appellant was entitled to possession of the said land.

The question was raised as to what was the consequence of the failure of the Judge to observe the time‑limits prescribed for the various acts and steps leading to the determination and order under

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Section 68. It is significant that the prescription of time is preceded by the word 'shall'. The obligatory nature of the requirement that the particular step/act should be taken or done within a fixed time is indicated by the word 'shall'. This expression is generally used to impose a duty to do what is prescribed, not a discretion to comply with it according to whether it is reasonable or practicable to do. Prima facie the word 'shall' suggests that it ‑ is mandatory, but that word has often been rightly construed as directory. Everything turns on the context in which it is used; and the purpose and effect of the section in which it appears. It is to be noted that the statute does not declare what shall be the consequence of non‑compliance by Court with regard to this requirement's as to time limit prescribed by the law. Are these procedural rules to be regarded as mandatory, in which case disobedience will render void or voidable what has been done or as directory, in which case disobedience will be treated as an irregularity not affecting what has been done? It is to be observed that this obligation with regard to time limit is imposed on court, over whose acts or omissions the parties do not have any control. Maxwell on 'Interpretation of Statutes' 11th Edition, at page 369 appositely states‑

"Where the prescription of a statute related to performance of a public duty and where invalidation of acts done, in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. Neglect of them may be penal, indeed, but it does not affect the validity of the acts done in disregard of them. It has often‑been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, then the Act is directory only and might be complied with after the prescribed time."

In this context, one may also invoke the maxim "Actus curiae neminem gravabit" (an act of Court shall prejudice no man). In my opinion this maxim which is founded upon justice and good sense may be appropriately applied to salvage a determination and order made under section 68, where the Judge has failed to observe the time‑limits imposed by the legislature for the various procedural steps

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prescribed by it. The Judge is certainly to be blamed but a party in whose favour such an order is made should not suffer for the Judge's default.

A passage from my judgment in Nagalingam vs. Lakshman de Mel, (2), in respect of a similar situtation where the Commissioner of Labour had not made his order within the time prescribed under the Termination of Employment of Workmen (Special Provisions) Act No. 45 of 1971 has application to the present problem.

"The delay should not render null and void the proceedings and affect the parties, as the parties have no control over the proceedings. It could not have been intended that the delay should cause a loss of jurisdiction, that the Commission had to give an effective order of approval or refusal. In my view, a failure to comply literally with the aforesaid provisions does not affect the efficacy or finality of the Commissioner's order made thereon. Had it been the‑intention of the Parliament to avoid such order nothing would be simpler than to have so stipulated. "

I am therefore of the view that the provisions as to time limits in Section 66 or 67, though the word 'shall' there suggests that they are mandatory, should be construed as being directory and that non‑compliance by Court of the provisions of Section 66 or 67 of the Act does not divest the Court of the jurisdiction conferred on it by Section 66(2) to make the determination and order under Section 68.

Another contention urged by counsel for the appellant is that an order based on the settlement arrived at by parties on 24.9.80, after the time prescribed by Section 67 of the Act, cannot be treated as an order to which Section 73 would apply. It is not necessary to decide on the correctness of this contention as admittedly the Judge has not made any order on this settlement in question and hence there is no foundation for the imposition of any penalty under Section 73.

For the reasons set out above I set aside all proceedings had in this case on and after 17.1.80, including the proceedings for alleged contempt of court, purporting to be held under Section 73 of the Act and direct the Judge to determine nunc pro tune, under Section 68 that the appellant was on the date of the filing of the information in possess‑ion of the land in dispute in extent 8 acres 1 rood and 22 perches and to make order declaring that the appellant is entitled to the possession of the said land. I allow the appeal and set aside

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the order of the Court of Appeal and send the case back to the Judge, Primary Court, with the order that he should comply with the aforesaid direction.

The respondent will pay the appellant Rs. 750/‑ as costs of this Court and of the Court of Appeal.

VICTOR PERERA, J. ‑ I agree.

COLIN‑THOME, J. ‑ I agree.

Proceedings after 17.1.80 set aside and

case sent back for order.

MARY NONA vs. FRANSINA

COURT OF APPEAL

RAMANATHAN, J.

C. A. 1184/85 - PRIMARY COURT KEGALLE NO. 508/84

MARCH 30, 1988

Revision - Rules of the Supreme Court - Rule 46 - Is compliance, imperative?

Compliance with Rule 46 of the Supreme Court Rules 1978 in an application for revision is mandatory. A copy of the proceedings containing so much of the record as would be necessary to understand the order sought to be revised and to place it in its proper context must be filed. Merely filing copies of three journal entries with no bearing on the matters raised in the petition is not a compliance with Rule 46.

Cases referred to

1. Navaratnasingham v. Arumugam (1980) 2 Sri L. R. 1

2. Mohamed Haniffa Rasheed Ali v. Khan Mohamed Ali and another S.C. No. 6/81 S. C. Minutes of 20.11.1981.

APPLICATION for revision of order of Primary Court, Kegalle.

Eardley Ratwatte for petitioner

D. S. Wijesinghe with Miss D. Dharmadasa for respondent.

Cur. adv. vult

May 24, 1988

RAMANATHAN. J.

This is an application for revision of the order of the learned Magistrate of Kegalle in proceedings taken under Section 66 of the Primary Courts Procedure Act No. 44 of 1979.

When this matter came up for hearing learned counsel appearing for the respondent-respondent raised a preliminary objection on the ground that there had been a failure to comply with Rule 46 of the Supreme Court Rules 1978 (published in Gazette Extraordinary No. 9/10 of 18.11.1978). Rule 46 reads thus -

"Every application made to the Court of Appeal for the exercise of powers vested in the Court of Appeal by Articles 140 and 141 of the Constitution shall be by way of petition and affidavit in support of the averments set out in the petition and shall be accompanied by originals of documents material to the case or duly certified copes thereof in the form of exhibits. Application by way of revision or restitutio in integrum under Article 138 of the Constitution shall be made in like manner and be accompanied by two sets of copies of proceedings in the Court of first instance; tribunal or other institution".

The meaning of the expression 'proceedings' occurring in Rule 46 was considered by Soza, J. in Navaratnasingham v. Armugam (1). In the course of his judgment Soza; J stated: "In relation to an application for revision the term "proceedings" as used in Rule 46 means so much of the record as would be necessary to understand the order sought to be revised and to place it in its proper context. The expression can, and often will, include the pleadings, statements, evidence and judgment".

Thus it would appear that a mandatory duty is cast by Rule 46 of the applicant for revision to furnish with his petition and affidavit, documents material to his case.

The question is whether Rule 46 is mandatory was considered by the Supreme Court in the case of Mohamed Haniffa Rasheed Ali v. Khan Mohamed Ali and another (2). The majority of the Judges appeared to be of the view that Rule 46 is mandatory. Wanasundera, J. delivering the majority judgment stated thus: "While I am against mere technicalities standing in the way of this Court doing justice, it must be admitted that there are rules and rules. Sometimes courts are expressly vested with powers to mitigate hardships, but more often we are called upon to decide which rules are merely directory and which mandatory carrying certain adverse consequences for non-compliance. Many procedural rules have been enacted in the interest of the due administration of justice, irrespective of whether or not a non-compliance causes prejudice to the opposite party. It is in this context that Judges have stressed the mandatory nature of some rules and the need to keep the channels of procedure open for justice to flow freely and smoothly".

In the present application on a perusal of the petition filed by the respondent reveals that only the three journal entries marked (P1, P2 and P3) were produced with the application. The three journal entries have no bearing on the matters raised in the petition. A copy of the order to be revised has not been filed.

In the objections of the respondent-respondent dated 2.12.85 he has specifically averred that there has been a failure to comply with Rule 46 of the Supreme Court Rules. Subsequent to the filing of the objections, a copy of the order of the learned Magistrate had been filed without even an accompanying affidavit. The "information" referring the dispute to court, the affidavits and counter affidavits and documents have not been filed. In my view, it would not be possible to review the order of learned. Magistrate without these documents.

I accordingly dismiss the application for non compliance with Rule 46 of the Supreme Court Rules 1978. There will be no costs.

Application dismissed.

ABDUL HASHEEB Vs MENDIS PERERA AND OTHERS

COURT OF APPEAL

TAMBIAH, J. AND G.P.S. DE SILVA, J.

CA APPLICATION NO. 1092/81

P.C. GAMPAHA CASE NO. 3853

06 APRIL 1982, 14 JUNE 1982, 6, 7, 8 JULY 1982

AND 10, 13 AND 14 SEPTEMBER 1982

Judicature, Act No. 2 of 1978, SS. 46 & 47 - Application for transfer of case from one Primary Court to another - Failure to give notice in writing of the application to the Attorney-General as required by s. 47(3) of the Judicature Act - Bias - Expediency as ground for transfer of case.

Held:

It is section 46 which lays down the grounds of transfer applicable to every kind of proceeding, be it criminal or civil, quasi civil or quasi criminal. Subsections (1) and (2) of section 47 are confined to a prosecution.

The transfer contemplated in section 47(3) must be restricted to a transfer of a prosecution. An information filed under section 66 of the Primary Courts Procedure

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Act is clearly not a prosecution. Hence the petitioners were not required to give notice of the application to the Attorney-General.

The tests for disqualifying bias are -

(a) the test of real likelihood of bias;

(b) the test of reasonable suspicion of bias

On the application of either test, bias on the part of the Judge has not been established.

The expression 'expedient' in section 46 means advisable in the interests of justice. As there were three connected cases pending, it would promote the ends of justice if the case is transferred to another Primary Court.

Cases referred to:

1. In re Sidie (1948)2 All ER 995, 998

2. Butcher v. Poole Corporation (1942)2 All ER 572, 579

3. Rex v. Sussex Justices, ex parte Me Carthy (1924)1 KB 256

4. R v. Rand (1866) LR 1 Q B 230

5. R v. Camborne Justices, ex parte Pearce (1954)2 All ER 850

6. Metropolitan Properties Co. (F.G.C.) Ltd. v. London (1968)3 All ER 304

7. Regina v. Colchester Stipendiary Magistrate, ex parte Beck (1972)2 WLR 637

8. In re Ratnagopal 70 NLR 409, 435

APPLICATION for transfer of case from Gampaha Primary Court to another Primary Court.

H. L. de Silva, S. A. with Sunil Cooray for respondent - petitioners.

V. S. A. Pullenayagam with Faiz Mustapha, K. Balapatabendi and Miss. Deepali Wijesundera for 1st and 4th respondents.

Dr. Colvin R. de Silva with Faiz Mustapha, S. L. Gunasekera, A. Arunatilake de Silva and K. Balapatabendi for 2nd and 3rd Respondents.

Suri Ratnapala, State Counsel for Attorney-General.

Cur. adv. vult.

07 October, 1982

G. P. S. DE SILVA, J.

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of the application to the Attorney-General in terms of section 47(3) of the Act, Admittedly, the respondents-petitioners (hereinafter referred to as the petitioners) have failed to give notice of this application to the Attorney-General and it was the contention of Counsel that such notice was an imperative requirement under the law. In the absence of such notice, it was the submission of Counsel, that the application had to fail. Both, Dr. de Silva and Mr. Pullenayagam, relied very strongly on the ordinary and natural meaning of the words of subsection (3) of section 47 as the basis of the preliminary objection. Section 47(3) reads as follows:-

"Every person making an application for a transfer under this Chapter, shall give to the Attorney-General and also to the accused or complainant as the case may be, notice in writing of such application together with a copy of the grounds on which it is made. No order shall be made on the merits of the application unless and until at least 48 hours have elapsed between the receipt of such notice and the hearing of such application. Every accused person making an application for a transfer under the preceeding section may be required by the Court of Appeal, in its discretion, to execute a bond with or without surety conditioned that he will, if convicted, pay the cost of the presecution."

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notice to the Attorney-General. He submitted that applications for transfer of cases often alleged bias against judicial officers who are not represented before court. It was suggested that the point of view of the judicial officer could be best presented to court through the Attorney-General and accordingly there is nothing absurd in giving notice of a transfer application even in respect of a civil matter to the Attorney-General. There has been a deliberate change in the law, and Counsel for the respondents strenuously contended that the legislature must be presumed to have said what it meant and meant what it said. The law having been changed from what it was under the Courts Ordinance and the Administration of Justice Law, No. 44 of 1973, Dr. de Silva submitted that no court is entitled to "negate" legislation through a process of interpretation.

State Counsel, Mr. Ratnapala, who appeared on behalf of the Attorney-General as amicus curiae, supported the submissions made by Dr. de Silva and Mr. Pullenayagam, that plain words should be given their plain meaning and that it is the duty of the court to give maximum effect to the language used in the section. State Counsel contended that one consequence of the literal rule is that wide language should be given a wide construction. State Counsel also submitted that all that section 47(3) requires is to give notice to the Attorney-General and not to make him a respondent.

This is a convenient point to consider the parallel provisions in the repealed Courts Ordinance and the Administration of Justice Law, No. 44 of 1973. Section 42 of the Courts Ordinance and section 44 of the Administration of Justice Law contained provisions which are very similar to section 46 of the present Judicature Act. The provisions which are parallel to section 47(1) and 47(2) of the Judicature Act were found in section 43 of the Courts Ordinance and section 45(1) and 45(2) of the Administration of Justice Law. It is section 44 of the Courts Ordinance and section 43(3) of the Administration of Justice Law which speak of an "accused person" giving notice to the Attorney-General. On the other hand, section 47(3) of the Judicature Act speaks of "every person making an application for a transfer" being required to give notice to the Attorney-General. Thus, prima facie, there appears to be a departure from the provision contained in section 44 of the Courts Ordinance and section 45(3) of the Administration of Justice Law.

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It seems to me that the question that arises for consideration is, whether section 47(3) of the Judicature Act is confined to prosecutions or whether it is applicable to all proceedings, civil and criminal. This question cannot be answered by examining section 47(3) in isolation. Sections 46 and 47 have to be read together in order to ascertain the true meaning of section 47(3).

Although section 17(3) speaks of "under this Chapter" there are only two sections (sections 46 and 47) in Chapter VIII, which refer to the power to transfer cases. It is significant that section 46(1) which sets out the subject matter of the transfer, uses the expression "any action, prosecution, proceeding of matter" - - an expression of the utmost generality. The words, "proceeding or matter", signify the residuary class which may not fall within "action or prosecution". This expression occurs thrice in subsection (1) of section 46 and also occurs once in each of the subsections (2) and (3). It is also important to observe that it is section 46(1) which spells out the grounds of transfer applicable to "any action, prosecution, proceeding or matter". In other words, it is section 46 which lays down the grounds of transfer applicable to every kind of proceeding, be it criminal or civil, quasi civil or quasi criminal. Therefore, having regard to the subject matter and the amplitude of the language used, I am of the view that it is section 46 which is the general provision relating to the transfer of every kind of proceeding.

Turning now to section 47, the absence of the expression "action, prosecution, proceeding or matter" or of an expression similar to it, is significant. The difference between the two sections is also apparent on an examination of the structure of section 47. Section 47(1) is limited to "any inquiry into or trial of any criminal offence" and deals with the Attorney-General's power of transfer by the issue of a fiat. Section 47(2) speaks of the steps that may be taken by "any person aggrieved by a transfer made" under section 47(1). Thus, it is clear that subsections (1) and (2) of section 47 are confined to a prosecution.

There follows subsection (3) of section 47, which begins with the very wide words - "Every person making an application for a transfer under this Chapter. . .Mr. H. L. de Silva, Counsel for the petitioners, submitted that the meaning of this collection of words is uncertain. Mr. de Silva posed the question, does it refer to every type of application made under "this Chapter" or to an application made in

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the context of subsection (3) of section 47? In other words, does it refer to a transfer of a "prosecution" or action proceeding or matter"?

Mr. de Silva relied strongly on the words that follow -- "and also to the accused or complainant as the case may be", which, in his submission, pointed unmistakenly only to a prosecution. Mr. de Silva argued that if section 47(3) is a general provision which applies also to a civil action, then the words, "accused or complainant" will not be meaningful since there is no complainant or accused in a civil proceeding. Moreover, if section 47(2) contemplates a civil action, then there is no requirement to give notice to the opposing party, the defendant or the plaintiff as the case may be. Accordingly, Mr. de Silva urged that section 47(3) contemplates a case where the parties on record are the accused and the complainant.

What is more, the giving of notice to the Attorney-General in respect of a transfer of a prosecution is understandable, having regard to the powers conferred on the Attorney-General by the Code of Criminal Procedure Act, No. 15 of 1979. The Attorney-General has a legitimate interest in receiving notice where there is a deviation from the place of inquiry of trial prescribed in the Code or Criminal Procedure Act.

On a consideration of the submissions outlined above, I am of the view that the words, "under this Chapter" in section 17(3), should be given a meaning which is consistent with the rest of the subsection and which harmonises best with the structure of section 47 read as a whole. The phrase, "under this Chapter" takes its colour and content from the words that follow - "and also to the accused or complainant as the case may be". It is necessary to emphasize that section 47(3) contemplates the double requirement of notice to the Attorney-General as well as notice to the accused or complainant, as the case may be. As stated by Lord Greene M.R. in re Sidie (1) - "The first thing one has to do, I venture to think, in construing words in a section of an Act of Parliament is not to take these words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning

249

which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question: 'In this state, in this context, relating to this subject-matter, what is the true meaning of that word'?" Again, in the words of du Parcq, L.J. in Butcher Vs. Poole Corporation (2),

"It is of course impossible to construe particular words in an Act of Parliament without reference to their context and to the whole tenor of the Act."

Thus, in giving a contextual interpretation to section 47(3), there is no departure from the well-recognised canons of statutory interpretation. Having regard to the immediate context in subsection 47(3), the structure of section 47, and considering the fact that section 46 is the general provision which is applicable to every type of proceeding, I am of the view that the "transfer" contemplated in section 47(3), must be restricted to a transfer of a prosecution. An information filed under section 66 of the Primary Courts' Procedure Act, is clearly not a prosecution. I, therefore, hold that the petitioners were not required to give notice of this application to the Attorney-General. The preliminary objection is accordingly overruled.

I shall now proceed to consider the application on its merits and the basis upon which the petitioners seek to have the case transferred from the Primary Court of Gampaha to another Primary Court. Mr. H.L. de Silva, at the outset of his submissions, stated that the ground upon which he relies is section 46(1 )(a) of the Judicature Act but, in the course of his reply to the submissions of Counsel for the respondents, he relied on an alternative ground as well, namely, section 46(1) (d).

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daughters became entitled to the land. The widow and the daughters of Mohideen were negotiating to sell the property from about September 1979. The land was surveyed in October 1979 and the surveyor, in his affidavit, states that he was able to enter the land only with the assistance of the Police. Ultimately the land was sold on 31st March, 1981 by deed No. 4413, attested by Mr. Herman J.C. Perera, to A. N. Munasinghe and D. Munasinghe (hereinafter referred to as the Munasinghe brothers) who are the 2nd and 3rd respondents. Thereafter, on 3rd April, 1981, the Munasinghe brothers sought to take possession of the land but they were prevented from doing so by the 1st petitioner and his sons. This was reported to Hasheeb (1st respondent) who is the brother of the deceased Mohideen and who had assisted in the negotiations to sell the property to the Munasinghe brothers. According to the respondents, the petitioners have no right, title or interest in the land and the 1st petitioners have no right, title or interest in the land and the 1st petitioner was merely the conductor or watcher who had been employed by the deceased Mohideen. Hasheeb made a complaint to the Gampaha Police on 7th June, 1981. Sergeant Austin of the Gampaha Police, conducted inquiries into the complaint of Hasheeb and on 28th August, 1981, filed the information under section 66(1) of the Primary Courts Procedure Act, No. 44 of 1979, which is the subject matter of the present application for transfer. The petitioners, on the other hand, claim title to the land by right of prescription, inheritance and purchase, and they assert that they have been in possession of the land from the last several years. Their claim is founded partly on certain recent deeds of transfer.

Sergeant Austin of the Gampaha Police, has conducted investigations into the claim of title put forward by the petitioners and a prosecution has been instituted (Case No. 14595/B of Magistrate's Court of Gampaha) against the 1st petitioner and members of his family, alleging a conspiracy to forge the deeds relied on by the petitioners. It is to be noted that one of the accused in this prosecution for conspiracy to commit forgery is a daughter-in-law of the 1st petitioner named Punyawathie Jayakody.

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filed in the Magistrate's Court of Gampaha, accusing Sergeant Austin of the Gampaha Police of using criminal force on her with intent to outrage her modesty, an offence punishable under section 345 of the Penal Code. These criminal proceedings (Case No. 3832 M.C. Gampaha) were instituted on 28th August, 1981, which was the same date on which Sergeant Austin filed the information under section 66(1) of the Primary Courts Procedure Act. The allegation is that Sergeant Austin used criminal force on Punyawathie Jayakody in the course of his investigations into the complaint of Hasheeb that the petitioners were refusing to hand over possession of the land to the Munasinghe brothers.

Thus, it is seen that there were three connected cases, two in the Magistrate's Court of Gampaha (M.C. Gampaha Case Nos. 14595/ B and 3832) and one in the Primary Court of Gampaha, pending before the same Judge, since the Magistrate of Gampaha functions also as the Primary Court Judge of Gampaha -- It is in this context that the instant application for the transfer of the case pending in the Primary Court of Gampaha to another Primary Court has been made.

The petitioners, in their application for a transfer of the case, do not specifically allege that they will be denied a' fair and impartial trial. Mr. H.L. de Silva submitted that, having regard to the material placed before this court, he was inviting the court to draw the inference that there was either a "real likelihood of bias" or "a reasonable suspicion of bias" on the part of the Judge against the petitioners. The matters set out in the petition as indicative of bias are:-

(a) that the Judge attended the wedding of Munasinghe's son (paragraph 6 of the petition);

(b) that when the private plaint was filed against Sergeant Austin, "the Magistrate did not issue a summons or warrant as is required by law, but fixed the case for the next working day in the expectation that the accused will then be in court as a prosecuting officer for the Gampaha Police" (paragraph 7 of the petition);

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was in hospital and that seven of his sons were on remand on the allegation of forgery of deeds (paragraph 9 of the petition);

(d) the Judge failed to appreciate the submission made by the lawyers appearing for the petitioners, that there is no basis in law for the prosecution on charges of forgery and accordingly, the several orders of remand were wholly unjustified (paragraphs 10 and 11 of the petition).

Mr. H.L. de Silva invited our attention to the information filed by Sergeant Austin under section 66 of the Primary Courts Procedure Act. He stressed the fact that there was nothing in the report to indicate that there was a threat or likelihood of a breach of the peace at the time the information was filed on the 28th of August, 1981. The attempt by the Munasinghe brothers to take possession of the land was as far back 3rd April, 1981 and the complaint made by Hasheeb to the Gampaha Police was on 7th June, 1981. The information .filed by Sergeant Austin, nowhere states that any incident likely to cause a breach of the peace had occurred between 3rd April, 1981 and 28th August, 1981. Since it is the apprehension of a breach of the peace which determines the jurisdiction of the court in an application made under section 66, Mr. H.L. de Silva submitted that, had the Primary Court Judge perused the information filed before him, it would have been manifest to him that the application could not have been entertained. In regard to the forgery case, Mr. de Silva submitted that, if the Magistrate had perused the reports filed by the Police as he should have done, it would have been clear to him that no offence of forgery was disclosed, for the reason that the allegation was that the impugned deeds were executed to make a false claim to title. Mr. de Silva drew our attention to the relevant journal entries and the submission made by the lawyers appearing for the accused, that this was a civil matter and that the accused should be granted bail. The Magistrate, however, refused all applications for bail and kept the accused on remand for about11/2 months.

The other case before the same Judge was the private plaint filed by the 6th petitioner, Punyawathie Jayakody, against Sergeant Austin, on a charge under section 345 of the Penal Code. Mr. de Silva invited us to examine the journal entries in this case. The plaint in this case was filed on 28.08.81, which was the very date on which Sergeant Austin filed the information under section 66 of the Primary Courts Procedure Act. The prosecution instituted by the 6th petitioner came to an abrupt end on 12 October, 1981, when the Magistrate discharged Sergeant Austin. The journal entry of that date shows that the complainant on being questioned by court, had stated that she is not ready for trial. The Attorney-at-Law appearing for Sergeant Austin, thereupon moved for the discharge of the accused. The Magistrate, in his Order discharging the accused, stated that the complainant has not taken any steps to summon witnesses and that it appears that she is not taking any interest in the matter. Mr. de Silva strenuously contended that this was a perverse order, clearly indicative of bias on the part of the Magistrate, for it was impossible for the complainant, who was on remand on the allegation of forgery since 11.09.81 and who was present in court on 12th October from the remand jail, to have got ready for trial.

Mr. de Silva submitted that the purpose of the Police bringing a charge of forgery and moving for the remand of the petitioners was to remove the petitioners from the land in dispute and to facilitate the taking over of possession by the Munasinghe brothers. It was with the same purpose in view, Counsel contended, that Sergeant Austin filed the information under section 66 and moved for an interim order under section 67(3) of the Act. In short, his submission was that the Police were acting hand in glove with the Munasinghe brothers to ensure that the Munasinghe brothers obtained possession of the land. It was his submission that the filing of an information under section 66 of the Act was a "short-cut" which the Munasinghe brothers have adopted to obtain possession of the land. While the Munasinghe brothers with the assistance of the Gampaha Police were making every endeavour to obtain possession of the land, Counsel submitted, that the trial Judge was repeatedly making clearly wrong orders in all three cases - - orders which were, Counsel contended, always to the detriment of the petitioners and for the benefit of the respondents. Mr. de Silva argued, while he cannot prove actual bias on the part of the Judge yet, having regard to the circumstances in which the several orders were made in the three cases, the petitioners reasonably entertained an apprehensive that they would be denied a fair and impartial trial. It was the contention of Mr. de Silva that the conduct of the Magistrate in the two criminal cases, impinged on his conduct in the case pending before the primary Court.

The question that has now to be considered is whether, the facts set out in the petition (which I have enumerated above) and the conduct of the Judge, having regard to the several orders made by him in all three cases, show that the petitioners would be denied a fair and impartial inquiry. In other words, does it appear that the Judge is biased against the petitioners? At the outset of his submissions, Mr. H.L de Silva referred to the well-known dicta of Lord Hewart, C.J. in Rex vs. Sussex Justices, Ex parte Me Carthy (3):-

"... a long line of cases shows that it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done . . . Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice . . ."

In the subsequent authorities cited before us, two tests for disqualifying bias have been formulated:-

(a) the test of real likelihood of bias; and

(b) the test of reasonable suspicion of bias.

One of the earliest cases in which the test of real likelihood of bias was laid down is R vs. Rand (4), in which Blackburn, J. said:-

"Wherever there is a real likelihood that the Judge would, from kindred or any other cause, have a bias in favour of the parties, it would be very wrong in him to act; . . "

A Divisional Court in R Vs. Camborne Justices ex parte Pearce (5) applied the dictum of Blackburn, J. in R Vs. Rand (supra) and ruled in favour of the "real likelihood" test. The possible difference between the two tests arose from the facts in the case. An information was laid against the applicant under the Food and Drugs Act by an officer of the Cornwell County Council. At the trial of the applicant, Mr. Thomas who had been elected a member of the County Council, acted as clerk to the Justices. After the Justices had retired to consider their verdict, the chairman sent for Mr. Thomas to advise them on a point of law. Mr. Thomas advised the Justices on the point of law but the facts of the case were not discussed at all with him. Having given his advice, he returned to the court. An order for certiorari was sought on the basis that there was a reasonable suspicion of bias because Mr. Thomas was at the time of the trial, a member of the County Council on whose behalf the information was laid against the applicant. It was argued that there was a suspicion of bias but the court rejected that test and stated thus;-

"In the judgment of this court, the right test is that prescribed by Blackburn, J. in R. Vs. Rand, namely that to disqualify a person from acting in a judicial or quasi judicial capacity on the ground of interest (other than pecuniary or proprietory) in the subject matter of the proceeding, a real likelihood of bias must be shown . . The frequency with which allegations of bias have come before the courts in recent times, seems to indicate that the reminder of Lord Hewart, C.J. in R. Vs. Sussex JJ ex parte Me Carthy, that it is 'of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done' is being urged as a warrant for quashing convictions or invalidating orders on quite unsubstantial grounds and, indeed, in some cases, on the flimsiest pretexts of bias. While indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, C.J., this court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done. In the present case, this court is of opinion that there was no real likelihood of bias and it was for this reason that the court dismissed the application . . "

The next important case in which the rule against bias was considered is Metropolitan Properties Co. (F.C.C) Ltd. Vs. Lannon (6). A solicitor sat as chairman of a rent assessment committee to consider an application by the landlords for increases in the rents of several flats. The solicitor's firm had acted for other tenants and the solicitor lived with his father who was tenant of a flat owned by an associate company belonging to the same group as the landlords who had sought an increase in rent. He had assisted his father in a dispute with his landlords. The rent assessment committee fixed as the fair rent of each flat, an amount which was not only below the amount put forward by the experts called at the hearing on behalf of the tenants and the landlords, but also below the amount offered by the tenants themselves. The Court of Appeal held that, on the facts, the solicitor should not have sat as chairman. It would appear that Lord Denning was inclined to adopt the "real likelihood" test but said that it was satisfied if there were circumstances "from which a reasonable man would think it likely or probable that the justice or the chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other", Lord Denning emphasized that "the court looks at the impression which would be given to other people". "The reason" he said " is plain enough, Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking; the Judge was biased." Edmund Davies, L.J., however, adopted the test of "reasonable suspicion of bias" and approved the dictum of Lord Hewart. Danckwerts, L.J. seemed to be inclined to adopt the Hewart approach and said that on the facts, it was "not wise" for the chairman to have acted.

Mr. Pullenayagam cited Regina Vs. Colchester Stipendiary Magistrate ex parte Beck (7) wherein Lord Widgery, C.J. characterized Lord Denning's judgment in Lannon's case (Supra) as "a modern statement of what is meant by bias in the sort of context with which we are now dealing". I find that de Smith's 'Judicial Review of Administrative Action', 4th Edition at pages 263 and 264, cites Lannon's case in support of the "reasonable suspicion" test. A similar view is expressed by Wade in his work on 'Administrative Law1, (4th Edition) at page 411.

Mr. Pullenayagam submitted that not only do the English cases support the test of "real likelihood of bias" but also a Divisional Court of the then Supreme Court adopted the same test in 'in re Ratnagopal" (8). Mr. Pullenayagam referred us to the following passage at page 435-

"The proper test to be applied is, in my opinion, an objective one and I would formulate it somewhat on the following lines; 'Would a reasonable man, in all the circumstances of the case, believe that there was a real likelihood of the Commissioner being biased against him?"

Mr. Pullenayagam submitted that both in principle and on authority, the proper test to apply in relation to an allegation of bias on the part of a judicial officer was the test of "real likelihood of bias".

While I find Mr. Pullenayagam's submission not without attraction, yet, on the facts and circumstances of this case, it is not necessary to give a ruling as to which of the tests is the proper test when an allegation of bias is made against a judicial officer. The reason is that, in my view, the petitioners have failed to prove the allegation of bias on the application of either of the tests.

It is of course not necessary to prove that the judicial officer was, in fact, biased. However, even on the application of the test of reasonable suspicion, it must be shown that the suspicion is based on reasonable grounds -- grounds which would appeal to the reasonable, right thinking man. It can never be based on conjecture or on flimsy, insubstantial grounds. Adopting the words of Lord Denning in Lannon's case (Supra), Mr. Pullenayagam submitted that "bias" in this context would mean, "a tendency to favour one side unfairly at the expense of the other" -- a submission with which I agree.

In this view of the matter, it seems to me that the facts set out in the petition are too remote and too tenuous in character to found an allegation of bias on the part of a judicial officer, who it must be remembered, is one with a trained legal mind. As submitted by Mr. Pullenayagam, it is a serious matter to allege bias against a judicial officer and this court would not lightly entertain such an allegation. The several orders made by the judge in the three cases, which Mr. H.L. de Silva complained were clearly erroneous in law and indicative of bias, are to my mind, at most instances of a wrongful or improper exercise of a discretion. Whatever may be the relationship between Sergeant Austin and the Munasinghe brothers, yet it is not sufficient to impute bias to the Judge. The totality of the circumstances relied on by the petitioners, do not show that the Judge has extended favours to one side "unfairly at the expense of the other" and I accordingly hold that the allegation of bias has not been established. Thus, the first ground on which the transfer is sought (section 46(1 )(a) of the Judicature Act) fails.

I turn now to the alternative ground relied on by Mr. H.L. de Silva -- that the transfer is "expedient on any other ground". I agree with Mr. Pullenayagam's submission that the expression "expedient" in the context means, advisable in the interests of justice. Indeed, the purpose of conferring the power of transfer as provided for in section 46 of the Judicature Act, is to ensure the due administration of justice.

There were three cases pending before the same Judge. They were all "connected cases" in the sense that they had a bearing on the dispute in regard to the possession of "Werellawatte". The charges of forgery were based on deeds alleged to have been executed to support a false claim to title of the land in dispute. The alleged incident relating to the charge of criminal force is said to have taken place in the course of the investigations into the dispute regarding the possession of "Werellawatte". As submitted by Mr. H.L. de Silva, the petitioners in making this application for a transfer, are taking only preventive section. They are not seeking to set aside an order which they allege is bad in law. It so happened that the several orders made by the Judge, tended to operate against the 1st petitioner or one or more members of his family. Having regard to the course the proceedings took in each of these cases, and in particular, the unusual circumstances in which Sergeant Austin was discharged in the criminal force case, thereby denying the complainant of an opportunity of presenting to court her version of the incident, I am of the opinion that it would promote the ends of justice if this case is transferred to another Primary Court.

I accordingly make order that the case be transferred to the Primary Court of Minuwangoda.

In all the circumstances, I make no order as to costs.

Before I conclude, I wish to make it clear, that nothing I have said in the course of this judgment was intended in any way to reflect adversely on the integrity or the conduct of the judicial official concerned.

TAMBIAH. J. - I agree.

Transfer of case ordered.

LOKU BANDA vs UKKU BANDA

1982 - Volume 2 , Page No - 704

SUPREME COURT

SHARVANANDA, J., VICTOR PERERA, J., AND SOZA, J.

S.C. 50/80 ‑ C.A. 49/78, M.C. MAWANELLA 4287

SEPTEMBER 3, 1982

Administration of Justice Law, Sections 62, 63 ‑ Ande rights protected by Agricultural Lands Law ‑ Magistrate's duties when breach of peace is threatened over dispute as to possession rights.

Rasnekkumbura belonged in equal shares to Loku Banda, Ukku Banda and Warsakone. Loku Banda was an ande cultivator of Ukku Banda's lot. Disagreement arose and the matter was referred to the Conciliation Board. All three agreed to a survey and by survey Plan No. 1016 Lot 1 was allotted to Ukku Banda, Lot 2 to Warsakone and Lot 3 to Loku Banda.

On 1.4.76 Ukku Banda cultivated his land but was dispossessed by Loku Banda on 2.4.76. On 8.4.76 Loku Banda was ousted.

The Magistrate inquired into the matter and declared that Loku Banda was entitled to cultivate Lot 1 as ande cultivator while Ukku Banda was entitled to receive his landlord's share until a judgment was given by a competent Court.

The Court of, Appeal reversed the Magistrate's Order on the footing that the right to cultivate was an aspect of possession.

Held

1.That the right to cultivate can vest in a person different from the person who has the right to possession.

2. What the Magistrate had to decide was who was entitled to the right to the cultivate.

3.The Magistrate's finding that Loku Banda had an ande right to cultivate Lot 1 was correct as ande rights are protected by the Agricultural Lands Law and therefore not wiped out by the certificate of the Conciliation Board.

705

Case referred to:

(1) Kanagasabai v. Mylvaganam (1976) 78 NLR 280.

APPEAL from judgment of Court of Appeal.

Sanath Jayatilake for appellant.

Petitioner-respondent absent and unrepresented.

2nd respondent absent and unrepresented.

Cur. adv. vult.

October 27, 1982

SOZA, J.

This appeal raises an important question relating to the interpretation and application of the provisions of sections 62 and 63 of the Administration of Justice Law No.44 of 1973 (now replaced by sections 66 to 72, 74 and 75 of the Primary Courts Procedure Act No.44 of 1979) where Magistrates were called upon to deal with disputes affecting land which are likely to cause a breach of the peace and where only the right to cultivate is in issue.

In the case before us the dispute concerned the right of one Loku Banda the appellant before us to cultivate the one‑third portion of the paddy field called Rasnekkumbura alias Dettapathe Kumbura belonging to M.V. Ukku Banda the first respondent. The whole field called Rasnekkumbura alias Dettapathe Kumbura belonged in equal shares to the said Loku Banda, Ukku Banda and one Warsakone. Loku Banda claimed the right to cultivate not only his own one‑third share but also Ukku Banda's one‑third share as ande cultivator. Disagreement arose among the three owners and the matter was referred to the Conciliation Board of the area. At the inquiry which the Board held on 17.1.1975 the three co‑owners agreed that the field be surveyed and divided into three lots and that each of them would work and from then on possess his separate lot. The Sinhalese words used in the certificate of the Conciliation Board (1D2) are surveyor M.B. Ranatunga and divided in‑to three equal lots on 13.3.1976 and 9.4.1976. The three lots were depicted in Ranatunga's plan No.1016 which though marked 1D1 in the proceedings before the Magistrate is not before us. Ukku Banda was allotted Lot 1, Warsakone Lot 2 and Loku Banka Lot 3 in the said plan. Upon the division being made Ukku Banda began to cultivate Lot No.1 but Loku Banda lost no time in claiming his rights to be the ande

706

cultivator of the same Lot. The dispute led to complaints to the Police being lodged by both Loku Banda and Ukku Banda and the Officer in Charge of the Aranayake Police Station who is the 2nd respondent before us filing An information on 7.5.1976 relating to the dispute before the Magistrate of Mawanella.

At the inquiry before the Magistrate Loku Banda contended that at no stage had he surrendered his ande rights and to establish the existence of these rights he produced convincing proofs. He claimed the right to cultivate Lot No.1 which had been allotted to Ukku Banda at the division concluded on 1.4.1976 and he maintained that he had in fact cultivated this Lot from 2.4.1976 till 8.4.1976 when he was obstructed by Ukku Banda. Ukku Banda relied on the settlement entered before the Conciliation Board in terms of which he claimed he was entitled to cultivate and possess Lot 1 and he said he had in fact entered into possession of it on 1.4.1976 and begun to cultivate it when on 2.4.1976 he was disturbed by Loku Banda.

The learned Magistrate inquired into the matter and by his order dated 9.11.1977 for which he gave his reasons on 23.11.1977 declared that Loku Banda was entitled to cultivate Lot 1 as ande cultivator while Ukku Banda was entitled to receive his landlord's share of the income of Lot 1. Ukku Banda was ordered not to obstruct Loku Banda from cultivating Lot 1 until the tenancy rights pertaining to this Lot were resolved in the appropriate forum. The learned Magistrate felt that no question of the wiping out of the ande rights of Loku Banda had arisen before the Conciliation Board. Indeed such a question could only be dealt with under the provisions of the Agricultural Lands Law No.42 of 1973 by the institutions referred to there.

It is beyond question that the rights of an ande cultivator are, except in the limited circumstances referred to in the Agricultural Lands Law, virtually unassailable and inalienable. Further the proceedings before the Conciliation Board do not show that Loku Banda expressly waived his ande rights. A landlord can work and used in Board do not necessarily imply that Loku Banda waived his ande rights. The ande rights which Loku Banda had, attached to the soil rights of Ukku Banda. So at the partition which the co‑owners effected those ande rights attach themselves to the particular Lot, here Lot 1, which Ukku Banda was awarded. In these circumstances

707

the view of the Court of Appeal that the agreement for Ukku Banda to work and possess Lot 1 wiped out the rights Loku Banda had to cultivate it in the exercise of his ande rights, is not supportable.

The legal provisions under which the Magistrate could have acted are set out particularly in sections 62 and 63 of the Administration of Justice Law No.44 of 1973. The Magistrate has jurisdiction to act under those sections when the existence of a dispute affecting any land situated within his territorial jurisdiction and likely to cause a breach of the peace is reported. The expression "dispute affecting land" according to s.62(4) of the Administration of Justice Law includes any dispute:

(a) as to the right to possession of any land, or part of a land, or

(b) as to the boundaries of any land or part of a land, or

(d) as to the right to the crops or produce of any land or part of a land, or

(e) as to any right in the nature of a servitude affecting the land.

The definition is not exhaustive. Subsections 1,2,3 and 4 of section 63 apply when the dispute relates to the right to possession of any land or any part of a land, that is, a dispute falling under (a) above. Subsections 5 and 6 of this section apply when 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, that is, a dispute falling under (b) to (e) above.

The Court of Appeal proceeded on the footing that the right to cultivate is an aspect of possession which cannot be dissociated from possession. As a general proposition this is not invariably true. The right to cultivate can vest in a person different from the person who has the right to possession. The statute itself recognizes this distinction and has spelt out provisions for disputes relating to possession of a land or part of a land which are different from the provisions relating to rights in a land or part of a land other than the right to possession. When the dispute relates to possession the Magistrate must determine who was in possession on the date when he issued notice on his having reason to believe that there was in existence a dispute affecting land and likely to cause a breach of the peace or within two months prior to the issue of such notice where a forcible dispossession has occurred. The order which the Magistrate then makes will declare which of the disputants is entitled to possession and prohibit all disturbance to his possession until he is evicted under the judgment,

708

order or decree of a competent court. Where there has been forcible dispossession within the period of two months prior to the date of the, issue of notice the Magistrate may in addition to such declaration and prohibition, direct that the party specified in his order be restored to possession. When the dispute relates to possession, the Magistrate may make his determination without reference to the merits of the rival claims of the parties ‑ see the proviso to subsection 7 of section 63.

Where the dispute relates to any right to any land or part of a land other than the right to possession, the Magistrate will declare that the person named in his order is entitled to the disputed right until he is deprived of it by virtue of the judgment of a competent court and prohibit all disturbance or interference with the exercise of such right other than under the authority of such judgment. The proviso to subsection 7 of section 63 does not apply here. Hence by implication the Magistrate would have to consider the merits of the rival claims in deciding who is entitled to the disputed right. This he will do on the basis of the material before him. The order which the Magistrate makes may also contain directions as to the exercise of the right or the sale of the crop or produce and as to the custody and disposal of the proceeds of such sale. It is significant that when the order of the Magistrate relates to the right to possession it could be made without reference to the merits of the claims of the disputants and it is operative until eviction is ordered by the judgment, order or decree of a competent Court whereas when it relates to any other right it must be made after consideration of the merits of the rival claims on the basis of the statements of the rival parties and such evidence as may have been admitted by the Magistrate in his discretion and his order is operative until deprivation of that right by a judgment of a competent Court. The omission of the words "order or decree" is not without significance ‑ see subsections 2 and 6 of s.63. Here I would like to add that I reserve my opinion as to whether a competent civil court cannot by an interim injunction or order appointing a receiver, direct the eviction of the person secured or put in possession by the Magistrate as we did not hear argument on the question.

It is clear then that the approach prescribed by the statute when the dispute relates to the possession of a land or part of a land is different from the approach prescribed when the dispute relates to a right other than the right to possession. Therefore it would not be correct to treat the right to cultivate as an aspect of the right to possession for the purposes of the application of the provisions of

709

section 63. The decision of Sharvananda, J. in Kanagasabai v Mylvaganam (1) on which reliance appears to have been placed by the Court of Appeal would not be applicable to the instant case because that was a case where the subject, of the dispute was the right to possession of a land ‑ business premises to be exact.

Given that here was a dispute affecting land which was likely to cause a breach of the peace, all that the learned Magistrate was called upon to do in the instant case was to decide who was entitled to the right to cultivate the disputed Lot. The evidence strongly supports the Magistrate's finding that Loku Banda was the and ecultivator of Ukku Banda's share and was entitled to the right to cultivate it and that after the division these ande rights attached to the disputed Lot 1. The reference to working and possessing the field in the certificate 1D2 of the Conciliation Board cannot wipe out the ande rights of Loku Banda which are under the statutory protection of the provisions of the Agricultural Lands Law.

The appeal is therefore allowed and, the judgment of the Court of Appeal is set aside and the order of the Magistrate restored. In view of the circumstances under which the present dispute arose I award no costs.

SHARVANANDA, J. ‑ I agree.

VICTOR PERERA, J. ‑ I agree.

Appeal allowed.

WEERASINGHE v. SEPALA

Sri Lanka Law Reports

1996 - Volume 2 , Page No - 229

SUPREME COURT

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

WIJETUNGA, J. AND

ANANDACOOMARASWAMY, J.

S. C. APPEAL NO. 72/95

C. A. APPLICATION NO. 1324/86

M.C. KEGALLE NO. 60857/85

14th June, 1996.

Primary Courts Procedure Act ‑ Right of a tenant cultivator to cultivate a paddy land ‑ Right to possession of land ‑ sections 68, 69 of the Act.

An Assistant Commissioner of Agrarian Services ordered the Appellant (Landlord) "to give possession" of a paddy land to the Respondent to cultivate it as the lawful tenant cultivator. This order was not complied with; whereupon the Respondent disturbed the possession of the land by the Appellant. The Primary Court Judge, after inquiry, ordered the "restoration of possession" to the Appellant.

Held:

The order of the Primary Court Judge should have been under section 69 and not under Section 68 of the Primary Courts Procedure Act, as the dispute is not the right to possession but the right to cultivate.

Cases referred to:

1. Loku Banda v. Ukku Banda (1982) 2 Sri L. R. 704.

2. Ramalingam v. Thangarajah (1982) 2 Sri L. R. 693.

APPEAL from the judgment of the Court of Appeal.

J.C. Weliamuna for Appellant.

Respondent absent and unrepresented.

Cur. Adv. vult

2nd August, 1996.

ANANDACOOMARASWAMY, J.

This is an appeal from the judgment of the Court of Appeal allowing the application to revise the order of the Primary Court Judge and setting aside the order of the Primary Court Judge and directing the learned Primary Court Judge to hold a fresh inquiry on the dispute as to whether the Petitioner (now Petitioner‑Respondent) is entitled to the right to cultivate the field as tenant‑cultivator, if the parties so desire.

The facts relevant to this appeal are briefly as follows:

The Respondent to this appeal was served with an order of eviction from a paddy land for non payment of rent in terms of section 18 of the Agrarian Services Act. Consequent to the said order, on or about 14.10.83, the Appellant took over possession of the land and the Respondent was in fact evicted. The Respondent instituted an application for a writ of Certiorari seeking to quash the said order of eviction. By order dated 5‑7‑85, the Court of Appeal quashed the said order of eviction and directed the Respondent to deposit Rs. 2,598/with the Asst. Commissioner of Agrarian Services Kegalle within two weeks; and failure to comply with the said order would result in eviction. This was complied with. Therefore the said Asst. Commissioner by his letter dated 23.8.85 ordered the Appellant to give possession of the land to the Respondent to cultivate the said field as the lawful tenant cultivator. The Appellant did not comply with the said order. On 4.9.85 the Respondent disturbed the possession of the land by the Appellant, when the Respondent went to cultivate the said field. Hence the Police the Complainant‑Respondent‑Respondent filed an action in the Primary Court and the Primary Court Judge after inquiry ordered the restoration of possession to the Appellant, which order was set aside by the Court of Appeal holding that the order by the Primary Court Judge should have been under section 69 and not under section 68 of the Primary Courts Procedure Act, as the dispute is not the right to possession but the right to cultivate. The Court of appeal therefore set aside the judgment of the learned Primary Court Judge and directed a fresh inquiry as to the right to cultivalte and not as to the right of posession, if parties desire.

In Loku Banda v. Ukku Banda(1) it was held that, "the right to cultivate can vest in a person different from the person who has right to possession". As the issue before Court was whether the Respondent had the right to cultivate the said field the right to possession does not arise and therefore the decision in Ramalingam v. Thangarajah(2) has no application to the facts of this case, and the learned Primary Court Judge misdirected himself in proceeding to inquiry in this case on the basis that it is a claim to possession of the said paddy field. and the Court of Appeal rightly set aside the judgment of the learned Primary Court Judge. However the Court of Appeal granted leave to appeal to this Court.

For these reasons we dismiss the appeal. No costs.

G. P S. DE SILVA, C.J. ‑ I agree.

WIJETUNGA, J. ‑ I agree.

Appeal dismissed.

O.I.C Kotahena Vs. DEWASINGHE

1983 - Volume 2 , Page No - 149

COURT OF APPEAL

SENEVIRATNE, J., ABEYWARDENA, J. AND G. P. S. DE SILVA, J.

C.A. REVISION APPLICATION NO. 428/81

PRIMARY COURT OF COLOMBO

CASE NO. 99310/3

29 MARCH 1983.

Primary Courts Procedure Act No. 44 of 1979, Ss. 66, 67 and 68‑Are time limits prescribed In Ss. 66 and 67 mandatory or directory .

Held ‑

Non compliance with the provisions of section 67(1) of the Primary Courts Procedure Act in regard to time limits will not vitiate the proceedings as these time limits are directory.

Cases referred to:

1. Kanapathipillai Ramalingam v. Sinnathamby Thangarajah ‑ S.C. 6/82 ‑C.A./L.A. (SC) 5/82/CA Appln. No. 2463/80 ‑ Primary Court Akkaraipattu Case No. 398.

APPLICATION for revision of order of the Judge of the Primary Court Akkaraipattu

H. W. Jayewardene, Q.C. with S. L. Gunasekera for 2nd respondent V. S. A. Pullenayagam with T B. Dilimuni and Miss Mangalam Kanapathipillai for 1st respondent‑petitioner.

Cur. adv. vult

14 JULY 1983

SENEVIRATNE, J.

On 12/14.1.1980 the Officer‑In‑Charge Crimes Branch Kotahena Police Station filed an information in terms of section 66 (1) (a) (i) of the Primary Courts Procedure Act No. 44 of 1979 in the Magistrate's Court of Colombo, informing the court that there was a dispute affecting land in respect of premises No. 478/07 Bloemendhal Road, Kotahena which was likely to lead to a breach of peace among the respondents named in the information to wit Nuwarapaksage Sisilin Dewasinghe 1st respondent‑Petitioner and St. Elmo Gunasekera, Director, George Steuart & Company Ltd., 2nd respondent‑ respondent.

After the respondents filed their affidavits and submissions the learned Primary Court Judge commenced the inquiry on 17.8.1980. The recording of the evidence was concluded on 27.2.1981. Written submissions were tendered on 5.3.1981 and the order of the learned Primary Court Judge was delivered on 23.3.1981. There is no need to go into the facts of this case in detail. The evidence revealed that these premises had been what is known as "Keera Land", and according to the evidence a part was cultivated with keera and the rest was grassland. Both the 1st Respondent‑Petitioner and the 2nd Respondent Elmo Gunasekera on behalf of George Steuart & Company limited claimed possession of the land. The learned Primary Court Judge adopted the correct test for the purpose of this inquiry under section 68(1) of the Act by stating that the matter for his determination was as to who was in possession of the land on the date of the filing of the information under section 66". Having considered the voluminous evidence led the learned Primary Court Judge held that as " on the date of the filing of the information" the 2nd Respondent Elmo Gunasekera on behalf of George Steuart & Company Limited, was in possession of the land, and made order on 23.3.1981 under Section 68(1) and 68(2) of the said Act Sisilin Dewasinghe 1st respondent‑petition has filed this application in revision in this court to revise the said order made by the learned Primary Court Judge on 23.3.1981. The grounds on which this application is made are: -

(a) That the judgment is contrary to the express provisions of section 67(2) of the Primary Courts Procedure Act and

(b) There was a wrong finding on facts.

At the hearing of the application only the point off law in ground (a) that the judgment was contrary to the express provisions of section 67(2) of the Primary Courts Procedure Act was urged.

Section 67(2) is as follows: ‑ The Judge of the Primary Court shall deliver his order within one week of the conclusion of the inquiry ". Before proceeding further, at this stage I will express my opinion on this submission even though such opinion will not materially affect this case. The recording of the evidence was concluded on 27.2.1981. Section 72(C) permits the Primary Court Judge to call for written submissions. In this instance written submissions has been filed on 5.3.1981. My view is that in respect of Section 67(2) the period of one week should he computed from 5.3.1981 as there is a statutory provisions for the Primary Court Judge to permit written submissions.

This application in revision came before a Bench of two Judges, and as there was a conflict in the judgments regarding the interpretation of Section 67(2) and as a disagreement arose between the two Judges constituting that Bench, this matter was referred to a Bench of three Judges in terms of Article 146(3) of the Constitution.

This matter came up before a Bench of three Judges on 29.3.1983. By that time the Supreme Court had delivered its judgment in the case of Kanapathipillai Ramalingam v. Sinnathamby Thangarajah,1 (unreported case). In this Appeal, the Supreme Court made a ruling as to whether certain provisions of the Primary Courts Procedure Act, which I will refer to, were mandatory. In Ramalingam's case the information had been filed by the police on 10.12.1979, the inquiry commence on 17.9.1980, and was concluded by a settlement on 24.9.1980. Objection was taken to the proceedings of this case by the petitioner on the ground that as that inquiry was " not concluded " within three months of the commencement of the inquiry in accordance with the mandatory provisions of Section 67(1) the proceedings of that inquiry were a nullity. The immediate question of law which the Supreme Court had to deal with in Ramalingam's case was whether the provision of section 67(1) of this Act was directory or mandatory.

At the hearing of this application the learned Attorney‑at‑law for the 1st respondent‑petitioner Mr. V. S. A. Pullenayagam submitted that in Ramalingam's case the Supreme Court held that the provisions of section 67(1) were directory and that in that case the Supreme Court did not give a ruling on the nature of section 67(2) of the Act which is relevant to this application. The dicta pertaining to section 66 and Section 67(2) were made obiter. Mr. H. W Jayawardane, Q. C. Attorney‑at‑law for the 2nd respondent submitted that the ruling of the Supreme Court in Ramalingam's case included a ruling on section 67(2) also, as its ratio decidendi.

I will now consider the above submissions made.

It is clear from the judgment of Sharvananda J. that though that appeal was specifically related to section 67(1) of the Act, the Supreme Court has considered the broader issue whether the violation of the mandatory provisions of part 7 of the Primary Courts Procedure Act makes the proceedings of the Primary Court null and void. Part 7 is the Chapter of the Act which deals with " inquiry into disputes affecting land ", and where a breach of peace is threatened or likely. The mandatory provisions of this part 7 are section 66(3), 66(4), 66(5), 66(6), 66(7), 67(1) and 67(2). In dealing with the question as to whether these provisions were directory or mandatory, Sharvananda, J. stated as follows: ‑ " The question was raised as to what was the consequence of the failure of the Judge to observe the time limits prescribed for various acts and steps leading to a determination and order under section 68 ... It is to be noted that the statute does not declare what shall be the consequences of non‑compliance by court with regard to this requirements as to the times prescribed by law ". Sharvananda. J, having considered the provisions referred to above at length finally came to this conclusion ‑ " I am, therefore, of the view that the provisions as to time limit in section 66 or 67 though the words "shall" suggest that they are mandatory should be construed as being directory and the non‑compliance by Court of the provisions of section 66 or 67 of the Act does not divest the court of jurisdiction conferred on it by section 66(2) to make determination and order under Section 68 ". This dictum cited above from the said judgment clearly shows that the Supreme Court has considered the nature of the provisions of both sections 67(1) and 67(2). As such the judgment in Ramalingam's case cannot be restricted to a ruling only on the nature and effect of section 67(1) of the Act. In view of the judgment referred to above, I hold that the non‑compliance by the learned Magistrate of the provisions of section 67(1) of the Primary Courts Procedure Act has not vitiated the proceedings. The learned Primary Court Judge in the course of his order has in several instances stated as to why this inquiry could not be completed within the period of three months as specified in Section 67(1).

The application is dismissed.

ABEYWARDANE, J. ‑ I agree.

G. P. S. DE SILVA, J. ‑ I agree.

Application dismissed.

HOTEL GALAXY (PVT) LTD v. MERCANTILE HOTELS MANAGEMENT LTD.

1987 1 SLR 15

SUPREME COURT.

SHARVANANDA, C.J. ATUKORALE, J. AND H. A. G. DE SILVA, J.

S.C. APPEALS 26/85 AND 27/85.

C.A. 1379/84.

D.C. COLOMBO 4806/Z.

JUNE 16, 17, 18. 19 AND 20 AND JULY 7, 8, 9 AND 10, 1986.

Arbitration-Arbitration agreements-Scott v. Avery clause-Arbitration Ordinance ss. 4 and 7 - Discretionary power of court - Waiver - Contract of employment or agency - Specific performance - Possession - Injunction - Enjoining order - Section 666 of C.P.C. - Ex parte order - Vacation of enjoining order - Interim order under s. 67 of the Primary Courts Procedure Act - Suppression of material facts.

The 1st defendant, Hotel Galaxy (Pvt) Ltd., owned premises No. 388, Union Place, Colombo 2, where it was in the process of completing the construction of a hotel. By agreement P1 of 7.7.1983 the 1st defendant appointed the plaintiff, Mercantile Hotels Management Limited, as Managing Agents of the hotel for six years to manage and operate the hotel on its behalf engaging the necessary staff who too were to be in the sole employ of the 1st defendant. The plaintiff would receive a percentage of the gross annual profits of the hotel. In pursuance of the agreement P1 the plaintiff commenced commercial operations of the hotel about 24.8.1983. About 30.8. 1984, the 2nd and 3rd defendants who were the only Directors of the 1st defendant with the aid of about 30 thugs ejected the 1st defendant's General Manager and took over the hotel. The General Manager complained to the Police who on 31 .8.1983 instituted proceeding in the Primary Court under section 66 of the Primary Courts Procedure Act. An application was made on 31 -8.1983 for an interim order (under s. 67 of the Act) but the court deferred consideration of the matter for later. Thereafter on 3.9.1982 the plaintiff filed a plaint in the District Court seeking inter alia specific performance of the agreement P 1 and restoration of possession of the hotel and an interim injunction restraining the defendants from interfering with the plaintiff's management of the hotel. When the application for the interim injunction was supported the 1st defendant was represented and objected to the jurisdiction of the court on the ground that the agreement P 1 stipulated arbitration as a condition precedent to any right of action but made no representations on the application for interim injunction. The court then issued an enjoining order but on representations being made by the defendants suspended its operation. The plaintiff then filed an application in the Court of Appeal to have order suspending the operation of the enjoining order revised and also an application for leave to appeal. The Court of Appeal acting in revision set aside the order suspending the operation of the enjoining order. The 1st defendant and the 2nd and 3rd defendants appealed to the Supreme Court.

Held :

(1) Arbitration clauses in contracts are of two main kinds, namely (a) bare arbitration agreements where the provision for arbitration is a mere matter for procedure and does not include right of action on the contract itself but here the party against whom an action is brought can invoke the exercise of the discretionary power of the court to stay proceedings until an arbitration is held. (b) agreements making an arbitrator's award a condition precedent to any right of action which will then be bound not on the original contract but on the arbitral award. Such a provision known as a Scott v. Avery clause bars the institution of a suit without prior recourse to arbitration culminating in an award. In England however the courts are vested with discretionary jurisdiction to override a Scott v. Avery clause in suitable cases and to treat it as a mere arbitration clause.

(2) The arbitration clause is not displaced or abrogated by repudiatory breaches of the contract unless the contract itself or arbitration clause itself is invalid or not binding on the parties or the parties have waived it or are estopped from relying upon it.

(3) In the instant case clause 10 of the agreement P1 is a Scott v. Avery clause making arbitration a condition precedent and as there was no recourse to prior arbitration the District Court had no jurisdiction to entertain the suit.

(4) The relationship between the 1st defendant and the plaintiff was that of principal and agent or master and servant. Hence the remedy which the plaintiff can have is damages and not specific performance.

(5) Possession can be immediate or direct or it can be mediate that is by an agent or servant or licencee. In all cases of mediate possession two persons are in possession of the same thing at the same time. In the instant case legal possession, construction it may be, has been with 1st defendant and never left it. The 1st defendant possessed the hotel through the plaintiff who was its Managing Agent.

(6) The defendant could not in law have been restrained or enjoined.

Per Sharvananda, G. J.

"As ex-party enjoining orders and orders for interim injunctions may work grave hardship and injustice to parties who have not been heard, grave responsibility rests on a judge to exercise the discretion vested on him, judicially having due regard to the law...'(7) The operation of an enjoining order can be suspended.

(8) A party seeking to canvass an order entered ex-party against him must apply in the first instance to the court which made it. This is a rule of practice which has become deeply ingrained in our legal system.

(9) It is settled law that the exercise of the revisonary powers of the appellate court is confined to cases in which exceptional circumstances exist warranting its intervention.

(10) The order of the Primary Court Judge was in the nature of a temporary refusal of the interim order and was a material fact which should have been disclosed by the plaint in his application for the interim injunction.

A Primary Court Judge has jurisdiction to make an interim order under s. 67 at any time after proceedings are instituted until conclusion of the inquiry and not only at commencement of the inquiry.

Cases referred to:

(1) Scott v. Avery (1865) 5 H. L. Case 811.

(2) Bristol Corporation v. John Aird & Co. -1913 A. C, 214, 259.

(3) Heyman v. Darwing Ltd. 1942 - 1 All ER. 337 & 347 & 349.

(4) Preshwater v. Western Australia Assurance Co. Ltd. - 1933, 1 K. B. 515, 523.

(5) Dennehy v. Bellamy-1938, 2 All E. R. 262, 264.

(6) Soysa v. Ranasinghe (1917) 16 N.L.R. 222.

(7) Radford v. Hair 1971, 2 All E.R. 1089.

(8) Toronto Rly. Co. v. National British and Irish Millers Insurance Co., Ltd.(1914) 111 L.J. 553.

(9) Hickman & Co. v. Roberts 1913 A. C. 229.

(10) Englesham v. Macmaster 1920, 2 K. B. 169.

(11) Jureidini v. National British & Irish Millers Insurance Co., Ltd.- 1915, A. C. 499, 505.

(12) Johnson v. Shrewbury Railway Co. -(1853) 3 De G -G914 at 926

(13) Stocker v. Brocklebank-3 Mac. & G. 250.

(14) Frances v. Municipal Councillors of Kuala Lumpur- 1962 3 W.L.R. 633, 637.

(15) Vine v. National Dock Labour Board- 1957 A. C. 488, 500.

(16) Jinadasa v. Weerasinghe- (1928) 30 N. L. R. 283.

(17) Stasen Exports Ltd., v. Hebutulabhoy & Co., Ltd. - 1984 1 S.L.R. 129.

(18) Gordon Frazer & Co. Ltd. v. Jean Marie Losio and Martin Wenzel- 1984 2 S. L. R.914 at 926.85

(19) Loku Menika v. Selenduhamy- (1947) 48 N.L. R.353.

(20) Habibu Lebbe v. Punchi Etana-(1894) 3 C.L.R. 85.

(21) Caldera v. Santiagopulle-(1920) 22 N.L.R. 155, 158.

(22) Weeratne v. Secretary D. C., Badulla-(1920) 2 C. L. Rec. 180.

(23) Dingihamy v. Don Bastian-(1962) 65 N.L.R. 549

(24) Bank of Ceylon v. Liverpool Marine & General Insurance Co. Ltd. -(1962) 66N.L.R. 472.

(25) Nagappan v. Lankabarana Estates Ltd.-(1971) 75 N.L.R. 488.

(26) Bambarakelle Estates Tea Co. v. Goonewardena-2 Browne's Rep. 78.

(27) Alphonso Appuhamy v. Hettiaratchi-(1973) 77 N. L. R. 131.

(28) Moosaiees Ltd. v. Eksath Engineru Saba Samanaya Kamkaru Samithiya - (1976) 79 (1) N. L. R 285.

(29) Muthukumarasamy v. Nannithamby-C.A. Re. Appln. 1551/52, C.A. Mins of 3.3.1983, 1983 1 Sri Kantha's Rep. 55.

Dr. Colvin R. de Silva, with Faiz Mustapha, G. G. Arulpragasam and D. Phillips for 1st defendant-appellant in S.C. Appeal No. 26/85.

Eric Amerasinghe, P. C. with Faiz Mustapha and Miss D. Guniyangoda for the 2nd and 3rd defendant-appellants in S.C. Appeal No. 27/85.

Dr. H. W Jayewardene, Q. C. with Chula de Silva, Miss Meevanapalana, Ravi Algama and l. K. Sivaskantharajah for plaintiff-respondent in S.C. Appeal No. 26/85.

H. L. de Silva, P.C. with Chula de Silva, Miss Meevanapalana, Ravi Algama and l. K. Sivaskantharajah for the plaintiff-respondent in S.C. Appeal No. 27/85.

Cur. adv. vult

October 30, 1986.

SHARVANANDA, C.J.

I gratefully adopt in its entirety the reasoning in the judgment of Atukorale, J., as leading to the conclusion that the two appeals should be allowed. I only add in my own-words additional grounds for allowing the appeals.

The learned District Judge erred in issuing an enjoining order in the first instance. However, he later correctly vacated the enjoining order.

Arbitration clause 10 of P 1 (the agreement between the parties) provides as follows

"10. If during the continuance of this agreement or at any time after the termination thereof any difference or dispute shall arise between the parties hereto whether in regard to the interpretation of any of the provisions herein contained or any matter or thing in regard to this agreement such difference or dispute shall be forthwith referred to the final award of a single arbitrator in case the parties can agree upon one and otherwise to two arbitrators one to be appointed by each party and in the event of disagreement between such arbitrators thereto an umpire to be appointed by the arbitrators in writing. If either party shall refuse or neglect to appoint an arbitrator after the other party shall have appointed and shall have served or posted under registered cover written notice upon. such refusing or neglecting party requiring such party to make such appointment or shall appoint an arbitrator who shall refuse to act, then the arbitrator appointed as

aforesaid shall at the request of the party appointing him proceed to hear and determine the matter in difference or dispute as if he were an arbitrator appointed by both parties. The decision of the arbitrator or arbitrators or their umpire (as the case may be) shall be binding upon each of the parties hereto and the cost of the reference and award shall be in the discretion of the arbitrator/arbitrators or umpire who may direct to and by whom and in what manner the same or any part thereof shall be paid. The making of an award upon a reference to arbitration shall be a condition dent to any right of action against any of the parties hereto in respect of any or all disputes or * differences arising or pertaining to this agreement."

Arbitration clauses in contracts are of two main kinds, namely:

(1) bare arbitration agreements, when the parties agree that disputes arising out of the contract --hall be referred to arbitration, here, the provision for arbitration is a mere matter of procedure for ascertaining the rights of parties with nothing in it to exclude a right of action on the contract itself but leaving it to the party against whom an action may be brought to apply to the discretionary power of the court to stay proceedings in the action in order that the parties may resort to the procedure to which they have agreed.

(2) agreements making an arbitrator's award a condition precedent to any right of action under the contract based not upon the original contract but upon the award made under the arbitration clause.

The parties to a contract may agree that any dispute arising out of it, including the question of liability as well as that of the amount of damages shall be referred to arbitration and that the obtaining of an award shall be a condition precedent to the right to bring an action on the contract. Where such an agreement has been made, no right of action arises on the contract until the amount of the liability has been ascertained by arbitration. In such a case, the cause of action is not complete until arbitration has taken place in accordance with the clause and an award has been made. Scott v. Avery (1).

Under the English Arbitration Act 1889, section 4, the court is given a discretionary power to stay an action brought in breach of a bare arbitration clause Section 7 of our Arbitration Ordinance No. 15 of 1866 (Cap. 98, vol. IV, L. E. at 134) similarly vests our courts with similar discretionary power to stay an action instituted in breach of a bare arbitration clause. Such a clause, therefore, though absolute in terms is qualified in the sense that it is subject to the overriding discretion of the court. It is prima facie the duty of the court to enforce the agreement of the parties to resort to the tribunal that they themselves have chosen. Accordingly, once the party applying for a stay has shown that the dispute falls within a valid and subsisting clause, the onus of showing that a stay should be refused is on the other party. Bristol Corporation v. John Aird & Co. (2). A bare agreement to arbitrate cannot be pleaded in bar of an action on the contract. But under an agreement with Scott v. Avery clause, the right to bring an action depends upon the result of the arbitration ; arbitration followed by an award is a condition precedent to an action being instituted. Where a dispute is governed by such a condition an action in respect of that dispute cannot succeed. On such an arbitration clause, arbitration is not a mere matter of procedure, but the proceeding to arbitration is essential to a right of action in the plaintiff. But there is statutory provision in English Law vesting the court with discretion to override a Scott v. Avery clause.

Section 25(4) of the English Arbitration Act, 1950 re-enacting Arbitration Act 1934, section 3(4) states that -

"Where it is provided ... that an award under an arbitration agreement shall be a condition precedent to the bringing of an action with respect to any matter to which the agreement applies, the High Court may order that the provision making an award a condition precedent to the bringing of an action shall cease to have effect as regards that dispute "

Thus English Law gives the court a discretion in suitable cases, to treat the Scott v. Avery clause as a mere arbitration clause. But our law has remained static with section 7 of the Arbitration Ordinance of 1866. There is in our law non statutory provision vesting the court with any such discretion to treat the Scott v. Avery clause as a mere arbitration clause; thus our courts are bound to give effect to the agreement of the parties that no cause of action should accrue until liability under the contract is determined by an arbitral award. This

mandatory reference to arbitration is not a matter of procedure but a question of the liability to perform the promise which is contained in the arbitration clause. The argument that the plaintiff could bring an action without first resorting to arbitration may be quite effective if the relevant clause of the contract between the parties is a mere arbitration clause but it is not effective in the case of a Scott v. Avery provision by reason of the fact that the contract provides for one liability for breach of the contract, viz. liability stemming from the arbitral award. The Scott v. Avery provision is a condition precedent to the creation of liability rather than an exception to a liability which has accrued independently of the clause. It is not displaced by repudiatory breaches of the contract. It survives for determining the mode of settlement of the claims arising out of the breaches. Where such an arbitration clause is provided for by the parties as a method of settling disputes between them. A repudiation of the contract does not vitiate such a clause. The arbitration clause remains in force to settle all claims that fall within its ambit:

"What is commonly called repudiation or total breach of a contract... does not abrogate the contract, though it may relieve the injured party of the duty of further fulfilling the obligation, which he has, by the contract, undertaken to the repudiating party. The contract is not put out of existence. It survives for the purpose of measuring the claims arising out of the breach and the arbitration clause survives for determining the mode of their settlement." Per Lord Macmillan Heyman v. Darwing Ltd. (3).

In its plaint dated 3.9.84, the plaintiff states inter alia, in paragraph 6 as follows:

"On or about 7.7.83 the plaintiff and the 1st defendant entered into an agreement with respect to the said hotel under construction, a true copy of which is annexed herewith marked P 1 and pleaded as part and parcel of this plaint. The said agreement provided as follows:

(a) The plaintiff was appointed as Managing Agents for a period of 6 years from the date of commencement of commercial operations or until the recovery of the profits or income accruing to the plaintiff which shall be paid by the 1st defendant whichever is greater.

(b) The plaintiff shall operate the said hotel at the expense of the 1st defendant and the 1st defendant shall warrant the plaintiff the uninterrupted control over the operations of the said hotel and the 1st defendant shall not in any way interfere with the day to day running of the said hotel.

(c) The 1st defendant shall be entitled to terminate this agreement after the commencement of commercial operations if the hotel fails to operate towards a profit margin necessary to meet the required commitments in relation to the payment of presently existing loan instalments and interest.

(d) To recruit and train staff and other personnel.

(e) To arrange for the working capital to commence operations of the said Hotel."

Para 13- "On or about 30th August 1983 the 2nd and 3rd defendants above named acting together and in concert and in collusion and the 1st defendant acting through its directors the 2nd and 3rd defendants wrongfully and unlawfully brought into the said hotel premises nearly 30 thugs disrupting the operations of the said hotel and caused disorder therein. On learning of the aforesaid the General Manager of the plaintiff, Mr. J. Y. Samarakoon, visited the said hotel and the said thugs acting on the instructions of the 2nd defendant forcibly ejected the aforesaid General Manager."

Para 16- "Since the said date the defendants acting together and in concert and in collusion are wrongfully and unlawfully interfering with the management and control of the said hotel by the plaintiff. The 2nd and 3rd defendants above named and the 1st defendant acting through its directors the 2nd and 3rd defendants, have placed. in the said hotel hirelings/thugs for the aforesaid wrongful purposes."

The reliefs prayed for in the plaint are, inter alia :

(a) For a declaration that the plaintiff is entitled to operate and manage the said hotel without interference by the defendants their servants and agents.

(e) For an interim injunction restraining the defendants their servants/agents

(i) from interfering with the plaintiff's management and/or control and/or operation and/or administration of the said hotel:

(ii) from interfering with any of the plaintiff's rights in relation to or with respect to the said hotel ;

(iii) from interfering with plaintiff, plaintiff's employees/representatives/agents in any manner whatsoever;

(iv) from obstructing the plaintiff, the plaintiff's employees/representatives/agents and licencees in any manner;

(e) For an permanent injunction restraining the defendants their servants/agents

(i) from interfering with the plaintiff's management and/or control and/or operation and/or administration of the said hotel:

(ii) from interfering with any of the plaintiff's rights in relation to or with respect to the said hotel ;

(iii) from interfering with plaintiff, plaintiff's employees/representatives/agents in any manner whatsoever;

(iv) from obstructing the plaintiff, the plaintiff's employees/representatives/agents and licencees in any manner;

(v) from preventing/obstructing the plaintiff's servants/agents/representatives and licencees entering the said hotel or any part thereof or exercising or discharging any functions or powers of management or control of the said hotel or any part thereof .

(vi) from using any force or show of force on any of the plaintiff's representatives/agents/employees/licencees;

Though the plaintiff has not sued for damages for the alleged interference with its management and control of the hotel, a Scott v. Avery clause is sufficient to bar, in the absence of an award, not only the right to sue for damages, but also any claim for ancillary relief, such as injunctions, interlocutory or permanent. According to the terms of the contract P 1, the making of an award upon a reference to arbitration is a condition precedent to any right of action against any of the parties in respect of any dispute or difference arising under the contract. A right of action can come into existence only after the said condition-precedent has been performed. That is not a matter of practice or procedure, but a question of the liability to perform the promise which is contained in the arbitration clause. Since the effect of the condition precedent is to prevent any cause of action from arising until an award has been obtained, there is no ouster of the jurisdiction of the court, since there is nothing to oust. "Such a clause postpones but does not annihilate the right of access to the court." Per Lord Hanworth, M. R. in Preshwater v. Western Australian Assurance Co., Ltd. (4). I agree with Dr. Colvin R. de Silva's submission that, in view of the Scott v. Every clause 10 in P 1, the plaintiff has no cause of action to sue, in respect of its claim on which the action is founded. Since the plaintiff had not had recourse to arbitration and thus had not fulfilled the precondition for recourse to court, the present action should fail in limine for want of a cause of action. The District Judge should, far from issuing an enjoining order in the first instance, have refused to entertain the plaint as disclosing no cause of action. The present action cannot succeed and no purpose will be served by allowing it to continue - Dennehy v. Bellamy (5).

Senior Counsel for plaintiff-respondent relied on Soysa v. Ranasinghe (6), in support of his submission that where a serious charge of fraud or violence is made against the defendant. the court

will in general refuse to send the dispute to arbitration especially where plaintiff prays for the grant of an injunction, as the prayer deals with matters beyond the competence of arbitrators and can only be satisfactorily disposed of by the ordinary courts. That case dealt with an application, under section 7 of the Arbitration Ordinance No. 15 of 1866 for a stay of proceedings and to compel a reference to arbitration in terms of the clause in the partnership agreement. Under that section in question, the court has a discretion with regard to compelling the parties to resort to arbitration-the court is not obliged to take this step if it is satisfied that there is sufficient reason why such matters should not be referred to arbitration. In the case referred to by Counsel, the partnership agreement does not appear to have incorporated a 'Scott v. Avery' clause and hence there is no discussion of the impact of such a clause on an application for stay of action under section 7 of the Arbitration Ordinance.

In Radford v. Hair (7) (relied on by counsel for plaintiff) too, the arbitration clause in question was a bare arbitration and was not a Scott v. Avery clause, and it was properly held that defendant's allegations imputing to the plaintiff actual dishonesty and impugning his professional reputation were akin to allegations of fraud and against such allegations a plaintiff was entitled to have his case tried by a judge in open court. As stated supra, our courts do not have any jurisdiction to override a Scott v. Avery clause while courts in England have been vested by section 25(4) of the Arbitration Act 1950, re-enacting section 3(4) of the Arbitration Act of 1934, with a discretion in suitable cases to treat the Scott v. Avery clause as a mere arbitration clause. Thus courts in England have, unlike our courts, statutory power to annul the clause. The resulting position, is that under our law a party may rely on a Scott v. Avery clause as affording a substantive defence, viz. no cause of action had accrued to the plaintiff and the court is obliged to give effect to such a clause and put the plaintiff out of court when he institutes action for breach of contract, without prior reference to arbitration as contemplated by the contract.

Queen's Counsel submitted that the defendants had by their conduct waived the condition making arbitration followed by an award a condition to any legal right of recovery on the contract and are now

disentitled from relying on clause 10 of the agreement P 1 . He sought support in the following statement of the law by Lord Wright in Heyman v. Darwing Ltd. (supra) (3) at paragraph F of page 349

"The contract, either instead, or along with a clause submitting differences and disputes to arbitration, may provide that there is to be no right of action save upon the award of an arbitrator. The parties in such a case make arbitration followed by an award a condition to any legal right of recovery on the contract. This is a condition of the contract to which the court must give effect unless the condition has been "waived", i.e. unless the party seeking to set it up, has somehow disentitled himself to do so. "

Case law show that a Scott v. Avery clause is not available as a defence

(a) Where the defendant had waived reliance on the clause, for example, by defending the action without relying on the clause or by himself instituting proceedings: in breach of it- Toronto Rly. Co. v. National British and Irish Millers Insurance Co., Ltd. (8).

(b) Where the defendant, by improper interference with the arbitrator in the discharge of his duties or hindering the progress of the reference, deprived the claimant of a proper opportunity to fulfil the condition precedent -Hickman & Co. v. Roberts (9); Englesham v. Mac master (10) ; or by waiver by course of conduct Toronto Railway Co. v. National British and Irish Millers Insurance Co., Ltd. (supra) (8).

(c) Where the dispute is as to whether the contract which contains the clause has ever been entered into at all that issue cannot go to arbitration under the clause for the party who denies that he has ever entered into the contract is thereby denying that, he has gained in the submission. Similarly if one party to the alleged contract is contending that it is void ab initio (because the contract is illegal), the arbitration clause cannot operate, for on this view, the arbitration clause which is part of the contract, is also void. If the dispute is as to whether there has even been a binding contract between the parties such a dispute cannot be covered by an arbitration clause in the challenged contract. If there has never been a contract at all, there has never been a part of an agreement to arbitrate-Vide Heyman v. Darwing Ltd. (supra) (3).

Conditions precedent may be waived by a course of conduct inconsistent with their continued validity, even though the contracting party does not intend his conduct to have that result.

"When by conduct or inaction, a party represents to the other party litigant his intention to adopt one of two alternatives and inconsistent proceedings or positions with the result that the latter is thereby encouraged to adopt or persevere in a line of conduct which he otherwise would have abandoned or modified, or as the case may be to change tactics from which he would otherwise have never deviated, the first party is estopped, as against his antagonist from resorting afterwards to the course or attitude which of his free choice he has waived or discarded" Spencer Bower on Estoppel by Representation (2nd Ed.) at page 305.

There is nothing in the correspondence between the parties marked of record or in the affidavits filed by the plaintiff to suggest or to show that the 1st defendant has by his conduct or action waived its right to insist on arbitration as a condition precedent. Far from waiving such a right, its counsel had insisted on such a right at the first available opportunity, viz. when plaintiff moved ex parse for the issue of interim injunction.

The record does not show that the defendants by their conduct represented to the plaintiff that they had waived the 1st defendant's right to insist on arbitration as a condition precedent. There is no factual basis for the plea of waiver or estoppel. From the alleged repudiation of its obligations under the contract it does not necessarily follow that the 1st defendant had waived its rights under the arbitration clause.

Counsel in his written submissions, referred to the following observation of Lord Haldane, L.C., in Jureldini v. National British & Irish Millers Insurance Co., Ltd. (11):

"When there is a repudiation which goes to the substance of the whole contract, I do not see how the person setting up the repudiation can be entitled to insist on a subordinate term of the contract, (i.e. arbitration) still being enforced."

With reference to this observation, Lord Macmillan said in Heyman v. Darwing Ltd. (supra) (3) at 346 that:

"These dicta, in view of their high authority are entitled to the most careful consideration, but, with all respect, I do not think they constitute pronouncements in law by this House such as to be binding upon Your Lordships."

The other Lordships also did not accept Lord Haldane's aforesaid enunciation as a general proposition of the law. Lord Haldane's statement cannot be accepted in the light of the subsequent decision of the House of Lords in Heyman v. Darwing Ltd. (supra) (3) where it was held that where there had been a total breach of a contract by one party so as to relieve the other of the obligations under it, an arbitration clause, if its terms are wide enough, still remain effective. I respectfully adopt the later House of Lord's decision as setting out the correct legal position with respect to arbitration clauses surviving total breach of the contract.

Clause 1 of the recital in the agreement P1 states that the' 1st defendant is in the process of completing construction of a hotel called and known as Hotel Galaxy (Pvt) Limited on an allotment of land owned by it. Clause 2 states that the 1st defendant will complete the construction and furnish and equip the hotel with all amenities and requirements required of a luxury hotel. Clause 3 further states that the 1st defendant has agreed to appoint the plaintiff as the Managing Agents of Hotel Galaxy (Pvt) Limited for a period of six years for the management, control and operations of the hotel on the terms and conditions of the agreement.

Clause 1 of the operative part of the agreement states that the 1st defendant is hereby appointing the plaintiff as the Managing Agents of its hotel for a period of six years. Clause 2 stipulates that the plaintiff as Managing Agents of the hotel shall undertake on behalf of Hotel Galaxy, the duties and responsibilities enumerated therein, one obligation being to be responsible for the effective organisation and operation of the hotel and the discipline of the staff. Clause 2(h) expressly provides that though the plaintiff was to recruit, pay the salary of and train the staff and other personnel necessary for the proper and efficient conduct and operation of the hotel, plaintiff would in these matters be acting as 1st defendant's agent and all personnel so hired or employed shall be in the sole employment of the 1st defendant and not in the employment of the plaintiff. Clause 3 provides that the plaintiff shall operate the hotel at the expense of the 1st defendant which shall warrant the plaintiff the uninterrupted control over the operations of the hotel and the 1st defendant shall not in any way interfere with the day to day running of the hotel. Clause 8 states that the 1st defendant shall indemnify the plaintiff against any loss whatsoever or against any claim or liability of any nature as

plaintiff may become liable to, in acting as agent of the 1st defendant, in the normal course of business. In the face of these clauses, it is preposterous for plaintiff to claim in its plaint that it established the hotel and that the servants working in the hotel are its employees. The several clauses in the agreement P1 underscore the fact that the 1st defendant is the proprietor of the hotel and that it has engaged the services of the plaintiff to manage the hotel and that whatever the plaintiff did to the hotel was as agent or servant of the 1st defendant for and on behalf of the 1st defendant. It cannot be gainsaid that the relationship of the parties is basically that of master and servant or principal and agent. The plaintiff has not invested any capital on the hotel; its stake n the hotel is only the remuneration payable by the 1st defendant in the shape of a percentage of the gross annual profits of the hotel for the services provided by it. In the light of this identification of the relationship of the parties the question arises whether reliefs of specific performance and injunctions are available to plaintiff in the events complained by it in the plaint.

Under the common law the remedy of an employee who has been wrongfully dismissed is an action for damages. The court will not decree specific performance of a contract of employment. Similarly it will not grant an injunction for the fulfilment of a contract of employment. In Halsbury's Laws of England (3rd Ed.) Vol. 31, at page 268, paragraph 366, it is stated that:

"A judgment for specific performance is not pronounced either at the suit of the employer or the employee in the case of a contract for personal work or service. The court does not seek to compel persons against their will to maintain continuous personal and confidential relations. This principle applies not merely to contracts of employment, but to all contracts which involve the rendering of continuous services by one person to another as for instance, a contract to work a railway line. Contracts of agency came under the same principle.

Fry on "Specific Performance" 6th Ed. Sec. 110 says:

"The relation established by contract of hiring and service is of so personal and confidential a character that it is evident that such contracts cannot be specifically enforced by the court against an unwilling party with any hope of ultimate and real success and accordingly the court now refuses to entertain jurisdiction in regard to them."

"We are asked", said Knight Bruch, L.C., "to compel one person to employ against his will another as his confidential servant, for duties with respect to the due performance of which the utmost confidence is required. Let him be one of the best and one of the most competent persons that ever lived, still if the two do not agree, and good people do not always agree, enormous mischief may be done"- Johnson v. Shrewbury Railway Co. (12).

In Stocker v. Brocklebank (13) where an indenture was held to constitute the relation of master and servant and not of partner, Lord Truro dissolved an injunction, restraining the defendant from excluding the plaintiff from management of the business. An employer could not be forced to employ a servant in whom he has lost confidence.

Bowstead on Agency, 12th Ed. Art. 10 says

"No action is maintainable at the suit of either principal or agent to compel the specific performance of a contract of agency. It is inconsistent with the confidential nature of the relationship of master and servant that it should continue contrary to the will of one of the parties thereto. Therefore the court will not grant specific performance of a contract of employment nor will it grant an injunction for the fulfilment of a contract of employment."

The management agency constituted by P1 can work only so long as the parties have confidence in each other. The correspondence between the parties culminating in the letter dated 2nd August 1984 (A18) written by the Chairman of the plaintiff-company to the 1st defendant stating "we must have positive evidence of the party who is empowered on behalf of Hotel Galaxy Ltd., (Pvt) and who can contractually bind the company. Until this evidence is provided we are not prepared to entertain any communication from your Company" was bound to induce apprehension in the minds of the defendants that the plaintiff was not going to honour its obligations and that it was not safe to continue to place confidence in it. In the consequent estranged relationship mutual confidence had ceased to exist. In such a situation the parties should not be compelled to maintain the confidential relationship contemplated by the agreement P1.

In Frances v. Municipal Councillors of Kuala Lumpur (14) Lord Morris, delivering the judgment of the Privy Council said

"In their Lordships" view, when there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the courts will not grant specific performance of contracts of service."

Further a contract of employment is said to be terminated by wrongful dismissal even where the employee refuses to accept the dismissal as a termination of the contract. As Viscount Kilmuir, D.C., said in Vine v. National Dock Labour Board (15)

"If the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract."

Accordingly the servant cannot claim specific performance of the contract of employment nor an injunction restraining the employer from dismissing him and from taking consequential steps. The remedy of an employee who has been wrongfully dismissed is an action for damages. In the present case, the acts of misconduct on the part of the defendants, alleged by the plaintiff, manifest a repudiation of the agency agreement by the defendants: the plaintiff has been summarily dismissed. Whether the plaintiff accepts the repudiation or not the agency agreement P1 has thereby been terminated. The defendants have resumed the management of their hotel and the agreement P 1 has come to an end: the plaintiff can no more claim to have access to the hotel or to be entitled to the management of the defendant's hotel. If the plaintiff has been wrongfully dismissed, his remedy is damages and not declaration or injunction or specific performance as defendant's repudiation has determined the contract P1 .,On the facts pleaded by the plaintiff, the plaintiff cannot sustain the reliefs of declaration and injunction prayed for by him. Hence the enjoining order was misconceived.

In law, one person may possess a thing for and on account of another. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is

acquired or retained directly or personally may be distinguished as immediate or direct- Vide Salmond on Jurisprudence (10th Ed) at page 282. In all cases of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. In this case in terms of the agreement P1, the plaintiff is the Managing Agent of the 1st defendant for the purpose of conducting the hotel. The plaintiff possessed the hotel for the 1st defendant-company of which the 2nd and 3rd defendants are the Directors and the 1st defendant possessed the hotel through the plaintiff. Legal possession, constructive though it may be, has always been with the 1st defendant and never left it. The plaintiff could not claim to possess the hotel on its own right as against the defendants. The plaintiff was put into occupation of the hotel by the defendants for the purpose of managing their hotel business, and the defendants could at any time resume management of their business and occupation of the hotel. If in the process of resuming the management of their business, the defendant committed a breach of the agreement P1, the remedy of the plaintiff was an action for damages only. Since the defendants were always in possession of the hotel through the plaintiff, they cannot be dispossessed by an injunction, as they are in possession on their own right. Hence, the prayer for interim and/or permanent injunction in the plaint is untenable. The prayer cannot be validly granted by court. Hence, the enjoining order in question cannot be supported.

As Dr. Colvin R. de Silva submitted, the judgment of the Court of Appeal setting aside the order of the District Judge vacating the earlier enjoining order results in upholding an enjoining order which should never have been issued. It is regrettable that the District Judge did not address his mind to the legal question whether on the facts pleaded by the plaintiff, the defendants could, in law,. be restrained by an injunction or enjoining order. As exparte enjoining orders and orders for interim injunctions may work grave hardship and injustice to parties who have not been heard, grave responsibility rests on a Judge to exercise the discretion vested on him, judicially, having due regard to the law, before he grants an ex parte application for the issue of an interim injunction or enjoins the defendant in terms of section 662 of the Civil Procedure Code. Such reliefs should be granted only after being satisfied that both the facts averred by the plaintiff and the law applicable therto call urgently for them.

I set aside the judgment of the Court of Appeal and allow both the appeals and restore the order of the District Judge vacating the enjoining order which he had ex parte issued earlier. 1 direct the District Court to take further steps according to law in the light of the judgment of this court.

The plaintiff-respondent will pay the costs of the defendants-appellants in the District Court, Court of Appeal and in this court.

ATUKORALE, J.

There are two appeals before us, both arising out of the same judgment of the Court of Appeal which, acting in revision, set aside the order of the learned District Judge vacating an enjoining order which he had issued until the hearing and decision of the plaintiff's application for an interim injunction. The two appeals were by agreement of parties consolidated and heard together. In appeal No. 26/85 the appellant is the 1st defendant in the action, Hotel Galaxy (Pvt) Ltd., a company duly incorporated in Sri Lanka. In appeal No. 27/85 the appellants are the 2nd and 3rd defendants in the action. They are two bothers and are respectively the Chairman and the only other Director of the 1st defendant-company whose shares they own and control. The contesting respondent in both appeals is the plaintiff in the action, Mercantile Hotel Managements Ltd., also a company duly incorporated in Sri Lanka. This judgment is. in respect of both appeals. To avoid any confusion the respective parties will hereinafter be referred to as the plaintiff, the 1st defendant, the 2nd defendant and the 3rd defendant as designated in the plaint.

The 1st defendant owned premises No. 388, Union Place, Colombo 2 and was in the process of completing the construction of a hotel thereon called and. known as Hotel Galaxy (Pvt) Ltd. On 7.7.1983 the plaintiff and the 1 st defendant entered into agreement P1 whereby, inter alia, the 1st defendant appointed the plaintiff as Managing Agents of the hotel for the management, control and operation of the hotel in accordance with the terms contained therein for the duration of .a specified period of time. As Managing Agents of the hotel the plaintiff undertook on behalf of the 1st defendant to perform certain duties which were enumerated in P1. The operation of the hotel by the plaintiff was to be at the expense of the 1st defendant which in turn warranted to the plaintiff the uninterrupted control over the operation of the hotel and undertook not to interfere in any manner

with the day to day running of the hotel by the plaintiff. The agreement also made provision for the remuneration of the services provided by the plaintiff including the computation and the manner of payment of such remuneration. The plaintiff was also entitled to reimbursement from the 1st defendant of all costs, charges, disbursements and other expenses properly incurred by it in the discharge of its duties and functions under the agreement. Clause 9 of the agreement stipulated that if at any time during its operation the plaintiff was prevented from managing the hotel due to no fault on the part of the plaintiff but due to any acts of commission or omission on the part of the 1st defendant, then the plaintiff will be entitled to terminate the operation of the hotel under the agreement and the 1st defendant would be liable to pay the plaintiff as damages a sum to be calculated as provided for in that clause. Clause 10 is the arbitration clause the relevant portions of which, in so far as these proceedings are concerned, read as follows

"10. If during the continuance of this agreement or at any time after the termination thereof any difference or dispute shall arise between the parties hereto whether in regard to the interpretation of any of the provisions herein contained or any matter or thing in regard to this agreement such difference or dispute shall be forthwith referred to the final award of a single arbitrator in case the parties can agree upon one and otherwise to two arbitrators one to be appointed by each party and in the event of disagreement between such arbitrators thereto an umpire to be appointed by the arbitrators in writing ..... The decision of the arbitrator or arbitrators or their umpire (as the case may be) shall be binding upon each of the parties hereto .... The making of an award upon a reference to arbitration shall be a condition precedent to any right of action against any of the parties hereto in respect of any or all disputes or differences arising or pertaining to this agreement."

In pursuance of the said agreement P1 the plaintiff commenced commercial operations of the hotel on or about 24.8.1983. About a year after the commencement of such operations on 3.9.1984 the plaintiff instituted the present action in the District Court against the three defendants. The cause of action set out in the plaint is that on or about 30.8.1984 the 2nd and 3rd defendants acting jointly and in concert and the 1st defendant acting through them wrongfully and unlawfully brought into the hotel premises nearly 30 thugs disrupting

the operation of the hotel and causing disorder therein ; that when Samarakoon, the General Manager of the plaintiff, went to the hotel the thugs at the instance of the 2nd defendant forcibly ejected him from the hotel and that since then the defendants are wrongfully and unlawfully interfering with the plaintiff's management and control of the hotel for which purpose the defendants have placed hirelings/thugs at the hotel. The plaint further averred that Samarakoon made a complaint to the Police (a copy of which was annexed to the plaint) and the "Police have referred the matter to the Fort Magistrate's Court and the matter is pending therein." The plaint was accompanied by an affidavit of Samarakoon affirming to the facts set out therein. The plaintiff prayed for a declaration that it was entitled to operate and manage the hotel without interference by the defendants, their servants and agents; for a declaration that the defendants, their servants arid agents have wrongfully and unlawfully interfered with the operation and management and control of the hotel by the plaintiff on 30.8.1984 and thereafter, for an order prohibiting the defendants from interfering with the rights of the plaintiff in respect of the hotel and for an order on the defendants directing them to remove from the hotel premises all persons who have no authority from the plaintiff and for an order ejecting them forthwith. The plaintiff also prayed in the plaint for an interim and a permanent injunction restraining the defendants, their servants and agents from interfering with the plaintiff's rights, particularly the right of operation, management and control of the hotel and from obstructing the plaintiff, its employees and agents in the exercise or discharge of powers and functions of management and control of the hotel.

The application for an interim injunction was sought to be supported in court by plaintiff's counsel without notice td, any of the defendants on 4.9.1984. On that occasion counsel appeared on behalf of the 1st defendant and submitted that the court had no jurisdiction to entertain the said application inasmuch as the arbitration clause in agreement P 1 was in the nature of a Scott v. Avery clause and that therefore the court lacked jurisdiction to entertain the action or the application for an injunction in the first instance. The learned District Judge, however, directed that notice of the application for an interim injunction be served on the defendants and issued an enjoining order restraining them from committing the acts the commission of which the plaintiff in the plaint sought to restrain by way of an interim injunction. On 12.9.1984 the defendants moved court by way of a petition and affidavit to vacate the enjoining order on the ground, inter alia, that the

plaintiff had obtained the enjoining order by wilful suppression and/or non-disclosure of a material fact. The suppression and/or non-disclosure relied on by the defendants related to an order made in proceedings instituted in the Fort Primary Court by the Police under S.66 of the Primary Courts Procedure Act, No. 44 of 1979, upon the complaint made by Samarakoon on 30.8.1984 referred to above. The position of the defendants was that in those proceedings Samarakoon, the plaintiff's General Manager, on 31.8.1984 (prior to the institution of the present action in the District Court) had moved the Primary Court to obtain an interim order restoring to the plaintiff the rights of management to the hotel; That the learned Primary Court Judge had declined to make such an order and that this fact had been suppressed from the District Court at the time the plaintiff obtained the enjoining order. This was one of the grounds upon which the application to vacate the enjoining order was made. The plaintiff filed objections to this application. The matter was then fixed for inquiry and on 4.10.1984 the learned District Judge after hearing the submissions of parties made order vacating the enjoining order. He held that apart from a bare reference to the proceedings in the Primary Court contained in the plaint and the accompanying affidavit of Samarakoon, the plaintiff had failed to disclose to court the fact that the Primary Court Judge had refused to make an interim order asked for by Samarakoon. This was a concealment of a material fact which the learned Judge held was sufficient to warrant the vacation of the enjoining order.

Against this order of the learned District Judge the plaintiff filed two applications simultaneously in the Court of Appeal-a revision application (No. 1379/84) and an application for leave to appeal (No. 118/84). After the filing of objections by the defendants and counter-objections by the plaintiff, the revision application was heard and decided by the Court of Appeal. The court held that although it was desirable that the plaintiff should have disclosed the fact that an interim order had been refused by the Primary Court Judge, its failure to do so did not amount to a wilful suppression of a material fact warranting the vacation of the enjoining order. The Court also took the view that the affidavits and exhibits filed by the plaintiff disclosed a very high handed act on the part of the defendants in that the plaintiff who was in possession of the hotel had been forcibly ejected by the defendants who had taken the law into their own hands and conducted themselves in a manner causing grave prejudice to the

plaintiff. The court held that there was material placed by the plaintiff showing exceptional circumstances warranting the court's intervention in the exercise of its revisionary powers and set aside the order of the learned District Judge vacating the enjoining order. The present appeals have been preferred by the defendants from this judgment of the Court of Appeal.

At the hearing before us learned Queen's Counsel for the plaintiff submitted to us that the District Court was powerless to vacate an enjoining order and that it is not open for a party to invite the court to vacate the same. He contended that whilst there was express provision in the Civil Procedure Code enabling the court to discharge, vary or set aside an interim injunction-vide s.666, there was no similar provision in the Code to vacate an enjoining order. In support of his contention he relied on the decision of the Supreme Court in Jinadasa v. Weerasinghe (M) and the decisions of the Court of Appeal in Stassen Exports Ltd". v. Hebtulabhoy & Co., Ltd. (17) and Gordon Frazer & Co., Ltd. v. Marie Losio and Martin Wenzel (18) which followed the Supreme Court decision. In the first case cited above an interim injunction granted in favour of the plaintiff was suspended by court on an application made by the defendant by way of petition and affidavit without resorting to summary procedure. The Supreme Court held that since the procedure prescribed by s.666 of the Code had not been complied with by the defendant the order for suspension must be set aside. In the second case the District Judge issued ex parte an interim injunction against the defendants who then moved by way of petition and affidavit to have the same suspended forthwith. The judge refused to do so and entered an order nisi in terms of s. 377(a) of the Code. This order of refusal was sought to be reviewed by the defendants in the Court of Appeal. On their behalf it was contended that the District Court had an inherent power under s.839 of the Code to suspend an interim injunction. The court rejected this contention for the reason that no court can claim to have an inherent power which would override the express provisions of a statute. To hold that the District Court had such an inherent power would be contrary to the express provisions of s.666 of the Code which empowered the court only to discharge, vary or set aside but not to suspend an interim injunction. In the last case cited above it was held, following the decision in Stassen Exports Ltd. v. Hebtulabhoy & Co., Ltd. (supra) (17) that s.666 of the Code did not empower a court to suspend the operation of an interim injunction. In each of the above

cases the order granting the interim injunction was made ex parte. The decisions hold that s.666 read with s.377 of the Code confers on a court the power of and prescribes the procedure for discharging, varying or setting aside of such an injunction. It was urged before us by learned Queen's counsel for the plaintiff that in the absence of similar provision in the Code in respect of enjoining orders a court was powerless to set aside or vacate such orders.

In the instant case there is little doubt that the enjoining order was one made ex parte by the learned District Judge. The learned Judge himself assumed and proceeded on the basis that it was one made ex parte. As rightly pointed out by the Court of Appeal the appearance entered by counsel on behalf of the 1st defendant on that day was not for the purpose of objecting to the application for an interim injunction but for the purpose of inviting the attention of court to the fact the court lacked jurisdiction to entertain the plaint in view of the arbitration clause contained in the agreement and referred to above. No submission was made by counsel for the 1st defendant at that stage in regard to the merits of the application for an interim injunction and/or enjoining order. Under the circumstances I agree with the Court of Appeal that the enjoining order was one made ex parse. The question then arises whether a court, in the absence of any specific provision in the Code, has the power to set aside its own ex parte order on the application of the party against whom it is made. There is in my view ample authority to show that a court does have such power. In Loku Menika v. Selenduhamy (19) a hypothecary decree was entered against the first respondent who had been appointed legal representative in place of the deceased mortgagors. It later transpired that the notices for the appointment of a legal representative had not been served on any of the respondents and that no summons in the mortgage action was served on the first respondent. On an application by the respondents to have all the proceedings in the case vacated the Commissioner of Requests held that all proceedings culminating in the hypothecary decree and thereafter were void and set them aside. In appeal Dias, J. following several earlier decisions referred to by him in his Judgment, observed as follows

" It is clear that the learned Commissioner of Requests held this inquiry under a rule of practice which has become deeply ingrained in our legal system-namely, that if an ex parte order has been made behind the back of any party, that party should first move the Court

which made that ex parte order in order to have it vacated. before moving the Supreme Court or taking any other action in the matter. If authority is needed for this proposition it is to be found in the following cases: In Habibu Lebbe v. Punchi Etana (20) Bonser, C.J. said

"I am informed by my learned brother that it has long been the practice, and a practice which has been expressly approved by this court, that in cases like the present one, application should be made in the first instance to the court which pronounced the judgment; and if the court which pronounced the judgment refuses to set it aside, then, and only then should there be an appeal from that refusal. Therefore, if the judgment was given in the absence of one of the parties, I think that under the practice laid down by this Court, it was competent for the District Judge to deal with the case, and that the plaintiff adopted the proper course in applying first to the District Judge before coming to this court. . . . . .

In Caldera v. Santiagopulle (21) Betram, C.J. following Weeraratne v. Secretary, D.C., Badulla (22) said:

"The order was made ex parte behind the back of the defendant, and in accordance with the authorities cited in a very recent case a person seeking to set aside such an order must first apply t the court which made it, which is always competent to set asid ex parte order of this description."'

In Dingihamy v Don Bastian (23) the court without fixing a date for the answer of the defendant fixed the case for ex parte trial on the basis that the defendant was in default and entered decree nisi against her. She then made an application to court to have the decree nisi set aside which was refused On an appeal preferred by her Tambiah, J. said:

"The defendant quite properly made an application to the learned Commissioner of Requests to rectify an order, made ex parte, without proper notice to her. Indeed, the ordinary principle is that, where parties are affected by an order of which they have had no notice, and which had been made behind their back, they must apply in the first instance to the court which made the ex parte order to rescind the order, on the ground that it was improperly passed against them."

In Bank of Ceylon v. Liverpool Marine & General Insurance Co., Ltd. (24) the District Court, acting ex mero motu, made order abating the action under s.402 of the Civil Procedure Code. The plaintiff then filed papers in court to set aside the order of abatement which was refused by the District Judge. On an appeal filed by the plaintiff it was contended on behalf of the defendant that the only course open to the plaintiff was to have made application under s. 403 to set aside the abatement order within -a reasonable time. L-B. de Silva, J. (with H. N. G. Fernando agreeing) held that although the order of abatement was entered by court ex mero motu, yet it was entered without any notice to the plaintiff who had no opportunity to show cause against it and that it was an ex parte order the validity of which the plaintiff-could challenge in the same case at any time. In Nagappan v. Lankabarana Estates Ltd. (25) Samarawickrame, J. expressed his approval of the principle enunciated in Bank of Ceylon v. Liverpool Marine & General Insurance Co., Ltd. (supra) (24) and in Loku Menika v. Selenduhamy (supra) (19). These authorities therefore clearly establish the principle that a court which makes an ex parse order without notice to the party who is adversely affected by it is entitled to set it aside on the application of such party in the same case. This power is derived not from any express provision in the Code but, as stated above, from a rule of practice which has become deeply ingrained in our legal system. I am therefore of the view- that in the instant case it was legally competent for the learned District Judge to vacate the enjoining order which was made by him ex parte.

The next matter that arises for consideration is whether the Court of Appeal was justified in setting aside, by way of revision, the order of the learned District Judge vacating the enjoining order. This involves two questions. One is whether there were in this case exceptional circumstances warranting the exercise of the revisionary powers of the Court of Appeal. The other is whether, assuming the existence of such exceptional circumstances, the material on record by way- of affidavits and exhibits justified the setting aside by it of the District Judge's order vacating the enjoining order. With regard to the first question it. is now settled law that the exercise of the revisionary powers of the appellate court is confined to cases in which exceptional circumstances exist warranting its intervention. The view formed by the Court of Appeal in the instant case is that the interests of justice demanded its intervention by way of revision for the reason that the affidavits and exhibits placed before it by the plaintiff revealed a very

high handed act on the part of the defendants who by taking the law into their own hands had forcibly ejected the plaintiff who was in lawful possession of the hotel. The tenability of this view of the Court of Appeal has been the subject matter of much controversy before us. Upon a careful and close consideration of the salient facts and circumstances of this case, I do not think the view expressed by the Court of Appeal can be substantiated. The agreement P1; ex facie, is a hotel management agreement. By it the plaintiff was appointed by the 1st defendant the Managing Agents of the hotel for the purpose of the . management, control and operation of the hotel in accordance with and subject to the terms and conditions therein. A perusal of the terms and conditions reveal that the plaintiff was, in the performance and discharge of its functions, duties and obligations, acting in no capacity other than that of managing agents of the 1st defendant. The staff and employees of the hotel were in the employ of the 1st defendant and not of the plaintiff. The running of the hotel by the plaintiff was at the expense of the 1st defendant who was obliged to remunerate the plaintiff for its services. The 1st defendant was also liable to indemnify the plaintiff for any loss, claim or liability incurred in acting as managing agents of the hotel in the normal course of business. These stipulations in P1 seem to indicate that the true relationship between the 1st defendant and the plaintiff was one of principal and agent or master and servant respectively. They do not lend support to the view taken by the Court of Appeal that the plaintiff was in possession of the hotel. P 1 establishes that the plaintiff's entry and occupation of the hotel was with the leave and licence of the 1st defendant for the purpose of the management, control and operation of the hotel for and on behalf of the 1st defendant. The position taken up by the 1st defendant is that it resumed the management of its hotel as from 30.8.1984 as it lawfully might since the plaintiff by its conduct repudiated the agreement P1 in consequence of which it came to an end. The instant case is not one where possession of the hotel premises has been handed over by the 1st defendant to the plaintiff to enable the latter to run a hotel on its own behalf or on its own right. The position of the 1st defendant that it always was and continued to be, through its managing agents (the plaintiff), in possession of both the hotel premises as well as the business and that thus no question of the ejectment of the plaintiff from either the premises or the business arose seems to be in accord with the stipulations contained in P1. The view of the Court of Appeal appears to have been based purely upon 'the affidavits and exhibits filed by the plaintiff' and the 'material

placed by the plaintiff', to use the words of the judgment of the Court of Appeal, and not on the proper construction of the agreement P1. There is no indication in the order of the Court of Appeal, which was invited to action revision, that it gave any consideration to the position urged on behalf of the 1st defendant. The approach of the Court of Appeal to the vital issue as to whether there were or Were not exceptional circumstances to warrant the exercise of its revisionary powers is untenable. It has also failed to address its mind to the important question why the plaintiff, without pursuing the application for an interim injunction then pending in the District Court, invoked the revisionary jurisdiction to vacate the order of the learned District Judge setting aside the enjoining order. The failure of the Court of Appeal to make an impartial assessment and evaluation of the facts and material relied upon by the defendants has resulted in its reaching the erroneous conclusion that the plaintiff was in possession of the hotel until its forcible ejectment by the defendants. The ground upon which the Court of Appeal founded its decision to exercise its revisionary powers is thus unsustainable and has to be rejected.

The other question that remains for consideration on this aspect of the judgment of the Court of Appeal is whether, assuming there were exceptional circumstances, the court was justified in setting aside on the merits the order of the learned District Judge. The learned District ' Judge vacated the enjoining order, for the sole reason that the plaintiff had, at the time it applied for an interim injunction and obtained the enjoining order, suppressed and/or failed to disclose a material fact. This non-disclosure related to the order made by the Primary Court Judge on 31.8.1984 upon the filing by the Police of an information under s.66 of the Primary Court Procedure Act, No. 44 of 1979, as set out above. The Court of Appeal took the view that in the circumstances of the instant case the failure on the part of the plaintiff to disclose this particular fact did not amount to a wilful suppression of a material fact warranting the vacation of the enjoining order by the learned District Judge. In view of the conflicting views taken by the District Court and the Court of Appeal on this point, it is necessary to refer in somewhat detail to what led to and actually transpired in the proceedings that were instituted in the Primary Court. It is not in dispute that the day before proceedings were commenced in the Primary Court, the 2nd defendant and shortly thereafter Samarakoon made statements to the Police-vide R20 and P3 respectively. In the information furnished to court by the Police the names of five persons were mentioned of whom the 2nd and 3rd defendants were referred to as the first party and Samarakoon as the second party. The

information mentioned, inter, alia, that the first: party had on 30.8.1984 without any intimation to the second party forcibly taken the management of the hotel which had been managed by the plaintiff from 7.7.1983 up to that date. The report requests the Primary Court to make an interim order in terms of s. 66 (1) (b) of the Act. The correct section is s. 67 (3). On the very-day that the report was filed (31.8.1984) in court, the 2nd defendant and Samarakoon appeared personally and were represented by counsel. The 3rd defendant was absent but was represented by counsel. Learned President's Counsel for Samarakoon (Mr. Daya Perera) tendered to court an affidavit from Samarakoon together with a copy of the Agreement P 1 and moved for an interim restraining order under s. 67 (3) According to this affidavit the interim order sought was to restrain the three defendants (including the 1st defendant) from interfering with and obstructing the exercise of the lawful rights of the plaintiff, Samarakoon and their employees and agents. The caption in Samarakoon's affidavit cited the plaintiff as the 1st respondent, himself as the 2nd respondent, the 1st defendant as the 3rd respondent, the 2nd defendant as the 4th respondent and the 3rd defendant as the 5th respondent. The application of Mr. Daya Perera, P.C. was resisted by counsel appearing for the 2nd and 3rd defendants. After hearing the submissions of counsel the learned Primary Court Judge in his order, after referring to the fact that learned President's Counsel asked for an interim restraining order, stated as follows

"Whilst at this- stage refusing the application for an interim injection under s.67(3) of the Primary Courts Procedure Act, I inform Mr. Daya Perera, Senior Attorney, that this court will consider the affidavit and the document 1 R 1 submitted to court by Mr. Daya Perera, Senior Attorney. Further affix a notice on the land and report through Fiscal. Call case on 13.9.1984 for affidavits from both parties."

This order was made by the Primary. Court Judge on 31.8.1984 (Friday) and on 3.9.1984 (the following Monday) the plaint in the present action was filed in the District Court.

At the hearing before the learned District Judge into the defendant's application to vacate the enjoining order, a copy of the proceedings of the Primary Court held on 31.8.1984 were produced marked A20 on behalf of the defendants. Vehement objection was taken to its production by counsel for the plaintiff but was, in my view very rightly, overruled by the learned District Judge. This objection does not appear to have been pursued by the plaintiff in the Court of Appeal at the hearing into the revision application. Be that as it may, it was sought to be resuscitated before us by learned Queen's Counsel for

the plaintiff. Upon a perusal of the written objections filed by the defendants in the District Court on 12.9.1984 to the enjoining order, in which there is a reference to documents A 1 to A 19 and thereafter to R 21 (which should read A21) but no reference to A20, the motion dated 1.10.1984 seeking to amend paragraph 16 of the petition of objections by inserting a reference to A20 (notice of which was sent to the plaintiff's attorney-at-law by registered post), the observations of the learned District Judge that he had read this document at an earlier stage of the proceedings and also the fact that it was a certified copy of the Primary Court proceedings held on 31.8.1984 to which the plaintiff's General Manager, Samarakoon, and the defendants were parties, I am of the view that it was rightly admitted by the learned District Judge and that the objection raised on behalf of the plaintiff on 8.10.1984 that it has not been produced according to law was belated and without merit. A20 establishes:

(a) that the Police requested court to make an interim order;

(b) that Samarakoon in his affidavit stated that on 30.8.1984 the 2nd and 3rd defendants with the object of gaining control of the hotel without notice caused a gang of about 30 thugs to enter the hotel forcibly obstructing the mangement of the hotel and ejected him and the security officers therefrom resulting in irreparable loss and damage to the plaintiff;

(c) that Samarakoon in his affidavit asked, by way of interim relief, for an order ejecting the said thugs from the hotel and restraining the 3 defendants from obstructing or interfering with the lawful rights of the-plaintiff, himself and their employees and agents;

(d) that Mr. Daya Perera,' P.C. stated to court that in view of the tourists already in the hotel and of more to arrive it became necessary to ask for an interim injunction;

(e) that the court in its order referred to the fact that Mr. Daya Perera, P.C. asked for an interim injunction in terms of s.67(3);

(f) and that the court refused at that stage the application for an interim injunction but informed Mr. Daya Perera that he will consider the affidavit (of Samarakoon) and the document 1 R 1 (the agreement) submitted by him to. court.

It is also not in dispute that on 26.9.1984 the attorney-at-law for Samarakoon stated to the Primary Court Judge that he was not pursuing the application for an interim order in view of the fact that the

District Court had issued an .enjoining order on 4:9.1984. As stated earlier the only reference to the. Primary Court: proceedings made by the plaintiff at the time of institution of the present action in the District Court is contained in paragraph 14 of ,the plaint and paragraph 15 of the accompanying affidavit of Samarakoon which stated.,

"I made complaint to the Police .The Police have referred the matter to the Fort Magistrate's Court and the matter is pending therein."

The learned District Judge in his order vacating the enjoining order held that the failure of the plaintiff to disclose to court the fact that the Primary Court Judge had refused to grant an interim injunction) constituted a wilful suppression of a material fact. Without going into the merits of the defendants application to vacate the enjoining order, he made order vacating the same.

Learned Queen's Counsel for the plaintiff in the first appeal submitted to us that the learned District Judge had not fully appreciated the effect of the order made by the Primary Court Judge on Samarakoon's application for an interim order. He contended that the District Judge had failed to realise that the order of the Primary Court Judge was in the nature of a temporary refusal of the interim order and that the application was to be taken up later after affidavits were filed and that it was therefore still pending before him. The sum and substance of the order made by him on 31.8.1984, learned Queen's Counsel maintained, was that he put off the consideration of Samarakoon's application for an interim order. He did not dismiss the application and no finality was reached till it was withdrawn by counsel for Samarakoon on 26.9.1984. Learned Queen's Counsel thus contended that, if at all, there was in this respect nothing but a defect in the plaint and Samarakoon's accompanying affidavit which did not amount to a wilful suppression of a material fact. Learned President's Counsel for the plaintiff in the second appeal urged that the Primary Court Judge did not refuse the interim order asked for by Samarakoon on the merits but merely deferred the question of granting the same. He cited authority to show the tests that have been adopted by courts in determining the issue of materiality of a fact. To justify the dissolution of an injunction the suppression or misrepresentation

should be of "such a character as to present to court a case which was likely to procure the injunction but which was in fact different from the case which really existed"-vide Halsbury's Laws of England, 4th Ed., Vol. 24, p.612 and the decisions cited therein. Thus a misstatement of the true facts by the plaintiff which put an entirely different complexion on the case as presented by him when the injunction was applied for ex parte would amount to a misrepresentation or suppression of material facts warranting its dissolution without going into the merits-vide Bambarakelle Estates Tea Co. v. Goonewardene (26), Alphonso Appuhamy v. Hettiarachchi (27) and Moosajees Ltd. v. -Eksath Engineru Saha Samanya Kamkaru Samithiya (28). Learned President's Counsel submitted that in the instant case the failure of the plaintiff to disclose in the plaint or in Samarakoon's accompanying affidavit the fact that the application for an interim order (which was still pending in the Primary Court) was refused for the time being by the Primary Court Judge was of no or, if at all, only of marginal relevance to the question as to whether an ex parte interim injunction or enjoining order ought to issue. The Primary Court Judge had made no pronouncement on the merits of Samarakoon's application for an interim order but had only expressed a disinclination to make such an order at that stage. There was therefore no rejection of Samarakoon's application as erroneously found by the learned District Judge but only a deferment of its consideration until all affidavits were filed. Learned President's Counsel submitted that this was in law the correct position since a Primary Court Judge had, according to him, no jurisdiction to make an interim order until the commencement of the inquiry. S. 67 (3) of the Primary Courts' Procedure Act, he contended, empowered the Judge to make such an order after the commencement and before the conclusion of the inquiry but not before its commencement. An inquiry commences only after the court fixes the case for inquiry under s.66(7) upon the failure of the parties to arrive at a settlement in terms of s.66(6). Upon the basis of this construction learned President's Counsel maintained that the Primary Court was right in refusing to make an interim order at that preliminary stage. This legal submission too does not appear to have been raised at the hearing in the Court of Appeal.

