HON. L. T. B. DEHIDENIYA, J section 66

-

 

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

 


Comments

Post a Comment

Popular posts from this blog

CIVIL PROCEDURE AMENDMENT NO 43 OF 2024

-
Image
  defult of appearance - An overview  by GalleLaw Blogger  on the amendment 43 of 2024 to section 86, 87 and 88 to the CPC  VACATION OF exparte ORDERS, JUDGMENTS AND DECREES. The Civil Procedure Code (Ordinance No. 2 of 1889) governed case procedures in the Original and Appellate Courts for nearly 85 years, from 1889 until 1974, when it was replaced by the Administration of Justice Laws No. 44 of 1973 and No. 25 of 1974. During a brief period from 1974 to 1977, the Civil Procedure Code was superseded by the AJL. However, in 1977, the Civil Procedure Code of 1889 was reinstated by the Civil Courts Procedure (Special Provisions) Law No. 19 of 1977. Section 86 of the Civil Procedure Ordinance outlined the procedures for setting aside a decree *nisi*  (a provisional judgment)  under the CPC ordinance. Under Section 86(2), if a defendant provides reasonable grounds for the default, the court was empowered to set aside the decree and resume the case from the s...
Read more

What law governs the granting or remanding of an accused or suspect person? The law that governs the granting or remanding of an accused or suspect person is the Bail Act No. 30 of 1997. This Act provides for the release on bail of persons suspected or accused of being concerned in committing or having committed an offense. It also provides for the granting of anticipatory bail and other related matters. The Bail Act establishes that the grant of bail should be the guiding principle, subject to exceptions as provided for in the Act, and refusal to grant bail should be the exception. It prevails over the provisions of the Code of Criminal Procedure Act and other written laws, except for the Release of Remand Prisoners Act, No. 8 of 1991.

-
Image
  SUMMARY BY THE BLOGGER    Background:  The accused has been indicted for the offense of grave sexual abuse of a minor, an offense is punishable under section 365B (2) (b) of the Penal Code. The accused was initially released on bail by the Court. The trial against the accused commenced on 21-07-2022. On 5th October 2023, the Court ordered the accused to be remanded pending further trial. The Lawyer for the accused filed a motion seeking bail, but it was refused.   The petitioner, acting on behalf of the accused, filed an application for revision in the Court of Appeal invoking Article 138 of The Constitution. After considering the facts, circumstances, and relevant law, the Court ordered the immediate release of the accused from remand custody on the earlier bail conditions.   1.   The Court relied on section 263 of the Code of Criminal Procedure Act to remand the accused, but failed to consider the relevant provisions of the Bail Act No. 30 of ...
Read more