section 66

-

 

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 the procedure is a technical objection, which has no place in section 66 applications where the sole intention is to make provisional orders to prevent a 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. The appeal is dismissed but without 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