S. 66(6) of the Primary Courts Procedure Act states that the court shall before fixing the case for inquiry endeavour to induce the parties to arrive at a settlement of the dispute. S. 66(7) enacts that where the

parties do not arrive at a settlement, the court shall fix the case for inquiry on a date as specified therein. S-67 in o far as it is relevant for a consideration of the legal submission of learned President's Counsel-stipulates as follows

"67. (1) Every inquiry under this Part shall be concluded within three months of the commencement of the inquiry.

(3) Pending the conclusion of the inquiry it shall be lawful for the judge of the Primary Court to make an interim order containing any provision which he is empowered to make under this Part at the conclusion of the inquiry."

It would therefore appear that the inquiry referred to in s.67 is the inquiry the date of which is fixed under s.66(7) after the filing of affidavits or counter affidavits. The contention of learned President's Counsel is that the opening words in subsection (3) of s. 67, namely pending the conclusion of the inquiry; must in their context be construed to mean after the commencement and before the conclusion of the inquiry. In other words, the construction sought to be placed by him to these opening words is that during the pendency of the inquiry an interim order may lawfully be made but not before its commencement as was done by the learned Primary Court Judge in the case in question. Such a construction, it was urged, was consistent with the plain and ordinary meaning of the, language used in s.67 and also ensured that the principles of natural justice were observed in that all parties were heard by court before an interim order was made, the nature of which, except for its duration, is substantially no different from that of a final order made upon the conclusion of the inquiry. There is force in this legal submission of learned President's Counsel but I am unable to uphold the same for the following reasons. Part VII of the Primary Courts' Procedure Act confers a special jurisdiction on the Primary Court to inquire into and make determinations and orders in respect of disputes affecting land where breaches of the peace are threatened. The purpose of the conferment of this special jurisdiction on a Primary Court is to ensure the speedy and expeditious disposal, either by way of settlement or inquiry, of such disputes with the sole object of preventing the occurrence of the breach of peace that is threatened in the interests of the proper maintenance of law and order. The provisions contained in this Part stipulating prescribed time-limits for the filing of affidavits and counter-affidavits and the holding and completion of inquiries are designed to achieve this object. These disputes very often disclose situations where threat to the peace are imminent unless immediate preventive action is taken by court. If the object of this Part of the Act is to be achieved, such cases require the making of an interim order forthwith by court. To wait until such time as the parties have filed their affidavits (for which purpose a maximum period of 3 weeks could be given by court) or until they have filed their counter-affidavits (for which purpose a further maximum period of 2 weeks could be given by court) or until the commencement of the inquiry on a date not later than another 2 weeks may well result in the actual occurrence of the breach of the peace sought to be averted on the information being filed in court. To hold that in such situations, which are so very frequent, the court is powerless to make an interim order at the earliest stage when the information is filed in court would be conducive to the perpetration than the prevention of the imminent breach of the peace and would set at nougat the entire object of this statutory provision. It would therefore be more in accord with the object and reasoning underlying this Part of the Act to construe the words 'pending the conclusion of the inquiry' to mean until the conclusion of the inquiry and not, as maintained by learned President's Counsel, during the pendency of the inquiry. Nor does the plain language of the section (s. 67) warrant the restricted meaning sought to be placed on it by him. The section does not purport to prescribe the period of time during which an interim order may be made by court but merely specifies the event until the occurrence of which it is open to the court to pass such an order. This view of the meaning of the section would not give cause for a party to the dispute to complain of a violation of the principles of natural justice prior to the making of an interim order. S. 66 ensures the presence in court of the parties to the dispute on the date of the filing of the information by the Police or on the date immediately succeeding thereto on which sittings of court are held. The parties to this dispute thus get an opportunity of being heard before an interim order is made. The nature and purpose of an interim order are such that it is purely a temporary order passed by court for the purpose of preserving the status quo until such time a final order is made. Neither order affects or prejudices the civil rights of any of the `parties to the land in dispute. All these matters go to show that no party can seriously complain of a breach of the audi alteram pattern rule' by virtue of the making of an interim order prior to the commencement of the inquiry. Our attention was also drawn to the fact that the Court of Appeal has over the years consistently taken the

view that an interim order could lawfully be made by a Primary Court Judge even on the date of the filing of the information in court-vide Muthukumarasamy v. Nannithamby (29). A consideration of the above matters make me reject the legal submission of learned President's Counsel.

This brings me to the next question that arises for our consideration, namely, whether the Court of Appeal was justified in the view it took that the non-disclosure by the plaintiff of the fact that the Primary Court Judge had refused to make an interim order in favour of its General Manager, Samarakoon, did not, in the circumstances of this case amount to a wilful suppression of a material fact. What then are these circumstances but for which the non-disclosure would, according to the Court of Appeal, have disentitled the plaintiff to an enjoining order upon the basis of the wilful suppression of a material fact. I am unable to find any such circumstances. The plaintiff sought an ex parte interim injunction against the defendants upon the basis of certain facts as deposed to by Samarakoon in paragraphs 14, 17 and 18 of his affidavit which was filed with the plaint. These facts are substantially the same as those set out in paragraphs 7, 8 and 9 of his affidavit filed in the Primary Court. The substantive relief claimed by the plaintiff in the District Court upon the basis of these facts was, more or less, the same as the interim relief claimed by Samarakoon in the Primary court, namely, for an order restraining the defendants from causing any interference or obstruction to the exercise and discharge of the lawful rights of the plaintiff, Samarakoon arid the plaintiff's representatives and . agents. The dispute that arose between the parties was one which was justiciable by the Primary Court as well as the District Court in the exercise of their different jurisdictions. The Primary Court Judge was by counsel for Samarakoon to issue an interim injunction, by way of interim order, restraining the defendants from committing the above acts. The learned judge refuses: to issue the same at the stage he was invited to do so. Samarakoon who was present in court was undoubtedly aware that his endeavour to obtain an interim injunction failed even though for the time being. Three days later the plaintiff upon the strength of another affidavit from Samarakoon moved the District Court to obtain the same order upon the same facts in respect of the same dispute without disclosing one word that the Primary Court Judge had refused (even though temporarily) his application for a similar order. It is my view that these circumstance if at all, demanded that Samarakoon should have in his second affidavit made a full and true disclosure of

the refusal of the Primary Court Judge to make an order in his favour. This refusal, if disclosed to the District Judge may well have induced him, in the exercise of his discretion, to refrain from issuing an enjoining order. It is very probable that this refusal, if placed before court, may have influenced it not to grant the enjoining order. It thus became a very material fact which ought to have been disclosed by the plaintiff at the time he applied for an ex parte injunction. The endeavours made by both counsel for the plaintiff to play down the full force and effect of the order of refusal by the Primary Court Judge cannot succeed. The refusal was effective as long as it stood and it is this refusal which very probably drove the plaintiff to seek redress in the District Court with such speed and promptitude: I am therefore of the view that the Court of Appeal erred in holding that there was not, in the circumstances of this case, a wilful suppression of a material fact by the plaintiff. On a close and careful consideration of the facts and circumstances upon which the Court of Appeal purported to base its findings which were so forcefully canvassed before us by both counsel for the defendants, I am of the view that the Court of Appeal misdirected itself and that the conclusions arrived at by it are untenable. Hence both appeals are allowed and the judgment of the Court of Appeal is set aside.

After the preparation of my judgment I have had the opportunity and privilege of perusing the judgment of my Lord the Chief Justice. I am, very respectfully, in entire agreement with the additional grounds set out by him in his judgment for allowing both appeals. I also agree, with respect, to the orders made by his Lordship in the concluding paragraphs of his judgment, including the order for costs.

H. A. G. DE SILVA, J.

I have had the advantage of reading the judgments of my Lord the Chief justice and of my brother Atukorale, J. I am in complete agreement with them and I am of the view that for the reasons stated therein the judgment of the Court of Appeal should be set aside and both appeals allowed with costs as stated by my Lord the Chief Justice. I also agree to the other orders and directions made by His Lordship in his judgment.

Appeals allowed.

DAVID APPUHAMY v. YASSASSI THERO

BANDARANAYAKE, J. AND WIJETUNGA, J.

C. A. APPLICATION No. 1376/81.

M.C. MORAWAKA No. 17993.

NOVEMBER 18, 1986.

Revision -Sections 66 and 68 of the Primary Courts Procedure Act No. 44 of 1979 - Rule 46 of the Supreme Court Rules, 1978 - Meaning of 'proceedings' - Jurisdiction of Primary Court under s. 66 - Ex parte order.

Under the Primary Courts Procedure Code Act the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute and if he is of such opinion he is required to file an information regarding the dispute with the least possible delay. Where the information is thus filed in a Primary Court, such court is vested with jurisdiction to inquire into and make a determination or order on the dispute.

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.

An ex parte order made in default of appearance of a party will not be vacated if the affected party fails to give a valid excuse for his default.

Section 68 of the Primary Courts Procedure Act requires the judge of the Primary Court to make a declaration as to who is entitled to possession. Before he could make such a declaration he should make a determination as to who was in possession of the land on the date of the filing of the information under s. 66. Further the Magistrate should evaluate the evidence if there is a dispute regarding identity of the land.

The expression "proceedings" in Rule 46 of the Supreme Court rules means so much of the record as would be necessary to understand the order to be revised and to place it in its proper context.

Cases referred to:

(1) Navaratnasingham v. Arumugam - [1980] 2 Sri LR 1.

(2) Kanagasabai v. Mylvaganam - 78 NLR 280, 286.

APPLICATION for revision from order of the Primary Court Judge of Morawaka.

A. A. de Silva for petitioner.

N. R. M. Daluwatte, P. C. with Mrs. S. Nandadasa for 1st respondent.

Cur. adv. vult.

January 16, 1987.

WIJETUNGA, J.

The petitioner seeks to have the order of the Magistrate, Morawaka dated 31.8.81, made under section 66 et seq. of the Primary Courts' Procedure Act, No. 44 of 1979 revised.

The grounds urged in the petition are that:

(i) the report submitted by the Morawaka Police to the Magistrate does not state that there was a likelihood of a breach of the peace and the Magistrate was thus precluded from continuing these proceedings, as the basis of the court's jurisdiction is threatened or likely breach of the peace;

(ii) the Magistrate had misdirected himself in regard to the order in not taking into consideration matters relevant thereto and the said order is in any event unjust, contrary to law and in excess of his jurisdiction ; and

(iii) the Magistrate should not have held an ex parte inquiry into this matter and should in any event have permitted the petitioner to state his claim and place his evidence and submissions before court, as he had taken immediate steps to purge his default: the order dated 16.11.81 refusing the petitioner's application, to re-open the inquiry is unreasonable and unjust.

Learned President's Counsel for the 1st respondent took a preliminary objection to this application on the ground, that there was non-compliance with Rule 46 of the Supreme Court Rules, 1978.

The preliminary objection relates to the failure of the petitioner to make available to this court a complete set of copies of proceedings in the Court of First Instance, in that the reasons delivered by the Magistrate on 30.11.81, pertaining to the order dated 16.11.81, have not been briefed. That' 'order does not directly affect a , consideration of the order dated 31.8.81 sought to be revised in the present proceedings.

In Navaratnasingham v. Arumugam (1) this court has held that

"In relation to an application for revision the term "proceedings" as used in Rule 46 means so much of the record as would be necessary to understand the order sought to' be revised and to place it in its proper context."

I am in respectful agreement with this View of Soza, J. As the failure to provide copies of. the, reasons delivered on 30.11.81 does not prevent this court from reviewing . the order dated 31.8.81, l would hold that there has been sufficient compliance with. Rule 46 for the purpose of this application.

I shall now deal with the first ground on which the order of the learned Magistrate is being challenged, viz. that the court had no jurisdiction to inquire into this matter. The basis of this submission is that the report of the O.I.C., Morawaka Police dated 7.7.80 does not refer to a threatened or likely breach of the peace and the court had, therefore, acted without jurisdiction. However, the said report. makes specific reference to section 66 of the Primary Courts' Procedure Act, which deals with disputes affecting land where a breach of the peace is threatened or likely. Further, the affidavit of 21.7.80 of the present 1st respondent (who was also the 1st respondent to that application) clearly states ;that the act of the present petitioner (who was the 2nd respondent to that application) can lead to a breach of the peace.

On 31.8.81 when the Magistrate took up this matter for inquiry, he has stated that he proposed to make an order thereon as it was likely to lead to a' breach of the peace. In any event, no objection had been taken to the jurisdiction of the court when the matter was being inquired into by that court:

The case of Navaratnasingham v. Arumugam (supra) (1) is again relevant to a consideration of this aspect: of the matter. That case too dealt with an application under section 62 of. the Administration of Justice Law No. 44 of 1973, which corresponds to section 66 of the present Primary Courts' Procedure Act. There too it was submitted that the Magistrate was not vested with jurisdiction to proceed in the matter as he had. failed initially to satisfy himself of the likelihood of a breach of the peace. This court held that such an objection to jurisdiction must be taken as early as possible and the failure to take such objection when the matter was being inquired into must be treated as a waiver on the part of the petitioner. It was further held that where a matter is within the plenary jurisdiction of the court, if no objection is taken, the court will then have jurisdiction to proceed and . make a valid order. The, dicta of Soza, J. in this regard too, which I would adopt, apply to the instant case.

Further; there is a significant difference between the provisions of the Primary Courts' Procedure Act relating to inquiries into disputes affecting land where a breach of the peace is threatened or likely and the corresponding provisions in the Administration of Justice Law. Under section 66 of the present Act, whenever owing to a dispute affecting land, a breach of the peace is threatened or likely, the police officer inquiring into the dispute is required. with the least possible delay to file an information regarding the dispute in the Primary Court within whose jurisdiction the land is situate. When an information is thus filed in a Primary Court, that court is vested with jurisdiction to inquire into and make- a determination or order on the dispute regarding which the information is, filed.

The corresponding section 62 of the Administration of Justice Law provided that whenever a Magistrate, on information furnished by any police officer or otherwise, has reason to believe that the existence of a dispute affecting any land situated within his jurisdiction is likely to cause a breach of the peace, he may take steps to hold an inquiry into the. same in the manner provided for by that Law, Thus, under the Administration of Justice Law, for a Magistrate to exercise power under section. 62 he had to be satisfied on the material on record that there was a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under that section. The power-conferred by that section was in subjective terms - the Magistrate, being the competent authority, was entitled to act when he had reason to believe that the existence of a dispute affecting land was likely to cause a breach of the peace. The condition precedent to the excercise of the power was the formation of such opinion - the factual basis of the opinion being the information furnished by any police officer or otherwise. Kanagasabai v. Mylvaganam (2) .

But, under section 66 of the Primary Courts' Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute and he is, in such circumstances, required to file an information regarding the dispute with the least possible delay. Where the information is thus filed in a Primary Court, subsection (2) of that section vests that court with jurisdiction to inquire into-and make a determination- or order on the dispute regarding which the: information is filed. Hence, in the instant case, when the- O. I. C. Morawaka Police filed the information under section 66: of the said Act, the court was thereby vested with the necessary jurisdiction. ,

Thus, whichever view one takes of the matter, the petitioner fails in his application on the first ground referred to above.

It will be convenient at this stage to deal with the third ground on which the petitioner relied, viz. that he should have been permitted by the Magistrate to re-open these proceedings and that the refusal to vacate the ex-parte order was unreasonable and unjust.' On this aspect of the matter, the reasons dated 30. 11. 81 have not been briefed to this court by the petitioner and consequently the court is unable to consider. the same. However, according to the affidavit of the present petitioner dated 1.9.81, his failure to .attend .court on 31.8.81 had been due to, an error on the part of his Attorney-at-Law who had allegedly written out the date as 31st September, 1981. It should be obvious to anyone, that the month of September has only 30 days and it is. not conceivable that the present petitioner would have. been misled in this manner. Further, in the objections filed by the 1st respondent in this court, he has stated that the petitioner defaulted in appearance not for the reasons given by him but because of his son's wedding. The petitioner, though he has filed counter objections, has not denied that his son's wedding was on this date. In the submissions made by his Attorney-at-Law before the Magistrate on 16.11.81, he had admitted that the petitioner's son's wedding took place on this date, but has stated that his absence from court was not due to that reason. In any event, the learned Magistrate having considered these submissions, has rejected them. In the result, the petitioner cannot succeed on this ground too.

The second ground urged in the petition relates to the validity of the order made on 31.8.81 by the Magistrate.

The relevant subsections of section 68 of the Primary Courts' Procedure Act are as follows:

(1) "Where the dispute relates to the possession of any land or' part thereof it shall be the duty of the Judge of the 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."

(2) "An order under subsection (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 an order or decree."

This section requires the, Judge of the Primary Court to make a declaration as to who is entitled to possession of the land. The basis of such declaration is the, determination as to who was in possession of the land ;on the date of the filing of the information under section 66.

Nowhere in the order complained of has the Magistrate made such a determination. After a brief narrative of the facts relating to this matter, the Magistrate has stated that he declares the 1st respondent entitled to possession of the portion of land which is the subject matter of this dispute: Before he could have made such a declaration, there should have been a determination as to who was in possession of the land on the date of the filing of the information.

In this, context, there is merit in the complaint that the -learned Magistrate has misdirected himself when he stated in the order that the. court need not determine as to whether the land in dispute is the northern portion of the land called, Benwalatalawa, about 1/4 acre in extent, or not. The very basis of the claim. of the present petitioner, as is evidenced by the affidavit that he had filed in the original court, is that the subject matter of the dispute is the northern portion of the land called Benwalatalawa, about 1/4 acre in extent and that he present 1st respondent has incorrectly referred to that land as Palupansalawatte. The northern boundary of the land in dispute, according to him, is Palupansalawatte and he claims that he was in undisturbed possession of the said land for over 30 years. He has further referred to the order in case No. 4892/L of the District Court of Matara dated 6.2.80 in terms of which he had completed construction of the, building which the 1st respondent is now complaining about.

The 1st respondent in his affidavit dated 21.7.80, while claiming that the subject matter of the dispute is a portion of the land called Palupansalawatte; has denied that the land in question is Benwalatalawa.

Thus, on the affidavits filed, there was adequate material to alert the Magistrate to the true nature of the dispute, which he appears to have chosen to ignore:

In para. 4 of the petition filed in this court, the petitioner has stated as follows:

"The respondent filed an action in the D. C. Matara L/4892 against the petitioner and sought an injunction as well against the petitioner restraining the, petitioner from constructing an additional building adjoining the 'old house which was in occupation of the petitioner for well over thirty years on the land Benwalatalawa. The respondent first obtained an interim' injunction ex parte against the petitioner preventing the construction of the said building-but on 26.2.80 the injunction was dissolved by consent of parties and the petitioner was allowed by the District Court to continue the construction and complete the building on condition that if the respondent was declared entitled to the land in question (in case No. 4892/L) the petitioner would not be entitled to claim compensation for the building. The petitioner produces a certified copy of the said order of 26.2.80 marked P2."

In regard to. this averment, the 1st respondent, in his statement of objection dated 19.3.82 filed in this Court, has stated in para. 5 as follows

"This respondent states with reference to paragraph 4 of the petition, that the petitioner unlawfully entered the land in dispute and -began to build on the same whereupon this respondent instituted D C. Matara Case No. 4892/L. However, the plantations were in the possession of this respondent: "After dissolution of the injunction, as stated in paragraph 4 of this petition.; the petitioner not only completed the building, referred to in the said injunction proceedings, but also began to construct a new building, whereupon the Dayakayas of the temple became restive and there . was a serious threat to the peace. This respondent complained to the police who instituted these proceedings."

This is an admission by the 1st respondent that the subject matter of the instant case as well as of D. C. Matara Case No. 4892/L, is the same. In para. 4 of the petition, the petitioner has stated that D. C. Matara case No. 4892/L was an action relating to the construction of an additional building adjoining the old house which was in the occupation of the petitioner for well over 30 years, on the land called Benwalatalawa. By the order dated 26.2.80 (P2), the petitioner had been permitted to complete the construction of that building subject to the terms and conditions contained therein. The parties to that action were the same.

Plan No. 895 of 27.5.1895, which has been filed marked, P 1 with the present petition, shows the land called Palupansalawatte to the north of Beawalawatte and the allotment, of land surveyed is called Benwalatalawa.

It is also to be noted that while the date of the order P2 in D. C. Matara Case No. 4892/L is 26.2.80, the complaint in the present case has been made by the 1st respondent on 3.7.80. Documents P6, P7, P8, P9., P 10, and P 1 1 filed with the counter affidavit of the petitioner dated 12. 6. 82, refer to the northern boundary of Benwalatalawa as Palupansalawatte. The plans marked P 13, P 14 and P 15 indicate a roadway to the north of the land called Benwalatalawa, which separates it from Palupansalawatte and the petitioner claims the physical impossibility of encroaching on Palupanasalawatte by building on his land, as the road separates the two lands.

Although this material was not available to the learned Magistrate at the time he made the order complained of, on the affidavits filed it should have been clear that the crux of the dispute between the parties was whether the corpus was Benwalatalawa or Palupanasalawatte. It was, therefore, incumbent on the Magistrate to have determined the identity of the land which was the subject matter of this dispute. He was thus in error when he lightly dismissed the claim of the petitioner that the land in dispute was Benwalatalawa and proceeded to state that the court need of make such a determination.

It is clear from the order of the learned Magistrate that he had not directed his attention to the vital question as to who was in possession of the land in dispute on the date of the' filing of the information under section 66. In the absence of such a determination, he could not have made a valid declaration and prohibition as required by subsection (2) of section 68. The petitioner is, therefore, entitled to succeed on this ground.

For the reasons aforesaid, I am of the view that this case calls for the exercise of the revisionary powers of this court. Accordingly, acting in revision, I set aside the order of the Magistrate dated 31.8.81 and remit the case to the court below with the direction that the Magistrate should proceed to hold an inquiry afresh and make an appropriate order thereon according to law.

The petitioner will be entitled to the costs of the application to this court, from the 1st respondent.

BANDARANAYAKE, J. - I agree.

Order set aside.

Case remitted for fresh inquiry.

JAMIS VS KANNANGARA

1999 2 SLR 350 - COURT OF APPEAL

P.R.P. PERERA, J. & PALAKIDNAR, J.

C.A. No. 89/89 - P.C. RATNAPURA No. 191(92031) - JUNE 15 AND JULY 5, 1989.

Lease - Landowner leasing gemming rights - Landowner being in occupation builds house - Can removal of house be ordered? - Primary Courts Procedure Act, section 69(2) - Indian Criminal Procedure Code, section 147(2).

One Jamis gave a lease of gemming rights of a land in his occupation. He built a house on it to the detriment of the lessee's gemming rights. The Primary Court ordered the removal of the house acting under section 69(2) of the Primary Courts Procedure Act.

Held:

The order that can be made under section 69(2) in regard to a right to any land other than the right to possession is a declaration of entitlement of such right after determination by the court subject to a final determination by a competent court and prohibition of all disturbance or interference with the exercise of such right by such a party. The order is of a prohibitory nature preventing an interference with the exercise of such a right. This cannot include a positive order of removal of a structure.

Case referred to:

1. Banerjie v. Rahman 29 AIR 1942 Calcutta 244.

APPLICATION for revision of an order of the Primary Court of Ratnapura.

Mahanama de Silva for petitioner. Sanath Jayatilleke for respondent.

Cur. adv. vult. - October 20, 1989.

PALAKIDNAR, J.

Jamis the Petitioner is a co-owner, of a land called "Gatanigewatta" in the Ratnapura District. Kannangara the Respondent in year 1979 obtained a ten year lease of gemming rights on this land till 14th June 1989. It was also stated in the lease that the Respondent, Jamis should not disturb Kannangara in digging gem pits and gemming in this land.

The learned Primary Court Judge by his order dated 26.1.89 declared that in terms of the lease Kannangara has a right to gem in this land and that such right should not be disturbed. Proceeding further in the order the Primary Court Judge observed that there was no mention of any disturbance to the gemming rights of the Respondent Kannangara. The complaint was regarding the building of a house on the land in dispute on the 30th August 1987 by Jamis and his children who were in occupation of this land. The complainant further told the police that this building should be stopped till this land was divided. He based his claim on the footing that he had rights in this land.

The learned trial Judge having correctly assessed the dispute, however proceeded to hold that Jamis in building a house was trying to create a new possession and issued an order that this house should be removed by the Police.

It was conceded by the complainant in his complaint that Jamis was living on this land. Thus the dispute was an extention of Jamis's possession to the detriment of Kannangara's rights under the lease.

Thus if there was any infringement of such a right it would be of a breach of contract under the lease. The remedy is a civil one in terms of damages arising out of such breach.

It is to be noted that the learned trial Judge has not viewed the dispute in this manner. There is a finding of fact that Kannangara's gemming rights have not been disturbed.

It now remains to be considered whether the Primary Court Judge's order to remove the structure could have been lawfully made within the ambit of the powers given to him by section 69(2) of the Primary Courts Procedure Act.

The order that can be made under this subsection in regard to a right to any land other than the right to possession is a declaration of entitlement of such right after determination by the court subject to final determination by a competent court and prohibit all disturbance or interference with an exercise of such right by such party.

The order therefore is clearly of a prohibitory nature preventing an interference with the exercise of such a right.

Whether such an order would lawfully include the removal of a structure is a matter which can only draw a negative reply. An order to remove the structure is not an order prohibiting the disturbance or interference with a declared right. An order of removal is a positive order. Such an order was considered in testing the validity of an order made by a Magistrate to remove a stable which was erected to obstruct a pathway under section 147(2) of the Indian Criminal Procedure Code. The words of the section are identical with the words of section 69(2) of the Primary Courts Procedure Act, No. 44 of 1979.

A full bench of the Calcutta High Court in the case of Banerjie vs. Rahman (1) held that the words making an order prohibiting any interference with the exercise of such right does not vest a Magistrate with power to make a positive order of removal of a stable built on a path.

I agree with that view and set aside the order of the learned Primary Court Judge and grant relief as prayed for by the Petitioner to this application with costs fixed at Rs.325/-.

P.R.P. PERERA, J. - I agree.

Order set aside.

RATNAYAKE VS PADMINI DE SILVA AND ANOTHER

1990 2 SLR 191

COURT OF APPEAL,

WIJETUNGA, J. AND WIJEYARATNE, J.,

C. A. No. 612/89 - M. C. KURUNEGALA No. 19272,

FEBRUARY 7 AND 8, 1990.

Civil Procedure-Primary Courts Procedure Act - Failure to affix notice under S. 66(4) on the disputed land. - Revision - Article 138 (1) of the Constitution.

Failure to cause the notice to be affixed on the land as required by S. 66 (4) of the Primary Courts Procedure Act does not affect the jurisdiction of the Court but is only an irregularity in procedure. Under S. 66(2) where an information is filed under subsection (1), the Court is vested with jurisdiction. The other provisions which follow deal with the manner of exercising such jurisdiction. Non-compliance with every rule of procedure does not destroy the jurisdiction of the court. While in some cases it may be only an irregularity, in other cases it may amount to an illegality and thus vitiate the proceedings. The object of affixing a notice in some conspicuous place on the land which, is the subject matter of the dispute is to bring the proceedings to the notice of all persons interested in such dispute and thereby to enable them to participate in such proceedings. In the instant case, it is not suggested that there are any third parties interested in the dispute who would have appeared in court if the notice had been so affixed. No prejudice was caused and the objection itself was taken belatedly.

Wijetunga, J.- " It is well to bear in that the duty is cast by S. 66 (4) on the court to cause the notice to be affixed on the land ".

Cases referred to

(1) Craig V. Kanseen [1943] 1 all ER 108

(2) In Re Pritchard, [1963] 1 All ER 873

(3) Emperor V Sis Ram and others AIR 193 Lahore 895

(4) Emperor V. Hira Lal AIR 1933 Allahabad 96

192

(5) Thambipillai V Thambimuttu S.C. Application No. 927/74 M. C. Kalmunai No. 63310, S.C. minutes of 25.06.75

(6) Ivan de Silva V. Shelton de Silva S.C. Application No. 148/76 M. C. Panadura No. 45437 S. C. minutes of 10.02.1977

(7) Debi Prasad V. Sheodat Rai (1908) 301. L. R. 41

(8) Sukh Lal Sheikh V. Tara Chand Ta (1905) 33 Calcutta 68 (FB)

(9) Ramalingam V Tangarajah [1982] 2 Sri LR 693

APPLICATION in revision of the order of the Primary Court Judge of Kurunegala.

Dr. H. W Jayawardena, Q.C. with J. Salwatura for respondent-petitioner.

Faiz Mustapha, P. C with Mahanama de Silva, H. Withanachchi and J. Wickramarachchi for petitioner-respondents.

Cur. adv. vult. - May 4, 1990

WIJETUNGA, J.

Proceedings in this case had commenced in the Primary Court of Kurunegala under case No. 34372, upon an information filed by the petitioners-respondents (hereinafter referred to as the respondents) naming the respondent-petitioner (hereinafter referred to as the petitioner) and two others as respondents, being the other parties to the dispute.

In the affidavit of the respondents dated 14.10.1986, it is stated inter alia that the 1st respondent was the tenant of the boutique-room, the subject matter of this dispute, since 1963 and was in uninterrupted possession thereof until 7.10.1986. The rents had been paid in the name of the 1st respondent's husband from 1963 to 1966, in the name of the 1st respondent from 1966 to 1980 and in the name of the 1st respondent's daughter from 1980 to 1986. A business styled " Champika Photo " had been carried on in these premises until a few months prior to this incident. Thereafter, the premises were used as a store and also as the sleeping quarters of the 2nd respondent and his servants. On 7.10.1986 when the 2nd respondent went to the said premises for the night as usual, the petitioner and the other two persons named as respondents in the information filed in the Primary Court, together with a large crowd of unidentified persons, had threatened and chased away the 2nd respondent. They had forced open the door by breaking the padlock, entered the premises and locked the same with a new padlock. The respondents had produced copies of the complaints made by the 1st respondent to the Mawathagama Police as P2, that of the 2nd respondent as P3 and a statement of the witness Sujith Weerawardena as P4, together with their petition and affidavit. They had alleged that as a result of the petitioner and the others forcibly entering the said premises, a breach of the peace was threatened. They had also furnished a list of items belonging to them which were in the said premises as P5. They had further alleged that the Mawathagama Police had not taken action on their complaints and had sought inter alia an interim order removing the petitioner and the other two persons from the said premises, for an inventory of the articles lying in the said premises to be taken through a Receiver appointed by the Court and for the premises to be sealed pending the final determination of this application. Accordingly, on 14.10.1986, on the exparte application of the present respondents, the Primary Court Judge who had been of the opinion that on the material disclosed in the affidavits and the other documents, a breach of the peace was threatened, had made an interim order appointing a Receiver and directing that a list of articles lying in the premises be taken, that all persons in the said premises be removed and the building in question be sealed. He had further directed that notices be issued on the present petitioner and the other two persons aforesaid (who were named respondents to that application). On 15.10.1986, it had been brought to the notice of the Court that the order could not be carried out as the premises were padlocked and the Court had thereupon made order that the Fiscal break open the premises. That order had been carried out under the directions of the Fiscal and an inventory of articles obtained and the premises sealed.

Thereafter, the petitioner had filed a Revision application in this Court bearing No. 1234/86 and had obtained an order staying further proceedings in the said case. The petitioner had again invoked the jurisdiction of this Court in Application bearing No. 1439/86 praying for a transfer of the said case to another Primary Court and this Court had, on 3.12.1986, made order transferring the said case to the Magistrate's Court of Kurunegala.

On the case being so transferred to the Magistrate's Court of Kurunegala, it had been assigned the No. 19272 and the parties had appeared in Court on notice on 3.9.1987. On that day the matter had been fixed for inquiry on 12.1 1.1987. On 21.9.1987, the present petitioner had filed his affidavit which, though objected to by the respondents on the ground of default, had later been admitted by agreement of the parties. By that affidavit, the petitioner had stated inter alia that the premises in question had been purchased by the Sri Lanka Samodaya Foundation, of which he was the General Manager of the Mawathagama Branch, upon deed No. 876 dated 17.10.1986 attested by S. W. P. M. G. B. Senanayake, Notary Public. He had further stated that he had taken possession of the said building on 7.10.1986 from one Weerasinghe who had obtained such possesion from one Jayawansa. Thus he had claimed that he had obtained possession 10 days prior to the date of purchase viz., on the date on which the present dispute arose.

Although the inquiry had originally been fixed for 12.1 1.1987, it had been postponed on several occasions and on 10.5.1989 the parties having stated that they were not objecting to the affidavits filed, had moved that the matter proceed to inquiry on those affidavits. It is only on 5.7.1989, after Counsel for the respondents had closed his case, that Counsel for the present petitioner had, for the first time, raised an objection on the basis that there had been non-compliance with Section 66(4) of the Primary Courts' Procedure Act, in that, no notice had been affixed on the land which is the subject-matter of this dispute. The court had directed that written submissions be filed on 19.7.1989. Whereas the respondents had complied with that order, the petitioner had failed to do so. The matter was thereafter set down for order on 2.8.1989, on which date the petitioner had tendered some written submissions. The Court had rejected those submissions and delivered its order. By that order the learned Magistrate had held that the respondents had been in possession of the said premises prior to and on 7.10.1986 and had directed that the respondents be once again placed in possession thereof, if necessary, by executing writ. Pursuant to that order, the Fiscal had handed over the said premises to the respondents on 3.8.1989. By his present application, the petitioner seeks to revise that order.

The sole question that was urged before us was the failure to affix the notice on the land in question as required by Section 66(4) of the Primary Courts' Procedure Act. It was the contention of learned Queen's Counsel for the Petitioner that the Court had violated a fundamental provision of law by its failure to cause a notice to be affixed on the land which is the subject-matter of the dispute announcing that a dispute affecting the land had arisen and requiring any person interested to appear in Court on the date specified in such notice.

Learned President's Counsel for the respondents, on the other hand, while conceding that no notice had been affixed on the land as required by Section 66(4), submitted that non-compliance with the provisions of that section was merely a procedural irregularity and that the objection in . any event had been belatedly taken. It was his submission that this Court should not excercise its extraordinary powers of revision in the facts and circumstances of this case, as that irregularity has not prejudiced the substantial rights of the parties or occasioned a failure of justice.

Learned Queen's Counsel for the petitioner cited a number of authorities in support of his contention that Section 66(4) was an imperative provision of law and the Court, by its failure to cause the required notice to be affixed on the land had violated a fundamental legal provision. I shall refer to those authorities presently.

In Craig v. Kanseen, (1) it has been held that the failure to serve the summons upon which the order in the case was made was not a mere irregularity, but a defect which made the order a nullity, and therefore, the order must be set aside.

In Re Pritchard, (2) where the originating summons had not been issued out of the Central Office but from a District Registry, it has been held (Lord Denning, M.R., dissenting) that there had not been any commencement of proceedings and the originating summons was a nullity : there was not a mere irregularity but a fundamental defect.

In Emperor v. Sis Ram and others, (3) which dealt with similar provisions of Section 145(1) of the Indian Criminal Procedure Code relating to possession of land where there is an imminent danger of a breach of the peace and where the Magistrate's Order was challenged on the grounds inter alia that no notice was served on the other party according to law nor was a copy of the notice affixed to some conspicuous place at or near the house in dispute, it has been held that the provisions of that section are mandatory and consequently if no notice is issued as required and there is no finding that there was a danger of a breach of the peace, the order under Section 145 becomes ultra vires.

In Emperor v. Hira Lal, (4) it has been held that Section 145 of the Indian Criminal Procedure Code is provided in order that a Magistrate may prevent a breach of the peace arising from a dispute as to immovable property and he has no jurisdiction in such a matter unless he is fully satisfied that there is a danger of a breach of the peace and . . . . . . he must give the parties notice that it is to prevent a breach of the peace that he is taking action under that section and if he fails to do so the primary intention of the Section is lost. The order of the Magistrate was accordingly set aside.

I shall now refer to the authorities cited by learned President's Counsel for the respondents in support of the proposition that such noncompliance amounted only to a procedural irregularity.

In Thambipillai v. Thambimuttu, (5) it has been held that the purpose of affixing a notice on the land was to give constructive notice to the parties concerned and where the parties were brought to Court on the date of the information, the necessity did not arise to affix such notice in a conspicuous place at or near the land.

In Ivan de Silva v. Shelton de Silva, (6) where complaint was made in revision that the Magistrate had failed to comply with the provisions particularly in regard to the affixing of the notice on the land, but the only parties concerned in the dispute were aware of and present at the inquiry and no objection was taken in regard to the failure to comply with these provisions except at the concluding stages of the inquiry, it has been held that the failure to comply with procedural requirements, in regard to notices and statements of claim do not affect the question of jurisdiction and would not constitute a fatal irregularity.

In Debi Prasad v. Sheodat Rai, (7) where in proceedings under' Section 145 of the Indian Criminal Procedure Code, no notice was affixed at or near the subject of the dispute, it has been held that notwithstanding that the procedure of the Magistrate was in some respects defective, there was no cause for the. exercise of the revisional jurisdiction of the High Court, inasmuch as the parties had been given an opportunity of representing their respective cases and there was nothing to show that the irregularities in procedure which had occurred had caused any prejudice to either.

In Sukh Lal Sheikh v. Tara Chand Ta, (8) Where the Magistrate drew up an initiatory order under S. 145, CI. (1) of the Indian Criminal Procedure Code, but omitted to direct the publication of a copy of it at or near the subject of dispute and it was not so published in accordance with CI. (3) of that Section, it has been held that the provision as to the publication of a copy of the order in S. 145, CI. (3) of the Code is directory and relates to a matter of procedure only and not of jurisdiction ; that if CI. (1) of S. 145 has been complied with, the Magistrate has jurisdiction to deal with the case and the mere fact that he omitted to have a copy of such order published by affixing it to some conspicuous place at or near the subject of the dispute does not deprive him of jurisdiction, but is an irregularity in his procedure.

In Ramalingam v. Thangarajah, (9) where the appellant complained that the proceedings offended the mandatory provisions of Part VII of the Primary Courts' Procedure Act (relating to inquiries into disputes affecting land where a breach of the peace is threatened or likely) and were therefore null and void, it was held that the provisions as to time limits in Section 66 or 67, though the word 'Shall' there suggests that they are mandatory, should be construed as being directory and that non-compliance by Court of the provisions of Section 66 or 67 of the Act does not divest the Court of the jurisdiction conferred on it by Section 66(2).

On a consideration of the authorities cited by learned counsel on both sides, it seems to me that the failure to cause the notice to be affixed on the land does not affect the jurisdiction of the Court but is only an irregularity in procedure. Under Section 66(2), where an information is filed under subsection (1), the Court is vested with jurisdiction. The other provisions which follow deal with the manner of exercising such jurisdiction. Non-compliance with every rule of procedure does not destroy the jurisdiction of the Court While in some cases it may be only an irregularity, in other cases it may amount to an illegality and thus vitiate the proceedings. The object of affixing a notice in some conspicuous place on the land which is the subject-matter of the dispute ' is to bring the proceedings to the notice of all persons interested in such dispute and thereby enable them to participate in such proceedings.-In the instant case, it is not suggested that there were any third parties interested in the dispute who would have appeared in Court if the notice had been so affixed. On the contrary, on the petitioner's own affidavit filed in the Court below, he was the. only party, other than the respondents, who had an interest in this dispute, as he claims to have obtained possession of the subject-matter of the dispute on the date of such dispute and had secured a transfer of the said property ten days later. There is also the further circumstance that by reason of the interim order made by the Primary Court Judge, the Fiscal had broken open the premises in dispute and sealed the same. The learned Magistrate observes in her order that on a consideration of the report relating thereto, it is abundantly clear that the public of the entire Mawathagama town would in consequence have had notice of this dispute. She further states that the record shows that this dispute had received much more publicity than through affixing a notice. But, no one other than these parties to the dispute had made any claims in respect thereof.

This certainly does not mean that judges need not strictly comply with these provisions or are free to adopt procedures of their own. The very fact that this objection has been taken in these proceedings demonstrates the necessity for such strict compliance. It is well to bear in mind that the duty is cast by Section 66(4) on the Court to cause the notice to be affixed on the land. A party in whose favour an order is made should not be exposed to the risk of having such order challenged by the opposing party due to lapses on the part of the Court.

But, in the instant case, it is patently clear that no prejudice has been caused to any party by the Court's failure to cause the notice to be affixed on the land as required. The only parties interested in the dispute were aware of and had participated in the inquiry. The facts and circumstances 'of this case do not indicate that there was any other person interested in the dispute who could not'-have been reached otherwise than through a notice being affixed on the land. Thus, in my view, there had only been a procedural irregularity which did not deprive the court of its jurisdiction to proceed with the inquiry and make an appropriate order.

The next question that would, therefore, arise is whether this Court should exercise its extraordinary powers of revision in a case such as this. As was stated earlier, the original Court's failure to cause the notice so be affixed on the land has not resulted in prejudice to any party. It is not suggested that there is some other party interested in the dispute who would have appeared in Court had such notice been affixed. In fact, the proceedings do not disclose such a likelihood. The objection itself had been belatedly taken at the very concluding stages of the inquiry after the present respondents had closed their case. Nor has the order of the Magistrate been attacked in regard to her findings. It is indeed a well. considered order, supported by the material on record. The respondents have already been, placed in possession by the Fiscal pursuant to the said order. Proceedings had commenced as far back as . 1986. The order complained of, in any event, does not affect the civil rights of parties. The proviso to Article 138(1) of the Constitution itself lays down that no judgment, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice.

For the reasons aforesaid, I am of the view that this case does not warrant interference by this Court, particularly in the exercise of its discretionary and extraordinary powers of revision and would accordingly, dismiss this application.

In all the circumstances of this case, I make no order as regards costs.

WIJEYARATNE, J. - I agree.

Application dismissed.

SILINONA v.DAYALAL SILVA AND OTHERS

1992 1 SLR 95

COURT OF APPEAL

S. N. SILVA, J.

C.A. NO. 17/84; M.C. KALUTARA NO. 45428

29 JUNE, 1990

Primary Courts Procedure Act - Dispute regarding a right of way - Scope of sections 66(3) and 66(8)(b) - Application for postponement to rile affidavit - No order on the application but case fixed to be called on a later-date - Interpretation of time limits in statutes - Mandatory and directory provisions - Scope of maxim "act of court cannot prejudice a party" (actus curiae neminem gravabit).

In proceedings which had commenced under Section 66(1) of the Primary Courts Procedure Act, No. 44 of 1979, the petitioner's attorney-at-law moved for further time to file the petitioner's affidavit. The court made no order on this application but made order that the case be called next on another date, on which date the petitioner tendered her affidavit. Attorney-at-Law for the respondent objected to this affidavit being accepted on the ground that the petitioner was in default in terms of Section 66(3) read with Section 66(8)(b). The learned Magistrate. upheld this objection but the petitioner's affidavit had been filed of record. In revision it was argued by counsel for the petitioner that, since no order was made by the learned Magistrate when the petitioner had moved for further time to file her affidavit, her application should be considered as having been allowed. It was therefore argued that there was no default on the part of the petitioner as contemplated by Section 66(3) read with Section 66(8)(b) of the Primary Courts Procedure Act.

Held:

(1) The time limit of 3 weeks within which a party is required to file his affidavit under Section 66(3) is mandatory because statutory time limits within which a party is required to act are mandatory as distinguished from acts required to be done by a court, where the provision of time limits should be considered as being directory. Consequently the petitioner was in default in terms of Section 66(8)(b).

(2) In circumstances where a court makes no order on an application made by a party for a postponement to perform a mandatory statutory act, the maxim that an act of a court cannot prejudice a party (actus curiae neminem gravabit) cannot have application.

(3) Although a party may be in default in terms of Section 66(3) the documents and affidavits filed of record must be considered before making an order.

Case referred to:

1. Ramalingam v. Thiagarajah Sri Kantha's Law Reports, Vol. 132

APPLICATION in revision of the order of the Magistrate of Kalutara.

J. P. de Almeida Gunaratne for petitioner.

D. Fernando, PC with S. Peiris for respondents.

Cur adv vult.

19th June, 1990.

S. N. SILVA, J.

The petitioner has filed this application in revision against the order dated 30.11.83 made by the learned Magistrate of Kalutara. That order was made in a proceeding instituted under Section 66(i) of the Primary Courts Procedure Act No. 44 of 1979. The proceeding was instituted by the Officer-in-Charge of Aluthgama Police by filing the information dated 24.8.83. That information states that there is a dispute between the petitioner and the 1st and 2nd respondents with regard to a right of way.

It appears that the information was filed in court on 10.8.83 and on that date the petitioner- and the 2nd respondent were present in court. On that date, the court directed that notice be fixed on the land and also directed that affidavits be filed on 24.8.83. (the fact that the court made an order that affidavits be filed on 24.8.83 is borne out by the order made by court on 30.11.83).

On 24.8.83 the petitioner was not present, but she was represented by an Attorney-at-Law. The 1st and 2nd respondents to this application were present and their affidavits were tendered to Court.' The Attorney-at-Law for the petitioner moved for further time to file an affidavit. It appears from the proceedings that no order was made by court on this application. The case was to be called next on 7.9.83.

On 7.9.83 the petitioner was present and her affidavit was tendered The Attorney-at-Law for the 1st and 2nd respondents . objected to this affidavit being accepted and moved that the petitioner be considered as being in default. The court by its order dated 30.11.83 upheld the objection of the 1st and 2nd respondents. The order states that the petitioner is deemed to be in default in terms of Section 66(8)(b) of the Primary Courts Procedure Act No. 44 of 1979.

Mr. Gunaratne appearing for the petitioner submitted that the court was in error when it made the said order. Counsel submitted that the petitioner made an application on 24.8.83 for further time to file her affidavit. Since no order was made by court on this application it is submitted that the application should be considered as having been allowed. On this basis Counsel submits that there was no default on the part of the petitioner since affidavit was filed on 7.9.83 being the next date.

Learned President's Counsel appearing for the 1st and 2nd respondents submitted that in terms of Section 66(3) petitioners are obliged to file their affidavit on or before the date fixed by the court, which should be not later than 3 weeks. It was submitted that if there is default in this respect, the provisions of section 66(8)(b) 'should apply. Counsel further submitted that the petitioner has filed the affidavit well outside the period of 3 weeks provided for under Section 66(3).

I have carefully considered the submissions of Counsel. The petitioner had been granted time till 24.8.83 to file her affidavit. No order has been made on 24.8.83 allowing the application of the petitioner, for further time. In these circumstances, it cannot be inferred that the court permitted the petitioner further time.

I am of the view that there is some merit in the submission that the petitioner should have been permitted to file the affidavit on any date within 3 weeks. Even if this submission is accepted, I note that the affidavit had in fact been filed outside the period of 3 weeks that is provided for by Section 66(3).

Counsel for the petitioner relied on the judgment of Sharvananda, C.J. in the case of Ramalingam v. Thiagarajah (1). The particular passage at page 39 relied upon by the counsel shows that a distinction should be drawn between the time periods that are specified for acts to be done by the parties on the one hand and acts to be done by the court on the other. It is clear from the judgment of Sharvananda, C.J. that where an act has to be done by the court, the provision of time limits should be considered as being directory. In this case, we are concerned with an act that has to be done by a party.

In the circumstances, the requirement that a party should file the affidavit on the date specified by court for that purpose, within 3 weeks, should be considered as mandatory. Therefore, the judgment of the Supreme Court does not support the argument of the counsel.

The other matter relied upon by Counsel is that the act of the court cannot prejudice the petitioner. This submission is based on the premise that on 24.8.83 the court allowed the application of the petitioner. The proceedings clearly show that no order was made on this application. In these circumstances, I am of the view that there is no act on the part of the court that has prejudiced the petitioner. The petitioner failed to file her affidavit within the period of 3 weeks provided for in Section 66(3). Therefore the default clearly lies on her.

For the reasons stated above, I see no error of law in the order dated 30.11.83 made by the learned Magistrate.

Counsel for the petitioner submits that although the petitioner is considered as having been in default, section 66(8)(b) directs the court to consider such material as is before it in respect of the claims of the petitioner. Counsel submits that an affidavit and a counter affidavit had been filed by the petitioner before the order dated 30.11.83 was made. In these circumstances, it is submitted that these 2 documents be considered by the court in making its final order. The learned President's Counsel does not dispute this interpretation of section 66(8) of the Act.

In these circumstances, I refuse the application in revision and direct the court to inquire into the information and to make an order according to law considering the documents and affidavits that have now been filed by the parties to the dispute including -the petitioner. The petitioner shall not be entitled to participate at this inquiry as provided for in Section 66(8)(b). The Court may call for further material as may be considered necessary in the interests of justice.

Application is refused. No costs.

Application refused.

MANSOOR v.O.I.C. AVISSAWELLA

1991 2 SLR 75

COURT OF APPEAL.

S. N. SILVA, J.

C. A. APPLICATION NO. 04/85.

M. C. AVISSAWELLA NO. 38240.

May 06, June 03, July 15, and August 26, 1991.

Tenant cultivator ‑ Eviction ‑ Proceedings under section 62 (1) (b) of the Administration of Justice Law and section 77 of the Primary Courts Procedure Act ‑Jurisdiction ‑ Rights as tenant cultivator under Agricultural Lands Law, No. 42 of 1973 and succeeding law under Agrarian Services Act, No. 58 of 1979 ‑ Can relief be also claimed under the Administration of Justice Law and Primary Courts Procedure Act No. 44 of 1979?

Where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that tribunal and not to others.

The machinery under the Agricultural Lands Law and the Agrarian Services Act is the only one available to a tenant cultivator of paddy land to secure and vindicate his tenurial rights. The general procedure obtaining in Part VII of the Primary Courts Procedure Act with regard to disputes affecting land where a breach of the peace is threatened or likely, is not applicable in such a situation.

Cases referred to:

1. Hendrick Appuhamy vs John Appuhamy, 69 N.L.R. 289.

2. Wilkinson vs Barking Corporation (1948) 1 K.B.D. 721, 724.

3. Pasmore vs Oswaldwistle, U.D. (3) (1898) A.C. 387, 394.

4. Argosam Finance Co., Ltd. vs Oxby (1964) 3 All E. R. 561.

5. Bempy Singho vs Davith Singho, (1978 ‑ 79) 2 Sri L.R. 215.

Application in revision of the order of the Magistrate of Avissawella.

N. R. M. Daluwatta, P.C. with Miss S. Abeyjeewa for Petitioners.

D. S. Wijesinghe, P.C. with Miss A. B. D. Dharmadasa for Respondents.

October 04, 1991.

S. N. SILVA, J.

The Petitioner has filed this application in revision against the Order made by learned Magistrate on 26‑09‑1984, in the above case. The proceedings in the case commenced upon an information filed by the Officer‑in‑charge of the Avissawella Police on 20‑02‑1979 under section 62(1)(b) of the Administration of Justice Law, No. 44 of 1973, which was then in operation. The proceedings were continued under the Primary Courts Procedure Act, No. 44 of 1979 in terms of section 77 of that Act.

The information states that there is a dispute as to the "ande" rights to the paddy land called "Honiton deniya". The 1st Petitioner claims to have been the owner of the paddy land. He gifted his rights to his son who is residing abroad and was not a party to the proceedings in the Magistrate's Court. The claim of the 1st and 2nd Petitioners to this application (being the 1st and 3rd Respondents in the Magistrate's Court) is that the 2nd Petitioner is the lawful tenant cultivator of the paddy land under the 1st Petitioner and was evicted from the paddy land on 05‑02‑1979 by the 2nd Respondent to this application.

The 2nd Respondent filed an affidavit in the Magistrate's Court claiming that he purchased the paddy land on 25‑07‑1976 from a sister of the 1st Petitioner. It is also stated that the 1st Petitioner was a witness to that deed of transfer. The 2nd Respondent further claims that he has cultivated the paddy land from the date of purchase.

Learned Magistrate by his order held that the 2nd Petitioner was the tenant cultivator of the paddy land till he was evicted on 05‑02‑1979. It appears from this finding that the learned Magistrate did not accept the affidavit of the 2nd Respondent. Learned Magistrate held that the Court had no jurisdiction to order relief since it is a matter of an eviction of a tenant cultivator of a paddy land and dismissed the information.

Learned President's Counsel appearing for the Petitioner submitted that the Magistrate was in error when he refused to grant relief to the 2nd Petitioner. Whilst conceding that the 2nd Petitioner's rights as tenant cultivator were secured by the Agricultural Lands Law, No. 42 of 1973 which was then in operation, it was submitted that the existence of a special remedy under the said law and under the succeeding Agrarian Services Act, No. 58 of 1979 did not remove the jurisdiction of the Primary Court, in the matter of granting relief.

Learned President's Counsel for the 2nd Respondent urged certain matters of a preliminary nature. It was submitted that the 2nd Petitioner in whose favour relief is sought in this application has not filed an affidavit and that in any event there is a failure to comply with the provisions of Rule 46 of the Supreme Court Rules. It was further submitted that the 1st Petitioner who is neither the owner nor the person entitled to possession of the paddy land, has no locus standi in this matter. In any event it was submitted that the complaint of the Petitioners is of an unlawful eviction of a tenant cultivator and that such a matter has to be redressed through the special means provided for in the Agricultural Lands Law and the Agrarian Services Act.

The 1st Petitioner has specifically stated in his affidavit dated 30‑04‑1979 that the 2nd Petitioner being the tenant cultivator was evicted by the 2nd Respondent and certain others on 05‑02‑1979. The 2nd Petitioner has also made the same complaint in his affidavit addressed to the Assistant Superintendant of Police (1RS). Hence, the complaint of the Petitioners is of an unlawful eviction of a tenant cultivator.

The Paddy Lands Act, No. 1 of 1958 was enacted for the specific purpose of providing security of tenure to tenant cultivators of paddy land. The Act was succeeded by the Agricultural Lands Law, No. 42 of 1973 which has the same objective. The Law was succeeded by the Agrarian Services Act, now in operation, which has the same objective. These Laws grant special recognition to tenant cultivators of paddy lands and protection to their tenurial rights. Section 3(1) of the Agricultural Lands Law and section 5(1) of the Agrarian Services Act specifically provide that a tenant cultivator of any extent of paddy land has the right to occupy and use such extent in accordance with the provisions of the respective Laws and shall not be evicted from such paddy land notwithstanding anything to the contrary in any oral or written agreement. It is further provided that no person shall interfere with the occupation and use of such paddy land by the tenant cultivator. Therefore the right of a tenant cultivator to use and occupy the paddy land of which he is tenant, is protected not only visa‑vis his landlord but also as against any other person.

Section 3(3) of the Agricultural Lands Law and section 5(3) of the Agrarian Services Act give a right to a tenant cultivator who is evicted to make a complaint of such eviction to the Agricultural Tribunal or the Commissioner of Agrarian Services, as the case may be. If such complaint of eviction is established a tenant cultivator is restored to possession by an order issued to the Fiscal by the Magistrate. It is thus seen that the applicable law provides an extensive protection to the tenurial rights of cultivators of paddy lands. The law also contains provisions for the vindication of such rights and for redress against any breach of these rights by any person.

In a proceeding instituted under section 62 of the Administration of Justice Law or the corresponding section 66 of the Primary Courts Procedure Act, the Magistrate's Court or the Primary Court, as the case may be, is empowered to inquire into disputes affecting land where a breach of the peace is threatened or likely. The phrase "dispute affecting land" is interpreted in section 75 of the Primary Courts Procedure Act to include "any dispute as to the right to the possession of any land............or as to the right to cultivate any land or a part of a land...............". Therefore, ordinarily, the right of a tenant cultivator to occupy and cultivate a paddy land would come within the meaning of a "dispute affecting land". However, as noted above, the status and rights of tenant cultivators of paddy lands is the subject matter of specific statutory provisions. In contrast the procedure in the Primary Courts Procedure Act is in the nature of a general provision which applies in relation to every dispute affecting land where a breach of the peace is threatened or likely.

The question to be decided in this application is whether a tenant cultivator who is evicted from a paddy land can avail himself of an order made by the Primary Court in a proceeding under Part VII of the Primary Courts Procedure Act notwithstanding the remedy provided to him under the provisions of the Agricultural Lands Law and later the Agrarian Services Act. Learned President's Counsel for the Petitioner submitted that such a course of action is possible and contended that the Primary Courts Procedure Act in fact gives additional protection to a tenant cultivator.

The submission of learned President's Counsel for the 2nd Respondent is that the remedy under Agricultural Lands Law and the Agrarian Services Act given to a tenant cultivator to complain of eviction and to secure restoration of possession is a special remedy which excludes any remedy that may be obtained from the exercise of the ordinary jurisdiction of the Primary Court.

As noted in Halsbury's Law of England (4th Edition) at paragraph 946, the question whether a special statutory remedy excluding the ordinary jurisdiction of a Court has to be decided by an examination of the scope and the wording of the statute providing such special remedy.

In the case of Hendrick Appuhamy vs John Appuhamy (1), Sansoni, CJ examined the provisions of the Paddy Lands Act (then in operation) to consider whether those provisions exclude the right of a landlord to institute an action in the District Court for the ejectment of his tenant and for damages, on the ground that the tenant has failed to maintain the paddy land diligently. The District Judge held with the landlord on the basis that there was no section in the Paddy Lands Act ousting the jurisdiction of the District Court. After an examination of the provisions of the Paddy Lands Act and certain leading authorities in England, Sansoni CJ concluded that he cannot agree with the decision of the District Judge. It was held that the action was not maintainable in view of the special provisions contained in the Paddy Lands Act.

Sansoni CJ followed the dicta of Asquith LJ, in the case of Wilkinson vs Barking Corporation (2). At page 724 Asquith LJ stated as follows:

"It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that tribunal and not to others."

The authority for that statement of Asquith LJ is traced to the dictum of Lord Halsbury in the case of Pasmore VS Oswaldwistle, U.D. (3) (1898) A.C. 387. At page 394 Lord Halsbury stated as follows :

"The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and runs through the law."

It is apparent on an examination of the later case law in England that this principle stated by Lord Halsbury and Asquith LJ is now accepted without contest. In a later case, Argosam Finance Co. Ltd. vs Oxby (4) Lord Denning, and Diplock LJ stated as a firm proposition of law, that where a matter has been vested by Parliament within the jurisdiction of the Commissioner of Inland Revenue, there was clearly no jurisdiction on the part of a Court to answer such a matter in an action begun by an originating summons.

Learned President's Counsel for the Petitioners relied on the judgment of this Court in the case of Bempy Singho vs Davith Singho (5). In that case a tenant cultivator who was unlawfully evicted filed an action in the District Court for restoration of possession and damages. He restricted his remedy in the District Court only to damages and obtained relief from the Commissioner for restoration of possession under the Agrarian Services Act. The learned District Judge granted the claim for damages. It was argued in this Court that the District Judge had no jurisdiction to grant damages in view of the provisions of the Agrarian Services Act, Atukorale, J. held that there is no provision in the Agrarian Services Act whereby a tenant who has been unlawfully evicted could secure damages in respect of such eviction. In the absence of such provision it was held that a tenant who has been unlawfully evicted has a cause of action in the regular Courts to recover damages. This decision does not in any way support the submission of learned President's Counsel that a tenant who is unlawfully evicted is entitled to obtain restoration of possession upon an order of the Primary Court. The basis of the decision is an absence of any provision ::Y the Agrarian Services Act whereby the tenant may obtain damages for unlawful eviction. It has to be noted that there is specific provision in the Agricultural Lands Law and the Agrarian Services Act which gives a right to a tenant as against the landlord and any other person to use and occupy the paddy land and to secure restoration of possession if he is unlawfully evicted. These provisions in the Agricultural Lands Law and the Agrarian Services Act are in the nature of a special right and a remedy for the infringement of that right. Therefore, I hold that the machinery under the Agricultural Lands Law and the Agrarian Services Act is the only one available to a tenant cultivator of paddy land to secure and vindicate his tenurial rights. The general procedure obtaining in Part VII of the Primary Courts Procedure Act with regard to disputes affecting land where a breach of the peace is threatened or likely, is not applicable in such a situation.

A further reason for the above conclusion is manifest on an examination of the provisions of Part VII of the Primary Courts Procedure Act. In terms of section 67(1) an inquiry under this Part has to be held in a "summary manner" and has to be concluded within three months of the commencement of the inquiry. Section 74(2) provides that, an appeal will not lie against any determination or order under this Part. It appears from section 74(1) that the remedy available to a person affected by an order after such a summary inquiry is to establish his right or interest to the land in a civil suit. A Judge of the Primary Court is specially required to explain the effect of this provision to the persons concerned in the dispute. Therefore, according to the legislative schemes an order made by the Primary Court in a proceeding under Part VII will be operative only till the dispute affecting land is finally resolved on a "civil suit". The phrase "civil suit" is clearly referable to an action filed in a regular Court exercising civil jurisdiction. In view of the aforesaid provisions of the Agricultural Lands Law and the Agrarian Services Act a dispute arising from a complaint of eviction made by a tenant cultivator of a paddy land cannot be the subject of a civil suit. Such a complaint has to be the subject of an inquiry by the Tribunal or the Commissioner, as the case may be. Therefore, the Judge of the Primary Court cannot comply with the requirements of section 74(1) in respect of such a dispute. This by, itself is in my view good reason for holding that the Primary Court should not exercise jurisdiction in relation to a dispute arising from a complaint of eviction of a tenant cultivator of paddy land. Furthermore, if such jurisdiction is exercised it may result in conflicting orders made by the Primary Court on the one hand and the Commissioner on the other.

For the reasons stated above I am of the view that the Primary Court Judge did not err in law when he declined to exercise jurisdiction in this matter.

In view of the foregoing finding it would not be necessary to consider the other matters urged by, learned President's Counsel for the 2nd Respondent. However, I have to note that there is merit in the objection based upon an absence of an affidavit filed by the 2nd Petitioner. The relief sought by this application is for an order directing that the 2nd Petitioner be restored to possession of the paddy land in question. According to the certified copy of the proceedings in the Magistrate's Court the 2nd Petitioner did not file an affidavit in that Court claiming a right to be restored to possession. He has also not filed an affidavit in this Court claiming such a right. In the circumstances I am of the view that there is contravention of the provisions of Rule 46 of the Supreme Court Rules and that the Petitioners are not in any event entitled to the relief sought in the application. The application is accordingly dismissed. The 1st and 2nd Petitioners will pay a sum of Rs. 1750/‑ as costs to the 2nd Respondent.

Application dismissed.

VELUPILLAI v. SIVANATHAN

1993 1 SLR 123

COURT OF APPEAL.

ISMAIL, J.

CA APPLICATION NO. 909/85.

PRIMARY COURT, KILINOCHCHI NO. 2817.

NOVEMBER 13 AND DECEMBER 16, 1992.

Primary Courts Procedure Act - Section 66 Application - Dispute affecting land under s. 66 (1)(a), 66 (1)(b) and 66 (2) of the Primary Courts Procedure Act - Jurisdiction.

Under section 66 (1)(a) of the Primary Courts Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute. The police officer is empowered to file the information if there is a dispute affecting land and a breach of the peace is threatened or likely. The Magistrate is not put on inquiry as to whether a breach of the peace is threatened or likely. In terms of section 66 (2) the Court is vested with jurisdiction to inquire into and make a determination on the dispute regarding which information is filed either under section 66 (1)(a) or 66 (1)(b).

However 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.

The scope of the inquiry under this special jurisdiction is of a purely preventive and provisional nature pending the final adjudication of the rights of the parties in a civil court. The Magistrate is not involved in the investigation into title or right to possession which is the function of a civil court.

The expression "dispute affecting land" as interpreted in section 75 of the Primary Courts Procedure Act, includes "any dispute as to the right to possession of any land ..... or as to the right to cultivate any land.......".

The Magistrate would have been slow to find that there was a dispute affecting land owing to which a breach of the peace was threatened or likely if he had focussed his attention on the substance of the mere complaint and viewed it in the background of the attempt to obtain title.

The complaint of being prevented from tending the crops in the lands claimed to have been cultivated by the complainant, is not a dispute as to the "right to cultivate' the land within the meaning of section 75 of the Primary Courts Procedure Act. This was a complaint relating to interference with cultivation rights which could have resulted in damage or loss of crop in regard to Which the Commissioner of Agrarian Services is vested With jurisdiction under section 57 of the Agrarian Services Act.

The information did not disclose a dispute affecting land upon which the Magistrate's Court could have made a determination under Part VII of the Primary Courts Procedure Act.

Cases referred to

1. Kanagasabai v. Mylvaganam (1976) 78, NLR. 280, 283.

2. Ramalingam v. Thangarajah (1982) 2 Sri LR 693, 700.

APPLICATION to revise the order of the Primary Court Judge of Klinochchi.

S. Mahenthiran for petitioners. C. V. Vivekananthan with V. Pavitharan for respondent.

Cur. adv. vult.

February 24, 1993.

ISMAIL, J.

The 1st petitioner who is the father of the respondent was granted 2 acres 3 roods and 34 perches of high land for residential purposes and 4 acres and 39 perches of land for paddy cultivation on a permit dated 06.02.1985 under the Land Development Ordinance. These two extents of land were surveyed and subdivided each into two portions on or about 05. 09. 1984 and were each allotted new numbers. A permit dated 07.11.1984 for a divided extent of the high land bearing lot No. 74, in extent 1 acre 1 rood and 27 perches, and a divided extent of paddy land bearing lot No. 310, in extent 2 acres 19.5 perches, was granted to the respondent. These two extents were set out in the two schedules to her affidavit dated 11.01.1985 filed as information in terms of section 66 (1)(b) of the Primary Courts' Procedure Act, No. 44 of 1979.

The respondent's complaint was that the petitioners had on 06. 01.1985 fenced up that portion which served as the entrance to their land and had instead opened up another portion of the fence which separated the two divided extents of the high land and had created a pathway to gain access to their portion of the land. The petitioners had threatened her husband with bodily harm and had also threatened her family that they would be forcibly ejected if they did not vacate the land by the end of January 1985. In regard to the paddy land she complained that she had sown the land for the 1984 maha season but that the petitioners were preventing her from tending the crop. She attempted to make a complaint regarding this on the same day to the Kilinochchi police station but it was not entertained.

The learned Magistrate having considered the affidavits and the documents filed by the parties and having inspected the land delivered his order on 16.07.1985, holding that the respondent was entitled to cultivate the paddy land without any interference from the petitioners and that she was entitled to reside in the house situated on the high land and to possess the same jointly with the 1st and 2nd petitioners. The 3rd petitioner was warned against interfering with the respondent and the 4th to 8th petitioners were held not to have any right or title to any of the said lands. The petitioners in this application seek to have the said order of the learned Magistrate revised.

Learned Counsel for the petitioners submitted that the respondent was the daughter of the 1st and 2nd petitioners who had initiated proceedings in the Magistrate's Court, without the intervention of the police, under section 66 (1)(b) of the Primary Courts Procedure Act, and that in the circumstances the failure of the Magistrate to arrive at a specific finding initially that the dispute was likely to cause a breach of the peace vitiated the subsequent proceedings. Learned Counsel for the respondent while conceding that such a finding by the Magistrate had been necessary to clothe himself with jurisdiction under the corresponding repealed section 62 of the Administration of Justice Law submitted that such a condition precedent was not necessary under section 66 of the present law.

The corresponding repealed section 62 of the Administration of Justice Law vested jurisdiction in him only after the Magistrate formed an opinion that the dispute was likely to cause a breach of the peace. It provided as follows : 62 (1) "Whenever a Magistrate on information furnished by a police officer or otherwise has reason to believe that the existence of a dispute affecting land situated within his jurisdiction is likely to cause a breach of the peace, he may issue notice.......".

In Kanagasabai v. Mylvaganam (1) Sharvananda, J. observed "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 section requires that the Magistrate should be satisfied, before initiating the proceedings, that a dispute affecting land exists and that such a dispute is likely to cause a breach of the peace".

The respondent has in her affidavit filed under section 66 (1)(b) traced the history of the dispute with her parents since 1980 relating to her right or title to the high land and the paddy land originally held by the 1st petitioner on a permit under the Land Development Ordinance. She stated that pursuant to an agreement dated 21.05.1980 she was placed in possession of the entirety of the two lands and that her parents had promised to donate one half of the two lands while the other half was to be given to her and her husband for a consideration of Rs. 20,000 (P1). They continued to be in undisturbed possession of the entirety of the two lands for a period of about eight months, but later in January 1981 the 1st petitioner resiled from the' agreement and had required her to settle the loan outstanding on this property to the Multi-Purpose Co-operative Society as a condition precedent to agreeing to transfer only half the portions of the two lands and to obtain a permit in respect of them. Yet the 1st petitioner had failed to transfer half the portions of the two lands as promised despite the said loan having been settled by the respondent. She had then in this connection lodged a complaint to the police on 16.05.1984.

The 1st petitioner along with the other petitioners had thereafter signed an agreement on 24.05.81 (P6) agreeing to transfer to her one half of each of the two lands. Pursuant to this the 1st petitioner had written to the District Land Officer on 27.07.1984 requesting him to subdivide the two lands in such a way that 1 1/2 acres of the portion the high land with the house situated on it, and 2 acres out of the paddy land could be transferred to the respondent. Accordingly it appears that a subdivision as requested by the 1st petitioner had been done, and on 3.11.1981 the District Land Officer informed the respondent that the two extents of lands had been subdivided and that two lots of each had been transferred in her name (P9). She further averred that it was in these circumstances that she was granted a permit (P28) dated 7.11.1984 for the subdivided extents of the high land and the paddy land fully described in the 1st and 2nd schedules to her affidavit.

In such circumstances where the party to the dispute had initiated proceedings it was incumbent on the Magistrate to have ascertained for himself on the affidavit tendered by the respondent whether there was a dispute affecting either or both the extents of land described in the two schedules. The scope of the inquiry under this special jurisdiction is of a purely preventive and provisional nature pending the final adjudication of the rights of the parties in a civil Court. The Magistrate is not involved in the investigation into title or right to possession which is the function of a civil court-Kanagasabai v. Mylvaganam (1), Ramalingam v. Thangarajah (2).

The expression "dispute affecting land" as interpreted in section 75 of the Primary Courts' Procedure Act, includes "any dispute as to the right to possession of any land...... or as to the right to cultivate any land......".

The respondent resided in that portion of the high land described in the 1st schedule at the time of filing the information, and she further claimed to have resided therein even before she was granted the permit dated 7. 11. 1984. Her complaint was that the petitioners who resided in the adjacent land threatened her husband with bodily harm and threatened the family with forcible eviction if they did not vacate the land by the end of that month. Her husband had not filed an affidavit in this connection nor had she specified as to which of the petitioners made the threats referred to. She further complained that the petitioners had created an alternate access to their land by removing a portion of the common fence having closed up another portion that served as the entrance to their land. No further material was placed before Court from which it could have been ascertained that this act on the part of the petitioners affected her right to possession and that a threat to peace was imminent.

The learned Magistrate would have been slow to find that there was a dispute affecting land owing to which a breach of the peace was threatened or likely if he had focused his attention on the substance of the mere complaint of the respondent and had viewed it in the background of her dispute with her parents since 1980 in attempting to obtain title in her name to the said lands.

Considering next her complaint in regard to the paddy land that the petitioners were preventing her from tending to the paddy crop cultivated by her in the maha season of 1984, this appears to be a complaint that could have been appropriately made to the Commissioner under the Agrarian Services Act, No. 58 of 1979. This section provides that where a complaint is made to the Commissioner by any owner, cultivator or occupier of agricultural land that any person is interfering with or attempting to interfere with the cultivation rights of such person and if he is satisfied that such interference or attempted interference will result in damage or loss of crop, he may issue an order requiring him to comply with such direction as may be necessary for the protection of such rights. The Commissioner is permitted to seek the assistance of a peace officer within the area to ensure compliance with such an order and the peace officer is obliged to render such assistance. Such an order is binding on the persons in respect of whom it is made until set aside by a Court.

The respondent had in fact made a complaint to the Assistant Commissioner in regard to the interference to her cultivation rights by the 3rd petitioner during the maha season of 1983. The Assistant Commissioner held an inquiry into her complaint and had by his letter (P19) dated 19. 09.1984 warned the 3rd petitioner against interfering with the respondent's cultivation rights. The Assistant Commissioner had in this regard drawn the attention of the 3rd petitioner to the provisions of section 57 of the Agrarian Services Act.

I am of the view that the respondent's complaint that she was prevented from tending the crops in the land claimed to have been cultivated by her, is not a dispute as to the "right to cultivate" the land within the meaning of section 75 of the Primary Courts' Procedure Act. This was a complaint . relating to interference with cultivation rights which could have resulted in damage or loss of crop in regard to which the Commissioner of Agrarian Services is vested with jurisdiction under section 57 of the Agrarian Services Act.

The learned Magistrate has, therefore, for these reasons erred in law in entertaining the respondent's complaint as a "dispute affecting land" and proceeding to exercise jurisdiction under Part VII of the Primary Courts' Procedure Act. I therefore set aside the order of the learned Magistrate dated 16.07.1985 made by him after an inquiry and an inspection of the land.

Learned Counsel for the petitioner took up further objections relating firstly to the validity of the affidavit filed by the respondent on the ground that the jurat did not disclose that the deponent affirmed to the contents of the affidavit and secondly that the respondent being governed by the law of Thesawalamai could not have invoked the jurisdiction of the Court by herself. Learned Counsel for the respondent contended that such objections could not be taken for the first time at the stage of appeal. In view of my finding that the information filed by affidavit by the respondent did not disclose a dispute affecting land upon which the learned Magistrate could have made a determination under part VII of the Primary Courts' Procedure Act, it does not appear to me to be necessary to come to a finding on these objections.

I make no order as to costs.

Order set aside.

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.

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 of 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 OTHERS

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 OTHERS

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.for petitioner. Aloy Ratnayake, P.C.,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?

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)

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 ) 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 ;

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 plainfitt-responents 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

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.

2nd case under section 66

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 Primarv 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. Necessarilv the person who was in possession at the time of filinp the information is entitled to possession, unless there was dispossession within a period of two months immediatelv 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).

(2) Not reproduced

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).

(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 written 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

786786786 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

219

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)

220

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.

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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

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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;

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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."

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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.

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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. "

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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.

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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

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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.

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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,

(d) or to avoid criminal liability.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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

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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

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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

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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

(Divisional Bench)

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.

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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.

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(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

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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 accord

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ingly 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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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"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

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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

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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

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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

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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).

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"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

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 revisionaiy 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 as he had failed 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 rightinor 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, to wit:

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 emphasised 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 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...

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 notices reache 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 as to who should FOR THE TIME BEING be 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 is 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". Per 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/-

GAMARALALAGE JAYASINGHE Vs MAHARA MUDIYANSELAGE LOKU BANDARA

HON MAHINDA SAMAYAWARDHENA, J

CASE NO: CA/PHC/76/2018

PHC KEGALLE NO: 4884/2015/REV
MC KEGALLE NO: 26699/2014

1. Gamaralalage Jayasinghe,

2. Danasekara Gedara Kusumalatha Kanthi Menike,

3. Gamaralalage Yasada Menike, No.115,
Aranayake Road, Mawanella.

Respondent-Petitioner-Appellants
Vs.

Mahara Mudiyanselage Loku Bandara,
No. 862/03,
Robert Gunawardena Road, Malabe.

Petitioner-Respondent-Respondent

Before : A.L. Shiran Gooneratne, J.
Mahinda Samayawardhena, J.

Counsel : Chula Bandara with Udara Tilakawardena for the Appellant.
S.A.D.S. Suraweera with Adeesha Senadheera for the Respondent.

Ascertainment of the breach of the peace or its likelyhood by court is a waste of time in trms of section 66 of the p.c.p.act as opposed section 62 of the a.j.l

Editors Noe (GalleBlogger) Breach of the peace does not mean fisticuffs, grievous hurt or attempted murder. It is sufficient, if there is a present fear that there will be a breach of the peace stemming from the dispute unless the Court takes control of the matter.

A salient difference exists as between the exercise of jurisdiction under section 62 of the Administration of Justice Law and section 66 of the Primary Code Procedure Act. In terms of section 62 of the Administration of Justice Law when a report filed by police setting out a land dispute, the magistrate has to satisfy himself that dispute leading to a breach of peace or likelihood of the same had occurred, as a condition precedent to the exercise of the special jurisdiction. Under section 66 there is no such duty cast on the magistrate to ascertain the existence of the breach of peace as section 66 (2) confers jurisdiction upon a report being file by police.

The observation of Sharvananda, J in Kanagasabai v. Mylvaganam (1976) 78 NLR 280 at 283 to the effect that “The section requires that the Magistrate should be satisfied, before initiating the proceedings, that a dispute affecting land exists and that such dispute is likely to cause a breach of the peace. But, once he is satisfied of these two conditions, the section requires him to proceed to inquiry and make order under section 63 has no binding effect, since section 66 (1) has been couched in a different manner than Section 62 of the AJL and 145 of the Indian Crim. Procedure. Section 145 of the Indian Code of Criminal Procedure, 1973, corresponds to section 62 of our Administrative Justice Law.

Aagainst this backdrop that Ismail J. in Velupillai v. Sivanathan (supra) stated that when the first information is filed by a party to the dispute and not by the police, "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", little realising that the law in relation to jurisdiction has been completely changed with the enactment of the new Primary Courts' Procedure Act.

What was stated by Sharvananda J. in Kanagasabai v. Mylvaganam (supra) under section 62 of the Administration of Justice Law on invocation of jurisdiction is inapplicable under section 66 of the Primary Courts' Procedure Act.

Under section 62 of the Administration of Justice Law, a lot of judicial time was wasted on the question of jurisdiction, in that the Magistrate had to first embark upon an inquiry to ascertain whether a breach of the peace was imminent before he issued process. Also, under the Administration of Justice Law, there was reluctance on the part of the parties to the dispute to initiate action under section 62 in instances where police officers were loath to report facts to the Court within the stipulated period of two months from the date of dispossession due to various reasons. The legislature addressed these two issues when enacting the Primary Courts' Procedure Act, which is a home-grown Act.

Argued on : 03.12.2019

Decided on : 20.12.2019

Mahinda Samayawardhena, J.

This is an application initially filed before the Magistrate's Court of Kegalle, under section 66(1)(b) of the Primary Courts' Procedure Act, No.44 of 1979, by the petitioner-respondent- respondent (hereinafter "the respondent") against the respondent-petitioner-appellant (hereinafter "the appellant"), seeking restoration of possession to the land in dispute, on the basis that the respondent was forcibly dispossessed by the appellant within a period of two months immediately before the filing of the application. The appellant took up the position that there was no forcible dispossession. After inquiry, the Magistrate's Court, by order dated 13.03.2015, held with the respondent. This decision was affirmed by the High Court of Kegalle by the Judgment dated 26.04.2018. This appeal by the appellant is against the Judgment of the High Court.

The facts leading to this appeal are briefly as follows: Karunaratne Liyanage was the original owner of the land in dispute. He sold it to the respondent. The respondent sold it to Milton Silva but retained possession as Milton Silva was abroad.

In the meantime, Karunaratna Liyanage filed a case in the District Court (7732/L) against the respondent, on the basis that he was the owner of the land and the respondent was holding it in trust for him. Pending determination of the case, Karunaratne Liyanage obtained an interim injunction whereby the respondent was dispossessed from the land. After Karunaratne Liyanage obtained possession of the land by way of the said interim injunction, he withdrew the case.

The respondent filed a revision application in the High Court of Civil Appeal of Kegalle (28/2010/Rev), seeking to restore him to possession of the land after the withdrawal of the District Court action by Karunaratne Liyanage. This was allowed by the High Court of Civil Appeal. The application of the appellant to intervene in that revision application was refused.

The Supreme Court by Judgment dated 12.11.2013 (in case No. SC Appeal 98/2011) affirmed the Judgment of the High Court of Civil Appeal.

Thereafter, as seen from the Fiscal Report (at pages 275-279 in the Brief), on 16.07.2014, in the execution of the writ, the Fiscal of the District Court of Kegalle removed the agents of Karunaratne Liyanage from the land and handed over possession to the respondent.

According to the respondent, the appellant (as the agent of Milton Silva) forcibly dispossessed the respondent the next day, i.e. 17.07.2014. The respondent made a lengthy complaint to the police on 18.07.2014 setting out the history of the case.

It is the position of the appellant that there was no forcible dispossession, but the respondent voluntarily handed over possession to the appellant as the Power of Attorney holder of Milton Silva. This position of the appellant has been rightly rejected both by the Magistrate's Court and the High Court.

There is no evidence to prove that the respondent peacefully handed over possession to the appellant except the ipse dixit of the respondent himself. If possession was voluntarily handed over by the respondent to the appellant on 17.07.2014, there was no reason for the former to make a complaint to the police on 18.07.2014 alleging forceful dispossession.

It is significant to note the appellant unsuccessfully attempted to intervene in the revision application filed by the respondent in the High Court seeking restoration of possession. The intervention was sought by the appellant in order to have possession delivered to him as the Power of Attorney holder of Milton Silva.

In the facts and circumstances of this case, it is difficult to believe that having obtained possession through a protracted legal battle, the respondent voluntarily handed it over to the appellant. The learned counsel for the appellant has challenged the order of the Magistrate's Court and the Judgment of the High Court on three grounds. Let me now consider them one by one.

The first submission of the learned counsel for the appellant is that the learned Magistrate did not have jurisdiction to make the impugned order, as there was no threat or apprehension to a breach of the peace.

The learned counsel, drawing attention to the Judgment of this Court in Velupillai v. Sivanathan [1993] 1 Sri LR 123, states that when the information is filed by a party to the dispute such as in this case, as opposed to it being filed by the police, the Magistrate shall exercise a higher degree of caution in deciding to proceed with the matter.

In this case, when the appellant appeared before the Magistrate's Court in response to summons, the appellant took up a preliminary objection that the Court had no jurisdiction to proceed with the matter as there was no likelihood of the breach of the peace. After inquiry, by order dated 13.11.2014, the learned Magistrate overruled this objection by giving reasons.

Breach of the peace does not mean fisticuffs, grievous hurt or attempted murder. It is sufficient, if there is a present fear that there will be a breach of the peace stemming from the dispute unless the Court takes control of the matter.

I have no doubt, in the facts and circumstances of this case, there was a real likelihood of a breach of the peace when the Magistrate issued summons on the appellant upon the first information filed by the respondent.

In any event, it is my considered view that the Judgment of this Court in Velupillai v. Sivanathan (supra) does not correctly represent the law in this regard. In that case, Ismail J. sitting alone stated as follows:

In Kanagasabai v. Mylvaganam (1976) 78 NLR 280, 283, Sharvananda, J. observed "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 section requires that the Magistrate should be satisfied, before initiating the proceedings, that a dispute affecting land exists and that such a dispute is likely to cause a breach of the peace".

Under section 66(1)(a) of the Primary Courts Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute. The police officer is empowered to file the information if there is a dispute affecting land and a breach of the peace is threatened or likely. The Magistrate is not put on inquiry as to whether a breach of the peace is threatened or likely. In terms of section 66(2) the Court is vested with jurisdiction to inquire into and make a determination on the dispute regarding which information is filed either under section 66(1)(a) or 66(1)(b).

However, 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.

The same sentiments were echoed by Ismail J. in Punchi Nona v. Padumasena [1994] 2 Sri LR 117 as well.

This view of Ismail J. has been followed in later decisions.

In the above dicta, "In terms of section 66(2) the Court is vested with jurisdiction to inquire into and make a determination on the dispute regarding which information is filed either under section 66(1)(a) or 66(1)(b)" is correct, but what follows thereafter is not, i.e. "However when an information is filed under section 66(1)(b)...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."

Let me explain why I say so.

Under the Administration of Justice Law, No. 44 of 1973, by sections 62-65, a special procedure was introduced for Magistrates' Courts to deal with disputes affecting lands where a breach of the peace is threatened or likely.

These provisions were repealed by the Code of Criminal Procedure Act, No. 15 of 1979, and replaced by sections 66-76 of the Primary Courts' Procedure Act, No. 44 of 1979.

There is a significant difference between the provisions of the Administration of Justice Law and the Primary Courts' Procedure Act on conferment of jurisdiction to the Magistrates' Courts in this regard.

Section 62(1) of the Administration of Justice Law provides as follows:

Whenever a Magistrate, on information furnished by any police officer or otherwise, has reason to believe that the existence of a dispute affecting any land situated within his jurisdiction is likely to cause a breach of the peace, he may issue a notice (a) fixing a date for the holding of an inquiry into the dispute; and (b) requiring every person concerned in the dispute to attend at such inquiry and to furnish to the court, on or before the date so fixed, a written statement setting out his claim in respect of actual possession of the land or the part in dispute and in respect of any right which is the subject of the dispute.

It is noteworthy that section 62 of the Administration of Justice Law conferred jurisdiction on the Magistrate only after the Magistrate formed an opinion that the dispute relating to the land is likely to cause a breach of the peace. According to this section, the Magistrate shall have "reason to believe that the existence of a dispute affecting any land situated within his jurisdiction is likely to cause a breach of the peace". This is a prerequisite for the Magistrate to assume jurisdiction to proceed with the application. In other words, jurisdiction on the Magistrate was not automatic upon the filing of the first information. There was a legal requirement on the part of the Magistrate to properly invoke jurisdiction.

This was applicable, as seen from section 62, irrespective of whether the "information [was] furnished by any police officer or otherwise". Here, "otherwise" includes a party to the dispute.

Section 145 of the Indian Code of Criminal Procedure, 1973, corresponds to section 62 of our Administrative Justice Law. Section 145 of the Indian Code reads as follows:

Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

Even under section 145 of the Code of Criminal Procedure in India, an essential condition for the assumption of jurisdiction by the Magistrate is that he shall be "satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists". If he does not do so, the proceedings shall be void in terms of section 461 of the Code ofCriminal Procedure in India. Section 461 deals with fatal irregularities that vitiate proceedings before the Magistrate. Vide The Queen-Empress v. Gobind Chandra Das (1893) ILR 20 Cal 520.

Kanagasabai v. Mylwaganam (1976) 78 NLR 280 is undoubtedly the leading local authority on section 62 of the Administration of Justice Law. Sharvananda J. (later C.J.), who delivered the Judgment in that case, at pages 286 and 287, had this to say on invocation of jurisdiction under section 62 of the Administration of Justice Law:

It is essential for the assumption of jurisdiction under section 62 that the Magistrate should have reason to believe from a Police report or other information that a dispute relating to land, which is likely to cause a breach of the peace, exists. The report or other information should contain sufficient material to enable the Magistrate to form the belief that the dispute is likely to cause a breach of the peace. The jurisdiction conferred on a Magistrate to institute an inquiry under this section can be exercised only when the dispute is such that it is likely to cause a breach of the peace. It is the apprehension of a breach of the peace, and not any infringement of private rights or dispossession of any of the parties, which determines the jurisdiction of the Magistrate. It is sufficient for a Magistrate to exercise the powers under this section if he is satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section. Power is conferred

by section 62 in subjective terms-the Magistrate, being the competent authority, is entitled to act when he has reason to believe that the existence of a dispute affecting land is likely to cause a breach of the peace. The condition precedent to the exercise of the power is the formation of such opinion-the factual basis of the opinion being the information furnished by any Police officer or otherwise. A Magistrate is not bound to take action on a Police report or upon an expression of opinion by the Police. But, before he takes action, he should have a statement of facts before him so that he may exercise his own judgment in arriving at a conclusion as to the necessity of taking action under this section. The question whether, upon the material placed before him, proceedings should be instituted under this section is one entirely within the Magistrate's discretion. He may form his opinion on any information received. In my view, he can base his action on a complaint filed by any of the parties, or on a Police report. The Magistrate should however proceed with great caution where there is no Police report and the only material before him are statements of interested persons. (emphasis mine)

It is against this backdrop that Ismail J. in Velupillai v. Sivanathan (supra) stated that when the first information is filed by a party to the dispute and not by the police, "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", little realising that the law in relation to jurisdiction has been completely changed with the enactment of the new Primary Courts' Procedure Act.

Section 66 of the Primary Courts' Procedure Act, which replaced section 62 of the Administration of Justice Law, reads as follows:

66(1) Whenever owing to a dispute affecting land a breach of the peace is threatened or likely-

(a) the police officer inquiring into the dispute-

(1) shall with the least possible delay file an information regarding the dispute in the Primary Court within whose jurisdiction the land is situate and require each of the parties to the dispute to enter into a bond for his appearance before the Primary Court on the day immediately succeeding the date of filing the information on which sittings of such court are held; or

(ii) shall, if necessary in the interests of preserving the peace, arrest the parties to the dispute and produce them forthwith before the Primary Court within whose jurisdiction the land is situate to be dealt with according to law and shall also at the same time file in that court the information regarding the dispute; or

(b) any party to such dispute may file an information by affidavit in such Primary Court setting out the facts and the relief sought and specifying as respondents the names and addresses of the other parties to the dispute and then such court shall by its usual process or by registered post notice the parties named to appear in court on the day specified in the notice-such day being not later than two weeks from the day on which the information was filed.

Thus, under section 66(1) of the Primary Courts' Procedure Act, the legislature has made it abundantly clear that the first information can be filed either by the police officer inquiring into the dispute under section 66(1)(a) or by any party to such dispute under section 66(1)(b).

Then, under section 66(2), it has been enacted that when the first information is filed under section 66(1), irrespective of whether it is filed by the police or a party to the dispute, the Magistrate is automatically vested with jurisdiction to inquire into and determine the matter, without further ado.

Section 66(2) of the Primary Courts' Procedure Act runs as follows:

Where an information is filed in a Primary Court under subsection (1), the Primary Court shall have and is hereby vested with jurisdiction to inquire into, and make a determination or order on, in the manner provided for in this Part, the dispute regarding which the information is filed. (emphasis mine)

Hence, with all due respect, the dictum of Ismail J. in Velupillai v. Sivananthan (supra) that, "when an information is filed under section 66(1)(b)...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" does not represent the correct position of law, and therefore, need not be followed.

Under section 66(1), the formation of opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute or to any party to the dispute. Both are on equal footing. Who files the information is beside the point.

This is in consonance with the literal rule of interpretation, which is the primary rule of interpretation of statutes. The intention of the legislature is best achieved by giving the words of the Act their natural literal meaning unless it creates absurdity.

The first argument of the learned counsel for the appellant fails.

Let me now consider the second argument advanced by the learned counsel for the appellant.

The learned counsel for the appellant contends that the forcible dispossession took place outside the period of two months before the filing of the case.

Let me briefly state the orders the Magistrate is required to make when the dispute is in relation to possession of land.

The substantive orders the Magistrate's Court is required to make when a dispute relating to land is reported to Court are contained in section 68 of the Primary Courts Procedure Act. Under section 68(1), the Court shall confirm possession of the party who was in possession of the land on the date of the filing of the first information in Court. This general rule is subject to an exception, as provided for in section 68(3). That exception is, if a party can prove that he was forcibly dispossessed within two months immediately before the filing of the first information by the party now in possession of the land, the former shall be restored to possession.

In this case, the respondent filed the first information in the Magistrate's Court by way of an affidavit on 12.09.2014. On this date, admittedly, the appellant was in possession of the land. The respondent sought relief under section 68(3) on the basis that he was forcibly dispossessed by the appellant on 17.07.2014, which is within two months immediately prior to his coming to Court.

The submission of the learned counsel for the appellant is that after the first affidavit dated 12.09.2014, the respondent filed a further affidavit dated 05.12.2014, which seems to be an amendment of the original affidavit, and, therefore, the two- month period should be calculated not from 12.09.2014 but from 05.12.2014. Hence the learned counsel argues that the respondent has not come before the Court within a period of two months to seek relief under section 68(3).

I am afraid I am unable to agree with this argument.

As I stated earlier, the first information can be filed by the police or a party to the dispute. If the first information is filed by the police, in terms of section 66(1)(a), it can be filed by way of a Report. However, if the first information is filed by a party, in terms of section 66(1)(b), the information shall be filed by way of an affidavit. Either way, according to section 66(3), the Court shall, as the next step, give a date to the parties to file affidavits with supporting documents if any to establish their respective cases. The affidavit mentioned in section 66(3) applies both to cases filed by the police and by a party. It is not confined to cases filed by the police. Therefore, the second affidavit spoken about by the learned counsel for the appellant is not an amended affidavit. It is the affidavit required under section 66(3) of the of the Act. The first affidavit filed by the respondent is the first information filed by way of an affidavit, as required by section 66(1)(b) of the Act. According to section 68(3), the two-month period shall be counted not from the date of the affidavit, but from "the date on which the information was filed under section 66". There is no dispute that the first information was filed on 12.09.2014, and, therefore, the respondent was within the stipulated period when he came to Court.

Therefore, the second argument is not entitled to succeed.

This leads me to consider the final argument of the learned counsel for the appellant.

The final argument of the learned counsel relates to the character of possession of the respondent in relation to the land in dispute.

The learned counsel, referring to the pleadings filed by the respondent in the District Court Case No. 7756/L and Revision Application No. 28/2010 filed in the High Court of Civil Appeal, submits that the respondent in those pleadings accepted that he was a licensee of Milton Silva and had taken care of the land on his behalf, and therefore, Milton Silva, being the owner, had constructive possession of the land through the respondent and the appellant who is the Power of Attorney Holder of Milton Silva. The learned counsel cites the Judgment of Gunawardana J. in Iqbal v. Majedudeen [1999] 3 Sri LR 213 in support.

In the first place, Milton Silva is not a party to this case to claim constructive possession.

The respondent does not seem to me to be now accepting that he is a licensee of Milton Silva.

Even if he is an overholding licensee, he can only be ejected from the land through due process of law. Vide Reginald Fernando v. Pabilinahamy [2005] 1 Sri LR 31, Edirisuriya v. Edirisuriya (1975) 78 NLR 388. Milton Silva cannot forcibly eject the respondent.

In section 66 proceedings, it is not the task of the Magistrate to decide the case on merits. That is the task of the District Court in a properly constituted civil case. In section 66 proceedings, what shall be looked at is possession and not title. Title is foreign in section 66 applications. Possession here means not the right to possession but actual possession.

Sharvananda J. in Ramalingam v. Thangarajah [1982] 2 Sri LR 693 at 699 stated:

Evidence bearing on title can be considered only when the evidence as to possession is clearly balanced and the presumption of possession which flows from title may tilt the balance in favour of the owner and help in deciding the question of possession.

Such cases are indeed rare.

In section 66 proceedings, the character of possession does not play a pivotal role. The object of these proceedings is to make a provisional order to prevent a breach of the peace stemming from the dispute, until a contrary order, as seen from sections 68(2), 68(3) and 69(2), is made by "a competent court"; or, as seen from section 74, until the substantive rights of the parties are established in a "civil suit". In Podisingho v. Chandradsa [1978/79] 2 Sri LR 93 at 96, Atukorala J. gave an extended meaning to the term "competent court" to encompass "Tribunal of competent jurisdiction".

In Kanagasabai v. Mylvaganam (supra), decided under the Administration of Justice Law, Sharvananda J. at page 285 emphasised "actual possession".

Ramalingam v. Thangarajah (supra) is a case filed under section 66 of the Primary Courts' Procedure Act. In the said case, Sharvananda J., at page 698-699, heavily underlined the term "actual possession" in section 66 proceedings.

In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof. 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 proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within twonmonths of the filing of the information. That person is entitled to possession until he is evicted by due process of law. A Judge should therefore in an inquiry under Part VII of the aforesaid Act, confine himself to the question of actual possession on the date of filing of the information except in a case where a person who had been in possession of the land had been dispossessed within a period of two months immediately before the date of the information. He is not to decide any question of title or right to possession of the parties to the land. (emphasis added)

In fact, the term "actual possession" was used in section 62(1) of the Administration of Justice Law as well as in the corresponding section 145 of the Indian Code of Criminal Procedure.

In Sohoni's The Code of Criminal Procedure, 1973, Vol.2, 18th edition (1985), at page 1128, the learned author states:

The object of the section (145 of the Indian Code of Criminal Procedure) is to bring to an end by a summary process disputes relating to property, which are essentially of a civil nature, with a view to prevent breach of peace. Orders under the section are mere police orders which do not concern question of title. The section is primarily meant for the prevention of breach of peace where the dispute relates to the possession of immovable property, and to provide a speedy remedy by bringing the parties before the Court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent Court. Enquiry under this section is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties, and not determine the right and title of the parties.

Ratanlal & Dhirajlal in the Code of Criminal Procedure, 21st edition (2013), equate actual possession to physical possession. At page 217 they say:

"Actual possession" means actual physical possession, that is, the possession of the person who has his feet on the land, who is ploughing it, sowing it or growing crops on it, entirely irrespective of whether he has title or right to possess it. It is not the same as a right to possession nor does it mean lawful or legal possession. It may be that of a trespasser without any title whatever. The aim and object of the section is the maintenance and preservation of the public peace.

It is significant to note that, unlike under section 62 of the Administration of Justice Law, under section 68 of the Primary Courts' Procedure Act, the word "possession" has not been qualified by the word "actual", suggesting that possession need not necessarily be actual.

In any event, actual possession does not mean actual physical possession at all times. Actual physical possession will vary with the subject matter. The owner of unworked minerals was held in Ranchi Zamindari Co. Ltd. v. Pratab Udainath Sahi Deo (AIR 1939 Patna 209) to be in actual possession of the same if he is in a position, at any moment, to work them or to permit others to do so. Sarker on Criminal Procedure, 6th edition (1992), (citing Nabin, 25 WR 18, Mahesh, 26 CRLJ 398), states, at page 311, "Receiving rents of tenants is actual possession".

Whilst the right to possession resides in the owner, another can of course be in actual possession. Servant, manager, agent are a few examples of the latter. In such cases, the former can claim actual possession of the latter against third parties in section 66 proceedings. This can be termed actual possession through subordinates, or else, constructive possession.

In Iqbal v. Majedudeen (supra), the case cited by the learned counsel for the appellant, upon the death of her husband, the respondent went to live with her mother, locking up and leaving the premises in question where she was living earlier. The appellant, after returning to Sri Lanka, broke open the door of the premises and entered into possession. This happened within two months of filing the first information in Court. All three Courts-the Magistrate's Court, the High Court and the Court of Appeal-correctly held with the respondent.

In my view, the respondent in that case was in actual possession of the premises because actual possession does not, as I stated earlier, mean uninterrupted physical presence throughout the day.

In the course of the Judgment, Gunawardena J., at pages 215- 216, observed:

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:

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

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 thereof. By keeping the premises locked, she, i.e. 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 thereof, and her affidavit evidence is that she had not terminated her intention to revert to the physical occupation of the relevant premises.

In Salmond on Jurisprudence, 12th edition (2004) by P.J. Fitzgerald, at page 266, the learned author says that the concept of possession is difficult to define as it is an abstract notion and not purely a legal concept. He opines:

Whether a person has ownership depends on rules of law; whether he has possession is a question that could be answered as a matter of fact and without reference to law at all.

Salmond at page 282 states:

In law one person may possess a thing for and on account of someone else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct.

At pages 285-286, he further says:

In all cases of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. If I deposit goods with an agent, he is in possession of them as well as I. He possesses for me, and I possess through him. A similar duplicate possession exists in the case of master and servant, landlord and tenant, bailor and bailee, pledgor and pledgee. There is, however, an important distinction to be noticed. For some purposes mediate possession exists as against third persons only, and not as against the immediate possessor. Immediate possession, on the other hand, is valid as against all the world, including the mediate possessor himself. Thus if I deposit goods with a warehouse man, I retain possession as against all other persons; because as against them I have the benefit of the warehouseman's custody. But as between warehouseman and myself, he is in possession and not I. So in the case of a pledge, the debtor continuous to possess quoad the world at large; but as between debtor and creditor, possession is in the latter. The debtor's possession is mediate and relative; the creditor's is immediate and absolute. So also with landlord and tenant, bailor and bailee, master and servant, principal and agent, and all other case of mediate possession. (emphasis mine)

Sharker on Criminal Procedure, 6th edition (1992), at page 311, (citing Venugopal, A 1945 M 255, Karnadhar, 1948 1 Cal 150), states:

As between rival landlords or between a landlord and the tenants of another landlord, the possession of the tenant is the possession of the landlord.

In Jaikrit Singh v. Sohan Raj (AIR (46) 1959 Punjab 63 at 69) it was held that:

It is true that the possession of a servant of his master's property on his behalf is the master's possession with regard to third persons. But, if there is a dispute between the master and the servant, themselves, about the possession of the property, the word possession will have to be interpreted in the sense of actual physical possession. The term 'possession' connotes an intricate and subtle legal conception, which changes with circumstances.

Sohoni (op. cit., page 1184) (citing Shaikh Munshi v. Balabhadra Prasad Das, 1961 Cut. L.T. 10, Dasrathi v. State of Orissa, 1971 Cut. L.T. 270), states:

Even where a servant is in possession over property belonging to his master on his behalf, the possession will become his own when he continuous to remain in possession after leaving the service of his master, or even otherwise. His possession, therefore, even though wrongful, will be maintained if it has continued for over two months prior to the institution of the proceedings.

The master, principal, licensor, lessor, landlord and the like, in my view, are not without immediate remedy. They can appropriately file a civil suit in the District Court to eject the unlawful occupier, and, pending determination of the action, can obtain an interim injunction preventing the delinquent from taking advantage of his wrongdoing on the Roman-Dutch Law principle spoliatus ante omnia restituendus est, which is for convenience known as the wrongdoer principle: A wrongdoer shall not be allowed to benefit out of his own wrongdoing. Vide Seelawathie Mallawa v. Millie Keerthiratne [1982] 1 Sri LR 384, Subramanium v. Shabdeen [1984] 1 Sri LR 48, Kariyawasam v. Sujatha Janaki [2013] BLR 77.

In Seelawathie Mallawa v. Millie Keerthiratne (supra), Victor Perera J., at page 391, stated:.

[I]f a person in unlawful possession could not be ejected pending trial, he could still be restrained from taking any benefits arising out of such wrongful possession, otherwise the Court would be a party to the preserving for the defendant-appellant a position of advantage brought about by her own unlawful or wrongful conduct.

In The Public Trustee v. Cader (1963) 66 CLW 109 it was held:

Where an employee willfully continuous to remain in control of a place of business, the administrator of the deceased owner's estate has a right to an interim injunction under section 86 of the Courts Ordinance restraining that employee from continuing in control.

Let me now epitomise the requirement of possession expected in section 66 proceedings.

In section 66 proceedings:

(a) What is required is actual possession. Actual possession means actual physical possession. That is direct or immediate possession.

(b) Possession of persons who entered into possession in a subordinate character such as tenant, lessee, licensee, agent, servant, can be relied upon by landlord, lessor, licensor, principal, master, respectively. That is constructive or mediate possession.

(c) Nevertheless, if the dispute regarding possession is between the two categories mentioned in (b) above, possession of the former shall prevail over the latter.

Constructive possession, as discussed in Iqbal v. Majedudeen (supra), shall be understood subject to (c) above.

Then, it is clear that even if the respondent is considered an agent of Milton Silva, the latter cannot claim possession through the former, as the dispute to possession is not between Milton Silva and a third party but between Milton Silva and his agent.

Therefore, I regret my inability to agree with the final argument of the learned counsel for the appellant as well.

During the course of argument, it was revealed that Milton Silva later filed a civil case in the District Court against the respondent in order to vindicate his rights to this land and eject the respondent therefrom. The parties shall have their substantive rights decided in the said civil case.

For the aforesaid reasons, I affirm the Judgment of the High Court, which affirmed the order of the Magistrate's Court, and dismiss the appeal, but without costs.

Judge of the Court of Appeal

A.L. Shiran Gooneratne, J.
I agree.

Judge of the Court of Appeal

ARLIS V ABEYNAYAKE [CA]

980 – SLR- Volume 2-Page- 84

COURT OF APPEAL.

RANASINGHE, J., AND K. C. E. DE ALWIS J.

C. A. APPLICATION 618/80-PRIMARY COURT, EMBILIPITIYA 1452.

Requirement of the order having to be delivered within one week of conclusion of inquiry ¬Non-compliance renders the order illegal. THIS JUDGMENT WAS LATER OVERRULED BY SUPREME COURT IN RAMALINGAM VS THANGARAJA 1980 SLR VOL 2 PAGE 84

OCTOBER 1. 8, 1980.

Primary Courts Procedure Act, No. 44 of 1979, section 67(2)-Requirement that order be delivered within one week of conclusion of inquiry ¬Non-compliance-Whether judge has jurisdiction to deliver order thereafter.

Held:

Case referred to:

(1) Dias et al, v. Suwaris, (1978) 79 (2) N. L. R. 258.

APPLICATION to revise an order of the Primary Court, Embilipitiya.

D. C. R. Collure, for the petitioner.

P. Jayasekera, for the respondent.

Cur. adv. vult.

November 12 , 1980.

K. C. E. DE ALWIS, J.

With regard to objection (ii), it seems to me that the material placed before the court by way of affidavit sufficiently indicated the possibility of there being a breach of the peace, though it was not specifically stated. Therefore, I cannot see validity in the objection to the Judge having proceeded to inquire into the dispute. With regard to the objection (i), it must be noted that the order, after the inquiry, has been delivered by the Judge sixteen ,weeks after the conclusion of the inquiry in disregard of section 67 (2) which says:

"The Judge of the Primary Court shall deliver his order within one week of the conclusion of the inquiry ".

The inquiry has been concluded on 29.2.80 and the order has been delivered on 25.5.80. It seems that the Judge alone could explain why the law was so flagrantly disregarded.

Counsel for the respondent submitted that the time limit laid down in that section is not an imperative requirement and sub¬mitted a number of authorities in support of his submission. It is unnecessary to discuss them here as they do not interpret the terminology in or even any analogous terminology to that which we find in section 67 (2) with regard to the period of time within which the act should be done. The Criminal Procedure Code required that a magistrate shall "forthwith" record a verdict of " guilty " or " not guilty ", after taking the evidence, and that a District, Court shall record a verdict of acquittal or conviction " forthwith " or " within not more than twenty four hours ". Cases cited by counsel for the respondent dealt with such unprecise terminology as above. In that context these expres¬sions needed judicial interpretation.

In the case of Dias et al. v. Suwaris et al. (1), Wijesundera, J. said, "Where the meaning of a statute is plain nothing can be done but to obey it ". When one statute stated that the act in question should be done " within one week " and another said that it should be done " not later than twenty four hours ", both enact¬ments said the same, except, of course, with regard to the actual period of time. They fixed two definite terminals and expressed a duration of time without ambiguity. Therefore the dictum in the above cited case is applicable to the. present case. When section 67( 2) is so clear and there has been a clear departure from it by the Judge of the Primary Court, there is nothing that this court could do but to set aside the order of the Judge, as the order has been made when the Judge has ceased to have jurisdiction.

In the result, I allow the application but without costs.

RANASINGHE, J.-I agree.

Application allowed.

ABEYGUNASEKERA V SETUNGA [SC]

Sri Lanka Law Reports 1997 - Volume 1 , Page No - 62

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.

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

Held:

The questions referred to are answered as follows:

1. Yes

2. Yes

Per Kulatunga, J.,

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.

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 of 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.

A. 154 P (3) -

"Every such High Court shall -

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

A. 154 P (6) -

A. 138 (1) -

(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.

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.

MARY NONA V FRANSINA [CA]

Sri Lanka Law Reports 1988 - Volume 2 , Page No - 250

COURT OF APPEAL

RAMANATHAN, J.

C. A. 1184/85 - PRIMARY COURT KEGALLE NO. 508/84

MARCH 30, 1988

Revision - Rules of the Supreme Court - Rule 46 - Is compliance, imperative?

Cases referred to

1. Navaratnasingham v. Arumugam (1980) 2 Sri L. R. 1

2. Mohamed Haniffa Rasheed Ali v. Khan Mohamed Ali and another S.C. No. 6/81 S. C. Minutes of 20.11.1981.

APPLICATION for revision of order of Primary Court, Kegalle.

Eardley Ratwatte for petitioner

D. S. Wijesinghe with Miss D. Dharmadasa for respondent.

Cur. adv. vult

May 24, 1988

RAMANATHAN. J.

This is an application for revision of the order of the learned Magistrate of Kegalle in proceedings taken under Section 66 of the Primary Courts Procedure Act No. 44 of 1979.

Thus, it would appear that a mandatory duty is cast by Rule 46 of the applicant for revision to furnish with his petition and affidavit, documents material to his case.

I accordingly dismiss the application for non compliance with Rule 46 of the Supreme Court Rules 1978. There will be no costs.

Application dismissed.

ABDUL HASHEEB V. MENDIS PERERA [CA]

1991 – SLR- Volume 1- Page 243

COURT OF APPEAL

TAMBIAH, J. AND G.P.S. DE SILVA, J.

CA APPLICATION NO. 1092/81 P.C. GAMPAHA CASE NO. 3853

06 APRIL 1982, 14 JUNE 1982, 6, 7, 8 JULY 1982 AND 10, 13 AND 14 SEPTEMBER 1982

Held:

The transfer contemplated in section 47(3) must be restricted to a transfer of a prosecution. An information filed under section 66 of the Primary Courts Procedure Act is clearly not a prosecution. Hence the petitioners were not required to give notice of the application to the Attorney-General.

The tests for disqualifying bias are -

(a) the test of real likelihood of bias;

(b) the test of reasonable suspicion of bias

On the application of either test, bias on the part of the Judge has not been established.

Cases referred to:

1. In re Sidie (1948)2 All ER 995, 998

2. Butcher v. Poole Corporation (1942)2 All ER 572, 579

3. Rex v. Sussex Justices, ex parte Me Carthy (1924)1 KB 256

4. R v. Rand (1866) LR 1 Q B 230

5. R v. Camborne Justices, ex parte Pearce (1954)2 All ER 850

6. Metropolitan Properties Co. (F.G.C.) Ltd. v. London (1968)3 All ER 304

7. Regina v. Colchester Stipendiary Magistrate, ex parte Beck (1972)2 WLR 637

8. In re Ratnagopal 70 NLR 409, 435

APPLICATION for transfer of case from Gampaha Primary Court to another Primary Court.

H. L. de Silva, S. A. with Sunil Cooray for respondent - petitioners.

V. S. A. Pullenayagam with Faiz Mustapha, K. Balapatabendi and Miss. Deepali Wijesundera for 1st and 4th respondents.

Dr. Colvin R. de Silva with Faiz Mustapha, S. L. Gunasekera, A. Arunatilake de Silva and K. Balapatabendi for 2nd and 3rd Respondents.

Suri Ratnapala, State Counsel for Attorney-General.

Cur. adv. vult.

07 October, 1982

G. P. S. DE SILVA, J.

This is an application for the transfer of a case pending in the Primary Court of Gampaha to another Primary Court. The application is made under sections 46 and 47 of the Judicature Act, No. 2 of 1978. Counsel for the respondents, Dr. de Silva and Mr. Pullenayagam, raised a preliminary objection to the application on the ground that the petitioners have failed to give notice in writing of the application to the Attorney-General in terms of section 47(3) of the Act, Admittedly, the respondents-petitioners (hereinafter referred to as the petitioners) have failed to give notice of this application to the Attorney-General and it was the contention of Counsel that such notice was an imperative requirement under the law. In the absence of such notice, it was the submission of Counsel, that the application had to fail. Both, Dr. de Silva and Mr. Pullenayagam, relied very strongly on the ordinary and natural meaning of the words of subsection (3) of section 47 as the basis of the preliminary objection. Section 47(3) reads as follows:-

Counsel for the respondents laid much stress on the generality of the words "every person making an application for a transfer under this Chapter . . .". It was the submission of Counsel that section 47(3) covers every person making an application and also every application made under this Chapter. Further, it was the submission of Dr. de Silva that the words "and also to the accused or complainant as the case may be", do not in any way restrict or qualify the generality of the words, "every person making an application for a transfer under this Chapter". Counsel relied strongly on the literal rule of construction which, it was submitted, is the primary rule of construction. Mr. Pullenayagam urged that plain words must be given their plain meaning unless such meaning leads to a manifest absurdity. Counsel argued that there was nothing absurd in giving notice to the Attorney-General of an application W a transfer of a civil case, for, to use Mr. Pullenayagam's own words, "the Attorney-General has been the constant and unfailing friend of the court." Mr. Pullenayagam suggested a possible reason for giving notice to the Attorney-General. He submitted that applications for transfer of cases often alleged bias against judicial officers who are not represented before court. It was suggested that the point of view of the judicial officer could be best presented to court through the Attorney-General and accordingly there is nothing absurd in giving notice of a transfer application even in respect of a civil matter to the Attorney-General. There has been a deliberate change in the law, and Counsel for the respondents strenuously contended that the legislature must be presumed to have said what it meant and meant what it said. The law having been changed from what it was under the Courts Ordinance and the Administration of Justice Law, No. 44 of 1973, Dr. de Silva submitted that no court is entitled to "negate" legislation through a process of interpretation.

"It is of course impossible to construe particular words in an Act of Parliament without reference to their context and to the whole tenor of the Act."

The 1st to the 6th petitioners are members of one family. The 1st petitioner is the husband of the 2nd petitioner, the 3rd and 5th petitioners are the sons of the 1st and 2nd petitioners while the 4th petitioner is the wife of the 3rd petitioner and the 6th petitioner is the wife of the 5th petitioner. The land in respect of which an information was filed in terms of section 66(1) of the Primary Courts Procedure Act, No. 44 of 1979, is called "Werellawatta", situated at Yakkala in Gampaha. The case for the respondents is that this land originally belonged to one Mohideen who died in 1973 leaving a last will in terms of which his widow (4th respondent) and his two daughters became entitled to the land. The widow and the daughters of Mohideen were negotiating to sell the property from about September 1979. The land was surveyed in October 1979 and the surveyor, in his affidavit, states that he was able to enter the land only with the assistance of the Police. Ultimately the land was sold on 31st March, 1981 by deed No. 4413, attested by Mr. Herman J.C. Perera, to A. N. Munasinghe and D. Munasinghe (hereinafter referred to as the Munasinghe brothers) who are the 2nd and 3rd respondents. Thereafter, on 3rd April, 1981, the Munasinghe brothers sought to take possession of the land but they were prevented from doing so by the 1st petitioner and his sons. This was reported to Hasheeb (1st respondent) who is the brother of the deceased Mohideen and who had assisted in the negotiations to sell the property to the Munasinghe brothers. According to the respondents, the petitioners have no right, title or interest in the land and the 1st petitioners have no right, title or interest in the land and the 1st petitioner was merely the conductor or watcher who had been employed by the deceased Mohideen. Hasheeb made a complaint to the Gampaha Police on 7th June, 1981. Sergeant Austin of the Gampaha Police, conducted inquiries into the complaint of Hasheeb and on 28th August, 1981, filed the information under section 66(1) of the Primary Courts Procedure Act, No. 44 of 1979, which is the subject matter of the present application for transfer. The petitioners, on the other hand, claim title to the land by right of prescription, inheritance and purchase, and they assert that they have been in possession of the land from the last several years. Their claim is founded partly on certain recent deeds of transfer.

At this stage, it is relevant to observe that while Punyawathie Jayakody is a party to the information filed under section 66 of the Primary Courts Procedure Act and an accused in the criminal case referred to above, she is also the complainant in a private plaint she filed in the Magistrate's Court of Gampaha, accusing Sergeant Austin of the Gampaha Police of using criminal force on her with intent to outrage her modesty, an offence punishable under section 345 of the Penal Code. These criminal proceedings (Case No. 3832 M.C. Gampaha) were instituted on 28th August, 1981, which was the same date on which Sergeant Austin filed the information under section 66(1) of the Primary Courts Procedure Act. The allegation is that Sergeant Austin used criminal force on Punyawathie Jayakody in the course of his investigations into the complaint of Hasheeb that the petitioners were refusing to hand over possession of the land to the Munasinghe brothers.

