HON MAHINDA SAMAYAWARDHENA, J. section 66

-

 

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

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