section 66

-

 

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

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