(a) that the Judge attended the wedding of Munasinghe's son (paragraph 6 of the petition);

(c) the application made on behalf of the petitioners for a longer date to file their affidavits in the case before the Primary Court was refused, although the Judge was informed that the 1st petitioner was in hospital and that seven of his sons were on remand on the allegation of forgery of deeds (paragraph 9 of the petition);

In the subsequent authorities cited before us, two tests for disqualifying bias have been formulated:-

(a) the test of real likelihood of bias; and

(b) the test of reasonable suspicion of bias.

One of the earliest cases in which the test of real likelihood of bias was laid down is R vs. Rand (4), in which Blackburn, J. said:-

"Wherever there is a real likelihood that the Judge would, from kindred or any other cause, have a bias in favour of the parties, it would be very wrong in him to act; . . "

It is of course not necessary to prove that the judicial officer was, in fact, biased. However, even on the application of the test of reasonable suspicion, it must be shown that the suspicion is based on reasonable grounds which would appeal to the reasonable, right thinking man. It can never be based on conjecture or on flimsy, insubstantial grounds. Adopting the words of Lord Denning in Lannon's case (Supra), Mr. Pullenayagam submitted that "bias" in this context would mean, "a tendency to favour one side unfairly at the expense of the other" - a submission with which I agree.

I accordingly make order that the case be transferred to the Primary Court of Minuwangoda.

In all the circumstances, I make no order as to costs.

TAMBIAH. J. - I agree.

Transfer of case ordered.

SIRIPALA V LANEROLLE [CA]

2012 – SLR- Volume 1-Page 105

COURT OF APPEAL

IMAM.J SARATH DE ABREW.J

CA PHC APN 101/2007, MC GALLE 86042, HCRA601/07

AUGUST 30,31/2007, SEPTEMBER 12/2007, OCTOBER 18/2007

Primary Courts Procedure Act- section 66- Order of Magistrate's Court- Revision in High Court dismissed - Revisionary jurisdiction of the Court of Appeal- When applicable ?- Discretionary remedy- Uberrima fides towards Court- Exceptional circumstance - Have to be pleaded ?

The petitioner Instituted action in terms of section 66 of the Primary Courts Procedure Act. Action was dismissed. The Revision application filed in the High Court was also dismissed. The petitioner thereafter moved in Revision in the Court of Appeal. On an objection- lodged that Revision does not lie.

Held:

(1) Revisionary power is a discretionary power arid its exercise cannot be demanded as of right unlike the statutory remedy of appeal.

(2) Revision would lie if

(i) aggrieved party has no other remedy

(ii) if there is, then revision would be available if special circumstances could be shown to warrant it .

(iii) Party must come to court with clean hands and should not have contributed to the current situation.

(iv) he should have complied with the law at that time

(v) acts should have prejudiced his substantial rights

(vi) acts should have occasioned a failure of justice.

(3) General principles that have emerged from a galaxy of authorities is that revision will not lie where an appeal or other statutory remedy is available.

(4) Failure to avail himself of the alternative remedy of appeal would not necessarily be a bar to Invoking the revisionary powers provided there are exceptional circumstances.

(5) Presence of exceptional circumstances by itself would not be sufficient If there is no express pleading to that effect in the petition whenever an application is made invoking the revisionary jurisdiction of the Court of Appeal.

(6) Petitioner has neither disclosed nor expressly pleaded exceptional circumstances that warrant intervention by way of revision.

Per Sarath de Abrew, J .

it is a cardinal principle in revisionary jurisdiction that In order to invoke discretionary, revisionary powers the petitioner shall make a full disclosure of material facts known to her and there by show uberrima fides towards Court. Deliberate non disclosure is fatal.

APPLICATION in Revision from an order of the High Court of Galle.

Cases referred to :

1. T. Varapragasam and another v. S. A. Emmanual CA931/84 (Rev) CAM 24.7.1991

2. Thilagaratnam v. E.A.P. Edirisinghe 1982 - 1 Sri LR 56

3. Camillus Ignatius v. OLC Uhana and another - CA Rev. 907/89

4. M . A. Sirisena v. C. D. Richard Arsala and others - CA 536/84 CAM 24.10.1990

5. Hotel Galaxy Ltd. v. Mercantile Hotel Management Ltd. - 1987 1 Sri LR 05

6. Urban Development Authority v. Ceylon Entertainments Ltd. -CA 1319/2001 CAM 5 . 4 . 2002

Ransiri Fernando with Chandana Liyanage for petitioner - petitioner - petitioner

J. C. Wellamuna with Maduranga Ratnayake for respondent - respondent - respondent .

Cur. adv. vult .

June 05, 2008

Sarath De Abrew, J .

This is a revision application filed by the petitioner - petitioner -petitioner (hereinafter referred to as the petitioner) in order to set aside the impugned order dated 23.07.2007 (A9) of the High Court of Galle and the order dated 27.06.2007 (A7) of the Magistrate's Court of Galle respectively. The petitioner instituted action against the respondent - respondent - respondent (hereinafter referred to as the respondent) in terms of Section 66 of the Primary Courts Procedure Act regarding a dispute with regard to the possession of land called . "Halwaturegoda Kekunagaha Bedde" depicted as lot A in plan No . 1882 (P3) situated at Lelwala, Galle, where in the petitioner claimed he had been forcibly dispossessed by the respondent. After granting interim relief , the learned Magistrate of Galle, after due inquiry, made order dismissing the action of the petitioner (A7). Thereafter the petitioner moved in revision in the High Court of Galle , whereupon the learned High Court Judge, after hearing the petitioner in support, refused to issue notice and made order dismissing th e application (A9). Being aggrieved by the aforesaid orders, the petitioner has invoked the revisionary jurisdiction of this Court by filing this revision application in order to have the aforesaid orders set aside.

When the matter came up for support before this Court, learned Counsel for the respondent raised the following preliminary object ions, and urged Court to uphold the preliminary objections and dismiss the application of the petitioner in limine .

(a) The Petitioner could not have filed and maintained the instant Revision Application without exercising the statutory right of appeal available thereof, and in any event the petitioner has failed to plead and demonstrate existence of exceptional or special circumstances and, in fact, there does not exist exceptional or special circumstances warranting the exercise of the discretionary power of this Court by way of revision.

(b) The instant revision application should fail in as much as the petitioner has sought to revise the order of the learned Magistrate twice over (first in the High Court and now in the Court of Appeal) which is contrary to the legislative intent.

As both parties agreed that the aforesaid preliminary objections be decided by way of written submissions, both the petitioner and the respondent have filed written submissions along with case law authorities.

I have perused the petition as well as the entirety of the documentation annexed to the petition including the proceedings before the Galle Magistrate Court and the High Court, and the respective written submissions fried by both parties.

The revisionary power of this Court is a discretionary power and its exercise cannot be demanded as of right unlike the statutory remedy of Appeal. Certain pre-requisites have to be fulfilled by a petitioner to the satisfaction of this Court in order to successfully Invoke the exercise of such discretionary power. This is best illustrated in T. Varapragasan and another vs. A. Emanuel(1) where it was held that the following tests have to be applied before the discretion of the Court of Appeal is exercised in favour of a party seeking the revisionary remedy.

(a) The aggrieved party should have no other remedy.

(b) If there was another remedy available to the aggrieved party, then revision would be available if special circumstances could be shown to warrant it.

(d) The aggrieved party should have complied with the law at that time.

(e) The acts complained of should have prejudiced his substantial rights.

(f) The acts or circumstances complained of should have occasioned a failure of justice.

The main contention of the Respondent is that not only has the petitioner failed to avail himself of the alternative remedy of the statutory right of appeal against the impugned order of the learned High Court Judge of Galle (A9), but also has failed to plead and demonstrate the existence of exceptional circumstances which would open the gate-way to revision.

The legal principle with regard to the above is succinctly stated by L.H. De Alwis J in Thilagaratnam v. EAP Edirisinghe(2) who remarked "though the Appellate Courts powers to act in revision were wide and would be exercised whether an appeal has been taken against the order of the original Court or not, such powers would be exercised only in exceptional circumstances."

Therefore the legal principle that failure to adopt the alternative remedy of Appeal would not necessarily be a bar to Invoking the revisionary powers, provided there are exceptional circumstances, have been followed in several authorities and has now become settled law.

Eg: Camillus Ignatius v. O.I.C. Uhana and others.(3)

M. A. Sirisena v. C. D . Richard Arsala and others.(4)

In Hotel Galaxy Ltd. V. Mercantile Hotel Management Ltd.(5) Sharvananda C.J. reiterated "It is settled law that the exercise of revisionary powers of the Appellate Court is confined to cases In which exceptional circumstances exist warranting its intervention."

The general principle that has emerged from a galaxy of such authorities is that revision will not lie where an appeal or other statutory remedy is available. It Is only if the aggrieved party can show exceptional circumstances for seeking relief by way of revision, rather than by way of appeal when such appeal is available as of right, that the Court will exercise its revisionary jurisdiction in the Interests of the due administration of Justice.

In the instant case the petitioner has not adopted the statutory right of appeal nor has he given any reasons far not doing so in the petition. Paragraph 13 of the Petition has set out several questions of law which could have been easily settled in an appeal. In fact paragraph 14 of the Petition reads "The Petitioner states that there are well and sufficient issues of Law arising out of the order of the learned High Court Judge marked A9 that deserve to be tested by an order of Your Lordship's Court". The petition therefore fails to demonstrate any exceptional circumstance or any error on the face of the record that would open the gateway for revision.

Even though the petitioner attempts to justify the recourse to revision as against appeal in his written submissions, It is well settled law that existence of such exceptional circumstances should be amply and clearly demonstrated in the petition itself.

In Urban Development Authority v. Ceylon Entertainments Ltd. and another(6) Nanayakakara J. held with Udalagama J. agreeing) that presence of exceptional circumstances by itself would not be sufficient if there is no express pleading to that effect in the Petition whenever an application is made invoking the revisionary jurisdiction of the Court of Appeal.

In the instant application the petitioner has neither disclosed nor expressly pleaded exceptional circumstances that warrant intervention by way of revision. In the event, I am inclined to uphold the first preliminary objection raised by the respondent and therefore do not proceed to consider the second ground.

However my task would not be complete if I fail to dwell on a very salient feature of this application, namely the application of the principle of uberrima fides. On a perusal of the totality of the pleadings, it is quite apparent that as disclosed in documents V4 and V25, the petitioner himself has been a party and signatory to a mortgage of a larger land which included the corpus in this case to the Peoples Bank who had acquired and sold the land in question to the respondent on the failure of the petitioner and others to redeem the mortgage and repay the loan to the Bank. However in paragraph 05 of the petition the petitioner vaguely refers to his brother having mortgaged part of the land to the People's Bank. In the proceedings before the Magistrate Court and the High Court, the petitioner has not sought to challenge the illuminating deed of mortgage V4. In the petition filed before the Magistrate Court (A 1) there is no reference at all to the aforesaid mortgage. By his failure to redeem the Mortgage, the petitioner too appears to have contributed to the current situation, which conduct accrues adversely against the petitioner in view of the Varapragasam case quoted above.

It is a cardinal principle in revisionary jurisdiction that in order to invoke discretionary revisionary powers the petitioner should made a full disclosure of material facts known to him and thereby show uberrima fides towards Court. Deliberate non- disclosure should be regarded as fatal to the application.

Eg: Sirisena v. Richard Arsala and others (supra). In the instant case the Petitioner has clearly infringed the aforesaid cardinal rule.

For the reasons stated above this Court is of the view that this is not a fit case to invoke the discretionary revisionary powers of this Court. Therefore I uphold the first preliminary objection raised by the respondent and dismiss the application of the petitioner in limine. In all the circumstances of this case I make no order as to costs.

The Registrar is directed to forward copies of this order to the learned High Court Judge and the learned Magistrate of Galle. Application is accordingly dismissed

Imam , J. - I agree.

Preliminary objection upheld.

Application dismissed.

PATHMA ABEYWICKREMA V JEEVANI [CA]

2012 – SLR- Volume 1-Page 393

COURT OF APPEAL

SISIRA DE ABREW.J CHITRASIRI.J

CA[PHC] 67/2000 HC GALLE 51/99

JULY 23,24,2012

Primary Courts Procedure Act- 44 of 1979- Section 66- Order canvassed in Revision- Permission not granted to file objections- Order on the Revision application fixed- Appeal against the order refusing to grant time lodged in the Court of Appeal - Not taken up- Is the order refusing the application to tender objections a final order or an interlocutory order- Civil Procedure Code- Section 754 [1], [2] - [5] - Partition Law

Held:

Per Sisira de Abrew.J

"The High Court by the said order-6.4.2000 refusing permission to file objections, has not decided the revision application. He was going to deliver his order later. The High Court Judge by his order- 6.4.2000 has not finally disposed of the rights of the parties. This is not a final order."

The order of the High Court Judge on 6.4.2000 has not determined the matter in litigation.

APPLICATION in Revision from an order of the High Court of Galle.

Cases referred to:-(1) Siriwardena vs. Air Ceylon Ltd 1984 1 Sri LR 28

(2) Ranjit vs. Kusumawathie -1998 3 Sri LR 232

(3) White vs. Brunton-1984 2 AlI ER606

(4) Shubrook vs. Tufnel-1882 9 QBD 621

(5) Salaman vs. Warner and Others- 1891 1 QB 734

(6) Bozon vs. Altrincham Urban District Court 1903 1 KB (7) Issac and Sons vs. Salbstuien 1919 [2 KB 139 at 147]

(8) Chettiar vs. Chettiar 2011 BALR 25

Varuna Senadheera for appellant

Sanjeeva Ranaweera for respondent.

September 27, 2012

SISIRA DE ABREW J.

This is an appeal to set aside the order of the learned High Court Judge dated 6.4.2000. The learned Magistrate in an application under section 66 of the Primary Courts Procedure Act No 44 of 1979 made an order in favour of the appellant. Being dissatisfied with the said order, the respondents filed a revision application in the High Court seeking to set it aside. The appellant could not file her objection although notice was sent by the High Court directing her to file objection. The learned High Court Judge thereafter decided to deliver his order without the objections of the appellant. The appellant however sought permission of the High Court to file her objection. The learned High Court Judge, by his order dated 6.4.2000, (delivered on 7.4.2000) rejected the said application and decided to deliver his order on the revision application filed in the High Court. This order was fixed for 31.5.2000. But before 31.5.2000, the appellant, on 3.5.2000, filed an appeal against the order of the learned High Court Judge dated 6.4.2000. The learned High Court Judge forwarded the case record to this court.

Learned counsel for the respondents submitted that the order of the learned High Court Judge dated 6.4.2000 was not a final order and that therefore this appeal should be rejected. Learned counsel for the appellant submitted that as the learned High Court Judge, by the said order, has finally disposed of the rights of the appellant, the order was a final order. I must therefore examine whether the said order of the learned High Court Judge is a final order or not. In order to decide this question I would like to consider certain judicial decisions.

In Siriwardene Vs Air Ceylon Ltd(1) Sharvananda J (as he then was) held thus: "The tests to be applied to determine whether an order has the effect of a final judgment and so qualifies as a judgment under section 754(5) of the Civil Procedure Code are :

1. It must be an order finally disposing the rights of the parties.

2. The order cannot be treated as a final order, if the suit or the action is still left a live suit or action for the purpose of determining rights and liabilities of the parties in the ordinary way.

3. The finality of the order must be determined in relation to the suit.

4. The mere fact that a cardinal point in the suit has been decided or even a vital and important issue determined in the case, is not enough to make an order a final one.

By these tests an order amending a decree made under section 189 of the Civil Procedure Code is a final order. Hence the appellant's application for leave to appeal was misconceived, could not be entertained."

In Ranjith Vs Kusumawathie(2) case filed in the District Court was a partition action. In the said case the 4th defendant filed his statement of claim. On the day of the trial all parties except the plaintiff were absent. Evidence of the plaintiff was led and the judgment and the interlocutory decree were entered. Later the 4th defendant applied to the trial court in terms of section 48(4)(a)(IV) of the Partition Law, for special leave to establish his right, interest and title to the corpus, seeking to explain his failure to appear at the trial. The application for leave to appeal was rejected by the District Court. The appellant then preferred an appeal to the Court of Appeal against the order of the Court of Appeal in terms of section 754(1) of the Civil Procedure Code. The Court of Appeal rejected the appeal on the basis that what was appealed from was an order within the meaning of section 754(2) of the Civil Procedure Code and that therefore an appeal could lie only with the leave of the Court of Appeal first had and obtained. The Supreme Court affirming the judgment of the Court of Appeal held thus: "the order of the District Court is not a judgment within the meaning of section 754 (1) and 754(5) of the Civil Procedure Code for the purpose of an appeal. It is an order within the meaning of section 754(2) of the Code from which an appeal may be made with the leave of the Court of Appeal first had and obtained."

Justice Dheerarathne in Ranjith Vs Kusumawathi (supra) at 236 observed thus: "There have been two virtually alternating tests adopted by different judges from time to time in UK to determine what the final orders and interlocutory orders were. In White Vs Brunton(3) Sir John Donaldson MR labeled the two tests as the order approach and the application approach. The order approach was adopted in Shubrook Vs Tufnel(4) Jessel MR and Lindely LJ held that an order is final if it finally determines the matter in litigation. Thus the issue of final and interlocutory depended on the nature of the order made. The application approach was adopted in Salaman Vs Warner & Others(5) in which the Court of Appeal consisting of Lord Esher MR, Fry and Lopes LJJ held that the final order is one made on such application or proceeding that, for whichever side the order was given, it will, if it stands, finally determine the matter in litigation. Thus the issue of final or interlocutory depended on the nature of the application or proceedings giving rise to order and not the order itself."

In Bozson Vs Altrincham Urban District Council(6) at 548 Lord Alverstone CJ dealing with a question whether an order was a final order or interlocutory order laid down the following test: "It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion an interlocutory order". Swinfen Eady LJ (with whom Pickford and Bankes LJJ agreed) in Isaac & Sons v. Salbstein(7) at 147 approved the test of finality stated by Lord Alverstone C J.

In Chettiar Vs Chettiar(8) plaintiff filed action in the District Court of Colombo praying for relief against the trustees of a Hindu Temple in terms of section 101 of the Trust Ordinance. The defendants by way of a motion brought to the notice of court that the plaintiffs action is barred by a positive rule of law and moved to dismiss the plaint in limine in view of section 46(2) of the Civil Procedure Code. The learned District Judge, by his order dated 14.5.2008, upheld the objection and dismissed the plaint. The matter for determination was whether the order of the District Judge was a final order. The Supreme Court (a bench of five judges) after considering several judicial decisions including Siriwardene vs Air Ceylon (supra) and Ranjith vs Kusumawathi (supra) held thus:

"Considering the decision given by Dheerarathne J in Ranjith Vs Kusumawathi (supra) it is abundantly clear that the order dated 14.5.2008 is not a final order having the effect of a judgment within the meaning of sub section 754(1) and 754(5) of the Civil Procedure Code, but is only an interlocutory order."

Coming back to the facts of this case, I ask the question: even according to the dictum of Alverstone CJ is the order of the learned High Court Judge dated 6.4.2000 a final order. Has the said order finally disposed of the rights of the parties? The learned High court Judge, by the said order, has not decided the revision application. He was going to deliver his order on 31.5.2000. Therefore the learned High Court Judge, by his order dated 6.4.2000, has not finally disposed of the rights of the parties. Thus even according to the dictum of Lord Alverstone CJ, the order of the learned High Court Judge dated 6.4.2000 is not a final order.

Even according to the principles laid down in the Shubrook Vs Tufnell (supra) and Salaman Vs Warner and Others (supra) is the order of the learned High Court Judge dated 6.4.2000 a final order? Has the said order finally determined the matter in litigation? The answer is clearly 'no'. The learned High Court Judge was going to deliver his order on the revision application on 31.5.2000. Before the said date the appellant filed this appeal.

For the above reasons, I hold that the order of the learned High Court Judge dated 6.4.2000 is not a final order and that therefore no appeal lies against the said order. I therefore dismiss the appeal with costs.

The learned High Court Judge is directed to deliver the order on the material already submitted to the High Court in connection with the Revision application.

Appeal dismissed.

CHITRASIRI J. -I agree.

Appeal dismissed.

SUBASHINI VS. OIC, TISSAMAHARAMA [CA]

2014 – SLR-Volume 1- Page 83

COURT OF APPEAL

ABDUL SALAM, J. (P/CA)

RAJAPAKSE, J.

CA PHC 128/2011

PHC HAMBANTOTA 7/2010, MC TISSAMAHARAMA 99595/09

FEBRUARY 18, 2014, SEPTEMBER 2, 2014

Primary Courts Procedure Act No. 44 of 1979 Section 66(1) (a) - Agricultural Development Act Section 90 - interference with Cultivation Rights of owner cultivator or occupier - Could the jurisdiction conferred under Section 66 be exercised? - Special Tribunal created to give specific remedy - Resort to that Tribunal?

Held:

(1) Where a statute created a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement a party seeking to enforce the right must resort to that tribunal and not to others.

APPEAL from the Judgment of the provincial High Court (Hambantota)

Cases referred to:-

1. Mansoor vs. OIC Avissawella 1991 2 SLR 75

Anuruddha Dammika with Indika Jayaweera for 1st party petitioner - Appellant

Gamini Premathilake with Ranjith Henri for 2nd party respondent

02nd October 2014

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

This is an appeal preferred against the judgment of the learned High Court Judge of Hambantota. The learned High Court Judge in turn delivered his judgment, when the 1st party respondent petitioner Appellant sought a writ against the order of the learned Magistrate refusing to exercise jurisdiction over a dispute relating to paddy land with regard to right to cultivation and dispossession.

The learned Magistrate relying on Section 90 of the Agricultural Development Act has rejected the report filed under Section 66(1)(a) of Act No 44 of 1979, on the basis that the jurisdiction conferred under the said Section 66 cannot be exercised, when the legislature has conferred a particular relief over such disputes.

The learned Judge of the High Court has affirmed the decision of the learned Magistrate on the same premise relied upon by the Magistrate.

Section 90 of the Agrarian Development Act reads as follows. . .

"INTERFERENCE WITH CULTIVATION RIGHTS OF OWNER CULTIVATOR OR OCCUPIER.

90.(1) Where a complaint is made to the Commissioner general by any owner cultivator or occupier of agricultural land that any person is interfering with or attempting to interfere with the cultivation rights, threshing rights, rights of using a threshing floor, the right of removing agricultural produce or the right to the use of an agricultural road of such owner cultivator or occupier, the Commissioner General after inquiry may if he is satisfied that such interference or attempted interference will result in damage or loss of crop or livestock, issue an order on such person, cultivator or occupier requiring him to comply with such directions as may be specified in such order necessary for the protection of such rights:

Provided that an order under this section shall not be made for the eviction of any person from such agricultural land:

Provided further that an order issued under subsection(1)

shall not prejudice the right, title or interest of such person, cultivator or occupier to such land, crop or livestock in respect of which such order is made.

[2] For the purpose of ensuring compliance with the provisions of an order under subsection (1) the Commissioner - General may seek the assistance of a peace officer within whose area of authority such agricultural land in respect of which such order is made lies, and it shall be the duty of such Peace Officer to render such assistance as is sought and the Peace Officer may for such purpose use such force as may be necessary to ensure compliance with such order.

[3] An order under subsection (1) shall be binding on the person in respect of whom it is made until set aside by a court of competent jurisdiction.

[4] Any person who fails to comply with an order made under subsection (1) shall be guilty of an offence under this Act.

[5] A certificate in writing issued by the Commissioner - General to the effect that the directions contained in an order made by him under subsection (1) has not been complied with by the person specified therein shall be prima facie evidence of the facts stated therein.

In Mansoor vs. OIC Avissawella(1) this Court reiterated the principle that where a Statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement a party seeking to enforce the right must resort to that tribunal and not to others.

Taking into consideration the Agricultural Development Law (Section 90) and the ratio in Mansoor Vs. OIC, Avissawella (supra), I am of the opinion that the appeal preferred merits no favourable consideration. Accordingly, the appeal stands dismissed.

SUNIL RAJAPAKSE, J. I agree.

Appeal dismissed.

ABEYWARDENE Vs AJITH DE SILVA [SC] Divisional Bench

1998 – SLR - Volume 1- Page 134

SUPREME COURT

AMERASINGHE, J., WADUGODAPITIYA. J.,WIJETUNGA, J., ANANDACOOMARASWAMY, J.AND SHIRANI BANDARANAYAKE, J.

S.C. SPECIAL LA. NO. 457/96

29TH JULY 1997.

Appeal - Article 154 P (3) (b) of the Constitution - Sections 5 and 9 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 - Appeal from an order of the High Court in the exercise of its revisionary jurisdiction.

The petitioner sought leave to appeal to the Supreme Court from an order made by the High Court in the exercise of its revisionary jurisdiction.

Held:

A direct appeal does not lie to the Supreme Court from the order of the High Court in the exercise of its revisionary jurisdiction. An appeal from such order should be made to the Court of Appeal.

Cases referred to :

1. Gunaratne v. Thambinayagam and others (1993) 2 Sri LR 355.

2. Abeygunasekara v. Setunge and others (1997) 1 Sri LR 62.

3. Yapa v. Ameer and another S.C. Spl. LA. S.C. minutes 5 March 1977.

4. In Re 13th Amendment to the Constitution (1987) 2 Sri LR 310, 323.

5. Mariam Beebee v. Seyed Mohamed (1966) 68 NLR 36, 38.

6. Attorney-General v. Podisingho 51 NLR 385, 388.

7. Somawathie v. Madawela (1983) 2 Sri LR 15, 26.

8. Thameena v. Koch (1969) 72 NLR 192.

9. S.L.B.C. v. De Silva (1981) 2 Sri LR 228 (CA).

10. Nadarajah v. Tilagaratnam (1986) 3 CALR 303 (CA).

APPLICATION for Special Leave to Appeal from the judgment of High Court, Anuradhapura.

Mohan Peiris with Shanaka Ranasinghe, Nuwanthi Dias, Nirosha Jayamaha, Jayantha Fernando, Nishada Gamage for the petitioner.

Patrick Fernando with R. E. Thambiratnam for the respondent.

Cur. adv. vult.

13th October, 1997

ANANDACOOMARASWAMY, J.

This is an application for Special Leave to Appeal from the order of the learned High Court Judge of Anuradhapura dated 5th August, 1996. When this application was supported for special leave before a Bench consisting of Amerasinghe, J., Anandacoomaraswamy, J. and Gunawardena, J., Counsel for the respondent raised a preliminary objection namely that the petitioner had filed this application in the wrong forum, for the petitioner should have first appealed to the Court Of Appeal and thereafter if he was unsuccessful come to this court if he so desired. He relied on the decision of this court (Kulatunga, J. with whom G. P. S. de Silva CJ., and Ramanathan, J. agreed) in the case of Gunaratne v. Thambinayagam and others(1). In that case it was held :

1. "The right of appeal is a statutory right and must be expressly created and granted by statute.

2. S. 9 of Act No. 19 of 1990 does not give a right of appeal to the Supreme Court from an order of the High Court in the exercise of its revisionary jurisdiction".

He also relied on the decision of this court by the same Bench in the case of Ananda Gordon Abeygunasekera v. Adikari Mudalige Don Mervyn Joseph Setunga and two others(2). In that case, this Court answered the following two questions referred to this court by the Court of Appeal in the affirmative:

(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 154 P (6) of the Constitution as amended by the 13th amendment read with section 74 (2) of the Primary Courts Procedure Act?".

In that case it was argued that Gunaratne v. Thambinayagam (supra) was wrongly decided.

Learned counsel for the respondent also relied on the decision of this court (Fernando, J., Wadugodapitiya, J., Perera, J.) in Yapa v. Ameer and another (3). Where the Court held that according to the decision in Gunaratne v. Thambinayagam (supra) there is no such right of appeal and the Court agreed with that decision.

Learned counsel for the petitioner submitted that the cases relied on by learned counsel for the respondent were wrongly decided. In view of his submission that Bench requested His Lordship the Chief Justice to consider appointing a fuller Bench to consider the following question :

"Does a direct appeal lie to the Supreme Court from an order of the High Court in the exercise of its revisionary jurisdiction without appealing to the Court of Appeal".

137

In view of this request His Lordship The Chief Justice nominated this Bench to hear and determine the question of law.

At the outset I must say that these three decisions are right and that if in consequence of these decisions there would be an undesirable increase of litigation, that is the matter for the legislature.

In the instant case a dispute relating to land had been referred to the Magistrate's Court of Anuradhapura in terms of section 66 (1) (b) of the Primary Courts Procedure Act, No. 44 of 1979. The respondent in that case raised an objection stating that the Magistrate lacked jurisdiction to inquire into the matter. That objection was overruled and the respondent filed an application in the High Court of Anuradhapura for the revision of the said order. The learned High Court Judge allowed the application for revision and set aside the order of the learned Magistrate. It is from the order of the learned High Court Judge that the petitioner has filed this application in this court for special leave to appeal.

The question before this court is whether a direct appeal lies to this 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.

There is no right of appeal from an order of the Primary Court Judge by reason of the provisions of section 74 (2) of the Primary Courts Procedure Act, No. 44 of 1979. 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 (enacted by the 13th Amendment) 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 the 13th Amendment to the Constitution.(4) In the result, he may file an application in the Court of Appeal or in the High Court. Article 154P establishes a High Court for each province. Article 154P (3) (6) states as follows:-

"Every such High Court shall-

notwithstanding anything in Article 138 and subject to any law, exercise, appellate and revisionary jurisdiction in respect of con¬victions, sentences and orders entered or imposed by Magistrate's Courts and Primary Courts within the province".

Article 154P (6) states as follows :-

"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 paragraphs (3) (b),. . . may appeal to the Court of Appeal in accordance with Article'1 138".

After the 13th Amendment, appeals to the Court of Appeal from High Courts established by Article 154P of the Constitution were governed by the Court of Appeal (Procedure for appeals from High Courts established by Article 154P of the Constitution) Rules, 1988 made by the Supreme Court and published in Gazette Extraordinary No. 549/6 of 13.03.89. This was followed by Act No. 19 of 1990. Section 9 of Act No. 19 of 1990 provides for a direct appeal to the Supreme Court from any final or interlocutory order, judgment, decree or sentence of a High Court established by Article 154P of the Constitution in the exercise of the appellate jurisdiction vested in it by Article 154P (3) (b) or s. 3 of the Act or any other law. s. 10 provides as follows :-

(1) "The Supreme Court shall, subject to the Constitution be the final court of appellate jurisdiction within Sri Lanka for the correction of all errors in fact or in law which shall be committed by a High Court established by Article 154P of the Constitution, in the exercise of the appellate jurisdiction vested in it by paragraph (3) (b) of Article 154P of the Constitution or section 3 of this Act, or any other law and the judgments and orders of the Supreme Court shall, in such cases, be final and conclusive in all such matters.

(2) The Supreme Court shall, in the exercise of its jurisdiction, have sole and exclusive cognizance by way of appeal from any order, judgment, decree or sentence made by a High Court established by Article 154P of the Constitution, in the exercise of the appellate jurisdiction vested in such High Court by paragraph (3) of Article 154P of the Constitution section 3 of this Act or any other law and it may affirm, reverse or vary any such order, judgment, decree or sentence of such High Court and may issue such directions to such High Court or Court of First Instance or order a new trial or further hearing in any proceedings as the justice of the case may require and may also call for and admit fresh or additional evidence if the interests of justice so demands and may in such event, direct that such evidence be recorded by such High Court, or any Court of First Instance".

The cumulative effect of the provisions of Articles 154P (3) (b), 154P (6) and section 9 of Act No. 19 of 1990 is that, while there is a right of appeal to the Supreme Court from the orders, etc., of the High Court established by Article 154P of the Constitution in the exercise of the appellate jurisdiction vested in it by Article 154P (3) (b) or Section 3 of Act No. 19 of 1990 or any other law, there is no right of appeal to the Supreme Court from the orders in the exercise of the revisionary jurisdiction. An appeal from an order of the High Court in the exercise of its revisionary jurisdiction should be made to the Court of Appeal. An appeal to the Supreme Court from the decision of the Court of Appeal would lie, with leave.

It is contended on behalf of the petitioner that the expression "appellate jurisdiction" (as opposed to "Original Jurisdiction") would ordinarily include the power to review decisions by way of appeal, revision or restitutio in integrum. I do not agree with this submission. Article 154P (3) (b) refers to "appellate" and "revisionary" jurisdiction, but "revisionary jurisdiction" is omitted in section 9 of Act No. 19 of 1990. The omission, in my view, is not inconsequential, for jurisdiction in respect of revision is distinct from appellate jurisdiction (Mariam Beebee v. Seyed Mohamed (5) Vide also Somawathie v. Madawela (6) and Attorney-General v. Podisingho (7)

Prior to the enactment of section 3 of Act No. 19 of 1990, the remedy by way of revision was not available against the order of a Labour Tribunal: Vide Thameena v. Koch (8), S.L.B.C. v. De Silva (9) and Nadarajah v. Tilagaratnam (10). Section 3 of Act No. 19 of 1990 vested in the High Court (in addition to appellate jurisdiction), revisionary jurisdiction in respect of the orders of Labour Tribunal and orders made under sections 5 and 9 of the Agrarian Services Act. Further, while section 9 of Act No. 19 of 1990 does not give a right of appeal to the Supreme Court from an order of the High Court made in the exercise of its revisionary jurisdiction, section 31D of the Industrial Disputes Act as amended by Act No. 32 of 1990 (which also provides for direct appeals to the Supreme Court) provides as follows :

"Any workman, trade union or employer who is aggrieved by any final order of a High Court established under Article 154P of the Constitution, in the exercise of the appellate jurisdiction vested in it by law or in the exercise of its revisionary Jurisdiction vested in it by law, in relation to an order of a Labour Tribunal, may appeal therefrom to the Supreme Court with the leave of the High Court or the Supreme Court first had and obtained".

It will thus be seen that if a litigant invokes the revisionary juris¬diction of the Court of Appeal, he has one chance for an appeal to the Supreme Court, whereas if he invokes the revisionary jurisdiction of the High Court he will have two chances of appeal, one to the Court of Appeal and then to the Supreme Court, except when the revisionary jurisdiction of the High Court is invoked in relation to an order of a Labour Tribunal, in which case there is only one appeal and that too to the Supreme Court only.

It is further seen that the legislature did intend to have the right of appeal to the Court of Appeal from a revisionary order of the High Court except when the revisionary jurisdiction of the High Court is invoked in relation to an order of a Labour Tribunal.

In response to the question placed before this court, I hold that a direct appeal does not lie to the Supreme Court from the order of the High Court in the exercise of the revisionary jurisdiction. An appeal from the order of the High Court in the exercise of its revisionary jurisdiction should be made to the Court of Appeal. Where a party is dissatisfied with the order of the Court of Appeal, the party may, with leave of the Court of Appeal or when such leave is refused by the Court of Appeal, with leave of the Supreme Court, appeal to the Supreme Court.

For the foregoing reasons I am of opinion that the preliminary objection must be upheld.

Special Leave to Appeal is therefore refused, with costs fixed at Rs. 5,250/-.

AMERASINGHE, J. - I agree.

WADUGODAPITIYA, J. - I agree.

WIJETUNGA, J. - I agree.

BANDARANAYAKE, J. - I agree.

Special leave to appeal refused.

KANTHILATHA Vs WIMALARATNE [CA]

(i) The effect of a right of appeal is the limitation of the jurisdiction of one court and the extension of the jurisdiction of another; on that right being exercised the case should be maintained in status quo till the appellate court has dealt with it and given its decision. (ii) The filing of an appeal in the exercise of a right of appeal conferred by law, ipso facto operates to suspend the jurisdiction of the original court to execute the order appealed against.

2005 – SLR- Volume 1-Page 411

COURT OF APPEAL

AMARATUNGA, J AND BALAPATABENDI J.,

C.A. PHC NO. 7/2002 H.C. COLOMBO REV. 178/01 M. C. GANGODAWILA 16523

JULY 15 AND AUGUST 01, 2002

Constitution, Articles, 154 P(3)(b) and 154P(6) - Civil Procedure Code, section 736- Court of Appeal (Procedure for Appeals from High Courts) Rules 1988-Appeal from order or judgment to higher court - Does the filing of an appeal ipso facto stay the operation of the order of the lower court ? - Primay Courts Procedure Act, section 66(1).

Held:

(ii) The filing of an appeal in the exercise of a right of appeal conferred by law, ipso facto operates to suspend the jurisdiction of the original court to execute the order appealed against.

Cases referred to :

1. Abeywardena vs. Ajith de Silva - (1998) 1 Sri LR 134 (DB)

2. Edward vs. de Silva - 46 NLR 342 at 343

3. Attorney General vs. Sillem 11 English Reports 1208

Viraj Premasinghe for petitioners.

D. W. Abeykoon, PC, with Upali Ponnamperuma for respondents.

Cur.adv. vult

August 15, 2002

GAMINI AMARATUNGA, J.

The petitioners in this revision application were the 2nd and 5th respondents in M. C. Gangodawila case No. 16523, a proceeding initiated under section 66(1 )(a) of the Primary Courts Procedure Act, No. 44 of 1979 in respect of a dispute affecting land. The respondents to this revision application were the other rival contending party respondents to the said land dispute, which related to a roadway.

It was the contention of the present respondents that the 1 st petitioner who was the 2nd party respondent to the Primary Court proceedings demolished a part of the rear boundary wall of her premises and constructed a gate to enable her tenant, the 2nd petitioner (who was the 5th respondent to the Primary Court proceedings) to gain access to a roadway which exclusively belonged to the respondents. It was contended by the respondents that this newly created access interfered with their peaceful use of the roadway exclusively belonging to them. The learned Magistrate, having considered the material placed before him by the parties held that the 1 st petitioner (the 2nd party respondent in the proceedings before the Primary Court) or her agents have no right to use the said roadway. He has further directed that the opening she has made by demolishing a part of her boundary wall should be closed by re-building the boundary wall as it existed before.

The present petitioners then filed a revision application in the High Court of Colombo against the order of the learned Magistrate. After hearing the revision application the learned High Court Judge by his order dated 4.06.2001 has held that the present respondents have a right to use the roadway which was the subject matter of the dispute and that the present petitioners should not obstruct or interfere with the exercise of their right. He has also affirmed the order of the learned Magistrate directing the present petitioner to re-erect the boundary wall in the same way as it existed before. Accordingly, the learned High Court Judge has dismissed the revision application with costs.

The petitioners in their application to this Court (paragraph 11) have stated that against the order of the High Court Judge they have preferred an appeal to this Court. In proof thereof they have filed document P4, a certified copy of the journal entry dated 21.06.2001 contained in the High Court record No. HCRA 178/2000. It is to be mentioned here that P4 is not a copy of the petition of appeal filed by the petitioners against the order of the High Court Judge.

The petitioners' petition to this Court describes the events that took place after the High Court dismissed the revision application. The respondents to the present application, who were the successful party in the Magistrate's Court and in the High Court have applied to the Magistrate's Court to execute the order of that Court dated 2000.10.18 as approved by the High Court by its order dated 4.6.2001. When the present petitioners were noticed to appear in the Magistrate's Court in connection with execution proceedings, they have informed Court that they have filed an appeal to this Court against the order of the High Court and accordingly have moved to have execution stayed till the appeal is disposed of by this Court. The learned Magistrate has thereafter directed the petitioners to support their application to stay execution until the appeal is decided. The journal entry in the Magistrate's Court record relating to 18.1.2002, which has been produced marked P3D by the petitioners states that a letter for appeal has been produced.

This entry does not indicate what was the letter produced before the Magistrate. On that date the learned Magistrate has made the following order. "The 2nd party has not taken any step in the Court of Appeal against the order sought to be executed. Execute the order of the High Court pending the receipt of an order from the Court of Appeal."

The petitioners now seek an order staying further proceedings in MC Gangodawila case No. 16523 until the final determination of their appeal to this Court. They have already obtained a stay order staying the operation of the learned Magistrate's order dated 18.1.2002 until the final determination of this application.

The order of the High Court has been made in the exercise of the revisionary jurisdiction vested in it by Article 154 P(3)(b) of the Constitution. In terms of Article 154P(6) a party dissatisfied by a final order or a judgment of the High Court in the exercise of its revisionary jurisdiction under Article 154 P(3)(b) has, subject to the provisions of the Constitution and any law, a right of appeal to the Court of Appeal against such order. See Abeywardana vs. Ajith de Silva[1]. The petition of appeal, filed by the petitioners in the High Court on 20.6.2001, now forms a part of the record of this Court in CA{PHC)163/2001, the Court of Appeal number assigned to their appeal.

When a party, in the exercise of a right of appeal conferred by law prefers an appeal against any order or a judgment to a higher court, the resulting position with regard to the execution of the order appealed against has been explained by Soertsz ACJ, in Edward vs. De Silva[2] at 343 in the following words. "The ordinary rule is that once an appeal is taken from the judgment or decree of an inferior Court, the jurisdiction of that Court in respect of that case is suspended except, of course, in regard to matters to be done and directions to be given for the perfecting of the appeal and its transmission to the Court of Appeal. As Lord Westbury, Lord Chancellor (1864) observed in Attorney General vs. Sillem[3] the effect of a right of appeal is the limitation of the jurisdiction of one Court and the extension of the jurisdiction of another'. It follows as a corollary that on that right being exercised the case should be maintained in status quo till the appellate court has dealt with it and given its decision."

There may be statutory exceptions to this general rule, such as section 763 of the Civil Procedure Code, which permits execution pending appeal. However, even in such situations there are safeguards provided to protect the interests of the appellant. In the absence of any exception, the general rule, as explained by Soertsz ACJ, applies. This general rule is daily given effect to in the Magistrate's Court and High Courts when appeals are preferred against orders and judgments of such courts given in the exercise of their original jurisdiction. However, a substantial number of revision applications filed in this Court in the recent past indicate that the question of staying execution pending appeal has very often come up especially in relation to orders made in proceedings, initiated in terms of section 66(1) of the Primary Courts Procedure Act, No. 44 of 1979. In terms of the provisions of that Act, there is no right of appeal against an order made in proceedings commenced under section 66(1). However, more often than not, the party against whom an order is made in such proceedings files a revision application in the High Court invoking its revisionary jurisdiction under Article 154 P (3)(b) of the Constitution.

As stated above, a party dissatisfied with the order made by the High Court in the 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 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 application which have come up before this Court indicate that in such situations, some 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 executable. With respect, this is an erroneous view. It appears that the learned Magistrate in this case has fallen into the same error when 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 a necessity for issuing a direction to stay execution. The filing of an appeal ipso facto operates 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 to 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.

In this case the petitioners have filed an appeal against the order of the High Court and now the appeal is before this Court. In view of what has been stated in this judgment there is no necessity to issue an order staying all proceedings in MC Gangodawila. That court has no jurisdiction to execute the order of the High Court until the petitioners' appeal is heard and disposed of by this Court. However, since the petitioners have prayed for it, I formally set aside the order of the learned Magistrate dated 18.1.2002 and issue an order staying all proceedings in M.C. Gangodawila case No. 16523 until the final determination of appeal No. CA(PHC) 163/2001. In the circumstances of this case. I make no order for costs.

BALAPATABENDI, J. -I agree,

Though, there is no necessity to issue an order staying proceedings, order of Magistrate formally set aside; stay order issued.

NANDAWATHIE V MAHINDASENA [CA]

2009 – SLR- Volume 2- Page 218

(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.

COURT OF APPEAL

RANJIT SILVA. J SALAM, J.

CA( PHC) 242/2006

HC AVISSAWELLA (REV) 67/2004

MC AVISSAWELLA 66148 (66)

MAY 4TH, 2009

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.

(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.

Per Ranjith Silva. J.

Per Ranjith Silva, J.

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.

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.

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.

In the said case His LordshipJustice GaminiAmaratunga, citing Edward v. De Silva(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.

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.

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

Section 74 (2t of the Primary Court Procedure Act

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

Section 757(2)

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.

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

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 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,

(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.

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).

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;

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.

Criminal cases - Magistrate's Court

Section 323 (1) of the Criminal Procedure Code

Section 323 (4) of the Criminal Procedure Code

Section 19 of the Bail Act is as follows;

Bail Act Section 19(6)

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

Section 333 (2' Criminal Procedure Code

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

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.

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.

SHAUL HAMEED Vs RANASINGHE [SC]

[Persistent discrimination and partiality by Police to one party in land dispute- It is the duty of the police to protect the to prevent crimes and public nuisances and preserve the peace. In the discharge of this duty also it may become necessary for the Police to intervene in property disputes and afford protection.

SUPREME COURT

MARK FERNANDO, J., KULATUNGA, J. AND DHEERARATNE, J.

S.C. APPLICATION No. 78/87.

APRIL 25, 1989.

Fundamental Rights - Constitution, Articles 12(1) and 136(4) -Persistent discrimination and partiality by Police to one party in land dispute - Penal, Code sections 90, 92, 92(3) - Section 56 of the Police Ordinance - Male fides - Degree of proof.

There was a dispute between the 5th Respondent's family and the Petitioners for possession of a plot of land set apart for construction of wells by one Gracian Wijesuriya. The Police, it was alleged, persistently supported the 5th Respondent who was the Personal Assistant to the Secretary to the President. The Police assisted the 5th Respondent to erect a fence on the disputed land, charged the Petitioners in Court in two cases but they were tardy in taking action on the Petitioners' complaints although they were victims of assault, robbery and damage to their house.

Held

(1) The limit of the authority of the Police to intervene in property disputes has to be determined having regard to the rights involved and the powers of the Police under the law. The right to defend property is available only in cases where there is no time to have recourse to the protection of the public authorities (section 90, 92, 92(3) of the Penal Code). Section 56 of the Police Ordinance makes it the duty of the Police, interalia, to prevent crimes and public nuisances and preserve the peace. In the discharge of this duty also it may become necessary for the Police to intervene in property disputes and afford protection. However, protection of property or its possession does not extend to assistance to recover property or possession where the dispute is essentially civil in character except very soon after deprivation by an aggressor having no bona fide claim to the property. Here the evidence favours the claim that the Petitioners were in possession and that the 5th Respondent was probably never in possession. In the circumstances, the 5th Respondent had no right of private defence of property and the Police were under no duty to assist her to gain possession of the property in dispute. The breach of peace in this case was caused mainly by the 5th Respondent and her supporters who had the assistance of the Police on every occasion. Such assistance in fact contributed to the breach of peace.

(2) It is significant that the Police were always prompt in taking action against the Petitioners but they were tardy in taking action on the complaints of the Petitioners and the persistent indifference to the rights of the Petitioners could not be attributable to mere procedure. Here the impugned acts were deliberate repeated and unequal and not isolated instances of mistake or errors of judgment. Equal protection has been denied to the Petitioner.

(3) An alleged violation of human rights has to be established by cogent evidence having a high degree of probability which is proportionate to the subject matter. However the degree of proof is not so high as is required in a criminal case.

(4) It was the conduct of Police which aggravated the dispute and when criminal acts were alleged they chose to apply pressure only against the Petitioners despite the fact that they were victims of assault, damage to their house and robbery. The Police have used their power unreasonably or for an improper purpose even though they may not be guilty of intentional dishonesty. Such conduct is mala fide even though no moral obliquity is involved.

(5) Even though the 5th Respondent benefited by the acts of the police she is not liable for the infringement of fundamental rights. The Court however has the power to make an appropriate order even against a Respondent who has no executive status when such Respondent is proved to be quilty of impropriety or connivance with the executive in the wrongful acts violative of fundamental rights or even otherwise, where in the interests of justice, it becomes necessary to deprive a Respondent of the advantages to be derived from executive acts violative of fundamental rights e.g. an order for payment of damages or for restoration of property to the Petitioner. The power of the Court to grant relief is very wide (Article 126(4)).

(6) No infringement has been proved against the 1st and 6th respondents but 2nd, 3rd and 4th Respondents and the State is liable.

Cases referred to

(1) Katunayakege Demesius Perera v. Premadasa 1 FRD 70

(2) Gunatilake v. Attorney -General 1FRD 86

(3) Velmurugu v. The Attorney-General 1 FRD 180

(4) Goonewardena v. Perera 2 FRD 426

(5) Kapugeekiyana v. Hettiarachchi (1984) 2 Sri L.R. 153

APPLICATION for infringement of fundamental rights under Article 12 (1) of the Constitution.

R. K. W. Gunasekera for petitioner J. W. Subasinghe, P. C. with D. J. C. Nilanduwa for 1st, 2nd, 4th and 6th Respondents.

D. S. Wijesinghe with Jayantha Suriapperuma for 5th respondent A. R C. Perera S. S. C. for 7the Respondent.

Cur. adv. vult.

June 20, 1989.

KULATUNGA, J.

In this case the Petitioners claim reliefs in respect of the alleged violation of their fundamental rights guaranteed by Article 12 (1) of the Constitution arising from purported official acts performed by Police Officers in connection with a land dispute between the Petitioners and the 5th Respondent.

At all time material to these proceedings the Petitioners were resident at No. 10; Bahirawakanda Path, Kandy, situated on a land which the 2nd Petitioner's 1st husband had purchased in 1970 by deed No. 9937 (XI). They were the neighbours of Mrs. Johana Hamine Athukorale who was resident at No. 14, Bahirawakanda Path, Kandy, situated on Lot No. t in Plan No. 4035(X3), a fair copy of which has been produced by the 5th Respondent marked 5133. Mrs. Athukorale had purchased the said Lot in 1956. She sold it to her daughter the 5th Respondent in 1984 by deed No. 28 (5131), but continued to reside there with her daughter Mrs. Chandra Wickremeratne whilst the 5th Respondent lived in Colombo with her husband.

The 5th Respondent was the Personal Assistant to the Secretary to the President and her husband Mr. Morris Dahanayake was employed as Co-ordinating Officer, Insurance Corporation, Colombo.

Adjoining Lot No. 1 owned by the 5th Respondent is a triangular block of land 4.04 perches in extent comprising Lots 1 A,18 and 1 C in Plan X3. This block of land was originally owned by one Gracian Wijesuriya who had set it apart for construction of wells when he blocked out the land for sale in 1956. He had, however, left it unsold and this led to a dispute between the 5th Respondent's family and the Petitioners for its possession. The earliest complaint over it was made to the Police on 25.8.86 by Mrs. Athukorale who states that it was given to her by Gracian Wijesuriya (5131). However, she had no title to it. According to the 5th Respondent, Mrs. Athukorale was in possession of it from about 1984.

The 2nd Petitioner claims that she and her husband possessed the allotment in dispute for over 15 years and planted fruit trees thereon which were 10 to 12 years old. The fact that it had been planted is borne out by the photographs produced in these proceedings by the Petitioners and the 5th Respondent - (P3, p4, p5-p13 and 5R4, 4R4A, 5R48).

Whilst the dispute for the possession of the concerned allotment of land was on, Wijesuriya gifted it to the 5th Respondent by deed No. 12711 dated 04.03.87 (5R2). This deed contains a condition that "the donor does not warrant or defend title to the premises and further that the donor does not undertake to give vacant possession of the said premises to the donee". The inference which one makes on this condition is that the donor was able to transfer only a paper title and that as on the date of the gift he did not have possession of the land. This would tend to support the claim of the Petitioners to the land, based on prescriptive possession.

Neither the deed 5R2 nor the plan 5R3 retied upon by the 5th Respondent show any fence as a boundary to the land in dispute. It is bounded on the West by Lot 1 owned by the 5th Respondent, on the North and East by a 3 feet reservation (in which direction the Petitioners' land is situated) and on the South by the roadway. However, both parties claim there was a fence.

According to the 5th Respondent, the fence was along the 3 feet reservation in which event the land in dispute would be an annex to the 5th Respondent's land depicted as Lot 1 in Plan 5R3. According to the Petitioners, the fence constituted the boundary between the said Lot 1 and the land in dispute in which event it would be an annex to their land. In this context, the dispute blossomed into a battle for fixing the fence which each party attempted to effect by force until 6.6.87 on which date the 5th Respondent's party erected it with concrete posts. However, it is alleged that the Petitioners' party uprooted it on 26.6.87 in support of which allegation the 5th Respondent has produced photographs 5R4, 5R4A and 5R413.

The Petitioners complain that the police were partial to the 5th respondent and exceeded their authority beyond limit acting mala fide and in disregard of the rights of the Petitioners. It is alleged that the Police stood by and even assisted whilst the 5th Respondent's party constructed the fence as they wished and took no meaningful action against offences committed by them but whenever complaints were made by the 5th Respondent's party against the Petitioners the Police promptly arrested the Petitioners and produced them before Court. The Petitioners allege that the Police have thereby violated their fundamental rights under Article 12 (1) of the Constitution by denying to them equal protection of the law.

The Petitioners rest their claim for relief on certain incidents which occurred on 6.6.87 and thereafter. They allege that these incidents were a sequal to another incident which occurred on 28.3.87 which was followed by certain other incidents which culminated in the incidents which occurred on 6.6.87 and that the Respondent Police Officers were partial to the 5th Respondent during all such incidents.

It is alleged that on 28.3.87 the 5th Respondent together with several Police Officers including the 3rd and 4th Respondents and a Surveyor visited the land and started removing the fence stating that it would be relocated after the survey of the land purchased by the 5th Respondent. Although the 1st Petitioner protested the 3rd Respondent threatened to take him into custody and allowed the survey to proceed. The Petitioner then contacted Mr. Wickremaratne, a lawyer who came to the spot and inquired from the Police and the Surveyor what they were doing on the land. The 3rd Respondent and the Surveyor said that they had orders from Mr. Menikdiwela, the Secretary to the President to survey the land and to relocate the fence. However, Mr. Wickremaratne pointed out that they had no authority to do so whereupon they left leaving a partially put up fence. The petitioners re-erected the original fence and removed the part of the fence put up by the 5th Respondent.

Admittedly the alleged survey was carried out with a view to erecting a fence, police officers were present at the time, and this work was interrupted by the intervention of Mr. Wickremaratne, Attorney-at-Law. The Surveyor and the 3rd Respondent have denied informing Mr. Wickremaratne that this work was undertaken on the orders of Mr. Menikdiwela who himself has made an affidavit denying that he gave any such order. The learned Counsel for the Petitioners agreed that this denial has to be accepted. Mr. Wickremaratne has declined to furnish an affidavit in support of the allegation that Mr. Menikdiwela's name had been used on this occasion. As such, the allegation that Mr.' Menikdiwela's name was used is also not established. Nevertheless the allegation of discrimination against the Police has to be considered on the basis of the available evidence.

What was the role of the Police on 28.3.87? According to the statement of the 1st Petitioner made to the Police at 10.05 a.m. on that day (2R2) the 5th Respondent's husband Morris Dahanayake had broken the fence about 8.00 a.m. and they started making a new fence. Police Officers were also present at the spot. According to Morris Dahanayake's statement (2R3) made at 11.45 a.m., he had visited his wife's house in Kandy at about 7.30 a.m. that day when the 1st Petitioner's brother-in-law broke the fence. When he questioned him, be said that the land belongs to them and this was reported to the Police. Then, the lawyer Mr. Wickremaratne was brought. A number of Police Officers visited the spot and left after inquiry.

The 2nd Respondent Beddewela who was the Chief Inspector of Kandy Police admits that the 3rd Respondent St Aththudawa visited the scene but not the 4th respondent PC Tikiri Banda. The 3rd Respondent himself merely denies the allegation that he directed the 5th Respondent and the Surveyorto proceed. He admits that he visited the scene on many occasions but does not clarify whether he went there on 28.3.87. The 4th Respondent denies the allegation in respect of 28.3.87. He too admits that he visited the scene on many occasions but does not clarify whether he went there on 28.3.87. On the other hand, the 6th respondent (SI Amunugama) admits having gone there on his traffic rounds on 28.3.87 having seen the 4th Respondent who said that he was there to investigate a complaint.

On the basis of the available evidence, l am satisfied that the survey was conducted on 28.3.87 and the work on the fence had been preplanned and Morris Dahanayake visited Kandy that morning to supervise that work. I am also satisfied that at least three police officers were present at the scene. Even if the 6th Respondent had gone there having seen the 4th Respondent, the latter along with the 3rd Respondent were at the spot presumably on the instructions of the 2nd Respondent. However, they do not clarify with precision what their mission was. They owe a duty to this Court to be more specific. Yet they have opted to make vague or evasive statements. After referring to the complaints 2R2 and 2R3, the 2nd Respondent states that both parties were warned to keep the peace. However, this cannot be a reference to what occurred at the scene. In the circumstances, I accept the version of the Petitioners that the police officers were there to ensure that the survey and the construction of the fence were not impeded but were constrained to leave due to the intervention of Mr. Wickremaratne, Attorney-at-Law.

Petitioners allege that after 28.3.87, Kandy Police made almost daily visits and threatened them to permit the 5th Respondent to possess the land in dispute. This allegation is supported by the complaint made by Mrs. Chandra Wickremaratne, a sister of the 5th Respondent on 6.4.87 (2R4), in which she states inter alia that the Police warned the 1st Petitioner several times not to touch the fence. She complained that despite such warnings the 1st Petitioner had broken the fence again. Consequently, the Police filed MC Kandy case No. 54537 (2R5) on 20.04.87 charging the 1st Petitioner under sections 433 and 410 of the Penal Code.

On 23.5.87, the 5th Respondent made a complaint to the Police to the effect that the 1st Petitioner was trying fraudulently to claim title to the land in dispute which had been gifted to her by the owner (2R8). It is significant that the 5th Respondent states in that statement that the 1st Petitioner referred her to his Attorney-at-Law who informed her that the 1st Petitioner has a road through this land and adds "it is not true. This Abdeen has a motorable road separately". In view of such rival claims it is difficult to characterise the 1st Petitioner's claim as being fraudulent. However, the 2nd Respondent states that on a perusal of the complaint, he gave orders for an investigation and for charges to be framed against the 1st and 2nd Petitioners under sections 433, 386 and 332 of the Penal Code.

According to 2R12 copy of report to the Magistrate in M.C. Kandy No. B/21120/87 the Police had inquired into a complaint of Mrs. Chandra Wickremaratne, sister of the 5th Respondent to the effect that on 29.05.87 the Petitioners and one Kumarasinghe had with others entered the land in dispute and broken the fence. On this complaint, the Police produced the two Petitioners and Kumarasinghe before the Magistrate on charges under sections 140/141, 410 and 433/146 of the Penal Code. It is significant that by this report the Police also represented to the Magistrate that Gracian Wijesuriya had remained in possession of the land in dispute since the sale of the other lots in 1956 until March 87 when it was gifted to the 5th Respondent by deed No. 12711 (5R2) and the complainant was entitled to the possession of this land.

In so reporting to Court the Police do not appear to have taken cognizance of the terms of the deed according to which Wijesuriya had presumably lost possession of the land as on the date of the gift. In the result, they misreported the facts to the Magistrate which tends to support the allegation that the Police were partial to the 5th Respondent.

In his affidavit, the 2nd Respondent himself asserts that as on the date of the deed (5R2) the land in dispute had been in the possession of Johana Hamine the mother of the 5th Respondent. He states that this and other facts are based on his knowledge gained in the course of investigations, and conferences with Respondent Police Officers and a perusal of relevant documents. It is thus clear that the 2nd Respondent and some other police officers were acting together and in concert in handling the dispute and all of them favoured the claim of the 5th Respondent. I now come to the events of 6.6.87.

The Petitioners allege that on this day the 2nd Respondent came fairly early in the morning and ordered the 1st Petitioner to permit Mr. and Mrs. Dahanayake to put up a fence enclosing the land in dispute. Thereafter, the 2nd, 3rd and 4th Respondents and several other police officers along with the 5th Respondent and her husband and about 20 thugs entered the land, pulled down the existing fence and erected a fence with concrete posts. The 3rd Respondent said that they had orders from the 1st Respondent. The 2nd, 3rd and 4th Respondents remained till the new fence had been erected and left warning the Petitioners not to attempt to regain possession of the land.

The Petitioners have produced photographs P2, P3 and P4 - P14 as evidence of the alleged incident. The photographer Kumarasiri Pereira in his affidavit states that he took them on 06.06.87 at about 10.30 a.m.. The Petitioners identify the 3rd, 4th and 6th Respondents in some of the photographs and members of the gang which helped in erecting the fence in photograph P14. Photographs P3, P4, P5 and P13 show the work in progress and police officers standing by in various positions. Petitioners identify the man in shorts in P4 as Morris Dahanayake. The photographs also show a van and a car.

The Petitioners allege that on the same day at about 4.30 p.m. the 5th Respondent and her husband and their thugs started smashing the Petitioners' house and assaulted the Petitioners and their daughter. The 1st Petitioner and the daughter were treated at the hospital for the injuries sustained during this incident. Photographs P6 - P12 have been produced as proof of damage to the house and medical certificates P14 and P15 in proof of injuries sustained by the 1st Petitioner and his daughter.

The 1st Petitioner has with his affidavit dated 25.11.87 annexed affidavits P18 -P22 from persons claiming to be eye witnesses to the incident which occurred on the evening of 6.6.87. Mathew Joseph (P18) states that he identified Chandra Athukorale and Abey. Issadeen (P20) states that a gang of people attacked the petitioners' house and assaulted them. He identified Morris Dahanayake. They went away in vehicle No. 8 Sri 2621 and a white colour van which belongs to the Insurance Corporation.

The 5th Respondent states that on 6.6.87, they were repairing the fence which had been damaged by the Petitioners when Kumarasiri Pereira a brother of the 2nd Petitioner accompanied by the others threatened them with bodily harm. The timely arrival of the Police prevented a serious breach of the peace. The parties were instructed to maintain peace and the damaged fence was re-erected. As regards the incident on the evening of that day the 5th Respondent states that just before they left Kandy the Petitioners and others started shouting and created a commotion and she heard windows being smashed in the house of the Petitioner.

The 1st Petitioner appeared at the Kandy Police Station with bleeding injuries on his forehead on the evening of 6.6.87. In his statement which was recorded at 5.15 p.m. he complained of an attack on his house by about 20 persons. One Abey of Kandy caused damage to the house and also assaulted him with a flowerpot, and snatched the 2nd Petitioner's gold chain. He identified only Abey among the crowd (2R14).

The 1st Respondent (Superintendent of Police, Kandy) denies having given an order for the construction of the fence on 6.6.87. He admits having visited the scene along with the 2nd Respondent in connection with the 1st Petitioner's complaint as regards the incident which occurred at his house on the evening of that day.

The 2nd Respondent denies the allegations in respect of 06.06.87. However, he admits -

(a) that he visited the scene at 11.30 a.m. and returned to the station at 12.00 p.m. in connection with the dispute;

(b) that the 4th Respondent had visited the scene in the course of his duties to ensure that there was no breach of the peace;

The 3rd Respondent denies having visited the scene on 06.06.87. However, he admits his appearance in photographs P4 and P5 but states that he visited the scene on many occasions in the performance of his duties and that said photographs may have been taken on such occasions at the scene.

The 4th respondent denies the allegations in respect of 6.6.87. He states that on the orders of his superior officers he held investigations into complaints relating to the land dispute between the 1st and 2nd petitioners and the 5th respondent and visited the scene on many occasions and that he appears in photograph P2 taken on one such occasion.

The 6th respondent denies the allegations in respect of 06.06.87. He neither admits nor denies having visited the scene on that day. He admits that he appears in photograph P3 and states that he had been to the scene on 28.3.87 whilst on traffic rounds and that it had been taken on such occasion.

The petitioners' allegation is that after a series of attempts to deprive them of the possession of the land in dispute, they were dispossessed on 6.6.87, by a show of force and threats with the active assistance of the Police. This allegation is supported by the evidence which I have summarised. The construction of a fence with concrete posts was carried out in the presence of some of the respondents. The 3rd, 4th and 6th respondents appear in the photographs which have captured the incident in graphic detail despite attempts by the respondents to shift the date when they were photographed. Admittedly, the 2nd respondent was at the scene from 11.30 a.m. to 12.15 p.m. The 5th respondent says the timely arrival of the Police saved a breach of the peace and that they reerected the fence after the Police had instructed the petitioners to maintain the peace.

Mr. R.K.W. Goonesekera, Counsel for the petitioners submitted that whilst he concedes to the Police the traditional function of conciliating minor disputes and the authority to maintain peace in appropriate situations, in the instant case the Police have exceeded their authority beyond limit and in a discriminatory manner. I am of the opinion that this submission is warranted by the evidence.

The limit of the authority of the Police to intervene in property disputes had to be determined having regard to the rights involved and the powers of the Police under the law. Section 90 of the Penal Code confers on every person the right, subject to restrictions contained in section 92, to defend the property of himself or any other person against acts constituting offences affecting property. Section 92(3) provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Therefore, the Police do have a duty to afford such protection. Under section 56 of the Police Ordinance it is the duty of the Police inter alia to prevent crimes and public nuisances and to preserve the peace. In the discharge of this duty also it may become necessary for the Police to intervene in property disputes.

However, protection of property or its possession does not extend to assistance to recover property or possession where the dispute is essentially civil in character except very soon after deprivation by an aggressor having no bona tide claim to the property. Here the evidence favours the claim that the petitioners were in possession and that the 5th respondent probably was never in possession. In the circumstances, the 5th respondent had no right of private defence of property and the Police were under no duty to assist her to gain possession of the property in dispute.

It is apparent that the dispute between the parties was essentially a civil dispute resulting from the efforts of the 5th respondent to gain possession of the land in dispute after she had obtained a gift of it on 4.3.87 on deed 5R2 according to which the donor was not in a position to give vacant possession. The Police have no authority to assist in such a case.

The breach of peace in this case was mainly by the 5th respondent and her supporters who had the assistance of the Police on every occasion. I am of the view that such assistance in fact contributed to the breach of peace and was not warranted by section 56 of the Police Ordinance.

The appropriate procedure was to refer the dispute to the Primary Court under section 66 of the Primary Court Procedure Act. The Police failed to make such reference and thereby aggravated the breach of peace. In the result the 2nd petitioner was constrained to institute D. C. Kandy case No. 15490 (2R17) against the 5th respondent, her sister and another on 2.6.87 for a declaration of title to the land by prescription, for the ejectment of the defendants and damages.

If the defence of the Police is that they had been summoned to prevent a breach of the peace they have a duty to clarify to this Court the circumstances of their intervention. This duty cannot be discharged by a mere denial of the allegation or evasive averments. It is strange that whenever the 5th respondent wished to erect the fence the Police were present at the scene in force in circumstances which suggest that they were so present by engagement with the 5th respondent, outside the performance of their normal duties.

It is also significant that the Police were always prompt in taking action against the petitioners. Thus is respect of the incident on 6.4.87 criminal proceedings were instituted on 20.4.87. In respect of the incident on 29.5.87 the petitioners and one Kumarasinghe were arrested and produced in Court with the report under section 115 (1) of the Code of Criminal Procedure: However, in respect of the petitioners' complaint on 6.6.87, investigations were not complete even at the time of the 2nd respondent's affidavit in September 1987.

On 25.6.87, the 5th respondent's mother made a complaint to the Police (2R15) in which she alleged that the disputed fence had been uprooted by the petitioners. The 1st respondent ordered the 2nd respondent to proceed to the scene and investigate the matter. Consequently, the petitioners were arrested and produced before the Magistrate for offences under Sections 140, 144, 433, 434, 410, 367 and 486 of the Penal Code.

I shall now examine the steps taken by the Police on the 1st petitioner's complaint of 6.6.87. He told the Police that he identified one Abey of Kandy among the crowd that came to his house. Abey caused damage to the house, assaulted him with a flower pot and snatched the 2nd petitioner's gold chain. On 15.6.87 the Police made a report to the Magistrate (2R14A) but did not produce any suspect. It was only on 9.1.89 that criminal proceedings were instituted against Gamini Abeyratne and Chandra Athukorala in M. C. Kandy case No. 79202. The proceedings in that case (2R14B) shown that as on 24.4.89 summons had not been served on the accused.

The address of Gamini Abeyratne mentioned in the charge sheet filed by the Police is Kengalle Street, Kengalle. I find that one Gamini Abeyratne of Kengalle Street, Kengalle had witnessed the deed of gift (5R2) on which the 5th respondent claims title to the land in dispute. The 5th respondent in her complaint made on 23.5.87 (2R8) told the Police that on that day she visited the land in dispute with her son Channa Dahanayake accompanied by one Gamini Abeyratne. Probably therefore the accused Gamini Abeyratne and the man referred to in documents 5R2 and 2R8 are one and the same person who was a close associate of the 5th respondent and whose movements were well known. Yet there is no evidence of any effort by the Police to trace him.

The 2nd respondent's explanation for the inordinate delay in instituting criminal proceedings on the 1st petitioner's complaint is that as this complaint disclosed an offence of robbery of a gold chain the matter had to be reported to the Police Headquarters in conformity with departmental orders. Mr. Subasinghe, P. C. told us that the Police were awaiting instructions from Police Headquarters before institution of criminal proceedings. However, the learned Counsel conceded that departmental orders cannot supercede the provisions of law applicable to criminal proceedings.

Having regard to the entire conduct of the Police established in these proceedings, I am unable to treat the delay by the Police in pursuing action on the petitioners' complaint as attributable to mere procedure. On the other hand, it is attributable to their persistant indifference to the rights of the petitioners.

It is true that the Police have onerous duties in maintaining law and order and often have to act under constraints. I would not construe every excess by them as constituting a breach of fundamental rights under Article 12 (1). It is only where the discrimination is deliberate that it would infringe on Article 12 (1) - Katunayakege Demesius Perera v. Premadasa, (1). If the Police made a mistake (specially a single mistake) in attempting to assist in recovery of possession, it would not per se be a violation of Article 12 (1). Here the impugned acts were deliberate, repeated and unequal because complaints against the 5th respondent were so tardily and inefficiently dealt with. Therefore, equal protection has been denied to the petitioners.

At the same time, a wrong decision die to an error of judgment on a question of fact cannot constitute a breach of the fundamental right of equality in the eye of law - Gunatilleke v. Attorney-General (2). An alleged violation of human rights has to be established by cogent evidence having a high degree of probability which is proportionate to the subject matter. However, the degree of proof is not so high as is required in a criminal case- Velumurugu v. The Attorney-General (3). This standard of proof has been applied in Goonawardena v. Perera (4) and Kapugeekiyana v. Hettiarachchi, (5).

Mr. Subasinghe, P. C., learned Counsel for the 1st, 2nd, 4th and 6th respondents and Mr. D. S. Wijesinghe, learned Counsel for the 5th respondent, submitted that the acts of the Police were bona fide and at the most committed by an error of judgment. I am unable to agree with this submission except as regards the 1st and the 6th respondents. The evidence establishes a series of incidents which gave ample opportunity to the Police Officers concerned to appreciate the correct position and to take appropriate action in respect of what was essentially a civil dispute. It was their conduct which aggravated it and when criminal acts were alleged they chose to apply pressure only against the petitioners. They have used their power unreasonably or for an improper purpose even though they may not be guilty of intentional dishonesty. Such conduct is mala fide even though no moral obliquity is involved - Wade on Administrative Law Fifth Edn. 391 ; Principles of Administrative Law, Jain 4th Edn. 562.

In all the circumstances, I am satisfied that the charge against the 2nd, 3rd and 4th respondents has been established as required by law. The 2nd respondent has filed the main defence in these proceedings and the other respondent-Police Officers have stated that they accept and abide by the averments in that defence. 1n the light of their conduct and the common defence taken by them I am of the view that all of them are jointly and severally liable for violating the rights of the petitioners.

I determine that the 2nd, 3rd and 4th respondents have in the purported exercise of statutory power infringed the rights of the petitioners under Article 12 (1) of the Constitution by executive or administrative action, and that they along with the State are liable for such infringements. However, Mr. Subasinghe, P. C. informed us at the hearing that the 3rd respondent has since died and as such I shall make no order for relief against him.

Taking into account the harassment and the pain of mind suffered by the petitioners at the hands of the Police whenever they asserted their claim to the land in dispute and having regard to the duty of the State to lay down guidelines against such excesses as established in these proceedings, I hold that the petitioners are entitled to Rs. 5,000 as compensation and Rs. 1050 as costs from the 2nd and 4th respondents and the State jointly and severally.

The available evidence does not establish that the 1st respondent has violated the fundamental rights of the petitioners. Thus on 6.6.87 he visited the scene along with the 2nd respondent in connection with the 1st petitioner's complaint. On 25.6.87 he ordered the 2nd respondent to proceed to the scene and investigate the complaint of the 5th respondent. These were acts performed by the 1st respondent as the superior officer of 2nd, 3rd and 4th respondents but none of these acts were calculated to interfere with the rights of the petitioners. The petitioners allege that on 6.6.87 the 3rd respondent said that they had orders from the 1st respondent. The 1st respondent has denied having given the order referred to and even if an order had been given I am not satisfied that the 1st respondent intended thereby to direct his subordinates to commit any unlawful acts. I therefore dismiss the application against the 1st respondent without costs.

Even though the 5th respondent benefited from the acts of the Police I hold that she is not liable for the infringement of fundamental rights of the petitioners. This Court has the power to make an appropriate order even against a respondent who has no executive status where such respondent is proved to be guilty of impropriety or connivance with the executive in the wrongful acts violative of fundamental rights or even otherwise, where in the interest of justice it becomes necessary to deprive a respondent of the advantages to be derived from executive acts violative of fundamental rights e. g. an order for the payment of damages or for the restoration of property to the petitioner. Article 126 (4) provides that "the Supreme Court shall have the power to grant such relief or make such directions as it may deem just and equitable in the circumstances in respect of any petition or reference referred to in paragraphs (2) and (3) or this Article.......". The power of this Court to grant relief is thus very wide. Such power has been expressly conferred to make the remedy under Article 126 (2) meaningful.

However, in the absence of proof of impropriety or connivance by the 5th respondent in the wrongful acts of the 2nd, 3rd and 4th respondents and particularly in view of the fact that the dispute between the parties is now before the District Court, I do not consider it necessary to make any order against her. Accordingly, the application against her is dismissed without costs.

The 6th respondent has only visited the scene on his traffic rounds having seen the 4th respondent there and the petitioners have not claimed any relief against him. I dismiss the applications as against him without costs.

MARK FERNANDO, J. - I agree

DHEERARATNE, J. - I agree.

Application upheld against 2nd, 3rd and 4th respondents.

Application against 1st, 5th and 6th respondents dismissed.

NAVARATNASINGHAM V. ARUMUGAM [CA]

1980 – SLR- Volume 2 , Page 1

Jurisdictional objection to be taken at the earliest opportunity-Waiver Judicature Act, No. 2 of 1978, section 39- Requirement that breach of peace imminent-Has Magistrate jurisdiction to proceed in the absence of such material.

COURT OF APPEAL.

SOZA, J. AND ATUKORALE, J.

C. A. APPLICATION No. 266/80-M. C. JAFFNA 20319.

AUGUST 15,1980.

Supreme Court Rules, 1978, Rule 46-Revision application-Objection taken for non-compliance therewith-Meaning of the term "proceedings" in such Rule-Application rejected.

Jurisdiction-Objection to be taken at the earliest opportunity-Waiver Judicature Act, No. 2 of 1978, section 39.

Administration of Justice Law, No. 44 of 1973, Section 62-Requirement that breach of peace imminent-Has Magistrate jurisdiction to proceed in the absence of such material.

Held

(4) Although the learned Magistrate did not in the first instance have in material be ore hi on which he could have been satisfied that a breach of the peace was likely there was evidence led thereafter which was sufficient not only to found the belief that the breach of the peace was likely on the date the application was made but also to rectify any defect in the earlier proceedings.

(5) In any event, an objection to jurisdiction such as that in the present case must by virtue of section 19 of the Judicature Act, No. 2 of 1978, be taken as early as possible. and the failure to take such objection when the matter was being inquired into must be treated as a waiver on the part of the petitioner. Where a matter is within the plenary jurisdiction of the Court, if no objection is taken, the Court will then have jurisdic¬tion to proceed and make a valid order. In the present case, the objection to jurisdiction was raised for the first time when the matter was being argued in the Court of Appeal and the objection had not even been taken in the petition filed before that Court.

Cases referred to

(1) Orathinahamy v. Romanis, (1900) 1 Browne's Reports 188.

(2) Gunawardene v. Kelaart, (1947) 48 N.L.R. 522.

(3) Bisnam v. Kamta Pd., A.I.R. 1945 (32) Oudh 52.

(4) Jose Antonie Baretto v. Francisco Antonio Rodrigues, (1910) 35 Bombay 24.

(5) Alagappa Chetty v. Arumugam Chetty, (1920) 2 C. L. Rec. 202.

(6) Gurdeo Singh v. Chandrikah Singh; Chandrikah Singh v. Rashbehary Singh, I.L.R., (1907) 36 Cal. 193.

(7) Pisani v. Attorney-General for Gibraltar, (1874)-L.R. 5 P.C. 516; 30 L.T. 729.

(8) Thevagnanasekeram v. Kuppammal, (1934) 36 N.L.R. 337.

APPLICATION to revise orders of the Magistrate's Court, Jaffna.

C. Motilal Nehru, for the petitioner.

C. Ranganathan, Q.C., with S. Mahenthiran, for the respondent.

Cur. adv. vult.

September 10, 1980.

SOZA, J.

The reference to Pleadings, proceedings, statements, evidence and judgment, as I see it, is there for the purpose of emphasis and completeness and to prevent argument on the meaning of the term "record". Form this definition it cannot be argued that the terms "Pleadings", "proceedings", "statements", "evidence" and "judgment" are in watertight compartments and should be assigned separate meanings. Indeed the expression "proceedings" can include pleadings, statements, evidence and the judgment. In any event the term "proceedings" as it appears in part 4 has not been defined. The definition given in Rule 43 cannot be invoked to ascertain the exact meaning of the term "proceedings" as used in rule 46. The expression "proceedings" as used in legal phraseology can bear varying meanings depending on the parti¬cular statute or rule where it occurs-see Stroud's Judicial Dictionary (1974) 4th Ed. Vol 4 pages 2124 to 2128 where a wide range of definitions of the term is given. In relation to an appli¬cation for revision the term "Proceedings" as used in Rule 46 means so much of the record as would be necessary to understand the order sought to be revised and to place it in its proper context. The expression can, and often will, include the pleadings, statements, evidence and judgment. In the instant case the peti¬tioner has come into this Court only with a certified copy of the proceedings of 10.2.1930 and the order delivered on 19.2.1980. The orders canvassed before us cannot be reviewed in the absence of the earlier proceedings, evidence and original complaint. These were procured only subsequently. This petition therefore should have been rejected for non-compliance with Rule 46 of the Supreme Court Rules of 1978.

I might further add that not only has the 2nd respondent¬-petitioner failed to supply the Court with the necessary docu¬ments, he has even made averments in his petition which do not accurately reflect the state of the true facts. The proceedings filed show that the order of Court of 19.2.1980 was delivered in open Court in the presence of the parties. Mr. Nagarajah had appeared for the 1st respondent. On that occasion the 2nd res¬pondent-petitioner moved for one month's time to vacate the land without causing any damage to the buildings and to hand over possession. The 2nd respondent-petitioner has however stated In his petition that he was dragged into the Magistrate's Chambers and peremptorily asked, to leave the land in one month. This Court would be very slow indeed to permit contra¬diction of the record of the trial Judge. On this question I like to remind myself of the words of Bonser, C.J. in Orathinahamy v. Romanis (1)

"With the appeal was filed an affidavit which I have not read........................and I understand that the affidavit is to the effect that the record of the evidence taken by the Magistrate does not give a correct account of the statements of the witnesses, and it is sought to impeach the record,nd to prove that certain statements were made Which do not appear on the record.................................it seems to me to be contrary to all principle to admit such an affidavit, and I certainly will not be the first to establish such a novelty in appellate proceedings. The prospect is an appalling one, if on every appeal it is to be open to the appellant to contest the correctness of the record................ If such a procedure is to be introduced it must be introduced it must be introduced by some other Judge than myself".

What I have said in regard to the preliminary objection is sufficient to conclude this matter but as we heard considerable argument on the question of jurisdiction also I would refer to it.

On behalf of the petitioner it was submitted that the learned Magistrate had failed to satisfy himself that a breach of the peace was imminent before he issued process. As the Magistrate failed initially to satisfy himself of the likelihood of a breach of the peace he was not vested with jurisdiction to proceed in the matter. Reliance was had on the Indian case of Bisram v. Kamta Pd (3) where the Court in interpreting a provision of the Indian Criminal Procedure Code similar to our section 62 held that the Magistrate must make an order stating in writing the grounds of his being satisfied that a dispute likely to cause a breach of the peace exists. The Indian statutory provision however is not identical with ours. The local decisions on section 62 of the Administration of Justice Law, No. 44 of 1973, are agreed that all that is necessary is that the Magistrate himself must be satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section. On this point I might straight away say that it is true that in the first instance the learned Magistrate had no material on which he could have been satisfied that a breach of the peace was likely but there¬after evidence was led on the question and this evidence is sufficient not only to found the belief that the breach of the peace was likely on the date the application was made, but also to rectify any defect in the earlier proceedings.

Therefore in the instant case as there was no objection to the jurisdiction of the Magistrate, he was entitled to proceed on with the matter as it was within his plenary jurisdiction.

For the reasons I have given I dismiss this application with costs.

ATUKORALE, J. -I agree.

Application dismissed.

Gaspe M. Kusumalatha Vs P.G.D.J. Samarawickrama. [CA]

CA CASE NO: CA (PHC) 78/2005 CA (PHC) 78A/2005 HC KURUNAGALA CASE NO: HCR 133/2003 MC KULIYAPITIYA CASE NO: 6971/66

Before: K.K. Wickramasinghe, J. Mahinda Samayawardhena, J.

Counsel: Manohara De Silva, P.C., with Imalka

Abeysinghe for the original Respondents- Petitioners-Appellants in CA (PHC) 78/2005.

R. Wimalarathna for the original Petitioners- Respondents-Appellants in CA (PHC) 78A/2005.

Decided on: 21.05.2019

Samayawardhena, J.

The two petitioners (G.M. Kusumalatha and P.G.D.J. Samarawickrama) filed this application in the Magistrate’s Court of Kuliyapitiya under section 66(1)(b) of the Primary Courts’ Procedure Act, No. 44 of 1979, making three parties as respondents (H.M. Sriya Swarnakanthi, H.M. Piyadasa Gunathilake, W.A. Sudath Vijitha Weerakkody) seeking an order under section 68(3) of the Act to restore them in possession on the premise that they were forcibly dispossessed by the respondents and their agents within two months prior to the filing of the application in Court. After filing objections and counter objections together with documents, the Court disposed of the inquiry by way of written submissions. By order dated 31.10.2003, the learned Magistrate granted the relief prayed for by the petitioners, and the order was executed through Fiscal and the petitioners were restored in possession.

The respondents filed a revision application before the High Court against this order, and the High Court by order dated 31.03.2005 set aside the order of the Magistrate’s Court.

The petitioners as well as the respondents have appealed against that order to this Court. The appeal by the petitioners is understandable. But the respondents also appealed, because, after setting aside the Magistrate’s Court order, the learned High Court Judge did not make the consequential order in restoring the respondents in possession.

The learned counsel for both parties agreed to abide by a single Judgment in respect of both appeals and invited the Court to pronounce the Judgment on the written submissions tendered to this Court long time ago.

It is common ground that the learned High Court Judge set aside the order of the learned Magistrate on the sole basis that the learned Magistrate has not, according to the journal entries of the Magistrate’s Court case record, endeavoured to induce the parties to arrive at a settlement before the matter was fixed for the inquiry as required by section 66(6) of the Primary Courts’ Procedure Act. The learned High Court Judge relied only on the Judgment of this Court in Ali v. Abdeen [2001] 1 Sri LR 413 to come to that conclusion.

Sections 66(6) and 66(7) of the Primary Courts’ Procedure Act read as follows:

filed, the court shall before fixing the case for inquiry make every effort to induce the parties and the persons interested (if any) to arrive at a settlement of the dispute and if the parties and persons interested agree to a settlement the settlement shall be recorded and signed by the parties and persons interested and an order made in accordance with the terms as settled.

66(7) Where the parties and persons interested (if any) do not arrive at a settlement, the court shall fix the case for inquiry on a date which shall not be later than two weeks from the date on which the case was called for the filing of affidavits and documents or counter-affidavits and documents, as the case may be.

In terms of section 66(6), after the counter-affidavits are filed, the Court shall, before fixing the case for inquiry, make every effort to induce the parties to arrive at a settlement of the dispute and if the parties agree to a settlement, the settlement shall be recorded and order made accordingly. If there is no settlement, in terms of section 66(7), the Court shall fix the case for inquiry.

In Ali v. Abdeen (supra), Gunawardena J., sitting alone has held that non-compliance with section 66(6) makes the final order of the learned Magistrate invalid as “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.” According to Gunawardena J. the Magistrate’s Court has no jurisdiction to hold the inquiry and then make an order unless the Court makes an effort to induce the parties to arrive at a settlement of the dispute.

Gunawardena J. has further elaborated this at pages 415-416 in the following terms:

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. (emphasis added)

This Judgment of Gunawardena J. is extensively made use of in appeals by the defeated parties in the Magistrates’ Courts as an easy way of getting well-considered orders of the Magistrates’ Courts set aside.

With respect, I am unable to agree with the above conclusion of Gunawardena J. for several reasons.

Firstly, it is not clear from the Judgment on what basis Gunawardena J. came to the conclusion that the learned Magistrate in that case, did not endeavor to induce the parties to settle the matter before fixing the case for inquiry. I presume it is from the journal entries of the Magistrate’s Court case record, as the learned High Court Judge did in the instant case. That is, in my view, not a healthy practice.

Section 66(6) does not require the Magistrate to record his failure to settle the matter. That section only requires the Magistrate to record “the settlement”, if the attempt is successful. To put differently, if the matter is settled, the settlement shall be recorded and order be made accordingly; and if the matter is not settled, case can straightaway be fixed for inquiry. Hence, merely because there is nothing in the journal entries in the Magistrate’s Court case record to show that the Magistrate took effort to induce

the parties to arrive at a settlement of the dispute, the Judge in appeal, in my view, cannot, with a stroke of the pen, set aside a well-considered order of a Magistrate. Failure to record of the failure to settle does not amount to failure to comply with the law.

Secondly, notwithstanding the act of inducement on the part of the Magistrate for a settlement under section 66(6), prima facie suggests to be mandatory as the word used in the section is “shall”, that step shall be construed as directory, especially in view of the fact that, a party shall not be made to suffer for the lapses of the Judge, over which he (the party) has no control.

It is interesting note that, except 66(8)(a), in all the sub-sections from (1)-8(b) in section 66, which includes 66(6), although the word “shall” has been used, the Superior Courts have not considered those steps/acts as mandatory, but treated them only as directory.

In Ramalingam v. Thangarajah [1982] 2 Sri LR 693 at 701-703, Sharvanada J. (later C.J.) explained:

The question was raised as to what was the consequence of the failure of the Judge to observe the time-limits prescribed for the various acts and steps leading to the determination and order under Section 68. It is significant that the prescription of time is preceded by the word ‘shall’. The obligatory nature of the requirement that the particular step/act should be taken or done within a fixed time is indicated by the word ‘shall’. This expression is generally used to impose a duty to do what is prescribed, not a discretion to comply with it according to whether it is reasonable or practicable to do. Prima facie the word ‘shall’ suggests that it is mandatory, but that word has often been

rightly construed as directory. Everything turns on the context in which it is used; and the purpose and effect of the section in which it appears. It is to be noted that the statute does not declare what shall be the consequence of non-compliance by Court with regard to this requirement as to time limit prescribed by the law. Are these procedural rules to be regarded as mandatory, in which case disobedience will render void or voidable what has been done or as directory, in which case disobedience will be treated as an irregularity not affecting what has been done? It is to be observed that this obligation with regard to time limit is imposed on court, over whose acts or omissions the parties do not have any control. Maxwell on ‘Interpretation of Statutes’ 11th Edition, at page 369 appositely states-

“Where the prescription of a statute related to performance of a public duty and where invalidation of acts done, in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. Neglect of them may be penal, indeed, but it does not affect the validity of the acts done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, then the Act is directory only and might be complied with after the prescribed time.”

In this context, one may also invoke the maxim “Actus curiae neminem gravabit” (an act of Court shall prejudice no man). In my opinion this maxim which is founded upon justice and good sense may be appropriately applied to salvage a determination and order made under section 68, where the Judge has failed to observe the time-limits imposed by the legislature for the various procedural steps prescribed by it. The Judge is certainly to be blamed but a party in whose favour such an order is made should not suffer for the Judge’s default. (emphasis added)

In Officer-in-Charge, Police Station, Kotahena v. Dewasinghe [1983] 2 Sri LR 149, Seneviratne J. at pages 152-153, in reference to the said Judgment in Ramalingam’s case (supra) stated as follows:

under section 68…. It is to be noted that the statute does not declare what shall be the consequences of non-compliance by court with regard to this requirements as to the times prescribed by law”. Sharvananda. J, having considered the provisions referred to above at length finally came to this conclusion – “I am, therefore, of the view that the provisions as to time limit in section 66 or 67 though the words “shall” suggest that they are mandatory should be construed as being directory and the non-compliance by Court of the provisions of section 66 or 67 of the Act does not divest the court of jurisdiction conferred on it by section 66(2) to make determination and order under Section 68”. This dictum cited above from the said judgment clearly shows that the Supreme Court has considered the nature of the provisions of both sections 67(1) and 67(2). As such the judgment in Ramalingam’s case cannot be restricted to a ruling only on the nature and effect of section 67(1) of the Act. In view of the judgment referred to above, I hold that the non-compliance by the learned Magistrate of the provisions of section 67(1) of the Primary Courts Procedure Act has not vitiated the proceedings. (emphasis added)

Thirdly, and more importantly, the ratio of the Judgment in Ali v. Abdeen (supra) is that the Court lacks jurisdiction to make a final determination unless the Court makes an attempt to settle the matter. I regret my inability to agree with it.

to a case (such as the respondents in this case) asserts that the Magistrate invoked the jurisdiction in the wrong way, he should have objected to it at that time before the same Magistrate. The respondents in the instant case did not do so. They kept silent and allowed the Magistrate to fix the case for inquiry without the Magistrate (according to the respondents) making an effort to settle the matter. They cannot keep silent without objecting to the jurisdiction and allow the Court to exercise the jurisdiction in the wrong way and challenge the jurisdiction later when the order is against him. That is prohibited in law. In such a situation, the objection to jurisdiction is deemed to have been waived and the party is deemed to have acquiesced in the wrong invocation of the jurisdiction.

However the situation is different, if the Court had total or patent want of jurisdiction over the subject, in which event, the objection can be taken up at any time including for the first time in appeal, and, if upheld, all the previous proceedings become a nullity as there was coram non judice. By acquiescence or waiver, one cannot convert nullity into validity. The situation under consideration is not patent want of jurisdiction but latent want of jurisdiction.

In Navaratnasingham v. Arumugam [1980] 2 Sri LR 1, Soza J. at pages 5-6, citing both statutory and case law, lucidly explained this principle in the following manner:

It is necessary to remember that an objection to jurisdiction must be taken as early as possible. Section 39 of the Judicature Act, No. 2 of 1978 (and prior to that section 43 of the Administration of Justice Law, No. 44 of 1973) laid down that-

“Whenever any defendant or accused party shall have pleaded in any action, proceeding or matter brought in any Court of First Instance neither party shall afterwards be entitled to object to the jurisdiction of such court, but such court shall be taken and held to have jurisdiction over such action, proceeding or matter”. (cf. also sections 30 and 71 of the old Courts Ordinance).

Further the failure to object to jurisdiction when the matter was being inquired into must be treated as a waiver on the part of the 2nd respondent-petitioner. It is true that jurisdiction cannot be conferred by consent. But where a matter is within the plenary jurisdiction of the Court, if no objection is taken, the Court will then have jurisdiction to proceed on with the matter and make a valid order. This point has been well explained by Chandavakar, J. in the case of Jose Antonio Baretto v. Francisco Antonio Rodrigues (1910) 35 Bombay 24:

“But it is urged that the parties cannot by consent give jurisdiction where none exists. That is so where the law confers no jurisdiction. Here the consent is not given to jurisdiction where none exists”.

In the case of Alagappa Chetty v. Arumugam Chetty (1920) 2 CL Rec 202, Bertram. C.J. on the same point cited with approval a dictum of Mookerjee, J. in the case of Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehary Singh, I.L.R., (1907) 36 Cal. 193:

“ where jurisdiction over the subject matter exists

requiring only to be invoked in the right way, the party who has invited or allowed the Court to exercise it in a wrong

way, cannot afterwards turn round and challenge the legality of the proceedings due to his own invitation or negligence.”

In the case of Pisani v. Attorney-General for Gibraltar (1987)

L.R. 5 P.C. 516, the Privy Council affirmed this same doctrine that unless there is an attempt to give the Court a jurisdiction which it does not possess, the Court can, in the absence of objection, hear a case where it has jurisdiction over the subject. These principles were followed also in the case of Thevagnanasekeram v. Kuppammal (1934) 36 NLR 337 where Macdonell, C.J. held that a party was not entitled to challenge the jurisdiction of the Court to give the decision invited by such party, so long as the Court had jurisdiction over the subject.

Therefore in the instant case as there was no objection to the invocation of the jurisdiction of the Magistrate, he was entitled to proceed on with the matter as it was within his plenary jurisdiction. (emphasis added)

In David Appuhamy v. Yasassi Thero [1987] 1 Sri LR 253 at page 255, Wijetunga J., applied the said dicta of Soza J. to overrule the jurisdictional objection:

The case of Navaratnasingham v. Arumugam (supra) is again relevant to a consideration of this aspect of the matter. That case too dealt with an application under section 62 of the Administration of Justice Law No. 44 of 1973, which corresponds to section 66 of the present Primary Courts’ Procedure Act. There too it was submitted that the Magistrate was not vested with jurisdiction to proceed in the matter as he had failed initially to satisfy himself of the likelihood of a breach of the peace. This court held that such an objection to jurisdiction must be taken as early as possible and the failure to take such objection when the matter was being inquired into must be treated as a waiver on the part of the petitioner. It was further held that where a matter is within the plenary jurisdiction of the court, if no objection is taken, the court will then have jurisdiction to proceed and make a valid order. The dicta of Soza, J. in this regard too, which I would adopt, apply to the instant case. (emphasis added)

Hence if a party has not objected to fixing the case for inquiry and allowed the Magistrate to make an order according to law, without the latter first making an effort to settle the matter as provided for in section 66(6), such party cannot, when the order is against him, take up the belated objection that the Magistrate did not have jurisdiction to make that order as he did not comply with section 66(6).

This conclusion is supported by the Divisional Bench decision of this Court in Jayantha Gunasekera v. Jayatissa Gunasekera [2011] 1 Sri LR 284 at 302.

When the determination of the matter is within the plenary jurisdiction of the Court, objection to jurisdiction shall be taken

at the earliest possible opportunity for otherwise objection is deemed to have been waived.

The decision in Ali v. Abdeen [2001] 1 Sri LR 413 does not, with utmost respect, represent the correct position of law, and therefore need not be followed.

As was held in Ponniah v. Sheriff (1966) 69 NLR 67 “Court was not bound by an earlier decision in which material cases and statutory provisions were not considered.”

In the circumstances, the order of the learned High Court Judge cannot be allowed to stand.

There is no necessity to send the case back to the High Court 14 years after the impugned order of the High Court (and 16 years after the order of the Magistrate’s Court) to hear the revision application on merits. The learned Magistrate has given cogent reasons acceptable to this Court for his conclusion that the petitioners were entitled to the relief under section 68(3) of Primary Courts’ Procedure Act. The petitioners have been restored in possession since the order the Magistrate’ Court in 2003. The parties can go before the District Court to resolve the dispute permanently, if they have not gone before so far, as the order of the Magistrate’s Court is a temporary order made only to prevent breach of the peace.

The order of the learned High Court Judge dated 31.03.2005 is set aside and the order of the learned Magistrate dated 31.10.2003 is restored and the appeal of the original petitioners is allowed.

The consideration of the appeal of the original respondents does not arise and the appeal of the said respondents is therefore pro forma dismissed.

Let the parties bear their own costs.

Judge of the Court of Appeal

K.K. Wickramasinghe, J. I agree.

Judge of the Court of Appeal

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

CA PHC 108/2011

PHC Banality 814/10

Damith Kodithuwakku, Siththragoda, Amugoda

Pinnaduwa Hewa Samson, Bogahawatta,

Amugoda

BEFORE.: A.W.A SALAM & DEEPALI WIJESUNDARE JJ COUNSEL:

Rohan Sahabandu PC for the appellant

D.M.G Dissanayaka for the respondents.

ARGUED: 17.10.2012.

DECIDED ON: 17.01.2013.

A W A SALAM, J

The complainant-respondent-respondents (Respondents) filed information under Section 66 (1)(b) of the Primary Court Procedure Act complaining of a land dispute affecting the breach of peace citing the respondent-petitioner-appellant (appellant) as a party to the dispute. Thereafter, the appellant filed his affidavit annexing four documents and then the respondents tendered counter affidavit appending identical number of documents. The learned Magistrate, thereupon inquired into the dispute and made order that the respondents are entitled to the possession of the property in dispute.

Being aggrieved by the said order of the learned Magistrate the appellant invoked the revisionary jurisdiction of the Provincial High Court of the area to have the said order set aside. The learned High Court Judge at the conclusion of the inquiry into the revision application held inter alia that the petitioner has failed to establish any valid grounds to set aside the said order and dismissed the revision application. This appeal has been preferred against the said order of the learned High Court Judge.

The main argument advanced by the appellant in this appeal is that the affidavit filed by the respondents under section 66 (1) (b) cannot be regarded as an affidavit filed under section 66 (3) of the Primary Court Procedure Act and therefore the interpates order made by the learned Magistrate is bad in law. The learned counsel for the respondents has submitted that the provisions of section 66 (3) applies to a situation where the information is filed under section 66 ( 1) (A) of the Primary Court Procedure Act, and the present case being filed under section 66 (1) (B) by tendering an affidavit at the instance of a private individual the requirement to (3) applies to a situation where the information is filed under section 66 (l ) (A) of the Primary Court Procedure Act, and the present case being filed under section 66 (1) (B) by tendering an affidavit at the instance of a private individual the requirement to file affidavit under section 66 (3) of the Primary Court Procedure Act does not become necessary. For purpose of ready reference, the said Section of the Primary Court Procedure Act is reproduced below...

66(3) On the date on which the parties are produced under subsection (1) or on the date fixed for their appearance under that subsection, the court shall appoint a day which shall not be later than three weeks from the date on which the parties were produced or the date fixed for their appearance directing the parties and any persons interested to file affidavits setting out their claims and annexing thereto any documents (or certified copies thereof on which they rely.

Section 66 (b) (1 ) of the Primary Court Procedure Act which entitles a private individual other than a police officer) to initiate proceedings under Chapter VII of the Act reads as follows...

66 (b) (I) Any party to such dispute may file an information by affidavit in such Primary Court setting out the facts and the relief sought and specifying as respondents the names and addresses of the other parties to the dispute and then such court shall by its usual process or by registered post notice the parties named to appear in court on the day specified in the notice such day being not later than two weeks from the day on which the information was filed.

On a proper reading of the entirety of Section 66, it is quite clear that section GG (3) applies to a situation where the information is filed under section 66(1)(A) of the Act. However, when the jurisdiction of the court is invoked by a private individual upon filing an affidavit in term s of section 66 (1) (B) of the Act the necessity to file an affidavit under section 66 (3) does not arise. In the result the contention made on behalf of the appellant that the respondent should be considered as having made default in fi1ing affidavit and documents under section 66 (3) of the Primary Court Procedure Act, is unsubstantiated and therefore merits no serious consideration.

In the circumstances, the legal objection raised against the determination of the learned Magistrate and the decision of the learned High Court Judge on the revision application is rejected and the appeal dismissed without costs.

A W A Salam, J - I agree, Deepali Wijesundera, J (Judge of the Court of Appeal)

Meenachchi Vs S Wijeshwari [CA] unreported

CA case No: CA(PHC) 39/2003 C A

HC Kandy case No: H.C. 41/2000

Primary Court Nuwaraeliya case No:19876/99

HC Kandy case No: H.C. 41/2000

“Breach of the peace is likely does not mean that breach of the peace would ensue for certainty; rather, it means that a breach of the peace or disorder is a result such as might well happen or Occur.”

Therefore, it is well settled law that in order to issue notice under 66(1)(b) imminent breach of the peace is not an essential ingredient, in absolute sense. Nevertheless, from the affidavit tendered to court by the Petitioner- Appellants it is crystal clear, undoubtedly there was a dispute over the disputed premises, and in fact the breach of the peace is threatened. Therefore, it is abundantly clear that the Learned High Court Judge has arrived at an incorrect finding in setting aside the order of Learned Primary Court Judge dated 18.01.2000.

Before : P.R.WaIgama, J and Mlini Gunaratne J

Argued on Decided on 12. 03.2015

P.R.WaIgama, J.

The Petitioner- Appellant (herein after called and referred to as the Appellant) filed an information by affidavit under section 66 (1) (b) of the Primary Courts’ Procedure Act No. 44 of 1979.

The Appellant had set out in the said affidavit alleging a breach of the peace due to a dispute regarding a land. Being satisfied with the information contained therein the Learned Primary Court Judge has issued notice to the Respondents to appear in court on the specified date.

As the information filed by the Petitioner - Appellants in terms of above section 66 (1) (b) of the Primary Court Act No 44 of 1979, had disclosed a breach of the peace due to a dispute regarding a Premises. The Learned Primary Court Judge being satisfied with the facts averred in the affidavit, had issued notice on the Respondents to appear in court on the specified date.

On receipt of the said notice the 1st and the 2nd Respondents had filed the affidavits and had stated the following;

That the husband of the 1st Respondent and the father of the 2nd Respondent was carrying on a business in the said disputed premises. In addition, the 3 d Respondent who is the husband of the 2nd Respondent was also occupying the same. The permit issued in respect of the said business was marked as 2 R 1. In addition, the Respondents had produced a certificate from the gramasevaka in order to prove the fact that the Respondents were residing in the said disputed premises.

There after the case was fixed for inquiry and the Learned Primary Court Judge, having taken in to consideration the material placed before him, had made order dated 18.01.2000 placing the Appellants in possession in the southern portion of the disputed premises.

Being aggrieved by the said order the Respondents had made an application by way of Revision to have the said order vacated / set aside. Pursuant to the said application the Learned High Court Judge by exercising the Revisionary powers had set aside the said order on the basis that the Primary Court Judge has made the said order without having Jurisdiction to do so. In that it is said that the Primary Court Judge before issuing notice in terms of section 66

(1) (b) should be satisfied that there is a breach of the peace due to a dispute in respect of a land. The Learned High Court Judge was of the view that the Leaned Primary Court Judge has not acted in accordance with section 66 (1) (b) of the said Act.

Being aggrieved by the said Judgment of the Learned High Court Judge, dated 10.12.2002, the Petitioner - Appellants had appealed to this court to heave the Judgment of the Learned High Court Judge set aside or vacated.

After issuing notice on the Respondents in respect of the appeal lodged in this court, on many occasions the Respondents and the Registered Attorney had failed to make appearance in court. Nevertheless, as per Journal entry dated 20.11.2012, it is evident that both parties were represented and as such the court fixed the case for argument accordingly. After the said date the respondents or

their Registered Attorney did not appear in court. Hence this court heard only the argument of the counsel for the Appellants. Hence this court heard only the argument of the counsel for the Appellants.

The facts averred by the Appellants is the affidavits are as follows.

That the Appellants were in possession in the premises in suit for well over 25 years. To buttress the said position the Appellants had tendered the documents marked P1 -P5.

It is common ground that this dispute had arisen among the family members who were living in the disputed premises in two different portions. It is stated in the said affidavits that the Appellants were occupying the southern portion of the said premises whereas Respondents were to the northern portion of the same.

The Petitioners had also averred that the Respondents had forcibly entered the house in which the petitioners were living and had obstructed and dispossessed them from the premises in suit. The Petitioners had made a complaint to Nanuoya Police on 23.08. 1999 regarding the said dispossession by the Respondents.

In the said affidavit filed by the Petitioner Appellants, it is emphatically stated that they were dispossessed and ejected from the disputed premises. It was on the strength of the assertions made by the appellants in the said petition that the Learned Primary Court Judge had assumed jurisdiction and proceeded to issue notice on the Respondents.

Further it is noted that there had been a scuffle between the Petitioners and the Respondents, and as a result the 1st Appellant had received injuries, and was treated at the Nuwaraeliya hospital.

It was the stance of the 1st to 3rd Respondents that they are carrying on a business in the said premises and alleged that the Petitioners left the disputed premises after their marriage and was living at Welimada.

The Learned Primary Court Judge has adverted his attention to the electoral list tendered by the Appellants which is marked as P4, in proof of the fact that the Appellants were occupying the part of the disputed premises. Hence in the light of the above the Learned Primary Court Judge was of the view that the Appellants were living in the disputed house in a portion towards the South and the Appellants were forcibly dispossessed on 23.08. 1999, by not allowing the Appellants to enter the southern portion of the house by the Respondent.

In the said background the Learned Primary Court Judge was of the view that the Appellants were dispossessed within two months prior to the filing of the information in Court in terms of Section 66 (1)(b) of the Primary Courts Procedure Act No. 44 of 1979.

Thus, the Learned Primary Court Judge by his order dated 18.01.2000 has placed the Appellants in possession in the premises in suit.

Being aggrieved by the said order of the Primary Court Judge, the Respondents had made an application by way of revision to the High Court of Kandy to have the said order vacated. In analyzing the facts before the High Court, the Learned High Court Judge has arrived at the following decision;

In that it is said, when a party files a petition in terms of Section 66 (1)(b) the Primary Court Judge should be satisfied that there has been a breach of the peace or is threatened or likely, and it is only then the jurisdiction is conferred on the Primary Court Judge to act under Section 66 (1) (b) of the Primary Court Act No: 44 of 1979. But if the Primary Court Judge fails to arrive at the said decision, the Primary Court Judge, will be barred in proceeding further.

The said proposition was observed in the case of PUNCHI NONA VS PADUMASENA- 1994 2SLR- 117. Therefore, the Learned High Court Judge was of the view that the Learned Primary Court has failed to satisfy himself that the facts averred in the affidavit, have revealed of a dispute which has threatened the breach of the peace. Hence the Learned High Court Judge has dismissed the revision application accordingly.

It is against the said order of the High Court Judge the Appellants had preferred the instant appeal to this Court and pleaded inter alia;

To have the judgment of the Learned High Court Judge to be set aside or vacated. It is viewed from the said impugned judgment that the Learned High Court Judge has dismissed the application in revision on the basis that the Primary Court Judge acting under Section 66 (1)(b) has failed to satisfy himself that there is a dispute which will result in a breach of the peace. When considering the contents in the petition filed in the Primary Court the petitioners had given a vivid description of events that will ensue a breach of the peace. Therefore, the Learned Primary Court Judge acting under Section 66 (1) (b) had sufficient material to assume jurisdiction to proceed with the above application.

The Learned High Court Judge in the said impugned Judgment had also referred to the case of PUNCHI NONA.VS. PADUMASENA – 1994 -2 SRI.LR- 117 which has laid down the said proposition. Therefore, it is seen that the Learned High Court Judge was of the view that the Learned Primary Court Judge has failed to arrive at the conclusion that the existence of a dispute which has threatened the breach of the peace or likely, therefore in the above setting the Learned High Court Judge has dismissed the application in revision accordingly. But it is contended by the Appellants that the said position was never an issue in the Primary Court or in the High Court and the jurisdiction of the Primary Court was never challenged.

When proceedings are instituted by way of filing of an information in court in terms of Section 66(1)(b) by a private party it is the duty of the Primary Court Judge to ascertain whether there is a situation where breach of the peace is threatened.

The above position was entertained and accepted in the case of VELUPILLAI.VS. SIVANANTHAM- (1993) 1SLR- 123. It has been held that, “However, when an information is filed under Section 66(1)(b) the only material that the Magistrate would have before him is affidavit, information of an interested person and in such situation without the benefit of further assistance from the police 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.” (Emphasis added)

Therefore, the Primary Court Judge has to decide on the above situation before issuing notice on the other party. if the informant fails to satisfy the Magistrate on this aspect, the application will be liable to be rejected. A wide interpretation has been given to the above principle in the case of HASANOON IQUIBAL.VS. MAJUBDEEN (1999) 3 SLR- 213 which held thus;

It is obvious that the Learned Primary Court Judge has assumed jurisdiction pursuant to the affidavit filed under Section 66(1)(b) after being satisfied of the facts averred in the affidavit, and has issued notice to the respondents accordingly.

As per paragraph 7 of the Petition filed by the Petitioners in the Primary Court the alleged dispossession had taken place on 04.08.1999, and the above affidavit in terms of Section 66(1)(b) of the Primary Courts Procedure Act No.44 of 1979 was filed on 13.9.1979. Therefore, it is abundantly clear that the Appellants were dispossessed by the Respondents within two months prior to the filing of the petition in terms of the Section 66 (1)(b) of the above Act.

When the judgment of the Learned High Court Judge is reviewed in the above backdrop, I’m of the view that the said impugned judgment is devoid of merits and should be set aside.

Hence, we set aside the Judgment of the Learned High Court.

Judge and allow the appeal accordingly.

JUDGE OF THE COURT OF APPEAL

W.M.M. Malini Gunaratna, J

I agree.

JUDGE OF THE COURT OF APPEAL

Damith Kodithuwakku, Siththragoda Vs Pinnaduwa Hewa Samson

CA PHC 108/2011

PHC Banality 814/10

BEFORE.: A.W.A SALAM & DEEPALI WIJESUNDARE JJ COUNSEL:

Rohan Sahabandu PC for the appellant and D M G Dissanayaka for the respondents.

ARGUED: 17.10.2012.

DECIDED ON: 17.01.2013.

A W A SALAM, J

The complainant-respondent-respondents (Respondents) filed information under Section 66 (1) (b) of the Primary Court Procedure Act complaining of a land dispute affecting the breach of peace citing the respondent-petitioner-appellant (appellant) as a party to the dispute. Thereafter, the appellant filed his affidavit annexing four documents and then the respondents tendered counter affidavit appending identical number of documents. The learned Magistrate, thereupon inquired into the dispute and made order that the respondents are entitled to the possession of the property in dispute.

Section 66 (b) (1 ) of the Primary Court Procedure Act which entitles a private individual (other than a police officer) to initiate proceedings under Chapter VII of the Act reads as follows...

A W A Salam, J

Deepali Wesner, J I agree.

Judge of the Court of Appeal

Koraburuwane H Siri Bandula Vs K Kithsiri Mahinatha,[CA]

Case No. CA(PHC)152/2013 PHC Kandy

Rev.Application No:52/10 M.C.Kandy Case No:20562

Before: K.K. Wickremasinghe J. Janak De Silva J.

Counsel: S.N. VijithSingh for 1 t Respondent-Petitioner-Appellant

Chandana Wijesooriya for the Petitioner-Respondent-Respondent

Written Submissions tendered on:

1st Respondent-Petitioner-Appellant on 02.05.2018

Petitioner-Respondent-Respondent on 26.06.2018

Argued on: 09.03.2018

Decided on: 05.10.2018 Janak De Silva J.

This is an appeal against the order of the learned High Court Judge of the Central Province holden in Kandy dated 08.10.2013.

The Petitioner-Respondent-Respondent (Respondent) instituted proceedings under section 66(1) (b) of the Primary Courts Procedure Act (Act) on 15.09.2009 and claimed that the 1" Respondent-Petitioner-Appellant (Appellant), his wife, the 2nd Respondent-Respondent- Respondent, (2nd Respondent) and three children, the 3’ d to the Sth Respondents-Respondents- Respondents (3rd to 5th Respondents) had initially disturbed his possession by breaking the wall that separated the two portions of the building that the parties were occupying separately and causing damage to his part of the building.

The Respondent made a police complaint dated 24.07.2009 and claimed that he was later forcibly dispossessed from the part of the building he was occupying. The Respondent stated that the Appellant and the 2nd to the 5th Respondents had broken the locks of the part of the building he was living in, fixed new locks from the inside and prevented the Respondent from entering his part of the building on 22.07.2009.

The Appellant and the 2nd to the 5th Respondents took up the position that the entirety of the land described in the schedule to their affidavit was at all times in their possession and that the Respondent did not enjoy possession to any part of that land or the building on it.

After inquiry the learned Primary Court judge concluded that the Respondent had been in possession of Lot 1, Lot 7 and the part of the building on Lot 7 as depicted in Plan No 1500 made by M.S.K.B Mawalagedara Licensed Surveyor and that the Appellant and the 2nd to Sth Respondents had forcibly dispossessed him from the same two months before the filing of information in the Primary Court. Accordingly, the learned Primary Court judge made an order directing that the Respondent be restored to possession and prohibiting all acts which could disturb the Respondent’s possession.

Being aggrieved by the said order, the Appellant filed a revision application before the Provincial High Court of the Central Province holden in Kandy and sought to set aside the order of the learned Magistrate of Kandy. The learned High Court judge refused the application and hence this appeal.

The Appellant in his revision application (vide page 11 of the Appeal Brief) and written submissions filed before the learned High Court judge of Kandy (vide page 73 of the Appeal Brief) sought to assail the order of the learned Primary Court judge on the following grounds:

(i) That the learned Primary Court judge has erred in law by entertaining the information filed by the Respondent as it asks for reliefs that the Primary Court is not in law competent to grant namely a declaration to the effect that the Respondent is entitled to the ownership of Lot 1, Lot 7 and the part of the building on Lot 7.

(ii) That the learned Primary Court judge has erred in law by inquiring into the matter without considering the fact that the action had been instituted by way of petition and affidavit instead of the procedure stipulated by law namely file information by way of affidavit

It is trite law that an objection to the jurisdiction of a court must be raised by a party at the first available opportunity (Section 39 of the Judicature Act). This principle has been followed by our courts in the context of proceedings before Primary Courts as well [Navaratnasingham v Arumugam (1980) 2 Sri. L. R. 1, Paramasothy v Nagalingam (1980) 2 Sr.i L. R. 34]. However, our courts have also recognized a distinction between cases where there is a patent want of jurisdiction and latent want of jurisdiction. [Kandy Omnibus Co Ltd v T.W Roberts 56 N.L.R. 293, Beatrice Perera v The Commissioner of National Housing 77 N.L.R. 361, Colombo Apothecaries Ltd and others v Commissioner of Labour (1998) 3 Sri. L.R. 320].

In the former type of cases, a waiver of an objection or acquiescence on the part of a party in raising an objection in the first instance does not give jurisdiction to court to try the matter Colombo Apothecaries Ltd and others v Commissioner of Labour (supra)]. Consequently, if a court labours under a patent want of jurisdiction, any objection to the assumption of such jurisdiction cab be raised before a higher court (either in Appeal or Revision), even if the party raising that objection has failed to do so in the first instance. iKandy Omnibus Co Ltd v 7. W’ Roberts (supra)]. It is therefore necessary to assess whether the objections raised by the Appellants for the first time at the revision stage are objections impugning a patent lack of jurisdiction on the part of the Primary Court. The learned High Court judge would have been under a legal duty to take cognizance of one or more of these objections only if they showed that the Primary Court laboured under a patent lack of jurisdiction.

Patent v Latent Want of Jurisdiction

In Kandy Omnibus Co Ltd v T.W Roberts (supra) Sansoni J, quoted with approval the following passage from Spencer Bower on Estoppel by Representation (1923) at page 187:

“Where it is merely a question of irregularity of procedure, or ofa defect in 'cont/ngent’ jurisdiction, or non-compliance with statutory conditions precedent to the validity of a step in the litigation, of such a character that, if one of the parties be allowed to waive, or by conduct or inaction to estop himself from setting up, such irregularity or want of’ contingent’ jurisdiction or non-compliance, no new jurisdiction is thereby impliedly created, and no existing jurisdiction is thereby impliedly extended beyond its existing boundaries, the estoppel will be maintained, and the affirmative answer of illegality will fail,for, the Royal prerogative not being invaded, and the State therefore not being injured, nor any of His Majesty's subjects for whom that Royal prerogative is held in trust, there is no ground of public policy, or other just cause, why the litigant, to whom alone in that case the statutory benefit belongs, should not be left free to surrender it at pleasure, or why having be surrendered it, whether by contract, or by conduct or inaction implying consent, he should be afterwards permitted to claim it. Accordingly, in all cases of thefirst class, that is, of defectus jurisdictionis the representor has been held incapable of estopping himself from resisting the usurped authority; whereas in all those of the other class that is of mere defectus triationis the affirmative answer has been rejected, and the representor has been held estopped from objecting to the irregularity“

The above passage suggests that the fundamental feature of a patent lack of jurisdiction is one where a court lacks jurisdiction over a particular action, cause, proceeding or the parties. The exercise of powers by a court in a situation of patent want of jurisdiction results in the court exercising new jurisdictions not provided for by statute.

