section 66
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
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 the 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 been 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 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 affidavits 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 the 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
(c) such oral or written submission as may be permitted by
the judge of the Primary Court in his discretion. "
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.
(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.
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
6
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