Having exercised jurisdiction the Magistrate is not permitted to revisit the question of breach of peace. The Magistrate is clothed with the jurisdiction to entertain the application upon his being satisfied that owing to the dispute affecting land, the breach of the peace is threatened or likely. That is a precondition to the issuance of notice. Once it is recorded and notice issued, and the inquiry is held, the Magistrate need not revisit his earlier decision and dismiss the application in limine without considering the merits on the ground of lack of jurisdiction due to the non-existence of breach of the peace. Breach of the peace does not amount to an actual physical fight leading to grievous hurt or murder. If the breach of the peace is likely, although there is no such threat at present, that is sufficient for the Magistrate to make an order under section 66 of the Primary Courts Procedure Act.

-

 


Court Of Appeal - Year 2019 


The case involved a dispute over land, with the petitioner-respondent filing an application under section 66(1)(b) of the Primary Courts' Procedure Act in the Magistrate's Court seeking to restore possession of the land. The learned Magistrate issued notice to the respondent but then dismissed the application without making a determination on possession. The learned High Court Judge set aside this order and directed the learned Magistrate to deliver the order afresh on merits. The appellant filed an appeal against this decision, and the Court of Appeal upheld the High Court judgment, stating that the Magistrate had jurisdiction to entertain the application. 

It was further held that a Breach of the Peace does not amount to an actual physical fight leading to grievous hurt or murder. If the breach of the peace is likely, although there is no such threat at present, that is sufficient for the Magistrate to make an order under section 66 of the Primary Courts Procedure Act.


RAJA MAHESH WIJEKOON VS HINIDUMA LIYANAGE SARATHCHANDRAN GUNAWARDENA - HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 115/2012

HC GALLE CASE NO: HC/760/2010/REV

MC UDUGAMA CASE NO: 46962


Raja Mahesh Wijekoon,

Punchi Digana,

12th Mile Post, Opatha.


Respondent-Respondent-Appellant

Vs.


Hiniduma Liyanage Sarathchandran Gunawardena,

Sinhaweli Watta, Opatha.


Petitioner-Petitioner-Respondent


Before : K.K. Wickramasinghe, J.

               Mahinda Samayawardhena, J.


Counsel : Thilak Wijesinghe for the Appellant.

                 Shihan Ananda for the Respondent. (No written submissions have been filed on behalf of the Respondent)


Decided on : 30.07.2019


Mahinda Samayawardhena, J.


The petitioner-respondent (respondent) filed an application against the respondent-appellant (appellant) under section 66(1)(b) of the Primary Courts' Procedure Act in the Magistrate's Court seeking to restore him in possession in terms of section 68(3) on the basis that he was dispossessed from the land in question by the appellant immediately within two months before the filing of the application.

As seen from the Journal Entry dated 25.02.2010, the learned Magistrate first having satisfied that there would be an imminent threat to the breach of the peace as a result of this land dispute, issued notice on the respondent.

However, after the inquiry concluded by way of written submissions, the learned Magistrate by order dated 08.07.2010 dismissed the application of the petitioner, without making a determination on possession, stating that the Court has no jurisdiction to make an order on possession as there was no breach of the peace.

On appeal, the learned High Court Judge set aside that order on the ground that once the Magistrate was satisfied that there was an imminent threat to the breach of the peace, he cannot at the end dismiss the application on want of jurisdiction on the premise that there was no threat to the breach of the peace. The learned High Court Judge directed the learned Magistrate to deliver the order afresh on merits.

It is against this Judgement of the High Court the appellant has filed this appeal.

It is my considered view that the Judgment of the High Court is correct. The Magistrate is clothed with the jurisdiction to entertain the application upon his being satisfied that owing to the dispute affecting land, the breach of the peace is threatened or likely. That is a precondition to the issuance of notice. Once it is recorded and notice issued, and the inquiry is held, the Magistrate need not revisit his earlier decision and dismiss the application in limine without considering the merits on the ground of lack of jurisdiction due to the non-existence of breach of the peace.

Breach of the peace does not amount to an actual physical fight leading to grievous hurt or murder. If the breach of the peace is likely, although there is no such threat at present, that is sufficient for the Magistrate to make an order under section 66 of the Primary Courts Procedure Act.

Appeal is dismissed without costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, 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