In Beatrice Perera v The Commissioner of National Housing (supra) the court made the following observation:

“Lack of competency may arise in one of two ways. A Court may lack jurisdiction over the cause or matter or over the parties; it may also lack competence because of failure to comply with such procedural requirements as are necessary for the exercise of power by the Court. Both are jurisdictional defects; the first mentioned of these is commonly known in the law as a patent’or total’ want ofjurisdiction or a defectus jurisdictionis and the second a latent’ or contingent’ want of jurisdiction or a defectus triationis.”

Accordingly, the filing of a petition and affidavit (instead of only an affidavit as required by law) which included a single prayer of relief that the Primary Court was not competent to consider, is more easily describable as;

....a question of irregularity of procedure, or of a defect in contingent’jurisdiction, or non-compliance with statutory conditions precedent to the validity of a step in the litigation. [Kandy Omnibus Co Ltd v T.W Roberts (supra)] or

...failure to comply with such procedural requirements as are necessary for the exercise of power by the Court. (Beatrice Perera v The Commissioner of National Housing (supra)]

Given that a Primary Court judge, subject to what I discussed below under Grant of relief not prayed for in the affidavit, is not bound to grant reliefs prayed for in an information filed under section 66(1)(b) of the Act, the mere inclusion of a defective prayer in the information filed will not result in a Primary Court exercising a wholly new jurisdiction.

A Primary Court will labour under a patent lack of jurisdiction if for example one of the thirty- six different types of actions specified in the Fourth Schedule to the Judicature Act is instituted in a Primary Court. If a section 66 application which does not comply with the requisite statutory procedure is instituted and continued before a Primary Court it will have to be regarded as a situation of latent want of jurisdiction. This is because the Primary Court continues to have jurisdiction over the subject matter of the application despite the procedural defects in making that application. [Navaratnasingham v Arumugam (1980) 2 Sri LR 1 at 6].

Where a latent lack of jurisdiction exists, a party must raise these procedural defects at the earliest opportunity as acquiescence, waiver or inaction on the part of the party will estop that party from raising the objections in later proceedings.

A perusal of the available record of Case No 20562, shows that the Appellant has failed to raise the aforementioned objections in his affidavit filed on 2009.11.10 (Vide page 246 248 of the Appeal Brief) and subsequently in the written submissions filed on 2009.12.21 (Vide pages 178-179 of the Appeal Brief). Accordingly, I am of the opinion that the learned High Court judge was correct in disregarding the objections raised by the Appellant for the first time in his revision application filed before the High Court. The acquiescence on the part of the Appellant in raising the objections has cured the latent want of jurisdiction that existed before the Primary Court of Kandy.

Grant of relief not prayed for in the affidavit

The next question is whether the Primary Court judge could have granted reliefs that have not been prayed for in the affidavit. The Appellants have raised this point for the first time in their written submissions filed before this court and rely on Weragama v Bandara (77 N.L.R. 28) and Buddhadasa Kaluarachchi v Nilamanie Wiyewickrema and another [(1990) 1 Sri.L.R. 262] to demonstrate that a court is not entitled to grant relief that has not been prayed for by a party. This principle has undoubtedly received widespread judicial recognition in the context of proceedings held under the Civil Procedure Code. The apex courts have consistently held that a District Court is not entitled to grant reliefs to a party if the relief is not prayed for in the prayer to the plaint. \Sirinivasa Thero v Sudassi Thero (63 N.L.R. 31), Wij”esuriya v Senaratna (1997) 2 Sri. L.R. 323, Surangi v Rodrigo (2003) 3 Sri. L.R. 35]

The aforementioned principle has also recently been adopted in the context of Primary Court proceedings. In Dias and another v. Dias and another [CA (Rev) Application No: 63/2016; C.A.M. 12.08.2016] a divisional bench of this court observed as follows:

“We find that the Learned Magistrate has erred in ordering that the respondents be restored to possession when there is no such prayer in the petition by the respondents. The respondents had not prayed for restoration of possession this is a private information under Section 66(1)(b) of the Primary Courts Procedure Act in terms of Section 66(1)(b) the petitioner has to set out the relief sought.”

I will now consider whether the said decision sets out the correct position of law on the question now before us.

Sections 68(1) and (2) of the Primary Courts Procedure Act (Act) reads:

“(1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the 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.

(2) An order under subsection (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 an order or decree.” (Emphasis added)

These provisions clearly impose a statutory duty on the Primary Court Judge to determine and declare the persons entitled to possession of the land. They apply to applications made under section 66(1)(a) as well as under section 66(1)(b) of the Act. There is of course no prayer for relief in an application made under section 66(1)(a) of the Act but yet the Primary Court Judge has a statutory duty to determine and declare the persons entitled to possession of the land. In this situation one cannot argue that the general principle is that a court is not entitled to grant relief that has not been prayed for by a party.

Similarly, I am of the view that even in applications made under section 66(1)(b) of the Act there is a statutory duty on the Primary Court Judge to determine and declare the persons entitled to possession of the land. This has been done by the learned Primary Court Judge in the instant case. The fact that the Appellant has failed to pray for this relief in the affidavit does not relieve the learned Primary Court Judge of the statutory duty imposed on him.

For the foregoing reasons, with the greatest respect to their lordships in Dias and another v. Dias and another (supra), I hold that in a private information under Section 66(1)(b) of the Act it is not incumbent on the petitioner to specifically pray for restoration to possession. That is a relief that the learned Primary Court Judge is under a statutory duty to consider and grant after due inquiry.

In any event, the proviso to Article 138(1) of the Constitution states that no judgment, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice. In Sunil Jayarathna v Attorney General (2011) 2 Sri LR 91, the Supreme Court in applying the proviso to Article 138(1) of the Constitution observed that:

“Unless there is some grave miscarriage of justice it would not be appropriate to interfere with the judgment of the trial judge who enters judgment after careful consideration of the first-hand evidence put before her to which the Judges of the Appellate Court would not have the ability to witness.“

In the matter before us, the defect in the prayer of the Respondent’s affidavit does not at any point prejudice the substantial rights of the Appellant or occasion a failure of justice. Despite prayer (b) to the affidavit seeking a declaration to the effect that the Respondent is entitled to the ownership of Lot 1, Lot 7 and the part of the building on Lot 7, the Primary Court judge has carefully limited himself to assessing the question of possession in terms of section 68(3) of the Act.

The learned Primary Court judge has initially made a determination that the Respondent had been dispossessed from his part of the land and the building within two months prior to the filing of information. The learned Primary Court judge has thereafter made an order directing that the Respondent be restored to possession of the part of the land/building and has also prohibited all interference/disturbance of such possession (Vide pages 194 195 of the Appeal Brief). Thus, it is clear that the learned Primary Court judge has disregarded the defective and irregular prayer in the affidavit and made an order that is strictly in accordance with section 68(3) of the Act.

For the foregoing reasons, I see no reason to interfere with the order of the learned High Court Judge of the Central Province holden in Kandy dated 08.10.2013.

Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

Lelio Orsetti, Vs Umagiliyage Rasika Chaminda,

Court of Appeal case no. CA/PHC/APN58/2015

M.C. Galle case no. 34/13

M.C. Galle case no. 4216/13

Before: P.R.Walgama J. : L.T.B. Dehideniya J.

Counsel : Shantha Jayawardane with Camara Nanayakkara for the Respondent Respondent Petitioners.

W. Dayarathne PC with R.Jayawardane for the Petitioner Petitioner Respondent.

Argued on : 04.03.2016

Written submissions filed on : 19.05.2016

Decided on : 09.12.2016

L.T.B. Dehideniya J.

This is a revision application filed against an order of the learned High Court Judge of Galle.

The 1st and 2nd Petitioner Petitioner Respondents (the 1st and 2‘d Respondents), as a private party, filed information in the Magistrate Court Galle under section 66(1)(b) of the Primary Court Procedure Act indicating that a land dispute threatening breach of the peace has arisen. The Respondent’s contention is that the land in dispute called Thibbatukanaththawatta with the house in it was purchased by the 2nd

Respondent and was transferred to a company owned by the 1st

Respondent. Thereafter the land and the house were developed by the 1st Respondent. The 1st Respondent was in possession of the land and the house and the 2‘d Respondent was assigned to look after the house. On 22.02.2013 the 1st Respondent has come to Sri Lanka and found that the Respondent Respondent Petitioner (the Petitioner) was in occupation of the land and the house. The Respondents filed this action in theMagistrate Court of 20.03.2013 under section 66(1)(b) of the Primary Court Procedure Act.

The Petitioners contention is that they have not sold the land called Mahamesthrigawatta and house where they were residing. Their side of the case is that they were residing in the said house for about fifty years. The electricity and water connections were obtained by them. They are not in possession of a land called Thibbatukanaththawatta but they are in Mahamesthrigawatta.

The learned Magistrate afler filing the affidavits, counter affidavits, documents and written submissions held that the date of dispossession has not established and dismissed the application. Being moved in revision in the High Court of Galle, the order of the learned Magistrate was set aside and held with the Respondents. This revision application is from the said order of the learned High Court Judge.

Under the part VII of the Primary Court Procedure Act, the title to the land is not the deciding factor. Section 68 of the Act provides;

68 . (1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the 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.

(3) Where at an inquiry into a dispute relating to the right to the possession of any land or any part of a land the Judge of the Primary Court /s 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.

(4) An order under subsection (1) may contain in addition to the declaration and prohibition referred to in subsection (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.

The Court is vested with a duty under section 68 inquire in to the fact that who was in actual possession on the date of filing of the information and to protect his possession until the matter is adjudicated before a competent court. The only exception is where a dispossession has taken place within two months from filing the information. It has been held in the case of Ramalingam V. Thangarajah [1982] 2 Sri L R 693 that;

66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof 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 proceeding the date on which the information was filed under section 66. The effect of this sub‘section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the

person actually in possession can be said not to have been /o

possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as- against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his

possession was acquired within two months of the filing of the information.

The burden of proving the fact that the dispossession took place within the two months prior to the filing of the information is on the Respondents. Under section 101 of the Evidence Ordinance, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”

The Respondents when they were dispossessed. The 1st Respondent in not residing in the country and the 2nd Respondent is not residing in the disputed house. What the 1st Respondent knows is that when he came to Sri Lanka on 22.02.2013, he has been dispossessed by the Petitioners. In paragraph 19 of the affidavit of the 1st and 2nd Respondents dated 08.03.2013 stated that the 2nd Respondent visited the house “about one week prior to 23.02.2013”. This statement is the only evidence presented to Court to establish that they were in possession till 15.02.2013. The date, 23'd February is the date where the 1st Respondent came to the country, but the date he visited the house is about one week back from that date. The date he visited the house is not definite. Under section 68(3) of the Act, the date of dispossession is very material. The date cannot be established by a loose and uncertain statement such as “about one week”, it has to be a specific and certain.

The 1st Respondent, after coming to Sri Lanka and visiting the disputed premises, made a complaint to the police on the same date. The said complaint is marked and produced as ‘PS’. What the 1st Respondent has said to the police is that the 1st Respondent has locked the premises and left the country but when came back, the Petitioners are occupied the premises. This statement is silent on the involvement of the 2nd Respondent. If the 2nd Respondent was in charge of the premises, the 1st Respondent would have reveled his name to the police and if so, it would have given some weight to the statement of the 2nd respondent.

Punchi Nona v. Padumasena and others [1994] 2 Sri L R 117 at 121

The Respondents have failed to establish the definite date that they were dispossessed and by that they have failed to establish that they were dispossessed within two months prior to the filing of the information.

The Petitioners submit that this case does not come under section 68 of the Primary Court Procedure Act but comes under section 69. The section 69 is on “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’ but the dispute in this case is clearly on “the dispute relates to the

possession of any land or part thereof” where the section 68 of the Act applies. The 1st Respondent claims that the land was purchased by him and on the strength of the ownership, he is entitle to posses. It is a matter for a competent civil court to decide, does not come within the purview of the Primary Court Procedure Act.

The learned Magistrate has correctly decided that the land in dispute was in possession of the Petitioners on the date of filing of the information and the Respondents have failed to establish that they were dispossessed within a period of 2 months next preceding the date on which the information was filed.

Accordingly, I act in revision and set aside the order of the learned High Court Judge dated 16.02.2014 and affirm the order of the learned Magistrate dated 07.08.2013.

Application allowed with costs fixed at Rs. 10,000.00

P.R.Walgama J.

I agree.

Judge of the Court of Appeal

Mohemed Abdulla A Mohideen vs Ranminipura Dewage S.R Vishwakula

H.C. Avissawella Case No. HCA 17/2012 (Rev) M.C. Avissawella Case No.47993/12

Before: K.K. Wickremasinghe J. & Janak De Silva J.

Counsel: M.S.A. Shaheed with A.M. Hussain for 151 Party Respondent-Petitioner-Appellant

Malaka Herath for 2nd Party Respondent-Respondent-Respondent and Intervenient-Respondent-

Respondent-Respondent.

Decided on: 11.01.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court judge of the Western Province holden in Avissawella dated 12.12.2012. The Complainant-Respondent-Respondent filed information in the Magistrates Court of Avissawella in terms of section 66(1)(a) of the Primary Courts Procedure Act on 2012.06.18. As the information disclosed a dispute affecting land between the 1st Party Respondent Petitioner Appellant (Appellant) and the 2nd Party Respondent Respondent Respondent ) that threatened or was likely to lead to a breach of peace, the learned Primary Court judge directed that a notice be affixed to the disputed corpus inviting any parties interested to appear in court on the date mentioned in the notice and file affidavits setting out their claims.

Thereafter, the Intervenient Respondent Respondent Respondent (Intervenient Respondent) intervened on the date mentioned by filing an affidavit and documents setting out his claim. The learned Primary Court judge having perused the affidavits, counter affidavits and written submissions of the aforementioned parties came to the conclusion that this was a dispute relating to the possession of a part of a land. The learned Primary Court judge also reasoned that the dispute must be dealt with in terms of section 68(1) of the Primary Courts Procedure Act as no party had alleged that they had been dispossessed from the land within two months prior to the filing of information.

(Vide pages 50 51 of the Appeal Brief)

Accordingly, having identified the disputed corpus, the learned Primary Court judge came to the conclusion that the Intervenient Respondent had been in constructive possession of the land in dispute through the 2nd Party Respondent on the date of the filing of information. The Intervenient Respondent was therefore placed in possession of the disputed corpus.

Being aggrieved by the said order of the learned Primary Court judge, the Appellants filed a revision application before the High Court of Avissawella seeking inter alia to set aside the learned Primary Court judge's order and a declaration to the effect that the Appellant was entitled to possession of the disputed corpus. When this matter was supported for notice and interim relief (staying the execution of the order of the learned Primary Court judge) before the learned High Court judge of Avissawella on 2012.11.29, the counsel appearing for the Intervenient Respondent raised two points of law against the maintainability of the revision petition. (Vide pages 25 26 of the Appeal Brief).

It was submitted that, (a) the caption of the revision petition failed to explicitly disclose the legal provision under which the revision petition was being presented to the High Court

(b) the body of petition did not specify the exceptional circumstances which necessitated the High Court to exercise its revisionary jurisdiction

The learned High Court judge accepted both these contentions and dismissed the revision application in the first instance without issuing notice by order dated 2012.12.12. (Vide pages 30 33 of the Appeal Brief). Hence this appeal.

Defective Caption

The learned High Court Judge held that the revision application must be dismissed as the Appellant had failed to specify the relevant statutory provision under which the revision application was made.

There is no dispute that in terms of Article 154P (3)(b) of the Constitution a High Court of a Province has revisionary jurisdiction in respect of orders entered by Primary Courts within the Province. In Vanik Incorporation Ltd. vs. L.D. Silva and others [(2001) 1 Sri.L.R. 110] S.N. Silva C.J. held that the appeal to the Supreme Court, though erroneously made under section 5(2) of the High Court of the Provinces (Special Provisions) Act. No. 10 of 1996. is referable to section 37 of the Arbitration. Act. No. 11 of 1995 in terms of which an appeal lies to the Supreme Court on a question of law, with leave and hence the mistaken reference in the caption shall not result in the rejection of the appeal. Accordingly, I hold that the learned High Court Judge erred in holding that the application should be dismissed as the Appellant had failed to specify the relevant statutory provision under which the revision application was made.

Exceptional Circumstances

The other ground on which the learned High Court Judge refused notice was that the Appellant had failed to establish exceptional circumstances warranting the exercise of revisionary powers.

The Appellant cited Jayatilake v. Ratnayake [(2007) 1 Sri.L.R. 299] where it was held by Ranjth Silva J. that in a revision application when there is no alternative remedy available, the appellant need not show exceptional circumstances but has to show illegality or some procedural impropriety in the impugned order.

Section 74 (2) of the Primary Courts Procedure Act prohibits an appeal against any determination or order made under Part VII of the said Act. Accordingly, the Appellant could not have appealed to the High Court.

However, in Dharmaratne and another v. Palm Paradise Cabanas Ltd. and others [(2003) 3 Sri.L.R. 24 at 30] Amaratunga J. held:

"Existence of exceptional circumstances is the process by which the court selects the cases in respect of which the extraordinary method of rectification should be adopted, if such a selection process is not there revisionary jurisdiction of this court will become a gateway of every litigant to make a second appeal in the garb of a Revision Application or to make an appeal in situations where the legislature has not given a right of appeal." (emphasis added)

Accordingly, the learned High Court Judge was correct in requiring exceptional circumstances in deciding whether to exercise revisionary powers.

It is trite law that presence of exceptional circumstances by itself would not be sufficient if there is no express pleading to that effect in the Petition whenever an application is made invoking the revisionary jurisdiction of the Court of Appeal [Siripala v. Lanerolle and another (2012) 1 Sri.L.R. 105].

The Appellant has failed to specifically plead in the petition to the High Court any grounds forming exceptional circumstances. In any event, having carefully considered the judgment of the learned Magistrate, I am of the view that no exceptional circumstances exist which warranted the High Court to exercise its revisionary powers.

For the foregoing reasons and subject to my findings on the purported defective caption, I see no reason to interfere with the order of the learned High Court judge of the Western Province holden in Avissawella dated 12.12.2012.

Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

DIMUNGU HEWAGE B NANDAWATHIE VS V IRANGANEE HETTIARACHCHI

HON MAHINDA SAMAYAWARDHENA, J.

CASE NO: CA/PHC/22/2015

HC KANDY CASE NO: 206/2012/Rev DC/MC GAMPOLA CASE NO: 78200

Dimungu Hewage Biatris Nandawathie, No.618/60E,Buddhagaya Mawatha, New Town, Anuradhapura.

3rd Respondent-Petitioner-Appellant Vs.

Vinitha Iranganee Hettiarachchi, No. 350, Naranwila, Gampola.

5thRespondent-1st Respondent-1st Respondent And 4 Other Respondents

Proceedings were initiated in the Magistrate's Court under section 66(1)(a) of the Primary Courts' Procedure Act, regarding a dispute over a right of way. Every party was represented by an Attorney-at-Law and they filed joint affidavits[1] and counter affidavits. Of consent an inspection was carried out when the parties were represented by their respective Attorneys-at-Law, and the dispute was settled.The 3rd party of the first part who was absent, but others have signed the case record signifying the settlement.

The 3rd Party was not a participant to the settlement as she did not sign the case record under section 66(6). She did not complain to the Magistrate about this but raised it in the High Court. Held as she was represented by Lawyer she is bound by the settlement.

The nature of section 66 proceedings is quasi civil. There is no necessity for a party to be physically present before Court in an application under section 66. As the section 66(8)(a) provides, a party can enter appearance by an Attorney-at-Law. That is what the appellant has done in this case from the inspection. It is not her position that she was not represented, as per the proceedings at the inspection, by her Attorney-at-Law. Her complaint seems to be that, notwithstanding she was represented by an Attorney-at- Law, as she did not sign the case record, she is not bound by the settlement. Although section

66(6) requires the settlement to be signed by the parties, in my view, when parties are represented by Attorneys-at-Law, the settlement does not become invalid, merely because one absent party who was represented by an Attorney-at-Law has failed to sign the case record.

When parties to an action enter into a settlement and are represented by their Proctors, they need not be personally present when the settlement is notified to the Court in terms of section 408 of the Civil Procedure Code. Once the terms of settlement as agreed upon are presented to Court and notified thereto and recorded by Court, a party cannot resile from the settlement even though the decree has not yet been entered. Sinna Veloo v. Messrs Lipton Ltd (1963) 66 NLR 214)

There has been a very pernicious practice among litigants to resile from agreements merely because they have not subscribed their signature to the record. This pernicious practice in my view must be condemned and refuted with all the contempt it deserves.Francis Wanigasekera v. Pathirana [1997] 3 Sri LR 231

construing or interpreting a provision of law cannot be solved merely by adopting the literal interpretation of a section or meaning given to a word in a dictionary as urged by learned counsel for the plaintiff-respondent. A provision of law has to be interpreted contextually, giving consideration to the spirit of the law - Distilleries Company Ltd v. Kariyawasam [2001] 3 Sri LR 119 at 124-125

Before : A.L. Shiran Gooneratne, J. Mahinda Samayawardhena, J.

Argued on : 22.05.2019 Decided on : 03.06.2019

Mahinda Samayawardhena, J.

The police initiated these proceedings in the Magistrate's Court under section 66(1)(a) of the Primary Courts' Procedure Act, No.44 of 1979, regarding a dispute over a right of way between two parties. The first part consisted of 4 parties, and the second part 2 parties. Parties of each part are close relations. Each part was represented by an Attorney-at-Law in the Magistrate's Court and filed joint affidavits and counter affidavits.

Under section 66(6), once pleadings are complete, before the matter is fixed for inquiry, a duty is cast on the Magistrate to induce the parties to arrive at a settlement.

According to the journal entries dated 02.08.2012 and 24.08.2012 of the Magistrate's Court case record, in compliance with that provision, the learned Magistrate, in the presence of all the parties, has decided to go for an inspection of the disputed road on 27.09.2012.

According to the proceedings dated 27.09.2012, at the inspection, both parties have been represented by their respective Attorneys-at-Law, and the dispute has been settled upon conditions until the matter is finally decided by a competent Court1, which is the District Court. All the parties, except the 3rd party of the first part who was absent, have signed the case record in signifying the settlement.

More than 2 months after the said settlement, the 3rd party of the first part has gone before the High Court by way of revision seeking to revise "the orders dated 27.09.2012"2 on the grounds that: (a) she was not a party to the settlement as she did not sign the case record in terms of section 66(6); (b) no order has been made on the settlement in terms of section 66(6); and (c) there is evidence that she has been using the disputed road for a long time.3

The learned High Court Judge has dismissed that application by Judgment dated 22.01.2015. The 3rd party of the first part (hereinafter "the appellant") has come before this Court against the said Judgment of the High Court.

Let me first consider the first ground. That is, the appellant was not a party to the settlement as she did not sign the case record as dictated in section 66(6). If the appellant thinks that she was not a party to the settlement as she did not sign the case record and therefore she is not bound by the settlement/order, she shall, in my view, first complain it to the Magistrate's Court. She cannot bypass the Magistrate's Court and go straight before the High Court to complain that an order has been made against her ex parte. The appellate Court has no wherewithal to initiate an inquiry into that allegation.

The second ground is, no order has been made on the settlement in terms of section 66(6). If the appellant is not a party to the settlement, whether or not an order has been made on the settlement is irrelevant to her. If she thinks that no order has been made, and therefore the agreement is unenforceable, she can remain silent. If no order has been made, it is difficult to understand why she went before the High Court seeking to set aside "the orders dated 27.09.2012".

The third ground relates to the merits of the application. When the matter is settled, there is no necessity to consider the merits and demerits of the substantive matter.

Without prejudice to the above, I must state that, the nature of section 66 proceedings is quasi civil. As the learned High Court Judge has correctly stated, there is no necessity for a party to be physically present before Court in an application under section

66. As the section 66(8)(a) provides, a party can enter appearance by an Attorney-at-Law. That is what the appellant has done in this case from the inspection. It is not her position that she was not represented, as per the proceedings at the inspection, by her Attorney-at-Law. Her complaint seems to be that, notwithstanding she was represented by an Attorney-at- Law, as she did not sign the case record, she is not bound by the settlement. Although section 66(6) requires the settlement to be signed by the parties, in my view, when parties are represented by Attorneys-at-Law, the settlement does no n become invalid, merely because one absent party who was represented by an Attorney-at-Law has failed to sign the case record. The other three parties of the first part were physically present and signed the case record despite two Attorneys-at- Law have appeared for all the four parties of the first part. As I stated at the outset, the four parties of the first part are closely connected and made one voice and filed pleadings jointly. Hence no prejudice whatsoever has been caused to the appellant for her being absent at the inspection.

The appellant must remember that what she filed before the High Court was not an appeal but a revision application. Unlike an appeal, which is exercised as of right, revision is a discretionary remedy, which the Court is loath to exercise unless there is a grave miscarriage of justice, which shocks the conscience of the Court.

In Sinna Veloo v. Messrs Lipton Ltd (1963) 66 NLR 214) it was held:

In Francis Wanigasekera v. Pathirana [1997] 3 Sri LR 231 at 234 Weerasekera J. stated:

The words that "an order made in accordance with the terms as settled" found in section 66(6) shall not be taken to mean that the settlement will be ineffective unless a formal order is made after the recording of the settlement. What is the order the Magistrate is expected to make? In my view, a simple sentence such as "Parties shall comply with the above settlement", "The above settlement is to be considered as an order of Court".

When a case is settled there is no occasion for the Judge to deliver a judgment or order. In an ordinary civil case, after the settlement, decree is entered in terms of the settlement, and not in terms of the judgment or order as judgment or order is non-existent. Entering decree is a ministerial act and the responsibility of the Court. The failure to do that ministerial act does not make the settlement invalid. (Pathirana v. Induruwage [2002] 2 Sri LR 63) A party shall not be made to suffer for lapses on the part of the Court.

In Distilleries Company Ltd v. Kariyawasam [2001] 3 Sri LR 119 at 124-125 Nanayakkara J. rightly pointed out that "construing or interpreting a provision of law cannot be solved merely by adopting the literal interpretation of a section or meaning given to a word in a dictionary as urged by learned counsel for the plaintiff-respondent. A provision of law has to be interpreted contextually, giving consideration to the spirit of the law."

Having considered the scheme and purpose, in my view, there is no place for hair-splitting arguments and high-flown technical objections in section 66 applications. The sole intention of introducing this special piece of legislation is nothing but to prevent breach of the peace arising out of land disputes and not to determine the rights of the parties. Until the parties go before a competent Court to have their substantive rights determined, the legislature expects the Court to make a provisional order.

The appellant says that the settlement is irrational and absurd. Even if it is correct, it shall not affect the validity of the settlement. That is not a permanent order. The appellant can go before the District Court to vindicate her rights. Until such time she is bound by the settlement.

Appeal is dismissed with costs.

Judge of the Court of Appeal

A.L. Shiran Gooneratne, J.

I agree.

Judge of the Court of Appeal

UPALI JAYASINGHE VS. ANANDA PARANAWITHANA

HON. L.T.B. DEHIDENIYA, J

Court of Appeal case no. CA/PHC/184/2005

H.C. Negombo case no. H.C.R.A. 118/2005

M.C. Wattala case no. 5420/66

Upali Jayasinghe

Second Party Respondent Respondent Appellant

Vs.

Ananda Paranawithana

First Party Petitioner Petitioner Respondent

Before : H.C.J.Madawala J.

L.T.B. Dehideniya J.

Counsel : M.P.Maddumabandara for the Second Party Respondent Respondent Appellant.

Chanaka Kulathunga for the First Party Petitioner Petitioner Respondent.

Argued on : 31.01.2017

Written submissions filed on : 2nd and 17th March 2017

Decided on : 16.05.2017

L.T.B. Dehideniya J.

This is an appeal from the High Court of Negombo.

The first party Petitioner Petitioner Respondent (hereinafter sometimes called and referred to as the Respondent) instituted action in the Primary Court of Watthala under section 66(1)(b) of the Primary Court Procedure Act on a land dispute threatening breach of the peace. After completing the pleadings, the learned Magistrate first inquired in to the matter of the threat or the likelihood of the breach of the peace and decided that there is no threat or likelihood of the breach of the peace and dismissed the application. Being aggrieved, the Respondent filed a revision application in the High Court of Negombo where the learned High Court Judge held that the breach of the peace is likely and directed the learned Magistrate to accept the application and to proceed. This appeal is there from.

A threat or the likelihood to occur a breach of the peace due to the land dispute is a pre condition for the Primary Court to assume jurisdiction under Part VII of the Primary Court Procedure Act. Section 66 (1) (a) of the Act empowers a police officer to file information under the Act. In such a situation the police officer has to decide whether the breach of the peace is likely or threatened. Under subsection (b) of section 66(1), a private party can file information and it is the Court that has to decide whether the breach of the peace is threatened or likely due to the dispute. David Appuhamy V. Yassassi Thero [1987] 1 Sri L R 253

But, under section 66 of the Primary Courts' Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute and he is, in such circumstances, required to file an information regarding the dispute with the least possible delay. Where the information is thus filed in a Primary Court, subsection (2) of that section vests that court with jurisdiction to inquire into - and make a determination - or order on the dispute regarding which the: information is filed. Hence, in the instant case, when the O.I.C. Morawaka Police filed the information under section 66: of the said Act, the court was thereby vested with the necessary jurisdiction. , Velupillai and others v. Sivanathan [1993] 1 Sri L R 123

Under section 66 (1) (a) of the Primary Courts Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute. The police officer is empowered to file the information if there is a dispute affecting land and a breach of the peace is threatened or likely. The Magistrate is not put on inquiry as to whether a breach of the peace is threatened or likely. In terms of section 66 (2) the Court is vested with jurisdiction to inquire into and make a determination on the dispute regarding which information is filed either under section 66 (1)(a) or 66 (1)(b).

In the instant case, the parties have filed their respective pleadings by way of affidavits and counter affidavits and the documents relied on are also filed. The learned Magistrate inquired in to the matter of the threat to the breach of the peace after the affidavits have been filed. The acceptance of the application and ordering to issue notice does not preclude the learned Magistrate from inquiring in to the matter of the threat to the breach of the peace. The learned Magistrate can consider all the relevant material before coming in to the conclusion on the issue.

Every land dispute is not a threat to the peace. If there is a land dispute, the remedy is to litigate in the proper forum to vindicate the rights. The Primary Court Procedure Act provides only a temporary remedy to prevent the breach of the peace until such time that a competent Court decides on rights of the parties. In the present case also no doubt that there is a land dispute. But the two complaints made by the Respondent to the police with regard to the said dispute, which are marked as Pe 7 and Pe 8, does not show that there is any threat to the peace due to the land dispute. Pe 7 says that certain activity has taken place in the land in his absence and Pe 8 says that on his request the wrong doers have left the land. There is a land dispute between the parties but there is no threat or likelihood of a breach of the peace. Since there is no threat to the peace, the Magistrate Court do not assume jurisdiction under section 66 of the Primary Court Procedure Act.

The learned Magistrate has correctly identified that there is no threat to the peace due to the land dispute in question. The learned High Court Judge misdirected himself and has come to the conclusion that there is a threat or likelihood of the breach of the peace without any evidence.

I set aside the order of the learned High Court Judge and affirm the order of the learned Magistrate. Appeal allowed with costs fixed at Rs. 10,000.00

Judge of the Court of Appeal

H.C.J.Madawala J.

I agree. Judge of the Court of Appeal

DOUGLAS ARIYASINGHE VS T.M. EKANAYAKE AND OTHERS

HON. JANAK DE SILVA, J.

Case No: CA(PHC) 101/2013

H.C. Polonnaruwa Case No:
M.C. Hingurakgoda Case No: 18037

1. Douglas Ariyasinghe,
No.1/1, Kesel Kotuwa,
Yodha Ela, Hingurakgoda.

2. R.P. Tikiri Menike
No.18, Kesel Kotuwa,
Yodha Ela, Hlngurakgoda.

Respondents-Petitioners-Appellants
Vs.

1. T.M. Ekanayake
No.18/2, Yodha Ela,
Hingurakgoda.

2. P.R Sunil Premadasa
No.11, Kadabima,
Yodha Ela, Hingurakoda.

Petitioners-Respondents-Respondents

Before : K.K. Wickremasinghe J.
Janak De Silva J.

Counsel : Chathura Galhena with Manoja Gunawardena for the Respondents-Petitioners-Appellants
Athula Perera for 1st and 2nd Petitioners-Respondents-Respondents

Written Submissions tendered on : Respondents-Petitioners-Appellants on 24.07.2018
Petitioners-Respondents-Respondents on 26.07.2018

Argued on : 12.06.2018

Decided on : 04.04.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court Judge of the North Central Province holden in Polonnaruwa dated 09.05.2013.

The Petitioners-Respondents-Respondents (Respondents) instituted proceedings in terms of section 66(1)(b) of the Primary Courts Procedure Act (Act) against the 1st Respondent-Petitioner Appellant (1st Appellant). The learned Magistrate held that the Respondents were entitled to the possession of the land in dispute and directed the pt Appellant to refrain from disturbing the possession of the Respondent.

The Respondents moved by way of revision to the Provincial High Court which dismissed the application and hence this appeal.

The learned counsel for the Appellants submitted that the appeal should be allowed on the following: grounds:

(1) The learned Magistrate erred in exercising the duty vested on the Primary Court to cautiously consider whether there is a breach of peace as alleged under and in terms of section 66(1)(b) of the Act when the action was instituted by private plaint

(2) The learned Magistrate and the High Court Judge erred in deciding that there is a dispossession where the Respondents has not made out any dispossession but only had stated about a disturbance to his possession

(3) The Magistrate has erred in deciding that the Magistrate Court has jurisdiction to hear the matter where the same matter had been referred to Agrarian Services Department and the matter is still pending before the Agrarian Services Department

Breach of Peace

The learned counsel for the Appellants submitted that since the instant proceedings were instituted under section 66(1)(b) of the Act, the learned Magistrate should have cautiously considered whether there is a breach of peace and submitted that the facts do not establish a breach of peace.

An objection on this basis must be taken at the earliest opportunity. An objection to jurisdiction such as that in the present case must by virtue of section 19 of the Judicature Act No. 2 of 1978, be taken as early as possible and the failure to take such objection when the matter was being inquired into must be treated as a waiver on the part of the petitioner. Where a matter is within the plenary jurisdiction of the Court, if no objection is taken, the Court will then have jurisdiction to proceed and make a valid order. [Navaratnasingham vs. Arumugam and another [(1980) 2 Sri. L.R. 1].

The learned counsel for the Respondents submitted that this is not an objection raised before the learned Magistrate and as such it cannot be raised now. The record indicates that this was a matter raised before both the Magistrates Court and High Court and as such I hold that it is open to the Appellants to urge this issue before this Court. I am also of the view that if the Respondents are successful on this issue it is a ground on which the learned High Court Judge could have exercised revisionary jurisdiction as it goes to the legality of the impugned order of the learned Magistrate.

The learned counsel for the Appellant relied on Velupillai and others vs. Sivanathan [(1993) 1 Sri.LR. 123] where Ismail J. explained the difference between proceedings instituted under section 66(1)(a) and (b) of the Act as follows:

"Under section 66 (1)(a) of the Primary Courts Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute. The police officer is empowered to file the information if there is a dispute affecting land and a breach of the peace is threatened or likely. The Magistrate is not put on inquiry as to whether a breach of the peace is threatened or likely. In terms of section 66 (2) the Court is vested with jurisdiction to inquire into and make a determination on the dispute regarding which information is filed either under section 66 (1)(a) or 66 (1)(b).

The importance of the learned Magistrate satisfying himself of whether a breach of the peace is threatened or likely was reiterated by Ismail J. in Punchi Nona vs. Padumasena and others [(1994) 2 Sri.LR. 117] as follows:

"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."

I am in respectful agreement with the legal position adumbrated above. There is also the question whether it is incumbent on the learned Magistrate to specifically record that he is satisfied that a breach of the peace is threatened or likely.

In Navaratnasingham vs. Arumugam (supra) an objection was taken that it was necessary for a Magistrate to make an order in writing stating his grounds for being satisfied that a breach of the peace was likely.

The court rejected this contention and held as follows:

" ... all that is necessary is that the Magistrate himself must be satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section." (emphasis added)

This court in Wimalasekara and another vs. Ubayasena [C.A. (PHC) 161/98; C.A.M. 21.06.2010] held that the failure on the part of the learned Magistrate to specifically state that he is satisfied that a breach of peace was likely does not deprive him of the jurisdiction under section 66(1)(b) of the Act. The mere fact that he decided to issue notice results in the application of the presumption in section 114(d) of the Evidence Ordinance which is to the effect that court may presume that judicial acts have been regularly performed.

The question is whether the above principles have been fulfilled in the instant case.

The learned Magistrate has in issuing notice on 13.12.2011 held that he is satisfied that a breach of the peace is threatened or likely. Hence the threshold question on jurisdiction has been addressed by the learned Magistrate. The learned counsel for the Appellants submits that this was an objection that was raised by them in the affidavits and therefore the learned Magistrate should have dealt with this objection in the final order which he has failed to do. The learned counsel for the Respondents countered that what is required in terms of section 66(1)(b) of the Act is to establish breach of peace at the time of issuing of notices and not thereafter.

I am unable to accept that as the correct position in law. Notice is issued based only on the affidavit of the party instituting proceedings. The issuing of notice after being satisfied that the breach of the peace is threatened or likely based on the affidavit of a party in proceedings instituted under section 66(1)(b) of the Act does not preclude the learned Magistrate from inquiring in to the matter of the threat to the breach of the peace. The learned Magistrate can consider all the relevant material after all parties file affidavits and counter affidavits before coming to a final conclusion on this issue [Jayasinghe vs. Paranawithana CA(PHC)184/2005; C.A.M. 16.05.2017].

However, the mere fact that he has not addressed the objection in his final order does not mean that the Magistrates Court is devoid of jurisdiction. The question of the breach of peace was addressed when notice was issued. The fact that he made a final order directing the Appellants not to disturb the possession of the Respondents indicates that he sees no reason to change his earlier opinion and here again the presumption in section 114(d) of the Evidence Ordinance is engaged.

Accordingly, I reject the first ground of appeal urged by the Appellant. In any event, the learned High Court Judge has correctly concluded that there was ample evidence before the Magistrate to come to the conclusion that there was a breach of the peace between parties.

Dispossession

The learned counsel for the Appellant submits that the Respondents did not at any point of time claim to have been dispossessed and as such the finding of the learned Magistrate that the Respondents have been dispossessed within a period of two months prior to the institution of proceedings is erroneous. However, the learned Magistrate has concluded that the Respondents are entitled to the possession of the land in dispute. Accordingly, he was entitled to make order directing the Appellants not to disturb the possession of the Respondents. Therefore, I reject the second ground of appeal.

Agrarian Services Department

The learned counsel for the Appellants finally submitted that since there is a matter pending before the Agrarian Services Department, the learned Magistrate did not have jurisdiction to deal with the instant matter. He relied on the decision in Mansoor and another vs. O.I.C. Avissawella Police and another [(1991) 2 Sri.LR. 75] where it was held that when a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that tribunal and not to others.

However, the issue in Mansoor and another vs. O.I.C. Avissawella Police and another (supra) was the eviction of a tenant cultivator from a paddy land. The issue in the instant case is not one dealing with the rights of a tenant cultivator. It is about the disturbance of possession of a paddy land. Hence the ratio in Mansoor and another vs. O.I.C. Avissawella Police and another (supra) has no application. In Atigala and another vs. Piyasena [CA(PHC) 133/2007; C.A.M. 10.06.2016] this Court held that a dispute pertaining to the possession of a paddy land can proceed under Part VII of the Act. Hence, I reject the third ground of appeal.

For the foregoing reasons, I see no reason to interfere with the order of the learned High Court Judge of the North Central Province holden in Polonnaruwa dated 09.05.2013.

The appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

MALWALAGE PIYASEELI VS M ELBERT SINGHO

MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 155/2007

HIGH COURT RATNAPURA CASE NO: 126/2006/RA

RATNAPURA MAGISTRATE'S COURT CASE NO: 15117

Malwalage Piyaseeli,

Welihindahenyaya,

Lellopitiya.

Plaintiff-Respondent-Appellant

Vs.

1. Malwalage Elbert Singho,

2. Wijesinghe Mudiyanselage

Wimalawathie Perera,

3. Malwalage Sajeewaka Gunasinghe,

All of Welihindahenyaya,

Lellopitiya.

Defendant-Petitioner-Respondents

Before : K.K. Wickramasinghe, J.

Mahinda Samayawardhena, J.

Counsel : Ranga Dayananda for the Appellant.

Shaminda Silva for the Respondents.

Decided on : 18.07.2019

Mahinda Samayawardhena, J.

The Appellant has filed this appeal against the order of the High Court Judge of Ratnapura dated 23.10.2007 whereby the order of the learned Magistrate of Ratnapura dated 11.07.2006 delivered in case No. 15117 was set aside.

Case No. 15117 was filed by the Appellant under section 73 of the Primary Courts' Procedure Act, No. 44 of 1979, seeking to punish the parties mentioned therein for violation of the order made by the learned Magistrate in Case No. 17898 filed under section 66 of the Primary Courts' Procedure Act. By that order dated 05.03.1997 the learned Magistrate has under section 68 held that the Appellant is entitled to possession of the land.

Thereafter the Appellant has filed Case No. 14579 in the District Court seeking declaration of title to the land. The Defendants to that case also in their answer have sought a declaration of title, possession and ejectment of the Appellant from the land. That case has been dismissed on 30.08.2002 on a preliminary issue regarding the maintainability of the action in view of the cancellation of the Permit granted to the Appellant by the State.

It is against that background, the Appellant has filed a separate action on violation of the aforementioned section 66 order delivered in favour of the Appellant.

The learned High Court Judge has set aside the order of the learned Magistrate on two grounds:

(a) With the dismissal of the civil action, section 66 order automatically ceases to operate; and

(b) In the manner the complaint has been presented, Case No. 15117 cannot be maintained.

Filing or dismissal of a civil action, in my view, does not, ipso facto, invalidate the order made under section 68 of the Primary Courts' Procedure Act. According to section 68(2), order under section 68(1) is valid "until such person or persons (in favour of whom order was made) are evicted there from under an order or decree of a competent court". Here the District Court did not make an order evicting the Appellant from the land. The District Court dismissed the action on the basis that the land in suit is a State land. The District Court did not say that the Defendants in that case were entitled to possession and ownership of the land. Hence section 66 order still prevails. If the High Court Judge's view is accepted, breach of the peace is inevitable as the District Court did not make an order in regard to possession and ownership of the land in favour of either party.

The second ground relates to the manner in which section 73 has been invoked. Such an objection has not been taken either before the Magistrate's Court or before the High Court. If the High Court Judge takes the view that the manner in which section 73 has been invoked is wrong, he must tell how it shall be invoked correctly.

The order of the High Court is set aside and the order of the Magistrate's Court is restored.

This does not prevent the accused to take up any other objection/defence at the inquiry.

Appeal is allowed. No costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.

I agree.

Judge of the Court of Appeal 6

KANTHI MUNASINGHE VS K.D. PRABHATH KUMARA

HON MAHINDA SAMAYAWARDHENA, J

CA CASE NO: CA (PHC) 47/2010

HC HAMBANTOTA CASE NO: HCRA 8/2009 (Rev)
MC TISSAMAHARAMA CASE NO: 88886

Kanthi Munasinghe,
Land No.890,
Kuda Gammana 09,
New Town, Weerawila.

And Two Others

Petitioner-Respondent-Appellants
Vs.

K.D. Prabhath Kumara,
Land No.876,
Kuda Gammana 09,
New Town, Weerawila.

Respondent-Petitioner Respondent

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Lakshman Perera, P.C., with Anjali Amarasinghe for the Appellant.
Nimal Muthukumarana for the Respondent.

Decided on : 18.07.2019

Mahinda Samayawardhena, J.

The Petitioners filed this application in the Magistrate's Court on 30.06.2008 against the Respondent under section 66(1)(b) of the Primary Courts' Procedure Act, No. 44 of 1979, seeking restoration of possession of the land in suit in terms of section 68(3) of the Act on the basis that they were forcibly dispossessed from the land by the Respondent within two months prior to the filing of the application. The Respondent in his counter affidavit resisted the application of the Petitioners on the basis that the dispossession took place outside the period of two months. After inquiry, the learned Magistrate by order dated 10.02.2009 held with the Petitioners. Being aggrieved by that order, the Respondent went before the High Court and the High Court by Judgment dated 23.03.2010 set aside the order of the Magistrate's Court. This appeal by the Petitioners is against the Judgment of the High Court.

The High Court basically set aside the Magistrate's Court order on the basis that the disputed land is a paddy land and also a state land, and therefore the Magistrate's Court has no jurisdiction to inquire into this dispute under section 66 of the Primary Courts' Procedure Act. The High Court has taken up the position that the dispute shall be dealt with under the provisions of the Agrarian Development Act, No. 46 of 2000. I have no hesitation to state that the learned High Court Judge has manifestly misdirected himself in law on jurisdiction.

It is erroneous to conclude that invocation of section 66 of the Primary Courts' Procedure Act can only be done provided the dispute relates to a private land as opposed to a state land. If the dispute is a land dispute as defined in section 75 of the Act, as a result of which there is an imminent threat to the breach of the peace, irrespective of whether the land is a state land or a private land, the Court is clothed with jurisdiction to make a provisional order in accordance with law with the sole objective of preventing the breach of the peace until the substantive rights of the parties are decided by the District Court.

The finding of the learned High Court Judge that, as the dispute relates to a paddy land, the dispute shall be resolved under the mechanism provided in the Agrarian Development Act, No. 46 of 2000, as amended, and not under section 66 of the Primary Courts' Procedure Act, is also bad in law.

Mansoor v. OIC Avissawella [1991] 2 Sri LR 75, which the learned High Court Judge heavily relied on is based on the well- established general principle that: "Where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that tribunal and not to others."

The Agrarian Development Act is a special Act passed, as the long title of the Act suggests, predominantly, to "provide for matters relating to landlords and tenant cultivators of paddy lands". Hence the jurisdiction of the ordinary courts to entertain and determine such disputes is ousted. Section 98 of the Agrarian Development Act enacts:

The provisions of this Act shall have effect notwithstanding anything to the contrary in any other written law, and accordingly, in the event of any conflict or inconsistency between the provisions of this Act and such other law, the provisions of this Act shall prevail.

However, Agrarian Development Act does not oust the jurisdiction of the Magistrates' Courts exercisable under section 66 of the Primary Courts Procedure Act, merely because the dispute relates to a paddy land. For the former Act to be applicable, and the jurisdiction of the Magistrate's Court is to be ousted, there shall be a landlord and tenant cultivator relationship between the two contending parties.

Further, one party in a section 66 application can claim to be a tenant cultivator. It is a mistake to think that the moment such a claim is made, the jurisdiction of the Magistrate's Court is instantly ousted. The jurisdiction of the Magistrate's Court is ousted, if, and only if, the two contesting parties in the first place accept a relationship of landlord and tenant cultivator between them. If one party denies it, the Court has the jurisdiction to determine the matter. (Hearth v. Peter [1989] 2 Sri LR 325)

I might also add that merely because one party to the section 66 application is a tenant cultivator, the Court does not lack jurisdiction, if the disputing party is not his landlord but an outsider.

For completeness let me also state that in case the Court decides that it has no jurisdiction due to the relationship of landlord and tenant cultivator being accepted, still, the Court has inherent jurisdiction to make a suitable order to maintain status quo until the parities seek relief under the provisions of the Agrarian Development Act.

Learned counsel for the Respondent in his short written submission states that the Petitioners instituted the action after two months of the alleged dispossession. This appears to be correct. The Petitioners filed the case in the Magistrate's Court on 30.06.2008. According to the first complaint made to the police by the first Petitioner on 28.04.2008 (found at page 78 of the Brief), the Petitioners have been forcibly dispossessed from the land by the Respondent on that day, i.e. 28.04.2008. In that complaint the first Petitioner has stated that the Respondent together with about 20 people was ploughing the paddy field which she had been cultivating since 1992. This complaint has completely escaped the attention of the learned Magistrate. As seen from the complaint of the first Petitioner made to the police on 07.05.2008 (found at page 60 of the Brief), the Respondent has continued ploughing on 07.05.2008 as well. Thereafter, as seen from the next complaint of the first Petitioner made to the police on 21.05.2008 (found at page 70 of the Brief), the Respondent has sowed paddy in the paddy land on 20.05.2008. It is very unfortunate that the police did not report the matter to the Magistrate's Court under section 66 of the Primary Courts'

Procedure Act soon after the first complaint was made or at any time thereafter. The Petitioners have filed the action under section 66(1)(b) as a private plaint two months after the said dispossession. Hence no relief under section 68(3) can be granted in favour of the Petitioners.

Although I do not agree with the reasoning of the High Court Judge, I am compelled to agree with the conclusion.

Appeal is dismissed without costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

SINNAPURAGE HARRISON VS. S. DEEPA RANJANI

HON JANAK DE SILVA, J.

Case No: CA(PHC) 196/2014
P.H.C. Ratnapura
Case No: HCR/RA 36/2010

In the matter of an application under, and in terms of, Article 154P (6) read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Sinnapurage Deepa Ranjani,
Wewelwatta,
Ratnapura.

Plaintiff

Vs.

Sinnapurage Harrison,
Wewelwatta,
Ratnapura.

Defendant

AND
Sinnapurage Harrison,
Wewelwatta,
Ratnapura.

Defendant-Petitioner

Vs.
Sinnapurage Deepa Ranjani,
Wewelwatta,
Ratnapura.

Plaintiff-Respondent

AND NOW BETWEEN

Sinnapurage Harrison,
Wewelwatta,
Ratnapura.

Defendant-Petitioner-Appellant

Vs.

Sinnapurage Deepa Ranjani,
Wewelwatta,
Ratnapura.

Plaintiff-Respondent-Respondent

Before: K.K. Wickremasinghe J.
JanakDe Silva J.

Counsel: Thilini Aluthnuwara for the Defendant-Petitioner-Appellant
Nuwan Bopage with Lahiru Welgama for the Plaintiff-Respondent-Respondent

Written Submissions tendered on: Defendant-Petitioner-Appellant on 28.12.2018
Plaintiff-Respondent-Respondent on 28.12.2018

Argued on: 14.11.2018

Decided on: 08.03.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court Judge of the Sabaragamuwa Province holden in Ratnapura dated 13.11.2014.

This appeal arises from proceedings instituted under section 66(1)(b) of the Primary Courts Procedure Act (Act) by the Plaintiff-Respondent-Respondent (Respondent) in the Magistrates Court of Ratnapura. After inquiry the learned Magistrate by order dated 23.04.2010 gave possession of the land in dispute to the Respondent in terms of section 68(1) of the Act. The Defendant-Petitioner-Appellant (Appellant) filed a revision application in the High Court of the Sabaragamuwa Province holden in Ratnapura. This application was dismissed and hence this appeal.

The Appellant sought to assail the order of the learned High Court Judge on the following grounds:

(a) The Respondent failed to disclose the fact that she was in possession of part of the land named lot 72 depicted in the Grama Sevaka Report

(b) The learned Magistrate failed to carry out a proper and independent site inspection

(c) The learned Magistrate failed to consider whether there was an actual breach of peace or likelihood of a breach of peace

(d) The learned Magistrate failed to explore a settlement

In this appeal this Court must consider the correctness of the order of the High Court. It is trite law that existence of exceptional circumstances is the process by which the court selects the cases in respect of which the extraordinary method of rectification should be adopted, if such a selection process is not there revisionary jurisdiction of this court will become a gateway of every litigant to make a second appeal in the garb of a Revision Application or to make an appeal in situations where the legislature has not given a right of appeal [Amaratunga J. in Dharmaratne and another v. Palm Paradise Cabanas Ltd. and another [(2003) 3 Sri L.R. 24 at 30].

In Siripala v. Lanerolle and another [(2012) 1 Sri L.R. 105] Sarath De Abrew J. held that revision would lie if-

(1) aggrieved party has no other remedy

(ii) if there is, then revision would be available if special circumstances could be shown to warrant it

(iii) Party must come to court with clean hands and should not have contributed to the current situation.

(iv) he should have complied with the law at that time

(v) acts should have prejudiced his substantial rights

(vi) acts should have occasioned a failure of justice.

I will now consider whether the grounds urged by the Appellant comes within these principles.

Failure to Disclose that Respondent was in possession of part of the land named lot 72 depicted in the Grama Sevaka Report

The learned counsel for the Appellant submitted that the Respondent had fraudulently refrained from disclosing the fact that she was in possession of part of the land identified as lot 72 in the Grama Sevaka report.

The learned Magistrate has after a careful examination of the evidence held that the land in dispute is the portion marked 'E' in the Grama Sevaka report. He has further concluded that at the time of filing of information it was the Respondent who was in possession of the land in dispute.

Sharvananda J. (as he was then) in Ramalingam v. Thangarajah [(1982) 2 Sri L.R. 693 at 698] held:

"In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is. Actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof 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 proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

The learned Magistrate has correctly applied the principles enunciated above to the facts of the instant case and correctly concluded that it was the Respondent who was in possession of the land in dispute on the date that proceedings were instituted under section 66(1)(b) of the Act.

The learned counsel for the Appellant submitted that the learned Magistrate had erred in failing to hold an independent site inspection as part of the inquiry before the Magistrates Court.

In the instant case the learned Magistrate has obtained two site inspection reports one from the Wewalwatte Police and the other from the Bambarakotuwa Garma Sevaka. While acknowledging that certain cases may show that public officers have acted partially towards one party to the dispute there is no evidence or allegations of such conduct on the part of the Wewalwatte Policeor the Bambarakotuwa Garma Sevaka. Accordingly, I see no merit in this submission of the Appellant.

Breach of Peace

The learned counsel for the Appellant submitted that in Velupillai and others v. Sivanathan [(1993) 1 Sri L.R. 123] Ismail. J. held that 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 Punchi Nona v. Padumasena and others [(1994) 2 Sri L.R. 117] Ismail J. further held that 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. The learned counsel for the Appellant submitted that the learned Magistrate failed to do so.

The learned Magistrate has clearly stated that Court was satisfied at the outset that there was a threat to breach of peace. Accordingly, I have no hesitation in rejecting this ground urged by the Appellant.

Failure to Explore a Settlement

The learned counsel for the Appellant submitted that the learned Magistrate had failed to explore a settlement between parties in terms of section 66(6) of the Act. The learned counsel for the Appellant relied on the decision in Ali v. Abdeen [(2001) 1 Sri L.R. 413] where Gunawardena J. held that 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 and 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. It was further held that 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. In Jayantha Gunasekera v. Jayatissa Gunasekera and others [(2011) 1 Sri.L.R. 284] a divisional bench of this Court held that 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. The objection in terms of section 66(6) of the Act was not raised before the learned Magistrate. Hence it cannot be allowed to be raised at this stage.

In any event, the journal entry of 22 .01.2010 (Appeal Brief page 153) reflects that the learned Magistrate had made a note that there is no settlement between parties. I therefore reject the submission of the Appellant. Accordingly, the learned High Court Judge correctly concluded that the Appellant had not established exceptional circumstances.

For the foregoing reasons, I see no reason to interfere with the order of the learned High Court Judge of the Sabaragamuwa Province holden in Ratnapura dated 13.11.2014. The appeal is dismissed. I make no order as to costs in the circumstances of the case.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

M.S. ATIGALA VS. GAMHEWAGE PIYASENA

HON. L. T. B. DEHIDENIYA, J

Court of Appeal Case No.CA (PHC) 133/2007

High Court of Badulla Case No.80/2006

Magistrate Court Bandarawela Case No. 68297

1. M.S. Atigala

2. J. A. Senavirathne

No.162, Heel Oya,

Egodagama

First Party - Respondents - Respondents - Appellants

Gamhewage Piyasena,

Ampitigoda, Heel Oya,

Bandarawela.

Second Party Respondent - Petitioner Respondent

Before : Malinie Gunarathne

L. T. B. Dehideniya J.

Counsel : Athula Perera with Chaturani de Silva and Harsha de Silva for the First Party - Respondents - Respondents - Appellants.

Priyantha Abeyrathne for the Second Party Respondent - Petitioner Respondent.

Argued on : 18.01.2016

Decided on : 10.06.2016

L. T. B. Dehideniya J.

This is an appeal from an order of the Learned High Court Judge of Badulla on a revision application filed against the order of the learned Magistrate of Bandarawela. The facts of the case are as follows. The Bandarawela police filed information in the Magistrate Court under section 66 of the Primary Court Procedure Act stating that a breach of the peace is threatened or likely due to a land dispute arisen between the First Party Respondents - Respondents - Appellants (hereinafter called and referred to as the Appellants) and the Second Party Respondent - Petitioner Respondent (hereinafter called and referred to as the Respondent). The Appellants case is that they were in possession of the paddy field in question and it was prepared for potato cultivation. The vegetable beds were prepared and fertilizer was applied to plant potato seeds. On 23.01.2006 the Respondent came with several others and disturbed his possession and started preparing the land for paddy cultivation. They state that the 2nd Appellant is the owner of the land and the 1st Appellant is cultivating the land with him. The Respondent stated that his father G.M. Madiris was Cultivating the paddy field for about 50 years and after his demise, he was cultivating. The learned Magistrate, after inquiry, pronounced the order in favour of the Appellants. Being aggrieved by the said order of the learned Magistrate, the Respondent presented a revision application to the High Court of Badulla where the Learned High Court Judge set aside the order of the learned Magistrate and pronounced the order in favour the Respondent. This appeal is from that order.

The Appellants raised an objection that under section 66 of the Primary Court Procedure Act the Primary Court / Magistrate Court has no jurisdiction hear and determine a dispute relates to a paddy land. The learned Counsel for the Appellants cited the case of Mansoor and another v. O. I. C. Avissawella Police and another [1991] 2 Sri L R 75. The learned Counsel for the Respondent's view is that whether it is a high land or a paddy land if the dispute leads into a immediate breach of the peace (threatened or likely) the mere fact that the dispute is to be determined undera particular Act does not preclude the Magistrate from making an order under section 66(2) of the Primary Court Procedure Act.

Mansoor v. O. I. C. Awissawella (supra) is a case where the tenant cultivator was evicted from the paddy land by the landlord. In that case S.N. Silva CJ. observed that there is a question in the applicability of the Primary Court Procedure Act when a specific law was enacted to protect the tenant cultivators. His Lordship observed that;

The phrase "dispute affecting land" is interpreted in section 75 of the Primary Courts Procedure Act to include "any dispute as to the right to the possession of any land. ........... or as to the right to cultivate any land or a part of a land. .............. ". Therefore, ordinarily, the right of a tenant cultivator to occupy and cultivate a paddy land would come within the meaning of a "dispute affecting land". However, as noted above, the status and rights of tenant cultivators of paddy lands is the subject matter of specific statutory provisions. In contrast the procedure in the Primary Courts Procedure Act is in the nature of a general provision which applies in relation to every dispute affecting land where a breach of the peace is threatened or likely.

After considering several English authorities, His Lordship held that; It has to be noted that there is specific provision in the Agricultural Lands Law and the Agrarian Services Act which gives a right to a tenant as against the landlord and any other person to use and occupy the paddy land and to secure restoration of possession if he is unlawfully evicted These provisions in the Agricultural Lands Law and the Agrarian Services Act are in the nature of a special right and a remedy for the infringement of that right. Therefore, I hold that the machinery under the Agricultural Lands Law and the Agrarian Services Act is the only one available to a tenant cultivator of paddy land to secure and vindicate his tenurial rights. The general procedure obtaining in Part VII of the Primary Courts Procedure Act with regard to disputes affecting land where a breach of the peace is threatened or likely, is not applicable in such a situation.

The case before us is not on an eviction of a tenant cultivator. The Appellants state that the 2nd Appellant is the owner of the land by deed marked A. According to the Appellants, they are cultivating their own land. Disturbing their possession does not come within the meaning of evicting a tenant cultivator. The Respondent's case is that his father cultivated the paddy land for a long period of time and after his death, the Respondent cultivated. He doesn't explain on what basis his father cultivated the land, whether as the owner or as a tenant cultivator. The affidavit of the Respondent as a whole, gives the impression that he is claiming the land as the owner. His first statement to the police also leads to the same conclusion. He said to the police that his father was the owner, and was cultivating the land, and on his death, his mother became the owner, and on her advice the Respondent started cultivating. As such, there is no eviction of a tenant cultivator by a landlord. This is only a dispute in relation to the possession of a land. The decision in the case of Mansoor v. O. I. C. Awissawella Police has no application to this case.

This case can proceed under Part VII of the Primary Court Procedure Act. I rule out the objection.

The Appellants' case is that they were in possession of this land. The 2nd Appellant claims that he became the owner of the land by the deed marked A. The title is not a relevant fact in an application under section 66. It is relevant only to prove on what basis he possesses the land. In the present case, the Respondent stated in the statement to the police dated 23.01.2006 that his father G. H. Madiris was the owner but in his affidavit, he is silent on the basis of the possession of him or his predecessor, his father. He states that his father was in possession and with his demise, he entered in to possession. The 2nd Appellant states that he, as the owner, possessed the land. The Appellants has a stronger case than the Respondent.

In response to the First Appellant's complaint to the police that their possession was disturbed by the Respondent on 23rd January 2006, the police made an inquiry on the same day and the Respondent's statement was recorded. In that statement, he has stated that on the demise of his father, his mother advised him to prepare the land for paddy cultivation. This proves that the Respondent was not in possession until his father's death. The next question that has to consider is that whether the Appellants have proved that they were in possession or whether the Respondent proved that his father was in possession for the two months prior to the filing of the information in the Magistrate Court.

After institution of this action, the Respondent made an application ex-parte to the Magistrate Court and obtained an order for the police to re¬ inquire the matter and to record the statements of several persons. Consequences to this order, the police recorded statements and submitted a report to the Magistrate Court. The Respondent is relying on those statements to prove his case. Firstly the Respondent shouldn't have made an application ex-parte after institution of the action. Once the action is instituted, all applications must be made with notice to the opposing party unless the law provided that an application can be made ex-parte. Part VII of the Primary Court Procedure Act does not provide for an application of this nature. It is the inherent power of the Court to do justice that give power to issue an order on this nature. Without giving notice, an application should not have made. Secondly, the Court should not have issued an order without giving a hearing the opposing party. The Appellants were denied the opportunity of tendering the witnesses to the police officer to record statements in his favour. Under these circumstances, there is no evidentiary value of the statements made at the second inquiry.

The parties tendered certain letters issued by several persons in support of their respective cases. These letters were prepared for the purpose of this case. The authors of those letters are not before Court to testify to the veracity of them. Even the witnesses, who submitted affidavits in support, were not subjected to cross examination. The evidentiary value of these documents is very low. The documents issued in the ordinary cause of business have a higher evidentiary value than the documents specially prepared for this case. The document marked as J and produced by the Appellants is a certified extract of the Paddy Land Registry. It is an official document prepared and kept in the custody of the Agrarian Service Centre Bandarawela. This registry is prepared in the ordinary cause of business. Time to time paddy land registry is amended and it is done by the officials after an inquiry. According to the document J, the last amendment was done in 17.11.2004. Thereafter no amendment effected. This document indicates that the 2nd Appellant is the owner cultivator of the land in question, which proves that it was in the 2nd Appellant's possession. The 2nd Appellant has paid the acreage taxes for the disputed land. The receipt marked B is for the years of 2000/2001/2004/2005 paid on 22.08.2003 and the receipt marked C is paid on 09.01.2006. These are also documents 'issued in the ordinary cause of business. The Respondent was trying to say that these documents were prepared for this case by the Appellants, but was unable to submit any evidence to substantiate that proposition. The Respondent's father too had paid taxes for the land, but it was several years prior to the filing of the information under section 66 of the Primary Court Procedure Act. The last payment was in year 2004, but the 2nd Appellant has paid more recently, in the year of 2006 but prior to the dispute being arisen. The possession immediately prior to two months from the date of filing the information is considered in these applications. Therefore the documents support the Appellants case that they were in possession and the Respondent disturbed them.

The Learned High Court Judge's conclusion was based on the documents which were prepared for this case and the veracity was not tested, but the documents prepared and maintained in the ordinary cause of business speak otherwise. Therefore, I cannot agree with the learned High Court Judge's findings. The learned Magistrate has considered the evidence and has come to the correct finding.

Accordingly, I set aside the order of the Learned High Court Judge dated 13.09.2007

The appeal allowed with costs fixed at Rs.15,000/-

Judge of the Court of Appeal

Malinie Gunarathne J.

I agree.

Judge of the Court of Appeal

MOHAMED KAMIL JAID VS SITHY AYESHA RIZVI,

HON P. PADMAN SURASENA J (P/CA)

C A (PHC) APN / 115 / 2015

Provincial High Court of

Central Province (Kandy)

Case No. Rev 93 / 2013

Magistrate's Court Matale

Case No. 9850

In the matter of an application for revision against judgment of Provincial High Court exercising its revisionary jurisdiction.

1. Mohamed Kamil Jaid,

No.17,

Rose Street,

Matale.

2. Mohamed Musin Haniffa,

No. 33/22,

Royal Gardens,

Somasunderam Road,

Matale.

1ST AND 2ND RESPONDENT - PETITIONERS

1. Sithy Ayesha Rizvi,

No. 74/01,

King's Street,

Matale.

PETITIONER - RESPONDENT

Before: P. Padman Surasena J (P/CA)

K K Wickremasinghe J

Counsel; Ikram Mohamed PC with M I M Ramees for the 1st and 2nd Respondent - Petitioners.

Asoka Fernando for the Petitioner - Respondent.

Argued on :2017-10-30

Decided on: 2018 - 05 - 14

JUDGMENT

P Padman Surasena J

The officer in charge of Matale, Police Station had filed an information in the Primary Court of Matale under section 66 (1) of the Primary Courts Procedure Act No. 44 of 1979 (hereinafter referred to as the Act), reporting to the learned Primary Court Judge about an existence of a breach of peace between two parties over a dispute relating to the possession of the shop relevant to the dispute in this case.

1st and 2nd Respondent - Petitioners (hereinafter sometimes called and referred to as the 1st and 2nd Petitioners) and the Petitioner - Respondent (hereinafter sometimes called and referred to as the Respondent) were named respectively as the 1st Party and the 2nd Party. (Two rival parties in the said information).

Learned Primary Court Judge having inquired into the said complaint, by her order dated 2013-06-10, had directed that the Petitioners be restored in possession of the shop in dispute.

Being aggrieved by the said order of the learned Primary Court Judge, the Respondent had filed a revision application in the Provincial High Court of Central Province holden in Kandy, urging the Provincial High Court to revise the order made by the learned Primary Court Judge.

The Provincial High Court, by its order dated 2015-09-23, had decided to revise the said order of the learned Primary Court Judge and directed that the Respondent be restored in possession of the disputed shop.

It is the said order that the Petitioners seek to canvass in this application before this Court.

It would be relevant at this stage to reproduce section 68 (1) of the Primary Courts Procedure Act No. 44 of 1979 to enable this Court to focus on the issues to be decided in this case.

Section. 68

(1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the 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.

It is clear from the above provision that the Primary Court Judge is obliged first to determine as to who was in possession of the land or the part on the date of filing of the information under section 66. There is no doubt that it was the Respondent who was in possession of this shop as at the date of filing of the information.

Once the above determination has been made, learned Primary Court Judge has a second obligation as per section 68 (3). The said provision is as follows.

(3) Where at an inquiry into a dispute relating to the right 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, the second task according to the above provision is to determine whether 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.

Perusal of the statement made on 2012-10-21 by the 1st Petitioner Mohammed Muzim Hannifa, shows clearly that he had not gone to occupation of this shop even though he had obtained the said shop on lease from the 2nd Petitioner. In any case, the said lease had been operative only until 2012 December. In these circumstances, there is no material for the Court to conclude that the 1st Petitioner was in possession of this shop at any time during the period of 2 months prior to filing of the information relevant to this case in the Primary Court.

It is the claim of the Petitioners that the 2nd Petitioner had leased out this shop to the 1st Petitioner. Therefore, the 2nd Petitioner in any case could not have been in possession of this shop.

Thus, Court could be satisfied that no person who had been in possession of the relevant shop has been forcibly dispossessed within a period of two months immediately before the date on which the information was filed in Court under section 66.

It is to be noted that the position of the Respondent is that this shop belongs to her husband who is the brother of the 2nd Petitioner.

In these circumstances, it is the view of this Court that the Petitioners have failed to prove that they were in occupation of this shop and were dispossessed forcibly within a period of 2 months immediately before a date on which the information was filed in the instant case.

Therefore, in terms of the provisions of section 68 of the Act the Respondent is entitled to the possession of this shop.

It is relevant to note as has been held by this Court in the case of Punchi Nona V Padumasena and others! that section 68 (1) of the Act is concerned with the determination as to who was in possession of the land on the date of filing of the information in Court and that 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 02 months next preceding the date on which such information was filed.

Therefore, the conclusion arrived at by the learned High Court Judge in the instant case that the Respondent is entitled to the possession of this shop has to be upheld.

_______________

11994 (2) Sri. L R 117.

The primary object of proceedings under part VII of the Primary Courts Procedure Act is to prevent any breach of peace amongst the parties disputing the claims for possession of lands. The Court when exercising this jurisdiction would take only a preventive action. The order that would be made is of a provisional nature pending final adjudication of rights in a civil Court.

For the foregoing reasons, this Court decides to dismiss this appeal without costs.

Appeal is dismissed without costs.

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

WEERASURIYA ARACHCHILAGE HEEN BANDA

VS.

WEERASURIYA ARACHCHILAGE TIKIRI BANDA - HON. L. T. B. DEHIDENIYA, J

Court of appeal case no. CA/PHC 124/2010

H.C. Kegalla case no.3565/Rev.

Weerasuriya Arachchilage Heen Banda,

Kadupitawatta, Hakahinna.

2nd Party Respondent Appellant

Weerasuriya Arachchilage Karunawathi,

Kadupitawatta, Hakahinna.

Intervenient 3rd Party Respondent Appellant

Weerasuriya Arachchilage Tikiri Banda,

Dandeniya Janapadaya, Hakahinna.

1st Party Petitioner Respondent.

The Officer in Charge,

Police station, Dedigama.

Plaintiff Respondent Respondent

Before : H. C. J. Madawala J.

: L. T. B. Dehideniya J.

Counsel : M.S.A.Shaheed with Mohammed Rafi for the Appellant Respondent.

: Dr.Sunil Cooray for the 1st Party Petitioner Respondent.

Argued on : 14.07.2016

Written submissions filed on : 06.09.2016

Decided on : 31.10.2016

L. T. B. Dehideniya J.

This is an appeal from an order of the learned High Court Judge of Kegalla. The 1st party Petitioner Respondent (the Respondent) made a complaint to the Dedigama police on a land dispute stating that he is in possession of the land called Pittugodellahena and the 2nd Party Respondent Appellant (the 2nd Appellant) is disturbing his possession. the 3rd Intervenient Party Respondent Appellant (the 3rd Appellant) intervened and both 2nd and 3rd Appellants resisted the Respondent's application. The police filed information in the Magistrate Court under section 66 of the Primary Court Procedure Act stating that there is a likelihood of breach of the peace owing to the land dispute. The learned Magistrate after receiving the affidavits, documents and the submissions of the parties determined that the 2nd and the 3rd Appellants were in possession and handed over the possession to them. Being aggrieved by the said order, the Respondent moved in Revision in the High Court of Kegalla where the order of the learned Magistrate was set aside and held that the Respondent was in possession of the land in dispute. 2nd and 3rd Appellants appealed against that order to this Court.

The Appellants argue that the learned High Court Judge has failed to identify the land in dispute properly and therefore the order of the learned High Court Judge is bad in law. The land in dispute is lot nos. 3 and 4 of the final partition plan no. 218/ A made in the partition action no. 18879/P, marked as IP2. Both parties admit that there was a partition action and the said plan was prepared. It is a common ground that one Punchi Appuhamy was in possession of the entire land even after the partition decree. When was Punchi Appuhamy came in to the possession is not admitted but the fact that he was in possession was admitted. The Respondent states that Pun chi Appuhamy being an elderly person and being an uncle of him, he lived with Punchi Appuhamy and with Karunawathi, the 3rd Respondent, he managed the lands. Later Punchi Appuhamy gifted a portion of land to him by deed no. 47 dated 30.09.2002 marked IP4. The land described in this deed as an undivided 2 acres of a land out of 13 acres. Thereafter the Respondent executed a deed of declaration no. 335 dated 30.12.2007 declaring that he became the owner of lot 4 of plan no. 218/A by long and uninterrupted possession. On 3rd May 2008 he gifted the said portion to his daughter by deed of gift no. 179. The Appellants contention is that there is a contradiction in identifying the land. In deed no. 47 undivided portion of the entire land was described. The land described in the schedule of the deed is the subject matter of the partition action 18879/P. In deeds nos. 335 and 179 a divided portion, that is the lot 4 in the partition plan 218/A is described. The Respondent in his deed of declaration has not relied on the deed of gift no. 47 to acquire title, but only on the long and uninterrupted possession. Therefore the difference in the schedules in those deeds does not contradict the identity of the land. In an action under section 66 of the Primary Court Procedure Act the Court is not expected to decide the title to the land. The title deeds are only supporting documents to establish the possession.

The police filed the information in the Magistrate Court on 16.09.2008. Under section 68(1) of the Primary Court Procedure Act Court has to decide who was in possession on the date of filing the information when dispute is in regard to possession. Section 68(1) of the Primary Court Procedure Act reads thus;

68. (1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the 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

If there is a forcible dispossession, the Court has to determine when that dispossession took place and if it was within two months immediately prior to the institution of the action Court has to place him back in possession. The relevant section is 68(3). It reads;

68(3) Where at an inquiry into a dispute relating to the right 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.

In the present case the Appellants argue that the dispute is in possession and there is no dispossession and therefore section 68(1) should apply and the learned High Court Judge has applied the wrong section of law.

The Respondent made a complaint to the police on 03.09.2008 stating that he is in possession of the land in dispute and the Appellants disturbed his possession. The police filed the information under section 66 on 16.09.2008. Even in his affidavit filed in the said case he has taken the same stand. The Appellant's case is that the land was in possession of their father Punchi Appuhamy and on his demise they possessed it.

As I pointed out earlier, it is an admitted fact that Punchi Appuhamy was in possession. On his demise who possessed; is the issue. The Respondent in his complaint to the police has stated that he possessed. This fact was admitted by the 2nd Appellant in his statement to the police dated 16.06.2008 marked 1P7. The Appellant's position taken in that statement is that the Respondent is a rubber tapper and he was asked not to do tapping because he has stolen latex but then the Respondent reacted by saying that "I am the owner of the land and I will not allow you to enter in to the land" and threatened with a club. The Appellant requested the police to get him the land and not to allow the Respondent to come in to the land called Pittugodalla. This statement establishes that the Respondent is in possession of the land and the Appellants were not allowed to enter in to the land at least from 16.06.2008.

It had been held in the case of Ramalingam v. Thangarajah [1992] 2 Sri L R 693 that even a trespasser can claim possession under section 68 of the Primary Court Procedure Act. It had been held that;

Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as- against any interference even by the 'rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

The evidence that was tendered by the Appellants to establish their possession is also not conclusive. Except for the plan and the deed, the other documents were obtained after institution of this action or after the dispute arose. The learned Counsel heavily relies on the second report submitted by the Grama Niladhari to establish possession. This report was submitted to Court on the direction of the learned Primary Court Judge. The court is expected to determine the case on the affidavits and the documents tendered to Court. It has been held in the case of Karunawathi v. Sangakkara [2005] 2 Sri L R 403 that;

(2) There is no pro vision 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 Court cannot rely on the said second report of the Grama Niladhari. The documents are prepared after the dispute. Therefore the second Appellant's own admission that the Respondent is in possession of the disputed land is strong evidence against the Appellants.

The Respondent has established that he was in possession on the date of filing of the information. The Appellants have failed to establish that they were disposed within two months prior to the filing of the information. Therefore, under section 68( 1) of the Primary Court Procedure Act the only determination that the Court can come in to is that the Respondent was in possession of the disputed land.

Though the learned High Court Judge has referred to section 68(3) in his order, his determination regarding the possession is correct. He has held that though there is clear evidence that the Respondent (the petitioner in the High Court revision application) is in possession the learned Magistrate has wrongly decided that the appellants are entitle to possession. We see no reason to interfere with that finding.

Accordingly we dismiss the appeal with costs fixed at Rs.10000/-

Judge of the Court of Appeal

H. C. J. Madawala J.

I agree.

Judge of the Court of Appeal

KOKMADUGE R FERNANDO VS AMARASINGHE ARACHCHIGE CHATHURANGA

HON.A.L. SHIRAN GOONERATNE J.

C.A. Case No: CA/PHC/171/2014

PHC Awissawella Case No: 04/2013 (Rev)

MC Homagama Case No: 21519/B

In the matter of an Application for Revision of the Order dated 14th September 2014 made by the Learned High Court Judge of Avissawella in Case No. PHC/04/2013 under and in terms of Article 138(1) read with Article 154P(6) of the Constitution of the Democratic Socialist Republic of Sri Lanka

Kokmaduge Ramani Fernando,

Petitioner-Respondent-Appellant

-Vs-

1. Amarasinghe Arachchige Chathuranga Niroshan Peiris,

1st Respondent-Respondent¬ Respondent

2. Nissanka Mudiyanselage Dilini Ishara Nissanka,

2nd Respondent-Petitioner¬Respondent

Before : A.L. Shiran Gooneratne J. & Mahinda Samayawardhena J.

Counsel : Rasika Dissanayake for the Petitioner-Respondent-Appellant.

Chathura Galhena for the 1st Respondent-Respondent.

Written Submissions: By the 2nd Respondent-Petitioner-Respondent on 17/09/2018

By the Petitioner-Respondent-Appellant on 06/05/2019

By the 1st Respondent-Respondent-Respondent on 11/06/2019

Argued on : 19/06/2019

Judgment on : 22/07/2019

A.L. Shiran Gooneratne J.

This is an application against the order of the learned High Court Judge of Avissawella dated 07/10/2014.

The Petitioner-Respondent-Appellant (Appellant) instituted proceedings against the 1st and 2nd Respondent-Petitioner-Respondents (Respondents) in terms of Section 66( 1 )(b) of the Primary Courts Procedure Act (Act) in the Magistrates Court of Homagama, by private plaint, claiming possession to the land in dispute. The learned Magistrate by order dated 19/03/2013, held in favour of the Appellant.

The Provincial High Court set aside the said order on the basis that the Appellant had not satisfied that there was a breach of peace or a threat to that effect as alleged, when action was instituted under Section 66( 1 )(b) of the Act.

The Counsel for the Respondent argued that, it was incumbent upon the learned Magistrate to have considered the existence of a breach of peace, and the failure to satisfy himself of the existence of a breach of peace would deprive the learned Magistrate ' of jurisdiction to consider such application. The counter argument by the Counsel for the Respondent is that since the matter in issue concerns jurisdiction, the Appellant should have raised such issue at the first available opportunity and failure to do so would amount to a waiver of such right on the part of the Appellant.

If such objection to jurisdiction has been taken, it would be the duty of the learned Magistrate to come to a judicial pronouncement on the said issue.

In the affidavit filed in the Magistrates Court, the Respondent (paragraph 17), inter alia, has contended that since there was no threat or a likelihood of a breach of peace the Court has no jurisdiction to make a valid order. The counsel for the Respondent has also taken up this position in the written submissions filed of record in the Magistrates Court.

It is observed that in several complaints to the police, marked P6 to P8 and P11 to P12, the Appellant has sought the assistance of the police to inquire into a conditional land transfer of the disputed land to one Chandrapala Perera as security for a loan, which the Appellant states is not an absolute transfer. The said Chandrapala Perera had thereafter, transferred the said land to the 1st Respondent and the 1st Respondent intern has transferred it to the 2nd Respondent. Police observations or -in the sketch pertaining to the said land at pages 85 to 87 of the brief, does· not make any reference to a dispute regarding the said land.

It is also observed that the Appellant has taken contradictory positions regarding the breach of peace between the Appellant and the Respondents regarding the disputed land in the Petition filed in the Magistrates Court (paragraph 16) and in the counter affidavit (paragraph 11 and 14).

"in an information by a private party under sec. 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 satisfied in assuming such special jurisdiction under the circumstances. Failure to so satisfy himself, deprives the judge of the jurisdiction". (Punchi Nona v. Padumasena (1994) 2 SLR 117)

The learned Magistrate in his order dated 19/03/2013, considering the issue whether there is a breach of peace made direct reference to the complaints made to the police regarding a dispute and the failure to carryout investigations into such dispute. It is noted that even at the time of issuing notice on the Respondents or thereafter, the learned Magistrate failed to satisfy himself of a breach of peace or a like hood and therefore the jurisdictional question has not been addressed.

In the circumstances, the question arises as to whether the learned Magistrate was satisfied in terms of Section 66 (1)(b) of the Act, that a breach of the peace prevailed. (Velupillai v. Sivanathan (1993) 1 SLR 123).

"Under Section 66 (1)(a) of the Primary Courts Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute. The police officer is empowered to file the information if there is a dispute affecting land and a breach of the peace is threatened or likely. The Magistrate is not put on inquiry as to whether a breach of the peace is threatened or likely. In terms of Section 66 (2) the Court is vested with jurisdiction to inquire into and make "a determination on the dispute regarding which information is filed either under Section 66 (1)(a) or 66 (1) (b). However, 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. " (Velupillai v. Sivanathan (1993) 1 SLR 123).

Therefore, it is observed that in the instant case the learned Magistrate has not satisfied himself that the breach of the peace is threatened or likely after considering all material filed before Court and failure to do so would deprive the judge of jurisdiction.

Accordingly, I see no reason to interfere with the order made by the learned High Court Judge and accordingly, I affirm the said order.

The Appeal is dismissed.

JUDGE OF THE COURT OF APPEAL

Mahinda Samayawardhena, J.

I agree.

JUDGE OF THE COURT OF APPEAL

JAYASEELI GUNAWEERA VS. PUWANES GUNAWEERA

HON JANAK DE SILVA, J.

Case No. CA(PHC) : 147/2014
P.H.C. Matara Case No. 91/2014 (Rev)
M.C. Matara Case No. 10482

Jayaseeli Gunaweera,
"Rasanjanee Niwasa"
Mahena, Kanda Pahala,
Devinuwara.

Petitioner-Petitioner-Appellant

Vs.

Puwanes Gunaweera,
"Rasanjanee Niwasa"
Mahena, Kanda Pahala,
Devinuwara.

Respondent-Respondent-Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: Parakrama Agalawatta with H. Walpita and S.Watagala for Petitioner-Petitioner-Appellant
D.P. Liyanage with V. Dissanayake and Ravinatha Watakepotha for Respondent-Respondent
Respondent

Decided on: 12.02.2019

Janak De Silva J

This is an appeal against the order of the learned High Court Judge of the Southern Province holden in Matara dated 02.09.2014.

The Petitioner- Petitioner-Appellant (Appellant) filed information in the Magistrates Court of Matara under section 66(1) (b) of the Primary Courts Procedure Act (Act) on 04.03.2014 stating that there is a dispute over the possession of the land morefully set out therein between the Appellant and Respondent-Respondent-Respondent (Respondent) which is likely to cause a breach of peace between parties.

As the information disclosed a dispute between the Appellant and the Respondent that threatened or was likely to lead to a breach of peace, the learned Magistrate directed that a notice be affixed to the disputed corpus inviting any parties interested to appear in court on the date mentioned in the notice and file affidavits setting out their claims. As the Appellant failed to file affidavit the learned Magistrate made order under section 66(8)(b) of the Act that the Appellant is a defaulting party. The application made by the Appellant to purge her default was rejected.

The learned Magistrate having perused the affidavits and documents submitted with them and the written submissions of the parties came to the conclusion that the Respondent was in possession of the land in dispute on the date the information was filed and that the Appellant had failed to establish dispossession within a period of two months prior to information being filed . Accordingly, he made order holding that the Respondent was entitled to the possession of the subject matter. The Appellant made a revision application to the High Court of the Southern Province holden in Matara which was dismissed without issuing notice. Hence this appeal

The Appellant submitted that the judgment of the learned High Court Judge was liable to be set aside on the following two grounds:

(1) The learned High Court Judge erred and/or misdirected himself regarding identification of the subject matter

(2) The learned High Court Judge failed to consider facts in respect of the possession of the Appellant

Identity of Corpus

In an application of this nature it is incumbent on the Magistrate to ascertain the identity of the corpus as section 66(1) of the Act becomes applicable only if there is a dispute between parties affecting land. A Magistrate should evaluate the evidence if there is a dispute regarding identity of the land . [David Apuhamy v. Yassassi Thera (1987) 1 Sri.L.R. 253] .

The Appellant at paragraphs 2 and 8 of her affidavit dated 04.03 .2014 identified the land in dispute as the land described therein which is 30 perches in extent. The learned Magistrate accordingly held that this was the land in dispute. The Appellant submits that the learned Magistrate erred in making this finding as the Appellant had, at paragraph 7 of her affidavit, pleaded that the subject matter is one room of the house possessed by the Appellant. I reject this position as the Appellant had taken contradictory positions in her affidavit and the learned Magistrate cannot be faulted for concluding that the subject matter of the dispute was a land in extent of 30 perches and not a room in the house situated on the said land.

Possession

Sharvananda J. (as he was then) in Ramalingam v. Thongarajah [(1982) 2 Sri.L.R. 693 at 698] held:

"In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is . Actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof 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 proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

The learned Magistrate concluded that the Appellant had in the information filed stated that the Respondent was in possession of the land in dispute on the date information was filed i.e. 04.03.2014 and therefore it was incumbent on her to establish forcible dispossession within two months preceding the date on which information was filed. He held that the Appellant had failed to do so.

In this case both parties have submitted evidence to establish possession of the land in dispute. The learned Magistrate held that the Respondent had established that she was in possession of the said on the date information was filed. I cannot fault the learned Magistrate for arriving at this conclusion. It is further to be noted that the Respondent produced the deed of transfer No.381 dated 25.05.1993 as evidence which establishes that the land in dispute was owned by the Respondent. Sharvananda J. (as he was then) in Ramalingam v. Thangarajah (supra at page 699) held that evidence bearing on title can be considered only when the evidence as to possession is clearly balanced and the presumption of possession which flows from title may tilt the balance in favour of the owner and help in deciding the question of possession.

As the evidence established that the Respondent was in possession of the land in dispute on the date information filed, the learned Magistrate correctly examined the question whether the Appellant had established forcible dispossession within two months prior to the filing of information. He has correctly concluded that the Appellant failed to do so.

Existence of exceptional circumstances is the process by which the court selects the cases in respect of which the extraordinary method of rectification should be adopted, if such a selection process is not there revisionary jurisdiction of this court will become a gateway of every litigant to make a second appeal in the garb of a Revision Application or to make an appeal in situations where the legislature has not given a right of appeal. [Amaratunga J. in Dharmaratne and another v. Palm Paradise Cabanas Ltd. And others (2003) 3 Sri L.R. 24 at 30]. The Appellant failed to adduce any exceptional circumstances warranting the intervention of the High Court.

For the foregoing reasons, I see no reason to interfere with the order of the High Cour Judge of the Southern Province holden in Matara dated 02.09.2014

Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

EXPEDIT CRUIS VS WARNAKULASURIYA RAJ FERNANDO

HON. MAHINDA SAMAYAWARDHENA, J.

CASE NO: CA/PHC/113/2016

HC NEGOMBO CASE NO: HCRA/271/2013
MC NEGOMBO CASE NO: 74778

1. Expedit Cruis,
Paradise Beach Hotel (Pvt) Ltd.,
Luwis Place, Kudapaluwa,
Negombo.

2. Paradise Beach Hotel (Pvt) Ltd.,
Luwis Place, Kudapaluwa,
Negombo.

Respondent-Petitioner-Appellant
Vs.

Warnakulasuriya Raj Fernando,
No. 295, Luwis Place,
Kudapaluwa, Negombo.

Petitioner-Respondent-Respondent

Before : A.L. Shiran Gooneratne, J.
Mahinda Samayawardhena, J.

Counsel : M.U.M. Ali Sabri, P.C., with Nuwan Bopage and Samhon Munzir for the Respondent- Petitioner-Appellant. Buddhika Gamage for the Petitioner- Respondent-Respondent.

Argued on : 23.10.2019

Decided on : 14.11.2019

Mahinda Samayawardhena, J.

The petitioner (Raj Fernando) filed this application in the Magistrate's Court of Negombo against the respondent (Paradise Beach Hotel) under section 66(1)(b) of the Primary Courts' Procedure Act seeking a declaration that he is entitled to use the road depicted as Lot 4 in Plan marked P1, and an order to remove all the obstacles placed by the respondent in the use of that road by the petitioner. The respondent denied any such right of way. After inquiry concluded by way of written submissions, the learned Magistrate granted the reliefs sought for by the petitioner, and that order was later affirmed by the High Court. This appeal by the respondent is from that order of the High Court.

When an application under section 66 is filed, a Magistrate can largely make two orders. One is under section 68, which relates to possession of any land. The other is under section 69, which relates to any right to any land other than the right to possession. The key word under section 68 is "possession" whereas the key word under section 69 is "entitlement".

A dispute relating to a right of way falls under section 69 where the party who asserts such right shall establish that he is entitled to that right.

However, this does not mean that (a) he shall prove his entitlement as in a civil case filed before the District Court, and (b) that he can come before the Magistrate's Court long after the alleged disturbance or denial of the exercise of his right.

Whether under section 68 or 69, the inquiry before the Magistrate's Court cannot be converted to a civil trial; and the jurisdiction of the Magistrate cannot go beyond the objective to be achieved by this special piece of legislation, which is to make a provisional order in accordance with law, to prevent the breach of the peace, until the substantive rights of the parties are decided by a competent civil Court.

In response to what has been stated by the petitioner in his first information to Court1, the position taken up by the respondent in his affidavit dated 10.12.2012 is that, when he purchased the land by Deeds in 2011, there was already a wall, and there was

________________
1 Vide the affidavit of the petitioner dated 23.10.2012 at pages 52-55 of the brief.

no road which he obstructed.2 At paragraph 10 of that affidavit3 the respondent has stated that the petitioner broke a part of that wall on 28.09.2011 and thereafter he complained it to the police and the broken part of the wall was reconstructed.4

In response to paragraphs 10-12 of the respondent's said affidavit, the petitioner in paragraph 6 of his affidavit dated 28.01.20135 has stated that, although the respondent in November made a complaint against him for falling over a portion of this wall constructed across the road, that dispute was settled on the promise that he (the petitioner) would be given an alternative road along the northern and eastern boundaries of the land, but such an alternative road has not been given to him so far.

That means, admittedly, this is a stale dispute, and not a new one as the petitioner has tried to portray in his first information filed before the Magistrate's Court. By the respondent's complaint dated 28.09.20116, which has not been denied by the petitioner in the said affidavit, it is abundantly clear that the wall across the alleged road had been there at least by September 2011. The case has been filed by the petitioner under section 66 as a private plaint on 23.10.2012, which is, more than one year after the dispute.

____________
² Vide pages 83-85 of the brief.
³ Vide page 84 of the brief.
⁴ Vide police complaints at pages 102-105 of the brief.
⁵ Vide pages 61-62 of the brief.
⁶ Vide page 102-103 of the brief.

Such disputes, in my view, cannot be decided by the Magistrate's Court under section 66 of the Primary Courts' Procedure Act. The petitioner should have filed the case more than one year after the dispute, not in the Magistrate's Court, but in the District Court.

This conclusion of mine shall not be taken to mean that a party who seeks relief under section 69 in relation to any right other than possession also shall come within two months of denial of the right. But he shall, in my view, come within a reasonable time. What is reasonable time shall be decided in the facts and circumstances of each individual case. In the facts of this case, the petitioner has not come within a reasonable time.

For the aforesaid reasons, I take the view that the learned Magistrate did not have jurisdiction to hear and determine the matter.

In the result, I set aside the Judgments of both the Magistrate's Court and the High Court and allow the appeal, but without costs. The petitioner's application in the Magistrate's Court shall stand dismissed.

Judge of the Court of Appeal

A.L. Shiran Gooneratne, J.
I agree.

Judge of the Court of Appeal

UMAGILIYAGE RASIKA CHAMINDA VS. LELIO ORSETTI

HON. L. T .B. DEHIDENIYA, J

Court of Appeal case no. CA/ PHC/APN58/2015
H. C. Galle case no. 34/13
M. C. Galle case no. 4216/13

In the matter of an application for Revision in terms of Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka

1. Lelio Orsetti,
No. 14, Flower Garden Hotel,
Welledewala Road, Unawatuna, Galla.
VIA. S. Sandera 32,
55100 Lucca,
Italy. (Permanent address)

2. Kathiragamalingam Sasidaran,
No. 14, Welledewala Road, Unawatuna,
Galla.
Petitioners

Vs.

1. Umagiliyage Rasika Chaminda,
Bodhiraja Mawatha, Unawatuna, Galla.

2. Nawadawa Withanage Gnanalatha,
Bodhiraja Mawatha, Unawatuna, Galla.

Respondents.

And

1. Lelio Orsetti,
No. 14, Flower Garden Hotel,
Welledewala Road, Unawatuna, Galla.
VIA. S. Sandera 32,
55100 Lucca, Italy. (Permanent address)

2. Kathiragamalingam Sasidaran,

No. 14, Welledewala Road,
Unawatuna, Galla.

Petitioner Petitioners

Vs.

1. Umagiliyage Rasika Chaminda,
Bodhiraja Mawatha,
Unawatuna, Galla.

2. Nawadawa Withanage Gnanalatha,
Bodhiraja Mawatha,
Unawatuna, Galla.

Respondent Respondents.

And Now

1. Umagiliyage Rasika Chaminda,
Bodhiraja Mawatha,
Unawatuna, Galla.

2. Nawadawa Withanage Gnanalatha,
Bodhiraja Mawatha,
Unawatuna, Galla.

Respondent Respondent Petitioners.

Vs.

1. Lelio Orsetti,
No. 14, Flower Garden Hotel,
Welledewala Road,
Unawatuna, Galla.
VIA. S. Sandera 32,
55100 Lucca,
Italy. (Permanent address)

2. Kathiragamalingam Sasidaran,
No. 14, Welledewala Road, Unawatuna,
Galla.

Petitioner Petitioner Respondents

Before : P.R.Walgama J.
L.T.B. Dehideniya J.

Counsel : Shantha Jayawardane with Camara Nanayakkara for the Respondent Respondent Petitioners.
W. Dayarathne PC with R.Jayawardane for the Petitioner Petitioner Respondent.

Argued on : 04.03.2016

Written submissions filed on : 19.05.2016

Decided on : 09.12.2016

L. T .B. Dehideniya J.

This is a revision application filed against an order of the learned High Court Judge of Galle.

The 1st and 2nd Petitioner Petitioner Respondents (the 1st and 2nd Respondents), as a private party, filed information in the Magistrate Court Galle under section 66(1)(b) of the Primary Court Procedure Act indicating that a land dispute threatening breach of the peace has arisen. The Respondent's contention is that the land in dispute called Thibbatukanaththawatta with the house in it was purchased by the 2nd Respondent and was transferred to a company owned by the 1st Respondent. Thereafter the land and the house were developed by the 1st Respondent. The 1st Respondent was in possession of the land and the house and the 2nd Respondent was assigned to look after the house. On 22.02.2013 the 1st Respondent has come to Sri Lanka and found that the Respondent Respondent Petitioner (the Petitioner) was in occupation of the land and the house. The Respondents filed this action in the Magistrate Court of 20.03.2013 under section 66(1)(b) of the Primary Court Procedure Act.

The Petitioners contention is that they have not sold the land called Mahamesthrigawatta and house where they were residing. Their side of the case is that they were residing in the said house for about fifty years. The electricity and water connections were obtained by them. They are not in possession of a land called Thibbatukanaththawatta but they are in Mahamesthrigawatta.

The learned Magistrate after filing the affidavits, counter affidavits, documents and written submissions held that the date of dispossession has not established and dismissed the application. Being moved in revision in the High Court of Galle, the order of the learned Magistrate was set aside and held with the Respondents. This revision application is from the said order of the learned High Court Judge.

Under the part VII of the Primary Court Procedure Act, the title to the land is not the deciding factor. Section 68 of the Act provides;

68(1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the 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

(2) An order under subsection (1) shall declare anyone 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 there from under an order or decree of a competent court, and prohibit all disturbance of such possession otherwise than under the authority of such an order or decree.

(3) Where at an inquiry into a dispute relating to the right 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.

(4) An order under subsection (1) may contain in addition to the declaration and prohibition referred to in subsection (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.

In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VIL of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66 but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is. Actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entities to possession of the land or part thereof 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 proceeding the date on which the information was filed under section 66. The effect of this sub -section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

In the present case the Respondents alleged that they were dispossessed by the Petitioner. On the date of filing of the information, the disputed land was in the possession of the Petitioner. It was an undisputed fact. The Respondents to regain the possession, they must have established that the dispossession took place with two months immediately prior to the date of filing of the information. If the dispossession is not proved, the party who was in possession, the Petitioners, becomes entitle to posses.

The burden of proving the fact that the dispossession took place within the two months prior to the filing of the information is on the Respondents. Under section 101 of the Evidence Ordinance, "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist."

The Respondents when they were dispossessed. The 1st Respondent in not residing in the country and the 2nd Respondent is not residing in the disputed house. What the 1st Respondent knows is that when he came to Sri Lanka on 22.02.2013, he has been dispossessed by the Petitioners. In paragraph 19 of the affidavit of the 1st and 2nd Respondents dated 08.03.2013 stated that the 2nd Respondent visited the house "about one week prior to 23.02.2013". This statement is the only evidence presented to Court to establish that they were in possession till 15.02.2013. The date, 23rd February is the date where the 1st Respondent came to the country, but the date he visited the house is "about one week back" from that date. The date he visited the house is not definite. Under section 68(3) of the Act, the date of dispossession is very material. The date cannot be established by a loose and uncertain statement such as "about one week", it has to be a specific and certain.

The 1st Respondent, after coming to Sri Lanka and visiting the disputed premises, made a complaint to the police on the same date. The said complainant is marked and produced as 'P5'. What the 1st Respondent has said to the police is that the 1st Respondent has locked the premises and left the country but when came back, the Petitioners are occupied the premises. This statement is silent on the involvement of the 2nd Respondent. If the 2nd Respondent was in charge of the premises, the 1st Respondent would have reveled his name to the police and if so, it would have given some weight to the statement of the 2nd respondent.

Punchi Nona v. Padumasena and others [1994] 2 Sri L R 117 at 121

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 Petitioners submit that this case does not come under section 68 of the Primary Court Procedure Act but comes under section 69. The section 69 is on "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' but the dispute in this case is clearly on "the dispute relates to the possession of any land or part thereof" where the section 68 of the Act applies. The 1st Respondent claims that the land was purchased by him and on the strength of the ownership, he is entitle to posses. It is a matter for a competent civil court to decide, does not come within the purview of the Primary Court Procedure Act.The learned Magistrate has correctly decided that the land in dispute was in possession of the Petitioners on the date of filing of the information and the Respondents have failed to establish that they were dispossessed within a period of 2 months next preceding the date on which the information was filed.

Accordingly, I act in revision and set aside the order of the learned High Court Judge dated 16.02.2014 and affirm the order of the learned Magistrate dated 07.08.2013.

Application allowed with costs fixed at Rs.10,000.00

Judge of the Court of Appeal

P. R. Walgama J.

I agree.

Judge of the Court of Appeal

S. LALITH N KUMARA VS MEEGAMUWAGE JAYANTHA PREMARATHNE

HON. JANAK DE SILVA,J

Case No: CA(PHC) 149/2006

P.H.C Panadura Case No: HCRA 53/2003
M.C. Panadura Case No: 23229

1. Susewhewage Piyarathne (Dead)

2. Gunasinghe Gnanwathi (Dead)

2A. Susewhewage Lalith Nishantha Kumara

2B. Susewhewage Harini Anoma Chitrangani
Both of No. 167,
Ariyawansha Mawatha,
Molligoda.

2nd Party Petitioners-Appellants

1. Meegamuwage Jayantha Premarathne

2. Jayawathi Rupasinghe

Both of No. 167,
Ariyawansha Mawatha,
Molligoda.

1st Party Respondents-Respondents

Before : K.K. Wickremasinghe J.
Janak De Silva J.

Counsel : Neranjan Jayasinghe for Substituted 2nd Party Petitioners-Appellants
Saliya Peiris P.C. with Susil Wanigapura for 1st Party Respondents-Respondents

Written Submissions tendered on : Substituted 2nd Party Petitioners-Appellants on 03.04.2018
1st Party Respondents-Respondents on 16.05.2018

Argued on : 23.02.2018

Decided on: 15.03.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court Judge of the Western Province holden in Panadura dated 26.07.2006.

Initially Wadduwa Police made an application on 16.10.2001 to the Magistrates Court of Panadura under section 81 of the Criminal Procedure Code seeking an order on the 2nd Party Petitioners-Appellants (Appellants) and 1st Party Respondents-Respondents (Respondents) to show cause why they should not be ordered to execute a bond with or without sureties for keeping the peace for such period not exceeding two years as the court thinks fit to fix.

This was consequent to a complaint made by the Respondents that on or about 08.10.2001 the Appellants had constructed a barbed wire fence across the land in dispute which was repaired the same day. The Appellants made a complaint on 09.10.2001 alleging that the Respondents had destroyed the said barbed wire fence. Subsequently, the Respondents made another complaint to the Police on 09.10.2001 alleging that the Appellants had made a death threat pertaining to the land in dispute and in particular regarding a demolition of a lavatory located on the said land.

Thereafter, the learned Magistrate on 06.01.2003, after a lapse of one year and three months from the institution of the proceedings under section 81 of the Criminal Procedure Code, ordered the Wadduwa Police to file information under section 66(1)(a) of the Primary Courts Procedure Act (Act) which the Police did in the above styled application.

In the proceedings under section 66(1)(a) of the Act, after allowing parties to file affidavits and counter affidavits and after according the parties a hearing, the learned Magistrate made order on 23.09.2003 holding that the Respondents were in possession of the land in dispute within the period of two months before filing of information. Therefore, court held that the Respondents are entitled to be in possession of the land and directed the Appellants not to interfere with their possession.

The Appellants moved in revision to the High Court of the Western Province holden in Panadura which was dismissed. Hence this appeal.

The learned counsel for the Appellant urged the following grounds:

(1) The learned Magistrate had decided as to who was in possession of the portion of the land in dispute upon a belated date of filing the information

(2) The learned Magistrate had failed to take into consideration that there was no breach of peace affecting the portion of the land in dispute as required by section 66(1)(a) of the Act

(3) The learned Magistrate had failed to precisely identify the portion of the land in dispute

(4) The learned Magistrate had failed to follow the mandatory provisions in section 66(6) of the Act before delivering his order dated 23.09.2003

(5) The learned Magistrate had erred in refusing the revision application No. Rev/53/2003 upon the basis that the Appellants had failed to seek relief before a civil court

In Siripala v. Lanerolle and another [(2012) 1 Sri.LR. 105] Sarath De Abrew J. held that revision would lie if -

(i) aggrieved party has no other remedy

(ii) if there is, then revision would be available if special circumstances could be shown to warrant it

(iii) Party must come to court with clean hands and should not have contributed to the current situation.

(iv) he should have complied with the law at that time

(v) acts should have prejudiced his substantial rights

(vi) acts should have occasioned a failure of justice.

I will now consider whether the grounds urged by the Appellant are correct and whether they fall within these principles.

Belated Filing of Information

The learned counsel for the Appellant submitted that it was not correct for the learned Magistrate after a lapse of one year and three months from the institution of proceedings under section 81 of the Criminal Procedure Code to have ordered the Police to institute proceedings under section 66(1)(a) of the Act. He submitted that it is a matter for the relevant Police Officer inquiring into any matter of breach of peace affecting land to file information with the least possible delay in view of the importance of the date of filing information under section 66 of the Act.

The legal basis of this submission is captured by Sharvananda J. (as he was then) in Ramalingam v. Thangarajah [(1982) 2 Sri.LR. 693 at 698] as follows :

"In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof 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 proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

There is some merit in the point articulated by the learned counsel for the Appellant since in Velupillai vs. Sivakaran [(1993) 1 Sri.LR. 123) it was held that under section 66(1)(a) of the Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute. The police officer is empowered to file the information if there is a dispute affecting land and a breach of the peace is threatened or likely and the Magistrate is not put on inquiry as to whether a breach of the peace is threatened or likely. Similarly, in Punchi Nona v Padumasena and others [(1994) 2 Sri LR 117] it was held that when a police officer files information about a dispute likely to cause or threatening a breach of peace the Primary Court is vested with jurisdiction to inquire into the matter without embarking on a preliminary inquiry to ascertain whether the dispute is likely to cause or threatens a breach of peace.

However, I hold that the Appellant is not entitled to raise this issue for the first time in revision before the High Court or in appeal before this Court. The Appellant should have challenged the order dated 06.01.2003 made in the proceedings under section 81 of the Criminal Procedure Code or at the least raised the objection before the learned Magistrate in proceedings under section 66(1)(a) of the Act. Having failed to do so, it is not open for the Appellant to do so now.

It is trite law that an objection to the jurisdiction of a court must be raised by a party at the earliest available opportunity, unless the jurisdictional objection impugns a patent lack of jurisdiction. This position is best illustrated by an observation made by Soza J in Navaratnasingham vs. Arumugam [(1980) 2 Sri. L. R. 1]:

"Where a matter is within the plenary jurisdiction of the Court, if no objection is taken, the Court will then have jurisdiction to proceed and make a valid order. In the present case, the objection to jurisdiction was raised for the first time when the matter was being argued in the Court of Appeal and the objection had not even been taken in the petition filed before that Court" (emphasis added)

In Kandy Omnibus Co. Ltd. v T. W Roberts (56 N.L.R. 293) Sansoni J. quoted with approval the following passage from Spencer Bower on Estoppel by Representation (1923) at page 187 to illustrate the difference between a patent and latent lack of jurisdiction:

"Where it is merely a question of irregularity of procedure, or of a defect in contingent' jurisdiction, or non-compliance with statutory conditions precedent to the validity of a step in the litigation, of such a character that, if one of the parties be allowed to waive, or by conduct or inaction to estop himself from setting up, such irregularity or want of' contingent' jurisdiction or non-compliance, no new jurisdiction is thereby impliedly created, and no existing jurisdiction is thereby impliedly extended beyond its existing boundaries, the estoppel will be maintained, and the affirmative answer of illegality will fail, for, the Royal prerogative not being invaded (emphasis added)

In Beatrice Perera vs. The Commissioner of National Housing (77 N.L.R. 361 at 366) Tennakoon C.J. made the following observation :

"Lack of competency may arise in one of two ways. A Court may lack jurisdiction over the cause or matter or over the parties; it may also lack competence because of failure to comply with such procedural requirements as are necessary for the exercise of power by the Court. Both are jurisdictional defects; the first mentioned of these is commonly known in the law as a ' patent' or 'total' want of jurisdiction or a defectus jurisdiction is and the second a ' latent' or' contingent' want of jurisdiction or a defectus triationis." (emphasis added)

Breach of Peace

The learned counsel for the Appellant submits that the order of the learned Magistrate dated 06.01.2003 made in the proceedings under section 81 of the Criminal Procedure Code is a clear contravention of the law as well as the ratio of Navaratnasingham v. Arumugam and another [(1980) 2 Sri.LR. 1] and David Appuhamy vs. Yasassi Thero [(1987) 1 Sri.LR. 253] which requires that there shall be a dispute affecting land where a breach of peace is threatened or likely. It was submitted that there was no breach of peace between the parties "since the situation for breach of peace between the parties was totally diminished".

For the reasons explained above, I hold that the Appellants cannot raise this issue at this stage having failed to challenge the order dated 06.01.2003 made in the proceedings under section 81 of the Criminal Procedure Code or at the least raised the objection before the learned Magistrate in proceedings under section 66(1)(a) of the Act.

In any event, in Punchi Nona v Padumasena and others (supra) it was held that when a police officer files information about a dispute likely to cause or threatening a breach of peace the Primary Court is vested with jurisdiction to inquire into the matter without embarking on a preliminary inquiry to ascertain whether the dispute is likely to cause or threatens a breach of peace.

Failure to Identify land in Dispute

In an application of this nature it is incumbent on the Magistrate to ascertain the identity of the corpus as section 66(1) of the Act becomes applicable only if there is a dispute between parties affecting land. A Magistrate should evaluate the evidence if there is a dispute regarding identity of the land. [David Apuhamy v. Yassassi Thero (1987) 1 Sri.LR. 253].

The learned counsel for the Appellant submitted that the learned Magistrate failed to precisely identify the portion of land in dispute. Upon a careful consideration of the reasoning of the learned Magistrate, I have no hesitation in rejecting this submission.

The learned Magistrate has judiciously considered the affidavits of the parties and documents annexed thereto and correctly concluded that the land in dispute is the western boundary of lot 1 depicted in plan no. 410A which is a document even the Appellant had filed marked

Failure to Explore a Settlement

It is true that the journal entries do not reflect of any attempt on the part of the learned Magistrate to explore a settlement between parties. However, it is also clear upon an examination of the journal entries that the Appellants did not raise any objection on this ground before the learned Magistrate.

In Jayantha Gunasekera v. Jayatissa Gunasekera and others [(2011) 1 Sri.LR. 284] a divisional bench of this Court held that 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. The objection in terms of section 66(6) of the Act was not raised before the learned Magistrate. Hence it cannot be allowed to be raised at this stage.

Alternative Remedy

The learned counsel for the Appellant submitted that the learned High Court Judge had held that the revision application of the Appellants should be entertained by a court only where there was no alternative relief and that the instant application should not be allowed as the Appellants had alternative relief of resorting to a civil action. He relied on the decision in J.A. Priyanthi Perera Samarasinghe vs. Dharmapala Collin Abeywardene and others [C.A.(PHC) APN 64/2010, C.A.M. 05.05.2011] where Sisira De Abrew held "the fact that filing of a civil case in the District Court is no ground to set aside a judgement of Primary Court, in an application under section 66 of the Primary Courts Procedure Act" and submitted that the learned High Court Judge erred in law.

I am in agreement with the position articulated by the learned counsel for the Appellant. The statement of law set out by the learned High Court judge is flawed.

However, for the reasons set out above, the Appellant has failed to establish exceptional circumstances and as such the learned High Court Judge was correct in dismissing the revision application.

Subject to the views expressed in relation to the alternative remedy, I see no reason to interfere with the order of the learned High Court Judge of the Western Province holden in Panadura dated 26.07.2006.

Appeal dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.
I agree.

Judge of the Court of Appeal

SATH KUMARA M. RANJITH PRIYANTHA VS. H.Q.I. Galle

HON JANAK DE SILVA, J.

Case No.CA (PHC) 78/2006
H.C. Balapitiya Case No. HCR/58/2004 (Rev)
M.C. Elpitiya NO.47993/12

Sath Kumara Mudiyanselage Ranjith
Priyantha Sath Kumara,
Assistant
Superintendent,
Keta ndola State Pia ntation,
Elpitiya.

1st Respondent-Petitioner-Appellant

vs.

Headquarters Inspector of Police, Police
Station,
Pitigala .

Complainant-Respondent- Respondent

Walawa Durage Piyasiri,
Talagaspe,
Ketandola.

2nd Respondent-Respondent-Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: Samantha Withana with Hiranga Fernando for 1st Respondent-Petitioner-Appellant
M.D.J. Bandara with Upali Alwis for 2nd Respondent-Respondent-Respondent

Written Submissions tendered on:1st Respondent-Petitioner-Appellant on 17.07.2018
2nd Respondent-Respondent-Respondent on 25.07.2018

Argued on: 16.11.2018

Decided on: 18.01.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court judge of the Southern Province holden in Balapitiya dated 27.04.2006

On 16.05.2002 the Complainant-Respondent- Respondent filed information in the Magistrates Court of Elpitiya in terms of section 66(1)(a) of the Primary Courts Procedure Act (Act) stating that a dispute affecting land had arisen between the 1st Respondent-Petitioner-Appellant (Appellant) and 2nd Respondent-Respondent-Respondent (Respondent) that threatened or was likely to lead to a breach of peace. The learned Magistrate directed that a notice be affixed to the disputed corpus inviting any parties interested to appear in court on the date mentioned in the notice and file affidavits setting out their claims. Thereafter, the learned Magistrate - having perused the affidavits, counter affidavits and written submissions of the aforementioned parties - came to the conclusion that this was a dispute relating to the possession of a land . Accordingly, having identified the disputed corpus, the learned Magistrate came to the conclusion that the Respondent had been in possession of the land in dispute at least nine months prior to information been filed and held that possession of the land in dispute should be with the Respondent.

Aggrieved by the said order the Appellant preferred a revision application to the High Court of the Southern Province holden in Balapitiya. The learned High Court Judge dismissed the application and hence this appeal.

The ambit of an inquiry under section 66 of the Act was explained by Sharvananda J. (as he was then) in Ramalingam v. Thangarajah [(1982) 2 Sri.L.R. 693 at 698] as follows:

"In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of thefiling of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof Section 68(3) becomes applicable only if the Judge can come to a definite finding that some other party had been for Cibly dispossessed within a period of two months next proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

Chandrasiri Wickrematilleke Midigaspe Assistant Superintendent of Ketandola Estate made a complaint to the Pitigala Police on 06.05.2002 (X2, Appeal Brief page 30) stating that previously complaints had been made on 14.08.2001 (X7A, Appeal Brief page 36) and 22.07.2001 (X7B, Appeal Brief page 37) stating that Walawe Durage Jayasena, brother of the Respondent, had encroached onto part of the Ketandola Estate and cleared the land. He stated that thereafter the Police had directed Jayasena to stop such encroachment but despite such direction the Respondent and Jayasena have dug the ground to plant tea and requested the Police to stop the encroachment. It is clear upon a perusal of the three statements X2, X7A and X7B that both the incidents in July/August 2001 and May 2002 occurred in respect of the same land.

The Respondent took up the position that the land in dispute, although state land, has been possessed by them for a long time. Under section 68 of the Act the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner except in accordance with the law. The investigation notes prepared by the Pitigala Police (X5, Appeal Brief page 28) shows that there were coconut plants of around one year old as well as tea plants brought to be planted on the land when the inspection took place on 15.05.2002. The observation of the Police Officer who conducted the inspection shows that the Respondent was in possession of the land in dispute at least 9 months prior to the information been filed in court.

The Appellant submitted that the learned Magistrate and High Court Judge have failed to take into account that the encroachment in July 2001 by Jayasena was not connected with the present encroachment. I have no hesitation in rejecting this submission as the Police statements marked X7A, X7B and X2 clearly indicate that both incidents took place in relation to the land in dispute.

Existence of exceptional circumstances is the process by which the court selects the cases in respect of which the extraordinary method of rectification should be adopted, if such a selection process is not there revisionary jurisdiction of this court will become a gateway of every litigant to make a second appeal in the garb of a Revision Application or to make an appeal in situations where the legislature has not given a right of appeal. [Amaratunga J. in Dharmaratne and another v. Palm Paradise Cabanas Ltd. And others (2003) 3 Sri.L.R. 24 at 30] . The Appellant failed to adduce any exceptional circumstances warranting the intervention of the High Court.

For the foregoing reasons, I see no reason to interfere with the order of the learned High Court judge of the Southern Province holden in Balapitiya dated 27.04.2006.
Appeal is dismissed with costs fixed at Rs.30,000/=.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

RAJA M WIJEKOON VS H L SARATHCHANDRAN GUNAWARDENA

HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 115/2012

HC GALLE CASE NO: HC/760/2010/REV
MC UDUGAMA CASE NO: 46962

Raja Mahesh Wijekoon,
Punchi Digana,
12th Mile Post, Opatha.

