when the jurisdiction of the court is invoked by a private individual upon filing an affidavit in term of section 66 (1) (B) of the Act the necessity to file an affidavit under section 66 (3) does not arise

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IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

when the  jurisdiction of the court  is  invoked  by  a  private  individual  upon filing an affidavit in term of section 66 (1) (B) of the Act  the  necessity to file an affidavit under section  66  (3)  does  not  arise

CA PHC 108/2011

PHC Banality 814/10

 

 

Damith Kodithuwakku, Siththragoda, Amugoda

Vs

Pinnaduwa Hewa Samson, Bogahawatta,

Amugoda

BEFORE.:         A.W.A SALAM & DEEPALI WIJESUNDARE JJ COUNSEL:

Rohan     Sahabandu   PC      for      the    appellant

D.M.G Dissanayaka for the respondents.

ARGUED: 17.10.2012.

DECIDED ON: 17.01.2013.

 

 A W A SALAM, J

The     complainant-respondent-respondents (Respondents) filed information under Section 66 (1)(b) of the Primary Court Procedure Act complaining of a land dispute affecting the breach of peace citing the respondent-petitioner-appellant (appellant) as a party to the dispute. Thereafter, the appellant filed his affidavit annexing       four   documents      and  then the   respondents tendered counter affidavit appending identical number of documents. The learned Magistrate, thereupon inquired into the dispute and made order that the respondents are entitled to the possession of the property in dispute.

Being  aggrieved   by  the   said   order  of  the   learned  Magistrate  the     appellant invoked the revisionary jurisdiction of the Provincial High Court of the area to have the said order set aside. The learned High Court Judge at the conclusion  of the  inquiry into the revision application held inter alia that the petitioner has failed to establish any valid grounds to set aside the said order and dismissed the revision application. This appeal has been preferred  against  the said order of the learned High Court Judge.

The main argument advanced by the appellant in this appeal is that the affidavit filed by the respondents under section 66 (1) (b) cannot be regarded as an affidavit filed under section 66 (3) of the Primary Court Procedure Act and therefore the interpates order made by the learned Magistrate is bad in law. The learned counsel for the respondents has submitted that the provisions of section 66 (3) applies to a situation where the information is filed under section 66 ( 1) (A) of the Primary Court Procedure Act, and the present case being filed under section 66 (1) (B) by tendering an affidavit at the instance of a private individual the requirement to (3)  applies  to  a  situation  where  the  information  is   filed   under  section 66  (l )  (A)  of  the  Primary  Court  Procedure  Act,  and  the present case being filed under section  66  (1)  (B)  by  tendering  an affidavit   at   the   instance   of   a   private   individual   the   requirement to file affidavit under section 66  (3)  of  the  Primary  Court  Procedure Act does not become necessary. For purpose of  ready  reference,  the said Section of the Primary Court Procedure  Act  is  reproduced below...

66(3) On the date on which the parties are produced under subsection (1) or on the date fixed for their appearance under that subsection, the court shall appoint  a  day which  shall not  be later than three weeks from the date on which the  parties were produced or the date fixed for their appearance directing the parties and any persons interested to file affidavits setting  out their claims and  annexing thereto any documents  (or  certified copies thereof on which they rely.

Section 66  (b)  (1 )  of  the  Primary  Court  Procedure  Act which entitles a private     individual other than a police  officer)    to    initiate proceedings under Chapter VII of the Act reads as follows...

66 (b) (I) Any party  to such dispute may file an  information by affidavit in such Primary Court  setting out the facts and the relief sought and specifying as respondents  the  names and addresses of the other parties to the dispute  and  then such court shall by its usual process or by registered post notice the  parties  named  to appear  in court on the day specified in the  notice such day being not later than two weeks from the day on which the information was filed.

 

On a  proper  reading of the   entirety  of Section  66,  it is quite clear that  section   66   (3)   applies   to  a   situation   where  the information  is        filed under section 66(1)(A)       of   the Act.   However, when the  jurisdiction of the court  is  invoked  by  a  private  individual  upon filing an affidavit in term of section 66 (1) (B) of the Act  the  necessity to file an affidavit under section  66  (3)  does  not  arise.  In the   result the contention made on behalf  of  the   appellant  that the respondent  should  be  considered  as  having  made default in fi1ing     affidavit and  documents  under section 66 (3) of the  Primary Court Procedure Act, is unsubstantiated and therefore merits no serious consideration.

In the circumstances, the legal objection raised against the determination of the learned Magistrate and the decision of the learned High Court Judge on the  revision  application  is  rejected and the appeal dismissed without costs.

A W A Salam, J   -    I agree, Deepali Wijesundera,  J  (Judge of the   Court of Appeal)

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