The order of the Primary Court Judge should have been under section 69 and not under Section 68 of the Primary Courts Procedure Act, as the dispute is not the right to possession but the right to cultivate.

-

 

WEERASINGHE v. SEPALA

 

Sri Lanka Law Reports

 

1996 - Volume 2 , Page No - 229

    

 

SUPREME COURT

G. P. S. DE SILVA, C. J.

WIJETUNGA, J. AND

ANANDACOOMARASWAMY, J.

S. C. APPEAL NO. 72/95

C. A. APPLICATION NO. 1324/86

M.C. KEGALLE NO. 60857/85

14th June, 1996.

 

Primary Courts Procedure Act ‑ Right of a tenant cultivator to cultivate a paddy land ‑ Right to possession of land ‑ sections 68, 69 of the Act.

 

An Assistant Commissioner of Agrarian Services ordered the Appellant (Landlord) "to give possession" of a paddy land to the Respondent to cultivate it as the lawful tenant cultivator. This order was not complied with; whereupon the Respondent disturbed the possession of the land by the Appellant. The Primary Court Judge, after inquiry, ordered the "restoration of possession" to the Appellant.

 

Held:

 

The order of the Primary Court Judge should have been under section 69 and not under Section 68 of the Primary Courts Procedure Act, as the dispute is not the right to possession but the right to cultivate.

 

Cases referred to:

 

1. Loku Banda v. Ukku Banda (1982) 2 Sri L. R. 704.

 

2. Ramalingam v. Thangarajah (1982) 2 Sri L. R. 693.

 

APPEAL from the judgment of the Court of Appeal.

 

J.C. Weliamuna for Appellant.

 

Respondent absent and unrepresented.

 

Cur. Adv. vult

 

2nd August 1996.

 

ANANDA COOMARASWAMY, J.

 

This is an appeal from the judgment of the Court of Appeal allowing the application to revise the order of the Primary Court Judge and setting aside the order of the Primary Court Judge and directing the learned Primary Court Judge to hold a fresh inquiry on the dispute as to whether the Petitioner (now Petitioner‑Respondent) is entitled to the right to cultivate the field as tenant‑cultivator if the parties so desire.

 

The facts relevant to this appeal are briefly as follows:

 

The Respondent to this appeal was served with an order of eviction from a paddy land for nonpayment of rent in terms of section 18 of the Agrarian Services Act. Consequent to the said order, on or about 14.10.83, the Appellant took over possession of the land and the Respondent was in fact evicted. The Respondent instituted an application for a writ of Certiorari seeking to quash the said order of eviction. By order dated 5‑7‑85, the Court of Appeal quashed the said order of eviction and directed the Respondent to deposit Rs. 2,598/­with the Asst. Commissioner of Agrarian Services Kegalle within two weeks; and failure to comply with the said order would result in eviction. This was complied with. Therefore the said Asst. The commissioner by his letter dated 23.8.85 ordered the Appellant to give possession of the land to the Respondent to cultivate the said field as the lawful tenant cultivator. The Appellant did not comply with the said order. On 4.9.85 the Respondent disturbed the possession of the land by the Appellant when the Respondent went to cultivate the said field. Hence the Police the Complainant‑Respondent‑Respondent filed an action in the Primary Court and the Primary Court Judge after the inquiry ordered the restoration of possession to the Appellant, which order was set aside by the Court of Appeal holding that the order by the Primary Court Judge should have been under section 69 and not under section 68 of the Primary Courts Procedure Act, as the dispute is not the right to possession but the right to cultivate. The Court of appeal, therefore, set aside the judgment of the learned Primary Court Judge and directed a fresh inquiry as to the right to cultivate and not as to the right of possession, if parties desire.

 

In Loku Banda v. Ukku Banda(1) it was held that "the right to cultivate can vest in a person different from the person who has right to possession". As the issue before Court was whether the Respondent had the right to cultivate the said field the right to possession does not arise and therefore the decision in Ramalingam v. Thangarajah(2) has no application to the facts of this case, and the learned Primary Court Judge misdirected himself in proceeding to inquiry in this case on the basis that it is a claim to possession of the said paddy field. and the Court of Appeal rightly set aside the judgment of the learned Primary Court Judge. However, the Court of Appeal granted leave to appeal to this Court.

 

For these reasons, we dismiss the appeal. No costs.

G. P S. DE SILVA, C.J. ‑ I agree.

WIJETUNGA, J. ‑ I agree.

 

 

Appeal dismissed.

 

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