Respondent-Respondent-Appellant
Vs.

Hiniduma Liyanage Sarathchandran Gunawardena,
Sinhaweli Watta, Opatha.

Petitioner-Petitioner-Respondent

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Thilak Wijesinghe for the Appellant.
Shihan Ananda for the Respondent. (No written submissions have been filed on behalf of the Respondent)

Decided on : 30.07.2019

Mahinda Samayawardhena, J.

The petitioner-respondent (respondent) filed an application against the respondent-appellant (appellant) under section 66(1)(b) of the Primary Courts' Procedure Act in the Magistrate's Court seeking to restore him in possession in terms of section 68(3) on the basis that he was dispossessed from the land in question by the appellant immediately within two months before the filing of the application.

As seen from the Journal Entry dated 25.02.2010, the learned Magistrate first having satisfied that there would be an imminent threat to the breach of the peace as a result of this land dispute, issued notice on the respondent.

However, after the inquiry concluded by way of written submissions, the learned Magistrate by order dated 08.07.2010 dismissed the application of the petitioner, without making a determination on possession, stating that the Court has no jurisdiction to make an order on possession as there was no breach of the peace.

On appeal, the learned High Court Judge set aside that order on the ground that once the Magistrate was satisfied that there was an imminent threat to the breach of the peace, he cannot at the end dismiss the application on want of jurisdiction on the premise that there was no threat to the breach of the peace. The learned High Court Judge directed the learned Magistrate to deliver the order afresh on merits.

It is against this Judgement of the High Court the appellant has filed this appeal.

It is my considered view that the Judgment of the High Court is correct. The Magistrate is clothed with the jurisdiction to entertain the application upon his being satisfied that owing to the dispute affecting land, the breach of the peace is threatened or likely. That is a precondition to issuance of notice. Once it is recorded and notice issued, and the inquiry is held, the Magistrate need not revisit his earlier decision and dismiss the application in limine without considering the merits on the ground of lack of jurisdiction due to non-existence of breach of the peace.

Breach of the peace does not amount to actual physical fight leading to grievous hurt or murder. If the breach of the peace is likely, although there is no such threat at present, that is sufficient for the Magistrate to make an order under section 66 of the Primary Courts Procedure Act.

Appeal is dismissed without costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

W.W.PALIS VS . SUBRAMANIUM RANJITH KUMAR

HON JANAK DE SILVA, J.

Case No: CA (PHC) 182/2006
P.H.C. Ratnapura Case No. Rev. 01/03

W.W.Palis
Rassagala.
Balangoda

1st Party Respondent-Respondent-Appellant

Vs.

01.Subramanium Ranjith KUMAR

02.Subramanium Thileinadan

03. Shamugam Subramanium
All of:
No.54/15,Sadungama,Thumbagoda,
Balangoda

2nd Party Respondents-Petitioner-Respondents

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: Hirosha Munasinghe for 1st Party Respondent-Respondent-Appellant
Asoka Fernando for 2nd Party Respondents-Petitioners- Respondents

Argued on: 27.02.2018

Decided on: 08.03.2019

Janak De Silva J.

This is an appeal against the judgment of the learned High Court Judge of the Sabaragamuwa Province holden in Ratnapura dated 24.07.2006.

The Officer-in-Charge of the Balangoda Police filed a report in the Magistrates Court of Balangoda in terms of section 66(1)(a) of the Primary Courts Procedure Act as amended (Act). The report stated that there was a dispute affecting land between the 1st Party Respondent-Respondent Appellant (Appellant) and 2nd Party Respondents- Petitioners-Respondents (Respondents) indicating an imminent breach of peace and sought appropriate orders from court.

The learned Magistrate held that the Appellant had dispossessed the Respondents from the land in dispute and made order restoring the Appellant to possession . The Respondents filed an application in revision in the High Court of Sabaragamuwa Province holden in Ratnapura . The learned High Court Judge held that the learned Magistrate had made an incomplete order and misdirected himself. Accordingly, the High Court set aside the order of the learned Magistrate and granted the relief prayed for in the petition. Hence this appeal.

In Siripala v. Lanerolle and another [(2012) 1 Sri.L.R. 105] Sarath De Abrew J. held that revision would lie if -

(i) aggrieved party has no other remedy

(ii) if there is, then revision would be available if special circumstances could be shown to warrant it.

(iii) Party must come to court with clean hands and should not have contributed to the current situation.

(iv) he should have complied with the law at that time

(v) acts should have prejudiced his substantial rights

(vi) acts should have occasioned a failure of justice.

I will now consider whether the grounds urged by the Appellant comes within these principles.

The position of the Respondents before the Magistrate was that soon after the general elections in 1994 the appellant forcibly occupied part of the land in dispute and subsequent to proceedings instituted in terms of section 66(1)(a) of the Act in Primary Court Balangoda case no. 18542, the Respondents were restored to possession which they continued to enjoy until the Appellant sought to evict them again in 2001 after the general elections.

The learned Magistrate concluded that it is not clear whether the land in the two cases is the same. However, as the learned High Court Judge points out a consideration of the description of the lands in dispute in the two cases clearly establish that it is the same land that is involved in both instances. Furthermore, the Appellant in this case was one of the 2nd Party Respondents in Primary Court Balangoda case no. 18542.

Therefore, the learned High Court Judge was correct in concluding that the learned Magistrate had misdirected himself.

Sharvananda J. (as he was then) in Ramalingam v. Thangarajah [(1982) 2 Sri.L.R. 693 at 698] held :

"In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof. 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 proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66."

The learned Magistrate failed to apply the above principles in determining the alleged date of dispossession. The Appellant in the police complaint made on 07.04.2002 states that he was dispossessed about three weeks prior to that date whereas in his affidavit the date of dispossession is stated to be 23.03.2002. The learned Magistrate has not determined the date on which the alleged dispossession had taken place.

These errors amount to exceptional circumstances warranting the intervention of the High Court by way of revision. For the foregoing reasons, I see no reason to interfere with the judgment of the learned High Court Judge of the Sabaragamuwa Province holden in Ratnapura dated 24.07.2006. Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

K. GNANASIRI DE SILVA VS. S. PIYARATNA DE SILVA

HON. W.M.M. MALINIE GUNARATNE J

CA (PH C) No. 34/2004

PHC Balapitiya No.480/02 Rev.
Balapitiya Magistrate Court Case No. 36853.

In the matter of an Appeal in terms of Article 138 and read with Article 154 P (6) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

1. Hendadura Manoj Priyankara De Silva

2. Appuwadura Rosi De Soysa,

3. Appuwadura Victor De Soysa,
All of Egodamulla, Ahungalla.

2nd,3rd,and 4th Respondents-Appellants.
VS.

1. Keerahandi Gnanasiri De Silva,
No. 134, Galle Road, Ahungalla.

1st Respondent-Petitioner-Respondent

2. Siriwardena Piyaratna De Silva,
Egodamulla, Ahungalla.

3. Ihalage Vipulawathie,

4. Ihalage Sugeewa,

5. T. Shali Warusawathie De Silva.

6. Akuretiya Gamage Nilmini,
All of Kopiwatta, Ahungalla.

Respondents-Respondents-Respondents

BEFORE : W.M.M. Malinie Gunaratne, J. and
P.R. Walgama, J.

COUNSEL : Appellants were absent and unrepresented.
Nimal Ranamukaarachchi for the 1st, 3rd and 4th Respondents.

Argued on : 18.05.2015

Written submissions filed on : 08.06.2015.

Decided on : ............... 30.11.2015.

Malinie Gunaratne, J.

Pursuant to an information filed by the Balapitiya Police in terms of Section 66 of the Primary Court Procedure Act, the learned Primary Court Judge held an inquiry into the dispute between 2nd, 3rd and 4th Respondents Petitioners-Appellants (hereinafter referred to as the Appellants) and 1st, 3rd and 4th Respondents - Respondents - Respondents ( hereinafter referred to as the Respondents) in respect of the land called Kirillawela, held that he is unable to make any order with regard to the possession of the land, as the parties have not identified the disputed land properly and ordered to maintain the statusquo until the rights are decided by the Partition action already filed in the District Court.

Aggrieved by the said Order, Respondents sought to move in Revision against the said Order by Revision Application No. 480/02, filed before the High Court Balapitiya.

The learned High Court Judge disagreeing with the Order made by the learned Magistrate, set aside the said Order. By that Order learned High Court Judge handed over the possession of the land in dispute to the Respondents.

The Appellants have now filed this appeal seeking to set aside the said judgment of the learned High Court Judge dated 12.02.2004.

When this case was taken up for argument on 18.05.2015 the Appellants were absent and unrepresented although notices have been issued on them and the registered attorney, on several occasions. Hence, the Court heard only the arguments of the Counsel for the Respondents.

The contention of the Counsel for the Respondent was, in the Magistrate's Court, the Respondents had very clearly stated details about the property involved in the dispute. Specially in the schedule of the Affidavit which they had filed, the Respondents had clearly shown the details and the boundaries of the property in dispute. In addition, Grama Niladari of the area had testified in Court and clearly identified the land in dispute. The Counsel's contention is accordingly that the Order of the learned Magistrate is erroneous.

In an inquiry where the dispute relates to the possession of any land or part thereof it shall be the duty of the judge of the Primary Court to determine as to who was in possession of the land or the part thereof on the date of filing of the information under Section 66 and make order as to who is entitled to possession of such land or part thereof. But where a forcible dispossession has taken place within a period of two months immediately before the date on which the information was filed under Section 66, he may make an order directing that the party dispossessed be restored to possession prohibiting all disturbance of such possession otherwise than under the authority of an order or decree of a competent Court.

In the instant case the Primary Court Judge's view was, as the parties had not been able to identify the land in dispute he is unable to make any order under Section 66(1)(b) of the Primary Court Act and ordered to maintain the statusquo until the rights are decided by the Partition Action filed in the District Court.

The learned Counsel for the Respondents submitted that the Order of the learned Magistrate is erroneous and against the said order the Respondents sought to move in revision, and the learned High Court Judge set aside the Order made by the learned Magistrate and decided to hand over the possession of the land in dispute to the Respondents.

On perusal of the judgment of the learned High Court Judge, it is apparent that the learned High Court Judge has taken into consideration the affidavits and documents filed by both parties and has come to the aforesaid conclusion.

Further, I do not see any wrong in the manner in which the learned High Court Judge has considered the facts and the way in which she has applied the law in this instance.

For the above stated reasons, I see no basis to interfere with the Order made by the learned High Court Judge. Therefore, I affirm the Order of the learned High Court Judge dated 12.02.2004.

Appeal is accordingly dismissed with costs.

Appeal is dismissed with costs.

JUDGE OF THE COURT OF APPEAL

P.R.Walgama, J.

I agree

JUDGE OF THE COURT OF APPEAL

W.M.S.D. WANASUNDERA VS K.A. KARUNARATNE

HON. A.L. SHIRAN GOONERATNE J.

C.A. Case No:CA/PHC/234/2015
H.C.R/RA/5/11
MC Rathnapura Case No:23527(66)

In the matter of an appeal under Article 138, 154 of the Constitution read with provisions of Provincial High Court (special provision) Act No. 19 of 1990

1. W.M.S.D. Wanasundera

2. Lal Wasantha Abeywickrama
both of
No. 132115, Moragahalanda Mawatha,
Pannipitiya.

Complainant-Petitioner-Appellants
-Vs-
K.A. Karunaratne,
No. 37, Collin Crescent,
Muwagama, Getangama,
Ratnapura.
Respondent-Respondent-Respondent

Before: A.L. Shiran Gooneratne J.
& Mahinda Samayawardhena

Counsel: R.M.D. Bandara with Lilanthi De Silva for the Appellants. Nivantha Satharasinghe for the Respondent
Argued on :14/05/2019
Judgmenton :24/06/2019

A.L. Shiran Gooneratne J.

The Petitioner-Petitioner-Appellant (hereinafter referred to as the Appellant) has invoked the jurisdiction of this Court to have the judgments of the High Court and the Magistrate's Court dated 10/12/2015 and 03/01/2011, respectively, to be set aside, inter alia, on the basis that the Court has disregarded the fact that the Respondent has not been in possession of the disputed land, 2 months prior to the said dispossession.

The Appellant contends that the learned Magistrate came to an erroneous conclusion by stating that the Appellant has failed to give an exact date of dispossession, which is a requirement in terms of Section 68(3) of the Primary Courts Procedure Act (Act).

In Mohamed Shareef Nazar v. Asoka Jayalal Karunanayake, (CA/74/07 Revision), the Court held that,

"In this respect, it appears that the learned Magistrate has misdirected himself that it is imperative to reveal the exact date of dispossession. Having considered the contention of both counsel, I am of the view that to construe Section 68(3) as requiring the revelation of the exact date of dispossession leads to absurdity and would render the scheme in part VII of the PCP A hopelessly meaningless. On a perusal of the documents and the affidavits, it appears that the Petitioner has revealed the date of dispossession with reasonable precision and is entitled to be considered for restoration of possession under Section 68(3). "

The Appellant contends that having decided that the learned Magistrate was misdirected in law when making the said order, the decision of the learned High Court Judge to have decided the case under Section 68(1) of the said act is erroneous.

In Punchi Nona v. Padumasena and others (1994) 2 SLR 117 at page 121, this Court held that, "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."

Under Section 68 of the Act "-it shall be the duty of the judge of the Primary Court holding the inquiry to determine as to who was in possession of the land or the part on the date of the filling of the information under Section 66 and make order as to who is entitled to possession of such land or part thereof"

The Respondent contends that the land in dispute called "Hiriliyaddage Kekunagaha" is a potion of Anaankaragalahena which is a state land, in possession of his father for well over 40 years and continued to be in possession of the said land where coconut plants and other crops were grown, identified as the part marked "X" in the sketch produced by the police officer at the inquiry. The said contention of the Respondent has been substantiated by affidavits and the police inquiry report produced before the learned Magistrate.

According to the affidavits submitted by Daslin Wijesekara Niriella, marked V4 and document marked V6, long term possession by the Respondent to the land in dispute is clearly established. It is observed that the Appellants have not challenged the said evidence before the police officer inquiring into the dispute. In terms of Section 68(1) of the Act, the learned Magistrate is obliged first to determine as to who was in possession of the land or the part on the date of filing of the information under Section 66. According to the facts in evidence, there is no doubt that it was the Respondent who was in long term possession of the disputed land and at the date of filing of the information.

In Punch Nona vs. Padumasena and others (1994) 2 SLR 117, Court held that, Section 68(1) of the Act is concerned with the determination as to who was in possession of the land on the date of filing of the information in Court and that 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 02 months next preceding the date on which such information was filed.

Therefore, the provision in Section 68(3) of the Act has no application to the facts of the instant case. I do not see any illegality in the order given by the learned Magistrate in deciding this case in terms of Section 68(1) of the Act to determine as to who was in possession of the land on the date of filing of the information in Court.

Accordingly, I am of the view that in terms of Section 68(1) of the said Act the Respondent has established uninterrupted and unchallenged possession to the land in question at the time of filing the information to Court.

In the circumstances, I have no reason to disagree with the said findings of the learned High Court Judge. Accordingly, the application is dismissed with costs fixed at Rs.10,000/-

JUDGE OF THE COURT OF APPEAL

Mahinda Samayawardhena, J. I agree.

JUDGE OF THE COURT OF APPEAL

W.M.S.D. WANASUNDERA VS K.A. KARUNARATNE

HON. A.L. SHIRAN GOONERATNE J.

C.A. Case No:CA/PHC/234/2015
H.C.R/RA/5/11
MC Rathnapura Case No:23527(66)

In the matter of an appeal under Article 138, 154 of the Constitution read with provisions of Provincial High Court (special provision) Act No. 19 of 1990

1. W.M.S.D. Wanasundera

2. Lal Wasantha Abeywickrama
both of
No. 132115, Moragahalanda Mawatha,
Pannipitiya.

Complainant-Petitioner-Appellants

-Vs-
K.A. Karunaratne,
No. 37, Collin Crescent,
Muwagama, Getangama,
Ratnapura.
Respondent-Respondent-Respondent

Before: A.L. Shiran Gooneratne J.
            & Mahinda Samayawardhena

Counsel: R.M.D. Bandara with Lilanthi De Silva for the Appellants
              Nivantha Satharasinghe for the Respondent
              WrittenSubmissions: By the Appellants and the Respondent on 29/03/2019

Argued on :14/05/2019

Judgmenton :24/06/2019

A.L. Shiran Gooneratne J.

The Petitioner-Petitioner-Appellant (hereinafter referred to as the Appellant) has invoked the jurisdiction of this Court to have the judgments of the High Court and the Magistrate's Court dated 10/12/2015 and 03/01/2011, respectively, to be set aside, inter alia, on the basis that the Court has disregarded the fact that the Respondent has not been in possession of the disputed land, 2 months prior to the said dispossession.

The Appellant contends that the learned Magistrate came to an erroneous conclusion by stating that the Appellant has failed to give an exact date of dispossession, which is a requirement in terms of Section 68(3) of the Primary Courts Procedure Act (Act).

In Mohamed Shareef Nazar v. Asoka Jayalal Karunanayake, (CA/74/07 Revision), the Court held that,

In terms of Section 68(1) of the Act, the learned Magistrate is obliged first to determine as to who was in possession of the land or the part on the date of filing of the information under Section 66. According to the facts in evidence, there is no doubt that it was the Respondent who was in long term possession of the disputed land and at the date of filing of the information.

Therefore, the provision in Section 68(3) of the Act has no application to the facts of the instant case.

I do not see any illegality in the order given by the learned Magistrate in deciding this case in terms of Section 68(1) of the Act to determine as to who was in possession of the land on the date of filing of the information in Court.

In the circumstances, I have no reason to disagree with the said findings of the learned High Court Judge. Accordingly, the application is dismissed with costs fixed at Rs.10,000/-

JUDGE OF THE COURT OF APPEAL

Mahinda Samayawardhena, J.

I agree.

JUDGE OF THE COURT OF APPEAL

S. HAMEED MOHOMED RUWAIS VS. MOHAMEDU THAMBY

HON. P. PADMAN SURASENA, J (P/CA)

C A (PHC) / 141 / 2013

Provincial High Court of North Western Province (Puttalam) Case No. HCR 04 / 2012
Primary Court Puttalam Case No. 54962 / 11 / P

In the matter of an appeal against an order of the Provincial High Court in the exercise of its revisionary jurisdiction.

Shahul Hameed Mohomed Ruwais,
No 254, Colombo Road,
Thillayady, Puttalam.

PARTY OF THE 1ST PART - PETITIONER - APPELLANT
-Vs-

Mohamedu Mohomed Thamby,
No 2/6,
Vettukulam Road,
Puttalam.

PARTY OF THE 2ND PART - RESPONDENT - RESPONDENT

Before : P. Padman Surasena J (P/CA)
K K Wickremasinghe J

Counsel : Ikram Mohamed PC with Tanya Marjan for the party of the 1st part - Petitioner - Appellant.
J M Wijebandara with Lilini Fernando for the party of the 2nd part- Respondent - Respondent.

Oral submissions made on : 2017-12-06

Decided on : 2018-03-09

JUDGMENT

P Padman Surasena J

This Court after the argument of this case was concluded on 2015-09-01 had pronounced its judgment on 2015-11-20. The said judgment has been pronounced by a bench comprising Her Ladyships W M M Malini Gunerathne J and P R Walgama J. Their Ladyships by the said judgment had set aside the impugned , orders of the learned High Court Judge as well as the order of the learned Magistrate and had proceeded to allow the appeal.

In-a leave to appeal application filed against the said judgment, the Supreme Court by its order dated 2017-02-06 had remitted this case back to this Court for certain clarifications with regard to the judgment of this Court.

As has been directed by the Supreme Court, this Court proceeded to hear the submissions of learned counsel for both parties before making this order.

The clarification sought from this Court is whether this Court decides the relief claimed in prayer (b) of the Petition of Appeal in favour of the Appellant.

This Court is mindful that their ladyships who pronounced the judgment dated 2015-11-20 no longer function as judges of this Court and that this case has come up before the present bench only to clarify some aspects of the judgment of this Court already pronounced. This is pursuant to a direction by the Supreme Court.

It has to borne in mind that it is not open for this bench to re decide this case on its facts. Its task is limited to clarify the issue raised by the Supreme Court.

As has been stated before, the Supreme Court by its order dated 2017-02-06 in the application for special leave to appeal, filed by the Appellant before the Supreme Court¹ had directed to remit this case back to this Court to clarify on prayer "b" of the petition of appeal dated 2013-10-15 i.e. whether the Court of Appeal is going to decide the said relief in favour of the Appellant or not or whether the Court of Appeal has already decided (by making the order "allow the appeal'') that a" the reliefs have been granted.

At the outset it is important to note that their ladyships of this Court by the judgment dated 2015-11-20 have decided conclusively,

i. that the Party of The 2nd Part - Respondent - Respondent (hereinafter sometimes called and referred to in this order as the Respondent) (Mohamed Mohamed Thamby) has never been in possession of the disputed premises. This is clear
__________
¹ SC. SPL. LA. NO. 272 / 2015.

from the phrase" ... Therefore it is obvious that the Respondent was never in possession of the disputed premises ... " which appears in the second paragraph in page 7 of the said judgment.

ii. that it is the Party of the 1st Part - Petitioner - Appellant (hereinafter sometimes called and referred to, in this order as the Appellant) (Shaul Hameed Mohomed Ruwais) who has been in the possession of the disputed premises as at the date of filing the information under section 66 (1) of the Primary Courts Procedure Act No 44 of 1979 (hereinafter referred to as the Act). This could be gathered from the phrase " .. .In the above setting it is ostensible that at the time the information was filed in terms of section 66 (1) of the Primary Courts Procedure Act, the Petitioner - Appellant has been in possession of the disputed premises ... " which can be found in the third paragraph in page 7 of the said judgment.

It is the view of this Court that this Court has to take into consideration the prevailing law pertaining to the subject matter under dispute when interpreting the judgment of this Court.

As has been mentioned above this Court by its judgment dated 2015-11-20 had decided that the Respondent has never been in possession of the disputed premises. Perusal of the said judgment shows clearly that it is only after that conclusion² that this Court had proceeded to arrive at the next conclusion, which is as follows

" ... Therefore as per facts started herein before the only conclusion the learned Magistrate was compelled to decide was whether the Appellant was in possession of the premises in suit at the time the information was filed in terms of section 66 (1) of the Primary Courts Procedure Act ... "
__________
²at Page 7 of the judgment.

This is in keeping with section 68 (1) of the Act which is as follows,

Section. 68

Having considered the provisions in section 68 of the Act, this Court is of the opinion that it had not been necessary for this Court to make any determination as to whether any person who had been in possession of the relevant premises has been forcibly dispossessed within a period of two months immediately before the date on which the information was filed under section 66, as required by section 68 (3) of the Act. It is because of the finding that the Respondent has never been in possession of this premise. Therefore, a determination under section 68 (3) of the Act does not simply arise.

Indeed this is in line with the consistent approach taken by this Court in its previous judgments.

In this regard the following passage from a judgment of this Court in the case of Punchi Nona V Padumasena and others would be relevant.

" ... 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. . .. "

__________
³ 1994 (2) Sri. L R 117

It is now time to turn to prayer "b" of the petition of appeal dated 2013-10-15, which is as follows,

(b) " ... to make order declaring the Appellant to be entitled to the possession of the said shop No.18, Main Street, Puttalam in terms of section 68 (1) and (2) of the Primary Courts Procedure Act and to make order to deliver possession of the said shop to the Appellant by ejecting the Respondent and all holding under him therefrom.

It is the conclusion arrived at by this Court by its judgment dated 2015-11-20 that it was the Appellant who has been in possession of the impugned shop premises as at the date of filing information in Court. This Court has also held that the Respondent has never been in possession of the said premises.

This follows that the Appellant is entitled to possess the said shop premises. Therefore, the possession of this shop must invariably be delivered to the Appellant. If the Respondent has interfered with the peaceful possession of the Appellant such obstruction must be cleared as has been required by section 68 (2) and (4) of the Act which is as follows.

Section 68 (2)

An order under subsection (1) shall declare anyone 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 there- from under an order or decree of a competent court and prohibit all disturbance of such possession otherwise than under the authority of such an order or decree.

Section 68 (4)

An order under subsection (1) may contain in addition to the declaration and prohibition referred to in subsection (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.

In these circumstances the clarification that this Court can offer in respect of the issues raised by the Supreme Court is that this Court by making the order "allow the appeal" has granted the prayer (b) of the petition of appeal dated 2013-10-15 also.

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J
I agree,

JUDGE OF THE COURT OF APPEAL

TON LIMJIBOY NILGIRIYA VS OIC, SLAVE ISLAND POLICE

HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) APN 11/2015

HC COLOMBO CASE NO: HCRA/118/2013
PRIMARY COURT FORT: 75136/66/2013

Rohinton Limjiboy Nilgiriya,
No. 19, Union Place,
Colombo 2.

2nd Party-Respondent-Petitioner
Vs.

Officer in Charge,
Police Station,
Slave Island.

Plaintiff-Respondent-Respondent

Pathiranage Dona Ajantha Malkanthi,
Bodhirajagama, Ingiriya Waththa,
Ingiriya.

1st Party-Respondent-Respondent

Rajapaksha Appuhamilage Don
Surendra Wasantha Perera,
No. 674/5, Cinnamon Garden
Residencies, Ward Place,
Colombo 7.

Intervenient 1st
Party-Petitioner-Respondent

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : M.U.M. Ali Sabry, P.C., with Rasika Dissanayaka the 2nd Party-Respondent- Petitioner. Asela Rekawa with Amila Perera for the Intervenient 1st Party-Petitioner-Respondent.

Decided on : 17.09.2019

Mahinda Samayawardhena, J.

The 2nd Party-Respondent-Petitioner, namely R.L. Nilgiriya (Petitioner), filed this revision application seeking to revise the Judgment of the High Court dated 30.01.2015 whereby the order of the Magistrate's Court dated 03.06.2013 made in the case filed under section 66 of the Primary Courts' Procedure Act was set aside and the learned Magistrate was directed to put the Intervenient Party-Petitioner-Respondent, namely R.A.D.S. Wasantha Perera (Intervenient Party) back in possession.

In the facts and circumstances of this case, that Judgment of the High Court is flawless.

The Police have filed the first information in the Magistrate's Court under section 66(1)(a) of the Primary Courts' Procedure Act regarding this dispute relating to a building on 06.03.2013.

According to the Notice to Quit dated 02.03.2013 sent by the Attorney-at-Law of the Petitioner to the Intervenient Party (found at page 277 of the Record marked X), by 02.03.2013, admittedly, the Intervenient Party was in possession of the premises in suit. By that Notice to Quit the Petitioner has asked the Intervenient Party to handover the peaceful possession of that premises immediately.

That itself shows that the case of the Petitioner as presented in the petition that, on 10.02.2013 the Intervenient Party vacated the leased premises in suit, and thereafter on 02.03.2013, i.e. two days after the expiration of the Lease Agreement the Intervenient Party attempted to re-enter the premises is incorrect. Simply stated, if the Intervenient Party had vacated the premises on 10.02.2013, there was no necessity for the Petitioner to send a Notice to Quit on 02.03.2013 asking the Intervenient Party to handover the possession of the premises forthwith.

The fact that, by 02.03.2013, the Intervenient Party was in possession is made clear by the complaint of the Petitioner made to the Police on 02.03.2013 (found at page 278 of X). In that Police complaint the Petitioner has inter alia admitted that (a) the keys of the premises in suit are with the Intervenient Party and (b) the Intervenient Party has employed a watcher to protect that premises and (c) the Petitioner never tried to enter into the said premises; (d) nevertheless, for his protection, he (the Petitioner) padlocked the common gate, which gives access both to the premises in suit and his house (which abuts the premises in suit).

It is common ground that the Petitioner was in possession of the premises in suit on the date the information was filed by the Police in Court.

From the aforementioned Quit Notice and the complaint made to the Police, it is abundantly clear that the Intervenient Party has been dispossessed by the Petitioner within 4 days immediately before filing the first information in Court.

The Intervenient Party may be in unlawful possession by refusing to handover possession of the building after the lapse of the Lease Agreement and upon termination of the lease by sending not one, but several Notices to Quit.

But in section 66 proceedings, what is considered is possession and not ownership. Until the substantive rights of the parties are decided by a Civil Court, in these proceedings, the Magistrate is expected to make a provisional order to prevent breach of the peace. However, it must be stressed that the Magistrate cannot make any order which he thinks appropriate to prevent breach of the peace. He shall make the appropriate order in accordance with law. In the instant case, what the learned Magistrate has done is, without making a specific order in terms of section 68 of the Primary Courts' Procedure Act, the parties have been directed to maintain status quo until a Civil Court decides the matter thereby indirectly confirming the possession of the Petitioner, which is not correct.

Under section 68(1) of the Primary Courts' Procedure Act, the Court shall confirm the possession of the Party who was in possession of the land on the date of the filing of the first information in Court. That is the general rule. This is subject to an exception as provided for in section 68(3). That is, if the opposite Party can prove that he was forcibly dispossessed by his opponent who is now in possession of the land within two months immediately before the filing of the first information, he shall be restored in possession.

In the facts and circumstances of this case, the learned Magistrate should have made an order restoring the Intervenient Party in possession in terms of section 68(3) of the Primary Courts' Procedure Act although he may be in unlawful possession. That has not been done by the learned Magistrate by taking irrelevant matters into consideration.

Acting in revision, whilst setting aside the order of the Magistrate's Court, the learned High Court Judge was correct to have ordered the learned Magistrate to restore the Intervenient Party in possession.

Application of the Petitioner is dismissed. No costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

K.W.RANJITH SAMARASINGHE VS. K..WILBERT

C.A.(P.H.C.) 127/99

P.H.C.Galle No.59/98

K.W.Ranjith Samarasinghe.

Respondent-Appellant.

K..Wilbert

Petitioner-Respondent

Before : Sisira de Abrew,J. and K.T.Chitrasiri,J.

Counsel : Rohan Sahabandu with S. Collure for the Appellant.
Shymal A. Collure for the Respondent.

Argued and Decided on : 28.03.2011.

Sisra de Abrew ,J.

Heard both counsel in support of their respective cases.

This is an appeal to set aside the order of the learned High Court Judge dated 23/11/1999 wherein he set aside the order of the learned Primary Court Judge dated 28/07/1998. The action in the Primary Court was filed under Section 66 of the Primary Court Procedure Act No.44/1979. Learned Primary Court Judge held in favour of the appellant. Being aggrieved by the said order, the respondent in this case invoked the reversionary jurisdiction of the High Court to set aside the order of the learned Primary Court Jude. This being an order made under Section 66 of the Primary Court Procedure Act, the parties have an alternative remedy to go to the District Court and obtain a permanent solution to this problem. When an alternative remedy is available a party dissatisfied with an order of the lower Court can invoke the revisionary jurisdiction of the Superior Court only upon establishment of exceptional circumstances. In this regard I would like to quote a judgment of Justice Wijetunge in C.A. Case No.1115/84 in U.K. Edirimanne Vs. H. Kandiah and another decided on 12/07/1991. His Lordship considering an application under Section 66 of the Primary Court Procedure Act observed thus. " It seems to me that when the legislature in its wisdom provided in Section 74(2) of the Primary Court's Procedure Act that an appeal shall not lie against any determination or order under part VII of the Act, it intended that a party adversely affected by such determination or order should ordinarily seek his remedy in a Civil Court, as the Provisions of Section 74 (1) appear to suggest. It is only where there are exceptional circumstances that this Court would interfere with such determination or order and such situations would be the exception rather than the rule". It is a well established principle that a party who has an alternative remedy can invoke reversionary jurisdiction of a Superior Court only upon establishment of exceptional circumstances. Vide Rasheed Ali Vs. Mohamed Ali 1981 1 SLR Page 262 per Wanasundara, J., Hotel Galaxi Ltd. Vs. Mercantile Hotel Management 1987 1 SLR page 5. I would also like to consider a judgment of Justice Udalagama in Devi Property Development Private limited and another Vs. Lanka Medical Pvt. Ltd. C.A.518/01 decided on 20/06/2001. His Lordship in the said judgment observed thus: " revision is an extraordinary jurisdiction vested in Court to be exercised under exceptional circumstances if no other remedies are available. Revision is not available until and unless other remedies available to the petitioner are exhausted". As we observed that the respondent who sought the reversionary jurisdiction of the High Court has an alternative remedy in this case. We have gone through the proceedings before the High Court and note that the respondent has not established exceptional circumstances in the High Court. We note that the learned High Court Judge has not considered this matter. In these circumstances we hold that the learned High Court Judge was in error when he decided to set aside the judgment of the learned Primary Court Judge.

For the above reasons we set aside the judgment of the learned High Court Judge dated 23/11/1999. In these circumstances we affirm the order of the learned Primary Court Judge dated 28/07/1998. The party dissatisfied with the order of the learned Primary Court Judge is at liberty to litigate this matter in the relevant District Court and obtain a permanent order. We direct the learned Primary Court Judge to implement this order without delay.

JUDGE OF THE COURT OF APPEAL

K. T .Chitrasiri,J.
I agree.

JUDGE OF THE COURT OF APPEAL

LIYANA A NAMAL VS LIYANA ARACHCHIGE S NAMALI

HON MAHINDA SAMAYAWARDHENA, J.

CASE NO: CA/PHC/APN/122/2018

HC COLOMBO CASE NO: HCRA/113/2018
MC NUGEGODA CASE NO: 24055/66

Liyana Arachchige Namal,
No.24/1,
Bandaranayake Mawatha,
Kalubowila, Dehiwala.

2nd Party-Petitioner-Appellant
Vs.

Liyana Arachchige Sandya Namali,
No.195/1A,
Siyambalape-South,
Siyambalape.

1st Party-Respondent-Respondent

Officer-in-Charge,
Police Station,
Kohuwala.

Complainant-Respondent-Respondent

Before : A.L. Shiran Gooneratne, J.
Mahinda Samayawardhena, J.

Counsel : Asela Serasinghe for the Appellant.
Rasika Dissanayaka for the 1st Party- Respondent.

Argued on : 29.05.2019

Decided on : 10.06.2019

Mahinda Samayawardhena, J.

The Police instituted these proceedings in the Magistrate's Court under section 66 of the Primary Courts' Procedure Act, No. 44 of 1979, regarding a land dispute between two siblings, a sister and a brother. After inquiry the Magistrate's Court held with the sister (respondent) and restored her in possession under section 68(3) of the Act on the basis that she has been dispossessed by her brother (appellant) within two months prior to the filing of the first information. The High Court affirmed that order in revision. This appeal by the appellant is against the High Court order.

The learned counsel for the appellant concedes that the respondent who was overseas at the material time had rented out the premises to a third party, and that third party left the premises within two months prior to the filing of the first information in Court.

It is the submission of the learned counsel that, the said third party, upon being asked to leave by the appellant, left the premises peacefully, and therefore there was no forceful dispossession or threat to the breach of peace.

The respondent has been in possession of the premises through the said third party, and that third party had been dispossessed by the appellant. Although there had not been a physical fight or resistance, the tenant was asked to leave the premises by the appellant by returning the rent money deposited with his landlord, the respondent. That amounts to forcible dispossession of the respondent for the purposes of the Act. Vide Iqbal v. Majedudeen [1999] 3 Sri LR 213. The breach of the peace is not between the appellant and the tenant of the respondent, but between the appellant and the respondent.

The learned counsel for the appellant also takes up the position that there is a question regarding the identification of the premises, i.e. whether it is 24/A or 24/1. This has never been raised in the Magistrate's Court or in the High Court. Hence the appellant cannot raise that matter, which is purely a question of fact, for the first time in appeal before this Court. The disputed portion consists of two parts-one is the store room where the goods of the respondent had been kept, and the other is the room rented out to the third party. Vide the sketch at page 88 of the Brief. The learned counsel for the appellant does not say that 24/A and 24/1 are two separate premises. They refer to the same premises.

According to page 2 first paragraph of the first information filed by the police, the appellant, in his statement given to the police, has admitted breaking open the padlock of the storeroom. The learned counsel denies that, the appellant in his statement, made such an admission. However, the appellant has not produced a copy of the statement made by him to the police to disprove it. Hence Court has no alternative but to accept what is stated in the first information as correct.

The learned counsel also says that both in the first information and in the order of the Magistrate's Court, instead of section 66(1)(a), section 66(1)(b) has been mentioned. This has not caused any prejudice to the appellant, and the learned Magistrate has correctly applied the law into the facts of the case. Proviso to Article 138(1) of the Constitution states that "no judgment, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice." Invocation of the jurisdiction under a wrong section does not invalidate otherwise correct order provided the Court had the jurisdiction to make that order.

Appeal is dismissed with costs.

Judge of the Court of Appeal

A.L. Shiran Gooneratne, J.
I agree.

Judge of the Court of Appeal

MICHAEL HETTIAARACHCHI VS. G. JAYASENA

HON. MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 201/2013

HC RATNAPURA CASE NO: HC/RA/23/2012
MC RATNAPURA CASE NO: 81640

Don Lal Michael Hettiaarachchi,
No.11, Mathiwarana Niwasa,
Sri Pada Mawatha,
Ratnapura.

1st Party Petitioner-Appellant
Vs.

Gamaathiralalage Jayasena,
No. 1/1, Main Street, Ratnapura.

Sehan Jerome Siriwardena,
No. 85/A, Ihala Hakamuwa,
Ratnapura.

2nd and 3rd
Party Respondent-Respondents
And Some Other Respondents

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Champaka Ladduwahetty for the Appellant.
D.D.P. Dassanayake for the Respondents.

Decided on : 25.10.2019

Mahinda Samayawardhena, J.

The appellant filed this appeal against the Judgment of the High Court whereby the order of the Magistrate's Court made in a section 66 application filed under the Primary Courts' Procedure Act was affirmed.

There is no dispute about the identification of the disputed land.

Both the appellant and the respondent claim ownership to the land.

It is common ground that ownership has no place in section 66 proceedings. What is material and crucial in such proceedings is nothing but possession.

If I may repeat the applicable law in this regard in simple language, the Judge trying a section 66 application shall first consider who was in possession of the land on the date of filing the case in Court and confirm his possession allowing the opposite party to file a case in the District Court to vindicate his rights to the land. (section 68(1) of the Primary Court's Procedure Act) However, if the aforesaid opposite party can convince the Judge that, in fact, it was he who was in possession of the land, but the party now in possession came to such possession by forcibly evicting him within two months immediately before filing the case, he shall be restored in possession, allowing the other party to file a civil case in the District Court to vindicate his rights to the land. (section 68(3) of the Primary Court Procedure Act)

In the instant case, the appellant admits that this is a bare land, and none of the parties are living on the land or in actual physical occupation of the land.1

If that is the position, the order of the Magistrate's Court in favour of the respondent on the basis that the respondent was in possession of the land on the date of filing the case, and forcible eviction within two months prior to the filing of the case was not established by the appellant, is correct.

The main item of evidence relied upon by the appellant contains in the police observation notes (P2) whereby removal of old concrete posts and replacement of them with new ones by the respondent had been observed. However there is no evidence that the old concrete posts were fixed by the appellant. The respondent had lived on the land with his family. The wife and the daughter have died due to a landslide, and thereafter the respondent has gone abroad. According to the statement given by the respondent (P3), upon his return to Sri Lanka, he has gone to the land and cleared it. It has been so cleared as it was not in the physical possession of anybody. Then the appellant has told him that he bought the land from the father of his deceased wife. It is in that background, this dispute has arisen.

In the facts and circumstances of this case, the conclusion arrived at by the learned Magistrate and affirmed by the learned High Court Judge is, in my view, correct.

______________
¹ Vide paragraph C(1) at page 7 of the written submission of the appellant dated 20.06.2019.

The order of the Magistrate's Court is a temporary order, made with the sole objective of averting any possible breach of the peace out of this dispute, until the rights of the parties are determined in a properly constituted civil case filed before the District Court.

Nearly 8 years have passed since the delivery of the Magistrate's Court order. Had the appellant filed a civil case in the District Court, soon after the Magistrate's Court order, I am certain, by now, the case would have been concluded. There is no point in further clinging on the Magistrate's Court order, if the appellant is confident about his ownership to the land.

Appeal is dismissed without costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

THUPPAHI PREMADHASA VS. SAMMU PADHMASIRI

HON. H. C. J. MADAWALA, J

CA (PRC) 172/2006
PRC Case No-477/2005
M. C. Case No. 35004

In the matter of an application for exercise of Revisionary powers made in terms of Article 154(no (6) of the Constitution of the Democratic Socialist Republic of Sri Lanka and Section 9 of the High Court of the Provisions (Special Provisions) Act No. 19 of 1990.

Officer-In -Charge,
Police Station,
Rathgama.

Complainant

Vs.

01. Thuppahi Premadhasa,
No. 218, Gammeghdhagoda,
Rathgama.

02. Sarnmu Padhmasiri
Garnmeghdhagoda,
Rathgama.

Respondents

Thuppahi Premadhasa
No 218, Garnmedgdhagoda,
Rathgama.

1st Respondent Petitioner

Vs

01. Officer-In-Charge,
Police Station, Rathgama.

Complainant- Respondent

02. Sammu Padhmasiri,
Gammeghdhagoda, Rathgama.

2nd Respondent-Respondent

And Now Between in an Appeal
In the Court of Appeal

Thuppahi Premadhasa
No 218, Gammedgdhagoda,
Rathgama.

1st Respondent-Petitioner Appellant

Vs

01. Officer-In-Charge,
Police Station,
Rathgama.

Complainant- Respondent
Respondent

02. Sammu Padhmasiri,
Gammeghdhagoda,
Rathgama.

2nd Respondent-Respondent Respondent

Before : H. C. J. Madawala, J &
L. T .B. Dehideniya, J

Counsel : Chandrika Morawaka with Manoja Jayanetti for the Appellant
M. I. M. Naleem for the Respondent.

Argued On : 04/07/2016

Written Submissions On : 10/08/2016

Decided on : 19/09/2016

H. C. J. Madawala , J

This appeal is preferred against the order dated 19/07/2007 of the Honorable Provincial High Court Judge of Galle in the exercise of its revisionary Jurisdiction arising out of an application made by the Rathgama Police under section 66 of the Primary Court's Procedure Act No 44 of 1979 to the Magistrate Court of Galle.

When this matter came up for argument in this Court on 417/2016 both counsels were heard in support of their respective cases. Arguments were concluded and both parties were directed to file their written submissions which they have tendered to court. We have considered both the oral and written submissions of the Learned Counsel of their respective argument. The facts relating to this dispute are briefly as follows

The 2nd Respondent in the Magistrate Court of Galle Sammu Padhmasiri has been gifted a house at Gammathagoda, Rathgama by his sister Sammu Sumanawathi by the Deed of gift No 102 dated 10th of January 2001 attested by Piyathilaka, Notary Public. The said deed has marked as together with the affidavit of the 2nd Respondent in the Primary Court of Galle.

The seller handed over the vacant possession of the said land and premises which is a house belonging to the 2nd Respondent. Since the 2nd Respondent has another house and has rented out the said house to one M.W.G. Lal on a monthly rental, the said M.W.G. Lal was in occupation in the said house for a period of one year and thereafter vacated the said house and handed over the key to the 2nd Respondent and he took the house and kept the key with him.

The 1st Respondent Thuppahi Premadhasa who is the 2nd Respondent's mother's brother claims the ownership to the said house upon a forged deed because the 2nd Respondent refused to hand over the house to him.

The 1st Respondent thereafter made a complaint at Rathgama Police Station and the Police fearing a breach of a peace likely to occur filed an application on 30th of July 2004 under Section 66 of the Primary Court's Procedure Act No 44 of 1979.

At the hearing before the Learned Magistrate, both parties filed affidavit together with documents. The 1st Respondent filed his deed which was the forged deed.

The 2nd Respondent also filed his title deed. Thereafter the Learned Magistrate having perused the affidavit and document filed, fixed the date for order on 4/11/2004.

In the affidavit filed by the 1st Respondent he has taken up the position that it was he who rented out the house to M.W.G. Lal and when M.W.G. Lal left the house he handed over the key to him. The Learned Magistrate after fixing the date for order was in doubt as to whose version was correct and therefore the Learned Magistrate decided to summon M.W.G. Lal in order to find out the truth of this matter.

Then M.W.G. Lal gave evidence at the Magistrate Court and both parties cross examined M.W.G. Lal and the Learned Magistrate on the same day delivered his order dated 17/12/2004 in favour of the 2nd Respondent who was at that time and even now is in possession of the said house.

The Magistrate has called the tenant M.W.G. Lal as a witness in order to clear his doubt and after M.W.G.Lal gave evidence he accepted the position that the 2nd Respondent was in the possession of the house and he has rented out the house to M.W.G. Lal.

The Learned Magistrate decided to summon M.W.G. Lal as a witness and record his evidence and thereafter delivered his order dated 17/12/2004 in favour of the 2nd Respondent who was at the time and even now is in possession of the said house. Being aggrieved by the order of the Learned Magistrate the Appellant has preferred this Revision Application to the High Court and the present appeal to this court.

The position of the Appellant was that the Learned Magistrate has erred in law when he decided to summon the witness M.W.G.Lal to give oral evidence in a Section 66 application as the matter should be disposed on the affidavit filed and documents annexed to them in terms of Section 66(3) and 66(5).

Secondly it was contended that the Learned Magistrate who has based his decision solely on the oral testimony of the witness M.W.G.Lal who has failed to consider the fact that this witness who has given documents to both parties was unreliable untrustworthy person as witness who lied in court at the first instance when he was questioned by court whether he signed 1 W13 which he denied and then admitted the same when he was cross examined.

The position of the 2nd Respondent-Respondent-Respondent was that in a Section 66 application the inquiry is held in a summary manner and no evidence is recorded. But in Section 72(b) of the Primary Court's Procedure Act, the Primary Court Judge has the discretion to permit any evidence on any matter arising on the affidavit or documents furnished as that made and that in the present case. The Primary Court's Judge has used his discretion and summoned M.W.G.Lal to give evidence which is in perfectively in order. Further that an order delivered under Section 66 of the Primary Court's Act is only a provisional or temporary order which does not affect or prejudice a civil rights of the parties. That parties affected by the said order can always file a civil action and obtain relief and that in Primary Court's Procedure Act there is no express provision for a judge preventing him from calling a witness. It was contended the rule of Procedure that is applicable to this case is that what is not prohibited is permitted and not the converse rule that what is not permitted is prohibited and that since this is a matter of procedure the rule that what is not prohibited is permitted is applicable.

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's Judge to summon M.W.G.Lal to give evidence in this case. It was a contention of the Respondent 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 provisions of the Civil Procedure Act permits this to be done having referred to the Provisions of the Civil Procedure Code with relevant adaptation. Therefore the Respondent submitted that the decision of the Court to call the evidence of M. W.G.Lal is permissible and valid.

"The question whether the Primary Court Judge has the jurisdiction to summon witnesses of his choice ex mero 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 Ramalingam Vs. Thangarajah. Before he 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 Court's Procedure Act. "

Section 72 of Primary Court's Procedure Act read as follows,

"A determination and order under this part shall be made after examination and consideration of-

(a) the information filed 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; and

In the Case of Ramalingam Vs. Thangarajah, Sharvananda, J 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 affidavits 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 of 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. "

According to the submissions made by the parties we find that the Learned Magistrate has decided to summon the witness M.W.G. Lal to give evidence as he was unable to take a final decision as to who was in possession on the date in question. We find that the M.W.G. Lal has given the key to the 2nd Respondent. Accordingly we are of the view that the Learned Primary Court Judge and the Learned High Court Judge has come to a correct finding about the 2nd Respondent was in possession on the said date. It was further contended that the evidence of M.W.G.Lal was unreliable and untrustworthy and should be rejected.

According to the judgment above states that according to the Section 72(b) of Primary Court's Procedure Act, the Primary Court Judge has discretion to permit any evidence on any matter arising on the affidavit or documents furnished as the court may permit to be led on that matter.

Section 66 of the Primary Court's Procedure Act is only a Provisional or temporary order which does not affect or prejudice civil rights of the parties. We are of the view that since this is a matter of procedure the rule that what is not prohibited is permitted is applicable.

In the case was Karunanayaka V s. Sangakkara 2005 2 SLR 403 it is stated that there is no provision for the judge to call for oral evidence of witness of his own choice. He cannot be permitted to go on a voyage of discovery on his own to arrive at a decision when 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.

Section 72(b) of the Act, does not give sole discretion to judge to decide and power to receive such other evidence. It give judge the power to decide whether to allow or not on application of party that implies existence the consent of parties as a precondition to call other evidence.

It was the contended by the 1st Respondent-Petitioner-Appellant that the Learned Magistrate can only call for evidence after the filing of papers only with the consent of all parties. He can't call a witness on his own unless the parties consent to it. Accordingly in this case we find that the evidence of the M.W.G.Lal has been called by the judge at his own discretion and cross examined by the 1st Respondent-Petitioner-Appellant. Therefore we find that there is no prejudices caused to the 1st Respondent-Petitioner-Appellant and further the 1st Respondent-Petitioner-Appellant has not taken of any objection at the time when the witness was called to give evidence. Accordingly it is presumed that the consent of the 1st Respondent-Petitioner-Appellant has been given. We are of the view that the Learned Magistrate has come to a correct decision when he has summon the witness M.W.G.Lal to give evidence which is perfectly in order. Further we are of the view that the witness M.W.G.Lal is reliable and trustworthy. As such we are of the view that the Learned Magistrate has correctly used his discretion and summon the witness of M.W.G. Lal.

Accordingly we dis allow this appeal and affirm the judgment of the Magistrate Court of Galle and the judgment of the Provincial High Court of Galle with cost.

Judge of the Court of Appeal

L.T.D.Dehideniya, J

I agree.

Judge of the Court of Appeal

THILAK KUMARA UDUGAMA VS. D G RATHNAYAKA

HON. P. PADMAN SURASENA, J

C A (PHC) / 230 / 2001
Provincial High Court of Central Province (Kandy)
Case No. HC (Rev) 301 / 2001
Primary Court Kandy Case No. 66600

In the matter of an Application for revision of an order of the Provincial High Court in the exercise of its revisionary jurisdiction.

Thilak Kumara Udugama, No. 45,
Purnawaththa Road,
Kandy.

PETITIONER - PETITIONER
APPELLANT

Vs

1. D G Rathnaya ka,
Contractor, Trinity College,
Kandy.

2. Morris Ernest Weragoda,
Trinity College,
Kandy.

3. W R Braganrich,
Trinity College,
Kandy.

RESPONDENT - RESPONDENT -
RESPONDENT

Before: K K Wickremasinghe J
P. Padman Surasena J

Counsel: Upul Jayasuriya PC with P Radhakrishnan for the Petitioner-
Petitioner - Appellant.

Respondents - Respondents - Respondents are absent and unrepresented.

Argued on : 2017-06-13

Decided on: 2017- 10 - 09

JUDGMENT

P Padman Surasena J

The Petitioner - Petitioner - Appellant (hereinafter sometimes referred to as the Appellant) had instituted this case against the Respondents Respondents - Respondents (hereinafter sometimes referred to as the Respondents) in the Primary Court of Kandy under section 66 (1) (b) of the Primary Courts Procedure Act, as a private information, seeking an order declaring that he be entitled to have the possession of the impugned land.

Learned Primary Court Judge having inquired into this complaint, had by his order dated 2000-06-27, had concluded that the Respondents are entitled to the possession of this land.

Being aggrieved by the said order made by the learned Primary Court Judge, the Appellant had filed an application for revision in the Provincial High Court of Central Province holden in Kandy seeking a revision of the order made by the learned Primary Court Judge.

The Provincial High Court after hearing parties, refused and dismissed the said revision application on the basis that it was not established that the Appellant was in possession of the impugned land during the two months period immediately prior to the filing of report in Court.

It is against that judgment that the Appellant has appealed to this Court.

The Appellant has prayed in this appeal that the said order of the learned High Court Judge as well as the order of the learned Primary Court Judge be set aside by this Court.

It would be helpful to reproduce section 68 (1) of the Primary Courts Procedure Act No. 44 of 1979 as it would assist this Court to focus on the task it has to undertake in this case. It is as follows;

Section.68

(1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the 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.

(2) An order under subsection (1) shall declare anyone 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 there- from under an order or decree of a competent court, and prohibit all disturbance of such possession otherwise than under the authority of such an order or decree.

Several steps that a Court is obliged to follow in adjudicating a dispute of this nature, i.e. when it relates to the possession of any land or part thereof, could be itemized in their chronological order in the following way;

I. 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 .

II. determine whether 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

III. if he is satisfied that a person has been dispossed as in item II above, make a determination to that effect and make an order that the party dispossessed be restored to possession.

In this regard the following passage from a judgment of this Court in the case of Punchi Nona V Padumasena and others¹ would be relevant.

" ... 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. . .. "

_________________________

¹ 1994 (2) Sri. L R 117.

The Appellant has asserted in his affidavit filed in the Primary Court that he has been in undisturbed possession of this land right through. It is the position of the Respondents that this land is possessed by the Trinity College.

1st Respondent whose capacity remains as just a contractor of Trinity College states in his affidavit filed in the Primary Court that he was contracted to cultivate this land. However, such a person would not be a proper authority to assert any possession of the institution, which claims the possession in this proceedings.

2nd and 4th Respondents in their joint affidavit filed in the Primary Court has stated that this land has been in the continued possession of the Trinity College and that there had never been any breach of peace relating to that land. Both the above affidavits had been sworn on 2003-05-03.

It has transpired that there had been a similar case, which had been previously filed in the Primary Court of Kandy. The parties thereto and the subject matter involved in that case too are the same as in the instant case. The said previous case had been decided on 1998-09-11. The very fact that there had been similar proceeding before the Primary Court in respect of this land, is an indication that there had been no undisturbed possession of this land by either party.

It is to be noted that the order dated 1998-09-11of the Primary Court in the previous case filed, shows that the 2nd Respondent had taken up the position in his affidavit that this land belongs to 'Church Missionary Trust Association '.

Learned President's Counsel who appeared for the Appellant drew the attention of this Court to the plaint dated 1998-07-23 filed by the said 'Church Missionary Trust Association' in District Court Kandy case No. L 19297. It is revealed from the said plaint that this case has been filed against the Appellant by the said plaintiff praying that the Appellant be ejected from the possession and that the plaintiff be restored in the possession of this land.

Several averments in the said plaint reveals that the plaintiff has stated therein;

i. that the Appellant in the instant case had claimed possession on a deed attested on 1994-03-29,

ii. that the Appellant in the instant case had applied to the Municipal Council for the registration of his name as the owner of this property,

iii. that the Appellant in the instant case had claimed to have acquired the ownership of this land on a deed purported to have been signed by a person said to be one of the trustees of 'Church Missionary Trust'.

These facts, at its least, show that the averments of the pleadings of the Respondents in the instant case that they had an undisturbed possession of the impugned land should not be acted upon by Court.

Therefore, the conclusion arrived at by the Primary Court Judge in the instant case that the Respondents had continued to enjoy possession of this land since the year 1996 is clearly erroneous and lacks any factual basis.

As has been held in the case of Punchi Nona V Padumasena and others² the Primary Court exercising special jurisdiction under section 66 of the Primary Courts Procedure Act, is not involved in an investigation into title

² 1994 (2) Sri. L R 117.

or the right to possession, which is the function of a civil Court. What the Primary Court is required to do is to take a preventive action and make a provisional order pending final adjudication of rights of the parties in a civil Court.

The Respondents have failed to appear despite the notices repeatedly sent to them by this Court. Thus, this Court has to conclude that the Respondents are not interested in this matter.

For the foregoing reasons this Court is of the opinion that it cannot justify the impugned orders. In these circumstances this Court proceeds to set aside the order of the learned Primary Court Judge, dated 2000-06-27 as well as the order of the learned High Court Judge dated 2001-10-09.

It appears that this dispute is approximately about twenty years old. The Respondents, by now, appear to have lost interest in this matter³ . The Appellant is said to be in the possession of this land at the moment.

The Parties have already gone before the District Court and as such, their respective rights could be decided in those proceedings. Therefore, this³ They are absent and unrepresented in this Court.

Court is of the view that it would not be necessary to make any positive order with regard to possession.

JUDGE OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

HANDUWALAGE SUGATHAPALA VS. HANDUWALAGE RUWANI

hON. W.M.M. MALINIE GUNARATNE, J

Court of Appeal Application No. C A (PHC) 129/2004

Kalawana Circuit Magistrate Courts 1763
High Court Ratnapura
Case No.HCR/RA 07/2004

In the matter of an appeal in terms of section 154(P) of the Constitution of the Democratic Socialist Republic of Sri Lanka. Read with the Article 138 of the constitution of the Democratic Republic of Sri Lanka

In the matter of an application in terms of section 66(1) of the Primary Courts Procedure Act No.44 of 1979.

1. Handuwalage Sugathapala

2. Kuttapitiyage Mallika
Weddagala North, Weddagala,
Kalawana.

2nd, 3rd RESPONDENT-PETITIONERS
VS.

Handuwalage Ruwani Nissansala
Weddagala North, Weddagala.
Kalawana.

1st RESPONDENT- RESPONDENT

Now By and Between

1. Handuwalage Sugathapala

2. Kuttapitiyage Mallika

Weddagala North, Weddagala,
Kalawana

2nd, 3rd RESPONDENT-PETITIONER-APPELLANT
Vs.

Handuwalage Ruwani Nissansala
Weddagala North, Weddagala,
Kalawana

1st RESPONDENT -RESPONDENT -RESPONDENT

BEFORE : W.M.M. Malini Gunaratne, J.
P.R. Walgama, J.

COUNSEL : S.Gunawardena for the 1st Party Respondent Respondent
Appellants absent and are unrepresented.

Argued on : 04/03/2015

Decided on : 01.06.2015

Malinie Gunaratne, J.

Pursuant to an information filed by Kalawana Police in terms of Section 66 of the Primary Court Procedure Act the learned Primary Court Judge of Kalawana held an inquiry into the dispute between 2nd Respondent Petitioners - Appellant (hereinafter referred to as the Appellants) and 1st Respondent-Respondent -Respondent (hereinafter referred to as the Respondent) in respect of the land called Batahena, held that the respondent was in possession of the land in dispute on the date of filing the information and accordingly prohibited any interference by the appellants.

Dissatisfied with that order the appellants filed an application in revision in Ratnapura High Court which was dismissed on 10/05/2004. Thereafter they invoked the appellate jurisdiction of this Court seeking to set aside the order of the High Court Ratnapura dated 10/05/2004. However, it is relevant to note that the petition of appeal do not contain any material to show that the order of the learned High Court Judge is wrong and not valid in law. It is significant to note that the appellants have not sought to set aside the order dated 19/12/2002 made by the learned Primary Court Judge of Kalawana. Hence, the order of the Primary Court Judge would prevail in favour of the respondent and against the appellants.

This appeal was taken up for hearing in the absence of the appellants on 04/03/2015. Learned Counsel for the Respondent contented, since the appellants have not asked any substantive relief from this Court, the petition of appeal is bad in law and has to be dismissed in limine.

It is pertinent to note that the pleadings of the appellants are in total disarray and are ambiguous giving rise to the conclusion that draftsman of the pleadings was totally negligent and confused as to whether the relief should be sought in what form or what forum. The petition of appeal appears to be a mixture of a Petition of Appeal and a Petition in Revision application.

In a petition of appeal of this nature the pleadings should not be ambiguous but specific. The negligence on the part of the draftsman of pleadings should amount to the disadvantage of the appellant and the petition of appeal must be dismissed on this ground alone.

In the above circumstances this appeal is dismissed.

Appeal is dismissed.

JUDGE OF THE COURT OF APPEAL

I agree

JUDGE OF THE COURT OF APPEAL

NIMAL KARUNARATHNE VS. LEELAWATHI J RATHNAYAKE

HON. P. PADMAN SURASENA, J (P/CA)

C A (PHC) 157 / 2003

Provincial High Court of Southern Province (Matara) Case No. 205/2000
Magistrate's Court Morawaka Case No. 13712

In the matter of an appeal against an order of the Provincial High Court in the exercise of its revisionary jurisdiction.

Nimal Karunarathne,
Kammalgodawatte,
Galatumba, Deiyandara.

1st PARTY - 1st RESPONDENT-APPELLANT

-Vs-

1. Leelawathi Jayawardena Rathnayake,
Pandithaporuwa,
Deiyandara.

2nd PARTY - PETITIONER -RESPONDENT

2. Wijethunga Kulappu Arachchige Don
Andrayas (Deceased),
Paluwatte,
Pandithaporuwa,
Deiyandara.

3rd PARTY - RESPONDENT -RESPONDENT

3. Karunawathie Jayasekera,
Palugahawatte,
Pandithaporuwa,
Deiyandara.

LEGAL REPRESENTATIVE OF 2 INTERVEINIENT PARTY -
RESPONDENT

Wijethunga Kulappu Arachchige Don Sisiliyana,
Paluwatte, Pandithaporuwa,
Deiyandara.

4th PARTY - 3rd RESPONDENT -RESPONDENT

5. Abeysiri Narayana Wanigarathne Nandasiri,
No 12/4, Kalugahahena,
Galatumba,
Deiyandara.

5th PARTY - 4th RESPONDENT -RESPONDENT

6. Kodithuwakku Arachchige Sirisena,
Galgoda, Pandithaporuwa,
Deiyandara.

6th PARTY - 5th RESPONDENT- RESPONDENT

Before: P. Padman Surasena J (P/CA)
K K Wickremasinghe J

Counsel : Rohan Sahabandu PC for the 1st Party - Respondent - Appellant.
T K Azoor for the Respondents.

Argued on : 2017 - 10 - 25.

Decided on : 2018 - 02 - 28

JUDGMENT

P Padman Surasena J

Officer in charge of the Police Station Mawarala has referred the instant dispute to the Primary Court of Deiyandara in terms of Section 66 (1) (a) of the Primary Court Procedure Act No 44 of 1979 (hereinafter referred to as the Act). In the report filed by the Police 1st Party - 1st Respondent - Appellant (Nimal Karunaratna) (hereinafter sometimes referred to as the Appellant) has been named as the 1st Party and the 2nd Party - Petitioner -Respondent (Leelawathie Jayawardena) (hereinafter sometimes referred to as the 1st Respondent) has been named as the 2nd Party.

The 3rd Party - Respondent - Respondent (hereinafter sometimes referred to as the 2nd Respondent), 4th Party - 3rd Respondent - Respondent (hereinafter sometimes referred to as the 3rd Respondent), 5th Party - 4th Respondent - Respondent, (hereinafter sometimes referred to as the 4th Respondent), 6th Party - 5th Respondent - Respondent (hereinafter sometimes referred to as the 5th Respondent), have also got themselves added as parties after the notice was affixed on the land.

After the inquiry learned Primary Court Judge by his order had directed that the fence erected by the 1st Respondent be removed.

Being aggrieved by the learned Magistrate's order the 1st Respondent had filed a revision application in the Provincial High Court of Southern Province holden in Matara.

The Provincial High Court, after hearing, had allowed the said revision application on the basis that the learned Primary Court Judge had not correctly applied the provisions of the Act.

It is against that judgment of the Provincial High Court that the Appellant has lodged the instant appeal.

Learned president's counsel for the Appellant first submitted that the learned Provincial High Court Judge should have upheld the preliminary objection raised before him by the Appellant. However, as has been pointed out by the learned Provincial High Court Judge the absence of some documents had not in any way restrained the Provincial High Court from examining the legality of the Primary Court Judge's order because the learned Primary Court Judge had not based his conclusion on those documents. Therefore, there is no basis for this Court to find fault with the learned Provincial High Court Judge for overruling the said objection.

The Appellant admittedly has purchased the relevant property on 1999-09-03. That is by the deed of transfer bearing No. 152 attested by Thilak Karunanayake Notary Public. It is also a fact that the Appellant had complained to police about the relevant dispute on 1999-09-25. It was thereafter that the Officer in Charge of Mawarala Police Station had filed the information relevant to this case in the Primary Court on 1999-10-15.

At the outset, this Court observes that the earliest starting point the Appellant may claim to have commenced possession of this property would be since 1999-09-03. This is because it is on 1999-09-03 that the Appellant had purchased this land.

Therefore, it is obvious that the Appellant could not have possessed this property for a period of 2 months immediately before 1999-10-15, which is the date on which the information had been filed in Court.

It is also clear that it is an undivided portion of land that the Appellant had purchased. It is the assertion by the Appellant himself that he had gone to Colombo soon after purchasing this land on 1999-09-03. The Appellant had observed an erected fence only when he returned to the land from Colombo after few days. This indicates clearly that the Appellant has had no time to be in possession of this land after he purchased it. Indeed, it is to be noted that the Appellant has not stated in his affidavit also that he had possessed this land.

Therefore, the conclusion of the learned Provincial High Court Judge that it was the 1st Respondent who had been in possession of this land at the time the relevant information under section 66 was filed in Court is the correct conclusion.

This Court observes that it is the determination the learned Primary Court Judge should have made under section 68 (1) of the Act which is as follows.

Section. 68 (1)

"Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the 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. "

Since there is no evidence that any person who had been in possession of this land or part has been forcibly dispossessed within a period of two months immediately before the date on which the information was filed, there had been no necessity for a determination under section 68 (3) of the Act which is as follows.

"Where at an inquiry into a dispute relating to the right 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, the provisions in section 68 (3) of the Act has no application to the facts of the instant case.

This Court in the case of Punchi Nona V Padumasena and others¹ has explained as to when the said provision should be applied in following terms.

For the above reasons, the submission made by the learned President's Counsel for the Appellant that the learned Provincial High Court Judge has erred when he determined that it was 1st Respondent who had been in possession of this land as at the date of filing the relevant information in Court is unacceptable.
__________
¹1994 (2) Sri. L R 117.

In these circumstances, this Court is of the opinion that the learned Provincial High Court Judge has correctly allowed the revision application filed before it by the 1st Respondent.

Hence, this Court decides to affirm the judgment dated 2003-05-07 of the learned Provincial High Court Judge and proceed to dismiss this appeal with costs fixed at Rs. 50.000/= payable by the Appellant to the 1st Respondent.

Appeal dismissed with costs fixed at Rs. 50,000/=

JUDGE OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree

JUDGE OF THE COURT OF APPEAL

W. L. SANDHYA KUMARI VS W. L. PUSHPA MANEL,

HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 117/2015

PHC RATNAPURA CASE NO: 33/2010/RA
MC RAKWANA CASE NO: 40324

Wellakke Lokuge Sandhya Kumari,
Obada Kanda,Rakwana.

2nd Respondent-Petitioner-Appellant

Vs.

Wellakke Lokuge Pushpa Manel,
Obada Kanda, Rakwana.

1st Respondent-Respondent-Respondent and others

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel: Anuruddha Dharmaratne for the Appellant. Shantha Jayawardena for the Respondent.

Decided on : 27.08.2019

Mahinda Samayawardhena, J.

The 2nd respondent-petitioner-appellant (appellant) has filed this appeal against the Judgment of the High Court which affirmed the order of the Magistrate's Court delivered under section 66 of the Primary Courts' Procedure Act.

The Magistrate's Court held with the 1st respondent-respondent- respondent (respondent) who is a sister of the appellant.

The dispute relates to a room of a house which was padlocked by the appellant after the death of their father on the basis that the father gifted the property to the appellant by way a Deed. This has happened within two months before filing the application in Court by the police.

The learned High Court Judge in the impugned Judgment has correctly analyzed the facts of the case when she affirmed the order of the Magistrate's Court. There is no necessity to repeat them here.

The pivotal argument of the learned counsel for the appellant before this Court is that the order of the Magistrate's Court cannot be allowed to stand in view of the agreement reached between the parties to accept an order after a site inspection by the learned Magistrate. It is the contention of the learned counsel that notwithstanding site inspection was done, the learned Magistrate has delivered the order without any reference to the site inspection.

When I peruse the Magistrate's Court case record it is seen that the order was due on 10.03.2010. On that day, it appears to me that the order was ready. Why I say so is that the order delivered on 21.04.2010 is dated 10.03.2010. On 10.03.2010, the parties have informed the Court that they are agreeable to have an order after an inspection by the learned Magistrate. Inspection has been done on 17.03.2010 and according to the inspection notes filed of record, it seems that the learned Magistrate could not come to a just conclusion, and therefore the learned Magistrate has re-fixed the matter for the order for 21.04.2010. In the meantime, the appellant has sent a long letter to the learned Magistrate (vide pages 477-481 of the Brief) explaining the situation after the inspection. By reading that letter, it is clear that there is no settlement and any order allowing both parties to live together in the house would have ended up with serious breach of the peace.

Thereafter the learned Magistrate has delivered the order dated 10.03.2010 on 21.04.2010. I see nothing seriously flawed in that procedure. The learned Magistrate has taken extra troubles to amicably settle the matter when the order was ready, and, failing which, the order has been delivered on merits. It is not the submission of the learned counsel for the appellant that if the order were to be delivered purely on inspection, it would have been in favour of the appellant. Inspection notes filed of record do not suggest so. That objection regarding procedure is a technical objection, which has no place in section 66 applications where the sole intention is to make provisional orders to prevent breach of the breach until the substantive dispute is determined by a civil Court.

The 2nd respondent shall vindicate his rights by filing a civil case in the District Court, if so advised. Appeal is dismissed but without costs.

Judge of the Court of Appeal

K.K. Wickramasinghe, J.
I agree. Judge of the Court of Appeal

K. H. SIRI BANDULA VS K. H. KITHSIRI MAHINATHA

HON JANAK DE SILVA, J.

Case No. CA(PHC)152/2013
PHC Kandy Rev.Application No:52/10
M.C.Kandy Case No:20562

Koraburuwane Hetitiarachchige Siri Bandula,
No. 39 Rosawatta,
Kandy.

1st Respondent-Petitioner-Appellant

Vs.

1. Koraburuwane Hetitiarachchige Kithsiri
Mahinatha,
No. 39 Rosawatta,
Kandy.

Petitioner-Respondent-Respondent

2. Madushika Nilushika Hettiarachchi,

3. Sashikala Nisansala

4. Ashen Hettiarachchi
4. Neela Arundathie
Kandy.

Respondents-Respondents-Respondents

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: S. N. Vijith Singh for 1st Respondent-Petitioner-Appellant
Chandana Wijesooriya for the Petitioner-Respondent-Respondent

Argued on: 09.03.2018

Decided on: 05.10.2018

Janak De Silva J.

This is an appeal against the order of the learned High Court Judge of the Central Province holden in Kandy dated 08.10.2013.

The Petitioner-Respondent-Respondent (Respondent) instituted proceedings under section 66(1) (b) of the Primary Courts Procedure Act (Act) on 15.09.2009 and claimed that the 1st Respondent - Petitioner - Appellant (Appellant), his wife, the 2nd Respondent-Respondent Respondent, (2nd Respondent) and three children, the 3rd to the 5th Respondents-Respondents Respondents (3rd to 5th Respondents) had initially disturbed his possession by breaking the wall that separated the two portions of the building that the parties were occupying separately and causing damage to his part of the building.

After inquiry the learned Primary Court judge concluded that the Respondent had been in possession of Lot 1, Lot 7 and the part of the building on Lot 7 as depicted in Plan No 1500 made by M.S.K.B Mawalagedara Licensed Surveyor and that the Appellant and the 2nd to 5th Respondents had forcibly dispossessed him from the same two months before the filing of information in the Primary Court. Accordingly, the learned Primary Court judge made an order directing that the Respondent be restored to possession and prohibiting all acts which could disturb the Respondent's possession.

It is trite law that an objection to the jurisdiction of a court must be raised by a party at the first available opportunity (Section 39 of the Judicature Act). This principle has been followed by our courts in the context of proceedings before Primary Courts as well [Navaratnasingham v Arumugam (1980) 2 Sri. L. R. 1, Paramasothy v Nagalingam (1980) 2 Sri L. R. 34]. However, our courts have also recognized a distinction between cases where there is a patent want of jurisdiction and latent want of jurisdiction. [Kandy Omnibus Co Ltd v T. W Roberts 56 N.L.R. 293, Beatrice Perera v The Commissioner of National Housing 77 N.L.R. 361, Colombo Apothecaries Ltd and others v Commissioner of Labour (1998) 3 Sri. L.R. 320]

In the former type of cases, a waiver of an objection or acquiescence on the part of a party in raising an objection in the first instance does not give jurisdiction to court to try the matter [Colombo Apothecaries Ltd and others v Commissioner of Labour (supra)]. Consequently, if a court labours under a patent want of jurisdiction, any objection to the assumption of such jurisdiction cab be raised before a higher court (either in Appeal or Revision), even if the party raising that objection has failed to do so in the first instance. [Kandy Omnibus Co Ltd v T. W Roberts (supra)]. It is therefore necessary to assess whether the objections raised by the Appellants for the first time at the revision stage are objections impugning a patent lack of jurisdiction on the part of the Primary Court. The learned High Court judge would have been under a legal duty to take cognizance of one or more of these objections only if they showed that the Primary Court laboured under a patent lack of jurisdiction.

Patent v Latent Want of Jurisdiction

In Kandy Omnibus Co Ltd v T. W Roberts (supra) Sansoni J, quoted with approval the following passage from Spencer Bower on Estoppel by Representation (1923) at page 187:

"Where it is merely a question of irregularity of procedure, or of a defect in ' contingent' jurisdiction, or non-compliance with statutory conditions precedent to the validity of a step in the litigation, of such a character that, if one of the parties be allowed to waive, or by conduct or inaction to estop himself from setting up, such irregularity or want of' contingent' jurisdiction or non-compliance, no new jurisdiction is thereby impliedly created, and no existing jurisdiction is thereby impliedly extended beyond its existing boundaries, the estoppel will be maintained, and the affirmative answer of illegality will fail, for, the Royal prerogative not being invaded, and the State therefore not being injured, nor any of His Majesty's subjects for whom that Royal prerogative is held in trust, there is no ground of public policy, or other just cause, why the litigant, to whom alone in that case the statutory benefit belongs, should not be left free to surrender it at pleasure, or why having be surrendered it, whether by contract, or by conduct or inaction implying consent, he should be afterwards permitted to claim it. Accordingly, in all cases of the first class, that is, of defectus jurisdictionis the representor has been held incapable of estopping himself from resisting the usurped authority; whereas in all those of the other class that is of mere defectus triationis the affirmative answer has been rejected, and the representor has been held estopped from objecting to the irregularity"

In Beatrice Perera v The Commissioner of National Housing (supra) the court made the following observation:

"Lack of competency may arise in one of two ways. A Court may lack jurisdiction over the cause or matter or over the parties; it may also lack competence because of failure to comply with such procedural requirements as are necessary for the exercise of power by the Court. Both are jurisdictional defects; the first mentioned of these is commonly known in the law as a ' patent' or 'total' want of jurisdiction or a defectus jurisdictionis and the second a ' latent' or ' contingent' want of jurisdiction or a defectus triationis."

.... a question of irregularity of procedure, or of a defect in ' contingent' jurisdiction, or non-compliance with statutory conditions precedent to the validity of a step in the litigation. [Kandy Omnibus Co Ltd v T. W Roberts (supra)] or

... failure to comply with such procedural requirements as are necessary for the exercise of power by the Court. [Beatrice Perera v The Commissioner of National Housing (supra)]

A Primary Court will labour under a patent lack of jurisdiction if - for example - one of the thirty six different types of actions specified in the Fourth Schedule to the Judicature Act is instituted in a Primary Court. If a section 66 application which does not comply with the requisite statutory procedure is instituted and continued before a Primary Court it will have to be regarded as a situation of latent want of jurisdiction. This is because the Primary Court continues to have jurisdiction over the subject matter of the application despite the procedural defects in making that application. [Navaratnasingham v Arumugam (1980) 2 Sri LR 1 at 6]

A perusal of the available record of Case No 20562, shows that the Appellant has failed to raise the aforementioned objections in his affidavit filed on 2009.11.10 (Vide page 246 - 248 of the Appeal Brief) and subsequently in the written submissions filed on 2009.12.21 (Vide pages 178 - 179 of the Appeal Brief). Accordingly, I am of the opinion that the learned High Court judge was correct in disregarding the objections raised by the Appellant for the first time in his revision application filed before the High Court. The acquiescence on the part of the Appellant in raising the objections has cured the latent want of jurisdiction that existed before the Primary Court of Kandy.

Grant of relief not prayed for in the affidavit

The next question is whether the Primary Court judge could have granted reliefs that have not been prayed for in the affidavit. The Appellants have raised this point for the first time in their written submissions filed before this court and rely on Weragama v Bandara (77 N.L.R. 28) and Buddhadasa Kaluarachchi v Nilamanie Wijewickrema and another [(1990) 1 Sri.L.R. 262] to demonstrate that a court is not entitled to grant relief that has not been prayed for by a party. This principle has undoubtedly received widespread judicial recognition in the context of proceedings held under the Civil Procedure Code. The apex courts have consistently held that a District Court is not entitled to grant reliefs to a party if the relief is not prayed for in the prayer to the plaint. [Sirinivasa Thera v Sudassi Thera (63 N.L.R. 31), Wijesuriya v Senaratna (1997) 2 Sri. L.R. 323, Surangi v Rodrigo (2003) 3 Sri. L.R. 35]

The aforementioned principle has also recently been adopted in the context of Primary Court proceedings. In Dias and another v. Dias and another [CA (Rev) Application No: 63/2016; CAM. 12.08.2016] a divisional bench of this court observed as follows:

"We find that the Learned Magistrate has erred in ordering that the respondents be restored to possession when there is no such prayer in the petition by the respondents. The respondents had not prayed for restoration of possession this is a private information under Section 66(l)(b) of the Primary Courts Procedure Act in terms of Section 66 (1)(b) the petitioner has to set out the relief sought."

I will now consider whether the said decision sets out the correct position of law on the question now before us.

Sections 68(1) and (2) of the Primary Courts Procedure Act (Act) reads:

"(1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the 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.

(2) An order under subsection (1) shall declare anyone 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 an order or decree." (Emphasis added)

For the foregoing reasons, with the greatest respect to their lordships in Dias and another v. Dias and another (supra), I hold that in a private information under Section 66(1){b) of the Act it is not incumbent on the petitioner to specifically pray for restoration to possession. That is a relief that the learned Primary Court Judge is under a statutory duty to consider and grant after due inquiry.

"Unless there is some grave miscarriage of justice it would not be appropriate to interfere with the judgment of the trial judge who enters judgment after careful consideration of the first-hand evidence put before her to which the Judges of the Appellate Court would not have the ability to witness."

In the matter before us, the defect in the prayer of the Respondent's affidavit does not at any point prejudice the substantial rights of the Appellant or occasion a failure of justice. Despite prayer (b) to the affidavit seeking a declaration to the effect that the Respondent is entitled to the ownership of Lot 1, Lot 7 and the part of the building on Lot 7, the Primary Court judge has carefully limited himself to assessing the question of possession in terms of section 68(3) of the Act.

The learned Primary Court judge has initially made a determination that the Respondent had been dispossessed from his part of the land and the building within two months prior to the filing of information. The learned Primary Court judge has thereafter made an order directing that the Respondent be restored to possession of the part of the land/building and has also prohibited all interference/disturbance of such possession (Vide pages 194 -195 of the Appeal Brief). Thus, it is clear that the learned Primary Court judge has disregarded the defective and irregular prayer in the affidavit and made an order that is strictly in accordance with section 68(3) of the Act.

For the foregoing reasons, I see no reason to interfere with the order of the learned High Court Judge of the Central Province holden in Kandy dated 08.10.2013. Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

VISVANADAN WIMALANADAN VS SELLAIYYA RAJENDRAN

HON JANAK DE SILVA, J.

Case No. CA(PHC) 50/2014

P.H.C. Kandy Case No. 69/2010 (Rev)
M.C. Helboda Case No. 19000

01. Visvanadan Wimalanadan,
No: 102
Nuwaraeliya Road,
Para deka.

02. Visvanadan Lingeshwary
No: 102
Nuwaraeliya Road,
Para deka.

2nd and 4th Respondents-Respondents-Appellants
Vs.

01. Sellaiyya Rajendran,
No: 102/1,
Nuwaraeliya Road,
Para deka.

02. Ponnaiyya Parameshwari,
No: 102/1,
Nuwaraeliya Road,
Para deka.

1st and 3rd Respondents-Petitioners-Respondents

Before : K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: N.T.S. Kularatne with S.A. Kulasuriya for 2nd and 4th Respondents-Respondents-Appellants 1st and 3rd Respondents-Petitioners-Respondents absent and unrepresented.

Written Submissions tendered on : 2nd and 4th Respondents-Respondents-Appellants on 31.08.2018

Argued on: 26.06.2018

Decided on: 18.01.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court Judge of the Central Province holden in Kandy dated 18.06.2014.

On 15.11.2006 the officer-in-Charge of Pussellawa Police Station instituted proceedings in the Magistrates Court of Helboda in terms of section 66(1)(a) of the Primary Courts Procedure Act (Act). It was reported that a dispute affecting land had arisen between the parties mentioned in the report over possession of a portion of land. I will not refer to the complete litigation history but limit only to the facts relevant to this appeal.

After affording parties the opportunity of filing affidavits and counter affidavits, the learned Magistrate made order dated 06.10.2010 by which he held that the 2nd and 4th Respondents Respondents-Appellants (Appellants) were in possession of the property in dispute since 14.11.1995 up to the time information was filed i.e. 15.11.2006 and accordingly held that they are entitled to possess the said property.

The 1st and 3rd Respondents-Petitioners-Respondents (Respondents) made an application in revision against the said order to the High Court of the Central Province holden in Kandy. The learned High Court Judge held that the learned Magistrate had correctly concluded that the Appellants were in possession of the structure marked 'C' in view of the evidence contained in documents marked since 1995. However, he said that such a conclusion can be arrived at by applying the presumption in section 114 of the Evidence Ordinance but that the said presumption is a rebuttable presumption.

The learned High Court Judge held that the learned Magistrate had failed to address his mind to section 68(3) of the Act to determine whether dispossession has taken place within a period of two months immediately before the date on which the information was filed. The learned High Court Judge concluded that the evidence showed that such a dispossession took place and accordingly, set aside the order dated 06.10.2010 of the learned Magistrate and directed the Respondents to be restored to the possession of the land in dispute. Hence this appeal.

In concluding that the Respondents were in possession of the land in dispute the learned High Court Judge refers to the fact that three years prior to the information been filed, the kitchen situated behind the building bearing assessment no. 102/1 collapsed onto one Asoka Malkanthi's kitchen (the Appellants are claiming the disputed land through Asoka Malkanthi) and that the new structure put up by the Appellants on 26.10.2006 was therefore put up on the land which was in possession of the Respondents since 3 years prior to the date of the dispossession of the Respondents. The Appellants submits that the learned High Court Judge erred in arriving at the said conclusion.

The judgment of the learned High Court Judge quite clearly indicates that he agrees with the findings of the learned Magistrate that the Appellants were in possession of the structure marked 'C' in view of the evidence contained in documents marked since 1995. The question is whether he was correct in concluding that the Appellants had lost possession to the Respondents. He relies on the collapse of the structure three years prior to the information been filed.

It is trite law that in a contract of tenancy, the tenant is-entitled to the use and occupation of the building, and if there is no building to use and, occupy, there is no contract. If the building is completely destroyed the contract comes to an: end even, though the land remains- (Wille - Landlord & Tenant 4th Ed. 249). However, this is not a case dealing with tenancy. The question is who was in possession of the land in dispute on the date information was filed or whether any person was dispossessed within two months prior to the date on which information was filed.

Sharvananda J. (as he was then) in Ramalingam v. Thangarajah [(1982) 2 Sri.LR. 693 at 698] held:

"In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof. 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 proceeding the date on which the information was filed under section 66. The effect of this sub-section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66."

In this context it is important to ascertain what is meant by "dispossession". In this endeavor one must begin by ascertaining the attributes of possession.

Possession is defined by Voet in Book XLI, Tit. 2, Section 12, of his Pandects as follows:

"Possession is kept (i) By mind and body together; or (ii) Even by the mind alone, so much so that, although another has seized possession by stealth in the absence of the possessor, nevertheless the earlier possessor does not cease to possess until, being aware that the other has made an entry, he has not had the courage to go back into possession, because he fears superior force. In such a case he who seized possession appears to possess rather by force than by stealth. "

Possession and all its consequences may be preserved by intention alone so long as no other person has taken physical occupation of the thing [Grotious 2.2.4]. Possession once taken over can continue in law though not in fact and if a third party secretly enters into possession of the property possessed by the possessor, the possession of the possessor is not seized until the possessor becomes aware of the third parties claim to adverse possession.

Voet defines disturbance of possession in Book XLlll, Tit. 17, Section 3 as follows:

"This interdict is granted against those who maintain that they also have possession, and who under that pretext disturb one who abides in possession. They may do this by bringing force to bear upon him, or by not allowing the possessor to use at his discretion what he possesses, whether they do so by sowing, or by ploughing, or by building or repairing something or by doing anything at all by which they do not leave the free possession to then- opponent. This applies whether they do these things by themselves, or bid them to be done by their agent or household, or ratify the act when done, in the same way as that in which I have said in my title on 'The Interdict as to Force and Force with Arms' that this rule holds good with the interdict against force. "

In the above context, having concluded that Appellants were in possession of the structure marked 'C' in view of the evidence contained in documents plan marked since 1995, it was incumbent on the learned High Court Judge to ascertain whether the Respondents had taken physical occupation of the land in dispute thereafter. The only fact relied on by the learned High Court Judge to do so is the destruction of the structure three years prior to the information been filed. I hold that the learned High Court Judge erred in concluding that the Respondents were in possession of the land in dispute for 3 years prior to the date of the dispossession of the Respondents.

For the foregoing reasons, I set aside the order of the learned High Court judge of the Central Province holden in Kandy dated 18.06.2014 and confirm the order dated 06.10.2010 made by the learned Magistrate of Helboda.

The appeal is allowed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

M. A. A. MOHIDEEN VS. R. DEWAGE SUDATH ROHITHA

HON JANAK DE SILVA, J.

Case No.CA (PHC) 166/2012
H.C. Avissawella Case No. HCA 17/2012 (Rev)
M.C.Avissawella Case No.47993/12

Mohemed Abdulla Ahamed Mohideen
124, High Level Road,
Pahathagama,Hanwella.
1st Party Respondent-Petitioner-Appellant

Vs.

Ranminipura Dewage Sudath Rohitha
Vishwakula
D 42/1, Kumburadeniya, Danowita.

2nd Party Respondent-RespondentRespondent

Hettiarachchige Shirley Perera
105, Barnes Place, Colombo 07
Intervenient-Respondent-RespondentRespondent

Officer-in-Charge,
Police Station,
Hanwella.

Complainant-Respondent-Respondent

The Han. Attorney General,
Attorney General's Department,
Colombo 12.

Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: M.S.A. Shaheed with A.M. Hussain for 1st Party Respondent-Petitioner-Appellant
Malaka Herath for 2nd Party Respondent-Respondent-Respondent and Intervenient-Respondent Respondent-Respondent

Argued on: 22.02.2018

Decided on: 11.01.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court judge of the Western Province holden in Avissawella dated 12.12.2012.

The Complainant-Respondent-Respondent filed information in the Magistrates Court of Avissawella in terms of section 66(1)(a) of the Primary Courts Procedure Act on 2012.06.18. As the information disclosed a dispute affecting land between the 1st Party Respondent Petitioner- Appellant (Appellant) and the 2nd Party Respondent- Respondent - Respondent (2nd Party Respondent) that threatened or was likely to lead to a breach of peace, the learned Primary Court judge directed that a notice be affixed to the disputed corpus inviting any parties interested to appear in court on the date mentioned in the notice and file affidavits setting out their claims .

Thereafter, the Intervenient Respondent - Respondent - Respondent (Intervenient Respondent) intervened on the date mentioned by filing an affidavit and documents setting out his claim. The learned Primary Court judge - having perused the affidavits, counter affidavits and written submissions of the aforementioned parties - came to the conclusion that this was a dispute relating to the possession of a part of a land. The learned Primary Court judge also reasoned that the dispute must be dealt with in terms of section 68(1) of the Primary Courts Procedure Act as no party had alleged that they had been dispossessed from the land within two months prior to the filing of information. (Vide pages 50 - 51 of the Appeal Brief) Accordingly, having identified the disputed corpus, the learned Primary Court judge came to the conclusion that the Intervenient Respondent had been in constructive possession of the land in dispute through the 2nd Party Respondent on the date of the filing of information. The Intervenient Respondent was therefore placed in possession of the disputed corpus.

It was submitted that,

(a) the caption of the revision petition failed to explicitly disclose the legal provision under which the revision petition was being presented to the High Court

(b) the body of petition did not specify the exceptional circumstances which necessitated the High Court to exercise its revisionary jurisdiction

Defective Caption

There is no dispute that in terms of Article 154P (3)(b) of the Constitution a High Court of a Province has revisionary jurisdiction in respect of orders entered by Primary Courts within the Province. In Vanik Incorporation Ltd. vs. L.D. Silva and others [(2001) 1 Sri L.R. 110] S.N. Silva C.J. held that the appeal to the Supreme Court, though erroneously made under section 5(2) of the High Court of the Provinces (Special Provisions) Act. No. 10 of 1996. is referable to section 37 of the Arbitration. Act. No. 11 of 1995 in terms of which an appeal lies to the Supreme Court on a question of law, with leave and hence the mistaken reference in the caption shall not result in the rejection of the appeal. Accordingly, I hold that the learned High Court Judge erred in holding that the application should be dismissed as the Appellant had failed to specify the relevant statutory provision under which the revision application was made.

Exceptional Circumstances

The other ground on which the learned High Court Judge refused notice was that the Appellant had failed to establish exceptional circumstances warranting the exercise of revisionary powers.

Section 74(2) of the Primary Courts Procedure Act prohibits an appeal against any determination or order made under Part VII of the said Act. Accordingly, the Appellant could not have appealed to the High Court.

However, in Dharmaratne and another v. Palm Paradise Cabanas Ltd. and others [(2003) 3 Sri L.R. 24 at 30] Amaratunga J. held:

Accordingly, the learned High Court Judge was correct in requiring exceptional circumstances in deciding whether to exercise revisionary powers.

Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

K.D. WIJETHUNGA vs S. M. PABILIS SINGHO

HON. L.T.B. DEHIDENIYA, J

Court of Appeal case no. CA/PHC/30/2009

H.C. Kegalla case no. RA 2561
M.C. Mawanella case no. 99081

Senarath Mudalige Pabilis Singho
8th Mile Post, Ussapitiya

Petitioner
Vs.

K.D. Wijethunga
8th Mile Post, Ussapitiya

Respondent.
AND

K.D. Wijethunga
8th Mile Post, Ussapitiya

Respondent Petitioner
Vs

Senarath Mudalige Pabilis Singho
8th Mile Post, Ussapitiya

Petitioner Respondent
AND NOW

K.D. Wijethunga
8th Mile Post, Ussapitiya

Respondent Petitioner Appellant
Vs

Senarath Mudalige Pabilis Singho
8th Mile Post, Ussapitiya

Petitioner Respondent Respondent

Before : H.C.J. Madawala J.
L.T.B. Dehideniya J.

Counsel : Kumari Dunusinghe for the Respondent Petitioner Appellant.
W.D.Weeraratne for the Petitioner Respondent Respondent.

Argued on : 06.09.2016

Written submissions filed on : 04.11.2016

Decided on : 29.03.201

L. T .B. Dehideniya J.

This is an appeal from the High Court of Kegalla.

The Petitioner Respondent Respondent (hereinafter sometimes called and referred to as the Respondent) filed information under section 66(1)(b) of the Primary Court Procedure Act, as a private plaint in the Magistrate Court of Mawanella, informing Court that a land dispute has arisen and the breach of the peace is threatened or likely. The Respondent stated to Court that he was in possession of the land described in the schedule to the plaint from 1992 on the strength of the ownership obtained by the deed marked as Pe 1. The Respondent Petitioner Appellant (hereinafter sometimes called and referred to as the Appellant) has filed an action in the District Court to partition the land described in the schedule to the plaint, was dismissed. On the date that the judgment was pronounced in the said partition action, the Appellant disturbed the possession of the Respondent by plucking coconut and destroying the vegetation cultivated by the Respondent. The Respondent and his daughter have made two complaints to the police. The Respondent instituted this action seeking an order preventing the Appellant from disturbing his possession.

The Appellant admitted the partition action and denied the rest. He claimed the ownership to the land on a different pedigree and described the land in dispute differently. His contention is that though the partition action was dismissed, the land was identified by the learned District Judge as the land described by the Appellant. He further stated that he has not disturbed the Respondent possessing any land owned by the Respondent and moved to dismiss the application.

The learned Primary Court Judge, after completing the pleading and the written submissions, delivered the determination holding that the breach of the peace is threatened due to this land dispute and determined that the possession of the Respondent shall not be disturbed by the Appellant until the rights of the parties are determined by a competent civil court.

Being aggrieved, the Appellant moved in revision in the High Court of Kegalla without success. This appeal is from the said order of the High Court.

In an action filed under section 66(1)(b) of the Primary Court Procedure Act, the Primary Court Judge has to be satisfied that the breach of the peace is threatened or likely. In the present case the learned Magistrate has considered the two complaints made by the Respondent and the daughter regarding the incident. The Appellant contest the truthfulness of the contents of the statements on the basis that the Respondent has failed to tender any inquiry notes or details of charges filed against the Appellant by the police on this statements. I believe that the Court has to be mindful of the fact that the Respondent was not charged for making a false

statement to the police too. The application before the High Court being a revision application and not being an appeal, the learned High Court Judge need not consider the correctness of the conclusions of the Magistrate based on facts. Revision is not to correct the errors committed by the lower courts.

The learned Magistrate has identified the land described in the schedule to the information as the disputed land. The learned District Judge in the partition action has decided that the land which was to be partitioned was the land described by the Appellant and not the land described by the Respondent. In the present case the Respondent is claiming that he is in possession of the land described by him and not the land described by the Appellant. The Respondent's contention is that the Appellant disturbed his possession of the land described by him. The Appellant admits that he has no claim whatsoever to the Respondent's land. In these circumstances it is clear that the Appellant did not possess the land of the Respondent. The learned Primary Court Judge has correctly decided that the land in dispute is in the possession of the Respondent.

I do not see any reason to interfere with the findings of the learned Magistrate or the learned High Court Judge.

Accordingly I dismiss the appeal subject to costs fixed at Rs. 10,000/-

Judge of the Court of Appeal

H.C.J.Madawala J.
I agree.

Judge of the Court of Appeal

SANJEWA NILANTHA ANGAMMANA VS. H. K. NANDAWATHI

HON. P. PADMAN SURASENA, J

C A (PHC) APN / 91 / 2017

Provincial High Court of Sabaragamuwa Province (Rathnapura) Case No. RA 22 / 2015
Primary Court Rathnapura Case No. 99072 (66)

In the matter of an Application for revision of an order of the Provincial High Court in the exercise of its revisionary jurisdiction.

1. R S W I S R R W M R Sanjeewa Nilantha Angammana,

2. Angammana Wakkumburage Indrani,

3. Jayampathi Angammana,

All of, No. 08,
Sri Pada Mawatha,
Rathnapura.

1ST PARTY RESPONDENT PETITIONER - PETITIONERS
Vs

1. Hetti Kankanamalage Nandawathi,

2. Lesli Danthanarayanalage Indrani Danthanarayana,

All of, 16/13 A,
Rathnajothi Mawatha,
Godigamuwa,
Rathnapura.

2ND PARTY RESPONDENT -
RESPONDENT - RESPONDENTS

The Officer in Charge,
Police Station,
Rathnapura.

INFORMANT - RESPONDENT -RESPONDENT

Before : K K Wickremasinghe J
P. Padman Surasena J

Counsel : Naveen Marapana for the 1st Party - Respondent - Petitioner -Petitioners.
Chandana Premathillake for the 2nd Party Respondent - Respondent - Respondents.

Supported on : 2017-07-21.

Decided on : 2017-10-10

ORDER

P Padman Surasena J

The 1st Party Respondent - Petitioner - Petitioners (hereinafter sometimes referred to as the Petitioners) and the 2nd Party Respondent -Respondent -Respondents (hereinafter sometimes referred to as the Respondents) are two rival parties in the instant case which is a proceeding instituted under section 66 (1) (a) of the Primary Courts Procedure Act by the officer in Charge of Police Station Rathnapura.

Learned Primary Court Judge having inquired into the complaint, by his order dated 2015-03-26, had concluded that the Respondents are entitled to have the possession of the land which is the subject matter of the dispute.

Being aggrieved by the said order made by the learned Primary Court Judge, the Petitioners had filed an application for revision in the Provincial High Court of Sabaragamuwa Province holden in Rathnapura seeking a revision of the order of the Primary Court.

The Provincial High Court after hearing refused the said revision application.

Learned counsel for the Petitioner conceded at the outset that an appeal has also been filed in respect of the same matter i.e. against the said judgment of the Provincial High Court. It was his submission that the purpose of filing this revision application despite the pending appeal is to obtain the interim relief prayed for in the prayers of this petition.

The interim order prayed for by the Petitioner is an order to remove all the obstructions constructed by the Respondents on the disputed road way. It is common ground that the said constructions impugned in these proceedings had been put up after the delivery of the order of the Provincial High Court.¹ Thus, it is clear that this construction had not formed part of the subject matter of the dispute before the lower Courts.

In the case of Jayantha Gunasekara V Jayatissa Gunasekara and others² this Court had held that mere lodging in the Court of Appeal, an appeal against a judgment of the High Court in the exercise of its revisionary power in terms of article 154 P (3) (b) of the Constitution, does not

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¹ Paragraph 24 of the petition.
² 2011 (1) Sri L R 284.

automatically stay the execution of the order of the High Court. A passage from that judgment which would be relevant here is as follows.

".... Obviously, to put off the execution process until the appeal is heard would tantamount to prolong the agony and to let the breach of 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 .... "

This Court cannot find fault with the Respondents for putting up a wall to enjoy their rights vindicated by a Court process.

Since there is an appeal pending before this Court it is open for the parties to have their rights decided by this Court in that appeal.

Further, as pointed out by the learned counsel for the Respondents it is not possible for this Court to assume original jurisdiction to adjudicate a new matter in respect of which there is no pronouncement by the Primary Court.

In these circumstances this Court sees no basis to issue notices on the Respondents.

The revision application should stand dismissed.

JUDGE OF THE COURT OF APPEAL

K K Wickremasinghe J
I agree,

JUDGE OF THE COURT OF APPEAL

S SRISKANDARAJAH KURUKKAL VS RAMALINGHAM NADARAJAH

HON A.H.M.D. NAWAZ, J.

C.A. (PRC) Case No 41/2004

H.C Jaffna Case No.107/03(REV)
P.C Jaffna Case No.5060

In the matter of an Appeal from an Order of the High Court made under Article 154P of the Constitution and the Provisions of Act No.19 of 1990.

Shanmugasundara Kurrukkal Sriskandarajah
Kurukkal

of Kondavil West, Kondavil.

2nd Party RESPONDENT-RESPONDENT- APPELLANT
Vs

1. Ramalingham Nadarajah

2. Rajadurai Thayaparan

3. Sundaramoorthy Ganeshalingham

4. Sivapatham Ganeshalingham

5. Kanagalingam Pareswaran

6. Vinnisithamby Kanaganayagam

7. Mylvaganam Poopalararajah

8. Maruthalingham Ramesh

9. Sinnathamby Ratnam

10. Balasubramaniam Sivasenthan

11. Selathurai Ganeshapillai

12. Sivapatham Sothylingam

13. Ratnasingham Parameswaranathan

14. Shanmuganathan Navanesan

15. Muthulongam Senthilnatha

16. Sivasubramaniam Thivakaran

All of Kondavil West, Kondavil.

1st Party RESPONDENT - PETITIONER, RESPONDENTS

The Officer-in-charge
Police Station, Kopay

COMPLAINANT-TRESPONDENT- RESPONDENT

BEFORE : A.H.M.D. Nawaz,J. &:
M.M.A. Gaffoor,J.

COUNSEL : U. Abdul Najeem for the 2nd Party Respondent' Respondent' Appellant.
S. Mandaleswaran with M.A.M. Haleera and S. Ponnambalam for the 1st Party Respondent, Petitioner-Respondents.

Decided on : 08.08.2018

A.H.M.D. Nawaz, J.

The Officer in Charge of the Police station, Kopay-the Complainant-Respondent- Respondent in this case, filed information in the Primary Court of jaffna under Section 66(1) of the Primary Court Procedure Act No.44 of 1979. As Section 75 of the Primary Court Procedure Act No.44 of 1979 define it, the expression "dispute affecting land" includes inter alia any dispute as to the right of possession of any land or part of a land and building thereon. The dispute between parties in the case was one that affected the right of possession of Maha Kanapathi Pillaiyar Temple in Kondavil and the

information by the Police had been filed before the Primary Court of Jaffna on 11th September 2002. The parties brought forward as the 1st Party Respondents by Police were 16 persons, whilst the 2nd Party Respondent was one Shanmugasundara Kurukkal Sriskandaraja Kurukkal of Kondavil West, Kondavil. The 2nd Party Respondent who has since become the Appellant before this Court averred in his affidavit before the Primary Court the following:

a) The dispute pertained to possession of Maha Kanapathi Pillaiyar temple and the land in Kondavil West and;

b) The 2nd Party Respondent had become the Kurukkal of the said temple through succession from his ancestors who had successively held that office for generations in the past;

c) During an interregnum between 1983 and 1989, the 2nd Party Respondent was in Singapore and upon his return to the country in 1989, he once again functioned as the Poosari of the temple continuously,

d) A document chronicling the ancestral administration of the temple was marked and produced as R2;

e) Upon his return from Singapore he had taken over the administration of the temple as the Chief Priest.

The Appellant (the 2nd Party-Respondent-Respondent-Appellant or the Poosari or Kurukkal as he is referred to in the course of this judgment) averred further in his affidavit that since the temple premises had gone to rack and ruin, he appointed a group of nine members to oversee the ritual rites that were taking place in the temple but the Appellant emphasized that despite the constitution of this committee he continued to be in total control of the administration of the temple and more over the keys to the temple were in his custody. Thus the evidence before the learned Primary Court Judge was that the Appellant had the possession of the temple premises. He claimed long possession of the temple by his ancestors and an assertion was made that

it was his paternal grandfather who had built a small temple on his land and later expanded it-see para 4 of his affidavit dated 8th January 2003. It is in paragraphs 14 and 15 of the affidavit that he alleges as to how his dispossession from the temple premises took place.

On 5th September 2002, one Ramalingam Nadaraja who features as the 1st Party Respondent in the information filed before the Primary Court having come in a three- wheeler with four other persons, broke open the door and forcibly entered the temple premises. Having thus made an illegal entry he made off with Rs.13,50,000/- worth of jewelry and cash. This allegation is not contradicted by any of the affidavits filed by the Respondents. In fact Ramalingam Nadaraja who is referred to by name in the affidavit of the Appellant is one of those who have sworn one of the affidavits but there is nary a denial of this allegation of threats at the Appellant and the forcible dispossession. Such silence as we encounter in the affidavits dated 8th January 2003 must be deemed to be an admission. In light of the failure on the part of the Respondents to respond to the specific allegation of the Appellant, I take the view that such failure in the affidavit evidence would amount to an admission. Silence in court may be used to strengthen inferences from opposing evidence.¹

According to the Appellant (the Kurukkal or Poosari of the temple), it was on 5th September 2002 that the 1st Party Respondent along with his confederates forcibly evicted the Appellant from the Kovil, having threatened first to put him to death. At this stage I would briefly refer to the documents tendered by the Appellant along with his affidavit. One document 2Rl described the hereditary succession of the Appellant- (see page 159 of the brief). This is drawn in the form of a pedigree.

In another printed document marked as 2R2, a history of a succession of priests for generations is chronicled and among those who had performed services as Kurukkal of the temple-(see page 160 of the brief), the name of the Appellant figures corroborating his
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¹ See J.D. Heydon, Silence as evidence 1 Monash University Law Review S3 (1974).

version in his affidavit that he had been officiating as the chief priest at the temple. The overall contention of the 2nd party Respondent (the Appellant in this Court) before the Primary Court was that he had been in full control and physical possession of the said temple as the Kurukkal performing all pooja ceremonies in the temple and he had been maintaining and administering the properties of the temple prior to his forcible dispossession on 5th September 2002. The Appellant prayed that he be restored to possession until such time as the Respondents obtained a suitable order in a District Court.

In response to the affidavits filed by the 2nd Party Respondent-Respondent-Appellant, the 1st Party-Respondents-Respondents (the Respondents in this Court) filed two separate statements of claim (two separate affidavits) admitting inter alia that since 1998 the Appellant had been functioning as the Kurukkal of the said temple-see paragraph 4 of the affidavit dated 8th January 2003 of Respondents who were 11 in number. The other affidavit of 5 other Respondents bears the same date and admits that the Appellant had been functioning as the priest of the temple. But the 2nd, 3rd, 5th and 7th Respondents before the Primary Court admitted in their affidavit that they had placed a new priest in place to perform religious ceremonies as they had found the Appellant intransigent. One of the affidavits filed speaks of how the religious performances came to a halt as a result of the recalcitrant behavior of the priest.

In fact the Respondents filed documents to show intransigency on the part of the Appellant. They attached MI-a letter dated 20.12.1993 addressed by Deputy Director, Department of Hindu Cultural Affairs, that only speaks of the registration of the temple but this is not a document acknowledging that the Respondents were the trustees of the temple. There is also a letter addressed by the Divisional Secretary, Nallur to the Appellant wherein he was instructed to hand over the keys to a till and stores to the then administrative body and in the same letter, the Divisional Secretary requested the Appellant to co-operate with the administrative body to conduct the ceremonies-see letter dated 22.08.2011.

By A3 dated 22.01.2002, the Additional Government Agent, Jaffna writes to the Administrative body of the temple and laments that the interim administration that he established had resulted in a failure as the Appellant had not been cooperative enough. Therefore, the Additional Government Agent, Jaffna advised the administrative body or the Board of Management to seek legal redress, if any.

But in September 2002, the Appellant was evicted and a new Poosari was put in place. No doubt all this correspondence shows that there had been constant quarrels between the Appellant and the administrative body but no legal remedy was sought. Instead the temple was forced open on 05.09.2002 and possession of the temple taken over. So, it has to be reiterated that there had been a concession on the part of the Respondents of the allegation that they had dispossessed the appellant from the temple.

But does this alleged behavior of the Appellant authorize the Respondents to deal with him so hastily and summarily? What is the instrument that empowers the Respondents to mete out palm tree justice to a priest, however intransigent he was? When were the Respondents appointed trustees of the temple? None of these items of evidence were available before both the Primary Court and High Court. Perhaps these were matters that were competent to be adjudicated upon in a civil suit and in the absence of such evidence the learned High Court Judge could not have concluded that the Appellant was standing in the shoes of an agent of an administrative body. The underlying tenor of the judgment of the High Court certainly indicates the nexus of an agency by implication, if not expressly.

Whichever claim that was contending for supremacy was true, one thing stands as plain as a pikestaff. The Appellant had been the Kurukkal or the priest officiating at the temple and the affidavit evidence of the Respondents itself establishes dispossession of the Appellant.

The Respondents in their respective affidavits though took an interesting argument that the complaint made by the Appellant could not be investigated as a dispute affecting land under Section 66 of the Primary Court Act No.44 of 1979 (hereinafter sometimes referred to as the "Act") since there was no breach of the peace. The Respondents also contended before the learned Magistrate that Section 32(2) of the Judicature Act prohibits the Primary Court from assuming jurisdiction in respect of matters set out in the 4th schedule and items 11 and 12 therein such as relating to trust and declaratory actions for title to land and in the circumstances the application must be dismissed. The learned Primary Court Judge made short shrift of the argument of the jurisdictional bar and held that he had jurisdiction. The learned Magistrate of Jaffna proceeded to hold that prior to the forcible dispossession of the Appellant, he had been in exclusive physical possession of the temple, its premises and administration and accordingly by his order dated 2nd April 2003 the learned Magistrate declared that the Appellant who had been dispossessed be restored to possession and in addition the learned Judge made consequential orders placing an embargo on all disruption and disturbance to the peaceable possession of the Appellant, otherwise than through the authority of a legal order (see the order dated 2nd April 2003). Consequently, by a writ of execution issued by the learned Magistrate of Jaffna, the Appellant was restored to possession of the temple premises. I have no reason to disturb this finding and determinations.

Revisionary Application to the High Court

In a Revisionary Application made to the High Court of Jaffna, the Respondents in the prayer of their Petition dated 08.04.2003 reiterated that the Primary Court Judge had no jurisdiction whatsoever to make a determination in respect of this dispute and upon a perusal of the reliefs sought in the petition the Respondents sought from the High Court, it would appear that the only relief that had been prayed for was to have the order of the learned Magistrate set aside on the basis that the Primary Court had no jurisdiction to inquire into this matter. By an order dated 14th October 2003, the learned High Court Judge rejected the submissions on the jurisdictional bar raised by the Respondents and concluded that the 4th Schedule to the Judicature Act did not preclude the Primary Court Judge from making a determination in respect of possession of the temple, its land and administration and in any event the learned High Court Judge proceeded to hold that any title or rights relating to the temple had to be adjudicated upon only in an appropriate District Court and not in the Primary Court.

No argument was made before us against this conclusion and in the circumstances one need not go into the propriety of the order pertaining to jurisdiction as the issue raised before the Primary Court was one that turned on dispossession and recovery of possession and indisputably the Court was clothed with jurisdiction to investigate and adjudicate upon those questions.

The learned High Court Judge proceeded to hold in the end that since the temple and its properties are always vested in the administrative body of a temple, the said body enjoys the power to remove a priest at any time and merely because the Kurukkal had custody of the keys he could not be said to have possession within the meaning of Section 68(3) of Primary Court Act No. 44 of 1979. The learned High Court Judge further held that though the Kurukkal was in possession of the keys to the temple, the continuous possession of the temple lay with the administrative body. A Kurukkal could not claim possession of a temple. It was only for ritualistic rites that the keys of the temple had been handed over to the Kurukkal or the priest. The learned High Court Judge further concluded that in order to vindicate his rights to continue to perform pooja, the Appellant must institute action in the District Court. Merely because the keys of the temple were in his custody, that fact cannot be interpreted to invest the Appellant with possession of the temple.

The learned High Court Judge also compared the capacity of the Appellant as a Poosari or Kurukkal to that of a Manager of a Bank Branch. The learned High Court Judge made a few assumptions in regard to the manager of a Bank. He stated that the manager of a Bank branch would have the keys to the branch as well as the safety lockers containing cash. The learned High Court Judge stated in his order under impingement that on no account could the possession of the keys of the contents of a bank branch as above be regarded as possession within Section 66 of the Primary Court Act. He further drew an analogy that merely because a Manager of a Hotel had administrative functions, it would not lie in his mouth to contend that he had possession vis-a-vis the administration of the hotel. In the view of the learned High Court Judge the respective positions of a Branch Manager of a Bank or a Manager of a Hotel would be comparable to that of the Appellant.

In the circumstances the learned Judge of the High Court of Jaffna summed it up in two important conclusions;

i. the Primary Court Judge had jurisdiction to inquire into this dispute under Section 66 of the Primary Court Act No.44 of 1979,

ii. it was unfortunate that the learned Primary Court Judge restored the Appellant back to possession of the temple merely because the Appellant had custody of the keys to the temple.

Accordingly the learned High Court Judge by his order dated 14th October 2003 set aside order made by learned Primary Court Judge and handed over possession to the Respondents. It is against this order of the learned High Court Judge of the High Court of Jaffna that the Appellant has preferred this appeal to this Court. Thus, it was contended by the learned Counsel for the Appellant that it was never the contention of the Respondents before the learned High Court Judge that the possession of the temple must be handed to the Respondents, whilst the Appellant had already been placed in possession by the learned Magistrate. The Counsel argued that their only prayer before the learned High Court Judge in their Petition dated 18.04.2003 was to secure an order from the High Court of Jaffna that the learned Primary Court Judge had no jurisdiction to inquire into this matter. In other words, the argument was that the learned High Court Judge had given a relief of repossession to the Respondents though this relief had not been sought at all by the Respondents.

If one were to understand this argument, one is driven to the complaint that is usually made namely the learned High Court Judge has given a relief of repossession to the Respondents who were the spoliators, whatever right they may have claimed to have possessed in regard to the temple. In other words it was a grant of a remedy that had not been sought before him. Having held that the learned Primary Court Judge had jurisdiction over the matter, the learned High Court Judge could not have gone further and placed out of possession a Kurrukal who had been quited in possession by the learned Primary Court Judge. This was the submission of Mr. U. Abdul Najeem-the Counsel for the Appellant. Mr. Mandaleswaran for the Respondents contended that it was well within the right of the learned High Court Judge to have engaged in this exercise. The possession of the Kurukkal reflected the possession of the administrative body.

Let me appraise these respective arguments raised on behalf of the Appellant and Respondents.

This Court is thus confronted with two orders which are diametrically diverse to each other as regards possession. In the opinion of the learned Primary Court Judge, the Appellant had been forcibly dispossessed by the Respondents within a period of two months immediately before the date on which the information was filed under Section 66 of the Primary Court Act and his determination was that the Kurukkal must be restored to possession. But the learned High Court Judge arrived at a conclusion that the Kurukkal did not have possession at all.

The possession of the Kurukkal was akin to that of a Branch Manager of a Bank or a Hotel Manager and the tenor of the judgment of the learned High Court Judge appears to be that such possession as the Kurukkal had in the temple does not qualify to be possession within the meaning of Section 68(3) of the Primary Court Act No.44 of 1979. To that extent the judgment of the High Court concludes that possession must be handed back to the administrative body.

What does one make of the possession held by the priest? Did that exist in vacuo? If possession on the part of the priest was non est to qualify to be possession within the meaning of Section 68(3) of the Primary Court Act No.44 of 1979, what kind of possession proprio vigore is necessary so as to be invested with the attributes of possession required in Section 68 (3) of the Act? There is sparse discussion by the learned High Court judge on this requirement.

Does the possession of the Poosari or Kurukkal satisfy the requisites for possession in Section 68?

A slew of case law throws light on the kind of possession that would suffice for purposes of Section 68. Before I look at them, let me reiterate that there is nothing in the two affidavits of the Respondents to suggest that they had some kind of right to summarily put out a priest. What was it that gave them power? Did they appoint him as a priest? If so can they proceed to throw him out in the way he was ousted? This is not made clear more unambiguously in the two sets of affidavits filed by the Respondents and these questions become more pronounced in light of the fact that an administrative body was written to by the Additional Government Agent on 22nd January 2002 to seek legal relief. If this was the advice of the Additional Government Agent, why was violence resorted to in the dispossession of the priest? It is the Respondents who produced the above letter to the Primary Court Judge along with their affidavits and it shows that they were in the know of what had to be done legally, regardless of the fact whether the Respondents were in fact members of the administrative body or not.

The forcible dispossession as I have commented above is abundantly clear from the affidavit evidence of the Respondents. They admit in the affidavit that having broken open the closed door of the temple on the 5th of September 2002, they secured the temple with new locks and took away the possession from the Appellant.

There are several determinations that a Primary Court Judge has to make at the conclusion of an inquiry into a dispute relating to the right of the possession of any land or any part of a land. Firstly he must make a determination as to who was in possession of a land or any part thereof on the day the information was filed. Secondly he must make order as to who is entitled to possession of such land or part thereof. In regard to the determination of the second question he must be satisfied that a particular person who had been in possession of the land or part thereof has been forcibly dispossessed within a period of two months before the date on which the information was filed under Section 66 of the Act. It is the possession of the dispossessed person that comes into play and it is crystal clear that it was this Kurukkal or Appellant who had been in possession of the temple premises with the period of two months preceding the date on which the information was filed.

The reason why the learned High Court Judge overturned the determination of the Primary Court Judge appears to be that the possession of the Appellant cannot be equated to an exclusive possession and in engaging in the exercise of equiparating the possession of the Appellant to that of a Bank Manager or a Hotel Manager the High Court was laboring under an impression, as misconceived as it was, that it was the Respondents who had possession. The Respondents did not claim possession in their affidavits nor is it clear upon a perusal of their affidavits by what right they could claim such possession as would give them right to put the appellant out of possession summarily.

I cannot not but discountenance the approach taken by the High Court Judge to the possession enjoyed by the Appellant. Sri Lankan case law on possessory actions have recognized possession of the office holders qua the Appellant.

Changarapillai v. Chelliah² was one such case where a possessory action in which the Plaintiff was, as the District Judge found, the Manager of a Hindu Temple and its property. Bonser C.J. and Wendt J. were of opinion that if the Plaintiff, who was called the Manager, had control of the fabric of the temple and of the property belonging to it, his possession was such as to entitle him to maintain the action. The case was sent back for evidence as to the exact nature of the plaintiff's interest.

Bonser C.J. expressly stated that control of the temple and its property was sufficient to enable the Plaintiff to maintain the action, even though he made no pretence of claiming the beneficial interest of the temple or its property, but was only a trustee for
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² (1902) 5 N.L.R. 270

the congregation who worshipped there. Bonser D.J. distinguished the previous case of Tissera v. Costa³ on the facts: "The muppu who appears to be kind of beadle, has no control over the fabric of the church, and was only a caretaker entrusted with the custody of certain movables, a vey subordinate servant, whose duty is was to keep the church clean, but who had no sort or kind of possession either on behalf of himself or anybody else".⁴

This approach was emphatically endorsed by Pulle, J. (with Swan, J. agreeing) in Sameem v. Dep⁵.

The facta probanda of possessory actions have received definition by the South African courts. In Scholtz v. Faifer⁶ Innes C.J. said: "A person who applies for such relief must satisfy the Court upon two points: that he was in possession of the (property) at the date of the alleged deprivation; and that he was illicitly ousted form such possession. ⁷" In Burnham v. Neumeyer⁸ Bristowe J. stated the essential requisites as follows: "that the things alleged to have been spoliated were in the plaintiff's possession, and that they were removed from his possession forcibly or wrongfully or against his consent".⁹

Scholtz v. Faifer¹⁰ is an illuminative case in this regard. The appellant, who had contracted to erect certain buildings for the respondent on condition that the latter supplied the materials and paid for the work as it progressed every two weeks, applied for an order reinstating him in possession of the building then partially erected. The Appellant alleged that the Respondent had unlawfully taken possession of the partly constructed building and placed another contractor in charge of the work.

One of the questions which arose was whether the Appellant had sufficient physical control or detentio of the building, to be declared entitled to possessory relief.
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³ 8 S.C.C. 193
⁴ At p. 272
⁵ (1954) 55 N.L.R. at p. 525
⁶ 1910 T.S. 243
⁷ At p. 246
⁸ 1917 T.P.D. 630
⁹ At p. 633
¹⁰1910 T.P.D. 243

It was accepted that when the house had advanced so far towards completion that the doors are placed in position, it may be locked up and possession of the key would be equivalent to possession of the building.¹⁰ The position in regard to a partially constructed building is obviously more difficult.

Innes C.J. said in the course of his judgment: "Mere temporary absence (of the contractor) for a short time would not destroy the physical element which is necessary to constitute possession. Take the extreme case where a builder goes away every night; he still has the detention of the work which he is in course of erecting. If it existed originally, he still has it; mere absence at night does not deprive him of it. But where work is suspended for a considerable time, then it seems to me that if the builder desires to preserve his possession he must take some special step, such as placing a representative in charge of the work, or putting a hoarding round it; or doing something to enforce his right to its physical control. If he chooses to leave the work derelict, then, no matter what his intention may be, the physical element is absent, and he loses possession, even though he may say he intended to resume it or never intended to abandon it".¹¹

Leaving aside these cases which were decided on possessory actions, I would observe that the purpose and intendment of relief under Section 66 of the Primary Court Procedure Act No.44 of 1979 are to accord protection against forcible dispossession at the hands of a spoliator and this right must be available to a priest of a temple who has been officiating at ceremonies. If he is found to be intractable, he must be dealt with in accordance with the law and the established rules and regulations pertaining to the affairs of the temple.

In Wilsnach v. Van der Westhuizen and Haak¹² Buchanan A.C.J, observed: "The whole foundation of the rule for the restoration of property taken possession of in this way is that a spoliator is not entitled to take the law into his own hands, and a person who has taken the law into his own hands must restore the property, and establish his right thereto in a peaceable matter in a court of law. "
______________
¹⁰ At p. 247
¹¹ At pp. 247-248
¹² (1907) S.C. 600

Sohoni in his treatise on the Indian Criminal Procedure at page 1331 describes that the proviso to Section 145(4) of the Indian Criminal Procedure Code which could boast of parentage over its Sri Lankan counterpart in Section 66 of the Primary Procedure Act No.44 of 1979 is founded on the principle that forcible and wrongful dispossession is not to be recognized under the Criminal Law. The word "dispossessed" means to be out of possession, removed from the premises, ousted, ejected or excluded. Even where a person has a right to possession, he cannot do so by taking the law into his hand. That will make it a forcible entry otherwise than in due course of law. It would be a case of both forcible and wrongful dispossession.

In the case of P.K Anita v. Shridhar Sadashiv¹³ it has been held that: 'The words forcibly and wrongfully' qualifying the word 'dispossession' in the proviso to section 145(4), cannot be given a restricted meaning of dispossession accompanied by the use of criminal force. To constitute forcible dispossession, even the use of misrepresentation and improper threats would make the dispossession forcible and wrongful"'.

In the case of Bhuttani v. Desai¹⁴ Dharam Chand v. Statt¹⁵ and Thrulatha Devi v. Misri¹⁶, it has been held that, even where a person has a right to possession, but taking the law into his hands, makes a forcible entry otherwise than in the due course of the law. It would be a case of both forcible and wrongful dispossession. The Magistrate will be entitled to dislodge a person who thus secured possession.

The phrase 'forcible dispossession' does not contemplate a fugitive act of trespass or interference with possession. The dispossession referred to, is one that amounts to a completed act of forcible and wrongful driving out party from his possession-see Bhuttani v. Desal¹⁷

_____________
¹³1982 , Cri.L.J. 1463 (Bom. H.C.)
¹⁴ AIR 1968 SC
¹⁵ 1973 Cut.L.J. 755
¹⁶ 1982 Cr.L.J.1965 (Guj)
¹⁷ AIR 1968 Sc. 144

Therefore when violence was resorted to in order to deprive the Appellant on 05.09.2002, in my view it was forcible dispossession of the Poosari or the Kurukkal.

In fact U.D.Z. Gunawardana, J. in Iqbal v. Majedudeen and Others took the view that the words "forcibly dispossessed" in Section 68(3) of the Primary Court Act No.44 of 1979 as amended means that dispossession had taken place against the will of the person entitled to possess and without authority of the Law.

In the course of the judgment the learned Judge acknowledged possession to be of two kinds.

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

2. When he is not in actual possession he may have both a power and intention at a given time to exercise dominion or control over a thing either directly or through another person-constructive possession.

In Black's law Dictionary, 9th Edition the term constructive possession is defined as control or dominion over a property without actual possession or custody of it. There is no affidavit evidence that the Respondents had control or dominion over the temple. No instrument was before the Primary Court to indicate a vesting of such control. Therefore it cannot be contended that the Respondents had constructive possession. Even if they had had constructive possession, it could not be argued that their possession was disturbed when they themselves caused the disturbance.

Rather it was the Appellant who had actual possession and he was forcibly dispossessed

Whichever may be the kind of possession it is dispossession of a person that is frowned upon by law. Such dispossession as is frowned upon by the Primary Court Procedure Act would not enjoy the imprimatur or the authority of the law. No doubt there might have been an administrative body to oversee the functioning of the temple as it is
__________
¹⁹ 1993 Sri LR p.213

evident by the document marked as A3. But they cannot seek self help and put out of possession someone holding the position of a Kurukkal in a summary and precipitate manner.

In the case of Moolchand v. State of Madya Pradesh¹⁹ the Court held that the relevant section strictly limits even the violence self-help by the true owner of the premises. On the other hand, it seeks to maintain, if necessary and if justified under this provision of the section, the possession of even a wrong-doer, the prime consideration being the prevention of the breach of the peace by declaring one party to be entitled to possession, until evicted by due course of the law.

In proceedings under this section the Magistrate is not required to investigate the title of the disputed land or the rights of the administrative body. In fact, he can use the evidence of title merely to guide and aid his mind in coming to a decision upon the question of possession, but he is precluded from deciding questions of title alone.

The learned High Court Judge fell into an error by implying an agency into the relationship between the Appellant and the Respondents. In fact the evidence is to the contrary-namely the actual possession of the temple was with the Appellant and in the circumstances the learned High Court Judge need not have gone on a voyage of discovery to compare the possession of the Appellant to that of a Bank Manager or a Manager of a Hotel. In fact, there is no evidence, so to speak, to establish that the Respondents had actual possession of this temple. It was the Appellant who had been in possession of the temple premises by virtue of the fact that his presence therein was necessitated by his functions and the fact that the key to the temple had been in his custody at the relevant time of dispossession connotes actual possession of the temple premises on the part of the Appellant.

The fact that the Respondents may have labored under the impression that the Appellant was their agent is not borne out at all by evidence and any purported notion that the learned Judge entertained as to the duty of a Poosari under the control of an
____________
¹⁹ 1968 M.P.W.R. 345

administrative body is not supported by evidence. In any event even if by some stretch of imagination that he should be at the back and call of the Respondents, it does not authorize them to disturb his possession and deprive him of his possession.

In the case of Bibihusna v. Abdul Rashid,²⁰ it was held that a Criminal Court will have to maintain the possession of even a trespasser, if he is found to be in actual possession for more than two months before the date of preliminary order.

An identical view was articulated by Sharvananda, J. (as His Lordships then was) in the case of Ramalingam v. Thangaraja²¹ , "under section 68 the Judge is bound to maintain the possession of such person if he be rank trespasser as against any interference even by the rightful owner". This section, entitles even a squatter to the protection of the Law, until his possession was acquired within two months of the filing of the information.

The above position had been expressed by the Indian decision Sohan Mushar v. Kalliash Singh,22 wherein Raj Kishor Prasad, J. voiced the opinion that "the possession contemplated in this section is the 'actual possession' of the subject of the dispute. Actual physical possession means the possession of the person who has his feet on the land, who is ploughing it, sowing or growing crops in it entirely irrespective of whether he has any right or title to possess it. But 'actual possession', irrespective of whether he has any right or title to possess it. But, "actual possession" does not always mean "actual physical possession". For example, if there is a tenant occupying a house and there is a dispute between two persons, each claiming to be the landlord, admittedly neither is in actual physical possession, still proceedings under section 145 of the Code will lie, and in such a case, the decision will rest upon who is in 'actual possession' by realization of rent from the tenant. "Actual possession" postulated by Sub section (1) of Section 145, however, is not the same as a 'right to possession' nor does it necessarily mean lawful or legal possession. It includes even the possession of a mere trespasser.
__________
²⁰ 1968 Patna L.J.R. 639
²¹ 1982 Sriskantha Law Reports 32 and 1982 2 SLR 693
²² 1962 (1) Cri. L.J. 751

It should, however be real and tangible, that is, there should be effective occupation and control over the property."

Thus in light of the above the learned High Court Judge was in error when he misdirected himself on the facts and law and made order directing the handing over of the temple back to the Respondents. In the circumstances I set aside the order of the learned High Court Judge dated 14.10.2003 and allow the appeal with costs.

JUDGE OF THE COURT OF APPEAL

M.M.A. Gaffoor,J.
I agree.

JUDGE OF THE COURT OF APPEAL

J. G. B. RATNASIRI JAYAWEERA VS. G. SISIRA KARUNATHILAKE

HON. P. PADMAN SURASENA, J (P/CA)

C A (PHC) / 14/2015
Provincial High Court of
Sabaragamuwa Province (Ratnapura)
Case No. HC/RA/17/2014
Primary Court of Ratnapura
Case No. 92336

In the matter of an appeal against judgment of Provincial High Court exercising its revisionary jurisdiction.

Jayaweera Gamathiralalage
Brahmana Watte Ratnasiri
Jayaweera,
Marapana South,
Marapana.

1ST PARTY - PETITIONER APPELLANT

1. Gamakonnage Sisira Karunathilake,
Gurugewatta,
Mawudella,
Dela.

2ND PARTY - RESPONDENT - RESPONDENT

2. Jayaweera Gamathiralalage
Brahmana Watte Nimal Jayaweera,

3. Jayaweera Gamathiralalage
Brahmana Watte Dharmasiri
Jayaweera,

4. Jayaweera Gamathiralalage
Brahmana Watte Tikiri Bandara
Jayaweera.

INTERVENIENT PARTY - RESPONDENT - RESPONDENTS

5. Officer in Charge,
Miscellaneous Complaints Division;
Police Station,
Ratnapura.

APPLICANT - RESPONDENT -
RESPONDENT

Before: P. Padman Surasena (P/CA)
K K Wickremasinghe J

Counsel; Jacob Joseph with Nandasiri Galoluwa for the 1st Party Petitioner- Appellant.
Nimal Jayasinghe with Pasan Gunasena for the 2nd Intervenient Party - Respondent - Respondent.

Argued on : 2017 - 11 - 02

Decided on: 2018 - 02 - 16

JUDGMENT

P Padman Surasena J (P/CA)

The Officer in Charge of Ratnapura Police Station had filed the information relevant to this case in the Primary Court under section 66 (1) (a) of the Primary Courts Procedure Act No. 44 of 1979 (hereinafter referred to as the Act).

Learned Primary Court Judge having inquired into this information, by his order dated 2014-03-03, had held that the Respondents are not entitled to use the impugned right of way.

Being aggrieved by the said order of the learned Primary Court Judge, the Appellant had filed a revision application in the Provincial High Court of

Sabaragamuwa Province holden in Ratnapura urging the Provincial High Court to revise the order of the learned Primary Court Judge.

The Provincial High Court after hearing parties, by its judgment dated 2015-02-12 had refused the said application for revision and proceeded to dismiss it.

It is against that judgment that the Appellant has filed this appeal in this Court.

Perusal of the contents of written submissions filed on behalf of the Appellant shows that he mainly relies on the observations recorded by Police to claim a right for the disputed way. In addition to the said Police observations, the Appellant also appear to rely on the the fact that a backhoe had been taken along that path.

However, at the outset this Court has to observe that the Supreme Court in the case of Ramalingam V Thangarajah¹ interpreting section 69 of the Act has stated as follows;

" : .... On the other hand, if the dispute is in regard to any right to any land other than right of possession of such land, the question for decision,

______________________
¹1982 (2) Sri. L R 693.

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, section 69 requires the Court to determine the question which party is entitled to the disputed right preliminary to making an order under section 69 (2) .... "

Turning back to the facts of the instant case, this Court is of the view that even if the Police observations show the existence of a road, that fact does not conclusively establish any rights for others to use that roadway. Further, it is to be observed that backhoe could best be described as a heavy machine meant to be used in lands rather than a vehicle meant to be used on road for transportation. In that sense, it is not a vehicle as such. Therefore taking a backhoe to a land cannot by itself establish any right of way for the person who had taken such machine.

In that context this Court cannot find fault with the learned Primary Court Judge when he had stated that the Appellant had not established that he is entitled to the right of access upon the land of the Respondent, by prescriptive right or by a deed or by a judicial decision.

In these circumstances and for the foregoing reasons this Court decides to dismiss this appeal as this Court sees no merit in it. The Respondent is entitled to the costs.

Appeal is dismissed with costs.

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

CHANDRS GUNASEKARA VS. MADDUMA BANDARA

HON. L. T. B. DEHIDENIYA, J

C.A. Application No.1136/98(F)
D.C. Kandy Case No. 17852/L

Chandrs Gunasekara,
No.D 7, Aruppala Flats, Kandy.

Defendant Appellant

Vs.

Madduma Bandara Dodanwela,
No. 252, Sir Kuda Rathwatta Mawatha,
Dodanwela, Kandy.

Plaintiff Respondent.

Sujeewa Dodanwela,
No.248, Sir Kuda Rathwatta Mawatha,
Dodanwela, Kandy

Substituted Plaintiff Respondent

Before : P. R. Walgama J.
: L. T. B. Dehideniya J.

Counsel : A. A. de Silva PC with Ajith Zoysa for the Defendant Appellant.
: Ikram Mohamad PC with N.Udalagama instructed by Buddhika Jayaweera for the Plaintiff Respondent.

Argued on : 29.02.2016

Decided on : 22.11.2016

L. T. B. Dehideniya J.

This is an appeal from the District Court of Kandy.

The Plaintiff Respondent (the Respondent) instituted action in the District Court of Kandy alleging that he is the lessee of the Milk Booth under the Government Agent. His contention is that he constructed the said Milk Booth with the permission of the G.A. and after obtaining the necessary permit from the Municipal Council Kandy. After some time he handed over the Milk Booth to one Rubasinghe as his licensee to run the business. After the death of Rubasinghe the Defendant Appellant (the Appellant) is occupying the Milk Booth without his permission. After issuing a quit notice, this action was instituted to declare his right to posses as a lessee and to eject the Appellant. The Appellant filed answer and claimed that she is in possession of the Milk Booth on the strength of an order made by the Magistrate Court under section 66 of the Primary Court Procedure Act. After trial, the learned District Judge decided the case in the Respondent's favour. Being aggrieved by the said decision, the Appellant presented this appeal.

At the argument, the learned Counsel for the Appellant submitted that this is a possessory action because the Respondent is claiming possession under a lease. I do not agree with this argument. The claim of the Respondent is that he is the lessee of the premises. He is claiming his right to possess under the lease. It is an admitted fact that the land where the Milk Booth is constructed is a state land. But the building was constructed by the Respondent. A witness from the Kandy Municipal Council gave evidence and produced the approved plan where the Respondent was permitted to construct the building. Rubasinghe (the Appellant was the mistress of Rubasinghe) has admitted in the Primary Court (Magistrate Court) that the Respondent is the owner of the Milk Booth. He has given an affidavit in a 66 application filed in the Kandy Magistrate Court. The Appellant is claiming through Rubasinghe. Therefore it established that the Milk Booth is owned by the Respondent.

In an early case Goonewardana V. Rajapakse et al. 1 NLR 217 Bonser, C. J. considering a notarialy executed lease held that;

In my opinion we ought to regard a notarial lease as a pro tanto alienation, and we ought to give the lessee, under such a lease, during his term, the legal remedies of an owner and possessor (see D. C, Colombo, 55,552, Vanderstraaten, p, 283,· and Perera v. Sobana, 6, S. C. C. 61, where the distinction between a modern lease and a Roman colonus or inquilinus is recognized).

In the case of Luwis Singho And Others V. Ponnamperuma [1996] 2 Sri L R 320 the law was further developed by Wigneswaran J. after considering several authorities and held at page 325 that;

But in an action for declaration of title and ejectment the proof that a Plaintiff had enjoyed an earlier peaceful possession of the land and that subsequently he was ousted by the Defendant would give rise to a rebuttable presumption of title in favour of the Plaintiff and thus could be classified as an action where dominium need not be proved strictly. It would appear therefore that law permits a person who has possessed peacefully but cannot establish clear title or ownership to be restored to possession and be quieted in possession. This development of the law appears to have arisen due to the need to protect de facto possession. It is different from the right of an owner recovering his possession through a vindicatory action. Our courts have always emphasized that the plaintiff who institutes a vindicatory action must prove title. (Vide Wanigaratne v. Juwanis Appuhamy. (7))

U. De Z. Gunawardana, J. held in the case of Ruberu and another V. Wijesooriya [1998] 1 Sri L R 58 at page 60 that;

But whether it is a licensee or a lessee, the question of title is foreign to a suit in ejectment against either. The licensee (the defendant-respondent) obtaining possession is deemed to obtain it upon the terms that he will not dispute the title of him, i. e. the plaintiff-appellant without whose permission, he (the defendant respondent) would not have got it. The effect of the operation of section 116 of the Evidence Ordinance is that if a licensee desires to challenge the title under which he is in occupation he must, first, quit the land. The fact that the licensee or the lessee obtained possession from the plaintiff-appellant is perforce an admission of the fact that the title resides in the plaintiff. No question of title can possibly arise on the pleadings in this case, because, as the defendant-respondent has stated in his answer that he is a lessee under the plaintiff-appellant, he is estopped from denying the title of the plaintiff-appellant. It is an inflexible rule of law that no lessee or licensee will ever be permitted either to question the title of the person who gave him the lease or the licence or the permission to occupy or possess the land or to set up want of title in that person, i. e. of the person who gave the licence or the lease. That being so, it is superfluous, in this action, framed as it is on the basis that the defendant-respondent is a licensee, to seek a declaration of title.

In the present case Rubasinghe under whom the Appellant is claiming has admitted the Respondent's title and therefore she is estoped from denying the title of the Respondent.

At the argument the Counsel for the Appellant claimed tenancy. His contention was that Rubasinghe was a tenant under the Respondent. While denying the title of the Respondent, she cannot claim tenancy under the Respondent. On the other hand the Appellant cannot succeed to tenancy because she is not the wife of Rubasinghe. The learned District Judge clearly analyzed that no right will flow to the Appellant by living in adultery with Rubasinghe. The learned Counsel argues that she was a business partner, but there is no evidence to that effect. The evidence is that she was living in adultery with Rubasinghe and on that relationship she is coming to the Milk Booth.

The Appellant in her answer has not claimed any tenancy. Her claim is based on the order of the Primary Court Judge (the Magistrate) in the 66 application. Under the explanation 2 of section 150 of the Civil Procedure Code, a party cannot present a case substantially deferent from the pleading. The section reads; The party having the right to begin shall state his case, giving the substance of the facts which he proposes to establish by his evidence.

Explanation

The case enunciated must reasonably accord with the party's pleading, i.e., plaint or answer, as the case may be. And no party can be allowed to make at the trial a case materially different from that which he has placed on record, and which his opponent is prepared to meet. And the facts proposed to be established must in the whole amount to so much of the material part of his case as is not admitted in his opponent's pleadings.

In the present case there was no claim of tenancy in the answer. Therefore, the Appellant is precluded from bring in a totally new claim in the appeal.

Candappa Nee Bastian V. Ponnambalampillai [1993] 1 Sri L R 184.

Thus it is seen that the position taken up in appeal for the first time was not in accord with the case as presented by the defendant in the District Court. It is well to bear in mind the provisions of explanation 2 to section 150 of the Civil Procedure Code. It reads thus:

"The case enunciated must reasonably accord with the party's pleading, i. e. plaint or answer, as the case may be. And no party can be allowed to make at the trial a case materially different from that which he has placed on record, and which his opponent is prepared to meet .. .... ". A fortiori, a party cannot be permitted to present in appeal a case different from the case presented before the trial Court except in accordance with the principles laid down by the House of Lords in The Tasmania (4) and followed by Dias, J. in Setha v. Weerakoon (5). The question of licence or sub tenancy involved matters of fact which were not put in issue at the trial. This was certainly not a pure question of law which could have been raised for the first time in appeal. I find myself unable to agree with Mr. Samarasekera that these were matters which fell within the issue raised on behalf of the plaintiff relating to the unlawful occupation of the premises.

The Appellant's claim in the answer is that she was given possession by an order of the Primary Court (Magistrate Court) in an application filed under section 66 of the Primary Court Procedure Act.

The order of the Primary Court under this section is a temporary order which has its validity only till a judgment of a competent court is pronounced. The section 74 of the Primary Court Procedure Act provides that the order of a Primary Court is no bar for a civil action. The section reads;

74. (1) An order under this Part shall not affect or prejudice any right or interest in any land or part of a land which any person may be able to establish in a civil suit; and it shall be the duty of a Judge of a Primary Court who commences to hold an inquiry under this Part to explain the effect of these sections to the persons concerned in the dispute.

The Appellant cannot rest her claim of right to possess on an order of a Primary Court pronounced under part VII of the Primary Court Procedure Act.

Under these circumstances I do not see any reason to interfere with the judgment of the learned District Judge.

The appeal dismissed with costs fixed at Rs.10,000.00

Judge of the Court of Appeal

P. R. Walgama J.

I agree.

Judge of the Court of Appeal

P. DHARMADASA VS W. A WILLIE

HON P. PADMAN SURASENA J (P/CA)

C A (PHC) / 275 / 2003
Provincial High Court of
Southern Province (Hambantota)
Case No. HCA (Rev) 103 / 2002
Primary Court Tangalle
Case No. 66897

In the matter of an appeal against an order of the Provincial High Court in the exercise of its revisionary jurisdiction.

1. Pinchahevage Dharmadasa,
Nidahasgama East,
Ranna.

2. Mirissalankage Bandula, Kahandava East,
Ranna.

3. Hewa Angappulige Dayananda,
Nidahasgama West,
Ranna.

4. Kirindagoda Gamage Jayalal,
Nidahasgama West,
Kahandawa,
Ranna.

5. Mirissalankage Gamini,
Nidahasgama West,
Kahandawa,
Ranna.

6. Kihimbiyage Sarathchandra,
Nidahasgama West,
Ranna.

PETITIONER - APPELLANTS

Vs.

1. Wijesekara Arachchige Willie,
Kahandamodara, Levaya Mawatha,
Ranna.

2. 2 (a) Mahamarakkala Kurukulasuriya
Patabandige Hemal Priyanath Perera,

2 (b). Hiran Chaminda Kurukulasuriya,

2 (c). Achala Nadun Kurukulasuriya,
All of No.43,
Chatis Place,
Rawathawatte,
Moratuwa.

3. Hewa Ambepitiyage Sunil,
Nidahasgama East,
Ranna.

4. Wijesekara Arachchige Sirinimal,
Nidahasama East,
Ranna.

5. Kakshchipatambanige Nimal,
Linde Yaya,
Bataathama South,
Ranna

6. Deffuvavala Muhandiramge Sadiris,
Kahandamodara,
Ranna.

RESPONDENT - RESPONDENTS

Before: P. Padman Surasena J (P/CA)
K K Wickremasinghe J

Counsel; Dr. Sunil Cooray with Sudharshani Cooray for the Petitioner- Petitioner Appellant.
Hirosha Munasinghe for the 1st 3rd 4th and 5th Respondent -Respondents.

Argued on :2017-09-13 and 2017-10-06

Decided on: 2018-05-24

JUDGMENT

P Padman Surasena J

The Officer in Charge of Hungama Police Station had filed an information in the Primary Court of Tangalle under section 66 (1) of the Primary Courts Procedure Act No.44 of 1979 (hereinafter referred to as the Act), complaining to the learned Primary Court Judge about an existence of a breach of peace between two parties over a dispute relating to the possession of the land relevant to the dispute in this case.

Learned Primary Court Judge, having inquired into the said complaint, by her order dated 2002-11-26, had held that the Court is not in a position to reconsider the merits of the instant case in view of a previous order of Court in the Primary Court Tangalle case No. 28820. This was because the learned Primary Court Judge had taken the view that the subject matter in the instant case is the same as that in the previous case.

Being aggrieved by the said order of the learned Primary Court Judge, the Appellant had filed a revision application in the Provincial High Court of Southern Province holden in Hambantota, urging the Provincial High Court to revise the order made by the learned Primary Court Judge.

The Provincial High Court, by its order dated 2003-11-18, had refused and dismissed the said revision application on the basis that the conclusion of the learned Primary Court Judge is correct.

It is the said order that the Appellant seeks to canvass in this appeal before this Court.

It is to be noted at the outset that the learned Primary Court Judge in this case, in holding that the Respondents are entitled to possess the relevant land, had totally relied on the order of the previous case bearing No. 28820 of Magistrate's Court of Tangalle. Learned Primary Court Judge had proceeded on the basis that the Corpus pertaining to that case is the same as in the instant case. It was the view taken by the learned Primary Court Judge that the possession of lot 108, which is the corpus in the instant case, has already been handed over to the Respondents by the fiscal of the Court pursuant to the order of Court in the said previous case.

However, it is the position of the Appellants that the entirety of the said lot 108 of plan number F V P 324 was never handed over by the fiscal to the 1st Respondent.

As pointed out by the learned Counsel for the Appellant, this Court observes the followings.

i. The 1st Respondent in the statement made by him to police on 1997- 03-26 had specifically admitted that he was in possession only of 4 acres of land.

ii. The 1st Respondent had stated in the document produced marked 4V6 that he is in possession of the land in extent of only 4 acres. He had proceeded to give the eastern boundary of his land as the wasteland. (This is an indication that the land referred to, by the 1st Respondent is a land other than the Corpus relevant to the instant case.)

iii. Grama Niladhari of the area has confirmed that the 1st Respondent is in possession of only 4 acre land, the boundaries of which have been given in the document produced marked 4 V 7. According to that document, the eastern boundary of the said land is the wasteland.

This Court observes that the Magistrate's Court case bearing No. 28820, had dealt with a corpus, which is a 4-acre paddy land. However, the corpus relevant to the instant case is the wasteland, which is lying on the eastern boundary of the said 4-acre paddy land.

his Court observes that the learned Magistrate, who has delivered the order in the Magistrate's Court of Tangalle in the case No. 28820, had accepted the fact that the 1st Respondent was in possession of the land the boundaries of which had been explained by the 1st Respondent himself. Accordingly, the fiscal of the Court had handed over the possession of that land in that case as shown by the parties. Thus, it is clear that the corpus in the instant case, which is the lot 108, was never handed over to the 1st Respondent by the fiscal of the Court in the Magistrate's Court case bearing No. 28820.

Further, the Court could not have granted a 10-acre land to the 1st Respondent in that case when he had only claimed a 4-acre land.

Thus, this Court is convinced that both the learned Primary Court Judge and the learned Provincial High Court Judge had failed to consider the aforesaid points and hence had erred in their respective orders. Therefore, this Court cannot permit them to stand any longer.

In these circumstances, this Court proceeds to set aside the order dated 2002-11-26 of the learned Primary Court Judge of Tangalle, as well as the order dated 2003-11-18 of the learned Provincial High Court Judge.

This Court directs the learned Primary Court Judge of Tangalle to consider all relevant material already adduced by the parties before Court and pronounce an order on the merits of the case according to law.

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

NUHUMAN MOHOMED ANIZ VS. OIC, Mawanella POLICE

HON. P.PADMAN SURASENA , J (P/CA)

C A (PHC) 248 / 2006
Provincial High Court of
Sabaragamuwa Province (Kegalle)
Case No. 2101/Rev
Primary Court Mawanella
Case No. 84276

In the matter of an appeal against an order of the Provincial High Court in the exercise of its revisionary jurisdiction.

Nuhuman Mohomed Aniz,
750, Kandy Road,
Hingula.

2ND PARTY - PETITIONER
APPELLANT

1. Officer in Charge,
Police Station,
Mawanella.

COMPLANANT - RESPONDENT - RESPONDENT

2. Mohomed Hanifa Sahabdeen
816, Kandy Road,
Hingula.

1ST PARTY - RESPONDENT - RESPONDENT

3. Mohomed Hani Mohomed Mohideen
alias Salahudeen,
No. 648,
Kandy Road,
Hingula.

INTERVENIENT PARTY -
RESPONDENT - RESPONDENT

Before: P. Padman Surasena J (P C/A)
K K Wickremasinghe J

Counsel; Hemathillaka Madukandage for the 2nd Party - Petitioner - Appellant.
Sunil Abeyrathna with T Gunathilaka for the 1st Party - Respondent - Respondent and the Intervenient Party - Respondent - Respondent.

Decided on: 2018 - 03 - 29

JUDGMENT

P Padman Surasena J

Learned counsel for the 2nd Party - Petitioner - Appellant (hereinafter sometimes referred to as the Appellant) and the learned counsel for the 1st Party - Respondent - Respondent (hereinafter sometimes referred to as the 2nd Respondent), and the Intervenient Party - Respondent - Respondent (hereinafter sometimes referred to as the 3rd Respondent), when this case came up on 2017-07-11 before us, agreed to have this case disposed of, by way of written submissions. Therefore, this judgment would be based on the material so adduced.

Officer in charge of the Police Station Mawanella has referred the instant dispute to the Primary Court of Kegalle in terms of Section 66 (1) (a) of the Primary Court Procedure Act No 44 of 1979 (hereinafter referred to as the Act). In the report filed by the Police, 1st Party - Petitioner - Appellant (Mohomed Nuhuman Mohomed Aniz) (hereinafter sometimes referred to as the Appellant) has been named as the 1st Party and the 2nd Party Petitioner - Respondent (Mohomed Hanifa Sahabdeen) (hereinafter sometimes referred to as the 2nd Respondent) has been named as the 2nd Party.

The Intervenient Party - Respondent - Respondent, (hereinafter sometimes referred to as the 3rd Respondent), has also got himself added as a party Subsequently.

After the inquiry learned Primary Court Judge by his order dated 2004-07-21 had directed that the fence erected by the Appellant be removed. Being aggrieved by the learned Magistrate's order the Appellant had filed a revision application in the Provincial High Court of Sabaragamuwa Province holden in Kegalle.

The Provincial High Court after hearing, by its judgment dated 2006-12-06, had refused the said revision application on the basis that the findings by the learned Primary Court Judge is correct.

It is against that judgment of the Provincial High Court that the Appellant has appealed to this Court.

The Appellant has not controverted the fact that he had erected a fence to separate the relevant washroom. He has also admitted that the said washroom was constructed by the 2nd Respondent and it was the 2nd Respondent who had been using it. The police observations have clearly revealed that the impugned fence had been erected afresh. It was due to the intervention of police that even a three feet wide access path had been given to the 2nd Respondent to enable him to use the relevant washroom. In the instant case, what the Provincial High Court was called upon to exercise was its revisionary jurisdiction.

This Court observes that the written submission of the Appellant does not set out any ground, which is at least suggestive of any illegality or any impropriety of the impugned order. This Court also observes that the procedure that has been followed by the learned Primary Court Judge is not irregular. Therefore, it is clear that there had been no ground upon which the Provincial High Court could have intervened to exercise its revisionary jurisdiction, in this case.

Thus, the refusal of the Appellant's revision application by the learned Provincial High Court Judge is inevitable.

In these circumstances, this Court is of the opinion that the learned Primary Court Judge had correctly identified and applied the law to the set of facts of this case. Thus, the learned Provincial high Court Judge has correctly refused the revision application filed by the Appellant.

Hence, this Court decides to affirm both the judgment dated 2004-07-21 of the Primary Court and the judgment dated 2006-12-06 of the Provincial High Court and proceed to dismiss this appeal without costs.

Appeal dismissed without costs.

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

ASITHA P GAMAGE VS. KONADENIYE G H MAHATHTHAYA

P.PADMAN SURASENA ,J (P/CA)

C A (PHC) APN / 71 / 2017
Provincial High Court of Central Province (Kandy)
Case No. HC Rev 30 / 2015
Primary Court Kandy Case No. 77849/14

In the matter of an application for revision of an order of the Provincial High Court in the exercise of its revisionary jurisdiction.

1. Asitha Premajith Gamage,
No.3,
Menik Kumbura Lane,
Katugastota.

RESPONDENT - PETITIONER-PETITIONER

Konadeniye Gedera Heen Mahaththaya,No. 18,
Kaluwana,
Ambatenna.

PETITIONER - RESPONDENT - RESPONDENT

Before: P. Padman Surasena J (P C/A)
K K Wickremasinghe J

Counsel; Dr. Sunil Cooray for the Respondent - Petitioner -Petitioner.
Shyamal A Collure for the Petitioner - Respondent - Respondent.

Supported on: 2017-10-02.

Decided on : 2018 - 05 - 18

ORDER

P Padman Surasena J

The Petitioner and the Respondent of this application are two rival parties in the instant case which is a proceeding instituted under section 66 (1) (b) of the Primary Courts Procedure Act. Learned Primary Court Judge having inquired into the complaint, had pronounced its order.

Being aggrieved by the said order made by the learned Primary Court Judge, the Petitioner had filed an application for revision in the Provincial High Court of Central Province holden in Kandy seeking a revision of the order of the Primary Court. The Provincial High Court after hearing refused the said revision application by its order dated 2017-05-05. Learned counsel for the Petitioner conceded at the outset that an appeal has also been filed in respect of the same matter i.e. against the said judgment of the Provincial High Court.

It was his submission that the purpose of filing this revision application despite the pending appeal is to obtain the interim relief prayed for in the prayers of this petition.

In the case of Jayantha Gunasekara V Jayatissa Gunasekara and others2 this Court had held that mere lodging in the Court of Appeal, an appeal against a judgment of the High Court in the exercise of its revisionary power in terms of article 154 P (3) (b) of the Constitution, does not automatically stay the execution of the order of the High Court. A passage from that judgment which would be relevant here is as follows.

" .... Obviously, to put off the execution process until the appeal is heard would tantamount to prolong the agony and to let the breach of 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 .... "

______________________

1 Paragraph 25 of the petition.
2 2011 (1) Sri L R 284.

Since there is an appeal, pending before this Court it is open for the parties to have thei rights adjudicated by this Court in that appeal. When there is a right of appeal provided for by law, an applicant in a revision application must show the existence of exceptional circumstances for any intervention by a revisionary Court. This Court cannot accept the grounds urged in the petition as exceptional circumstances as they are mere grounds of appeal upon which the petition of appeal may have been lodged.

In these circumstances, this Court sees no basis to issue notices on the Respondents.

The revision application should stand dismissed.

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

HEWA GIGANAGE UPALI NAVARATNE VS. THALATHA MERVYN WEIHENA

HON. W.M.M. MALINIE GUNARATNE J

CA Appeal No. 169/2011
HC Application Revision No.
HC/Rev./786/11
MC Case No. 59693
Galle

In the matter of an Appeal against the order dated 05.09.2011 delivered by the Provincial High Court of the Southern Province holden at Galle in Revision Application No.HC/Rev./786/11

The Officer in Charge,
Police Station, Hikkaduwa.

Informant

VS.

1. Hewa Giganage Upali Navaratne,
Leenawatte,
Narigama,
Hikkaduwa.

First Party

2. Thalatha Mervyn Weihena,
"Sisira" Narigama, Hikkaduwa.

Second Party

AND

Hewa Giganage Upali Navaratne,
Leenawatte,
Narigama,
Hikkaduwa.

First Party - Petitioner.

VS.

Thalatha Mervyn Weihena,
"Sisira",
Narigama,
Hikkaduwa.

Second Party - Respondent

The Officer in Charge,
Police Station, Hikkaduwa.

Informant - Respondent

NOW BETWEEN

Hewa Giganage Upali Navaratne,
Leenawatte,
Narigama,
Hikkaduwa.

First Party-Petitioner-Appellant

VS.

Thalatha Mervyn Weihena,
"Sisira",
Narigama,
Hikkaduwa.

Second Party- Respondent -Respondent

The Officer in Charge,
Police Station, Hikkaduwa.

Informant - Respondent-Respondent

BEFORE : W.M.M. Malinie Gunaratne, J. and
P.R. Walgama, J.

COUNSEL : Jacob Joseph with Rohitha Wimalaweera for the 1st Party Petitioner-Appellant.

Anuruddha Dharmaratne with Indika Jayaweera. for the 2nd Party - Respondent-Respondent.

Argued : 14.08 2015

Written submissions filed on : 17.12.2015

Decided on : 24.03.2016

Malinie Gunaratne, J.

In this Appeal the Appellant among other reliefs is seeking to set aside the Order of the learned Magistrate dated 28.03.2011 and the Judgment of the learned High Court Judge dated 05.09.2011.

Pursuant to an information filed by Hikkaduwa Police in terms of Section 66 of the Primary Procedure Act, the learned Primary Court Judge of Galle held an inquiry into the dispute between Hewa Giganage Upali Navarathne (hereinafter referred to as the Appellant) and Thalatha Mervin Weihena (hereinafter referred to as the Respondent) in respect of land called Divelwatta and held that the Respondent was in possession of the land and made order restoring possession of the land to her. Further he rejected the claim of the Appellant in regard to the possession of the land.

Being aggrieved by the said Order, the Appellant invoked the Revisionary Jurisdiction of the High Court of Galle, seeking to set aside the learned Magistrate's Order.

The learned High Court Judge having considered the submissions made by both parties, affirmed the learned Magistrate's Order and dismissed the Petition.

The Appellant being aggrieved by the aforesaid order preferred an Appeal to this Court seeking to set aside the Orders made by the learned Primary Court Judge and the learned High Court Judge. The grounds of Appeal are given in Paragraph 12 of the Petition of Appeal.

The case for the Appellant was that the land in dispute was originally owned by the Respondent's husband and he had transferred his rights to two German Nationals (husband and wife) on 19.12.1994 by Transfer Deed No. 685 (2 Wa 3) attested by the Respondent, in her capacity as a Notary Public. As the Appellant being closely associated with the aforesaid German couple, they requested the Appellant to function as the caretaker of the said property from 1994.

As requested by the said owners, he employed persons to put up a boundary wall and also constructed a well on the said land. After the demise the of German couple, one Tanja Karac nee Reach became the sole legal heir of the property. She appointed the Appellant as her Attorney in Sri Lanka by virtue of a Foreign Power of Attorney dated 14.05.2010 (1 pa 2) which is duly registered in Sri Lanka on 28.06.2010.

The Appellant had employed labourers to attend to the weeding and clearing of the said land in dispute and he had employed two labourers to attend to the work on 03.08.2010. The Respondent arrived at the land and ordered the labourers to stop work stating that she is the owner of the land. The Appellant made a complaint to the Hikkaduwa Police and the Police held an inquiry on 07.08.2010.

On 28.09.2010 he fixed a gate to the boundary wall and the Respondent made a complaint to the Police on 01.10.2010.

The Respondent in her affidavit stated that the land in dispute was purchased by her husband in 1994. The Respondent and her husband were close friends of a German couple namely B.H. Richard Wiffel and E.A. Margret Wiffel and she prepared a Deed of Transfer in their name, for the purpose of a business venture. The possession of the land from 1994 was with her and the husband.

The Appellant, on 03.08.2010 had sent workers to clear the land for the first time; the Respondent did not allow it; the Appellant had made a complaint to the Police; an inquiry was held by the Police; and the Police advised both parties to file a civil action if there is a dispute with regard to the title of the said land.

The issue at hand arose when the Appellant illegally fixed a gate and denied the Respondent free access to the said land on or about 28.09.2010.

In this case, the Primary Court Judge was called upon to reach a decision on the affidavits filed. After considering the contents in those affidavits the Primary Court Judge held, that the Respondent was in possession of the land and made order restoring possession of the land to her.

When this Appeal was taken up for argument on 14.08.2015 Counsel for both parties made their oral submissions in support of their respective case and with permission of the Court subsequently filed written submissions as well.

In an inquiry where the dispute relates to the possession of any land or part thereof on the date of filing of the information under Section 66 and make order as to who is entitled to possession of such land or part thereof. But where a forcible dispossession has taken place within a period of two months immediately before the date on which the information was filed under Section 66, he may make an order directing that the party dispossessed be restored to possession prohibiting all disturbance of such possession otherwise than under the authority of an order or decree of a competent Court.

Thus, the duty of the Judge is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under Section 66.

This is an application filed by the Police which had been initiated on a complaint made to the Police by the Respondent, alleging that the Appellant has fixed a gate illegally denying free access to the land in dispute.

Hence, the duty of the Judge is to determine whether, the Respondent who had been in possession of the land was dispossessed by the Appellant within a period of two months immediately before the date of filing of the information. If the Primary Court Judge is satisfied that the Respondent had been in possession of the land and he had been forcibly dispossessed within a period of two months immediately before the date on which the information was filed under Section 66, he should make an order directing that the party dispossessed be restored to possession.

In the instant case the learned Primary Court Judge had made a finding that the Respondent was in possession of the land and had been dispossessed within a period of two months immediately before the date of filing of the information.

On perusal of the entirety of the judgment, it is apparent that the learned High Court Judge has taken into consideration the affidavits and documents filed by both parties and has affirmed the Order made by the learned Primary Court Judge.

In the circumstances, I am of the view, that the learned Primary Court Judge of Galle and the learned High Court Judge of Galle have taken into

consideration both the facts and the law when arriving at their respective orders and therefore, I do not wish to disturb their findings.

For the above reasons I hold that there is no merit in this Appeal and accordingly I dismiss the Appeal

JUDGE OF THE COURT OF APPEAL

P.R.Walgama, J.

I agree

JUDGE OF THE COURT OF APPEAL

Appeal is dismissed

J. BANDULASENA VS. G. K. C. KUSHANTHA

HON. P. PADMAN SURASENA, J

C A (PHC) /147 / 2009
Provincial High Court of
Southern Province (Galle)
Case No. Rev 614/2007
Magistrate's Court Galle
Case No. 80064

In the matter of an Appeal against judgment of Provincial High Court exercising its revisionary jurisdiction.

1. Jayasekarage Bandulasena,
No. 137, Beligaha Handiya,
Galle.

2. Jayasekarage Buddhika Lal,

3. Magedara Gamage Kanthi,
4. Jasingpathiranage Nuwan
Chamara,
5. Wijeweera Lauris,
2ND PARTY RESPONDENT -
PETITIONER - APPELLANTS

Vs.

1. Galla Kankanamge Chaminda
Kushantha,
No. 484,
Kahaduwa waththa,
Galle.

2. N W K Daya Chandrasekara,
No. 482,
Hirimbura waththa,
Kahaduwa waththa,
Galle.

1ST PARTY RESPONDENT -
RESPONDENT - RESPONDENTS

3. Officer in Charge,
Police Station,
Galle.

COMPLAINANT - RESPONDENT-
RESPONDENT

Before: K K Wickremasinghe J
P. Padman Surasena J

Counsel : J P Gamage for the 2nd Party Respondent - Petitioner -Appellants.
Sheron Senevirathna for the 1st Party Respondent - Respondent - Respondents.

Decided on: 2017 - 09 - 27

JUDGMENT

P Padman Surasena J

Learned counsel for both the Parties, when this case came up on 2017-01-23 and on 2017-07-05 before this Court, agreed to have this case disposed of, by way of written submissions, dispensing with their necessity of making oral submissions. They agreed that this Court could pronounce the judgment after considering the written submissions they had already filled. Therefore, this judgment would be based on the material adduced by parties in their pleadings and the written submissions.

The Complainant- Respondent - Respondent (hereinafter sometimes referred to as the 3rd Respondent) had filed an information in the Primary Court of Galle under section 66 (1) complaining to the learned Primary Court Judge that there existed a breach of peace between two parties over a dispute relating to land.

The two rival parties named in the said information was Galla Kankanamge Chaminda Kushantha as the 1st party who is 1st party Respondent - Respondent - Respondent (hereinafter sometimes called and referred to as the 1st Respondent) and Jayasekarage Bandulasena, Jayasekarage Buddhika Lal, Magedara Gamage Kanthi, Jasingpathiranage Nuwan Chamara, as the 2nd party who are the 2nd party Respondent - Petitioner- Appellants (hereinafter sometimes called and referred to as the 1st -4th Appellants or Appellants).

Perusal of the learned Magistrate's order shows that two new parties had got added to the case on 2007-01-05. The 5th Respondent - Petitioner- Appellant is amongst those two. (He would hereinafter sometimes be called and referred to as the 5th Appellant or Appellant).

Learned Magistrate having inquired into this complaint, had held by his order dated 2007-09-27, that the Appellants had failed to establish that they were residing at the relevant premises for a considerable time and thereby failed to establish that they are entitled to a right of way over the impugned property. Learned Magistrate, on this basis, had ordered that the 1st Respondent is entitled to the peaceful possession of the land in dispute.

Being aggrieved by the said order made by the learned Magistrate, the Appellants (hereinafter sometimes referred to as the Appellants) had made a revision application to the Provincial High Court of Southern Province holden in Galle urging the Provincial High Court to revise the order made by the learned Primary Court Judge.

The Provincial High Court of Galle after hearing parties, by its judgment dated 2009-06-11, had refused the said application for revision and had proceeded to dismiss it with costs affirming the order of the learned Primary Court Judge.

It is that judgment which the Appellant seeks to canvass in this appeal before this Court. It is the observation of this Court that the major part of the written submission filed on behalf of the Appellant contains the facts to propose as to why the learned Primary Court Judge should have held in his favour.

It would be relevant to bear in mind that the appeal before this Court is an appeal against a judgment pronounced by the Provincial High Court in exercising its revisionary jurisdiction. Thus, the task before this Court is not to consider an appeal against the Primary Court order but to consider an appeal in which an order pronounced by the Provincial High Court in the exercise of its revisionary jurisdiction is sought be impugned.

It is relevant to observe that this Court in the case of Nandawathie and another V Mahindasena that this Court in that case¹ also had taken the above view. It is noteworthy ² had stated that the right given to an aggrieved party to appeal to Court of Appeal in a case of this nature 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 its revisionary powers.³

________________________

¹ 2009 (2) Sr. L. R. 218.

² Ibid. at page. 238.

³ Ibid. at page 238.

We are in full agreement with the above view and thus, would take great care not to treat this as an appeal lodged against the order of the Primary Court. Thus, we shall refrain from getting into the shoes of appellate Judges sitting to adjudicate an appeal lodged against an order of the Primary Court.

Further, one must not lose site of the fact that section 74 (2) of the Primary Courts Procedure Act has specifically taken away the right of appeal against any determination or order made under the provisions of its part VII. This means that no appeal could lie against the impugned Primary Court order. That is perhaps why the Appellants had made a revision application to the Provincial High Court.

The Provincial High Courts need to be mindful of this fact when they are called upon to exercise revisionary jurisdiction in respect of Primary Court orders of this kind. Such applications must be treated as only revision applications and not appeals. The Judges of the Provincial High Courts need to bear in mind that they would only defeat the purpose of section 74 (2) of the Primary Courts Procedure Act which has specifically been enacted by the legislature to take the right of appeal away from tparties, if they indirectly assume appellate jurisdiction over this type of applications.

Although there is a right of appeal provided to this Court from an order of the Provincial High Court, this Court should not forget that it is within the above parameters that the Provincial High Court has pronounced the impugned order. Therefore the right of appeal provided by law to this Court would only empower this Court to evaluate the correctness of the exercise of the revisionary jurisdiction by the Provincial High Court. It cannot be converted to an appeal against a Primary Court Order.\In these circumstances, in the process of the adjudication of the instant appeal this Court would need to act within the above parameters. This Court would remind itself that it is not open for it to treat this case as a true appeal from an order made by the Primary Court. This is the view expressed by this Court in the case⁴ cited above as well.

As has been stated before, in the instant case what the Provincial High. Court was called upon to exercise was its revisionary jurisdiction. The caption of the revision application filed in the Provincial High Court states

_______________________

⁴ Ibid.

that it is under Article 154 P (3) (b) of the Constitution that the said application has been filed.

Article 154 (3) (b) states that notwithstanding anything in Article 138 and subject to any law, a Provincial High Court shall exercise, appellate and revisionary jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrates Courts and Primary Courts within the Province; ..... ".

It is relevant to note that section 5 of the High Courts of provinces (Special provisions) Act No. 19 of 1990 has made, the provisions of written law applicable to appeals and revision applications made to Court of Appeal, applicable to such cases filed in the Provincial High Courts also.

Section 78 of the Primary Courts procedure Act No. 44 of 1979 states that the provisions in the Code of Criminal Procedure Act governing a like matter where the proceeding is criminal nature and the provisions of the Civil Procedure Code governing .a like matter where the proceeding is civil nature shall with suitable adaptations as the justice of the case may require apply.

Thus, the provisions relating to revision, in chapter XXIX of the Code of Criminal Procedure Act No. 15 of 1979, as well as in chapter LVIII of the Civil Procedure Code have been made applicable to the exercise of revisionary jurisdiction by the Provincial High Courts in respect of this kind of orders made by the Primary Court Judges.

According to section 364 of the Code of Criminal Procedure Act, as well as section 753 of the Civil Procedure Code, the Court exercising revisionary jurisdiction, can call for and examine the record of any case for the purpose of satisfying itself as to the legality or propriety of any order passed therein or as to the regularity of the proceedings of such Court. Thus, three aspects which a Court could consider in revisionary proceedings have been specified in both the above sections. They are

i. legality of any order,
ii. propriety of any order and
iii. regularity of the proceedings of such CourtThis Court in the case of Attorney General V Ranasinghe and others5 had referred to this criterion embodied in section 364 of the Code of Criminal Procedure Act in the following way;

" ..... This power can be exercised for any of the following purposes;

1) to satisfy this Court as to the legality of any sentence or order passes by the High Court or Magistrate's Court,

2) to satisfy this Court as to the propriety of any sentence or order passed by such Court,

3) to satisfy this Court as to the regularity of the proceeding of such Court. ....."

In the instant case there is no complaint about the last aspect i.e. the regularity of the proceedings.

Having this in mind, it is the observation of this Court that the written submission of the Appellant does not set out any ground, which is at least suggestive of any illegality or any impropriety of the impugned order.

____________________

⁵ 1993 (2) Sri. L. R. 81.

Therefore it is clear that none of the grounds upon which the Provincial High Court could have intervened to exercise its revisionary jurisdiction, had been made out.

In addition, Perusal of the judgment of the learned Provincial High Court Judge also shows to the satisfaction of this Court that all the points agitated by the Appellant have substantially been dealt with by the learned Provincial High Court Judge. This Court is not inclined to re consider them again one by one. This is particularly so because of the failure on the part of the Appellant to put forward any basis as to why this Court should embark upon such a course of action. This Court is of the opinion that the learned Provincial High Court Judge has come to the correct conclusions in his judgment.

It would suffice to state here that the Supreme Court in the case of Ramalingam V Thangarajah⁶ which interpreted section 69 (1) has held that the word "entitle" in that section connotes the ownership of the relevant right.
__________________
⁶ 1982 (2) Sri. L R 693.

It is the view of this Court that the Appellants have failed to prove to the satisfaction of Court that they are entitled to the impugned roadway. Further, it would be relevant to reproduce the following passage from a judgment of this Court in the case of Punchi Nona V Padumasena and others 7

" 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 ... "

Thus, it is the view of this Court that there had been no basis for the Provincial High Court to interfere with the conclusion of the learned Primary Court Judge as there are ample reasons to satisfy itself with its legality and propriety as required by section 364 of the Code of Criminal Procedure Act No. 15 of 1979.

_____________________

7 1994 (2) Sri. L R 117.

Considering all the above material, this Court sees no merit in this appeal. Therefore, this Court decides to dismiss this appeal. Further, this Court makes order that the Respondents are entitled to costs.
Appeal is dismissed with costs.

JUDGE OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

SOMAPALA GAMAGE VS. A. RANJANI KUMARANAYAKE

HON. M. M. A. GAFFOOR, J

C. A No. 1261/00(F)
D. C. Embilipitiya No.4758/L

A. Ranjani Kumaranayake
Land No. 555, Kiriebbenara
Embilipitiya

Plaintiff

Vs

Somapala Gamage
Land No.36, Bogaha Handiya
Kiriebbanara

Defendant

AND NOW BETWEEN

Somapala Gamage
Land No.36, Bogaha Handiya
Kiriebbanara

Defendant-Appellant

Vs

A. Ranjani Kumaranayake
Land No. 555, Kiriebbenara
Embilipitiya

Plaintiff-Respondent

BEFORE : Deepali Wijesundera J.,
M. M. A. Gaffoor, J.,

COUNSEL : Thushari Hirimutugala with H. Wijeratne for the Defendant Appellant
Kapila Sooriyarachchi with Vases Sakalasuriya for the Plaintiff Respondent

ARGUED ON: 15.02.2016

DECIDED ON: 05.05.2016

Gaffoor J.

This is an appeal preferred by the Defendant Appellant (hereinafter referred to as the "Defendant") to have the judgment dated 23.08.2000 of the learned District Judge of Embilipitiya set aside and to enter judgment in favour of the Defendant.

This is a possessory action filed by the Plaintiff Respondent (hereinafter referred to as the "Plaintiff') against the Defendant. The Plaintiff states in her plaint that since 1970, she has been possessing and cultivating the land in dispute with banana, peanuts, onions etc., and in 1986, this land was surveyed and identified by the Mahaweli Authorities as Lot 769 1/2

On or about 27.10.1992, the Defendant had disturbed the Plaintiff's possession by encroaching on it, and over this dispute there was a case bearing No. 19918 in the Primary court of Embilipitiya under section 66 of the Primary Courts Procedure Act. It is on record that the learned Magistrate had ordered to seize the plantation of the Plaintiff valued at Rs.20,072/- , which amount is deposited to the credit of the Primary court case. The Defendant had been placed in possession in the Primary Court case. Against this, the Plaintiff has filed this case in the District Court of Embilipitiya by presenting a plaint dated 27.09.1993, praying for judgment in her favour, for possession of the land and for the return of the sum of Rs.20072/-. deposited in the Primary court case.

IDENTITY OF THE LAND

The Primary contention of the Defendant's Counsel before this court is that the Plaintiff has failed to identify the land in dispute. While the Plainiff has given some boundaries for the land described in the schedule to the Plaint, the Defendant has given some other boundaries in his Answer. Be as it may be, the land is identified as Lot "769 1/2" by the Plaintiff, as well as by the Defendant and there is no dispute as to this Lot Number.

Furthermore when the dispute was referred to the Primary Court the Defendant did not raise any dispute as to the identity of the land. The crop was seized by an order of the court and its value of Rs.20,072/- was deposited in court. When the crop was seized, it was admitted by the Defendant that the land in dispute was the land on which the crop was standing. Although the parties refer to a land by different boundaries yet, unmistakenly the Lot number is admitted by the parties as Lot 769 1/2.

In the further written submissions para. 9, Counsel for the Defendant Appellant states this: (a) "though the reference number of the land described in the schedule to the Plaint and the land identified by the representatives of the Mahaweli Authority, who testified on behalf of the Defendant, are identical, the boundaries of the two lands and their respective nature are different from each other." Thus, it is admitted that though the nature is different, the land is identified as the same as the one referred to by Lot No. 769 1/2.

Therefore, the contention that the Plaintiff has failed to identify the land is untenable. In this regard the learned District Judge says in his judgment that the case be determined on the evidence. The land described in the schedule to the plaint, the land described in the 2nd schedule to the Answer of the Defendant and the land disputed in the Primary court case are one and the same.

It must be noted Section 41 of the Civil Procedure Code refer to an action in respect of a specific portion of land i.e if a specific portion of a (larger) land is in dispute. That specific portion must be described in the plaint by reference to physical metes and bounds or by reference to a specific sketch, map or plan. In the present case, the land in dispute is not a portion but the whole land bearing lot No. 769 1/2, which is morefully described in the schedule to the Plaint.

The Plaintiff claims that since the land is a high land and she cultivated it with banana plants, peanuts and onions. These are "chena" cultivations which can be done only on a highland. But the Defendant says that it is a paddy land and he also cultivated banana plants. How it can be done in a paddy land is a question that is not explained by him. The evidence of the Plaintiff was supported by the Grama Nildari who also says that up to 1992, the land was a high land and after 1992 it was made a paddy land. Nevertheless, it is abundantly clear from the evidence led in this case that prior to 1992, the land was possessed by the Plaintiff as a high land and cultivated on it some 'chena' plantation such as bananas, peanuts onions etc., and only in 1992, the Defendant has disturbed Plaintiff's possession on the strength of document marked "V2".

On a perusal of document marked "V2" , it appears that it had been issued on 28.11.1991 or on 07.01.1992. although it says that unauthorized occupation date is 1987, but no evidence is led in the case to prove this position.

It is in evidence that on or about 27.10.1992 the Defendant, with the help of Mahaweli Authorities had gone to the Plaintiff's land and dispossessed her. After this incident only, the Primary Court case had been instituted and thereafter the present civil case has been filed by the Plaintiff in the District Court. The learned District Judge has analysed the evidence of the witnesses given in this case and states that "the Grama Niladari's evidence corroborates the evidence of the Plaintiff that she was in possession prior to 27.10.1992 and the Defendant has failed to contradict this evidence and therefore a cause of action has accrued to the Plaintiff to regain her possession and to recover compensation from the Defendant's" (see page 3 of the Judgment). .

The possessory action is not a rei vindicatio action and therefore the question as to who is the owner is quite irrelevant. It is admitted in this case that the land in dispute belongs to the Mahaweli Authority and is a reservation adjoining lot 555, which is allotted to the Plaintiff. In a possessory action the only matter this looked into is whether or not the Plaintiff had possession ut dominus for a year and a day in terms of Section 4 of the Prescription Ordinance. Hence, the Plaintiff need not set out a title as in the case of rei vindicatio action. (see Abdul Aziz vs Abdul Rahim (1909) 12 NLR 330).

It is clear that prior to 27.10.1992, the Plaintiff was in peaceful possession of the land in dispute until she was disturbed

In the case of Perera vs Wijesuriya 59 NLR 529. It was held that the trespass without ouster may, in appropriate circumstances, amount to dispossession within the meaning of Section 4 of the Prescription Ordinance.

In a possessory action like the present case, the Plaintiff has to prove two ingredients (1) she was in possession of the land in dispute and (2) she was dispossessed by the Defendant otherwise than by process of law. In this case, both these elements are well established by the Plaintiff. The Plaintiff. having been in possession of the land for over a year and a day prior to 27.10.1992 is entitled to maintain a possessory action in terms of the law.

I wish to mention here that the Primary Court has made an initial mistake by placing the Defendant in possession of the land on the strength of the document marked "V2". It is not a matter for the Primary Court to decide on title but purely to prevent breach of the peace between the parties over a land dispute. If the Plaintiff had been in possession of the land over several years and especially within two months of the Report filed by the Police, the court should have allowed the party in possession to continue in possession and order the disputing party to file a civil action. The Primary Court instead of ordering the defendant to institute civil action on the document V2 had placed him in possession and directed the Plaintiff to seek civil remedy. This is in violation of the provisions of the Primary Court Procedure Act. The Defendant should have been referred to a civil action to prove his title by the document marked V2 issued to him by the Mahaweli Authorities in 1991.

Considering the facts, the law and the evidence led in this case, the Plaintiff has morefully identified the land in dispute which she possessed since 1970. Her possession had been disturbed on 27.10.1992 only after the Defendant was issued with the document V2 by the Mahaweli Authorities. The Plaintiff has proved that she had been in possession of the land prior to

27.10.1992 and was dispossessed on this date by the Defendant. This case has been filed on 27.09.1993 which is within one year of the dispossession of the Plaintiff. In all respect the Plaintiff has a right to bring this action in terms of Section 4 of the Prescription Ordinance.

For the above said reasons, I am not inclined to interfere with the judgment of the learned Additional District Judge. I affirm the judgment of the District Court and dismiss the appeal with costs.

Appeal dismissed.

JUDGE OF THE COURT OF APPEAL

Deepali Wijesundera J.,

I agree.

JUDGE OF THE COURT OF APPEAL

UDDEEN MAHAMOOR VS W M ROHANA KEERTHI

HON JANAK DE SILVA, J.

Case No. CA (PHC} APN No:111/2016
PHC Puttalam Case No: HCR 06/2015
MC Puttalam Case No:10096/2014

In the matter of an application in revision under and in terms of Article 138 of the Constitution

Rameez Uddeen Mahamoor,
No.5,6th Lane,Nawala,
Rajagiriya.

1st Party-Petitioner-Petitioner

Vs.

Weerasinghe Mudiyansellage Rohana Keerthi,
19th Mile Post, Anuradhapura Road,
Ihalapuliyankulama.

2nd Party-Respondent-Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: D.A.P. Weeraratne for 1st Party-Petitioner-Petitioner
K.V.S. Ganesharaja with S. George and Deepika Yoga rajah for 2nd Party-Respondent-Respondent

Written Submissions tendered on: 1st Party-Petitioner-Petitioner on 27.09.2018

Argued on: 30.07.2018

Decided on: 31.10.2018

Janak De Silva J.

This an application in revision made against the order of the learned High Court Judge of Puttalam dated 12.07.2016.

This matter arises out of an information filed by the Officer-in-Charge of the Saliyawewa Police under section 66(1)(a} of the Primary Courts Procedure Act (Act). Information was filed on 25.11.2014. The parties were permitted to file affidavits, counter affidavits and documents. The 1st Party-Petitioner-Petitioner (Petitioner) claimed that he was in possession of the land in dispute from 17.03.2010 whereas the 2nd Party-Respondent-Respondent (Respondent) claimed that he was in possession of the land in dispute for about 20 years.

The parties admitted that the land in dispute is depicted as "F" in the sketch filed by the Police. (Journal Entry dated 25.11.2014).

The learned Magistrate held that the Respondent had established that he was in possession of the land in dispute on the date that information was filed and that the Petitioner had failed to establish the exact day on which he was evicted from the land in dispute by the Respondent. Accordingly, he held that the Respondent was entitled to possession of the land in dispute.

The Petitioner moved in revision to the High Court against the said order. The learned High Court Judge by his order dated 12.07.2016 dismissed the said application on the basis that the Petitioner had failed to establish exceptional circumstances as well as him having an alternative remedy. Hence this application in revision.

One of the main arguments of the learned counsel for the Petitioner is that the land in dispute is not properly identified. He submitted that whereas the land claimed by the Petitioner is identified as Dangaha Kumbura the Respondents claimed a portion of land called Thambigewela. The learned counsel for the Petitioner relied on Punchi Nona v. Padumasena and others [1994] 2 Sri.L.R. 117]. However, as pointed out earlier, parties in the Magistrates Court admitted that the land in dispute is depicted as "F" in the sketch filed by the Police. (Journal Entry dated 25.11.2014).

Section 58 of the Evidence Ordinance reads:

"No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

Accordingly, an admission can be made in the following ways:

(i) Where the parties or their agents agree to admit a fact at the hearing;

(ii) Where before the hearing, parties agree to admit a fact by any writing under their hands;

(iii) Where, by any rule of pleading in force at the time the parties are deemed to have admitted a fact by their pleadings.

The admission in the instant case as to the identity of the land in dispute was one made within (i) above. An admission of fact made by counsel is binding on the client [Coomaraswamy, The Law of Evidence, Vol. I, page 129]. It is sometimes permissible to withdraw admissions on questions of law but admissions on questions of fact cannot be withdrawn [Uvais v. Punyawathie (1993) 2 Sri L.R. 46]. However, in Sivaratnam and others v. Dissanayake and others [(2004) 1 Sri L.R. 144 at 148] Amaratunga J. sought to explain the principle as follows:

"The decision in Uvais v Punyawathie (supra) is authority for the proposition that a fact specifically admitted at the trial and relied on by the opposite party in deciding how he should present his case cannot be withdrawn or departed from at the stage of the appeal. See also Mariammai v. Pethurupillal. Fernando, J.Sjudgment in Uvaisls case makes it very clear that what is not permitted is the withdrawal of an admission in circumstances where such withdrawal has the effect of subverting the fundamental principles of the Civil Procedure Code in regard to pleadings and issues. That judgment is not authority for the broader proposition that an admission once made cannot be withdrawn at all. An admission made in a written statement may be subsequently withdrawn with the permission of the Judge. Muhammad Altof All Khan v Hamid-ud-din. Section 183 proviso of the Code of Criminal Procedure Act, No. 15 of 1979 explicitly demonstrates that an admission can be withdrawn. Thus, the law's refusal to allow the withdrawal of an admission is a matter depending on the circumstances of each case."

In the present case, no attempt was made to withdraw the admission as to the identity of the corpus either in the Magistrate's Court or the High Court. Accordingly, I am of the view that the Petitioner cannot now be permitted to do so and argue that the identity of the corpus is in issue.

In Ramalingam v. Thangarajah [(1982) 2 Sri.L.R. 693 at 698] Sharvananda J. (as he was then) stated as follows:

"In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66, but where forcible dispossession took place within two months before the date on which the said information was filed the main point is actual possession prior to the alleged date of dispossession."

The learned counsel for the Petitioner submitted that the documents tendered by the Respondent does not establish that he was in possession of the land in dispute. However, the learned Magistrate has correctly concluded that the evidence tendered on behalf of the Respondent does in fact establish his possession of the land in dispute whereas the Petitioner has failed to do so.

In this regard an important item of evidence is marked as 2 Pa 1 which is a certified copy of the proceedings in DC Puttlam 2109/L which has been filed on 18.12.2013 more than a year prior to information been filed under section 66 (1) *a) of the Act, by the Respondent and 5 others against one Ferdandusz and I B Newton Pieris. The plaintiff claimed that they were in possession of the land in dispute and sought inter alia a declaration that they are entitled to possess the said land and preventing the defendants evicting them from the said land. The defendants were two of the vendors who had purportedly sold the land in dispute to the Petitioner. This is an important fact which establishes that the Respondent was in possession of the land in dispute at least one year prior to the date when information was filed. The Petitioner failed to establish that he took over possession of the land in dispute thereafter.

On a careful reading of the evidence, I am of the view that the learned High Court Judge correctly concluded that there are no exceptional circumstances to interfere with the assessment of the evidence made by the learned Magistrate.

The Petitioner having moved the High Court by way of revision had a right of appeal to this court against the order of the learned High Court Judge of Puttalam dated 12.07.2016. However, he has filed a revision application instead of an appeal. In Dharmaratne and another v. Palm Paradise Cabanas ltd. and others [(2003) 3 Sri.L.R. 24 at 30] Amaratunga J. held:

"Thus the existence of exceptional circumstances is the process by which the Court selects the cases in respect of which this extra-ordinary method of rectification should be adopted. If such a selection process is not there revisionary jurisdiction of this Court will become a gateway for every litigant to make a second appeal in the garb of a revision application or to make an appeal in situations where the legislature has not given right of appeal.

The practice of Court to insist on the existence of exceptional circumstances for the exercise of revisionary powers has taken deep root in our law and has got hardened into a rule which should not be lightly disturbed. The words used by the legislature do not indicate that it ever intended to interfere with this 'rule of practice'."

There are no exceptional circumstances, which justifies this Court exercising the extraordinary powers of revision against the order of the learned High Court Judge of Puttalam dated 12.07.2016.

Accordingly, the appeal is dismissed with costs fixed at Rs. 10,000/=.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

RAMEEZ UDDEEN MAHAMOOR Vs SEBASTAIN MICHAEL CROOS

HON JANAK DE SILVA, J.

Case No. CA (PHC) APN No:109/2016
PHC Puttalam Case No: HCR 04/2015
MC Puttalam Case No:10094/2014

In the matter of an application in revision under and in terms of Article 138 of the Constitution.

Rameez Uddeen Mahamoor,
No.5,6th Lane, Nawala,
Rajagiriya.

1st Party-Petitioner-Petitioner

Vs.

Santiago Croos Sebastain Michael Croos,
19th Mile Post, Palugassegama,
Saliyawewa
Junction, Saliyawewa.

2nd Party-Respondent-Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J

Counsel: D.A.P. Weeraratne for 1st Party-Petitioner-Petitioner
K.V.S. Ganesharaja with S. George and Deepika Yogarajah for 2nd Party-Respondent-Respondent

Written Submissions tendered on: 1st Party-Petitioner-Petitioner on 27.09.2018

Argued on: 30.07.2018

Decided on: 31.10.2018

Janak De Silva J

This an application in revision made against the order of the learned High Court Judge of Puttalam dated 12.07.2016.

The parties admitted that the land in dispute is depicted as "E1" and "E2" in the sketch filed by the Police. (Journal Entry dated 25.11.2014).

One of the main arguments of the learned counsel for the Petitioner is that the land in dispute is not properly identified. He submitted that whereas the land claimed by the Petitioner is identified as Dangaha Kumbura the Respondents claimed a portion of land called Thambigewela. The learned counsel for the Petitioner relied on Punchi Nona v. Padumasena and others [1994] 2 Sri L.R. 117]. However, as pointed out earlier, parties in the Magistrates Court admitted that the land in dispute is depicted as "E1" and "E2" in the sketch filed by the Police. (Journal Entry dated 25.11.2014).

Section 58 of the Evidence Ordinance reads:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

Accordingly, an admission can be made in the following ways:

The admission in the instant case as to the identity of the land in dispute was one made within (i) above. An admission of fact made by counsel is binding on the client [Coomaraswamy, The Law of Evidence, Vol. I, page 129]. It is sometimes permissible to withdraw admissions on questions of law but admissions on questions of fact cannot be withdrawn [Uvais v. Punyawathie (1993) 2 Sri.L.R. 46]. However, in Sivaratnam and others v. Dissanayake and others [(2004) 1 Sri.L.R. 144 at 148] Amaratunga J. sought to explain the principle as follows:

Procedure Code in regard to pleadings and issues. That judgment is not authority for the broader proposition that an admission once made cannot be withdrawn at all. An admission made in a written statement may be subsequently withdrawn with the permission of the Judge. Muhammad Altof All Khan v Hamid-ud-din. Section 183 proviso of the Code of Criminal Procedure Act, No. 15 of 1979 explicitly demonstrates that an admission can be withdrawn. Thus, the law's refusal to allow the withdrawal of an admission is a matter depending on the circumstances of each case."

In Ramalingam v. Thangarajah [(1982) 2 Sri.L.R. 693 at 698] Sharvananda J. (as he was then) stated as follows:

possession of the land in dispute and sought inter alia a declaration that they are entitled to possess the said land and preventing the defendants evicting them from the said land. The defendants were two of the vendors who had purportedly sold the land in dispute to the Petitioner. This is an important fact which establishes that the Respondent was in possession of the land in dispute at least one year prior to the date when information was filed. The Petitioner failed to establish that he took over possession of the land in dispute thereafter.

There are no exceptional circumstances, which justifies this Court exercising the extraordinary powers of revision against the order of the learned High Court Judge of Puttalam dated 12.07.2016.

Accordingly, the appeal is dismissed with costs fixed at Rs. 10,000/=

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

RAMASAMI MANGALANAYAGI VS. RAMASAMI RAMAKRISHNAN

HON. W.M.M. MALINIE GUNARATNE, J

Appeal Court No. 35/2003
Kandy High Court Revision/39/2001
Nuwaraeliya Primary Court Case No. 26730

1. Ramasami Mangalanayagi,

2. Raju Muthuveeran,
Both of 114, Jayalanka Road,
Kandapola.

Respondent - Appellants.

Vs.

1. Ramasami Ramakrishnan,
Postwood New Colony, Kandapola.

2. Ramasami Rajgopal,
Postwood New Colony, Kandapola.

3. Ramasami Wijekumar,
Postwood Watte, New Colony, Kandapola.

4. Ramasami Manoharan,
Postwood New Colony, Kandapola.

5. Ramasami Anandan,
Bakers Farm, No.27, Mahagastota, Nuwaraeliya.

6. Ramasami Mohandas,
Postwood New Colony, Kandapola.

7. Ramasami Muralidaran,
Postwood New Colony, Kandapola.

8. Ramasami Rajeskanna,
Cotelodge Watte, Kandapola.

Respondent - Petitioner-Respondents

BEFORE : W.M.M. Malini Gunaratne, J. and
P.R. Walgama, J.

COUNSEL : Athula Perera with Chathurani de Silva for the Appellant.

Buddhika Gamage for the Respondent

Argued on : 05.08.2015

Written Submissions filed on : 20.11.2015 (Filed only by Appellant)

Decided on : 08.03.2016

Malinie Gunaratne, J

Pursuant to an application filed in the Primary Court of Nuwara Eliya, by the Petitioner - Respondent - Appellants (hereinafter referred to as the Appellants) in terms of Section 66 of the Primary Court Procedure Act, the learned Primary Court Judge held an inquiry into the dispute between Respondent - Petitioner - Respondents (hereinafter referred to as the Respondents) made an order confirming the possession of the Appellants, in respect of the land and the premises in question.

Being aggrieved by the said Order, Respondents sought to move in Revision against the said Order by Revision Application No. 39/2001, filed before the High Court of Kandy.

The learned High Court Judge, disagreeing with the Order made by the learned Primary Court Judge, set aside the said Order on 07.01.2003.

The Appellants have now filed this appeal seeking to set aside the said Judgment of the learned High Court Judge dated 07.01.2003.

When this appeal was taken up for argument on 21.11.2012, the learned Counsel for the Appellant had brought to the notice of this Court, that there is no valid judgment made in the High Court, since the 1st Respondent had died pending the revision application in the High Court, and as no substitution being effected before the delivery of the judgment by the learned High Court Judge.

It was agreed by both parties to file written submissions on the question of the validity of Judgment. It is relevant to note that written submissions has been filed only on behalf of the Appellants.

The contention of the learned Counsel for the Appellant is, when this Appeal was mentioned before this Court on 26.02.2013 it was brought to the notice of this Court by the Counsel appearing for the Respondents that, the 1st Respondent had died. The Counsel further contended when perusing the death certificate of the 1st Respondent - Ramasami Ramakrishnan, it was revealed that the said Ramasami Ramakrishnan had died on 07.10.2002, while the revision application was pending in the High Court Kandy and no substitution had been effected in place of the deceased 1st Respondent.

In the circumstances, it was the stance of the learned Counsel for the Appellant, since the 1st Respondent has died pending the Revision Application in the High Court, and as no substitution had been effected before the delivery of the judgment by the learned High Court Judge, the said Judgment has no force in law and the said Judgment is null and void.

It is to be noted that the Revision Application had been taken up for argument on 25.11.2002 (vide Page 34 of the brief) and the learned High Court Judge has delivered the Judgement on 07.01.2003. As such, it is crystal clear by this time the 1st Respondent was dead and it had not been brought to the notice of the Court.

In the circumstances, the issue now that arises for consideration is, since the 1st Respondent had died pending the case in the High Court, whether the said Judgment is a nullity and or no force in law.

It was observed by Shirani Bandaranayake C.J. in Gamaralalage Karunawathie vs. Godayalage Piyasena and Others - SC Minutes dated 05.12.2011 "When a party to a case had died during the pendency of that case, it would not be possible for the Court to proceed with that matter without bringing in the legal representatives of the deceased in his place. No sooner a death occurs of a party before Court, his Counsel loses his position in assisting Court, as along with the said death and without any substitution he has no way in obtaining instructions. At that stage, the question arises, as to how and what are the steps that has to be taken in order to cure the defect".

In the present appeal, as clearly stated earlier, prior to the judgment of the High Court dated 07.01.2003, the 1st Respondent had died on 07.10.2002. No steps had been taken for substitution of parties. Accordingly, it is evident that the judgment delivered by the learned High Court Judge is ineffective and therefore it would be rejected as a nullity.

For the said reason all proceedings after 07.10.2002 and the Judgment of the High Court dated 07.01.2003 is set aside.

Accordingly, this case is sent back to the High Court of Kandy for the Respondents (Petitioners in the High Court) to take steps according to law, for substitution and direct the learned High Court Judge of Kandy to proceed with the case after effecting substitution in place of the 1st Respondent -Ramasami Ramakirshnan.

JUDGE OF THE COURT OF APPEAL

P.R.Walgama, J.

I agree

JUDGE OF THE COURT OF APPEAL

PUNCHI PATABENDIGE CHANDRARATNE VS. Do PREMADASA

HON. MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 5/2014

HIGH COURT TANGALLE CASE NO: 12/2012/REV
MAGISTRATE'S COURT OF TANGALLE CASE NO: 8470

Punchi Patabendige
Chandraratne,
Godigamuwa,
Tangalle.

Respondent-Petitioner-Appellant

Vs.

Punchi Patabendige Premadasa,
No. 10B, Godigamuwa,
Tangalle.

Petitioner-Respondent-Respondent

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Buddhika Gamage for the Respondent- Appellant.
Shihan Ananda Hewa Dewage for the Petitioner-Respondent.

Argued on : 04.04.2019

Decided on : 05.04.2019

Samayawardhena, J.

The petitioner respondent (respondent) instituted these proceedings in the Magistrate's Court against the respondent- appellant (appellant) under section 66(1)(b) of the Primary Courts' Procedure Act, No.44 of 1979, alleging forcible dispossession from Lots 2 and 3 of Plan No. 2000/11 within two months before filing the application in the Magistrate's Court. The learned Magistrate after inquiry has accepted that position and ordered in terms of section 68(3) of the Act to restore the respondent in possession. That order has been affirmed by the High Court in revision. The appellant has come before this Court against the said Judgment of the High Court.

There had been a partition action No.2948/P filed by the respondent (as the plaintiff) to partition the larger land, which included the disputed portion in this case. The appellant is the 7th defendant in that case.

According to the plaint filed in the partition action, the appellant is not a co-owner of the land. In the said partition action, an interim injunction has been issued by the District Court at the instance of the respondent preventing the appellant from converting the hut put up by the appellant to a permanent building, making any development work, cutting trees, separating the land by making fences in the corpus. This partition action has been dismissed on 14.02.2012 due to failure to identify the corpus. No appeal has been preferred against that Judgment. According to the respondent, dispossession took place 11 days after the dismissal of the partition action-i.e. on 25.02.2012. The respondent filed the case in the Magistrate's Court on 30.03.2012. By photographs P16 and P17, the respondent has amply satisfied the imminent

breach of the peace over this dispute. What seems to have happened is, soon after the dismissal of the partition action, the appellant has attempted to forcibly enter the disputed portion of the land on the basis that the appellant has lost the partition action. According to the Preliminary Plan No.891021 and its Report marked by the appellant as V2 and V6 in the Magistrate's Court, the hut which the appellant has put up falls outside the disputed portion of the land. That hut is in Lot 6 of the Preliminary Plan No.891021.

The disputed portion of land in the section 66 application is Lots 2 and 8 of the said Preliminary Plan. It is that portion which is depicted as Lots 2 and 3 in Plan No. 2000/11-another Plan prepared in the Partition case. Even though the appellant has also claimed Lot 8 of the Preliminary Plan before the surveyor, the respondent by documentary evidence has convinced the learned Magistrate that the respondent was in possession of the disputed portion until he was forcibly dispossessed soon after the dismissal of the partition case.

At the argument, the only point stressed by the learned counsel for the appellant before this Court is that the averments in the respondent's plaint in the partition action alone confirms the appellant's possession in the land since 1988. The learned counsel thereby alludes to the interim injunction application made in the partition case to say that the interim injunction was sought because he was in possession. That possession has been stopped by the interim injunction. Moreover, as I have already stated, the portion where the hut has been put up falls outside the disputed portion. There is no evidence to show that the appellant possessed the disputed portion of the land (Lots 2 and 3 in Plan No.2000/11 or Lots 2 and 8 in Plan No.891021) by some means after the interim injunction was issued.

I see no reason to interfere with the Judgment of the High Court, which affirmed the Magistrate's Court order.

Appeal dismissed without costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

RAMEEZ UDDEEN MAHAMOOR vs LALITH M PERERA

HON JANAK DE SILVA, J.

Case No. CA (PHC) APN No:110/2016
PHC Puttalam Case No: HCR 05/2015
MC Puttalam Case No:10095/2014

In the matter of an application in revision under and in terms of Article 138 of the Constitution.

Rameez Uddeen Mahamoor,
No.5,6th Lane,Nawala,
Rajagiriya.

1st Party-Petitioner-Petitioner

Vs.

Lalith Munasinghe Perera,
18, 3/4 Mile Post, Anuradhapura Road,
Ihalapuliyankulama.

2nd Party-Respondent-Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: D.A.P. Weeraratne for 1st Party-Petitioner-Petitioner
K.V.S. Ganesharaja with S. George and Deepika Yogarajah for 2nd Party-Respondent-Respondent

Argued on: 30.07.2018

Decided on: 31.10.2018

Janak De Silva J.

This an application in revision made against the order of the learned High Court Judge of Puttalam dated 12.07.2016.

This matter arises out of an information filed by the Officer-in-Charge of the Saliyawewa Police under section 66(1)(a) of the Primary Courts Procedure Act (Act). Information was filed on 25.11.2014. The parties were permitted to file affidavits, counter affidavits and documents. The 1st Party-Petitioner-Petitioner (Petitioner) claimed that he was in possession of the land in dispute from 17.03.2010 whereas the 2nd Party-Respondent-Respondent (Respondent) claimed that he was in possession of the land in dispute for about 20 years.

The parties admitted that the land in dispute is depicted as "G" in the sketch filed by the Police. (Journal Entry dated 25.11.2014).

One of the main arguments of the learned counsel for the Petitioner is that the land in dispute is not properly identified. He submitted that whereas the land claimed by the Petitioner is identified as Dangaha Kumbura the Respondents claimed a portion of land called Thambigewela. The learned counsel for the Petitioner relied on Punchi Nona v. Padumasena and others [1994] 2 Sri L.R. 117]. However, as pointed out earlier, parties in the Magistrates Court admitted that the land in dispute is depicted as "Gil in the sketch filed by the Police. (Journal Entry dated 25.11.2014).

Section 58 of the Evidence Ordinance reads:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

Accordingly, an admission can be made in the following ways:

The admission in the instant case as to the identity of the land in dispute was one made within (i) above. An admission of fact made by counsel is binding on the client [Coomaraswamy, The Law of Evidence, Vol. I, page 129]. It is sometimes permissible to withdraw admissions on questions of law but admissions on questions off act cannot be withdrawn [Uvais v. Punyawathie (1993) 2 Sri.L.R. 46]. However, in Sivaratnam and others v. Dissanayake and others [(2004) 1 Sri.L.R. 144 at 148] Amaratunga J. sought to explain the principle as follows:

"The decision in Uvais v Punyawathie (supra) is authority for the proposition that a fact specifically admitted at the trial and relied on by the opposite party in deciding how he should present his case cannot be withdrawn or departed from at the stage of the appeal. See also Mariammai v. Pethurupillal. Fernando, J.'s judgment in Uvais's case makes it very clear that what is not permitted is the withdrawal of an admission in circumstances where such withdrawal has the effect of subverting the fundamental principles of the Civil Procedure Code in regard to pleadings and issues. That judgment is not authority for the broader proposition that an admission once made cannot be withdrawn at all. An admission made in a written statement may be subsequently withdrawn with the permission of the Judge. Muhammad Altof All Khan v Hamid-ud-din. Section 183 proviso of the Code of Criminal Procedure Act, No. 15 of 1979 explicitly demonstrates that an admission can be withdrawn. Thus, the law's refusal to allow the withdrawal of an admission is a matter depending on the circumstances of each case."

In Ramalingam v. Thangarajah [(1982) 2 Sri.L.R. 693 at 698] Sharvananda J. (as he was then) stated as follows:

There are no exceptional circumstances, which justifies this Court exercising the extraordinary powers of revision against the order of the learned High Court Judge of Puttalam dated 12.07.2016.

Accordingly, the appeal is dismissed with costs fixed at Rs. 10,000/=.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

P. BANDUPALA BANDARA VS. N. LAKSHMAN DE SILVA

HON. ANIL GOONERATHNE, J & MALINIE GUNARATNE J.

C.A. 133/2006 (PHC)
(PHC Colombo HCRA - 638/2004)

1. Panniyage Bandupala Bandara
No. 179, Maya Mawatha,
Colombo 05.

2ND PARTY-PETITIONER-APPELLANT

2. Nallahandi Lakshman de Silva
No. 83, Jambugasmulla Road,
Nugegoda.

1ST PARTY-RESPONDENT-RESPONDENT

BEFORE: Anil Gooneratne J. &
Malinie Gunaratne J.

COUNSEL: Amila Palliyage with Wajira Ranasinghe for the Petitioner-Appellant

Gaminie Marapana P.C. with Navin Marapana For the Respondent-Respondent

ARGUED ON: 26.06.2014

DECIDED ON: 24.07.2014

GOONERATNE J.

This is an appeal from the Judgment of the learned High Court Judge of Colombo dated 16.6.2006, arising from an Revision Application filed in the High Court from the Order of learned Magistrate of Mt. Lavinia under Section 66 of the Primary Courts Procedures Act.

What I could gather from the material placed before this court is that one of the main contentions of the party of the 2nd part Petitioner-Appellant was that the learned Magistrate had failed or has not taken the step to encourage and make every effort to facilitate dispute settlement before assuming jurisdiction. It has also placed as some material before court that the Petitioner-Appellant had been running a business described as 'Udara Mangala Sevaya', according to the information provided by the police. Perusal of the docket it is also apparent that the learned High Court Judge by his Order of 20.9.2004 issued a stay order, staying the operation of the learned Magistrate's Order of 09.09.2004.

The grounds of appeal are more particularly stated in para 9 of the Petition of Appeal. We have noted the several matters urged therein.

This court having perused the order of the learned High Court Judge wish to observe that the High Court Judge has very correctly dismissed the Revision Application on very valid acceptable grounds. As stated above one of the main contention of the Petition or Appellant was that the failure of the Magistrate to encourage settlement as described above. It is apparent that the Petitioner-Appellant has provided incorrect details on this matter and had misrepresented and deliberately failed to disclose material facts to courts, and on that basis alone the Revision Application could have been rejected by the learned High Court Judge. Perusal of the material indicates that the learned Magistrate had made every possible effort to explore the possibility of settlement and the Petitioner-Appellant has deliberately not disclosed documentation in this regard. The case record submitted subsequently (pgs. 3/4 of High Court Judge's Order) produced P1 and Journal Entry of 04.6.2004 of 16.06.2006 and 28.7.20004 would provide ample proof in this connection.

On all other material point as to who was in actual possession of the premises or land in dispute on the date of issue of notice and the required 2 month period had been considered by the learned High Court Judge. In this regard the learned Magistrate had relied upon two vital documents 1P5 and 1P6. It consists of a complaint (1P6) made by an independent witness as described in the said order of the learned High Court Judge and another document marked as 1P6 where the keys to the door of the up-stair building had been in the possession of the party of the 1st part Respondent Respondent. The learned Magistrate had very carefully, considered the required possession as per the Primary Courts Procedure Act based on available material. The High Court Judge no doubt had given his mind to all aspects of possession recognized by law, supported with facts and expressed cogent reasons. This court is not inclined to disturb such findings. The law recognizes two types of possessions, i.e direct physical control at a given time which is actual possession. The other is constructive possession, to exercise dominion or control over a thing either directly or indirectly through an agent. No doubt the learned High Court Judge has approached the case having above in mind.

The learned High Court Judge in his conclusion states that the required exceptional circumstances have not been proved to maintain the Revision Application, filed in the High Court. This is an appeal from the Order of the High Court in the exercise of its revisionary jurisdiction. The grounds of appeal of the Appellant and the matters urged before this court and before the High Court/Magistrate's Court have no merit. As such we proceed to dismiss this appeal. Order of the High Court dated 16.6.2006 affirmed.

Appeal dismissed.

JUDGE OF THE COURT OF APPEAL

W.M.M. Malinie Gunaratne J.

I agree.

JUDGE OF THE COURT OF APPEAL

U. SAMAN KUMARA JAYAWARDENA VS POLWATTE GEDARA GAMINI

HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 7/2014

HC KANDY CASE NO: REV/183/2012
MC KANDY CASE NO: 47665

1. Udayasiri Saman Kumara Jayawardena,
No.19, Kitulgollawatta,
Rangoda, Welamboda.

2. Udeni Siri Kumara Jayawardena,
Diwilla, Yatawatta.

3. Uthpalawanna Chakrawarthi Jayawardena,
Diwilla, Yatawatta.

1st, 4th and 5th
Respondents Petitioners-Appellants
Vs.

1. Polwatte Gedara Gamini,
No.99, Rangoda,
Demanhandiya,

Petitioner-Respondent Respondent

2. P.G. Wijeratne,

3. T.G. Dhammika,
Both Aswadduma, Rangoda,
Welamboda.

2nd and 3th
Respondents Respondents-Respondents

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Lal Wijenayake for the Appellants.
Respondents are absent and unrepresented.

Decided on : 03.05.2019

Samayawardhena, J.

The 1st respondent filed this application in the Magistrate's Court under section 66(1)(b) of the Primary Courts' Procedure Act, No.44 of 1979 seeking an order against the 1st appellant and the 2nd and 3rd respondents not to disturb his long possession. The 2nd and 3rd appellants seem to have later intervened. After filing objections and counter objections by way of affidavits, inquiry has been concluded on written submissions. Thereafter the order has been made by the learned Magistrate granting the relief sought for by the 1st respondent. The revision application filed against the said order has been dismissed by the learned Provincial High Court Judge. It is against that order of the High Court, the appellant has filed this appeal.

The respondents did not come to contest the appeal, and the learned counsel for the appellant invited the Court to dispose of the appeal on the written submissions filed before this Court.

The land in question is about 90 perches in extent. There is no dispute that the 1st respondent's mother, Lasia, came into the ancestral house of the land very long time ago (according to the appellants as a domestic aide, which is disputed by the 1st respondent) and thereafter got married and lived there. The 1st respondent son (and another daughter who is not a party to this case) were born there. It appears that the old house has disappeared over the passage of time. The 1st respondent has also later got married and living there having constructed a house in the land. Lasia was still living with the 1st respondent son when this case was filed in the Magistrate's Court.

The 1st appellant states that he (together with the 2nd and 3rd appellants) became entitled to this land by deed marked 1,4,5V1 dated 28.11.1960, and thereafter they gifted 20 perches and 6 perches to the 1st respondent and his wife by deeds marked 1,4,5V2 and 1,4,5V3 dated 01.05.2008. They also state that by the affidavit marked 1,4,5V4 of the same date, the 1st respondent and his wife promised not to claim rights to the other portions of the land except the above-mentioned 26 perches. It is the position of the 1st respondent that he and his wife have signed those documents at the request of the appellants without understanding the contents of them.

Thereafter the appellants have sold 15 perches of this land to the 2nd and 3rd respondents by deed No.680 dated 11.04.2011.

The dispute has arisen when the 2nd and 3rd respondents have gone to clear that portion of the land in the first week of January 2012. Case has been filed on 14.02.2012.

It is abundantly clear from the documents filed including the police statements that the 1st respondent together with her mother has been in possession of the entire land from the day he was born and the appellants have had no possession of the land.

The learned counsel for the appellants has stated in the written submissions that the learned Magistrate has failed to consider "the most important documents", i.e. deeds marked 1,4,5V(2), 1,4,5V(3) and affidavit 1,4,5V(4) which go to show that the appellants have gifted to the 1st respondent and his wife on behalf of the 1st respondent's mother, Laisa, the two lots-20 perches and 6 perches in extent; and the 1st respondent and his wife have by way of an affidavit admitted without any reservation the right of the appellants to possess the rest of the land. Those are not important documents in a case of this nature where possession is the key element to be considered.

The learned counsel for the appellants has also taken up several technical objections in the written submissions.

One is that there was no imminent breach of the peace for the learned Magistrate to proceed with the application. It appears from the proceedings dated 14.02.2012 that the learned Magistrate has satisfied with the threat to the breach of the peace.

Another is that the learned Magistrate has failed to make an effort to settle the matter before the case was fixed for the inquiry as mandated by section 66(6) of the Act. By looking at the journal entry dated 31.07.2012, I am satisfied that the learned Magistrate has attempted to settle the matter.

Another is that there was no valid affidavit before the Magistrate's Court for the Court to act upon as the first information because the purported affidavit does not mention the date of attestation in the jurat. Both the learned Magistrate and the learned High Court Judge has disregarded it as a pure technical objection, which, in my view, is correct, especially, having regard to the objective to be achieved by this special piece of very important legislation, i.e., to make a provisional order to arrest breach of the peace until the dispute is resolved by a competent Court on merits.

When this matter of defective affidavit was taken up by the appellants in the Magistrate's Court in their objections, the 1st respondent in his counter objections has, in turn, shown the defects of the appellants' affidavit, and thereafter sought permission of Court either to correct the defect in open Court or to tender a fresh affidavit.

In my view, in such a situation, the Court shall allow the party to cure that defect by tendering a fresh affidavit for otherwise the whole purpose of the section 66 application would be defeated on high technical objections. There is no place for technical objections in section 66 applications. All such objections shall be viewed keeping in mind the main objective, which is, nothing but to prevent the breach of the peace. In that process, the Magistrate shall act within the frame of the law but without clinging on high-flown technical objections.

This view of mine is supported by the Judgment of the Divisional Bench of this Court in Senanayake v. Commissioner of National Housing [2005] 1 Sri LR 182. In terms of Rule 3(1)(a) read with Rule 18 of the Court of Appeal (Appellate Procedure) Rules 1990, every application made to the Court of Appeal shall be by way of petition together with an affidavit in support of the averments therein. The affidavit filed in the said case was defective because it had been attested before a Justice of Peace who did not have territorial jurisdiction to attest the said affidavit. Hence counsel for the respondent moved to dismiss the application in limine as there was no application before Court to consider on merits. The Divisional Bench of this Court was not inclined to accept that argument and allowed the petitioner to tender a fresh affidavit in identical terms instead of the defective affidavit on the ground inter alia that the Court should not non- suit a party where the lapse/defect takes place due to no fault of that party.

I see no reason to interfere with the final conclusion of both the learned Magistrate and the learned High Court Judge.

Appeal is dismissed but without costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

R.D.KUSUMAWATHY VS. S.M.ASOKA WIJETHUNGA

hon L.T.B. DEHIDENIYA, J

Court of Appeal case no. CA/PHC212/2014

H.C. Kuliyapitiya case no. 41/2013
M.C. Kuliyapitiya case no. 10022/66

1. R.D.Kusumawathy

2. M.A.M.Sugath Chaminda

3. R.D.Jayathilaka
Baragedara, Ethungahakotuwa

Party of the 2nd Part Petitioners Appellants
Vs.

1. S.M.Asoka Wijethunga
Baragedara, Ethungahakotuwa

Party of the 1st Part Respondent Respondent

4. D.D.Chandana Sisira Kumara

5. D.D.Chandrasekara

Party of the 2nd Part Petitioner Respondents

Before : H.C.J. Madawala J.
L.T.B. Dehideniya J.

Counsel : Hejaaz Histhulla with A.C.Samilah instructed by Aruna Jayathilake for the 2nd Party Respondent Petitioner.
S.C.B. Walgampaya PC with Upendra Walgampaya for the Party of the 1st Part Petitioner Respondent.

Argued on : 06.02.2017

Decided on : 01.06.2017

L.T.B. Dehideniya J.

This is an appeal from the High Court of Kurunegala.

The facts are briefly as follows. The Party of the First Part Respondents (hereinafter sometimes called and referred to as the Respondents) filed information in the Magistrate Court of Kuliyapitiya under section 66(1) (b) of the Primary Court Procedure Act, informing that there is a land dispute threatening the breach of the peace. The Respondents stated that the land in dispute was originally belonged to the third person of the Party of the Second Part Petitioner Appellants, Jayathilake, who was a deaf and dumb person. While he was living with the 1st person of the Party of the First Part Petitioner Appellant Kusumawathi, she has got two fraudulent deeds executed to transfer the land to her. Thereafter he was ill treated by the said Kusumawathi and Jayathilake had to come and live with the Respondents. Thereafter, partition action No. 10607/P was instituted in the District Court of Kuliyapitiya and the Court has declared the said two transfer deeds are null and void. After the said judgment of the District Court in the said partition action, the land was transferred to Respondents by the deed No. 10317. The Respondents state that they have possessed the land until they were disposed by the Party of the Second Part Petitioner Appellants (hereinafter sometimes called and referred to as the Appellants) in the early hours of 02.06.2012.

The Appellants stated that the land was in the possession of the said Jayathilake. He was living with the Respondents but he had to come to the Appellants due to the ill treatment of the Respondents and they have repaired the boutique room in the land and allowed the said Jayathilake to live there.

Both parties have tendered documents in support of their cases. After inquiry the learned Magistrate determined that the land was in the possession of the Respondents and they were disposed within two months prior to the filing of the information and ordered to place them in possession.

Being aggrieved by the order of the learned Magistrate, the Appellants moved in revision in the Provincial High Court of Kurunegala without success. This appeal is from the said order.

The learned High Court Judge in the revision application has correctly held that it being a revision application, the Court has to consider whether the learned Judge of the Primary Court (the Magistrate) has followed the correct legal procedure, allowed all parties to present their cases, considered all the evidence and followed the rules of natural justice in coming to determination. He considered the order of the learned Magistrate and has come to the conclusion that the determination was made after considering the material available.

The revision is a discretionary remedy. It can be invoked where there is a miscarriage of justice; it cannot be invoked to correct the errors of the judgment.

Vanik Incorporation Ltd. V Jayasekara [1997] 2 Sri L R 365

(1) Revisionary powers should be exercised where a miscarriage of justice has occurred due to a fundamental rule of procedure being violated, but only when a strong case is made out amounting to a positive miscarriage of justice.

Attorney-General, V Podisingho 51 NLR 385

In my view such exceptional circumstances would be (a) where there has been a miscarriage of justice, (b) where a strong case for the interference of this Court has been made out by the petitioner, or (c) where the applicant was unaware of the order made by the Court of trial. These grounds are, of course, not intended to be exhaustive.

The learned High Court Judge has correctly considered the order of the learned Magistrate. The Magistrate has believed the Respondent's version of the dispute on good reasons. The trial judge has the authority to believe or disbelieve a witness on good reasons. He has considered the statements made to the police at the very first instance and the other available materials and has come to the finding that the Respondents were in possession and were dispossessed two months immediately preceding to the filing of the information. Findings based on evidence should not be disturbed in a revision application unless a miscarriage of justice has taken place due to the judge's wrongful appreciation the facts. In the instant case I do not see any wrongful appreciation of facts.

I do not see any reason to interfere with the findings of the learned High Court Judge.

Accordingly the appeal is dismissed subject to costs fixed at Rs.10,000.00

(This judgment should apply to the case no. CA/PHC/APN/147/2015 with necessary alterations in the caption.)

Judge of the Court of Appeal

H.C.J. Madawala J.

I agree.

Judge of the Court of Appeal

ABDUL LATHIF MOHAMED ALI VS. O. I. C, MANNAR police

HON. P. R. WALGAMA, J

C.A. Application
No.CA(PHC) 116/2010
Revision Application No. HCV/REV/207/10 (High Court Vavuniya)
Primary Court Mannar No. 4073

O. I. C.
Mannar Police Station,
Mannar.

Complainant

Vs

1. Abdul Careem Shabdeen
Tharapuram, Mannar.

Party of the first part

1. Murugesu Kathiragamanathan
Grand Bazar, Mannar.

2. Kappalar Pitchai Maharoof
Puthukudieruppu,
Mannar.

Parties of the Second part

1.Abdul Lathif Mohamed Ali

2.Abdul Lathif Abdul Jabaruth

3. Sulaiman Assan Naina

4.Sulaiman Ilmudeen

5. Sulaiman Abdul Ameer

6.Sulaiman Ussar

7. Abdul Lathif Mohamed Niyas

8. Abdul Lathif Abdul Jaleel

9. Abdul Lathif Mohamed Nihar

10.Abdul Lathif Abdul Azeez

All of Tharapuram, Mannar

Other Intervenient Petitioners

IN THE HIGH COURT OF VAVUNIYA

1. Abdul Lathif Mohamed Ali

2. Abdul Lathif Abdul Jabaruth

3. Sulaiman Assan Naina

4. Sulaiman Ilmudeen

5. Sulaiman Abdul Ameer

6. Sulaiman Ussar

7. Abdul Lathif Mohamed Niyas

8. Abdul Lathif Abdul Jaleel

9. Abdul Lathif Mohamed Nihar

10.Abdul Lathif Abdul Azeez

All of Tharapuram, Mannar

Intervenient Petitioners Petitioners

Vs.

O. I. C. Mannar Police Station,
Mannar.

Complainant - Respondent

1. Abdul Careem Shabdeen
Tharapuram, Mannar.

Party of the first part Respondent

2. Murugesu Kathiragamanathan
Grand Bazar, Mannar.

3. Kappalar Pitchai Maharoof
Puthukudieruppu, Mannar.

Parties of the second part Respondents

4. Katta Marikkar Jawmideen

And others All of Tharapuram,
Mannar.

Others Intervenient
Petitioners - Respondents

NOW AND BETWEEN

1. Abdul Lathif Mohamed Ali

2. Abdul Lathif Abdul Jabaruth

3. Sulaiman Assan Naina

4. Sulaiman Ilmudeen

5. Sulaiman Abdul Ameer

6. Sulaiman Ussar

7. Abdul Lathif Mohamed Niyas

8. Abdul Lathif Abdul Jaleel

9. Abdul Lathif Mohamed Nihar

10. Abdul Lathif Abdul Azeez

All of Tharapuram, Mannar.

Intervenient Petitioners
Petitioners - Appellants

Vs

O.I.C. Mannar Police Station,
Mannar.

Complainant - Respondent Respondent

1. Abdul Careem Shabdeen
Tharapuram, Mannar.

Party of the first part Respondent - Respondent
(deceased)

Abdul Kareem Inudeen
Kosuwadi, Tharapuram, Mannar,
presently at No. 1157,

Gunananda Mawatha,
Hunupitiya, Wattala.

Substituted Party of the first part Respondent -Respondent

2. Murugesu Kathiragamanathan
Grand Bazar, Mannar.

3. Kappalar Pitchai Maharoof
Puthukudieruppu, Mannar.

Parties of the second part Respondent - Respondent

4. Kata Marikkar Jawmideen

And others All of Tharapuram,
Mannar.

Other Intervenient Petitioners respondents - Respondents

Before : P.R. Walgama, J
: L.T.B. Dehideniya, J

Council : Sabry Nikamdeen for the Appellant.
: K.S. Ratnavale with S.M.M. Samsudeen for the 2nd Respondent.

Argued on : 30.03.2016

Decided on : 07.10.2016

P. R. Walgama, J

The instant appeal assails the orders of the Learned High Court Judge dated 29.11.2010 and Learned Magistrate dated 26.04.2010.

As stated in the petition of Appeal following are the facts in brief;

The above impugned orders were in respect of application made and information filed by the OIC in the Police Station of Mannar In the Magistrate Court of Manner, In terms of Section 66(1) of the Primary Court Procedure Act No. 44 of 1979, regarding a land dispute which will climate to a breach of the peace.

Consequently to the filing of the said report the Learned Magistrate issued notices on all parties, and after affixing the said notices the intervenient Petitioners -Appellants, also filed the affidavits and contended thus;

That the subject way of paternal land belongs to the Appellants by inheritance of their late father and who inherited from their deceased father Assan Naina Yoosuf, by virtue of Deed No. 534 dated 21.12.1928 attested by Mohideen Pitche Marikkar, Notary Public.

It is the stance of the 2nd party Respondent that he purchased the land In dispute from one Azeena, widow of Abdul Cassim Marikkar by virtue of Deed No. 7291 dated 02.05.2009 attested by M.B. Farook Notary Public.

After the inquiry the Learned Magistrate has by his order dated 26.04.2010 had placed the 2nd Respondent in possession.

Being aggrieved by the said order the Intervenient Respondents- Appellants made a revision application to the High Court of Manner to have the said order vacated or revised.

The Learned High Court Judge by his order dated 29. 11.2010 had dismissed the said Revision application of the Petitioner-Appellants.

Being dissatisfied with the said order of the Learned High Court Judge the Petitioner- Appellants had lodged the instant appeal in this Court and impugned the said order inter alia on the permis as stated below;

That the Learned High Court Judge has failed to consider the preliminary objection raised by the Appellant as to the legality of the affidavit tendered by the 2nd party Respondent as the same is not in conformity with the Section 168 of the Civil Procedure Code, and as such moved the said affidavit to be rejected in limine.

It is further alleged by the Appellants that the day on which was fixed for order as to the restoration of the stay order the Learned High Judge has dismissed the revision application of the Petitioner Appellants.

It is seen from the information filed by the officer In charge of the Manner police station In terms of Section 66(1) of the Primary Court Procedure Act, the relevant parties position has been that they have title to the disputed land. Therefore it is contended by the Petitioner- Appellants that the Learned Magistrate should have resolve the dispute under Section 69 (1) of the said Act as to the parties title to the land and not on the basis who was In possession of the land two months prior to the filing of the information report in court.

It is salient to note that the Learned Magistrate has at the request of the parties inspected the disputed land. At the said inspection the Learned Magistrate has observed the fact that the party Respondent has cleared a larger extent of land and the boundary stones had been fixed along the boundary of the disputed land without any objection either from the 1st 2nd Party- Respondent and the Petitioner Appellants. Hence the Learned Magistrate has formed the opinion that 2nd Respondent had exercised his title to the land and cleared a large portion of the

land after purchasing the same as stated above. And was of the view that the 2nd Party Respondent has acted In such manner to asserts his title and the Learned Magistrate was of the view that in order to preserve peace that the status quo should be in tact and made order that the parties could vindicate their title by instituting an action in the District Court accordingly.

In the Revision application filed by the Petitioner Appellants in the Provincial High Court holden in Manner, the Learned High Court Judge had made the following observation in the said order, viz a viz.

That as per judgment of Sharavananda J. In KANAGASABAI .VS. MAILVAGANAM- 78 NLR- 280. It is trite that the purpose of the order made in terms of Section 62 of the Administration of Justice Law relating to the land dispute is to avoid the breach of the peace, and as the order made under the above section is a tentative, and that the parties could resolve the matter finally in the District Court accordingly.

The Learned High Court in adverting to the case of RAMALINGAM .VS. THANGARAJAH 1982 2 SLR-693 has stated what emerged from the said case thus;

"the scheme embodied In this part is geared to achieve the object of the prevention of a breach of the peace."

Therefore it is abundantly clear that the Learned Magistrate has made the said impugned order in the correct perspective in order to prevent the breach of the peace, and had not decided the rights and the title of the parties to the action,

Further the Learned High Court Judge has also commented that the Petitioners had instituted action in the District Court to vindicate their title, and had filed the instant revision application In the Provincial High Court in order to delay the process of justice.

In the above setting the Learned High Court Judge has affirmed the order of the Learned Magistrate and dismissed the application In revision.

Being aggrieved by the said order of the Learned High Court Judge the Petitioner-Appellants had filed the instant appeal to this Court to have the said order set aside or vacate.

In pursuant to the arguments made by the Counsel of both parties the Court allowed them to file written submissions.

The Counsel for the Respondent raised two preliminary objections as to the maintainability of the appeal on the grounds as stated below;

That the failure on the part of the Appellants to Join the necessary parties to the action,

As the parties had instituted action in the District Court to proceed with the instant appeal will be purely academic.

It is intensely relevant to note that most of the parties intervened in the case filed in the Magistrate Court under the Primary Court Act have not been made parties to this appeal, and therefore it said that the said failure is fatal and the appeal should fail. To buttress the said proposition the counsel for the Respondent has adverted court to many legal pronouncements In the cases L. R. GUNASEKARA .VS. R. A. S. PERERA- 74. NLR.. 163, which has observed thus;

"Failure of the Appellant, in an appeal filed by him to Join as a Respondent a party who will be adversely affected if the appeal were to succeed renders the appeal to be rejected if objection is taken by a party respondent".

Therefore it is abundantly clear that the appeal cannot proceed without necessary parties are not being brought before court.The above principle has been observed In the case of NADARAJAH .VS. IBRAHIM- BSLA Law Journal Report (1990).

Thus moves to recognised the effect of the failure to join necessary parties in the appeal.

It is also brought to the notice of Court that the land claimed by the 2nd Respondent, by virtue of deed marked 2R1 is a land containing 1n extent 20 acres and the land claimed by the Appellants is a land with 30 acres.

Therefore it is appropriate to resolve the dispute in the District Court, which is the competent court for the ultimate determination of the rights of the parties.

For the reasons expiated above the grounds of appeal raised by the Petitioner- Appellants are devoid of merits, and should stand rejected.

Accordingly we have dismissed the appeal, without costs.

JUDGE OF THE COURT OF APPEAL

L.T.B. Dehideniya, J

I agree.

JUDGE OF THE COURT OF APPEAL

M.A.AHAMED MOHIDEEN VS. R.D.SUDATH ROHITHA VISHWAKULA

HON JANAK DE SILVA, J.

Case No.CA (PHC) 166/2012
H.C. Avissawella Case No. HCA 17/2012 (Rev)
M.C.Avissawella Case No.47993/12

Mohemed Abdulla Ahamed Mohideen
124, High Level Road,
Pahathagama,Hanwella.
1st Party Respondent-Petitioner-Appellant

Vs.

Ranminipura Dewage Sudath Rohitha
Vishwakula
D 42/1, Kumburadeniya, Danowita.

2nd Party Respondent-RespondentRespondent

Hettiarachchige Shirley Perera
105, Barnes Place, Colombo 07
Intervenient-Respondent-RespondentRespondent

The Han. Attorney General,
Attorney General's Department,
Colombo 12.

Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Written Submissions tendered on: 1st Party Respondent-Petitioner-Appellant on 12.06.2017, 16.03.2018 and 02.11.2018
2nd Party Respondent-Respondent-Respondent and Intervenient-Respondent-Respondent-Respondent on 27.06.2017, 01.11.2018

Argued on: 22.02.2018

Decided on: 11.01.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court judge of the Western Province holden in Avissawella dated 12.12.2012.

(a) the caption of the revision petition failed to explicitly disclose the legal provision under which the revision petition was being presented to the High Court

(b) the body of petition did not specify the exceptional circumstances which necessitated the High Court to exercise its revisionary jurisdiction

Defective Caption

There is no dispute that in terms of Article 154P (3)(b) of the Constitution a High Court of a Province has revisionary jurisdiction in respect of orders entered by Primary Courts within the Province. In Vanik Incorporation Ltd. vs. L.D. Silva and others [(2001) 1 Sri L.R. 110] S.N. Silva C.J. held that the appeal to the Supreme Court, though erroneously made under section 5(2) of the High Court of the Provinces (Special Provisions) Act. No. 10 of 1996. is referable to section 37 of the Arbitration. Act. No. 11 of 1995 in terms of which an appeal lies to the Supreme Court on a question of law, with leave and hence the mistaken reference in the caption shall not result in the rejection of the appeal. Accordingly, I hold that the learned High Court Judge erred in holding that the application should be dismissed as the Appellant had failed to specify the relevant statutory provision under which the revision application was made.

Exceptional Circumstances

The other ground on which the learned High Court Judge refused notice was that the Appellant had failed to establish exceptional circumstances warranting the exercise of revisionary powers.

Section 74(2) of the Primary Courts Procedure Act prohibits an appeal against any determination or order made under Part VII of the said Act. Accordingly, the Appellant could not have appealed to the High Court.

However, in Dharmaratne and another v. Palm Paradise Cabanas Ltd. and others [(2003) 3 Sri L.R. 24 at 30] Amaratunga J. held:

Accordingly, the learned High Court Judge was correct in requiring exceptional circumstances in deciding whether to exercise revisionary powers.

Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

N. K. M. P. KONEGEDARAWATTA VS R. N.ANAYAKKARA

HON MAHINDA SAMAYAWARDHENA, J.

CA Case No: CA (PHC) 34/2007

Southern (PHC) Galle Case No: HC/Rev/423/2004
Galle MC Case No. 76767

1. Nanayakkara Keppetiduwage Maya
Priyanthi Konegedarawatta,
Andugoda, Dikkumbura.

2. K.G. Sumanawathie Konegedarawatta,
Andugoda, Dikkumbura.

1st and 3rd
Respondent-Appellants

Vs.

1. Ranjith Nanayakkara,
Uswatta,Andugoda,
Dikkumbura.

2^nd Respondent-Respondent

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Manohara de Silva, P.C., for the Appellants.
S.A.D.S. Suraweera for the Respondents. (No written submissions have been filed by either party)

Decided on : 30.07.2019

Mahinda Samayawardhena, J.

The appellants filed this appeal against the Judgment of the High Court whereby the order of the Magistrate's Court was set aside on the sole basis that the Magistrate's Court can exercise jurisdiction in a section 66 application provided the first information under section 66(1) of the Primary Courts' Procedure Act, No.44 of 1979, is filed in Court within two months from the date of the dispute. In the instant case, according to the High Court Judge, as the first information has not been filed within two months from the date of the dispute, the Magistrate's Court did not have jurisdiction to entertain the application. This is completely a misdirection in law on the part of the High Court Judge.

The High Court correctly held that the dispute relates to a right of way and therefore the matter has to be decided in terms of section 69 of the Primary Courts' Procedure Act.

The identification of the difference between section 68 and 69 is important. Section 68 applies when the dispute is in regard to possession of a land. Section 69 applies when the dispute is in regard to an entitlement of any other right, such as, right to cultivate, right to a servitude etc.

The two-month period is applicable when the dispute is in relation to possession of a land. Under section 68(1), the Court shall confirm the possession of the party who was in possession of the land on the date of the filing of the first information in Court. That is the general rule. This is subject to an exception as provided for in section 68(3). That is, if the opposite party can prove that he was forcibly dispossessed by his opponent who is now in possession of the land within two months immediately before the filing of the first information, he shall be restored in possession. This two-month time limit has nothing to do with other rights contemplated in section 69 of the Primary Courts' Procedure Act.

It is relevant to note that the order under section 68 regarding possession can be made without reference to the merits of the claims of the parties. Conversely, when the order is under section 69, it shall be made upon consideration of the merits of the rival claims. However I must emphatically emphasize that this shall not be taken to mean that when the dispute is regarding a right other than possession, the Magistrate shall convert the inquiry into a full-scale District Court civil trial. The orders which are made both under section 68 and 69 are provisional until the matter is determined by a competent civil Court.

In the Supreme Court case of Loku Banda v. Ukku Banda1, decided under the Administration of Justice Law, No. 44 of 1973, where similar but not identical provisions are found2, Soza J., explained the law in this regard in the following terms.

______________
¹ [1982] 2 Sri LR 704 at 707-708
² Vide sections 62-66

When the dispute relates to possession the Magistrate must determine who was in possession on the date when he issued notice on his having reason to believe that there was in existence a dispute affecting land and likely to cause a breach of the peace or within two months prior to the issue of such notice where a forcible dispossession has occurred. The order which the Magistrate then makes will declare which of the disputants is entitled to possession and prohibit all disturbance to his possession until he is evicted under the judgment, order or decree of a competent court. Where there has been forcible dispossession within the period of two months prior to the date of the issue of notice the Magistrate may in addition to such declaration and prohibition, direct that the party specified in his order be restored to possession. When the dispute relates to possession, the Magistrate may make his determination without reference to the merits of the rival claims of the parties - see the proviso to subsection 7 of section 63 [of the Administration of Justice Law].

I set aside the Judgment of the High Court and restore the order of the Magistrate's Court.

Appeal is allowed. No costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

N. W. KARUNARATHNE VS. HEMASIRI JAYAWARDHANE

HON. P. PADMAN SURASENA, J

C A (PHC) / 49 / 2006

Provincial High Court of Southern Province (Galle) Case No. HC (Rev) 372 / 2004
Magistrate's Court Udugama Case No. 94879

In the matter of an Appeal against an order of the Provincial High Court in the exercise of its revisionary jurisdiction.

Nishshanka Wickramanayake,
Karunarathne,
Ampagodawatta,
Hiniduma.

COMPLAINANT - RESPONDENT - APPELLANT
Vs

Hemasiri Jayawardhane,
No. 360,
Kanaththegoda,
Yatalamatta.

RESPONDENT - PETITIONER -RESPONDENT

Before : K K Wickremasinghe J
P. Padman Surasena J

Decided on : 2017-10-04

JUDGMENT

P Padman Surasena J

Learned counsel for both Parties, when this case came up before us on 2017-07-11, agreed to have this case disposed of, by way of written submissions, dispensing with their necessity of making oral submissions.

They agreed that this Court could pronounce the judgment after considering the written submissions they had already filed. Therefore, this judgment would be based on the material adduced by parties in their pleadings and the contents of their written submissions.

The Complainant - Respondent - Appellant (hereinafter sometimes referred to as the Appellant) had instituted this case against the Respondent - Petitioner - Respondent (hereinafter sometimes referred to as the Respondent) in the Magistrate's Court of Udugama under section 66 (1) (b) of the Primary Courts Procedure Act, as a private information. The Appellant had sought an order declaring that he be entitled to have the possession of the impugned land.

Learned Magistrate having inquired into this complaint, pronounced his order dated 2004-01-29, holding that the Appellant is entitled to have the possession of the land, which is the subject matter of the dispute.

Being aggrieved by the said order of the learned Magistrate, the Respondent had filed an application for revision in the Provincial High Court of Southern Province holden in Galle seeking a revision of the order made by the learned Magistrate.

The Provincial High Court after hearing parties, revised the said order made by the learned Magistrate on the basis that existence of a breach of peace had not been established before the learned Magistrate could proceed to inquire in to the said case.

It is against that judgment that the Appellant has appealed to this Court.

It would be helpful, at the outset, to refer to the case of Kanagasabai V Mylvaganam.¹ It is a case under section 62 of the Administration of justice law, which had conferred special jurisdiction on the Magistrate to make orders to prevent a dispute affecting lands causing a breach of peace. It has been held in that case that the said section requires the Magistrate to be first satisfied before initiating the proceedings, that a dispute affecting lands exists and that such a dispute is likely to cause a breach of peace.

In this regard the following passage from a judgment of this Court in the case of Punchi Nona V Padumasena and others ² would also be relevant. It is as follows;

"... 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

_____________
¹ 78 NLR 280
² 1994 (2) Sri. L R 117.

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 .... "

The Appellant has made his first statement to police on 2003-01-25. He had stated that the Respondent along with few others were preparing the land to put up a house in the impugned land. He had however not complained any breach of peace in that statement. The Appellant had thereafter (on 2003-01-27), had made yet another statement to Police. He had stated in that statement that two unidentified persons threatened him to withdraw the complaint he had earlier made. However he had categorically stated that he does not wish the Police to proceed to Inquire into his complaint.

In the light of the material including the above facts, adduced before Court, this Court is unable to find any basis to interfere with the conclusions arrived at by the learned Provincial High Court Judge that breach of peace has not been established.

In these circumstances, this Court decides to dismiss this application without costs.

JUDGE OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

VITHILINGAM RAJA RAJESWARI VS K. SOUNDARAJAN

HON. H.C.J. MADAWALA, J

CA(PHC)APN 23/16
Primary Court Case No.
Gampola(Helboda) 24799
HC Kandy case No-HC RA 49/2010

In the matter of an application for Revision in terms of Article 138 and 154 (P) of the Constitution of the Democratic Socialist Republic of Sri Lanka read with Provisions of the High Court of the Province (Special Provisions) Act No. 19 of 1990.

Officer in Charge,
Police Station,
Kothmale.

Complainant

01. K. Soundarajan,No.263,
Sea Street, Colombo 11.

02. W. Dayalan

03. S. Pushparasa (S. Pushparaja)

04.A.L. Gurusinghe

05. R. Wimaladasa

06. S. Wickramasinghe

07. M.Mussammil

08. Ramboda Tea Estate (Pvt) Ltd.
No.164/04/01,
Sri Rathnajothy Sarawanamuttu
Mawatha, Colombo 13.

Respondents

And

K. Soundarajan,
No.263, Sea Street,
Colombo 11.

The 1st Party Respondent
Petitioner

Vs.

02. W. Dayalan A.K.A. Prabhu
Dayalan
Wellasamy Dayalan Vaithilingam
Vellasamy, No.28 A, 5th
Lane, Colombo 03.
And also Ramboda Estate,
Ramboda.

The 2nd
Party Respondent Respondent (Deceased)

Vithilingam Raja Rajeswari
No. 28A, 5th
Lane, Colombo 03

And also

Karunathanpathy
Manmanoor (post)
Sivatamagai,
Taluk:
P.M. District,
India.

Substituted 2A Party
Respondent-Respondent

02. Sathasivam Pushparajah

No. 164/04/01,
Sri Rathanajothy Sarawanamuttu
Mawatha, Colombo 13.

And also at No.
15, Rajasinghe Mawatha,
Wellawatte, Colombo 6.

03. A.Lalith. Gurusinghe lewke
No.78 B,
Sir William Gopallawa
Mawatha, Kandy.

04. Basnayake Rankothge
Wimaladasa,
"Thuruliya",
Nuwara Eliya Road,
Ramboda.

The 5th Party Respondent
Respondent

05. Mudalige Shamalie
Wickramasinghe,
Kudaoya, Labukele

And also at Ramboda Estate,
Ramboda.

The 6th Party Respondent-Respondent

06. M.Mussammil,
"Greenfield Division"
Ramboda Estae,
Ramboda.

The 7th Party Respondent-Respondent

07.Ramboda Tea Estate (pvt) Ltd.
Appearing through S. Pushparajah,

No. 164/04/01,
Sri Rathnajothy Sarawanamuttu
Mawatha, Colombo 13.

The 8th Party Respondent
Respondent

08. Officer in Charge,
Police Station,
Kothmale.

The Complainant-Respondent

09. Hon. Attorney General
Attorney General's Department
Colombo 12.

9th Respondent

And Now between

01. Vithilingam Raja Rajeswari
No. 28A, 5th Lane, Colombo 03.

And also

Karunathanpathy
Manmanoor (post)
Sivatamagai, Taluk
P.M. District,
India.

02. M.Mussammil,
"Greenfield Division"
Ramboda Estate,
Ramboda.

Substituted 2A Party Respondent
Respondent-Petitioner and the
7th Party Respondent-Respondent
Petitioner

Vs.

01. K. Soundarajan,
No. 263, Sea Street,
Colombo 11.

The 1st Party Respondent
Petitioner-Respondent

02. Sathasivam Pushparajah
No.164/04/01,
Sri Rathanajothy Sarawanamuttu
Mawatha, Colombo13.

And also at
No. 15, Rajasinghe Mawatha,
Wellawatte, Colombo 6.

The 3rd Party Respondent
Respondent-Respondent

03. A.Lalith. Gurusinghe lewke
No.78 B, Sir William Gopallawa
Mawatha, Kandy.

Also at Ramboda Estate, Ramboda.

The 4th Party Respondent
Respondent-Respondent

04. Basnayake Rankothge
Wimaladasa,

"Thuruliya", Nuwara Eliya Road,
Ramboda.

The 5th Party Respondent
Respondent-Respondent

05. Mudalige Shamalie
Wickramasinghe,
Kudaoya, Labukele

And also at Ramboda Estate,
Ramboda.

The 6th Party Respondent
Respondent-Respondent

06. Ramboda Tea Estate (Pvt) Ltd.
Appearing through S.
Pushparajah,
No.164/04/01,
Sri Rathnajothy Sarawanamuttu
Mawatha, Colombo 13.

The 8th Party Respondent
Respondent-Respondent

07. The Officer in Charge
Sri Lanka Police,
Kothmale.

The Complainant-Respondent
Respondent

Before : H.C.J. Madawala, J & L. T.B. Dehideniya, J

Counsel : M. U. M. Ali Sabri PC with Shamitha Fernando for the 8th Respondent-Respondent -Petitioner
S.B.Dissanayake for the 7th Respondent-Respondent Respondent
Faiz Musthapha PC with S. Amarasekara for the 1st Respondent Petitioner-Respondent

Argued On : 10 /01 /2017

Written Submissions on : 21 /02 /2017

Decided On : 02 /06 /2017

Order

H. C. J. Madawala , J

This Revision Application dated 26th February 2016 has been filed by the Substituted 2A Party Respondent-Respondent-Petitioner and 7th Party Respondent-Respondent-Petitioner to set aside the order of the Provincial High Court of Central Province holden in Kandy delivered on 03/02/2016 and uphold the order dated 03/02/2010 made by the Learned Magistrate of Gampola (Helboda) in case No. 24799 on 03/02/2010 and/or to dismiss the said action No. 24799.

The position of the Substituted 2A Respondent-Respondent-Petitioner and - Respondent-Respondent-Petitioners were that the Officer in Charge of the Police Station of Kothmale, the Complainant-Respondent-Respondent above

named filed information under section 66(1) of the Primary Court Procedure Act on 19/11/2008 in the Primary Court of Gampola (Helboda) in case No. 24799 citing the 1st Party Respondent-Petitioner-Respondent, the deceased 2nd Party Respondent-Respondent in whose place the Substituted 2A Party Respondent-Respondent-Petitioner was Substituted and the 3rd Party Respondent-Respondent-Respondent.

It was submitted that the 4th, 5th, 6th, 7th and 8th Respondents intervened in this case and that except the 1st Party Respondent-PetitionerRespondent the aforesaid parties were in possession of separate lots of the estate called "Ramboda Estate" which is in extent about 837 acres for many years as owners thereof. The 1st Party Respondent-Petitioner-Respondent claimed title to the said estate and! or part thereof. Thereafter all parties filed their respective counter affidavits and documents and their respective written submissions. The Learned Magistrate of Helboda having considered same delivered his order on 03/02/2010 holding that the following parties are entitle to possession of the following extents of the said estate. Namely,

a. The 1st Party Respondent-Petitioner-Respondent to an extent of 52 acres which possession had been handed over to him in the Gampola Court in case No. 24871L.

b. 4th Party Respondent-Respondent-Respondent to an extant of 15 acres.

c. 5th Party Respondent-Respondent-Respondent to an extent of 25 acres

d. 6th Party Respondent-Respondent-Respondent to an extent of 58 acres and 9 perches

e. 7th Party Respondent-Respondent-Petitioner to an extent of 65 acres

f. 2nd Party Respondent balance portion of the entire land.

Thereafter lapse of 8 months or so the 1st Party Respondent-Petitioner Respondent sought to revise the said order by petition dated 30/8/2010 producing numerous documents, which were not a part of the Primary Court proceedings. The Respondents filed their objections praying that the said application be dismissed for the reasons set out therein. The 1st Party Respondent-Petitioner-Respondent filed his counter objections and all parties filed their respective written submissions.

The Learned Judge of the High Court delivered in his order on 03/02/2016 allowing the said revision application and has granted possession of the entire estate to the 1st Party Respondent-Petitioner-Respondent contrary to the facts established by evidence.

The Petitioners pleaded that the order of the Learned High Court Judge is wrong in law and should be set aside inter-alia for the following reasons

a. The Learned High Court Judge's order is against the law, and the weight of evidence,

b. The Learned High Court Judge has failed to consider the preliminary objections raised by the Appellant in his objection specially in respect of violation of Rule 3(1) (b) of the Supreme Court Rules,

c. The Learned High Court Judge has erred and misconceived the law applicable to section 66 under the Primary Court Procedure Act namely to the concept of possession,

d. The Learned High Court Judge has not considered at all, the objections, documents and the written submissions tendered by these Petitioners specially with regard to the civil cases pending in the District Court of Gampola and has stated that those cases are finally adjudicated,

e. The Learned High Court Judge has totally failed to consider the long and continued possession throughout by these Petitioners and the other Respondent's in delivering the said judgment,

f. The Learned High Court Judge has not given reasons for the decision specially on what ground that the 1st Respondents Petitioner-Respondent had been awarded possession of the entirety of the estate whereas 2nd to 8th Respondents documents per se proves possession of their portions of the corpus,

g. The Learned High Court Judge has not given reasons to set aside the order of the Learned Primary Court Judge and on what grounds that it should be set aside it is not clear,

h. The Learned Judge of the High Court has failed to consider and/or ascertain the portion, if any from which the 1st Party Respondent- Petitioner-Respondent claims to and/ or have in fact been dispossessed from in delivering the said judgment.

i. The Learned High Court Judge has made the said order under the erroneous belief that decisions made by the District Court has a bearing on the Primary Court Proceedings.

j. It is respectfully submitted that the said order is contrary to the Provisions of the Primary Court Procedure Act as the 1st Party- Respondent-Petitioner-Respondent was never in possession of the entirety of the said estate,

k. The Learned High Court Judge seriously misdirected herself when she took into consideration certain documents pertaining to civil cases and even found fault with the Learned Primary Court Judge for not considering them when they were totally irrelevant for the purpose of the determining the right of possession in terms of section 68 of the Primary Court Procedure Act.

l. It is respectfully submitted that the said judgment of the Learned High Court Judge is erroneous and! or is perverse and therefore is liable to be set aside.

These Petitioners further stated that they have appealed against the order of the High Court exercising their right of appeal in terms of Article 154 P (6) of the Constitution of the Republic of Sri Lanka.

The 1st Party Respondent-Petitioner-Respondent has by way of motion filed in the Magistrates Court of Gampola and Nawalapitiya moved for the issuance of writ of execution of the said order of the said High Court despite the appeal made by the those Petitioners as well as by the other Respondents to the revision application.

The Petitioners further pleaded that the said order of the Learned High Court Judge allowing the said revision application and setting aside order made by the Learned Magistrate and directing the Registrar in the court is wrong in law and will result in a grave miscarriage of justice to these Petitioners.

It was contended that the circumstances set out above constitute exceptional circumstances to invoke the revisionary jurisdiction of this court and that the said order would be executed pending the appeal lodged by these Petitioners in the exercise of their right of appeal provided for by article 154P (6) of the Constitution of the Republic of Sri Lanka. The Petitioners had pleaded for interim order staying all execution of the said order of the High Court and the Magistrate Court pending the hearing and determination of this application and / or the appeal made by the Petitioners, grave and irreparable loss and damage would be caused to the Petitioners and! or miscarriage of justice would be caused to them and! or their right of appeal would be rendered nugatory.

The Petitioners tendered a true copy of the statement of objections filed on behalf of the 7th Party Respondent-Respondent-Petitioner and the Substituted 2A and 7th Respondent-Respondent-Petitioners prayed for the relief in their petition. The 1st Party Respondent-Petitioner-Respondent took up the following preliminary objections and moved that the Petitioners application should be dismissed in limine for the following reasons,

a. The Petitioners do not have the locus standi to have and maintain this application;

b. The Petitioners have suppressed from, and/ or misrepresented to the court, material facts which were within their knowledge; and

c. The Petitioners have failed to give notice of this application to the 1st Party Respondent in terms of Rule 2 (1) and 2(2) of the Court of Appeal (Appellate Procedure) Rules of 1990.

The objections of the 6th Party Respondent-Respondent-Respondent was that the order of the Learned High Court Judge should be set aside the inter alia for the following reasons,

a. The Learned Judge of the High Court has erred in holding that the Civil cases pending in the District Court of Gampola has been finally adjudicated and has wrongly concluded that in the said cases the entirety of the estate has been handed over to the 1st Party Respondent-Petitioner-Respondent (hereinafter referred to as the 1st Party Respondent)

b. The Learned Judge of the High Court has erred in law in failing to consider the affidavit tendered to the Primary Court by the 2nd Party 1st Respondent admitting the possession of the Respondent in respect of the subject property.

c. The Learned Judge of the High Court has misdirected herself in law in failing to consider the documentary evidence in support of the Respondent's possession of the subject property.

d. The Learned Judge of the High Court has erred in law in taking into consideration fresh material which were not available before the Magistrate's Court, in making the said order.

e. The Learned Judge of the High Court has erred in law and fact in concluding that exceptional circumstances existed in the matter warranting the exercise of the revisionary jurisdiction of the court.

f. The Learned Judge of the High Court has erred in law and fact in failing to take the delay and laches on the part of the Petitioner in her court in the exercise of the revisionary jurisdiction of the court.

The Respondent whilst admitting the averments contained in paragraph 15 of the petition, the Respondent further states that -

a. The order by the Learned Judge of the High Court dated 03/02/2016 merely allows the revision application of the Petitioners and set aside the order of the Learned Magistrate of the Primary Court of Helboda.

b. In effect the order of the Learned Judge of the High Court only set aside the scheme of allocating the estate amongst the 1st Party Respondent, 4th Party Respondent, 5th Party Respondent, 6th Party Respondent, 7th Party Respondent and 2nd Party Respondent made by the Learned Magistrate of the Primary Court of Helboda, without any reference to the possession of the property.

On considering the objections taken up by the parties one of the main objections was that the Petitioner has no locus standi to institute and maintain this application and that the Petitioner has suppressed and / or misrepresented material facts which were within his knowledge.

On a perusal of the record we find that the 2nd Party Respondent- Respondent Dayalan who was a director of Ramboda Tea Estate (Pvt) Ltd ceased to be a director on 19June 2008. It was a contention of Ramboda Tea Estate (Pvt) Ltd that the 2nd Party Respondent-Respondent was holding possession of the said property on behalf of the Ramboda Tea Estate (Pvt) Ltd since he was a Director of the company and not in his personal capacity. However after the death of the 2nd Party Respondent-Respondent Dayalan his wife was substituted in her personal capacity. The said wife is not a director of company and it was the contention of the 7th Party Respondent- Respondent that the 2nd Party Respondent-Respondent's wife is now trying to get hold of the remaining of the estate by using the order made by the Learned Magistrate.

It was the position of the Substituted 2A Party Respondent-Respondent Petitioner and that the 7th Party Respondent-Respondent-Petitioner Ramboda Tea Estate (Pvt) Ltd for the first time in the High Court took up the position that Dayalan possession is same as possession of Ramboda Tea Estate (Pvt) Ltd as he was a Director of the Ramboda Tea Estate (Pvt) Ltd.

On a perusal of the documents produced in this case in the Magistrate Court namely the affidavit of the 2nd Party Respondent-Respondent Dayalan has claimed the property in his personal capacity. He has stated that the said property in accordance to the Company Act No. 17 of 1987 Nirmala Wellasami, Waithyalingam Wellasami, Dayalan Waithyalingam Wellasmi, Niranjan Waithyalingam Wellasami and Jayalakshmi Nagarathnam was under the management and control of the said board of directors.

premises in her personal capacity. As such in we reject the view that the 2nd Respondent has no locus standi to maintain this application. The application of the Plaintiff for interim relief being supported ex-parte in the District Court of Gampola made order issuing an Enjoining Order, Notice of Interim Injunction and Summons to be served on the 2nd Defendant. The 2nd Defendant had stated as he is aware no summons have been served on the 5th Defendant. The 2nd Defendant Petitioner defendant by petition dated 23/02/2008 made under in terms of section 664(3) moved to have the enjoining order set aside on the basis that the Plaintiff is wrongfully seeking to dispossessed the 2nd Defendant from the land describe in 1st to 11th schedule to the plaint. After supporting this application the court made a bench order suspending the enjoining order issued forthwith and direct the 2nd Defendant to file objections. It was also submitted that the Plaintiff has suppressed from court the judgment and decree entered in DC Gampola case No 2487/2 the purported deed no. 927 dated 24/03/1992 marked as A20 upon which the Plaintiff purportedly claims rights to the land describe aforesaid has been declared null and void and no affect or force in law. The Plaintiff suppressed from court that in terms of the judgment and decree entered in DC Gampola case no 2487/L, the purported power of Attorney dated 07/02/1992 based on which the purported power of Attorney holder of the owners of the land described in the 1st to 11th schedules to the plaint executed the purported deed of transfer no. 927 has been declared null and void.

It was also submitted that the Plaintiff has suppressed to the court that at the time of the execution of the purported agreement to sell no. 852 dated 12/12/2007 marked A24 with the plaint Mrs. Nirmala Wellasami was in prison. Hence it was submitted that purported agreement to sell is null and void and no force or no avail in law and no right or claim whatsoever flows from the said purported agreement to sell. The 2nd Defendant contended that the Plaintiff is not in possession of the land describe as aforesaid.

The 2nd Party Respondent-Respondent-Appellant has taken up the position that the Respondent has filed this revision application causing inordinate delay and guilty of laches. On a perusal of the record we find that the Primary Court Judge has given his order dated 03/02/2010.

The Officer in Charge of the Police Station of Kothmale had filed information with the Magistrate of Helboda on 19/11/2008. The Learned Magistrate has delivered his order on 03/02/2010 the 1st Party Respondent- Petitioner-Respondent thereafter on or about 30/08/2010 has filed a revision application in the High Court of Kandy and the Learned High Court Judge has delivered her order on 03/02/2016. Thereafter the present application for revision has been filed in the Court of Appeal on 26/02/2016. We find that there is no inordinate delay in filing action in the Magistrate as well as in the Appeal Court. Hence we reject this argument that there is an inordinate delay by the Appellant to take steps in filing the present revision application has been filed on 15th February 2016. The 1st Party Respondent-Petitioner has taken about 5 months to file the revision application in the High Court. Therefore we find that there is no inordinate delay and the Respondent is not guilty of laches.

Further it has been contended by the Appellant Respondent that number of new documents which are not tendered to court has been filed of record that there by application cannot be maintained. The Primary Court has given a temporary order and this dispute should be referred to a competent jurisdiction. When perusing the order dated 03/02/2016 the Learned High Court Judge had stated that new material has been filed and by order of the Primary Court Judge not having considered the decisions in the Civil cases cited by the Petitioner and the statements andthe police observations filed before him in the interest of justice, that the High Court is of the view that even if new material cited by the Petitioner, the Respondent had ample time to challenge the said material before the High Court and that the Respondents have failed to do so. However the Learned High Court Judge has not indicated what the new material placed before court.

Further it was contended that there are exceptional grounds to invoke the extraordinary jurisdiction of the High Court. On a perusal of the revision

application we find that there are exceptional circumstances which has been pleaded by the Respondents-Petitioners.

We are of the view that the Respondent revision application has been filed causing without inordinate delay and that there are exceptional grounds to invoke the extraordinary jurisdiction has been pleaded in the petition of appeal.

Further the 2nd Party Respondent-Respondent-Appellant has possessed this land the courpus in his private capacity and not in the capacity as a director of the company of Ramboda Tea Estate (Pvt) Ltd.

In the case of Oliver Millous of France V. M.H.A Haleem and others reported in the Bar Association Law Journal 2001 Vol IX part 1 in the Bar Association Law Report page 8 it was held that;

a) it is not the function of a Primary Court to go into the question of legal title of the parties to the land in dispute in an application under section 66 of the Primary Court's Procedure;

b) the central matter to be decided by the Primary Court is whether the parties had possession of the land and had been forcibly dispossessed within a period of two months immediately before the date on which information was filed under the section 66;

c) it is the apprehension of a breach of the peace and not infringement of a private right or dispossession of any of the parties which determines the jurisdiction of the Primary Court.

In this application the Petitioner among other relief is seeking to set aside the order of the High Court of Kandy dated 03/02/2016 and to uphold the order dated 03/02/2010.

The central matters to be decided by the Primary Court is whether the Respondents had possession of the land and had been forcibly dispossessed within a period of two months. Immediately before the date on which information was filed under section 66. Besides it has been held that even a squatter or a trespasser is entitled to possession if he had two months possession prior to the date of filing information.

Vide the decision of Sharvananda ,J in Ramalingam Vs. Thangarajah (1982) 2 SLR 694 at page 698 where he observed that under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entitles even a squatter to the protection of law, unless his possession was acquired within two months of the filing of the information.

Further in the case of Velupillai and others Vs. Sivanathan (1993) 1 SLR 123 it has been held that the scope of the inquiry under the special jurisdiction (Primary Courts Procedure Act) is of a purely preventive and provincial nature pending the final adjudication of the rights of the parties in a Civil Court. The Magistrate is not involved in the investigation into title or right to possession which is the function of a Civil Court.

Further the Learned High Court Judge has failed to consider the preliminary issue that there was an absence of circumstances to warrant the conclusion that there was a likelihood of a breach of the peace. In this case the police had filed an information informing the Magistrate that there is a dispute affecting land and a breach of the peace is threatened or likely then the Primary Court will have jurisdiction to inquire into the matter. The Court has to consider whether the dispute is such that it is likely to cause of breach of the peace which the Primary Court Judge of Helboda has most correctly looked into. It is the apprehension of a breach of the peace not any infringement of a private right or dispossession of any of the parties which determines the jurisdiction of the Primary Court Judge. It is sufficient for a Primary Court Judge to exercise the powers under the section if he is satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section. Primary Court Judge should however proceed with great cautionwhere there is no police report and the only material before him are the statements of interested parties.

The Officer in Charge of the Police Station of Kothmale, the Complainant Respondent-Respondent filed information under section 66(1) of the Primary Court Procedure Act on 19/11/2008 in the Primary Court of Gampola (Helboda) in case No. 24799 citing the 1st Respondent, the deceased 2nd Party Respondent-Petitioner Party Respondent-Respondent in whose place the Substituted 2A Party Respondent-Respondent-Petitioner was Substituted and the 3rd Party Respondent-Respondent-Respondent. Thereafter the 4th, 5th, 6th, 7th, and 8th Party Respondents intervened in the said case. The said Parties except the 1st Party Respondent-Petitioner-Respondent were in possession of separate lots of the Ramboda Estate which is in extent about 837 acres for many years as owners thereof. The 1st Party Respondent-Petitioner Respondent claimed title to the said estate and! or part thereof. Thereafter all parties filed their respective counter affidavits with documents and their respective written submissions. The Learned Magistrate of Helboda delivered her order on 03/02/2010 holding that the parties aforesaid are entitle to possession of the aforesaid extents of the said estate.

Thereafter lapse of 8 months or so the 1st Party Respondent-PetitionerRespondent sought to revise the said order dated 30/08/2010 by producing

numerous documents, which were not a part of the Primary Court proceedings. The Parties filed their respective objections to the said application praying that the application be dismissed for the reasons set out therein. The 1st Party Respondent-Petitioner-Respondent filed his counter objections and all parties filed their respective written submissions.

The Learned Judge of the High Court delivered her order on 03/02/2016 allowing the said revision application and has granted possession of the entire estate to the 1st Party Respondent- Petitioner-Respondent contrary to the facts established by evidence.

In the order of the Learned High Court Judge she has not given any reasons whether there is a breach of peace or likelihood of breach of peace. As regards possession the Learned High Court Judge had only indicated that it is observed that the possession had been prior to the institution of the 66 application.

However, she has stated that the Primary Court Judge had failed to consider the long and continued possession through out of the Substituted 2A Respondent-Respondent-Petitioner and the other Respondents in delivering the said judgment.

According to law fresh evidence could be brought before the High Court by a party. However the High Court Judge has not indicated the new material

that was before her. The Respondents-Respondent-Petitioners had been in possession of the said estate. The Learned High Court Judge has not considered whether there is a breach of peace or likelihood of breach of peace. When she had granted the possession of the entire estate amounting the 837 acres to the 1st Party Respondent-Petitioner which in law a person is not entitle to possess.

Accordingly we are of the view that the order of the Learned High Court Judge is erroneous and cannot stand. Hence we set aside the order of the Learned High Court Judge dated 03/02/2016 and uphold the order of the Learned Magistrate as there is breach of peace and likelihood of breach of peace and the Substituted 2A Respondent-Respondent-Petitioner and 7th Respondent-Respondent-Petitioner had been in possession of the portion of the estate.

Accordingly appeal is allowed with costs of Rs.25,000/- each.

Judge of the Court of Appeal

L.T.B.Dehideniya, J

I agree.

Judge of the Court of Appeal

P. W. WIMALASEKARA VS. D. A. UBAYASENA (substitution)

HON. H. C. J. MADAWALA, J

CA (PHC) No.111/2006
HCR(RA)26/2003
MC Rathnapura 14575

In the matter of an appeal under and in terms Article 154(g)(6) and 136 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

1. Pinwatththa Wedaralalage Wimalasekara
Weragama,
Udaniriella.

1st Respondent-petitioner-Appellant

Vs

Damme Arachchilage Ubayasena
Welgampola watta, Weragama,
Udaniriella.

Petitioner-Respondent-Respondent

2. M.U.Nissa
Paragahahena
Udaniriella.

2nd Respondent-Respondent-Respondent

1. Vijitha Malanie
Paragahahena
Udaniriella.

2. Sumitha Kusumlatha
Paragahahena
Udaniriella.

Respondents

Before : H. C. J. Madawala , J &
L. T. B. Dehideniya, J

Counsel : Dr. Sunil Cooray with Buddika Gamage for the Appellant
Prabash Semasinghe for the Respondent

Written Submissions on : 15/07 12016

Decided on : 26/09/2016

H. C. J. Madawala , J

The 1st party Petitioner Appellant preferred this appeal from the High Court of Rathnapura in HCR/RA/26/2003 to set aside the Learned Additional Magistrate's order 611/2003 and 22/4/2003. The 1st Respondent Petitioner Appellant Pinnawatta Wedaralalage Wimalasekara made an application for substitution for the deceased 2nd Respondent Respondent Respondent M.U.Nissa who had died on 15/3/2007 intestate leaving as his heirs the 1st and 2nd Respondents who are his children. He moved Court that in order to expeditiously dispose this appeal, that the 1st and 2nd Respondents namely, Vijitha Malanie and Sumitha Kusumalatha be substituted in room of the deceased 2nd Respondent Respondent Respondent and be named as 2A and 2B Respondent Respondent Respondent.

The Petitioner Respondent Respondent objecting to this application submitted that the deceased died on 15/3/2007 and never being part of the cases in appeal except the 1st revision matter RA 92/95 which was decided in 1998 and now the Respondent attempt to substitute the deceased in the Court of Appeal. The order dated 6/1/2003 was more fully on the refusal to send further notice in the event of decease's default in appearance upon the fiscal notice. Section 66(8) (b) of the Civil Procedure Code read as follows,

"Where a party fails to appear or having appeared fails to file his affidavit and also his documents (if any) he shall be deemed to be in default and not be entitled to participate at the inquiry but the court shall consider such material as is before it respecting the claims of such party in making its determination and order. "

It was contended that the deceased who at the time among the living, did not attend court upon several notices and finally even upon the fiscal notice, he was in default and has no right to participate thereafter. However that is the very order dated 6/1/2003 challenged by the appellant including the refusal to notice the deceased who among the living at that time inter alia. It was submitted that till his claimed death in 2007 the deceased has not taken any step against the said order against him dated 6/1/2003. The Appellant when he filed a revision in High Court (No 26/2003) and in appeal in this court made the deceased a party. However the Appellant wanted the deceased to be substituted, and it was contended that if the substitution take place it will make the order on 6/1/2003 in effective and by doing so they bypass the said order which refused to further notice the deceased. Further as the Appellant claimed there was no delay in executing the Primary Court order.

a) There were three attempts of executing the order as shown in the paragraph 12 of the petition.

b) All the attempts were blocked by the Appellant in illegal and violent manner disregarding the court and the officers of the court.

c) If there is any delay, that was severely contributed by the destroying of the original court record by the fire erupted in the court premises and the time spend on the subsequent reconstruction of the case.

d) In any event Appellant filed a series of appeals and revisions which the main Sec 66 matter finally decided by the Supreme Court in 2010 in Respondent's favour.

Accordingly it was submitted that the 1st Respondent is essentially deprived enjoying the rights safeguarded by the courts and entangle in an unnecessary and malicious filing of appeals and the Appellant unfairly misusing the system of administration of justice for his illegal gains while still unlawfully staying in the Respondents property breaching the peace and engaging suspected unlawful gem mining. Accordingly the Petitioner Respondent Respondent moved the court that the application of the Appellant may be dismissed subject to a heavy cost.

On consideration of the material before this court we find that the cause of action of the property in dispute does not survive and although the Primary Court Judge initially satisfied himself that there was a threat or likelihood of breach of peace and delivered his order. We find that the Appellant has filed appeals and revisions application where the main Section 66 matter finally decided in his favour.

Part VII of the Primary Court procedure Act is silent on substitution of persons on the death of parties. Section 78 permits to adopt the relevant procedure stipulated in the Civil Procedure Code in a like matter where the Primary Court Procedure Act has not provided for. The Section reads thus;

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 proceedings 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 proceedings shall with such suitable adaptations as the justice of the case may require be adopted and applied.

Inquiry under part VII of the Primary Court Procedure Act is not a civil action but it is generally accepted that whenever necessary, especially on the procedural issues, the Civil Procedure Code can be applied. The Civil Procedure Code had provided for the substitution of persons on the death of parties. Section 398 of the Code for the substitution in pending cases and Section 760A provides for substitution in appeal. The Section 760A reads;

"760A, Where at any time after the lodging of an appeal in any civil action, proceeding or matter, the record becomes defective by reason of the death or change of status of a party to the appeal, the Court of Appeal may in the manner provided in the rules made by the Supreme Court for that purpose, determine who, in the opinion of the court, is the proper person to be substituted or entered on the record in place of, or in addition to , the party who has died or undergone a change of status, and the name of such person shall thereupon be deemed to be substituted or entered of record as aforesaid. "

Under this section the Court has to decide who the proper person to be substituted is. It has been held in the Case of Careem Vs. Sivasubramaniam and Another (2003) 2 SLR 197 that;

ii. In the event of the death of a party substitution would be for the purpose of representing the deceased solely for the purpose of prosecuting the action and nothing more.

iii. The inquiry to determine a "proper person" under section 760A is one to ensure the continuation of the appeal after the change of status in the action and not to decide the rights of parties.

The substitution becomes unnecessary if the continuation of the appeal becomes futile. The basic purpose of an inquiry and a determination under part VII of the Primary Court Procedure Act is to prevent the breach of the peace. If there is no threat or a likelihood of the breach of the peace, or if the threat or the likelihood of the breach of the peace comes to an end, the requirement of making a determination ends.

Threat of creating a breach of the peace or the likelihood of committing a breach of the peace is a personal matter. With the death of the party, it ends. The dispute relating to the land may continue. The proper remedy is a civil action in a competent Court, not to substitute a person who is not a threat to the peace and to continue the action.

Substitution under section 398 of the Civil Procedure Code is also available only in a situation where the cause of action survives. The cause of action does not survive with the death of a party because the imminent danger of the breach of the peace comes to an end.

We draw our attention to the Bar Association Law Journal 2015 Vol. XXI Page 59 by Geoffrey Alagaratnam of President's Counsel, that a personal cause of action can end upon a death of a party. The Maxim action personalis moritur cum persona is that, proceedings against a party are considered ended on the death of one party where the cause of action is purely personal.

In the Case of Jayasuriya Vs. Samaranayake 1982(2) SLR 460 was an action involving revocation of a deed of gift given by a parent to a daughter on grounds of ingratitude. It was held that in so far as the Plaintiff s cause of action is concerned such being an action in personam, if the plaintiff dies the cause of action does not survive. In this action the stage of litis contestation had not been reached.

As there is no cause of action surviving after a death of a 2nd Respondent Respondent Respondents, it is not essential that heirs of the deceased should be substituted in order to proceed with this appeal. Hence we uphold the objections made by the Petitioner Respondent Respondent and refuse and disallow the application of the 1st Respondent Petitioner Appellant to substitute the two children of Vijitha Malanie and Sumitha Kusumalatha in room of the 2nd Respondent Respondent.

Judge of the Court of Appeal

L. T. D. Dehideniya, J

I agree.

Judge of the Court of Appeal

MOHAMMED MUNIR VS A ASISH MOHAMMADU MUBHARATH

HON MAHINDA SAMAYAWARDHENA, J

CA CASE NO: CA (PHC) 138/2011

HC HAMBANTOTA CASE NO: HC/RA/18/2010
MC WALASMULLA CASE NO: 11248 (66)

Mohammed Munir,
In front of Udayagiri Hardware,
Walasmulla.

1st
Respondent-petitioner-Appellant
Vs.

Abdul Asish Mohammadu Mubharath,
No. 108, Middeniya Road,
Walasmulla

Petitioner-1st
Respondent-Respondent
And Another Respondents

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Razik Zarook, P.C., with Rohana Deashapriya for the 1st Respondent-Petitioner-Appellant. Yoosuf Nasar for the Petitioner-Respondent- Respondent.

Decided on : 18.09.2019

Mahinda Samayawardhena, J.

This is an appeal filed against the Judgment of the High Court of Hambantota affirming the order of the Magistrate's Court of Walasmulla made under section 68(3) of the Primary Courts' Procedure Act whereby the 1st Respondent-Appellant was ordered to remove the structure erected on the land in suit on the basis that he has forcibly entered the land within two months prior to the filing of the action.

The premises admittedly belong to the Walasmulla Mosque and governed by a Board of Trustees.

The only substantive defence apart from technical objections taken up by the Appellant before all three Courts is that, the Appellant came into occupation of a part of the land about five perches in extent out of nearly two acres of a larger land, with the consent of the Board of Trustees of the Mosque.

This assertion is unacceptable as only two Members of the Board in their private capacities have consented to it.1 The majority of at least six Members are against it.2 Hence it is clear that the Appellant has gone into forcible occupation of the property belonging to the Mosque.

____________
¹ Vide circled pages 94, 104 and 78 of the Brief. It seems only M.S.M. Wafeek and A.R.M. Jabeer have consented.

There is no dispute that the Appellant did so within two months immediately prior to the filing of the action.

The argument in this appeal was decided to be disposed of by way of written submissions. Although the learned President's Counsel for the Appellant has filed written submissions, no written submissions have been filed by counsel for the Petitioner-Respondent.

Learned President's Counsel for the Appellant has taken up a number of technical objections to the maintainability of this action.

I must emphasize that, given the intention of the legislature in introducing this special piece of legislation, which is nothing but to make provisional orders to prevent breach of the peace until the matter is determined by a competent Court, there is no place for high-flown technical objections in section 66 applications.

Having said so, let me summarily deal with the said technical objections.

First one is that the application has been filed in the wrong Court, that is, not in the Primary Court of Walasmulla, but in the Magistrate's Court of Walasmulla. There is no Primary Court in Walasmulla and the Magistrate of Walasmulla exercises the jurisdiction of the Primary Court as well, and as far as I

____________
² Vide the affidavit of five Board Members at circled page 78, and the affidavit of the Petitioner Board Member at circled page 49 of the Brief.

know, that authority to perform duties as the Primary Court Judge is given on the Magistrate in the appointment letter itself. The learned President Counsel has admitted that the impugned order has been signed by the Magistrate as the Judge of the Primary Court of Walasmulla.

The second one is that the petitioner has not averred locus standi in the petition. The petitioner in paragraph 7 of the petition has stated that he is a Member of the Board of Trustees of the Mosque and has also tendered the complaint made to the police by him as P2. In that complaint, he has described the capacity on which he makes that complaint. Thereafter the other Members of the Board have by way of an affidavit consented the petitioner to proceed with the action on behalf of the Board.3 Although that affidavit is dated subsequent to the filing of the action, that is sufficient for the purpose of section 66 application.

The third one is that the supporting affidavit of the petitioner is bad in law inasmuch as the petitioner being a Muslim has deposed to the facts of the affidavit on oath but not on affirmation. As was held by the Supreme Court in Sooriya Enterprises (International) Limited v. Michael White & Company Limited4 "It is not imperative for non-Christians referred to in section 5 of the Oaths Ordinance to make an affirmation in an affidavit. The use of the word 'may' in section 5 of the Oaths Ordinance of 1895, instead of 'shall' must be regarded as deliberate; with the consequence that non-Christians who believed in God would have the option to swear or to affirm." It was further held in that case that "the substitution of an oath for

___________
³ Vide circled page 79 of the Brief.
⁴ [2002] 3 Sri LR 371

an affirmation (or vice versa) will not invalidate proceedings or shut out evidence. The fundamental obligation of a witness or deponent is to tell the truth (section 10), and the purpose of an oath or affirmation is to reinforce that obligation." Vide also Inaya v. Lanka Orix Leasing Company Ltd5, Trico Freighters (Pvt) Ltd v. Yang Civil Engineering Lanka (Pvt) Ltd6, Kariyawasam v. Dona Mercy7.

The fourth one is that there was no imminent threat to the breach of the peace for the Magistrate to cloth with jurisdiction to determine the matter. Breach of the peace does not amount to physical fights, which may or may not lead to murder. If there is a likelihood of a breach of the peace, that is sufficient. The learned Magistrate before issuance of notice has satisfied that there is a threat to the breach of the peace and so recorded. This Court sitting in appeal cannot say that there was no breach of the peace.

The fifth one is that the learned Magistrate has not taken steps to amicably settle the dispute before fixing the matter for inquiry to be disposed of on written submissions. The learned Magistrate has postponed the matter specifically for settlement and on the next date it has been recorded that there was no settlement. In any event, the earlier view that unless the Magistrate first takes steps to settle the matter, the Magistrate lacks jurisdiction to decide the same, has now been decided to be incorrect. Vide my Judgment in Kusumalatha v. Sriya Swarnakanthi8.

___________
⁵ [1999] 3 Sri LR 197
⁶ [2000] 2 Sri LR 136
⁷ [2006] 2 Sri LR 256
⁸ CA-PHC-78 & 78A/2005 decided on 21.05.2019.

I reject the said technical objections. Appeal is dismissed. No costs.

Judge of the Court of Appeal

K.K. Wickramasinghe, J.
I agree.

Judge of the Court of Appeal

RANJITH HEWAWITHARANA VS. W. P. RUKSHAN ANTHONY PERERA

HON. L. T. B. DEHIDENIYA, J

Court of Appeal case no. CA/PHC/09/2005
H.C. Negombo case no. 220/2004
M.C. Wattala case no. 90478

Ranjith Hewawitharana,
No.253, Weralla Watta, Yakkala.

2nd Respondent Respondent Appellant

Ronald Ashoka Hewawitharana,
No.253, Weralla Watta, Yakkala.

Added Respondent Respondent Appellant

Vs.

Warnakula Patabendige Rukshan Anthony Perera,
P.O.Box No.2, Dikovita, Hendala, Wattala.

1st Respondent Petitioner Respondent.

Officer in Charge,
Police Station, Wattala.

Informant Respondent Respondent

Before : P.R.Walgama J.
: L.T.B. Dehideniya J.

Counsel : Parties were absent and unrepresented.

Decided on : 22.11.2016

L.T.B. Dehideniya J.

This is an appeal from the High Court of Negombo.

The notices were issued to parties on several times but they did not take interest in participating at the hearing. The notices never returned undelivered. The Court presumed that the notices were served and fixed the case for judgment.

The police filed information in the Magistrate Court of Wattala under section 66(1) of the Primary Court Procedure Act informing that a land dispute threatening breach of the peace has arisen. After filing the affidavits, documents and the written submissions of the parties, the learned Magistrate pronounced her determination.
In her order the learned Magistrate has determined that the 1st party Respondent Petitioner Respondent (the Respondent) was in possession in the disputed land which was described in the in the affidavit of the Respondent and decided that the Respondent is entitle to possession until it is varied by virtue of an order or a decree of a competent Court and prohibited all disturbance or interference.The learned Magistrate further ordered that the status quo shall be maintained until it is varied by a competent court and the Respondent and two other Directors of the Pegsaus Reef Hotel Ltd. were ordered to enter to a bond of Rs. 1,000,000.00 each to maintain the status quo. The Respondent being aggrieved by the said two additional conditions moved in revision in the High Court Negombo. The learned High Court Judge acting in revision set aside the said two conditions. The 2nd party and added 3rd party Respondents Respondents Appellants (the Appellants) appealed to this Court from the said order of the learned High Court Judge.The determination that the Respondent is entitled to possession was not challenged in the High Court. That part was accepted by the Respondent. The Appellants did not move in revision against the order. Therefore we need not consider the part that was accepted by the parties.The part that was disputed is the two conditions imposed by the learned Magistrate. This dispute being a dispute on possession the judge of the Primary Court (the Magistrate in this instant) has correctly decided that one party was in possession at the time of filing the information and no dispossession has been proved, ordered that party to be entitle to possession. Once the order on possession was made, any violation will be punished as a contempt of court. The judge is empowered to make that determination under part VII of the Primary Court Procedure Act but not empowered to order any party to maintain the status quo indefinitely.

Under section 70 of the Act the Magistrate can order security on possession. The section reads;

70. An order made under this Part may also contain such other directions as the Judge of the Primary Court may think fit with regard to the furnishing of security for the exercise of the right of possession of the land or part of it or for the exercise of any right in such land or with regard to the sale of any crop or produce or the manner of exercise of any right in such land or the custody or disposal of the proceeds of the sale of any crop or produce.

This section does not give any authority to the Magistrate to order the status quo to be maintained. In this case the two Directors of the Hotel, who were not parties to the action, were also ordered to enter in to a bond. The title of the land may be with a third party or there may be a dispute with a third party, but without making him/they party/parties, and giving he/them a hearing, Court cannot make an order against him/them. Any such order is a violation of natural justice. The learned High Court Judge has correctly removed the violation of the natural justice.

We see no reason to interfere with the order of the learned High Court Judge.

The appeal is dismissed.

Judge of the Court of Appeal

P.R.Walgama J.

I agree.

Judge of the Court of Appeal

M. JAYASINGHE VS S.M.LALITH G. SENANAYAKE

HON JANAK DE SILVA, J.

Case No: CA(PHC) 30/2012

P.H.C. Galle Case No:4104/2012
M.C. Ruwanwella Case No:88586 (66)

S.M.Lalith Gunaseeli Senanayake Thalagahabate,
Kithulgala.

Petitioner
Vs.

01. Attanayake Mudiyanselage Jayasinghe
Kirkohuthenna, Kithulagala.

02. Hettikandage Kumarasinghe,
Embulpussa, Kithulgala.

03. Emage Jayathilake
Kendahena, Kithulgala.

04. Attanayake Mudiyanselage Janaka
Kumara Attanayake
Batahenekanda, Kithulagala.

05. Gadjasinghe Aarachchilage Subasinghe
Gonnana, Kithulgala.

06. Attanayake Mudisyanselage Sirisena Batahenekandha,
Kithulgala.

Respondents
And between

01. Attanayake Mudiyanselage Jayasinghe
Kirikohuthenna, Kithulgala.

02. Hettikandage Kumarasinghe
Embulpussa, Kithulgala.

03. Emage Jayathilake
Kendahena, Kithulgala

05. Gadjasinghe Aarachchilage Subasinghe
Gonnana,Kithulgala. (Deceased)

5A. Wela Thanthirige Wimalawathie Boteju
Gonnana, KithuIgala.

Respondents-Petitioners
Vs.

01. S.M.Lalith Gunaseeli Senanayake
Thalagahabate, Kithulgala.

Petitioner-Respondent

02. Attanayake Mudiyanselage Janaka Kumara Attanayake
Batahenekanda,Kithulagala.

03. Attanayake Mudiyanselage Sirisena
Bata henekandha, Kith ulgala .

Respondents-Respondents
And now between

01. Attanayake Mudiyanselage Jayasinghe
Kirikohuthenna, Kithulgala.

02. Hettikandage Kumarasinghe,
Embulpussa,Kithulgala.

03. Emage Jayatihilake,
Kendahena,
Kithulgala.

05 . Gadjasinghe Aarachchilage Subasinghe Gonnana
Kithulgala. (Deceased)

5A. Wela Thanthirige Wimalawathie Boteju
Gonnana,Kithulgala.

Respondents-Petitioners-Appellants
Vs.

01. S.M.Lalith Gunaseeli Senanayake
Thalagahabate, Kithulgala.

Petitioner-Respondent-Respondent

01. Attanayake Mudiyanselage Janaka Kumara Attanayake
Batahenekanada, Kithulgala

02 . Attanayake Mudiyanselage Sirisena
Batahenekandha, Kithulgala.

Respondents-Respondents-Respondents

Before : K.K. Wickremasinghe J.
Janak De Silva J.

Counsel : Nishadi Wickremasinghe for Respondents-Petitioners-Appellants
Subash Gunathilake for Petitioner-Respondent-Respondent

Written Submissions tendered on : Respondents-Petitioners-Appellants on 20.09.2016 and 03.05.2018

Argued on : 14.03.2018

Decided on : 08.03.2019

Janak De Silva J.

This is an appeal from an order dated 20.04.2012 made by the learned High Court judge of the Sabaragamuwa Province holden in Kegalle although mistakenly the 1st Respondent-Petitioner Appellant (Appellant) states it to be an application in revision.

The Petitioner-Respondent-Respondent (Respondent) filed an application under section 66(1)(b) of the Primary Courts Procedure Act (Act) in the Magistrate's Court of Ruwanwella on 27.07.2007 against the 1st Appellant and five others. The Respondent stated that he was in possession of a one-acre portion of land which was part of a larger land identified as According to the Respondent, when he entered the said portion of the land to pluck coconuts on 04.07.2007, the 1st Appellant and five others had already entered the land and started constructing a house on the land. Upon inquiry by the Respondent, the 1st Appellant and five others had allegedly threatened him and chased him away from the land . The 1st Appellant has taken up the position that he has been in continuous possession of the said portion of the land from 23 .07.2003.

The Respondent's private plaint had also made reference to the fact that a writ application (HC/Kegalle/No 3084/W) was filed by the Respondent seeking to quash a decision by the Divisional Secretariat Yatiyanthota, to put up notices on the land asking any party to show cause why a permit granted in relation to the land should not be cancelled.

The learned Magistrate by order dated 16.05.2008 dismissed the action on the basis that the Primary Court had no jurisdiction to go into a matter concerning state land (Vide page 106 of the Appeal Brief). The Respondent filed a revision application against the said order and the learned High Court Judge revised the learned Magistrate's order and directed him to inquire into the matter in terms of section 68(3) of the Act (Vide page 116 of the Appeal Brief).

Accordingly, the learned Magistrate inquired into the matter and by order dated 22.03.2011 determined that the Respondent had been dispossessed from the land by the 1st Appellant and five others two months prior to the date of filing information (Vide page 294 of the Appeal Brief). The Appellant filed a revision application (HCR No. 4104) against the said order seeking to have it set aside on the basis that the learned Magistrate had failed to consider and evaluate evidence on record which showed that the 1st Appellant was in continuous possession of the corpus from the year 2003.

The learned High Court Judge by order dated 20.04.2012 concluded that there were no exceptional circumstances to disturb the findings of the learned Magistrate (Vide page 38 of the Appeal Brief). Hence this appeal against the said order.

Before considering the substantive grounds canvassed in the present appeal it is necessary to consider a preliminary objection raised by learned counsel for the Respondent against the maintainability of this appeal.

Non-compliance with Rule 4(2) of the Court of Appeal (Procedure for Appeals from High Courts established by Article 154P of the Constitution) Rules of 1988

The Respondent submitted that the petition of appeal is defective as it does not ex facie comply with the requirements stipulated in Rule 4(2) of the Court of Appeal (Procedure for appeals from High Courts established by Article 154 P of the Constitution) Rules. The Appellant argues that the said preliminary objections has been raised belatedly and should be disregarded by this court.

In Kandy Omnibus Co Ltd vs. T. W Roberts (56 N.L.R. 293) Sansoni J, quoted with approval the following passage from Spencer Bower on Estoppel by Representation (1923) at page 187 to illustrate the difference between a patent and latent lack of jurisdiction:

In Beatrice Perera vs. The Commissioner of National Housing (77 N.L.R. 361) the court made the following observation:

"Lack of competency may arise in one of two ways. A Court may lack jurisdiction over the cause or matter or over the parties; it may also lack competence because of failure to comply with such procedural requirements as are necessary for the exercise of power by the Court. Both are jurisdictional defects; the first mentioned of these is commonly known in the law as a ' patent' or 'total' want of jurisdiction or a defectus jurisdictionis and the second a ' latent' or ' contingent' want of jurisdiction or a defectus triationis." (emphasis added)

Accordingly, I hold that the jurisdictional objection raised by the Respondent impugns a latent lack of jurisdiction on the part of this court. The side note to Rule 4 of the Court of Appeal (Procedure for Appeals from High Courts established by Article 154P of the Constitution) Rules reads as 'What Petition of Appeal shall state'. Therefore, the said rule clearly deals with a procedural requirement that is necessary for the exercise of powers by the Court of Appeal. An objection pertaining to such latent or contingent want of jurisdiction must be raised at the earliest available opportunity by the party relying on it.

In the matter before us, the petition of appeal against the learned High Court judge' s order was lodged in the High Court on 23.04.2012. The High Court minutes for this date indicate that the Appellant had dispatched the petition of appeal by registered post to the Respondent (Vide page 23 of the Appeal Brief). Subsequently, the Respondent received formal notice of the application and was asked to be present in court on 06.09.2012.

Accordingly, it is reasonable to presume that the Respondent would have had knowledge of the purported defect in the petition of appeal by this point of time. The journal entries indicate that the counsel for the Respondent did not raise the preliminary objection on this date. The preliminary objection was raised almost six years after this date on 14.03.2018. During this period, the case was re-fixed for argument on five separate occasions. The Respondent did not raise the preliminary objection at any time during this period.

H..R. Wade & C.F . Forsyth in Administrative Law 9th Ed, Page 464 makes the following observation;

"The court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisers know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged." (emphasis added)

Halsbury's Laws of England, 5th Ed, Vol 19 reads :

"An application to challenge the jurisdiction of the court must be made at the outset of the proceedings, for if the defendant takes any step in the proceedings other than a step to challenge the jurisdiction, he will be taken to have waived any opportunity for challenge which he might otherwise have had, and to have submitted to the jurisdiction of the court." (emphasis added)

The Respondent's conduct viz. allowing proceedings before this court to continue without promptly raising the preliminary objection, clearly manifests an intention on his part to waive the right to make the said preliminary objection. In Abeywickrema vs. Pathirana and others [(1986) 1 Sri L R 120, 152] it was observed that a waiver must be an intentional act with knowledge. It necessarily implies knowledge of one's rights vis a vis the other party's infraction and an election to abandon those rights. An election to waive a right can be inferred by conduct. (Fernando vs. Samaraweera 52 N.L.R. 278).

In the present matter, there are sufficient grounds for me to conclude that the Respondent has waived his right to raise the preliminary objection by letting the proceedings continue without promptly raising it. Therefore, I hold that the preliminary objection raised by the Respondent ought to be overruled.

The substantive grounds of appeal

The main contentions of the Appellant are that;

a) the learned High Court had failed to consider the points of fact and law canvassed by the Appellant in the revision application to show that he - and not the Respondent - was in possession of the land two months prior to the filing of the information

b) the learned High Court judge had disregarded the fact that the learned Magistrate had failed to record whether a breach of peace is threatened or likely

c) the learned High Court judge had disregarded the fact that the learned Magistrate had failed to induce the parties to arrive at a settlement

d) the order of the learned High Court judge is erroneous as its final conclusion does not accord with the reasoning made by the judge in the same order

It would be appropriate at this stage to first consider (b) and (c) viz. whether the learned High Court judge has disregarded and if so whether he was justified in disregarding the said two contentions raised by the Appellant.

Breach of Peace

A perusal of the learned High Court Judge's order clearly shows that the judge had taken cognizance of and satisfied himself about the correctness of the procedure adopted by the Magistrate in coming to a finding that a breach of peace was likely in the future (Vide page 37 of the Appeal Brief) The order of the learned Magistrate indicates that he had satisfied himself about the existence of a likelihood of a breach of peace and thereafter caused notices to be affixed on the disputed land (Vide page 289 of the Appeal Brief).

The Appellant contends that this procedure is irregular as there is no record of the Magistrate' s finding that a breach of peace was likely. In Navaratnasingham vs. Arumugam [(1980) 2 Sri LR 1] a similar objection was taken viz. that it was necessary for a Magistrate to make an order in writing stating his grounds for being satisfied that a breach of peace was likely.

The court rejected this contention and held as follows:

In CA (PHC) 161/98 (C.A.M 21.06.2010) it was held that the failure of the Primary Court Judge to explicitly state in the proceedings that the he has come to a conclusion that a breach of peace was likely does not deprive him of jurisdiction. This court utilized section 114(f) of the Evidence Ordinance to hold that one is entitled to presume that a Primary Court judge has satisfied himself that there's a breach of peace when the affidavit and information filed by the parties had material to show that a breach of peace was threatened or likely.

I hold that in the present matter there was sufficient information in the private plaint for the Magistrate to conclude that a breach of peace was likely. The failure of the Magistrate to explicitly record this fact does not deprive him of jurisdiction. Therefore, the learned High Court judge was correct in disregarding that ground of revision.

Failure to Explore Settlement

The Appellant also contended that the High Court judge had disregarded the fact that the learned Magistrate had failed to induce the parties to arrive at a settlement in terms of section 66(6) of the Act. It therefore needs to be considered whether the learned High Court judge was bound to consider this contention at the revisionary stage.

In Mohamed Nizam vs. Justin Dias [C A. PHC 16/2007] two judges of this court held that the question of non-compliance of section 66(6) of the Act by the judge of the Primary Court cannot be raised belatedly at the stage of revision or appeal and inaction of the party by not raising the objection in the Primary Court amounts to waiver of such objection. This was quoted with approval and followed in De Silva vs. Seneviratne [C.A.(PHC) 29/2006 (HC), C.A.M. 10.03.2014].

In Jayantha Gunasekara vs . Jayatissa Gunasekara and Others [(2011) 1 Sri LR 284, 303] a Divisional Bench of this court observed that inaction in the Primary Court would include the failure to raise the learned Magistrate's non-compliance with section 66(6) before the learned Magistrate commenced the inquiry.

In the matter before us, the learned Magistrate initially made an order on 16.05.2008 dismissing the matter without holding an inquiry. This was because the learned Magistrate was of the opinion that he had no jurisdiction to make a section 66 order when it came to state land. Admittedly, the written submissions of the Appellant which were filed before the said order was made raised an objection based on non-compliance with section 66(6) of the Act (Vide page 131 of the Appeal Brief).

Thus, the objection was not raised belatedly. Therefore, under normal circumstances the learned High Court judge ought to have taken account of that objection. However, what has transpired in the present matter is that the order of the Magistrate dated 16.05.2008 was revised by the High Court judge of Kegalle in HCR No 3425 by order dated 2010.11.02. In the latter order, the High Court judge has made a specific direction under section 6(a) of the High Court of the Provinces Act of 1990 to take cognizance of the affidavits and documents filed and make an order in terms of section 68(3) of the Act. Section 68(3) of Act is a provision which allows a Magistrate to make an order after an inquiry has been commenced.

Therefore, the directions given by the High Court judge in the exercise of that court's revisionary jurisdiction, vested the Magistrate with jurisdiction to inquire into the matter and make an appropriate order, although a settlement had not been attempted in terms of section 66(6) of the Act. Therefore, the High Court judge in HCR No 4104 was justified in disregarding the Appellant's contention that the learned Magistrate had failed to induce the parties to arrive at a settlement before making his order.

Failure to Consider Points of Fact and Law

The main contention of the Appellant is that the High Court had failed to consider the points of fact and law canvassed by the Appellant in the revision application to show that he - and not the Respondent - was in possession of the land two months prior to the filing of the information. When a contention of this nature is raised, it is important to bear in mind the principle that the right of appeal granted under Article 154P(3}(b} of the Constitution 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 [Jayantha Gunasekera vs. Jayatissa Gunasekera and others (supra)]. 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. [See also Case No. CA(PHC} 85/2007, C.A.M 07.12.2018] . Thus, what is at issue before us is the propriety of the revisionary order.

A perusal of the learned Magistrate's order shows that there has been a careful and comprehensive evaluation of the respective documents produced by both parties to determine who had the stronger claim to having possessed the corpus two months prior to the filing of information. The learned Magistrate has ultimately relied on documents made in the ordinary course of business viz. receipts recording monthly payments made to the Respondent by the Kithulgala Smallholders Tea Development Board to make use of a building on the land, to conclude that the Respondent was in possession of the property two months prior to the filing of information (Vide page 293 of the Appeal Brief).

It is relevant to note that section 32(2) of the Evidence Ordinance attaches probative value to such documents made in the ordinary course of business. These include acknowledgment written or signed indicating the receipt of money, goods, securities, or property of any kind. Thus, the learned Magistrate was justified in relying on the said documents to satisfy himself about the possession of the Respondent. Therefore, I find no reason to conclude that the learned High Court judge misconceived himself either in law or fact in associating himself with the findings of the learned Magistrate.

The last contention that has been taken up by the Appellant is that the order of the learned High Court judge is erroneous as its final conclusion does not accord with the reasoning made in the same order. Indeed, a perusal of the order reveals the learned High Court judge at one point stating that the petitioner before the High Court was in possession of the land two months preceding the filing of information (Vide page 37 of the Appeal Brief).

Nevertheless, the order concludes by stating that the learned Magistrate was correct in holding that the petitioner-respondent was in possession of the land. This discrepancy arises due to a misapprehension by the learned High Court judge. The learned judge had mistaken the petitioner before the High Court to be the petitioner before the primary court viz. Senanayake Mudiyanselage Lalith Gunasili Senanayake (Vide page 36 of the Appeal Brief). However, Senanayake Mudiyanselage Lalith Gunasili Senanayake was the Respondent before the High Court. It is solely based on this misapprehension that the 'petitioner before the High Court' is held to have been in possession of the land two months prior to the filing of information. As the final paragraph of the order shows, the learned High Court judge meant to confirm the Magistrates Courts conclusion that Senanayake Mudiyanselage Lalith Gunasili Senanayake viz. the Respondent was in possession of the land two months preceding the filing of information.

The proviso to Article 138(1) of the Constitution states that no judgment, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice. [Victor and another vs. Cyril De Silva (1998) 1 Sri.L.R. 41; Gunasena vs. Kandage and others (1997) 3 Sri.L.R. 393].

I am of the opinion that this principle must be applied in the instant matter to preserve the learned High Court judge's order despite the defect in identifying the respective parties. In order to clearly set out that position I vary the order of the learned High Court Judge to read as confirming the Magistrates Court's conclusion that Senanayake Mudiyanselage Lalith Gunasili Senanayake viz. the Respondent was in possession of the land two months preceding the filing of information.

For the aforesaid reasons and subject to the variation made above, I see no reason to interfere with the order dated 20.04.2012 made by the learned High Court judge of the Sabaragamuwa Province holden in Kegalle.

Appeal dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.
I agree.

Judge of the Court of Appeal

K. R. JAGATH W. KUMARA VS. A.J.L.MANGALARATHNA

HON. P. PADMAN SURASENA, J

C A (PHC) / 151 / 2011

High Court of Embilipitiya Case No. HCE RA 22 / 2010
Magistrate's Court Embilipitiya Case No. 33022 / 2010

In the matter of an Appeal against judgment of Provincial High Court exercising its revisionary jurisdiction.

Karunamunige Rohana Jagath
Wasantha Kumara,
Keselwaththa,
Buluthota.

2ND PARTY - RESPONDENT - APPELLANT
Vs

1. Aparekke Jayasundera Mudiyanselage
Lankasiri Mangalarathna,
Egberth Estate,
Suriyakanda.

1ST PARTY RESPONDENT -
PETITIONER - RESPONDENT

2. Officer-in-Charge
Police Station,
Kolonna.

COMPLAINANT - RESPONDENT -RESPONDENT

Before : K K Wickremasinghe J
P. Padman Surasena J

Counsel : Parties are absent and unrepresented.

Decided on : 2017-08-03

JUDGMENT

P Padman Surasena J

This Court observing that the parties were absent and unrepresented on several occasions had issued notices on them at the said occasions. It is clear from the journal entry dated 2016-09-13 that the Appellant had been present and was represented by a counsel in court when this Court fixed this case for argument on that date. On that date this Court had fixed the argument of this case for 2017-02-14. On 2017-02-14, the counsel who appeared for the Appellant had moved for a postponement on personal grounds and then this Court had re-fixed the argument for 2017-06-28. This Court having observed the absence of parties in Court when it was first called in the morning kept down the case to enable the parties or any of their representatives to make some arrangement even to appear before this Court late in the day. However neither party was present in Court when this Court took the case up for argument later on 2017-06-28. Thus this Court then reserved its judgment for 2017-08-03 to enable it to consider the merits of the case.

The Complainant - Respondent - Respondent (hereinafter sometimes referred to as the 2nd Respondent) had filed an information in the Magistrate's Court of Embilipitiya under section 66 (1) (a) of the Primary Courts Procedure Act, complaining to the learned Primary Court Judge about an existence of breach of peace between 2nd Party - Respondent-Appellant (hereinafter sometimes referred to as the Appellant) and the 1st Party Respondent - Petitioner-Respondent (hereinafter sometimes referred to as the 1st Respondent).

Learned Primary Court Judge having inquired into this complaint, had pronounced his order dated 2010-08-19, holding that the Appellant was entitled to the possession of the land in dispute.

Being aggrieved by the said order made by the learned Magistrate, the Respondent had filed an application for revision in the Provincial High Court of Sabaragamuwa holden at Embilipitiya urging the Provincial High Court to revise the order made by the learned Magistrate.

The Provincial High Court after hearing parties, revised the order of the learned Primary Court Judge by its judgment dated 2011-08-03. The Provincial High Court had held that it is the Respondent who is entitled to the possession of the said land.

It is against the said judgment of the Provincial High Court that the Appellant has filed this appeal in this Court.

Perusal of the judgment pronounced by the learned Magistrate shows clearly that he was misdirected in law when he had erroneously assumed his task to be to find out as to who was in possession on the date of filing the information in Court.

Thus, the learned High Court Judge had correctly revised the impugned order made by the learned Magistrate. It is to be noted that this Court has no difficulty at all to agree with the reasoning given by the learned High Court Judge when he proceeded to revise the said order of the learned Magistrate. The evidence, the learned High Court Judge had referred to, are vital to decide this case correctly and the learned Magistrate unfortunately had overlooked them.

For the aforesaid reasons this Court is of the view that the learned High Court Judge was correct when he held that it is the Respondent who is entitled to the possession of this land. Thus, we see no merit in this appeal.

In these circumstances, this Court decides to affirm the judgment dated 2011-08-03 made by the learned Provincial High Court Judge and proceed o dismiss this appeal. Further this Court makes order that the 1st Respondent is entitled to costs.

Appeal is dismissed with costs.

JUDGE OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

FATHIMA IYSHA VS OIC, POLICE STATION, BIYAGAMA

HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 77/2013

HC NEGOMBO CASE NO: WP/PHC/GPH APL NO: 3/11
PRIMARY COURT GAMPAHA CASE NO: 66942/PCA

Fathima Iysha, No. 359/B,
Walgama, Malwana.

2nd Party Respondent-Petitioner-Appellant
Vs.

1. The Officer in Charge,
Police Station,
Biyagama.

Complainant-Respondent-Respondent-Respondent

2. Mohomad Sarook Mohomad Nazli,
No. 532/5, Walgama,
Malwana.

1st Party Respondent-Respondent-Respondent

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Vishva Vimukthi for the 2nd Party Appellant.
1st Party Respondent is absent and unrepresented.

Decided on: 15.05.2019

Samayawardhena, J.

The first information under section 66 of the Primary Courts' Procedure Act, No. 44 of 1979 was filed by the police in the Magistrate's Court making the 1st party husband (respondent) and the 2nd party wife (appellant) parties to it, over a dispute in relation to a house. By that time, they had got divorced. After the inquiry, the learned Magistrate, in terms of section 68(3) of the Act, held with the respondent on the basis that the respondent had been in possession of the house until he was dispossessed by the appellant within two months prior to the filing of the first information. This was affirmed by the High Court. This appeal is from that Judgment of the High Court.

On the date on which the respondent is alleged to have been dispossessed, i.e. 05.09.2010, he has made a complaint to the police.1 The following day, i.e. 06.09.2010, S.I. Wasantha has visited the place and observed that the appellant had broken the old padlocks of the gate and the main door of the house and replaced them with new padlocks. S.I. Wasantha has informed the appellant who was in the house to come to the police station

___________________________
¹ Vide page 87 of the Appeal Brief.

on the following day at 9.00 am.2 The appellant has made a statement to the police on the following day.3 In that statement she has admitted that she left the house about three months ago to stay in a rented-out house. She has further stated that both of them (she and her ex-husband) had the keys of the house and as usual she came to the house without using any force. This is false, and false to the knowledge of the appellant. However before this Court she takes up a different position and says that: "The appellant became aware that the respondent by using an extra key which he had obtained prior to the divorce had entered the house situated in the land in dispute. Therefore the appellant changed the padlock and keys of the house in order to prevent him from entering the house and further threatening and harassing the children."4 This is also false and contrary to her statement to the police, which she made soon after the incident.

Learned counsel for the appellant drawing attention of Court to Iqbal v. Majedudeen [1999] 3 Sri LR 213 says that the appellant had constructive possession. That is not acceptable on her own admissions which I stated above.

I see no reason to interfere with the Judgment of the High Court. Appeal is dismissed. No costs.

Judge of the Court of Appeal

K.K. Wickramasinghe, J.
I agree.

Judge of the Court of Appeal

ALUTHGAMAGE PIYASEELI VS ALBERT WANIGAPURA

HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 193/2013

HC TANGALLE CASE NO: 1/2013/REV
MC WALASMULLA CASE NO: 23621

Aluthgamage Piyaseeli,
'Kellegedara", Mulgirigala,
Weeraketiya.

Wanigasingha Arachchige Pradeep Rohana,
'Lakshila', Puhulhena Road,
Mulgirigala.

2nd and 3rd
Respondents-Petitioners-Appellants
Vs.

Albert Wanigapura,
Beheth Salawa, Kiwulara,
Ihala Beligalla, Beliatta.

And 11 Others

Respondents-Respondents- Respondents

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Chandrasiri Wanigapura for the 2nd and 3rd Respondents-Appellants.
(No written submissions have been filed on behalf of the Appellants.)
Priyantha Deniyaya for the Respondents- Respondents.

Decided on : 18.07.2019

Mahinda Samayawardhena, J.

The 2nd and 3rd Respondents-Petitioners-Appellants have filed this appeal against the Judgment of the High Court dated 28.10.2013 whereby the order of the Magistrate's Court dated 18.12.2012 was affirmed.

The police instituted proceedings in the Magistrate's Court under section 66(1)(a) of the Primary Courts' Procedure Act making the 1st Respondent and the 2nd and 3rd Respondents parties upon a road dispute. Several other parties later intervened supporting the case of the 1st Respondent. It was the position of the 1st Respondent that the disputed road, which has been using for a long time was closed by the 2nd and 3rd Respondents recently. This was established by a spate of documents, mostly affidavits tendered by respectable people of the area. There had been two police observation reports, and the first one is favourable to the 1st Respondent and the second one to the 2nd and 3rd Respondents. The learned Magistrate has, in the facts and circumstances of the case, accepted the first one as the one which portrays the true situation.

The main complaint of the 2nd and 3rd Respondents is that there is an alternative road from the northern boundary of the 1st Respondent's land. However there is no evidence that the 1st Respondent and the intervenient Respondents had been using that road before the alleged obstruction of the disputed road.

The argument of the learned counsel for the 2nd and 3rd Respondents that there was no threat to the breach of peace and therefore the Magistrate's Court had no jurisdiction cannot be acceptable when the proceedings are initiated by the police as opposed to an individual. When proceedings are instituted by the police threat to the breach of the peace is presumed. Vide Punchi Nona v. Padumasena [1994] 2 Sri LR 117.

What the learned Magistrate has ordered is a provisional one until the rights of the parties are decided by the District Court. If the 2nd and 3rd Respondents think that there is an alternative road although less convenient, they can file a civil case in the District Court to vindicate their rights.

I see no reason to interfere with the Judgment of the High Court, which affirmed the order of the Magistrate's Court.

Appeal is dismissed without costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

B. W. SENARATH TUSANTHA VS A. D.NILUKA SEUWANDI

HON JANAK DE SILVA J.

Case No.CA(PHC) 152/2012
Kegalle High Court Case No. 3962/Rev
Magistrate Court Ruwanwella
Case No. 22060

Batahena Wedaralalage Senarath
Tusantha
Dodawatta,Nuriya

Plaintiff-Respondent-Appellant

Vs.

Owitagedara Gamaralalage Senarathne,

Respondent-Petitioner-Respondent

01. Anthoni Durage Niluka Seuwandi and others

1A,1B,1C,1D Substituted Respondent
Petitioner-Respondents

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: Sunil Abeyratne with Thashira Gunatilake for Plaintiff-Respondent-Appellant
N.T.S. Kularatne with Gamini Karunanayake for 1A, 1B, 1C, 1D and 1E Substituted RespondentPetitioner-Respondents

Written Submissions tendered on: Plaintiff-Respondent-Appellant on 20th March 2018
1A, 18, 1C, 1D and 1E Substituted Respondent-Petitioner-Respondents on 15th March 2018

Argued on: 14th February 2018

Decided on: 25th May 2018

Janak De Silva J.

This is an appeal preferred by the Plaintiff-Respondent-Appellant (Appellant) against the order of the High Court of Kegalle dated 17th September 2012 by which the learned High Court Judge, acting in revision, set aside the order of the learned Magistrate of Ruwanwella dated 15th September 2010

The case of the Appellant is that he was in possession of the premises in dispute when the Respondent-Petitioner-Respondent (Respondent) forcibly dispossessed him on 29.08.2010. The Appellant instituted proceedings in the Magistrates Court under section 66(1)(b) of the Primary Court Procedure Act (Act) on 14.09.2010 and on 15.09.2010 obtained an interim order ex parte allowing him to re-enter the premises in dispute after removing the padlock placed by the Respondent. On 15.09.2010 notice was also issued on the Respondent. The fiscal executed the interim order and reported to court on 23.09.2010. The Respondent appeared in court on 29.09.2010 and sought a date to file objections and was given time until 20.10.2010 to do so which was later extended to 10.11.2010.

On 12.11.2010 the Respondent filed a revision application in the High Court of Kegalle and obtained a stay order staying further proceedings in the Magistrates Court of Ruwanwella. The learned High Court judge after hearing parties revised and set aside the order dated 15.09.2010 made by the learned Magistrate. Hence this appeal by the Appellant.

The only ground on which the learned High Court judge set side the order of Magistrate Court of Ruwanwella was that the learned Magistrate had erred in issuing an interim order in terms of section 67(3) of the Act after concluding that there was no threat or likelihood of a breach of peace.

Hence undoubtedly, the Magistrates Court of Ruwanwella did have the power to correct the clerical error in the order made on 15.09.2010 upon an application been made. lt is unfortunate that no such application was made by the Appellant before the Magistrates Court of Ruwanwella. That would have obviated the need for this matter to languish before two appellate courts for over eight years.

In Gunasena v. Bandaratilleke 3 Wijetunga J. held as follows:

"The authorities ... clearly indicate that a court has inherent power to repair an injury caused to a party by its own mistake. Once it is recognized that a court would not allow a party to suffer by reason of its own mistake, it must follow that corrective action should be taken as expeditiously as possible, within the framework of the law, to remedy the injury caused thereby. The modalities are best left to such court and would depend on the nature of the error." (emphasis added)

The question that engrossed my anxious consideration was whether the clerical error can be corrected by another court at appeal or revision stage as in the instant case. I am reassured by the following statement of H.N.G. Fernando S.P.J. in Moosajees Ltd. v. Fernando4

"This Court has also exercised an inherent power to correct error in a judgement which has occurred per incuriam. I doubt whether this power is exercisable only by the Judge who has pronounced the judgement; for if so, there would be no means of correcting even a manifest clerical error discovered in the judgement after the death or retirement of the Judge who pronounced it." 5 (emphasis added)

2 Fernandopulle v. De Silva and others [(1996) 1 Sri.L.R.70], Gunasena v. Bandaratilleke [(2000) 1 Sri.L.R. 292]
3lbid.
468 N.L.R. 414
5 Ibid. page 419

Furthermore, the word "court" in section 189(1) of the Code is defined in section 5 of the Code to mean, "unless there is something in the subject or context repugnant thereto, a Judge empowered by law to act judicially alone, or a body of Judges empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially". I am of the view that in the instant case, there is nothing in the subject or context repugnant to ascribing a judge exercising revisionary or appellate jurisdiction to the word "court" where the impugned judgement or order contains a clerical error. If not, a party may seek to obtain undue advantage from a clerical error committed by court by impugning a judgement or order the very next day after it is delivered and arguing that the original court cannot thereafter correct the clerical error in the judgement or order. Accordingly, I am of the view that the learned High Court judge should have corrected the obvious clerical error and erred in failing to do so.

There is a further reason as to why the High Court should not have exercised revisionary jurisdiction against the interim order made by the Magistrate in terms of section 67(3) of the Act. That interim order was made pending the conclusion of the inquiry. The Respondent had and indeed was given the opportunity to file objections. Instead, the Respondent rushed to the High Court to set aside the interim order made ex parte.

It is trite law that revisionary powers will not be exercised where the aggrieved party has another remedy unless there are exceptional circumstances. 6 ln the instant case the Respondent did not establish any exceptional circumstances before the High Court. One ground urged by the Respondent as forming exceptional circumstances, was that the interim order was made ex parte. It is correct that the interim order was made by the learned Magistrate on the very date the plaint was supported by the Appellant. However, as held in Muthukumarasamy v. Nannithamby the Magistrate/Primary Court has power even on the day information is filed to issue an interim order. This was quoted with approval by the Supreme Court in Hotel Galaxy Ltd. v. Mercantile Hotel Management Ltd.

6 Hotel Galaxy Ltd. v. Mercantile Hotel Management Ltd. [(1987) 1 Sri.L.R. 5]
7 (1983) 1 Sri Kantha's Report 55
8 (1987) 1 Sri.L.R. 5

The learned Counsel for the 1A, 1B, 1C, 1D and 1E Substituted Respondent-Petitioner Respondents submitted that the order made by the learned Magistrate on 15.09.2010 is contrary to section 66(6) of the Act which requires the Magistrate to, before fixing the case for inquiry, make every effort to induce the parties to arrive at a settlement which is a fatal irregularity. In Ali v. Abdeen 9 U.de Z. Gunawardena J. held that the Primary Court was under a peremptory duty to encourage or make every effort to facilitate dispute settlement before assuming jurisdiction to hold an inquiry into a matter of possession and that making of such an endeavor by Court 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. I am in respectful agreement with the views expressed therein. However, that duty cannot prevent the court making an interim order under section 67(3) of the Act. Adopting the interpretation proposed by the learned Counsel for the 1A, 1B, 1C, 1D and 1E Substituted Respondent- Petitioner-Respondents will negate the very purpose for which the power is given to the court under section 67(3) of the Act. Furthermore, the Magistrate/Primary Court has power even on the day information is filed to issue an interim order.10

For the foregoing reasons, I set aside the judgement of the learned High Court Judge of Kegalle dated 17th September 2012. I further direct the Magistrates Court of Ruwanwella to continue the proceedings according to law from the point it was stayed by the High Court and conclude the matter expeditiously.

The record does not indicate whether the possession of the disputed premises was handed back to the Respondent as a result of the judgement of the learned High Court judge of Kegalle. It is the duty of this court to restore possession of the disputed premises back to the Appellant if it has been so handed over to the Respondent. Justice requires that the Appellant should be restored to the position he occupied before the invalid order was made, for it is a rule that the court will not permit a suitor to suffer by reason of a wrongful act. Actus curiae neminem gravabit (An act of the court shall prejudice no man). Court will so far as possible put him in the same

9 (2001) 1 Sri.L.R. 413
10 Muthukumarasamy v. Nannithamby [(1983) 1 Sri Kantha's Report 55], Hotel Galaxy Ltd. v. Mercantile Hotel Management Ltd. [(1987) 1 Sri L.R. 5]

position which he would have occupied if the wrong order had not been made. Accordingly, if the possession of the disputed premises has been handed back to the Respondent as a result of the judgement of the learned High Court judge of Kegalle, I direct the fiscal of High Court of Kegalle to give possession of the disputed premises back to the Appellant. This direction will not in any way prevent the learned Magistrate of Ruwanwella from making an appropriate order according to law once proceedings recommence before him as directed by this court

Appeal allowed. The Appellant is entitled to his costs both in the High Court as well as in this court.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

H. GAMLATHGE ANURA RANASINGHE VS O.I.C GAMPAHA

HON JANAK DE SILVA,J.

Case No: CA(PHC) 74/2014
H.C. Gampaha Case No: 32/2011/REV
M.C. Gampaha Case No: 78555/PCA

In the matter of a Revisionary Application under and in terms of Section 154P (3) (b) of the Constitution of the Democratic Socialist Republic of Sri Lanka read together with the Provisions of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990

1. Hakurugala Gamlathge Anura
Ranasinghe

2. Jamburegoda Athula Gamage
Both of No.160, Yakkala Road,
Gampaha.

First Party Petitioners

Vs.

Officer in Charge
Police Headquarters,
Gampaha.

Plaintiff-Respondent

1. Namaratne Bamuarachchilage
Shirantha
No. 191, Owitiwatta,
Nittambuwa.

2. Wijekon Weebadda Ralalage Upali
Wijekon
No. 263,
Colombo Road,
Kegalle.

Second Party Respondents

1. Hapurugala Gamalathge Anura
Ranasinghe
No. 142, Pelawatta,
Nedun Vihara Road,
Kiriella.

2. Prema Mallawarachchi
No. 160, Yakkala Road,
Gampaha.

First Intervenient Party
Respondents

1. Rajakaruna Sennanayake Panditha
Herath Wasala Kuruppu Mudiyanse
Ralahamige Sri Jayantha Ajith
Marapana

2. Dissanayake Mudiyanselage Sisira
Leelananda Dissanayake
Alubogalla, Kendagolla,
Badulla.

3. Hewa Dewage Bastian
No. 91, Somawathie,
Aluthpura, Mahindapura, Senuwara.

Second Intervenient Party
Respondents

AND NOW BETWEEN

In the matter of an Appeal under and
in terms of Article 154 (6) of the
Constitution read with Article 138 thereof.

1. Hakurugala Gamlathge Anura
Ranasinghe

2. Jamburegoda Athula Gamage
Both of No.160, Yakkala Road,
Gampaha.

First Party Petitioners-Appellants

Vs.

Officer in Charge
Police Headquarters,
Gampaha.

Plaintiff-Respondent-Respondent

1. Namaratne Bamuarachchilage
Shirantha
No. 191, Owitiwatta,
Nittambuwa.

2. Wijekon Weebadda Ralalage Upali
Wijekon
No. 263, Colombo Road,
Kegalle.

Second Party Respondents-Respondents

1. Hapurugala Gamalathge Anura
Ranasinghe
No. 142, Pelawatta,
Nedun Vihara Road,
Kiriella.

First Intervenient Party
Respondent-Respondent

2. Jamburugoda Gamage Sreemathie
Mangalika
No. 134/11,
Jaya Mawatha,
Kadawatha.

Substituted First Intervenient Party
Respondent-Respondent

1. Rajakaruna Sennanayake Panditha
Herath Wasala Kuruppu Mudiyanse
Ralahamige
Sri Jayantha Ajith
Marapana

Intervenient Party
Respondents-Respondents

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: Srimal Seneviratne for First Party Petitioners-Appellants
S. A. D .S. Suraweera for the Second Party Respondents-Respondents

Written Submissions tendered on: First Party Petitioner Appellants on 03.09.2018
Second Party Respondents-Respondents on 25.10.2018

Decided on: 04.04.2019

Janak De Silva J.

This is an appeal against the order of the learned High Court Judge of the Western Province holden in Gampaha dated 07.07.2014.

It arises from proceedings filed in Magistrates Court of Gampaha under Part VII of the Primary Courts Procedure Act (Act). The learned Magistrate after due inquiry held that the Second Party Respondents-Respondents (Respondents) are entitled to the possession of the land in dispute. The First Party Petitioners-Appellants (Appellants) moved by way of revision to the High Court which was dismissed. Hence this appeal.

The learned Magistrate concluded that the Appellants were in possession of the land in dispute on the date information was filed in Court. However, he concluded that the Appellants had obtained possession by dispossessing the Respondents within a period of two months prior to the date of institution of proceedings. It is on this basis that he made order that the Respondents are entitled to the possession of the land in dispute. The appellants are seeking to assail this finding.

It must be borne in mind that this Court is examining the order made by the learned High Court Judge in the exercise of its revisionary jurisdiction. The learned High Court Judge must examine whether there are exceptional circumstances to interfere with the order made by the learned Magistrate. In the instant case, the learned High Court Judge has concluded that the Appellants have failed to establish exceptional circumstances. It is this conclusion that Court must examine.

The learned counsel for the Appellants firstly submitted that the learned Magistrate erred in proceeding to examine whether the Appellants had dispossessed the Respondents after concluding that the Appellants were in fact in possession of the land in dispute on the date information was filed.

I have no hesitation in rejecting this submission. The duty of a Magistrate in an inquiry under Part VII of the Act was succinctly stated by Sharvananda J. (as he was then) in Ramalingam v. Thangarajah [(1982) 2 Sri.L.R. 693 at 698] as follows:

In the instant case the learned Magistrate has correctly proceeded to examine whether the Appellants obtained possession after dispossessing the Respondents within a period of two months prior to the institution of proceedings.

The learned counsel for the Appellants next contended that the learned Magistrate has failed to properly evaluate the evidence resulting in the erroneous finding that the Appellants had dispossessed the Respondents within a period of two months previous to the institution of proceedings. He submitted that the learned High Court Judge erred in failing to accept this position.

In particular he submitted that the learned Magistrate failed to take due cognisance of important items of evidence in favour of the Appellants such as the fact that the Appellants had employed a security guard to guard the land in dispute and the evidence of the brother of the security guard hired by the Appellants to the effect that his brother had colluded with the Respondents to deprive the Appellants possession of the land in dispute. In response the learned counsel for the Respondent submitted that there was ample evidence to prove that the Appellants and were not in possession of the land in dispute such as evidence of the Appellants renting out premises, the time gap between the alleged dispossession of the Appellants and the failure of the Appellants to complain to the Police without delay.

In addressing these submissions, it is important to bear in mind that the learned High Court Judge was exercising revisionary jurisdiction. The scope of such revisionary jurisdiction has been succinctly explained by Ranjith Silva J. in R.P. Nandawathie and another vs. K. Mahindasena [CA(PHC) 242/2006; C.A.M. 03.11.2009] as follows:

"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."

It is also to be borne in mind that this Court is called upon to exercise appellate jurisdiction over the judgment of the learned High Court Judge and the scope of that jurisdiction was aptly described by Ranjith Silva J. in R.P. Nandawathie and another VS. K. Mahindasena (supra) as follows:

"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."

I am in respectful agreement with the legal principles enunciated above. The learned counsel for the Appellants is effectively seeking a re-evaluation of the evidence in the lower court.

I hold that this Court cannot in appeal seek to re-evaluate the evidence before the learned Magistrate. The learned High Court Judge having correctly identified the legal principles guiding the exercise of his revisionary jurisdiction held that the Appellants have failed to establish exceptional circumstances. As pointed out by Amaratunga J. in Dharmaratne and another v. Palm Paradise Cabanas Ltd. and others [(2003) 3 Sri.L.R. 24 at 30] exceptional circumstances is the process by which the court selects the cases in respect of which the extraordinary method of rectification should be adopted, if such a selection process is not there revisionary jurisdiction of this court will become a gateway of every litigant to make a second appeal in the garb of a Revision Application or to make an appeal in situations where the legislature has not given a right of appeal.

Accordingly, the learned High Court Judge was correct in concluding that the Appellants had failed to establish exceptional circumstances warranting the exercise of revisionary jurisdiction.

For the foregoing reasons, I see no reason to interfere with the order of the learned High Court Judge of the Western Province holden in Gampaha dated 07.07.2014.

Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

NOOR SUVEIRA VS JULIAN ROBINSON

HON JANAK DE SILVA, J.

Case No. CA (PHC) APN 79/2017

H.C. Colombo Case No. HCRA/181/2016
M.C. Colombo Case No. 2781/06/2012

In the matter of an application for Revision under and in terms of Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

01. Noor Suveira

02. A.S.M.Azwar

Both of them are at
No.157/39, Mahawatte Road,
Colombo 14.

Respondents-Petitioners-Petitioners
Vs.

01. Julian Pushpadevi (deceased)

02. Julian Robinson

03. Duleeka Nishanthi

All are at,
No.151/38, Mahawatte Road
Colombo 14.

Petitioners-Respondents-Respondents

Before : K.K. Wickremasinghe J.
Janak De Silva J.

Counsel : Saliya Pieris P.C. with Rasika Dissanayake and W. Wijeratne for Respondents-PetitionersPetitioners
Nevil Abeyratne P.C. with A. Dayaratne for Petitioners-Respondents-Respondents

Decided on : 02.11.2018

Janak De Silva J.

This is an application in revision made against the order of the learned High Court Judge of the Western Province holden in Colombo dated 26.05.2017.

The chronology of events material to this application began when the father of the Petitioners Respondents-Respondents (Respondents) Joseph Julian instituted action bearing No. 17070/L in the District Court of Colombo against the father of the 2nd Respondent-Petitioner-Petitioner A.S.M. Ashroff in 1995. The said action was dismissed in 2001 and the father of the Respondents preferred an appeal to the Civil Appellate High Court of Colombo which allowed the appeal and directed trial de novo on 11.11.2011.

While the action in D.C. Colombo case no. 17070/L was pending the Respondents instituted proceedings in M.C. Colombo case no. 2781/06/2012 under the Primary Courts Procedure Act (Act) by way of private information in relation to a right of way. The learned Magistrate made order under section 69 of the Act declaring the Respondents entitled to the right of way. The Petitioners filed a revision application against the said order in the Provincial High Court of Colombo case no. HCRA 150/2012. The learned High Court Judge dismissed the said revision application by order dated 09.10.2015. The Petitioners preferred an appeal to this Court against the said order which appeal is currently pending.

Thereafter, the Respondents made an application to execute the writ in the Magistrates Court based on the order of dismissal dated 09.10.2015 made in High Court Colombo case no. HCRA 150/2012. The Petitioner objected to this application. The learned Magistrate after hearing parties delivered order dated 26.09.2016 allowing the application of the Respondents to execute the writ.

Thereafter the Petitioners preferred a revision application bearing case no. HCRA 181/2016 to the Provincial High Court of the Western Province holden in Colombo and obtained a stay order staying the operation of the order dated 26.09.2016. After due inquiry, the learned High Court Judge by his order dated 26.05.2017 dismissed the revision application with costs fixed at Rs. 25,000/=. The Petitioners then preferred this revision application against the said order dated 26.05.2017.

The Petitioners are challenging the order dated 26.05.2017 made in HCRA 181/2016 on two main grounds. Firstly, they submit that the learned High Court Judge of the Western Provincial High Court holden in Colombo as well as the learned Magistrate of the Magistrates Court of Colombo erred in law by failing to appreciate the fact that the Magistrates Court has no jurisdiction to hear and determine action instituted under the provisions of section 66 of the Act as the District Court action in case no. 17070/L was pending where the Respondents had sought the same relief as sought in the proceedings instituted under section 66 of the Act. Secondly, they submit that the learned High Court Judge of the Western Provincial High Court holden in Colombo as well as the learned Magistrate of the Magistrates Court of Colombo erred in law by failing to appreciate the fact that irreparable loss and damage would be caused to the Petitioners by allowing the Respondents to execute the writ pending the appeal.

No automatic stay of proceedings by mere lodging of appeal

I will first discuss the second ground raised by the Petitioners to resist the execution of the writ. In essence the argument of the Petitioners is that the mere lodging of an appeal in the Court of Appeal against the order dated 09.10.2015 made in the Provincial High Court of Colombo case bearing no. HCRA 150/2012 automatically stays the execution of the said order.

There was at one time conflicting views expressed on this question. In R.A. Kusum Kanthilatha v. lndrasiri [(2005) 1 Sri. L. R. 411) this Court 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 under Part VII of the Act, the original court should stay its hand until the determination of the appeal. A different view was taken by this Court in R.P. Nandawathie and another v. K. Mahindasena [(CA(PHC) 242/2006, C.A.M 03.11.2009) where it was held inter alia that the mere lodging of an appeal does not ipso facto stay the execution of the order of the High Court and that 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.

In order to resolve the conflict arising from these two decisions, a divisional bench of this Court was constituted in Jayantha Wickremasinghe Gunasekera alias Kananke Dhammadinna v. Jayatissa Wickremasinghe Gunasekera and others [CA(PHC)APN 17/2006; C.A.M. 30.09.2011) where it was held 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 154P (3)(b) of the Constitution to the Court of Appeal does not automatically stay the execution of the order of the High Court. The divisional bench followed the decision in R.P. Nandawathie and another v. K. Mahindasena (supra) subject to a slight variation as to the basis of the decision.

The question arise which decision must be followed by this bench. In Walker Sons and Co. (UK) Ltd. v. Gunatilake and others [(1978-79-80) 1 Sri.LR. 231 at 245) Thamotheram J. quoted with approval the following statement of Basnayake C.J. in Bandahamy v. Senanayake (62 N.L.R. 313):

"We have in this country over the years developed a cursus curia of our own which may be summarised thus:

a) One judge sitting alone as a rule follows a decision of another sitting alone. Where a judge sitting alone finds himself unable to follow the decision of another sitting alone the practice is to reserve the matter for the decision of more than one judge.

b) A judge sitting alone regards himself as bound by the decision of two or more judges.

c) Two judges sitting together also as a rule follow the decision of two judges. Where two judges sitting together find themselves unable to follow a decision of two judges, the practice in such cases is also to reserve the case for the decision of a fuller bench although the Courts Ordinance does not make express provision in that behalf as in the case of a single judge.

d) Two judges sitting together regard themselves as bound by a decision of three or more judges.

e) Three judges as a rule follow a unanimous decision of three judges, but if three judges sitting together find themselves unable to follow a unanimous decision of three judges a fuller bench would be constituted for the purpose of deciding the question involved.

f) Four judges when unanimous are regarded as binding on all benches consisting of less than four. In other words, a bench numerically inferior regards itself as bounded by the unanimous decision of a bench numerically superior.

g) The unanimous decision of a collective Court i.e; a bench consisting of all the judges for the time being constituting the Court is regarded as binding on a bench not consisting of all the judges for the time being constituting the Court even though that bench is numerically superior to the collective court owing to the increase in the number of judges for the time being constituting the Court." (emphasis added)

Accordingly, I am inclined to take the view that the decision in Jayantha Wickremasinghe Gunasekera alias Kananke Dhammadinna v. Jayatissa Wickremasinghe Gunasekera and others (supra) is binding on this Court. Therefore, I am of the view that the learned Magistrate was correct in allowing the application of the Respondents to execute the writ in M.C. Colombo case no. 2781/06/2012 by his order dated 26.09.2016 and that the learned High Court Judge was correct in not interfering with the said order by his order dated 26.05.2017.

Similar Relief in both the District Court and Primary Court

The Petitioner submits that the learned High Court Judge of the High Court of the Western Province holden in Colombo as well as the learned Magistrate of the Magistrates Court of Colombo erred in law by failing to appreciate the fact that the Magistrates Court has no jurisdiction to hear and determine action instituted under the provisions of section 66 of the Act as the District Court action in case no. 17070/L was pending where the Respondents had sought the same relief as sought in the proceedings instituted under section 66 of the Act.

The learned High Court Judge has rejected this submission by relying on the decision in Kanagasabai v. Mylwaganam (78 N.L.R. 280) where it was held that the mere fact that a suit is pending in a civil court does not deprive the Magistrate of jurisdiction to make an order under Sections 62 and 63 of the Administration of Justice Law, No. 44 of 1973. The learned counsel for the Petitioner submits that the facts of the said case is totally different from the facts of this case. He submits that in Kanagasabai v. Mylwaganam (supra) the proceedings in the Primary Court was filed prior to the institution of civil proceedings whereas in the instant case the proceedings in the Primary Court was filed while a civil action was pending in the District Court.

However, I am of the view that the issue of whether the Magistrates Court has no jurisdiction to hear and determine action instituted under the provisions of section 66 of the Act as the District Court action in case no. 17070/L was pending where the Respondents had sought the same relief as sought in the proceedings instituted under section 66 of the Act does not arise for consideration in this application. This application originated with the Petitioner objecting to the application made by the Respondent to execute the writ in M.C. Colombo case no. 2781/06/2012. The learned Magistrate by his order dated 26.09.2016 allowed the application. The Petitioner then moved in revision to the High Court which dismissed his application by order dated 26.05.2017 against which this revision application was filed by the Petitioner.

The issue on jurisdiction was specifically raised before the learned Magistrate in M.C. Colombo case no. 2781/06/2012 as well as before the learned High Court Judge in HCRA 150/2012 in the revision application made against the order in M.C. Colombo case no. 2781/06/2012. In both instances the objection was overruled. As pointed out earlier there is an appeal pending against the judgment in the Provincial High Court of Colombo case bearing no. HCRA 150/2012. The issue raised by the Petitioner on proceedings in two courts is a matter that may have to be considered, if permitted by law, in the appeal filed against the order dated 09.10.2015 made in the Provincial High Court of Colombo bearing no. HCRA 150/2012. That issue cannot be raised in these proceedings.

For the reasons aforesaid, I see no basis to interfere with the order of the learned High Court Judge of the Western Province holden in Colombo dated 26.05.2017.

That leaves the question of costs to be decided. The learned High Court Judge in H.C. Colombo Case No. HCRA/181/2016 awarded Rs. 25,000/= as costs to the Respondent as he was of the view that the Petitioner had by resorting to several actions over a period of five years negated the intention of the legislature in providing a speedy remedy to prevent the breach of peace.

In Leon Peris Kumarasinghe v. Samantha Weliweriya [S.C. (Spl) L.A. No. 37 /2012, S.C.M. 12.11.2013) Tilakawardane J. stated (at page 7):

"The Court notes that the time has come for the Supreme Court to affirmatively determine the utility of punitive costs with the primary view of deterrence. The decision to award punitive damages is consistent with similar decisions in foreign jurisdictions including [but not limited to] the Indian Case of Reliance Mobile v Hari Chand Gupta (2006) (CPJ 73 NC), where punitive damages were awarded, for the production of a false affidavit, with the intention of preventing such actions in the future and Polye v Papaki and Another [2001](1 LRC 170), where the Supreme Court of Papua New Guinea determined that the jurisdiction of the Supreme Court was invoked without reasonable cause and amounted to a misconduct on the part of the Appellant which resulted in unnecessary expenditure by the Respondents and granted punitive damages accordingly.

This Court cannot over emphasize the need to appropriately deal with litigants who attempt to abuse the process of Court and thereby cause unnecessary delay and costs to other parties in order to ensure that, in the future, litigants will not be tempted to indulge in such ill-conceived practices."

The decision in Jayantha Wickremasinghe Gunasekera alias Kananke Dhammadinna v. Jayatissa Wickremasinghe Gunasekera and others (supra) was delivered on 30.09.2011 thereby clarifying an issue on which there was a divergence of judicial view up to that point of time. However, the Petitioner has over a period of six years from 2012 resorted to several actions in order to delay the execution of the writ of eviction in the Magistrates Court on the basis of the pending appeal. The Petitioners did not pursue any action to obtain any interim relief staying the operation of the judgment in the Provincial High Court of Colombo case no. HCRA 150/2012. Furthermore, the District Court of Colombo delivered judgment on 27.10.2016 in D.C. Colombo case no. 17070/L by which the Respondents were given the right of way. Yet the Petitioner maintained this application clearly in view of having obtained a stay order staying the execution of the writ in the Magistrates Court.

In view of the above facts, I am of the view that Court is justified in directing the Petitioners to pay the Respondents costs of Rs. 1,00,000/=.

Application is dismissed with costs fixed at Rs. 1,00,000/=.

Judge of the Court of Appeal

K.K. Wickremasinghe J.
I agree.

Judge of the Court of Appeal

DILSHAN NERIOUS ROGER FERNANDO VS. DONE LAKSHMI RANASINGHE

HON. W. M. M. MALINIE GUNARATNE J

CA (PHC) APN 47/2015
High Court Colombo
Revision Application
No. HCRA 122/2014
M. C. Case No.3787/4/2014

In the matter of an application for revision under and in terms of Article 138 of the Constitution read with the High Court of the Provinces (Special Provisions) Act No.19 of 1990.

Officer in Charge,
Police Station,
Welikada.

Complainant

VS

01. Done Lakshmi Ranasinghe,
No. 615/06A, Rajagiriya Garden,
Nawala Road, Rajagiriya.

1st Party Respondent

02. Dilshan Nerious Roger Fernando,
No. 24B, Fairmount Flats,
Buthgamuwa Road,
Rajagiriya.

2nd Party Respondent

AND BETWEEN

Done Lakshmi Ranasinghe,
No. 615/06A, Rajagiriya Garden,
Nawala Road, Rajagiriya.

1st Party Respondent Petitioner

Vs

Officer in Charge,
Police Station, Welikada.

Complainant-Respondent

Dilshan Nerious Roger Fernando,
No.24B, Fairmount Flats,
Buthgamuwa Road,
Rajagiriya.

2nd Party Respondent Respondent.

AND NOW BETWEEN

Dilshan Nerious Roger Fernando,
No.24B, Fairmount Flats,
Buthgamuwa Road,
Rajagiriya.

2nd Party Respondent Respondent- Petitioner

Vs

Done Lakshmi Ranasinghe,
No. 615/06A, Rajagiriya Garden,
Nawala Road, Rajagiriya.

1st Party Respondent Petitioner - Respondent

Officer in Charge,
Police Station,
Welikada.

Complainant - Respondent Respondent

BEFORE : W. M. M. Malinie Gunaratne, J. and
P .R. Walgama J.

COUNSEL : Asthika Devendra with Lilan Warusuvithana for the Petitioner.
Saliya Pieris for the Respondent.

Argued on : 03.07.2015

Written submissions
filed on : 21.07.2015

Decided on : 08.02.2016

Malinie Gunaratne, J.

The 2nd Party - Respondent - Petitioner (hereinafter referred to as the Petitioner) has invoked the jurisdiction of this Court to intervene by setting aside the Order of the learned High Court Judge of Colombo dated 15.07.2014.

The facts that need to be mentioned in brief to appreciate the issue involved in this application are as follows:-

Pursuant to information filed by the Officer in Charge of Welikada Police Station, in the Magistrate's Court of Colombo in terms of Section 66 of the Primary Court Procedure Act, the notice was displayed at the place of dispute and a date was fixed for affidavits of parties.

When the case was called on the next date (02.06.2014) Counsel for the Respondent sought a further date to submit her affidavit. The learned Primary Court Judge refused the said application and the matter was concluded before the Primary Court.

Aggrieved by the said Order of the learned Magistrate dated 02.06.2014, the 1st Party Petitioner - Respondent (hereinafter referred to as the Respondent) preferred a Revision Application to the Provincial High Court of Colombo to have the Order of the learned Magistrate set aside.

The learned High Court Judge revised the said Order of the Magistrate dated 15.07.2014 and as a result, the proceedings of the Primary Court re commenced. Upon an application made by the Respondent, the learned Magistrate has issued an interim order dated 05.11.2014, against the Petitioner preventing him altering the disputed premises adverse to the Respondent's rights until the final determination of the case.

After receiving notices of the said interim order, the Petitioner appeared before the Court and contended that since the dispute is being considered in the District Court of Colombo, the learned Primary Court Judge lacks jurisdiction to determine the dispute preferred under the Section 66 of the Primary Court Procedure Act.

The learned Primary Court Judge by her Order dated 16.03.2015 rejected the aforesaid objection. In this backdrop, the Petitioner has preferred this application after ten months challenging the Order made by the learned High Court Judge dated 15.07.2014.

This application was listed for support on 03.07.2015. Before this application was supported by the Counsel for the Petitioner, the learned Counsel for the Respondent raised four preliminary objections on the maintainability of this application and objected to the issuance of notice and to granting interim reliefs and moved to have rejected and dismissed the application in limine.

Learned Counsel for the parties made submissions and subsequently tendered written submissions.

Counsel for the Respondent submitted that this application should be rejected and dismissed in limine for the following reasons:

(a) The Petitioner had acquiesced and / or accepted the Order of the Provincial High Court and thereby estopped from seeking any relief from this Court against the said Order of the Provincial High Court dated 15.07.2014;

(b) There is delay and or/laches on the part of the Petitioner and that no acceptable explanation has been given;

(c) the Petitioner has suppressed and or misrepresented material facts;

(d) the Petitioner has failed to tender material documents and exhibits and therefore failed to comply with the Court of appeal (Appellate Procedure) Rules 1990.

The first objection on which the learned Counsel for Respondent relied is acquiescing and/or accepting the Order of the learned High Court Judge dated 15.07.2014. Elaborating the said objection the learned Counsel contended, knowing that the learned High Court Judge had made an order, the Petitioner disregarding it, on 18.12.2014 made an application before the learned Magistrate to raise a preliminary objection on the next date. Further contended, before making that application the Petitioner was present and I or represented by a Counsel on several dates. The stance of the Counsel is, since 18.12.2014 the Petitioner was present and I or represented by a Counsel without challenging the order made by the learned High Court Judge dated 15.07.2014, and thereby the Petitioner had acquiesced and I or accepted the said Order of the learned High Court Judge. His contention is that by reason of his acquiescence, the Petitioner is precluded in law from invoking the Revisionary Jurisdiction of this Court.

It is the contention of the Counsel for the Petitioner, whether the impugned order was challenged or not, a party cannot acquiesce to an order which is on the face of it a nullity. Then a question arises, having knowledge of the said impugned order at that time why the Petitioner did not challenge it. Instead of that the Petitioner has raised a preliminary objection with regard to the jurisdiction of the Primary Court. It is relevant to note that the Petitioner has not given a plausible answer for the question.

In support of the submissions made by the learned Counsel for the Respondent, the attention of the Court has been drawn to several decided cases. It was decided in Nagalingam vs. Lakshman de Mel 78 NLR 231, if a party, having participated in a prolonged proceedings without any objection and having taken the chance of the final outcome of the proceedings, is precluded from raising any objection. Further, it was held, the jurisdictional defect, if any, has been cured by the Petitioner's consent and acquiescence.

In Alagappa Chitty vs. Arumugam Chitty (2 C.L. Rep.202) it was held, "Where jurisdiction over the subject matter exists requiring only to be invoked in the right way, the party who has invited or allowed the Court to exercise it in a wrong way cannot afterwards turn round to challenge the legality of proceedings due to his own invitation or negligence.

It is to be noted, that the consent or lack of objection prevents the Petitioner from relying on the irregularity and from complaining the illegality of the Order. The Petitioner had not objected to the proceedings continuing after he appeared or / represented before the Magistrate's Court after on 18.12.2014, on the basis that the purported Order made by the learned High Court Judge on 15.07.2014. Instead, the Petitioner raised a

preliminary objection with regard to the jurisdiction of the Magistrate's Court, complaining that since the dispute is being considered in the District Court of Colombo the learned Primary Court Judge lacks jurisdiction to determine the dispute. When the said preliminary objection was overruled and dismissed, the Petitioner has decided to invoke the revisionary jurisdiction of this Court.

As has been contended by the Counsel for the Respondent, I have no difficulty in upholding the contention that by reason of the acquiescence, the Petitioner is precluded in law from invoking the Revisionary Jurisdiction of this Court.

The next objection that has to be considered is namely, undue delay in filing this application. Counsel for the Petitioner submitted that there is no undue delay in the present application and even if there may be a short delay that too has been explained by the Petitioner.

It is relevant to note, that the Petitioner is seeking by an application filed in the Court of Appeal Registry on the 12th of May 2015, to claim from this Court discretionary relief in respect of an alleged order made on 15.07.2014. As such, there was a delay of over ten months since the making of the order for these papers to be filed, in the Court of Appeal. In the case of The Attorney General Vs. Kunchitambu 46 N.L.R. 401, the delay of three months was held to disentitle the Petitioner for relief.Where there has been a delay in discretionary relief, it is essential that reasons for the delay should be set out in the Petition. (Dasanayake vs. Fernando 71 N. L. R. 356.)ow it is necessary to consider, whether the explanation of the Petitioner with regard to his delay is acceptable.

It is stated in Paragraph 14 of the Petition, since the owner of the premises in question has already sought to resolve the dispute with the Respondent before the District Court, he did not seek to challenge the Order of the learned High Court Judge dated 15.07.2014. He further stated that since the preliminary objection has been overruled by the learned Magistrate he was compelled to challenge the said Order of the learned High Court Judge dated 15.07.2014. In the written submissions filed in this Court by the Respondent, it was contended that, since the matter in dispute has being considered in the appropriate forum, Petitioner bonafide advised himself not to challenge the order of the learned High Court Judge at that juncture and sought to take up a preliminary objection before the Primary Court with regard to the maintainability of the action.

The stance of the Counsel for the Petitioner is when the Court is invited to dismiss a revisionary application on the ground of delay, the same should be carefully considered. To substantiate this position the learned Counsel for the Petitioner has drawn the attention of this Court to several decided cases.The Court must carefully consider the explanation adduced for the delay. The question whether the delay is fatal to an application in revision depends on the particular facts and circumstances of the case.

The Petitioner has been silent over the application for over ten months without any reasonable reason. It was revealed at the hearing of this case, that before filing this application the Petitioner had made an application after ten months to the High Court seeking to set aside the said impugned order made by the learned High Court Judge on 15.07.2014 on the basis that the order made by the learned High Court Judge was per inquiram. That application has been dismissed.It is relevant to note upon an application made by the Respondent, the learned Magistrate has issued an interim order dated 05.11.2014 against the Petitioner preventing him from altering the disputed premises adverse to the Respondent's rights, until the final determination of the case. The Respondent after complaining to the Magistrate's Court that the Petitioner has violated the interim order the Petitioner had been charged for contempt of Court. I am of the view, that the reason for filing this belated application is because the Petitioner had been charged for contempt of Court.The long period of inaction and failure to seek relief on the part of the Petitioner was fatal to an application in Revision. The Court has discretion to refuse the application on the ground of undue delay in commencing the proceedings. As such on this ground alone this application should be rejected.

The next objection that has to be considered is whether the Petitioner is guilty of suppression or misrepresentation of facts. It is the contention of the Counsel for the Respondent that, the Petitioner in his Petition has not stated that he acquiesced in the proceedings before the Magistrate's Court, which is significant in this case. Since I have already dealt with that issue it is not necessary to consider it again.The Revisionary Power of this Court is a discretionary power and its exercise cannot be demanded as of right unlike the statutory remedy of Appeal. It was held in T. Varapragasam and Another vs. S.A. Emmanuel C.A. (Rev) 931/84 - CAM 24.07.91 that the following tests have to be applied before the discretion of the Court of Appeal is exercised in favour of a party seeking the revisionary remedy.

(a) The aggrieved party should have no other remedy. (Already a civil case has been filed).

(b) The aggrieved party must come to Court with clean hands and should not have contributed to the current situation. (The Petitioner has been charged for contempt of Court).

(c) The aggrieved party should have complied with the law at that time. (The impugned order has not been challenged at the proper time).

(d) The acts complained of should have prejudiced his substantial rights.

(e) The acts of circumstances complained of should have occasioned a failure of justice.

(f) There should not be any unreasonable delay in filing the application. (There is a delay)

(g) There should be full disclosure of material facts and show uberime fides as non disclosure is fatal.

(h) As the conduct of the Petitioner is intensely relevant to the granting of relief, such conduct should not be repellant to the attractions of exercise of revisionary power.

The view of the Court is that the Petitioner has not fulfilled the aforesaid requisites and therefore this is not a fit and proper case to invoke the revisionary powers of this Court.

Accordingly, I hold that the Petitioner who is seeking relief in this revision application to set aside the order of the learned High Court Judge, is not entitled to relief as a matter of course, as a matter of right or as a matter of routine. Even if he is entitled to relief still the Court has a discretion to deny his relief having regard to his conduct, delay, laches, waiver and submission to jurisdiction are all valid impediments which should stand against the grant of relief.

For the reasons stated above, I uphold the preliminary objections raised by the Counsel for the Respondent. This application is accordingly dismissed.

JUDGE OF THE COURT OF APPEAL

P. R. Walgama, J.

I agree

JUDGE OF THE COURT OF APPEAL

Application dismissed.

INDRASIRI JAYAWICKREMA VS. PUNCHI HEWAGE EDDIE DE SILVA

HON. M.M.A.GAFOOR, J.

C.A. No. 1153/2000(F)

D.C.Kalmunai No. 2128/L

1a. Indrasiri Jayawickrema,

1b.Champa Priyangani Jayawiekrema,

1c. Nihal Dayananda Jayawickrema

2. Appukutty Kankanamalage Kusumawathi

3. Indrasiri Jayawickrema

4. Nihal Dayananda Jayawickrema

5. Champa Priyangani Jayawiekrema,

All of Main Street, Pottuvil.

Defendant-Appellants
Vs.

1. Punchi Hewage Eddie de Silva

2a. Washini Theeshana Dilanthika de Silva

3a.Lakshan Rananjaya de Silva

2. Punchi Hewage Rukmani de Silva

3. Punchi Hewage Pemadasa de Silva

4. Punchi Hewage Sunil de Silva

5. Punchi Hewage Ranjith de Silva

6. Punchi Hewage Dayawathi de Silva

7. Punchi Hewage Nandana Chandralatha de Silva

8. Punchi Hewage Anura de Silva

All of Kusuma Rice Mill, Potuvil

Plaintiff-Respondents

BEFORE : M.M.A.GAFOOR, J. &
JANAK DE SILV A, J.

COUNSEL : Rohan Sahabandu P.C. with H. Amarasinghe for the Defendant-Appellants.
U.L.A. Majeed for the Plaintiff-Respondents.

ARGUED ON : 12-09-2017.

WRITTEN SUBMISSIONS TENDERED ON : 10-11-2017(By the respondents)
12-03-2018(By the appellants)

DECIDED ON : 30th May,2018

M.M.A.GAFOOR, J.

The Plaintiff-Respondents in this case instituted the above numbered and styled action in the District Court of Kalmunai against the Defendant-Appellants by plaint dated 22.03.1995, averring inter alia, that Vidana Gamage Premawathy alias Kusumawathy Jayawickrema, mother of the Plaintiff-Respondents and her brother the 1st Defendant-Appellant owned and possessed in common a land described in schedule A to the plaint and they entered into an executed a deed of partition No. 3021 dated 30,03.1984, whereby the allotted northern half of the portion of that land described in schedule B to the plaint to the said Premawathy alias Kusumawathy and southern half portion of it to the 1st DefendantAppellant.

According to the answer dated 26.07.1995, the Defendant-Appellants admitting the said deed of partition and the said Respondents or Premawaly alias Kusumawathy never possessed the said northern half portion and that they had possessed the whole land for a long time and had prescribed title to the said northern portion as well. The Plaintiff Respondents in their plaint further averred that the 1st DefendantAppellant for the first time in the 1st week of August 1994 tried to prevent the Plaintiff-Respondent from entering the land. This content was denied by the Appellants in their answer.

The Plaintiff-Respondents also averred that a case No.15683 under section 66 of the Primary Court Procedure Act in the Magistrate's Court of Akkaraipattu and the order was made therein placing the 1st DefendantAppellant in possession. This was admitted by the Defendant-Appellants.

The Plaintiff-Respondents prayed for declaration of title in their favour and ejectment of the Defendant-Appellants from the land and damages and costs. The Defendant-Appellants opposed to this and prayed for dismissal of the action with costs.

The case went for trial and after the conclusion of the evidence, both parties tendered their written submissions and the judgment was delivered on 08.11.2000, in favour of the Plaintiff-Respondents as prayed for in their plaint.

Being aggrieved and dissatisfied with the said judgment dated 08.11.2000, this appeal was filed by the Defendant-Appellants in order to quash and set aside the said judgment dated 08.11.2000.

And also the Defendant-Appellants in their petition stated that

a) The said judgment is contrary to law and the weight of evidence in the case,

b) The learned District Judge non-directed himself to the contradiction between the averment in paragraph 7 of the plaint that for the first time the 1st Defendant-Appellant in the 1st week of August 1994 tried to prevent the Plaintiff-Respondents from entering the said land and the 1st Plaintiff-Respondent's evidence that the 1st Defendant-Appellant in 1994 attempted to erect a hut on the land and he prevented it and such non direction amounts to a misdirection in law,

c) The learned District Judge non-directed himself to the 3 contradictions between the 1st Plaintiff-Respondent's evidence that he prevented the 1st Defendant-Appellant from erecting a hut on the land and the Plaintiff-Respondents' witness Arulampalam Sathananthan that in or about 1993 the 1st Defendant-Appellant erected a shop on the land and let it to a returned refugee, and such non-direction amounts to a misdirection in law,

d) The learned District Judge has failed to draw the correct inferences or drawn wrong inferences from the evidence and this amounts to an error of law.

The Plaintiff-Respondents in their answer averred the land more fully described in schedule A to the plaint is in extent of 44 perches was owned and possessed jointly by Premawathy alias Kusumawathy Jayawickrema, the Plaintiff-Respondent's mother and her younger brother Dhanapala Jayawickrema, the 1st Defendant-Appellant since 1939.

By deed of partition bearing No.3021 was admitted by both parties and the said land was amicably partitioned and divided to the said Kusumawathy Jayawickrema that the Respondents' mother and her brother Dhanapala Jayawickrema, the 1st Defendant-Appellant. According to. said Kusumawathy Jayawickrema, she became the absolute owner of the northern half share of 22 perches morefully described in schedule B to the plaint, and the said Dhanapala Jayawickrema, the 1st DefendantAppellant above named, became the absolute owner of the southern portion in extent of 22 perches morefully described in schedule B to the plaint.

In the evidence in this case, southern portion has a building and a house where the 1st Defendant resides with his family and the northern portion is a bare land which contain a well and some coconut trees. The Plaintiffs' mother Kusumawathy did not live there but possessed the land by using the well and plucking coconuts from trees in her portion of the land until she died in 1987. She died in 1987 due to terrorist attack on a bus which she travelled. After Kusumawathy's death her children 1st to 10th Plaintiff-Respondents became entitled to the said land by inheritance and possessed the said portion.

Since the Sinhalese people in the Pothuvil area were subjected LTTE terrorist attack in 1987 some of them left the area including the 1st Defendant and they came back there to resettle in the latter part of 1993. The 1st Defendant and his children who came back in the latter part of 1993 without any right or title to the land in dispute which is morefully described in the schedule B to the plaint surreptitiously tried to put up a boutique in 1994. The 1st Plaintiff when came to know about the unlawful act, lodged a complaint with the Pothuvil Police to prevent the Defendant from proceeding with the work and that the Plaintiff also instituted an action under section 66 of the Primary Court Procedure Act in the Primary Court of Akkaraipattu. The Primary Court advised the 1st Plaintiff to seek civil remedy and ordered the 1st Defendant not to erect any building on the said land and the Plaintiff instituted rei -vindicatio action in the District Court of Kalmunai praying for declaration of title and ejectment of defendant and damages and cost.

After trial, the learned District Judge entered the judgment on 08.11.2000 declaring the plaintiff is entitled to the land morefully described in schedule B to the plaint and ejectment of the defendant and all others from the said portion of the land.

Therefore, damages and cost prayed for him in the plaint, the Defendant preferred this appeal against the said judgment. The following admissions are recorded at the commencement of the trial in the District Court (Kalmunai).

a. The property described in schedule A in the plaint was in possession of Vithanagamage Premawathy alias Kusumawathy Jayawickrema and Dhanapala Jayawickrema initially.

b. By Deed of partition bearing No.3021 dated 30.03.1984 Vithanagamage Premawathy became the owner of the divided northern portion of property described in schedule B.

c. The case bearing No. 15683 was between the 1st Plaintiff and the 1st Defendant at the Primary Court of Akkaraipattu in connection with this land.

d. Possession of the land was granted to the 1st Defendant in accordance with the judgment delivered in the Primary Court of Akkaraipattu in case bearing No. 15683 on 06.12.1994.

The Defendant stated in his evidence that Kusumawathy and the 1st Defendant maintained a cordial relationship between them and owned and possessed their respective lots without any dispute until 1987 in which year the said Kusumawathy died due to shooting incident in a bus by the LTTE Terrorists. After the death of said Kusumawathy, her children 1st to 10th Plaintiffs in this case became entitled to the said land.

The 4th Defendant admitted in his evidence that up to the time of the Plaintiffs' mother and also the 1st Plaintiff under cross-examination stated that he made a complaint in respect of the land in dispute to the police station in August 1994. And before this date he did not make any complaint against the 1st Defendant. This evidence is not contradicted and at page 52 of the brief emphasis and also it is to be noted that the 1st Defendant is the uncle of the 1st to 10th Plaintiffs without any crime or reason and for the first time in the 1st week of August 1994 tried to put up a boutique on the land in dispute and thereby prevented the plaintiffs from process in the said land in which disaster in proceedings initiated under Section 66 of the Primary Court Procedure Act in the Primary Court of Akkaraipattu and the 1st Plaintiff was advised to file a civil action to indicate his rights to the said land.

Then the action of declaration of title to the land by the Plaintiff for the ejectment of the defendant was initiated. The title of the ownership for the Plaintiff's land in dispute has been admitted by the Defendant without any dispute.

The case was proceeded to trail for the following issues,

Issue No.3

Whether the Plaintiff become entitled to the land described in schedule B (Northern side) by deed of partition No.3021

Issue No.6

Whether the Plaintiffs are entitled to reliefs as prayed for In the plaint?

Issue No.7

Whether the Defendants had prescribed to the land morefully described in schedule A including B.

Issue No.8

In that case whether the Plaintiff's action has to be dismissed?

The only question that was placed before this Court is whether the Defendant has continuous prescriptive possession of 10 years as claimed by them against the title of the Plaintiff from a certain date.

Issue No.7 refers the continuous, uninterrupted, undisturbed and unencumbered possession of the said land described in schedule A to the plaint including schedule B to the plaint for more than 10 years.

When an issue relating to the adverse, possession over 10 years is raised by a defendant as against the legal title of the Plaintiff is an important requirement in law that he must prove his 10 years period commence to run. If this is not clearly proved in his statement that he has 10 years period, is liable to be rejected.

In the case of Dingiri Appu V. Mohotti 68 NLR. page 40 Basnayake C) held inter alia that "Where a land is owned in common, there must be clear evidence of ouster of all the other co-owners, by the c-owner who claims that " enjoyed the land exclusively without recognizing the rights of others"

In the case of Wickremaratne and Another V. Alpenis Perera -SLR. 190, Vol. 1 1986 Chief Justice G.P.S. de Silva held that, " in a partition action for a lot of land claimed by the plaintiff to be a divided portion of a larger land, he must adduce proof that the co-owner who originated the division and such co-owner's successors had prescribed to that divided portion by adverse possession for at least ten years from the date of ouster or something equivalent to ouster. Where such co-owner had himself executed deeds for undivided shares of the larger land after the year of alleged dividing off it will militate against the plea of prescription. Possession of divided portions by different co-owners is in no way inconsistent with common possession.

A co-owner's possession is in law the possession of the co-owners every co owner is presumed to be in possession in his capacity as co-owner. A co-owner cannot put an end to his possession as co-owner by a secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result."

In Corea v. Appuhamy Et. AI. (1911) 15 NLR 65 the Privy Council decision laid down for the first time in clear and authoritative terms of the following principles:

1. The possession of one co-owner, was in law, the possession of others,

2. Every co-owner must be presumed to be possessing in that capacity,

3. It was not possible for such a co-owner to put an end to that title and to initiate a prescriptive title by any secret intention in his own mind and

4. That nothing short of an ouster, could bring about that result.

And also in the case of Ponnambalam V. Waidyalingam and others 1978/1979 2 SLR pg. 166 Ranasinghe J. in his land mark judgment observed as follows:

"the termination of common ownership without the express consent of all other co-owners could fake place where one or more parties either a complete stranger or even one who is in the pedigree claim that they have prescribed to either the entity or specific portion of common land such a termination could taken place only on the basis of unbroken and uninterrupted and adverse possession by such claim and or claimants at least 10 years the emphasis mine"

In the above mentioned case there is no evidence that the defendant's possession commences from 1984. There is evidence that up to 1984 the Plaintiff's mother has been in exclusive possession of the said land in 1987 or Sinhalese people in Pothuvil including the Defendant's family equated in some safe areas due to terrorists attack and returned only ill the later part of 1993. So between 1983 and 1993 the Defendant could not possess in this land.

It is also admitted that all parties in this case arc living in Pothuvil and the land in dispute also situated in Pothuvil.

Therefore, there was no dispute until 1987 and only in August 1994, the dispute arose for the first time. Before 1994 there was no problem between families of Plaintiff and the Defendant and they lived in friendly manner and in visiting terms.

If there had been any dispute existed over this land before 1994 the Plaintiffs might have gone to the Police or Court as they did now. Therefore, it is clearly established that the dispute arose only in August 1994 when the Defendants started to construct the building in the Plaintiffs' land.

This fact is admitted by the 4th Defendant in his evidence. In the evidence of the 4th Defendant he has testified that" only in August 1994 the dispute arose between my father and the 1st Plaintiff. When the Plaintiffs' mother died we all lived happily. In 1984, the full land was divided between my father and the aunt, which my father had admitted".

Therefore, evidence of the 4th Defendant and the 1st Plaintiff is very important in the connection with the 10 years prescriptive title.

According to the evidence led in this case, the land in questioned is a bare land with 11 coconut trees standing thereon. It is situated at a short distance from the place where the 1st Plaintiff lives. But it is situated adjacent to the Defendants' land. It is easy to pluck some coconut on the slight without the knowledge of the Plaintiff the occasional secret plucking of the coconut from the Plaintiff's land.

According to the decided cases of Corea V, Iseris Appuhamy 15 NLR 65, Wickramaratne and another V. Alpenis Perera -SLR -190, Vol.1 of 1986 it is to be noted that the evidence without any details with the people possessed the land is insufficient to satisfy that there was a possession of the meaning of Section 3 of the Prescription Ordinance.

And also in the cases of Romanis V. 5iwethappu 68 CLR, 40, Hassan V. Romanishamy 66 CLW 112, Basanayake CJ said that a mere statement of a witness I possess the land or we possessed the land and I planted bushes and also vegetables are not sufficient to entitle him to a decree under Section 3 of the Prescription Ordinance.

The learned trial judge in his judgment has taken into consideration the fact of goodwill and the friendly relationship prevailed between the two families prior to 1987. It that to be so, adverse possession of the Plaintiffs' land by the Defendants and that only the Defendants try to construct the boutique in August 1994 dispute arose and therefore the Defendants would not have the 10 years possession against the Plaintiffs. For the above reasons the appeal is dismissed with costs.

JUDGE OF THE COURT OF APPEAL

JANAK DE SILVA, J.

I agree.

JUDGE OF THE COURT OF APPEAL

MOHOMAD HANIFFA SUBAYAR VS. HAMEEDU ABDUL MUHUTHAR

HON. L.T.B. DEHIDENIYA, J

Court of Appeal case no. CA/PHC/168/97

H.C. Chilaw case No. H.C.A/50/97
M.C. Puttalam case No. 9729/96/P

In the matter of an appeal in terms of Article 138 read together with Article 154P of the Constitution of the Democratic Socialist Republic of Sri Lanka

1. Hameedu Abdul Muhuthar,
Principal, Muslim Vidyalaya,
Kadayamotte, Madurankuliya.

2. Seinul Abdeen Abddul Hassan,
Marikkar Chanal, Madurankuliya.

3. Sahul Hameed Mohamed Rafick,
Kadiyamottal, Madurankuliya.

Party of the First Part
Vs.

1.Mohomad Haniffa Subayar,
Marikkr Chanal, Madurankuliya.

2.Mohamed Haniffa Abdul Wahid,
Kadaiamottai, Madurankuliya.

Party of the Second Part
AND NOW

1. Mohomad Haniffa Subayar,
Marikkr Chanal, Madurankuliya.

2. Mohamed Haniffa Abdul Wahid,
Kadaiamottai, Madurankuliya.

Party of the Second Part Petitioner Appellants
Vs

1. Hameedu Abdul Muhuthar,
Principal, Muslim Vidyalaya,
Kadayamotte, Madurankuliya.

2. Seinul Abdeen Abddul Hassan,

Party of the First Part Respondent Respondents

Before : H.C.J.Madawala J.
L.T.B. Dehideniya J.

Counsel : N .R.M.Daluwatta PC for the Party of the Second Part Petitioner Appellants
H.G.Hussain for the Party of the First Part Respondent Respondents

Argued on : 03.11.2016

Decided on : 20.02.2017

L.T.B. Dehideniya J.

This is an appeal from the High Court of Chilaw.

The First Respondent of the First Party Respondent Respondents (the Respondents) is the Principal of the Muslim Vidyalaya of Kadayamotte, Madurankuliya and the 2nd and 3rd Respondents of the First Party Respondent Respondents are members of the school development society. The Respondents made a complaint to the police stating that the Second Party Respondent Petitioners Appellants (the Appellants) have started to construct a barbed wire fence across the school play ground and the school development society intervened and prevented the construction of the fence. The Appellants made a statement to the police in response to the said complaint that they owned the land in dispute and they started the construction of the fence on the strength of their ownership. The police filed information in the Magistrate Court of Puttalam under section 66 of the Primary Court Procedure Act. The learned Magistrate after considering the affidavits and documents determined that the Respondents were in possession within the two months prior to filing the information in Court. Being dissatisfied, the Appellants moved in revision in the High Court of Chilaw. The learned High Court Judge affirmed the order of the learned Magistrate. This appeal is from the said order of the High Court.

The Respondents stated that the land in dispute was donated to the school by a former Minister Mr. Naina Marikkar and since then the land was used by the students of the school as a play ground. The State has spent money on several occasions to develop the school play ground and all the time the play ground was in the possession of the school and the students used it as a play ground. During the civil war prevailed in the country, some of the displaced persons from Jaffna have temporarily occupied a portion of the school play ground. The Appellants on or about 15.06.1995 tried to take over a part of the play ground forcibly. They produced the letters issued by the authorities in relation moneys spend to the development of the play ground in support. The Appellants contention is that the son of Mr. Naina Marikkar has transferred the land in dispute to the second party of the Appellant and another by a deed and the said land is depicted in the plan No. 75 marked 2 Pa 2. Their stand is that they possessed the land in dispute on the strength of the deed and they wanted to fence out the land.

In a case of a land dispute threatening a breach of the peace in the Primary Court under Primary Court Procedure Act section 66, the ownership of the land is not material but the possession of the land within two months prior to the filing of the information is the most relevant fact.

Ramalingam v. Thangarajah [1982] 2 Sri L R 693

That a Judge should in an inquiry under Section 66 confine himself to the question of actual possession on the date of filing information except in a case where a person who had been in possess ion of land had been dispossessed within a period of two months immediately preceding filing of information.

The Respondents clearly established that the land was m the possession of the school. Time to time the play ground has been developed by the authorities concern. It further strengthens the fact that the play ground was in the possession of the school.

The Appellants are relying on a plan made by them to show the possession. The southern boundary of the lot 2 depicted in the plan 2Pa 2 is the school play ground. All boundaries in the said plan are marked as undefined. The boundary separating the play ground and the lot 2 in the plan is marked by the surveyor by positioning stakes on the ground. This fact establishes that there was no boundary there to separate the play ground and the Appellants were trying to construct/create a new boundary.

Under these circumstances I hold that the learned Magistrate and the learned High Court Judge have come to the correct finding that the Respondents were in possession of the land in dispute.

At this stage I like to point out another defect in the petition of appeal. In the prayer to the petition of appeal dated 25th November 1997 the main relief prayed for is to "set aside the order of the learned High Court Judge dated 13.11.1997." There is no prayer to set aside the order of the learned Magistrate or to grant relief as prayed for in the petition filed in the High Court. Even if this Court set aside the order of the learned High Court Judge, the order of the learned Magistrate will remain in force. This Court cannot grant any relief which is not prayed for. Therefore granting relief prayed for in this petition of appeal will not serve any purpose.

Under these circumstances I see no reason to interfere with the findings of the learned High Court Judge.

Accordingly I dismiss the appeal subject to cost fifed at Rs. 10,000/=

Judge of the Court of Appeal

H.C.J.Madawala J.

I agree.

Judge of the Court of Appeal

HEWAGARUSINGE SUGATHADASA

VS.

WIJAYAMUNIGE ANULAWATHI - HON. JANAK DE SILVA J

Case No. CA(PHC) 45/2011
High Court of Hambanthota Case No. H.C.R.A. 11/2010
Magistrate Court of Walasmulla Case No. 10364

In the matter of an application in terms of Article 154(g) of the Constitution of Sri Lanka read with Section 5 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 and Section 364 of the Code of Criminal Procedure Act No. 15 of 1979 to set aside the Order of the High Court of the Southern Province holden in Hambanthota dated 04.05.2011 made in revision application bearing No. HC/RA/11/2010 by the Primary Court of Walasmulla in Case No.10364

1. Hewagarusinge Sugathadasa,
Mahakosgahahena,
Rajapuragoda, Walasmulla.

2. Rajapurage Dharmasiri,
Mahakosgahahena,
Rajapuragoda, Walasmulla.

3. Rajapurage Kularatne,
Mahakosgahahena,
Rajapuragoda,
Walasmulla.

Respondents-Petitioners-Appellants

Vs.

1. Wijayamunige Anulawathi,
Arachchigaha Koratuwa,
Pallekanda, Walasmulla.

2. Wijayamunige Sisira Senarathne,
Mahakosgahahena,
Rajapuragoda, Walasmulla.

Petitioners-Respondent-Respondents

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: Pulasthi Rupasinghe with N. Abeysuriya for the Respondents-Petitioners-Appellants
Ranga Dayananda for Petitioners-Respondents-Respondents

Written Submissions tendered on: Respondents-Petitioners-Appellants on 9th April 2018
Petitioners-Respondents-Respondents on 11th May 2018

Argued on: 22nd February 2018

Decided on: 7th June 2018

Janak De Silva J.

This is an appeal against the order of the learned High Court Judge of the Southern Province holden in Hambanthota dated 04.05.2011

On 09.11.2009 the Petitioners-Respondents-Respondents (Respondents) filed information in the Magistrates Court of Walasmulla against the Respondents-Petitioners-Appellants (Appellants) under Section 66(1)(b) of the Primary Courts Procedure Act (Act). They alleged that on 10.10.2009 the Appellants had forcibly constructed a road over the land of which the 2nd Respondent was a co-owner although there was an existing roadway leading to the houses of the Appellants around the land belonging to the 2nd Respondent

The position of the Appellants was that they did not construct a new road but only developed the existing road. In addition to the affidavits and counter affidavits filed by parties the learned Magistrate also called for observations from the Officer-In-Charge of the Walasmulla Police Station. Thereafter he made order on 19.04.2010 stating that the Appellants have not established a right of way over the disputed land. He further held that the Respondents were entitled to the possession of the land in dispute.

The Appellants filed a revision application against the said order in the High Court of the Southern Province holden in Hambanthota which was dismissed. Hence this appeal.

The parties agreed on 22nd February 2018 that the appeal can be disposed by way of written submissions. Both parties have filed their written submissions.

The learned Counsel for the Appellants has urged the following grounds in appeal:

(a) There was no site inspection carried out

(b) Disregarding the co-owned rights of the disputed land

(c) Failure of the learned High Court Judge to consider that the learned Magistrate has not evaluated all available evidence

The issue in this case is whether the Appellants had a right of way over the land of the 2nd Respondent or whether they had an alternative road. The Appellants submit that the Respondents objected to a site inspection although the Appellants were willing which shows bad faith on the part of the Respondents. There may be some merit in this submission if taken in isolation. However, section 72 of the Act directs the Judge to make a determination and order after examination and consideration of (a) the information filed 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 and (c) such oral or written submission as may be permitted by the Judge of the Primary Court in his discretion. Thus, a site inspection is not mandated by the Act. It can be held only if parties consent and therefore in my view no adverse inference can be made merely because one party objects to a site inspection.

The Appellants further submit that the learned Magistrate had erred in disregarding the rights of co-owners having accepted the fact that the Appellants are the co-owners of the land and the road in dispute, but at the same time deciding that the Appellants do not have possession to the right of way. They rely on the decision in Singh a Appu v. Hendrick Appu¹ where it was held that a co-owner is entitled to use the land for taking carts to his house which was on the land, provided by doing so, he did not unfairly curtail the rights of other co-owners.

________________________
¹24 N.L.R. 157

The dispute in the instant case is over a right of way. Section 69(2) of the Act enables the Primary Court judge to make order declaring 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 by such party other than under the authority of an order or decree as aforesaid. In Ramalingam v. Thangarajah Sharvananda J. (as he was then) stated as follows:

"On the other hand, if the dispute is 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, section 69 requires the Court to determine the question which party is entitled to the disputed right preliminary to making an order under section 69(2)."3 (emphasis added)

Hence it was incumbent on the learned Magistrate to have determined as to whether the Appellants were entitled to the right of way claimed by them. Their position was that no new road was built by them but that they developed the existing roadway. However, the learned Magistrate has concluded that the Appellants did have another roadway and that they had forcibly constructed a roadway over the land possessed by the Respondents which led to the present dispute. I have carefully considered the evidence led before the learned Magistrate and see no reason to interfere with his findings on this issue.

dispute is not a public road according to the material before Court and disregarded these documents. Furthermore, there were no intervenients after notices were exhibited by Court. There certainly would have been if the right of way in dispute was a public road. Therefore, I see no reason to interfere with the findings on this issue.

The learned Magistrate has in a well-considered order carefully examined all available evidence and the applicable legal principles before making the impugned order. The learned High Court Judge has correctly analyzed the impugned order and dismissed the revision application made by the Appellant.

The primary object of proceedings under Part VII of the Act is to prevent any breach of peace amongst the disputing parties in regard to any right to any land. The Court when exercising this jurisdiction would take only a preventive action. The order that would be made is of a provisional nature pending final adjudication of rights in a civil Court. The orders made in this case achieves this object.

For the foregoing reasons, the appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

S.GUNASIRI DE SILVA

VS.

THENUWARA BADALGE

Court of Appeal No. CA(PHC) 156/2012
High Court of Galle Revision Application No. 44/2012
Magistrate Court of Galle No. 87286

S.Gunasiri De Silva
Mahagedara, Bopegoda,
Rathgama.

2nd Respondent-Petitioner-Appellant

01. Thenuwara Badalge
Swarnawathie
Anghandiya, Bopegoda,
Rathgama.

02.G.H.Magilin Nona,
Thotupola Watte,
Bopegoda,Rathgama.

03.Harumadura Rukmani de Silva,
Annasi Koratuwa,
Thotupola Watte,
Bopegoda, Rathgama.

04.Koralege Sumithra Perera,
Thotupola Watte,
Bopegoda, Rathgama.

05. The Officer in Charge,
Police Station,
Rathgama.

Respondents - Respondents - Respondents

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: Farook Miskin for 2nd Respondent-Petitioner-Appellant
Jagath Abeynayaka with Pradeep Abeyrathna for 1st Respondent-Respondent-Respondent

Written Submissions tendered on: 2nd Respondent-Petitioner-Appellant on 2nd April 2018

Argued on: 2nd February 2018

Decided on: 14th May 2018

Janak De Silva J.

This is an appeal preferred by the 2nd Respondent-Petitioner-Appellant (Appellant) against the order of the learned High Court Judge of Galle dated 16th October 2012 by which he refused to issue notice in a revision application filed to set aside the judgement of the learned Additional Magistrate of Galle dated 21st September 2012 wherein it was held that the 1st Respondent Respondent-Respondent (Respondent) had a right of way over the land owned by the Appellant. The learned Additional Magistrate of Galle further ordered the removal of the fence that had been put up obstructing this right of way.

The learned High Court Judge of Galle refused to issue notice on the basis that no exceptional circumstances have been established for the exercise of revisionary jurisdiction.

The learned Counsel for the Appellant submitted that the learned High Court Judge of Galle has arbitrarily and without assigning reasons refused notice. It is trite law that exceptional circumstances must exist for revisionary jurisdiction to be exercised. It is observed that the proceedings of 16.10.2012 [Appeal Brief page 44] only indicates that notice is refused. No reasons are given therein. However, the journal entry of 16.10.2012 contains a hand-written statement signed by the learned High Court Judge stating that notice is refused as there are no exceptional

circumstances. Hence, there is no merit in the submission of the learned counsel for the Appellant that the learned High Court Judge has failed to assign reasons for refusing notice.

However, it must be emphasized that reasons for refusing notice must be contained in the order refusing notice rather than in a journal entry. But even if the learned High Court Judge of Galle was in error in setting out the reasons for refusing notice in a journal entry, the proviso to Article 138(1) of the Constitution states that no judgment, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice. Therefore, if it is evident on a close examination of the totality of the evidence that the learned High Court Judge was correct in refusing notice, there is no prejudice to the substantial rights of the parties or occasioned a failure of justice and the order of the learned High Court Judge should not be disturbed. I will now consider whether the totality of evidence supports the order made by the learned High Court Judge.

This matter arises out of an information filed by the Officer-in-Charge of the Ratgama Police under section 66(1)(a) of the Primary Courts Procedure Act (Act). Information was filed on 16.03.2012. The parties were permitted to file affidavits, counter affidavits and documents. The Respondent claimed that she had a right of way over the land of the Appellant to go to her house and that it had been blocked by the Appellant. The Appellant did admit the existence of a roadway over his land which was used by the Respondent as well as a few other families. He contended that as the said roadway was narrow and at the request of the Ratgama Pradeshiya Sabha and villagers he allowed part of his land to be used to construct a 12-foot roadway close to the existing road so that the said 12-foot roadway could be used instead of the existing narrow road. He further claimed that the Respondent has the ability to use the new road to go to her house and that the existing roadway was closed by the villagers and not him.

___________________________
¹Victor and Another v. Cyril De Silva [(1998) 1 Sri.L.R. 41]

The learned Counsel for the Appellant submitted that the learned Additional Magistrate of Galle has failed to act in terms of section 66(7) of the Act which is a fatal irregularity. He relied on the decision in Ali v. Abdeen 2 where U.de Z. Gunawardena J. held that the Primary Court Judge was under a peremptory duty to encourage or make every effort to facilitate a settlement of the dispute before assuming jurisdiction to hold an inquiry into the matter of possession and impose on the parties a settlement by means of Court order. The short answer to this objection is that the journal entry of 15.06.2012 shows that learned Additional Magistrate of Galle had fixed the case for 29.06.2012 to consider a settlement on which day it was informed that there was no settlement.

The dispute in the instant case is a right of way. Where the dispute relates to any right to any land such as a right of way or right to cultivate the Primary Court judge should make his order under section 69 of the Act. 3 The learned Additional Magistrate of Galle after a careful evaluation of the evidence correctly concludes that the dispute must be resolved by applying the provisions in section 69 of the Act. The learned Additional Magistrate of Galle has concluded that there exists a 10-foot roadway over the land owned by the Appellant which the Respondent used for a long period to go to her house. I see no reason to disturb this finding of the learned Additional Magistrate of Galle.

The learned counsel for the Appellant submitted that the learned Additional Magistrate had failed to consider that the road had deviated and that the new road is more convenient.

The question of whether a right of way can be replaced by another roadway created by the owner of the servient tenement without the consent of the owner of the dominant tenement did at one time have a difference of judicial opinion.

_______________________

²(2001) 1 Sri.L.R. 413
³Weerasinghe v. Sepa/a and another [(1996) 2 Sri.L.R. 229]

In Marasinghe v. Samarasinghe 4 it was held by Alles and De Krester J. (Fernando C.J., dissenting), that when a servitude of a right of way has been acquired by prescription, the owner of the servient tenement is entitled to offer a deviation of the route or track along which the right was acquired, provided that the proposed alternative route is equally convenient and serviceable to the owner of the dominant tenement. Madanayake v. Thimotheus 5, Fernando v. Fernando6, and Hendrick v. Samelis 7 was overruled.

However, as the learned Additional Magistrate correctly points out this is not a question that the Primary Court need to determine in terms of section 69 of the Act. Section 69(2) of the Act enables the Primary Court judge to make order declaring 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 by such party other than under the authority of an order or decree as aforesaid. In Ramalingam v. Thangarajah 8 Sharvananda J. (as he was then) stated as follows:

_______________

⁴ 73 N.L.R. 433
⁵ 3 C. Law Rec. 82
⁶ 31 N. L. R. 126
⁷ 41 N. L. R. 519
⁸ (1982) 2 Sri.L.R. 693
⁹ Ibid. page 699

The purpose of this jurisdiction is to prevent a breach of peace by restoring the person entitled to the right to the enjoyment thereof until the dispute is determined by a competent court. In the instant case, the dispute arose when the right of way used by the Respondent was blocked. That has been addressed by the order made by the Primary Court. The contention of the Appellant that the right of the Respondent can be replaced by a deviated route is a matter for a competent court.

The learned Additional Magistrate also made order for the removal of the fence that had been put up obstructing this right of way. In Jamis v. Kannangara 10 Palakidnar J. held that the order that can be made under section 69(2) of the Act in regard to a right to any land other than the right to possession is a declaration of entitlement of such right after determination by the court subject to a final determination by a competent court and prohibition of all disturbance or interference with the exercise of such right by such a party. It was further held that the order is of a prohibitory nature preventing an interference with the exercise of such a right and that this cannot include a positive order of removal of a structure. However, in Tudor v. Anulawathie and others Gunawardena J. held that 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 and that the said provision 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 arise, in the process of restoring the right to the person held to be entitled to such right. The reasoning in Tudor v. Anulawathie and others 12 is compelling which I shall adopt.

In view of the above circumstances, the learned High Court Judge of Galle correctly held that there are no exceptional circumstances which warrant the exercise of revisionary jurisdiction in respect of the judgement of the learned Additional Magistrate of Galle dated 21st September 2012.

_______________________

¹⁰(1989) 2 Sri.L.R. 350
¹¹(1999) 3 Sri.L.R. 235
¹² Ibid.

For the foregoing reasons, I dismiss this appeal. No costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

RAMEEZ UDDEEN MAHAMOOR

MUDANNAYAKAGE CHRISTIE - HON JANAK DE SILVA, J.

Case No. CA (PHC) APN No:112/2016
PHC Puttalam Case No: HCR 07/2015
MC Puttalam Case No:10097/2014

In the matter of an application in revision under and in terms of Article 138 of the Constitution.

Rameez Uddeen Mahamoor,
No.5,6th Lane,Nawala,
Rajagiriya.

1st Party-Petitioner-Petitioner

Vs.

Mudannayakage Christie,
19th Mile Post, Saliyawewa Junction,
Saliyawewa.

2nd Party-Respondent-Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: D.A.P. Weeraratne for 1st Party-Petitioner-Petitioner
K.V.S. Ganesharaja with S. George and Deepika Yogarajah for 2nd Party-Respondent-Respondent

Written Submissions tendered on: 1st Party-Petitioner-Petitioner on 27.09.2018

Argued on: 30.07.2018

Decided on: 31.10.2018

Janak De Silva J.

This an application in revision made against the order of the learned High Court Judge of Puttalam dated 12.07.2016.

The parties admitted that the land in dispute is depicted as "c" in the sketch filed by the Police. (Journal Entry dated 25.11.2014).

One of the main arguments of the learned counsel for the Petitioner is that the land in dispute is not properly identified. He submitted that whereas the land claimed by the Petitioner is identified as Dangaha Kumbura the Respondents claimed a portion of land called Thambigewela. The learned counsel for the Petitioner relied on Punchi Nona v. Padumasena and others [1994)2 Sri L.R. 117]. However, as pointed out earlier, parties in the Magistrates Court admitted that the land in dispute is depicted as "C" in the sketch filed by the Police. (Journal Entry dated 25.11.2014).

Section 58 of the Evidence Ordinance reads:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

Accordingly, an admission can be made in the following ways:

The admission in the instant case as to the identity of the land in dispute was one made within (i) above. An admission of fact made by counsel is binding on the client [Coomaraswamy, The Law of Evidence, Vol. I, page 129]. It is sometimes permissible to withdraw admissions on questions of law but admissions on questions off act cannot be withdrawn [Uvais v. Punyawathie (1993) 2 Sri.L.R. 46]. However, in Sivaratnam and others v. Dissanayake and others [(2004) 1 Sri.L.R. 144 at 148] Amaratunga J. sought to explain the principle as follows:

In Ramalingam v. Thangarajah [(1982) 2 Sri.L.R. 693 at 698] Sharvananda J. (as he was then) stated as follows:

In this regard an important item of evidence is the document marked 2031 which is a certified copy of the proceedings in D.C. Puttalam 2109/L which has been filed on 18.12.2013, more than a year prior to information been filed under section 66(1)(a) of the Act, by the Respondent and 5 others against one Ferdinandusz and LB. Newton Pieris. The plaintiffs claimed that they were in

There are no exceptional circumstances, which justifies this Court exercising the extraordinary powers of revision against the order of the learned High Court Judge of Puttalam dated 12.07.2016.

Accordingly, the appeal is dismissed with costs fixed at Rs. 10,000/=.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

RAMALINGAM SATGUNARAJAH

VS

LASITHA WASUNDARA DE ZOYSA GUNARATHNE AND OTHERS - HON A.L. SHIRAN GOONERATNE J.

Court of Appeal Case No: CA(PHC) 98/2014
HC Colombo Revision Application No: HCRA 79/2012
MC Colombo Case No: 1988/06/12

In the matter of an Appeal in terms of Article 154P (6) of the Constitution of Sri Lanka

Ramalingam Satgunarajah,
No. 78, College Street, Kotahena
Colombo 13.

1st Party-Petitioner

Vs

1. Lasitha Wasundara De Zoysa Gunarathne.
No. 58/42 -F1,
Ananda Balika Mawatha.
Pitakotte.

2. Mangala Udawatte,
Nation Lanka Finance,
No. 42. Premasiri Khemadasa Mawatha,
Colombo 07.

3. Devika Selvaratnam,
No. 9, Penruddocke Road,
Bucklands Beach,
Auckland 2012, New Zealand.

4. Nation Lanka Finance,
No. 28, Dickmans Road,
Colombo 04.

2nd Party Respondents-Respondents-Respondents

Before : A.L. Shiran Gooneratne J.
&
Mahinda Samayawardhena J.

Counsel : Ashoka Fernando for the 1st Party Petitioner-Appellant instructed by A.R.R. Siriwardane.

Harsha Soza, PC with Rajindh Perera instructed by Nithi Murugesu and Associates for the 2nd Party Respondents-Respondents-Respondents.

Written Submissions: By the 1st Party Petitioner-Appellant on 28/11/2018
By the 2nd Party Respondents-Respondents-Respondents on 28/11/2018

Argued on : 27/08/2019

Judgment on : 08/10/2019

A.L. Shiran Gooneratne J.

The 1st Party Petitioner-Appellant (Appellant), instituted proceedings in the Magistrates Court of Colombo, in terms of Section 66 (1)(b) of the Primary Courts Procedure Act No. 44 of 1979 (as amended), for unlawfully and forcibly ousting him from the land in question by the 2nd Party 1st, 2nd and 3rd Respondents-Respondents (Respondents). The learned Magistrate by order dated 13.06.2012 decided in favour of the 3rd Respondent. Being aggrieved by the said order, the Appellant preferred a Revision Application to the High Court of the Western Province holden in Colombo. The learned High Court Judge by his order dated 22.08.2014 affirmed the order of the learned Magistrate. The Appellant is before this Court to canvas the said orders.

Facts of the case briefly are as follows;

The premises in dispute bearing assessment No. 300, Galle Road, Bambalapitiya, Colombo 4. consists of a building in a larger land comprising of four lots. The said land is depicted in Plan No. 1276 dated 25.02.1977, made by P. Sivasundaram. at page 184 of the brief. The land in dispute devolved to the 3rd Respondent and her son in equal shares, after the demise of the husband of the 3rd Respondent.

By Agreement No. 1537 dated 11.03.2006, attested by K. Kaneshayogan NP, the Petitioner came into possession of the disputed land where he has carried out a car sales business under the name and style of Rasu and Company (Pvt) Ltd. However, there is no evidence on record to show whether the Appellant had a car sales business in the said premises.

The 3rd Respondent submits that the Appellant had sub-leased the said property to Timberline Furniture (Pvt) Ltd., in violation of the terms agreed upon with the Appellant. According to the statement given by Danushka Seneviratne,director of Timberline Furniture (Pvt) Ltd. the said company had been in possession of the entirety of the disputed property pursuant to the execution of an agreement and admits that the land was given to the company by the Appellant on a temporary basis.

The Respondents contend that the Appellant has unlawfully sub-leased out the said disputed premises to Timberline Furniture's (Pvt) Ltd, a subsidiary of Arpico Company, to run a furniture business. However, as reflected in document marked Y4, the said company on 04/01/2012 had voluntarily and peacefully handed over the entirety of the said premises to the 1st Respondent, the power of Attorney holder of the 3rd Respondent, in the presence of the Bambalapitiya Police. In the circumstances, it is contended that in the absence of evidence of a likelihood of or of a threatened breach of the peace, the Court is not vested with the jurisdiction to entertain such proceedings. On 6th January 2012, the 3rd Respondent entered into Agreement, No. 619 with Nation Lanka Finance PLC, undertaking to sell the said property to the said Nation Lanka Finance PLC. (The said Agreement is marked "X3")

The Appellant in his affidavit dated 09/02/2012, states that he has been in possession of the disputed land inclusive of the building for a period of 13 years and had his personal office and the business in the name of his wife. He claims that the 1st Respondent as the power of Attorney holder of the 3rd Respondent entered the premises in dispute and forcibly ejected him to leave behind his valuable documents, office furniture and equipment in the said premises. The Appellant made a complaint to the Bambalapitiya police on 04th January 2012. against the said undue influence. unlawful eviction and contends that no investigation was carried out.

The main grievance of the Appellant is that the Court has failed to consider that the Appellant had been forcibly dispossessed, within a period of two months immediately before the date on which, the information was filed under Section 68 (1) of the Code.

In terms of Section 66 (1)(b) of the Act a Primary Court Judge is to ascertain whether there is a situation where breach of the peace prevails. (Velupillai v. Sivanathan (1993)1 SLR 123, Ismail, J.)

In Punchi Nona v. Padumasena & Another (1994) 2 SLR 117, Ismail, J

held that,

"in an information by a private party under Sec. 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 special jurisdiction under the circumstances. Failure to so satisfy himself deprives the Judge of the jurisdiction"

Therefore, in the first instance it is paramount for the Court to decide on the threat or likelihood of a breach of the peace in order for the Court to assume jurisdiction. The learned Magistrate at page 4 of his order, has come to a clear finding that there is no dispute affecting land and there is no forcible eviction of

the Appellant. The said conclusion is based on document marked Y4 and the statement given to the police by Dhanushka Seneviratne, the director of the company, on 04/01/2012, marked Y5. According to the said statement the disputed land has been handed over voluntarily to the power of Attorney holder of the 3rd Respondent. Document Y5 makes reference to the entirety of the disputed land and does not distinguish the said premises as part of the land.

In the circumstances, the available evidence infer, taking possession of the entirety of the disputed land by the 1st Respondent, voluntarily and peacefully, which dispel the argument of forcible dispossession advanced by the Appellant. Therefore, I am of the view that the learned Magistrate was correct in considering the relevant evidence in deciding the applicable law which was affirmed by the Court above.

For all the above reasons, I uphold the orders given by the learned High Court Judge and the Court below and dismiss this application.

Appeal dismissed with costs fixed at Rs. 15,000/-

JUDGE OF THE COURT OF APPEAL

Mahinda Samayawardhena, J.

I agree.

JUDGE OF THE COURT OF APPEAL

JAYAWICKRAMA BINDUSARA

UDAHALIYANNALAGE ARIYASENA - HON MAHINDA SAMAYAWARDHENA, J.

CASE NO: CA/PHC/78/2015

HC KANDY CASE NO: REV/30/2012
MC MATALE CASE NO: 95542/66

1. Jayawickrama Bindusara,

2. Udahaliyannalage Somawathie (deceased),
Muwandeniya Bungalow,
Muwandeniya.

1st Party-Respondent-Petitioner-Appellant
Vs.

Udahaliyannalage Ariyasena,
No. 21, Pubudu Mawatha, Elwala,
Ukuwela.

2nd Party-Respondent- Respondent-Respondent

Before : A.L. Shiran Gooneratne, J.
Mahinda Samayawardhena, J.

Counsel : Ashan Nanayakkara for the Appellant.
W. Dayaratne, P.C., with R. Jayawardena for the Respondent.

Argued on : 08.11.2019

Decided on : 06.12.2019

Mahinda Samayawardhena, J.

This is an appeal filed by the 1st party respondent-appellant (appellant) against the Judgement of the High Court dated 10.06.2015.

The police filed the first information in the Magistrate's Court, under section 66(1)(a) of the Primary Courts' Procedure Act, naming the appellant as the 1st party respondent and his deceased wife's brother as the 2nd party respondent (respondent), regarding a dispute as to possession of a portion of land described in the police observation notes dated 20.01.2011.1

There is no issue with regard to the identification of the disputed portion of the land, although the learned counsel for the appellant at the argument drew the attention of this Court to the schedule of the respondent's affidavit filed before the Magistrate's Court where boundaries of the disputed portion, when compared with the police sketch, are misdescribed.2

____________
¹Vide page 148 of the brief.²Vide page 155 for the said schedule and the page 148 for the said sketch.

When one reads the statement made by the respondent to the police dated 26.01.20113, it is clear that the respondent does not dispute the identification of the land. The land in dispute is the land shown in the police observation notes referred to above.

The next question is who was in possession of the land on the date of filing the first information in Court? It is undisputed that it was the respondent who was in possession. Hence, in terms of section 68(1), read with section 68(2) of the Act, the Court shall remove any disturbances to his possession and confirm him in possession. That is the basic principle.

However, if the appellant can show that although the respondent is now in possession of the land, the respondent came to such possession by forcibly evicting the appellant from possession within two months before filing the information in Court, in terms of section 68(3) of the Act, the appellant shall be restored in possession. This, the appellant has failed to do.

The main document relied upon by the learned counsel for the appellant is the Acreage Tax payment receipt marked 1V2, which is dated 26.02.2010.4 As the first information was filed in Court on 11.02.2011, this is not helpful to the appellant. There are no documents to prove recent possession of the land by the appellant.

This is a co-owned land. A partition case filed to end co- ownership is pending in the District Court. It was revealed at the argument that the parties to this appeal are also parties to the said partition case. The parties can have a lasting solution to this matter in the said partition case.

___________
³Vide page 150 of the brief.⁴Vide page 90 of the brief.

The appellant had not been in possession of the disputed portion of the land when the respondent, on or around 10.01.2011, as seen from the police complaint of the appellant dated 10.01.2011⁵, cleared the area with the written consent of some of the co-owners of the land, as seen from 2V1 dated 05.10.2010.6

Although I accept the submission of the learned counsel for the appellant that the learned Magistrate in the impugned order has not stated the law correctly, the conclusion reached therein by the learned Magistrate is correct. However, the learned High Court Judge, in a remarkably well-written judgment, has clearly explained the law in this regard.

I affirm the Judgment of the High Court and dismiss the appeal with costs.

Judge of the Court of Appeal

A.L. Shiran Gooneratne, J.
I agree.

Judge of the Court of Appeal

KALINGA EDWIN GUNATHILAKA

VS.

HON ATTORNEY GENERAL - HON. P. PADMAN SURASENA, J (P/CA)

C A (PHC) 170 / 2010
Provincial High Court of Western
Province (Kalutara)
Revision Application No. 06 / 2010
Primary Court of Matugama
Case No. 15/2009

In the matter of an appeal against judgment of Provincial High Court exercising its revisionary jurisdiction.

Kalinga Edwin Gunathilaka,
Keeranthidiya,
Nauththuduwa.

2nd PARTY - PETITIONER - APPELLANT

1. Officer in charge,
Police Station,
Matugama.

COMPLAINANT - RESPONDENT - RESPONDENT

2. Mayanthuge Sunethra Jayasiri,
Keeranthidiya,
Nauththuduwa.

1st PARTY - RESPONDENT
RESPONDENT

3. Hon Attorney General,
Attorney General's Department,
Colombo 12.

RESPONDENT - RESPONDENT

Before: P. Padman Surasena J (P/CA)
K K Wickremasinghe J

Counsel : 2nd Party - Petitioner - Appellant is absent and unrepresented.
K V Sirisena for the 1st Party - Respondent - Respondent.

Decided on: 2018 - 02 - 28

JUDGMENT

P Padman Surasena J (P/CA)

Learned counsel for the 1st Party Petitioner Appellant agreed when this case came up on 2017-07-28 before us, to rely fully on his written submissions. He requested this Court to pronounce the judgment after considering the written submissions. Therefore this judgment would be based on the material adduced in the pleadings and written submissions.

The Officer in Charge of Police Station, Welipenna filed an information in terms of section 66 (1) (a) in the Primary Court of Mathugama reporting that a dispute between the 2nd referred to as the Appellant) and the 1st party Petitioner - Appellant (hereinafter party Respondent - Respondent (hereinafter referred to as the Respondent) pertaining to a road way had arisen and that dispute would result in a breach of peace.

Learned Primary Court Judge after inquiry pronounced his order on 2010-02-22 holding that the Respondent was entitled to use the disputed right of way.

The Appellant thereafter made an application for revision to the Provincial High Court of the Western Province holden at Kalutara against the order of the learned Magistrate.

Perusal of the judgment dated 2011-09-26 pronounced by the learned Provincial High Court Judge shows that the Appellant has failed to serve copies of the documents produced marked P2, P3, P4, P5, P6 and P7 on the Respondent.

It appears that the Appellant has not explained as to why he could not provide the above material along with his application. He has neither

undertaken nor sought leave of Court to tender the said documents even at a subsequent occasion. Admittedly learned Primary Court Judge had considered these documents when he made the impugned order.

Thus, it is clear that the Respondent has had no opportunity of considering these documents in order to formulate arguments in preparation of their case.

In addition to the above ground the learned Provincial High Court Judge has also held that there is no exceptional circumstance to invoke the revisionary jurisdiction of the Provincial High Court.

It is appropriate at this juncture to turn to the rules relevant to this issue.

Rule 3 (1) (a)¹ states as follows:

Every application made to the Court of Appeal for the exercise of the powers vested in the Court of Appeal by Articles 140 or 141 of the Constitution shall be by way of petition, together with an affidavit in support of the averments therein, and shall be accompanied by the originals of documents material to such application (or duly certified copies thereof) in the form of exhibits. Where a petitioner is unable to tender any

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¹Court of Appeal (Appellate Procedure) Rules 1990

such document, he shall state the reason for such inability and seek the leave of the Court to furnish such documents later. Where a petitioner fails to comply with the provisions of this rule the Court may, ex mere mortu or at the instance of any party, dismiss such application.

(b) Every application by way of revision or restitutio in intergrum under Article 138 of the constitution shall be made in like manner together with copies of the relevant proceedings (including pleadings and documents produced), in the Court of First Instance, tribunal or other institution to which such application relates ............. "

.............."

(13) It shall be the duty of the petitioner to take such steps as may be necessary to ensure the prompt service of notice, and to prosecute his application with due diligence.

Learned Provincial High Court Judge has referred to the case of Kiriwanthe and another Vs Nawarathne and another2.

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²1990 (2) S L R 393

This case was decided on then applicable rule 46 of the Supreme Court Rules of 1978. One has to be mindful of the fact that this rule3 did not specifically provide for dismissal for non- observance and therefore has no direct application to the instant case in which the issue is a question of interpretation of Rule 3(1) (a)4 where it has specifically provided that the Court may, ex mere mortu or at the instance of any party, dismiss such application Where a petitioner fails to comply with the provisions of this rule.

In the case of Shanmugawadivu Vs Kulathilake5 did not the Supreme court has held as follows " ....... the new Rules permit an applicant to file documents later, if he has stated his inability in filing the relevant documents along with his application, and had taken steps to seek the leave of the Court to furnish such documents. In such circumstances, the only kind of discretion that could be exercised by Court is to see whether and how much time could be permitted for the filing of papers in due course.

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³Rule 46 of the Supreme Court Rules of 1978.
⁴Court of Appeal (Appellate procedure) Rules 1990
⁵2003 (1) S L R 216

Our courts have consistently held that the compliance of these rules are mandatory. There is no acceptable reason as to why the Appellant could not have complied with this rule at the proper time.

The relevant documents have been considered by the learned Primary Court Judge and hence is very much material for the maintainability of this revision application.

In these circumstances, we see no reason to interfere with the findings of the learned High Court Judge. Thus, we decide that this appeal should stand dismissed.

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL

H.A. PRASANJI THUSITHA KUMARA DIAS AND OTHERS

HETTIARACHCHIGE DIAS AND OTHERS - HON MAHINDA SAMAYAWARDHENA, J

CA CASE NO: CA (PHC) 221/2017

HC KURUNAGALA CASE NO: HCR/49/2016
MC KURUNAGALA CASE NO: 79308/66

1. H.A. Prasanji Thusitha Kumara Dias,
No. 421, Malkaduwawa,
Kurunagala.

Respondent-Petitioner-Appellant

2. N.L.D.G. Uthika Dias,
No. 421, Malkaduwawa,
Kurunagala.

Intervenient Petitioner-Appellant
Vs.

1. Hettiarachchige Dias,

2. Jasinthu Hewage Kalyanawathie Dias,
No. 82,
Malkaduwawa Circular Road,
Kurunagala.

Complainant-Respondent-Respondents

Before : K.K. Wickramasinghe, J.
Mahinda Samayawardhena, J.

Counsel : Lukshman Perera, P.C., with Upendra Walgampaya for the Appellant. Jacob Joseph for the Respondent.

Decided on : 11.05.2019

Mahinda Samayawardhena, J.

The two petitioners, father and mother respectively, filed this application in the Magistrate's Court of Kurunagala against their son under section 66(1)(b) of the Primary Courts' Procedure Act seeking the following reliefs in the prayer to the petition:

a) Issue notice on the respondent

b) Issue an interim order under section 67(3) of the aforesaid Act preventing the son from entering the land

c) Order the son not to harass the petitioners and their family members

d) Order not to commit breach of the peace

e) To confirm the peaceful and uninterrupted possession of the petitioners in respect of the land

The son filed objections by way of an affidavit seeking to dismiss the petitioners' application and to confirm his possession to the land and appurtenant buildings thereto.1

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¹ Vide page 390 of the brief.

Thereafter the petitioners filed unusually long counter objections by way of an affidavit containing as much as 244 paragraphs seeking the same reliefs as prayed for in their original affidavit.2

Both parties have filed a large number of documents in support of their cases.

Thereafter the learned Magistrate by order dated 28.04.2016 has ordered the petitioners to be restored in possession as they have been forcefully dispossessed by the respondent son within two months prior to the filing of the application.

Being aggrieved by this order, the respondent son has filed a revision application before the Provincial High Court of Kurunagala seeking to set aside the said order.

The learned High Court Judge has dismissed the revision application by order dated 07.11.2017.

It is against the said order of the High Court the respondent son (hereinafter "the appellant") has come before this Court by way of final appeal naming his father and the mother as respondents (hereinafter "the respondent").

The learned High Court Judge has not gone into the merits of the matter, but dismissed the revision application on two grounds:

a) No exceptional grounds have been presented, and

b) The matter is pending before a civil court

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² Vide page 159 of the brief.

I cannot understand on what basis the learned High Court Judge has stated that there are no exceptional grounds when the appellant in the petition itself has averred exceptional grounds.

In my view, there is no magic about "exceptional grounds". If the order complained of is manifestly erroneous, that is an exceptional ground to invoke the revisionary jurisdiction of the Court. In cases where the aggrieved party's only remedy is to come by way of revision, such as in a section 66 application, as the right of appeal is expressly denied by section 74(2) of the Act, in my view, averring exceptional circumstances is not necessary. Showing "exceptional circumstances" as a threshold test becomes necessary only in instances where a party who has the right of appeal comes before the Appellate Court by way of revision.

Regarding the other ground on which the revision application was dismissed, no submissions were made by either party before this Court that a civil case was pending in respect of the dispute in the District Court. I find no such proof in the brief either. On the other hand, pending a civil case does not prevent the Magistrate's Court or the High Court from entertaining an application under section 66 so long as no interim order has been made by the District Court.

In this regard, this is what Sharvananda J. (later C.J.) stated in Kanagasabai v. Mylwaganam:3

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³ (1976) 78 NLR 280 at 282

In my view, the learned Magistrate has mis-directed himself as to the nature of the proceedings under section 62 of the Administration of Justice Law [which corresponds to section 66 in the present Law] and the ambit of his jurisdiction in relation to proceedings pending in a civil Court. As was stated in Imambu v. Hussenbi (A.I.R. 1960 Mysore 203) : "If a civil Court decided the question of possession even for the purpose of giving an interim injunction, the Magistrate, acting under Section 145 of the Indian Criminal Procedure Code (which corresponds to section 62 of our Administration of Justice Law) should respect that decision. But 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."

For the aforesaid reasons, I first set aside the order of the learned High Court Judge.

The next matter to be decided is the correctness of the Magistrate's Court order.

At first glance, it appears to me that, the relief given by the learned Magistrate is not what the respondent sought from the Magistrate's Court, and to that extent, the order of the learned Magistrate is open to challenge.

According to the prayer to the petition as well as the prayer to the counter-affidavit filed by the respondent in the Magistrate's Court, which I reproduced above (albeit not in verbatim), what the respondent sought for was to confirm his possession and prevent the appellant from entering the premises. That was on the basis that the respondent was in possession of the premises on the date the application was filed in Court. To put differently, the respondent was seeking relief in terms of section 68(1) read with section 68(2) of the Primary Courts' Procedure Act.

But the learned Magistrate granted relief to the respondent on a completely different basis. That is on the basis that the respondent has been forcibly evicted by the appellant within two months before filing the application in Court. The relief granted was in terms of section 68(3) of the Act.

I must say that the legal principles applicable in these two instances are not the same, but completely different.

Two issues come to my mind in this regard.

Firstly, the principle that no Court is empowered to grant relief to a party which has not been pleaded in the prayer to his pleading. In my view, this is not an absolute principal. I will deal with it in another case.

Secondly, the system of justice which prevails in our country is adversarial and not inquisitorial and therefore the Judge shall decide the matter on how it has been presented before him by the two competing parties.

Those are technical objections, which I am not inclined to cling on to dispose of the appeal conveniently, as it would give the impression to the parties that their substantive issue was not addressed by Court. That will not auger well for the justice system of our country.

Hence, let me now consider on what basis the learned Magistrate decided to grant relief to the respondent under section 68(3).

Although the order of the learned Magistrate runs into 37 pages, the decision of the learned Magistrate is based on two documents tendered by the respondent, which are P50 and P53.

For better understanding I will reproduce below the relevant portion of the order of the learned Magistrate.

The learned Magistrate has then considered the complaint made by the respondent father to the police on 01.12.2015 marked P2, just 8 days before filing the application in the Magistrate's Court. In that complaint the respondent has stated that he gifted the property in suit on 26.11.2015 by way of a deed to his

It is relevant to note that the respondent had earlier gifted the premises to the appellant in 20015 and thereafter, unknown to the appellant, has revoked the deed of gift on his own, before he gifted it to the grandson on 26.11.2015.

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⁴ Vide page 55 of the brief.
⁵ Vide the deed at page 320 of the brief.

Let me now refer to P50 and P53. P53 invoice6 goes to prove that the private security firm employed a security officer to the premises from 27.11.2015-30.11.2015. P50 affidavit7 has been given by the security officer who was on duty when the appellant stormed the premises on 01.12.2015. He states therein that he came to the premises on 30.11.2015.

That means, private security guards had been employed from 27.11.2015-01.12.2015 only.

The learned Magistrate has come to the conclusion that the appellant forcibly dispossessed the respondent on 01.12.2015, which is within 2 months prior to the filing of the application, because at that time the respondent had padlocked the premises and employed a security officer to protect the premises. This is a superficial way of looking at the issue.

It may be recalled that earlier the learned Magistrate came to the conclusion that the appellant ran the business in the premises. Thereafter the respondent, on 26.11.2015, gifted the premises to his grandson and padlocked the premises and employed a security guard. Why did the respondent padlock the premises and employ a security guard? That was to prevent the appellant from entering the premises. Then it is clear that, it is the respondent who first dispossessed the appellant and padlocked the premises within two months before filing the application. The appellant has forcibly entered the premises five days after such dispossession. The respondent filed the application on 09.12.2019. Under those circumstances, the respondent cannot

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⁶ Vide page 356 of the brief.
⁷ Vide page 352 of the brief.

be granted the relief under section 68(3) on the basis that he was dispossessed by the appellant within two months before filing the application as it was the appellant who was in possession of the premises before he was first dispossessed by the respondent within two months immediately prior to filing the application.

I set aside the order of the learned Magistrate dated 28.04.2016 and allow the appeal of the appellant with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

FRANCIS CHAMINDA PERERA

OFFICER IN CHARGE, POLICE STATION, NEGOMBO - HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 171/2012

HIGH COURT OF NEGOMBO CASE NO: HC/RA/106/10
MC NEGOMBO CASE NO: A 24323

Francis Chaminda Perera,
No. 264/2,
Asokarama Road,
Aadiambalama.

Substituted 2nd Party
Respondent-Petitioner-Appellant
Vs.

1. Officer in Charge,
MO Branch,
Police Station,
Negombo.

Complainant-Respondent-Respondent-Respondent

2. Kurugamage Shelton Fernando,

1st Party Respondent-Respondent-Respondent

3. Hon. Attorney General,

Respondent-Respondent-Respondent

Before : K.K. Wickramasinghe, J. (Acting P/CA)
Mahinda Samayawardhena, J.

Counsel : Anslem Kaluarachchi for the 2nd Party Appellant.
Sudarshani Cooray for the 1st Party Respondent.

Decided on : 26.03.2019

Samayawardhena, J.

The 2nd party respondent-petitioner-appellant (appellant) filed this appeal against the order of the learned High Court Judge dated 08.11.2012, which affirmed the order of the learned Magistrate dated 19.02.2010.

This is an application filed by the police under section 66 of the Primary Courts' Procedure Act, No. 44 of 1979. The learned Magistrate relying on Mansoor v. OIC Avissawella [1991] 2 Sri LR 75 held that he had no jurisdiction to make a determination as the dispute is in relation to tenancy rights of a paddy field. That decision is based on the general principle that "Where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that tribunal and not to others."

The paddy field in dispute is alleged to have been cultivating by the 1st party-respondent-respondent (respondent) as the ande cultivator under the appellant when the latter as the owner tried to disturb the possession of the former. Therefore the learned Magistrate has ordered the parties to maintain status quo and allowed the respondent to continue with the possession until the matter is determined by a competent Court.

In my view, this should be amended to read as, by allowing the respondent to continue with the possession until the matter is determined by the Commissioner General of Agrarian Services in terms of the scheme provided for by the Agrarian Development Act, No. 46 of 2000, as amended. Even the District Court has no jurisdiction to hear and determine this matter on the aforesaid general principle.

The learned counsel for the appellant finds no fault with the main finding of the order, i.e. the Magistrate's Court/Primary Court has no jurisdiction to determine this matter. His objection is regarding the latter part of the order whereby the learned Magistrate ordered the parties to maintain status quo, which, according to the learned counsel, is contrary to his own admission of lack of jurisdiction. To put differently, what the learned counsel for the appellant says is that the learned Magistrate has no jurisdiction to order to maintain status quo.

I regret I am unable to agree with that argument. The primary objective of filing a section 66 application is to prevent breach of the peace. Merely because the learned Magistrate does not have jurisdiction to make the final order as the parties ought to go before the special tribunal set up under the Agrarian Development Act to seek relief, that does not and shall not prevent the learned Magistrate to make an order to maintain status quo until the parties go before the said Tribunal/Commissioner of Agrarian Development. The Court has inherent power to make such an order for otherwise there will a breach of the peace between the Court deciding that it has no jurisdiction to make a determination and the parties going before the special Tribunal/Commissioner of Agrarian Development seeking relief. Practically the parties cannot go before the Commissioner on the same day on which the learned Magistrate decides that he has no jurisdiction.

By way of analogy, the position under the Arbitration Act, No. 11 of 1995 can be considered. Section 5 of the Arbitration Act states:

Where a party to an arbitration agreement institutes legal proceedings in a court against another party to such agreement in respect of a matter agreed to be submitted for arbitration under such agreement, the Court shall have no jurisdiction to hear and determine such matter if the other party objects to the court exercising jurisdiction in respect of such matter.

In short, when there is an arbitration clause in an Agreement sought to be enforced, the ordinary Courts have no jurisdiction to determine the matter. However our Courts have held that such ousting of jurisdiction does not prevent the District Court or the Commercial High Court as the case may be to make interim orders to preserve the status quo until the matter is taken over by the Arbitration Tribunal.

In Baksons Textile Industries Ltd v. Hybro Industries Ltd1, Edussuriya J. in the Court of Appeal held:

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¹ CA No.51/97, argued and decided on 28.04.1997

As far as the Arbitration Clause is concerned there is no doubt that the Arbitration Act provides for settlement of disputes by Arbitration where the agreement sets out so. It has been contended that the Petitioner has already referred the dispute to Arbitration and also that the Arbitration Act provides for interim order to be made. However it is my considered view that until such time a final order resolving any dispute or an interim order is made by the Arbitrator a party is entitled to come before the District Court and obtain interim relief to maintain the status quo.

In the Supreme Court case of Elgitread Lanka (Pvt) Ltd v. Bino Tyres (Pvt) Ltd2, Marsoof J. observed at page 140:

A careful reading of section 5 of the Arbitration Act would reveal that it merely provides that "the court shall have no jurisdiction to hear and determine such matter", but it does not take away the power of court in appropriate circumstances of making other orders supportive of or incidental to the arbitral process, such as for the constitution of the arbitral tribunal or for providing such interim measures as may be necessary to protect or secure the claim which forms the subject matter of the arbitration agreement.

Appeal is dismissed. No costs.

Judge of the Court of Appeal

K.K. Wickramasinghe, J. (Acting P/CA)
I agree.

Judge of the Court of Appeal

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² [2011] BLR 130

LAHURUGE MARY NONA

VS.

ARTHUR MAHENDRA WELIGAMAGE - HON. A.L. SHIRAN GOONERATNE J.

Court of Appeal Case No:CA (PHC) 155/2014
HC Monaragala Revision Application No:2712013
MC Wellawaya Case No: 76577/2013

Lahuruge Mary Nona of
Thanamalwila,
Uva Kuda Oya.
2nd Party Petitioner-Petitioner

Vs.

Arthur Mahendra Weligamage
Thanamalwila,
Uva Kuda Oya.
1st Party Respondent-Respondent

Before :A.L. Shiran Gooneratne J. &
Mahinda Samayawardhena J.

Counsel : Ranjan Suwandaratne, PC for the Petitioner.
I.A.J. Udawatta for the Party of the 1st Part Respondent
Respondent.

Written Submissions: By the 2nd Party Petitioner-Petitioner on 04/09/2018
By the Party of the 1st Part Respondent-Respondent on 24/09/2019

Argued on : 19/09/2019

Judgment on : 23/10/2019

A.L. Shiran Gooneratne J.

The officer in charge of the Thanamalwila police filed an information in the Magistrates Court of Wellawaya, in terms of the provisions contained in Section 66(1)(a) of the Primary Courts Procedure Act No. 44 of 1979 (herein after referred to as the Act), over a disputed right of way between the 2nd Party PetitionerPetitioner (hereinafter referred to as the Petitioner) and the 1st Party RespondentRespondent (hereinafter referred to as the Respondent). The learned Magistrate by order dated 25/07/2013, held that the Respondent is entitled to the unobstructed access to the land which he is in possession. By order dated 03/12/2014, a revision application to set aside the said order filed by the aggrieved Petitioner was refused by the High Court of Monaragala. It is the said order that the Petitioner is seeking to canvass in this application.

The Respondent claims that he is in possession of an allotment of land adjoining his house, where he had constructed a warehouse and access to the land was on permission granted by the state which is obstructed by the Petitioner. By letter dated 05/12/2012, the Divisional Secretary of Wellawaya had informed the Thanamalwila Police that the access road to the land on which the warehouse is

built belongs to the Road Development Authority. The Petitioner in her statement to the Thanamalwila Police dated 05/06/2012, admits that construction material brought to build her house had obstructed the roadway to the warehouse and therefore has undertaken to clear the building material obstructing the said roadway within 3 days.

The learned Magistrate having taken into consideration the information, affidavits and documents filed by the respective parties has concluded that the Petitioner has admitted the existence of a warehouse which was used to store paddy. The existence of a roadway has been admitted by the Petitioner in the statements given to the Thanamalwila Police. The affidavit filed by the sub-post master of Uva-Kudaoya, confirms that the roadway was in existence since 1991.

It is observed that the Respondent had instituted a civil action bearing No. RE/1339 in the District Court of Monaragala against the Petitioner for ejectment from the disputed land, which was dismissed for want of appearance. A revision application preferred against the said judgment was also dismissed.

Taking into consideration, the facts of the case the learned Magistrate correctly held that the question in issue needs to be determined in terms of Section 69 of the Act, in order to decide the right of access to the land.

During the hearing of this application the learned Presidents Counsel for the Petitioner submitted that the Respondent is not entitled to get a declaration in terms of Section 69 of the Act, since a party is not entitled in law to claim a servitude of right of way over a road reservation granted by the state.

The learned Counsel for the Respondent has referred to the case of Ananda Sarath Paranagamu v. Dhammadinna Sarath Paranagama and Others (CA(PHC) APN 117/2013 where A. W.A. Salam J. held that;

"Unlike in the case of a dispute relating to possession of immovable property, no time frame has been laid down 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 10 who is entitled to the right which is the subject mailer of the dispute and make an Order under Section 69(2). "

At page 11 of the said Judgment, it was further held that;

"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 learned Counsel has also drawn attention to the decision In Ramalingam v. Thangarajaha (1982) 2 SLR 693, where the Court held that;

"On the other hand, if the dispute is 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 lime being to exercise that right. In contradistinction to section 68, section 69 requires the Court to determine

the question which party is entitled to the disputed right preliminary to making an order under section 69(2). "

The main object of the proceedings under the Primary Courts Act is to prevent any breach of peace and to restore the party entitled to the right until the dispute is determined by a competent Court.

It is observed that in terms of Section 69(2) of the Act, a determination in respect of a right other than a right of possession is based on user rights acquired by the parties.

In Fernando vs. Wickremasinglle (1998) 3 SLR 37, on an application by the Plaintiff - Respondent to the District Court to restrain the Defendant - Petitioner from using the same right of way, Weerasuriya, J. observed with approval, the findings in M.D.B. Saparamadu v. Violet Catherine Melder CA 688/42F CAM 22.03.96, that;

"where a person who enjoyed a servitude was obstructed, he could bring an action against the person who obstructed him from interfering with the enjoyment of the servitude. However, it was laid down that a person who had no soil rights in respect of a road reservation could not maintain an action for a declaration that defendant was not entitled to a servitude of right of way over such road reservation."

In Jamis v. Kannagara (1989) 2 SLR 350 Palakidnar J. held that:

"the order that can be made under section 69(2) of the Act in regard to a right to any land other than a right to possession is a declaration of entitlement of such

right after determination by a court subject to a final determination by a competent court and prohibition of all disturbance or interference with the exercise of such right by such a party"

Therefore, as provided for in part VII of the Act, the proceedings held before the learned Magistrate was to determine as to the person entitled to the servitude of right of way which is the subject matter of the dispute and make an order in terms of Section 69 of the Act. The said entitlement of a right to possession would in no way preclude the determination of rights of parties before a competent Civil Court.

JUDGE OF THE COURT OF APPEAL

Mahinda Samayawardhena, J.

I agree

JUDGE OF THE COURT OF APPEAL

PAHALA GAMAGE DHARMASENA

VS.

PAHALA GAMAGE ARIYAPALA - HON. L.T.B. DEHIDENIYA, J

Court of Appeal case no. CA/PHC/144/2008

H.C. Galle case no. HC/Rev 1636/08
M.C. Udugama case no. 31404

Pahala Gamage Dharmasena Near
Susila Hardware,
Halwitigala, Malgalla, Thalangalla.

Complainant Petitioner Appellant
Vs.

Pahala Gamage Ariyapala,
"Banagala Kade"
Halwitigala, Malgalla, Thalangalla.

Respondent Respondent Respondent.

Before : P.R.Walgama J.
L.T.B. Dehideniya J.

Counsel : Parties were absent and unrepresented.

Decided on : 10.01.2016

L.T.B. Dehideniya J.

This is an appeal from the High Court of Galle. The parties were absent and unrepresented at the argument of the appeal. They were noticed several times but not responded. The Court received a letter purported to be send by the Respondent stating that he is unable to attend Court due to his ill health and financial restrains that he is facing and moved Court to proceed to deliver judgment. The Appellant did not respond at all.

The Complainant Petitioner Appellant (the Appellant) filed first information in the Magistrate Court of Udugama under section 66(1) (b) of the Primary Court Procedure Act as a private plaint on a land dispute threatening breach of the peace. After filing the affidavits, documents and written submissions the learned Magistrate held that the Respondent Respondent Respondent (the Respondent) was in possession of the land in dispute on the date of filing the first information and ordered that the Respondent is entitle to possess. Being aggrieved by the said determination the Appellant moved in revision in the High Court of Galle where the order of the learned Magistrate was affirmed. This appeal is from the said order.

The first information was filed in the Magistrate Court on 24th May 2007 stating that the possession of the land was with the Appellant and the Respondent was disturbing possession. The Appellant prayed for an order to prevent the Respondent from disturbing the possession of the Appellant. The Appellant came to Court on the premise that he was in possession of the land on the date of filing the first information.

He has made a complaint to the police on 10.02.2007 stating that his labourer V.M. Sirpala was chased out by the Respondent and when he went to see the situation he was also threatened to assault with a knife. Thereafter he says that "I went home". This is a clear dispossession of the Appellant by the Respondent on 10.02.2007. The Appellant has not taken any action against it but has just gone home. There is no any evidence to show that the Appellant possessed the land thereafter. The Appellant made another complaint on 05.05.2007 stating that the Respondent had pruned about 3000 tea bushes. Pruning tea bushes is an essential step in tea cultivation.

The Appellant's own statements to the police establish that the land in dispute was in possession of the Respondent at least from 10.02.2007 and continued even on 05.05.2007. The first information filed on 24.05.2007. The Appellant had failed to establish that he was in possession on the date of filing of the first information.

I see no reason to interfere with the finding of the learned High Court Judge.

The appeal dismissed without costs.

Judge of the Court of Appeal

P.R.Walgama J.

I agree.

Judge of the Court of Appeal

MOHOMED HANEEFA MOHOMAD IRSHAN

VS.

DON LAL MICHEL HETTIARACHCHI AND OTHERS - HON. MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 214/2014
SABARAGAMUWA PROVINCIAL HIGH COURT CASE NO: RA83/2012
RATNAPURA ADDL MAGISTRATE'S COURT CASE NO: 83359

Mohomed Haneefa Mohomad
Irshan,
Kudugalwatta,
Ratnapura.

2nd Party-Respondent-Appellant
U.M. Anwar Rosa,
No.7/3, Godigamuwa,
Ratnapura.
3rd Party-Respondent-Appellant

Don Lal Michel Hettiarachchi,
No.11, Election Houses,
Sri Pada Mawatha,
Ratnapura.
1st Party Petitioner-Respondent

Before: K.K. Wickramasinghe, J.

Mahinda Samayawardhena, J.

Counsel: Asanka Dissanayake for the 2nd and 3rd Party Appellants.
Tharanga Edirisinghe for the 1st Party Respondent.

Argued on: 02.04.2019

Decided on: 05.04.2019

Samayawardhena, J.

The first information was filed by the police before the Magistrate's Court under section 66 of the Primary Courts' Procedure Act, No.44 of 1979, making the 1st party respondent and the 2nd and 3rd party appellants parties to the matter on the basis that there was an imminent threat to the breach of the peace among the parties over possession of a portion of a land. There is no dispute about the identification of the said portion. The contest was between the 1st party respondent (respondent) and the 2nd party appellant (appellant). It is inconceivable why the 3rd party also appealed and actively participated in the appeal because he sought no relief from the Magistrate's Court.1

After inquiry, the learned Magistrate, in terms of section 68(1), held with the appellant on the basis that it was the appellant who was admittedly in possession of the portion of the land on the date the first information was filed in Court, and the respondent, in terms of section 68(3), had not proved

____________

¹Vide page 342 of the brief.

dispossession within two months prior to the filing the said information.

This order was set aside by the High Court in revision, and held with the respondent. This appeal is from the Judgment of the High Court.

In the facts and circumstances of this case, the Judgment of the High Court is correct.

The respondent complained to the police on 09.11.2011 about forcible dispossession of him from the portion of land in dispute by the appellant on the same day.2 Soon after the complaint was made, a police officer has visited the scene and made notes.3 From those notes it is quite clear that the respondent had been in possession of this portion of land until he was dispossessed by the appellant on that day. This portion of land is just behind the eatery of the respondent, and according to the said police notes, that part had been using by the respondent to dispose waste. 4 The fact that the respondent had been in possession of this portion of land is further confirmed by the inspection notes made by a former Magistrate in respect of another section 66 application in respect of the same portion of land with another party marked 1V20.5

According to paragraph 4 of the affidavit filed by the appellant before the Magistrate's Court, he has taken possession of the adjoining premises (house) from one Hapangama on ______________________

²Vide page 304 of the brief.
³Vide page 305 of the brief.
⁴Vide lines 9-11 from bottom of page 305 of the brief.
⁵Vide pages 365-370 of the brief.

14.11.2011.6 That means, if at all he has come into possession of the disputed portion of the land, he has done so only one week before the filing of the first information. He has not had any possession before that date.

The police officer who visited the scene on 09.11.2011 has clearly stated that the house which the appellant is alleged to have bought from Hapangama was an abandoned house, which has not been used for a long time by anybody.7 That means, Hapangama had not been in possession of the disputed portion of the land before.

For the aforesaid reasons, it is clear that the respondent had been forcibly dispossessed from the disputed portion of the land by the appellant within two months immediately before the filing of the first information in Court, and therefore the respondent was entitled to be restored in possession in terms of section 68(3) of the Act.

Appeal is dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.

I agree.

Judge of the Court of Appeal

__________________
⁶Vide page 328 of the brief.
⁷Vide lines 5-8 from bottom of page 305 of the brief.

CARDER MOHIDEEN MOHAMED NASAR

VS.

OFFICER IN CHARGE,POLICE STATION, WELLAWATTA AND OTHERS - HON K. K.WICKREMASINGHE, J.

C.A. Case No: CA (PRC) 07/2013
P. H.C. Colombo Case No:HCRA 163/2012
M. C. Wellawatta Case No: 54060

In the matter of an Appeal under Article 154P (6) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Officer in Charge,
Police Station,
Wellawatta.

Complainant

Vs.

Carder Mohideen Mohamed Nasar,
No. 15 , 46th Lane,
Wellawatta.

Accused

AND BETWEEN

Carder Mohideen Mohamed Nasar,
No. 15, 46th Lane,
Wellawatta.

Accused-Petitioner

Vs.

Officer in Charge,
Police Station,
Wellawatta.

Complainant-Respondent

The Attorney General
Attorney-General's Department,
Colombo 12.

Respondent

AND NOW BETWEEN

Carder Mohideen Mohamed Nasar,
No. 15, 46th Cane;
Wellawatta.

Accused-Petitioner
Appellant

Vs.

Officer in Charge, Police Station,
Wellawatta.

Complainant-Respondent
Respondent

The Attorney General
Attorney-General's Department,
Colombo
12

Respondent-Respondent

BEFORE : K. K. Wickremasinghe, J.
Mahinda Samayawardhena, J.

COUNSEL: Shanaka Ranasinghe, PC with AAL Sandamali Pieris and AAL Nisith
Abeysuriya for the Accused-PetitionerAppellant

Nayomi Wickremasekara, SSC for the Respondent-Respondents

ARGUED ON : 21.03.2019

WRITIEN SUBMISSIONS : The Accused-Petitioner-Appellant - On 22.05.2019
The Respondent-Respondents - On 31.05.2019 & 28.08.2018

DECIDED ON: 10.10.2019

K.K.WICKREMASINGHE, J.

The Accused-Petitioner-Appellant has filed this revision application seeking to revise the order of the Learned High Court Judge of Provincial High Court of Western province holden in Colombo dated 01.02.2013 in case No. HCRA 163 /2012 and seeking to revise the order of the Learned Magistrate of Mt. Lavinia dated 12.10.2012 in case No. 54060.

Facts of the case:
The accused-petitioner-appellant (hereinafter referred to as the 'appellant') was charged in the Magistrate' s Court of Mt. Lavinia under case No. 54060, for an

offence punishable under the Primary Courts ,Procedure Act. The charge was read over to the appellant in open court and the appellant pleaded not guilty. Accordingly, a trial commenced and proceeded against the appellant. The appellant raised a preliminary objection stating that the Learned Magistrate had no jurisdiction since the appellant moved in revision to the High Court under case No. HCRA 58/2010. On 03.02.2011, the Learned Magistrate made an order overruling the said preliminary objection. In the said order, the Learned Magistrate had reproduced the charge and included penal section i.e. Section 73 of the Primary Courts Procedure Act, in the said charge. At the trial, the prosecution led evidence of PW 02, 03 and 05 and all the witnesses were cross-examined on behalf of the appellant.

At the conclusion of the prosecution case, the Learned Counsel for the appellant made an application in terms of section 186 of the Code of Criminal Procedure Act, to acquit or discharge the appellant since the charge sheet did not contain a penal section. The prosecution sought permission of Court to amend the charge and the Learned Magistrate allowed the same. The appellant preferred an application for revision against the said order of the Learned Magistrate. The Learned High Court Judge of Colombo refused to issue notice on the respondent and dismissed the said revision application. Being aggrieved by the said dismissal, the appellant preferred this appeal.

The Learned President's Counsel for the appellant contended that the judgment of the Learned High Court Judge is contrary to law and is against the principles of law.

At this juncture, it is imperative to look into relevant sections in the Code of Criminal Procedure Act (hereinafter referred to as the 'CCPA'), on framing

charges and amending charges. As per section 164 of CCPA, there are certain components that need to mentioned in a charge. Section 164(4) states that law and section of the law, under which the offence said to have been committed is punishable, shall be mentioned in the charge. The Learned President's Counsel for appellant argued that this requirement in section 164 (4) is mandatory. However, as per section 166 of CCP A, any error in stating either the offence or the particulars required to be stated in the charge and any omission to state the offence or those particulars shall not be regarded at any stage of the case as material, unless the , accused was misled by such error or omission. There are several case law decided on this question which I wish to refer to at this stage.

In the case of Jayaratne Banda V. Attorney General (1997) 3 Sri LR 210, it was held that,

" ... The defence the accused-appellant had taken was a simple denial of the commission of the crime. There is nothing in the petition of appeal to indicate that due to the mistake in the indictment the accused-appellant was misled and thereby caused prejudice to his defence. In the circumstances it is not difficult for us to conclude that the presence or absence of the 'error' could not have made any difference to the general conduct of the defence and therefore cannot be regarded as a material error in terms of Section166 of the Code ...

In Molagoda v. Gunaratne (39 NLR 226) Counsel for the accused-appellant sought to elevate the question of the wrong Gazette in the charge to a fundamental defect of procedure. He contended that an omission to frame a charge in accordance with the provisions of the Criminal Procedure Code was an omission to frame a charge at all. This argument was rejected by the

Supreme Court which held that a bread! of a specific rule of law in the Code was curable by the application of Section 425 of the Old Criminal Procedure Code (which is equivalent to section 436 of the present Code) if the breach had not caused a failure of justice ... "

In the case of Nan des en a V. JP, Ragala (1961) 66 NLR 300, it was held that,

" ... There is an obvious error in respect of the section charged, for the section should be section 68 (8) and not 69"(8), but that error is one which I am satisfied, has not occasioned a failure of justice': Applying section 425 of the Criminal Procedure Code I hold that the accused is not entitled to claim an acquittal on that account ... "

In the case of D.R.M. Pandithakoralge V. V.K. Selvanayagam (56 NLR 143), it was held that,

"There can be no doubt that the accused was in no way misled by the mistake as regards the date in the plaint. In the case of William Edward James (17 CAR 116) it was held that a mistaken date in an indictment, unless the date is of the essence of the offence or the accused is prejudiced, need not beformally amended ... "

In the case of R.T. Wilbert and 3 others V. Newman (75 NLR 138), it was held that,

"However, a charge which is bad for duplicity is not necessarily fatal to the conviction if it has not caused prejudice to the accused and is curable under section 425 of the Criminal Procedure Code ... "

In the case of Weerasinghe V. Samy Chettiyar (43 NLR 190), it was held that,

"...It is true that the attention of the appellant was not directed to the fact that he committed an offence under this particular section of the law. On the other hand, I do not think that he has been prejudiced in any way by such failure to direct his attention to the right section. I think the case is met by section 171 of the Criminal Procedure Code ... "

The Learned SSC for the complainant-respondent-respondent and the respondent respondent (hereinafter referred to as the 'respondents') submitted several decided cases including the following;

1. Pieris V. Gunasekara [17 NLR 476]

2. Meera Natchiya V. Marikar [41 NLR 319]

3.Wickramasinghe V. Chandradasa [67 NLR 550]

In the case of Meera Natchiya, it was held that,

" ...I think a reference in the charge to the name of the offence as specified in the Code was sufficient to give the appellant notice of the matter with which he was charged. In the circumstances of this case, moreover, the omission to state the proper particulars was not material inasmuch as the accused could not be said to have been misled by such omission ... "

In the case of H.P.D. Nimal Ranasinghe V. OIC, Police, Hettipola [Se Appeal 149/2017], it was held that,

"The question that must be decided is whether any prejudice was caused to the accused-appellant as a result of the said defect in the charge sheet or whether he was misled by the said defect. It has to be noted here that the accused-appellant, at the trial, had not taken up an objection to the charge sheet on the basis of the said defect. In this connection judicial decision in

the case of Wickramasinghe Vs Chan,dradasa 67 NLR 550 is important. Justice Sri Skanda Rajah in the said case observed the following facts.

"Where in a report made to Court under Section 148(1)(b) of the Criminal Procedure Code, the Penal Provision was mentioned but, in the charge sheet from which the accused was . charged, the penal section was not mentioned. "

His Lordship held as follows;

"The omission to mention in a charge sheet the penal section is not a fatal irregularity if the accused has not been misled by such omission. In such a case Section 171 of the Criminal Procedure Code is applicable. "

Some of these cases were decided under the previous Criminal Procedure Code No. 15 of 1898. Therefore, it is imperative to note that section 166 of the Code of Criminal Procedure Act 15 of 1979 is equivalent to section 171 of the previous code whereas section 436 of the Code of Criminal Procedure Act is equivalent to section 425 of the Previous Code.

In light of above, it is manifestly clear that mere absence of the penal section would not be regarded as a fatal error unless the appellant was misled or grave prejudice was caused due to such omission. I observe that in the instant appeal, the charge contains the particulars such as the date f offence, the place of offence and a lengthy description of the offence committed. I think the charge is descriptive enough to give the appellant of notice as to, for what he is being charged. Therefore, I am of the view that no prejudice had been caused to the appellant by mere omission of the penal section.

The Learned President's Counsel for the appellant contended that the Learned High Court Judge failed to analyze that the Learned Magistrate erred in law by permitting the prosecution to amend the defective charge and it is the duty of a Magistrate to frame charge and not of the prosecution. The Learned President's Counsel further argued that the Learned High Court Judge erred in law by ordering that the appellant had a burden to point out to the Magistrate about the defect of the charge. The cases of Abdul Sameem V. The Bribery Commissioner (1991) 1 SLR 76 and David Perera V. Attorney General and another (case reference or a copy of the case was not submitted) were cited in support of this contention.

In answer to the said contention, the Learned SSC for the respondents submitted that under section 167 of the CCPA, any court may alter any indictment or charge at any time before judgment is pronounced, or in the case of trials before the High Court by a jury, before the verdict of the jury is returned.

I observe that in the case of Abdul Sameem (supra), the issue of failure to frame a charge sheet by the Learned Magistrate was discussed. In the case of Abdul Sameem, a written report was filed by the Bribery Commissioner, that the accused had committed two offences under the Bribery Act and the Magistrate adopted the said report by placing a sea l. Therefore, there had been a total failure to frame a charge by the Learned Magistrate. In the instant case before us, the Learned Magistrate duly framed the charge, complying with Section 182 (1). Therefore, I do not find that the Abdul sameem case to be supportive of the contention made by the Learned President's Counsel. Since the Magistrate is empowered to amend a charge, prior to delivering the judgment, allowing the prosecution to make necessary amendment did not cause any injustice or prejudice. Even though the charge was physically amended by the prosecution, it was under the authority and

order of the Learned Magistrate. Therefore,. there is no prejudice caused to the appellant and further, there is no irregularity or illegality in the said order.

In the case of H. G. Sujith Priyantha V. OIC, Police station, Poddala and others [CA (PHC) 157/2012], it was held that,

"In this instance, the claim of the appellant who is not an accused in the case had been made after the two accused were found guilty on their own plea. Therefore, it is understood that the Court was not in a position to consider the validity of the charge sheet at that belated point of time ... Moreover, in the event this court makes a determination on the issue as to the defects in the charge sheet at this late stage, it may lead to raise questions as to the conviction of the accused as well. Such a position is illogical and certainly it will lead to absurdity. Such an absurdity should not be allowed to prevail before the eyes of the law ... "

In the aforesaid case of Jayaratne Banda (supra), it was further held that,

" ... Had the objection to the indictment been taken at the trial it would have been open to Court to have acted under Section 167 of the Code of Criminal Procedure Act to amend the indictment. Senior Counsel for the appellant too conceded that is was open for the prosecution to have amended the indictment at any stage before the close of the prosecution case ... "

In the case of A.K.K. Rasika Amarasinghe V. Attorney General and another [SC Appeal 140/2010], it was held that,

"The Accused-Appellant has not raised an objection to the charge at the trial. In the first place we note that at page 97, the Accused-Appellant has admitted that he knows about the charge. As I pointed out earlier the Accused-Appellant has failed to raise any objections to the charge at the

trial. In this regard I rely on the judgment of the Court of Criminal Appeal in 45 NLR page 82 in King V. Kitchilan wherein the Court of Criminal appeal held as follows:

"The proper time at which an objection of the nature should be taken is before the accused has pleaded"

It is well settled law that if a charge sheet is defective, objection to the charge sheet must be raised at the very inception."

Accordingly, I am of the view that the appellant should have raised his objection with regard to the charge at the commencement of the trial. Even though the appellant did not have a burden to point out to the Magistrate any defect in the charge sheet, it is trite law that an objection to charge should be raised as early as possible.

Therefore, not raising any objection shall be regarded as a waiver on the part of the appellant since it is implied that he clearly understood the charge. The appellant had pleaded not guilty and stood for trial. The Learned Counsel for the appellant, in the Magistrate's Court, had raised a preliminary objection once, but did not object to the charge sheet. The Learned Magistrate in the order, with regard to the said preliminary objection, had reproduced the charge and mentioned section 73 of the Primary Courts Procedure Act. Even the police plaint contained the relevant penal section. It appears that the absence of the penal section in the charge was a typographical error. Considering all these facts , I am of the view that the appellant did not raise any objection to the charge even though he had ample opportunity to do so. Therefore, he should not be allowed to throw technical objections at the procedure in order to delay the court proceedings.

Considering above, I see no reason to interfere with the orders of the Learned Magistrate and the Learned High Court Judge since both orders were made well within law. Therefore, I affirm the same.

The appeal is hereby dismissed without costs.

JUDGE OF THE COURT OF APPEAL

Mahinda Samayawardhena, J.

I agree,

JUDGE OF THE COURT OF APPEAL

__________________________________

Cases referred to:

1. Jayaratne Banda V. Attorney General (1997) 3 Sri LR 210

2. Nandesena Y. IP, Ragala (1961) 66 NLR 300

3. D.R.M. Pandithakoralge V. Y.K. Selvanayagam (56 NLR 143)

4. R.T. Wilbert and 3 others V. Newman (75 NLR 138) .

5. Weerasinghe V. Samy Chettiyar (43 NLR 190)

6. Meera Natchiya V. Marikar-[41 NLR 319]

7.H.P.D. Nimal Ranasinghe V. OIC, Police, Hettipola [SC Appeal 149/2017]

8. H. G. Sujith Priyantha V. OIC, Police station, Poddala and others [CA (PHC) 157/2012]

9. A.K.K. Rasika Amarasinghe V. Attorney General and another [SC Appeal 140/2010]

DIAS DHARMASIRI GINIGE

VS.

LABUNA HEWAGE SIRIPALA AND OTHERS - HON JANAK DE SILVA, J.

Case No: CA(PHC) 288/2005
H.C. Galle Case No: Rev 399/2004
M.C. Galle Case No: 18541

In the matter of an application under Article 154P of the Constitution of the Democratic Socialist Republic of Sri Lanka read with provisions of the High Court of the Provinces (Special Provisions) Act No.19 of 1990.

Officer in Charge
Police
Station,
Hikkaduwa.

Plaintiff

Vs.

1. Labuna Hewage Siripala
Berethuduwa Road,
Gonapinwala

1st Party Respondent

2. Dias Dharmasiri Ginige
Berethuduwa Road,
Gonapinwala.

2nd Party Respondent

AND BETWEEN
Dias Dharmasiri Ginige
Berethuduwa Road,
Gonapinwala.

2nd Party Respondent-Petitioner

Vs.

Labuna Hewage Siripala
Berethuduwa Road,
Gonapinwala.

1st Party Respondent-Respondent

Officer in Charge
Police
Station,
Hikkaduwa.

Plaintiff-Respondent

AND NOW BETWEEN
Dias Dharmasiri Ginige
Berethuduwa Road,
Gonapinwala.

2nd Party Respondent-Petitioner-Appellant

Vs.

Labuna Hewage Siripala
Berethuduwa Road,
Gonapinwala.

1st Party Respondent-Respondent-Respondent

Officer in Charge
Police
Station,
Hikkaduwa.

Plaintiff-Respondent-Respondent

Before: K.K. Wickremasinghe J.
Janak De Silva J.

Counsel: Rohan Sahabandu P.c. with Chathurika Elvitigala for 2nd Party Respondent-Petitioner-Appellant
Nadun Fernando for 1st Party Respondent-Respondent-Respondent

Written Submissions tendered on: 1st Party Respondent-Respondent-Respondent on 25.09.2018

Argued on: 23.07.2018

Decided on: 04.04.2019

Janak De Silva J.

This is an appeal against the judgment of the learned High Court Judge of the Southern Province holden in Galle dated 19.10.2005.

The Plaintiff-Respondent-Respondent (Plaintiff) instituted proceedings in the Magistrates Court of Galle in the above styled application in terms of section 66(1)(a) of the Primary Courts Procedure Act (Act). The report stated that there was a dispute affecting land between the 1st Party Respondent-Respondent-Respondent (Respondent) and 2nd Party Respondent- Petitioner Appellant (Appellant) indicating an imminent breach of peace and sought appropriate orders from court.

Parties were permitted to file affidavits and counter affidavits. Thereafter with the consent of parties' court held a site inspection to ascertain whether any settlement is possible. Since there was none court made order on 11.05.2004 holding that the Appellant did not have a right of way over the land in dispute of the Respondent and that the Respondent is entitled to possession of the said land in dispute

The Appellant filed a revision application in the High Court of the Southern Province holden in Galle which was dismissed by the learned High Court Judge and hence this appeal.

In Siripala v. Lanerolle and another [(2012) 1 Sri L.R. 105] Sarath De Abrew J. held that revision would lie if-

(i) aggrieved party has no other remedy

(ii) if there is, then revision would be available if special circumstances could be shown to warrant it

(iii) Party must come to court with clean hands and should not have contributed to the current situation.

(iv) he should have complied with the law at that time

(v) acts should have prejudiced his substantial rights

(vi) acts should have occasioned a failure of justice.

I will now consider whether the grounds urged by the Appellant comes within these principles.

The learned Magistrate held that the dispute before court was on a right of way and therefore court must make order in terms of section 69 of the Act.

Section 69(2) of the Act enables the Primary Court judge to make order declaring 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 by such party other than under the authority of an order or decree as aforesaid. In Ramalingam v. Thangarajah [(1982) 2 Sri L.R. 693 at 699] Sharvananda J. (as he was then) stated as follows:

In the instant case the Respondent in his first complaint to the Police stated that the Appellant had encroached onto his land and built a road to his house over part of the land belonging to the Respondent. On the other hand, the Appellant in his statement to the Police while admitting that he had encroached onto a portion of the land of the Respondent submitted that there was in fact an old road over the disputed land and that after the Respondent blocked it, he cleared the road again. The sketch and report prepared by the Police state that it appears that the Appellant had constructed a new road to his house over a portion of land belonging to the Respondent. The Appellant failed to adduce any evidence of the previously existing roadway.

In this context the learned Magistrate was correct in determining that the Respondent is entitled to possession of the said land in dispute. This appears to be an order made under section 68 of the Act although the order is silent on that point.

In fact, the learned High Court Judge concludes that it is an order made under section 68 of the Act. The learned Magistrate began the inquiry by stating that it is one where an order must be made under section 69 of the Act. This is the correct approach as the dispute was alleged to be over a right to a roadway. Where such a right is established by a party then an order must be made under section 69 of the Act. However, where such a right to the land in dispute is not established but the evidence shows that in order to try and establish such a right a party has been dispossessed from the land in dispute within a period of two months immediately before the date on which information was filed under section 66 of the Act, like in this case, then court has the power to act under section 68(3) of the Act and order restoration of possession. This is precisely what the learned Magistrate did.

Accordingly, the learned High Court Judge was correct in concluding that the Appellant had failed to establish any exceptional circumstances warranting the intervention of court by way of revision.

For the aforesaid reasons, I see no reason to interfere with the judgment of the learned High Court Judge of the Southern Province holden in Galle dated 19.10.2005.

Appeal dismissed with costs.

Judge of the Court of Appeal

K.K. Wickremasinghe J.

I agree.

Judge of the Court of Appeal

ATHUGAL PEDIGE CYRIL SAMARASINGHE AND OTHERS

IBRAHIM LEBBE MOHOMAD SALEEM - HON MAHINDA SAMAYAWARDHENA, J.

CASE NO: CA/PHC/147/2008

HC CASE NO: PHC KEGALLE 2491/REV
MC MAWANALLA CASE NO: 90116

Athugal Pedige Cyril Samarasinghe
and 30 Others All of Bosella,
Kalugala.

Respondent-Respondent-Appellants
Vs.

1. Ibrahim Lebbe Mohomad Saleem,

2. Ibrahim Lebbe Marikkar Hussain Bari,

3. Mohomad Nawas Saleem,

4. Karuppiah Nawaratnam,
All of Debathgamawatte,
Debathgama, Kegalle.

Petitioner-Petitioner-Respondents

Before : A.L. Shiran Gooneratne, J.
Mahinda Samayawardhena, J.

Counsel : Sunil Abeyratne for the Respondent-Appellants.
Yoosuf Nazar for the Petitioner-Respondents. (Although counsel agreed to dispose of argument
by way of written submissions, no written submissions have been filed on behalf of Petitioner-Respondents.)

Decided on : 25.06.2.2019

Mahinda Samayawardhena, J.

The petitioners filed this action against a number of parties as respondents in the Magistrate's Court under section 66(1)(b) of the Primary Courts' Procedure Act seeking restoration of possession on the basis that, within two months prior to the filing of the action, the said respondents forcibly entered into possession of the land in suit, which the petitioners had been in possession. The respondents denied it. After inquiry concluded by way of written submissions, the learned Magistrate dismissed the application of the petitioners. Being dissatisfied with this order, the petitioners went before the High Court, and the High Court set aside that order and directed the learned Magistrate to make a fresh order having properly considered the material placed before him. It is against this Judgment of the High Court, some of the respondents have filed this appeal before this Court.

The learned Magistrate has dismissed the petitioners' case on two grounds: (a) there was no threat to the breach of the peace and (b) case has been filed two months after the alleged dispossession. The High Court has decided that the learned Magistrate erred on both points.

The learned Magistrate has accepted that the fourth petitioner has made two complaints to the police regarding forcible entry, in that, the first one was on 24.10.2004, and other one, on 13.12.2004. According to the petitioners, the forcible entry has taken place on 23.10.2004. The learned Magistrate has taken the view that the second complaint has been made in order to file this action. Accordingly, he has held that there was no threat to the breach of the peace.

The learned Magistrate has further stated that notwithstanding the alleged dispossession has taken place on 23.10.2004, the case has been filed on 11.01.2005, i.e. more than two months after the said dispossession. This is a gross misdirection of the most material fact as the case has in fact been filed on 21.11.2004 and not on 11.01.2005, the latter date being the notice returnable date.

Then the finding of the learned Magistrate that the second complaint was made to the police on 13.12.2004 for the purpose of filing this action is also erroneous. That complaint has been made between the filing of the case and notice returnable date.

It appears that the learned Magistrate has hurriedly prepared the order without making a proper analysis of the facts presented before him. Setting aside that order by the High Court in revision and directing the learned Magistrate to deliver the order afresh in such circumstances are correct.

Appeal is dismissed. No costs.

Judge of the Court of Appeal

A.L. Shiran Gooneratne, J.
I agree.

Judge of the Court of Appeal

M.M.P.FERNANDO

VS.

S.M.PODIMENIKE & OTHERS

CA (PHC)APN 113/2010

Delpitiya/Gampola PC 46872
HC Kandy 60/200s(Rev)

M.M.P.Fernando

Petitioner-Petitioner
Vs

1. S.M.Podimenike

2. S. Erawpola

3. R.B. Jayaweera

4. Ramiah

5. S. Erawpola

Respondent-Respondents

BEFORE : A.W.A. Salam J
Sunil Rajapakse J

COUNSEL : L.E.Wijewardena for 1, 2, 5 Respondents

ARGUED ON : 20.06.2013

DECIDED ON : 02.12.2013

Sunil Rajapakse J

When the Petitioner's Revision Application was taken up for argument on 20.2.2013 the learned Counsel for the Respondent raised following preliminary objections regarding the maintainability of this application. Those objections are as follows:

i) Although the Petitioner has a right of appeal, the Petitioner has come by way of Revision application and therefore he must aver exceptional circumstances:

ii) The mandatory requirement stating that he has not previously invoked the jurisdiction of this court has not been averred in his petition;

iii) The Petitioner had failed to mention the grounds of revision application;

Both parties agreed to dispose this matter by way of written submissions.

The Petitioner appeared in person and made his submissions.

In this case the Respondents-Respondents-Respondents Counsel urged if there is a statutory right of appeal from an order of the Provincial High Court that the Petitioner could institute an application in Revision only if exceptional circumstances are averred in the Petition. Therefore, the Respondent's main contention is that the Petitioner cannot maintain this revision application as the Petitioner has failed to plead any exceptional circumstances.

With regard to the above objection I am of the view that it is now settled law that the exercise of the revisionary powers is confined to cases in which exceptional circumstances exist warranting the intervention of Court. It is well established principle that a party who has no alternative remedy can invoke revisionary jurisdiction of Court of Appeal only upon establishment of exceptional circumstances. In

Rustome vs Hapangama it has been held inter alia that revision is available to a party even if there is a right of appeal in exceptional circumstances. Further I would also like to consider a judgment of Justice Udalagama in Devi Property Development (Pvt) ltd., and another vs Lanka Medical (Pvt) ltd., C.A.518/01 decided on 20.06.2001. His Lordship in the said judgment observed thus : "Revision is an extraordinary jurisdiction vested in court to be exercised under exceptional circumstances, if no other remedies are available. Revision is not available until and unless other remedies available to the Petitioner are exhausted."

In K.W.Ranjith Samarasinghe vs K.W. Wilbert C.A (PHC) 127/99 and PHC Galle No. 59/98, whereby the Appellant made an appeal to the Court of Appeal from the H.C. Galle against the order under Section 66 of the Primary Court Procedure Act, Sisira de Abrew J held "It is a well established principle that a party who has an alternative remedy can invoke revisionary jurisdiction of a Superior Court only upon establishment of exceptional circumstances. As I observed that the Respondent who sought the revisionary jurisdiction of Court of Appeal has an alternative remedy in this case. Petitioner aggrieved by the judgment of the learned High Court Judge in the exercise of his revisionary jurisdiction against the order made by the learned Magistrate has not appealed against the said order, but he has filed the present application in Revision. I have gone through the Petitioner's petition and note that the Petitioner has not established any exceptional circumstances in his petition. In order to maintain a revision application

an exceptional circumstances should be averred in the petition. But in the present revision application there is no such exceptional circumstances disclosed to grant relief by way of revision. Further the Petitioner has not stated as to what errors of law or facts exist in the order canvassed. In this case the Petitioner has not noted any exceptional circumstances which constituted a grave miscarriage of justice for revise the impugned order of the learned Magistrate. Furthermore , the Petitioner has not specifically elaborated how the impugned order of the Magistrate is illegal and he has no alternative remedies or other remedies rather than revision application".

After considering submissions made by both parties I hold on the facts and circumstances of this case do not warrant the exercise of revisionary powers of the Court. Therefore, I uphold the preliminary objections raised by the Respondents. For the aforesaid reasons the Revision Application of the Petitioner is dismissed without costs. Revision application is dismissed without costs.

JUDGE OF THE COURT OF APPEAL

Salam J.,
I agree.

JUDGE OF THE COURT OF APPEAL

AMARATHUNGA ARACHIHIGE DANAWANSA PERERA

VS.

AMARATHUNGA ARACHCHIGE PODIMAHATTAYA PERERA - HON. L.T.B. DEHIDENIYA, J

Court of Appeal case no. CA/PHC/42/2007

H.C. Rathnapura case no. HCR/RA/141/2006
M.C. Rathnapira case no. 17313

In the matter of the appeal under Article 154P of the Constitution of the Democratic Socialist Republic of Sri Lanka

Amarathunga Arachchige Podimahattaya Perera
No. 75/16, Ellewala Mawatha,
Batugedara, Rathnapura

Petitioner
Vs.

Amarathunga Arachihige Danawansa Perera
"Amara book shop"
No. 46, Private Bus Stuand, Rathnapura.

Respondent.
AND NOW

Amarathunga Arachchige Podimahattaya Perera
No. 75/16, Ellewala Mawatha,
Batugedara, Rathnapura

Petitioner Petitioner
Vs.

Amarathunga Arachihige Danawansa Perera
"Amara book shop"
No. 46, Private Bus Stuand, Rathnapura.

Respondent Respondent

AND NOW BETWEEN

Amarathunga Arachihige Danawansa Perera
"Amara book shop"
No. 46,
Private Bus Stuand, Rathnapura.

Respondent Respondent Appellant
Vs

Amarathunga Arachchige Podimahattaya Perera
No. 75/16, Ellewala Mawatha,
Batugedara, Rathnapura

Petitioner Petitioner Respondent
(Now deceased)

1 A. Kalapuhena Mesthrige Seelawathie

1 B. Kanchana Madhudharshinie

1 C. Veruni Wijayanthie Perera

1D. Amarathunga Arachchige Thanuja
Samindinee Maheshi Perera

1 E. Kaniska Ashani Perera
All of No. 75/16, Ellewala Mawatha,
Batugedara, Rathnapura

Substituted Petitioner Petitioner Respondents

Before : H.C.J.Madawala J.
L.T.B. Dehideniya J.

Counsel : Shantha Jayawardana with Kamal Perera for the Respondent Respondent Appellant.
M.Premachandra for the Substituted Petitioner Petitioner Respondents.

Argued on : 06.12.2016

Written submissions filed on : 10th and 17th of January 2017

Decided on : 22.05.2017

L. T.B. Dehideniya J.

This is an appeal from the High Court of Rathnapura.

The Petitioner Petitioner Appellant ( the Respondent) filed information under section 66 of the Primary Court Procedure Act in the Magistrate Court Rathnapura on a land dispute threatening the breach of the peace. The dispute is over the road way used by the Petitioner as the access road to his residence. The Petitioner's case is that the road that he used for about 20 years to access his house was through his brother the land of the Respondent Respondent Appellant (the Appellant). With the consent and the financial assistance of the Respondent a gate was erected at the entrance but himself and his brother used the road without any obstacle. On or about 12.01.2016 the Appellant padlocked the gate and obstructed the usage of the road and on or about 1.01.2016 a barbed wire fence was erected and further obstructed the read way. Questioning on this a breach of the peace became likely. The Appellant's case is that the Respondent never used this road but they have an alternative road through the railway track.

The learned Magistrate determined that the Respondent has established that he has used this road for a period of time but has failed to prove that he used for 10 years to accrue the prescriptive right over the road and on revision the High Court set aside the order of the Magistrate Court and ordered that the Respondent is entitle to use the road. Being aggrieved, the Appellant presented this appeal.

The learned Magistrate has accepted the fact that the road in question was used by the Respondent. He further considered that the electricity and the telephone lines were laid out though this road. The significant fact of the two mail boxes giving the addresses of the two houses of the Appellant and the Respondent was also considered by the learned Magistrate in his order. All these facts direct only on one direction; that is that the road in question was used by the Respondent for a long time.

The question is that how long it has been used. The learned Magistrate was of the view that the Respondent has failed to establish that he used it for ten years. The learned Magistrate has failed to consider the affidavit evidence of the neighbours. Several neighbours have testified that this road was used by the Respondent for more than 10 years. P18, P19, P20, P21 and P22 are affidavits sworn by the neighbours to the effect that the said road was in Respondent's use for more than 10 years.

Though the Respondent submitted in his affidavit that this road was In the Appellant's land, the plan No. 3082 prepared by the Licensed Surveyor B.A.Thambaiah shows that it is a separate block of land reserved as a road way. This further establishes by the Appellant's deed No. 1789 attested by the NP B.L.Abeyrathne where the southern boundary of the Respondent land is describe as the "Common Road depicted as lot 21" which is the road in question. This deed was attested on 30 April, 1979. The road was in existence even then.

The learned High Court Judge has correctly decided that the Respondent had used the road for more than 10 years.

Whether there is an alternative road is not a question that has to be considered in this case. In an action in a competent civil court for a right of way of necessity this matter can be considered. Therefore whether the rail way track can be used as a roadway or not does not arias for consideration.

Under these circumstances, I do not see any reason to interfere with the finding of the learned High Court Judge.

Accordingly the appeal is dismissed with costs fixed at Rs. 10,000.00

Judge of the Court of Appeal

H.C.J. Madawala J.
I agree.

Judge of the Court of Appeal

RAJAPAKSE MUDIYANSELAGE DHARMADASA

VS.

R.M.K. SUDDAHAMY & OTHERS - HON. A.H.M.D. NAWAZ, J

C.A. Case No.20/2000 F

D.C. Mahawa Case No.2353/L

Rajapakse Mudiyanselage Dharmadasa
of Pailigama, Mahawa.

PLAINTIFF
Vs

1. R.M.K. Suddahamy,

2. R.M.S. Wimalawathie,

3. R.M.S. Herath Banda

All of Pailigama, Mahawa.

DEFENDANTS
AND NOW BETWEEN

Rajapakse Mudiyanselage Dharmadasa
of Pailigama, Mahawa.

PLAINTIFF-APPELLANT
Vs

1. R.M.K. Suddahamy,

2. R.M.S. Wimalawathie,

3. R.M.S. Herath Banda

All of Pailigama, Mahawa.

DEFENDANT RESPONDENTS

BEFORE : A.H.M.D. Nawaz,J.

COUNSEL : Daya Guruge for the Plaintiff-Appellant

Decided on : 08.01.2018

A.H.M.D. NAWAZ,J.

The Plaintiff-Appellant (hereinafter referred to as "the Plaintiff") instituted this action against the 1st to 3rd Defendant-Respondents, (hereinafter referred to as "the Defendants") on 13.01.1986 praying for a declaration that he is the owner of the land morefully described in the schedule to the plaint, ejectment of the Defendants therefrom and for damages and costs.

The Defendants filed their answer on 01.12.1986 stating that the Plaintiffs have no right to the land described in the schedule to the plaint.

On these averments, the court issued a commission to surveyor B.G. Banduthilaka, whose Plan No.476/90 and Report are filed of record, marked 'X' and 'Y' respectively.

Thereafter the Plaintiff filed an amended plaint which was followed by an amended answer by the Defendants. In paragraph 3 of the amended answer the Defendants state that they do not claim any right to Lots 1 and 2 depicted in the said Plan No.476/90 which are part of the land described in the 1st schedule to the plaint.

The Plaintiff traces his title to the land described in the 1st schedule to the plaint from one Rajapakse Mudiyanselage alias Liyanaralalage Appuhamy who became entitled to it by a Crown Grant marked P1. In the same manner, he states that the land described in the 2nd schedule to the plaint, which belonged to the Crown, was allotted to Liyanaralalage alias Rajapakse Mudiyanselage Kavirala and Appuhamy by P2. The plaintiff's position is that after the death of these persons their rights devolved on Kirimenika, who was the plaintiff's mother, and after her death the Plaintiff became entitled to the said lands.

The defendants' position is that the Plaintiff is not entitled to the land described in the 2nd schedule to the plaint, and they are entitled to it. They also state that the person referred to as Kavirala in paragraph 5 of the plaint is a different person and Kavirala who is referred to in the answer is the father of the 1st Defendant.

The Defendants also state in their amended answer that they do not claim rights only to Lots 1 and 2 depicted in plan No.476/90 but Lot 3 in the said plan has been possessed by them for over 60 years and thereby they have prescriptive title to the same. They further state that Lots 3 and 4 have been possessed by the 1st Defendant for over 60 years and he by Deed No.5827 had gifted it to the 2nd Defendant who thus became entitled to the said Lots.

When the case was taken up for trial on 24.08.1996, one admission was recorded namely the Defendants do not claim any right to Lots 1 and 2 in Plan No.476/90 made by B.G. Baduthilaka and filed in this case. Thereafter issues 1 to 12 were raised on behalf of the Plaintiff and issues 13 to 28 were raised on behalf of the Defendants.

The Plaintiff claims that his lands described in 1st and 2nd schedules were depicted in T.P. 360020 and T.P. 354328 and the extent of them is A1. 0R. P.25 (1st schedule) and A0. R1. P29 (2nd Schedule), i.e. A1. R2. P14. According to Plan X, the extent of Lots 1 and 2 is A1.R0. P 05. and the extent of Lots 3 and 4 is A0. R2. P.09. The Defendants claim their land as depicted in T.P. 354328.

The surveyor states in his report that Lot 1 which is part of T.P. 360020 and in extent R.2 P.30, is possessed by the Plaintiff. Lot 2 is a part of T.P. 360020 and the Plaintiff should be entitled to it but the Defendants are in possession. It is in extent A0.R1.P.15

The Plaintiff has given evidence producing P1, P2 and P3. The crux of the dispute is that while the Plaintiff claims title to all the four lots depicted in Plan No.476/90, the Defendants claim rights only to Lots 3 and 4 and disclaim rights to Lots 1 and 2.

As regards Lots 3 and 4, the surveyor states that Lot 3 is claimed by the Plaintiff but it is in the possession of the Defendant. The report does not state to which T.P. this lot belongs, whereas it is said that Lot 4 belongs to T.P. 354328, and claimed by the Plaintiff but is encroached upon by the Defendants.

According to the Report 'Y' it is clear that Lots 1 and 2 in Plan No.476/90 are parts of T.P. 360020. Since Lot 3 is not clearly stated as to whether it belongs to T.P. 360020 or T.P. 354328 and therefore it must be a separate lot and Lot 4 is a part of T.P. 354328, which is claimed by both the Plaintiff and the Defendants.

It must be noted that the Defendants have produced a certified copy of the Kurunegala Magistrate Court order (2D4) made under Section 66 of the Primary Court Procedure Act in case No.14930/C. The parties to that case were the Plaintiff and the 1st Defendant in this case. According to this order the 1st Defendant Suddahamy had been in possession of the land in extent 1 Rood and 29 Perches since 19.03.1965, and he has been placed in possession thereof by the Magistrate's Court. The Plaintiff was directed to file a civil action and that is the present action. This position is accepted by the Plaintiff in his evidence. (See proceedings of 04.11.1996). From this evidence it is clear that there was a dispute between the Plaintiff and the 1st Defendant in respect of the land described in the 2nd schedule to the plaint, and the 1st Defendant was admitted to be in possession thereof. If this be so, the statement of the Plaintiff that the Defendants on or about 26.10.1985 forcibly entered into the said land cannot be accepted.

It is also proved by the documents marked 2D5, 2D6 and 2D7 that the 1st Defendant was in possession of the land called "Meegahakotuwa". It is also established that along with Lot 4, the Defendants have been in possession of Lot 3 also as one land. Since the surveyor has not clearly stated as to which Title Plan Lot 3 belongs, the Plaintiff cannot claim this lot as part of his land, and it is stated to be a part of Village Plan 7-1.

This is a rei vindicatio action, and as such when the title is disputed and the land is in possession of the Defendants, it is the duty of the Plaintiff to prove his title. The basic principle of a rei vindicatio action is that the Plaintiff must have title to the land in dispute. Without a proper title, he cannot ask for a declaration. It is, therefore, to be borne in mind that the burden is on the party who claims title to a property to adduce evidence to prove his title to the satisfaction of the Court. If he has no title, the Court cannot declare him entitled to the property. Our Courts have always emphasized that the Plaintiff who institutes a vindicatory action must prove title See Wanigaratne v.Juwanis Appuhamy 65 N.L.R. 67.

As against the possession of the Defendants in respect of Lots 3 and 4 in plan No.476/90, the Plaintiff has failed to prove his title. Mere Crown Grant will not confer title without clear proof of devolution of title flowing from it. In this case, the Plaintiff has failed to establish his title to the said lands, though he has mentioned the Crown Grants issued to his predecessors.

In Saibo v. Andris et al (3 N.L.R.218) it was held that, "A sale of land by the Crown and the issue of a Crown grant to the purchaser do not themselves raise a presumption that the land was one over which the Crown had disposing power. Lawrie J. (Bonser C.J. agreeing) expressed the view that "As to the presumption arising from the nature of the land, a swamp, waste, or uncultivated land, which is within the limits of or adjacent to cultivated land belonging to a private owner, will not be presumed to be the property of the Crown".

I have gone into the judgment of the learned Additional District Judge made in this case. The Trial Judge has carefully analyzed the oral evidence and the documents produced by both parties. According to his findings, the person who received the Crown Grant by P1 and the person who received the Crown Grant by P2 are one and the same person. This has been elicited from the evidence of the plaintiff. Rajapakse Mudiyanselage alias Liyanaralalage Appuhamy who received the land by P1 and the recipient by P1 Liyanaralalage Appuhamy cannot be two persons and the plaintiff's pedigree flows from one person.

Considering the totality of the evidence led in this case, the learned Additional District Judge has come to the conclusion that the Plaintiff has failed to establish his title to Lots 3 and 4. That means the Plaintiff has failed to establish title to Lots 3 and 4 in Plan No.476/90. As the Defendants did not claim any right to Lots 1 and 2, in Plan No.476/90, the Plaintiff is declared entitled to those lots, 1 and 2 only, which are described in the 1st schedule to the plaint.

Subject to this variation, the judgment entered in this case is modified and the appeal is allowed accordingly.