De Fonseka v. Dharmawardena auto_stories 1994 03 SLR 049 note_stack CA APPLICATION NO. 653/93 gavel Sri Lanka Law Reports Landlord-Tenant Dispute Over Rent Arrears summarize Summary format_quote Citation book_2 Laws referred point_scan Key Points forum AI Chat description View PDF Summary Burden of proof on defendant to establish that no summons was served, whether fiscal officer should have been called to give evidence as to service of summons, whether inquiry should be conducted in accordance with principles of natural justice and requirement of fairness

-

 

De Fonseka v. Dharmawardena

1994 03 SLR 049

CA APPLICATION NO. 653/93



Burden of proof on defendant to establish that no summons was served, whether fiscal officer should have been called to give evidence as to service of summons, whether inquiry should be conducted in accordance with principles of natural justice and requirement of fairness

In the case between De Fonseka (Plaintiff-Respondent, landlord) and Dharmawardena (Defendant-Petitioner, tenant), the court addressed the issue of whether the defendant’s claim of non-service of summons could be established in light of the presumption afforded to the Fiscal’s report and affidavit, and the proper procedural conduct when the Fiscal Officer’s testimony is unavailable for reasons not attributable to the plaintiff. The court held that the burden of proof to establish non-service of summons rested upon the defendant and determined that principles of natural justice required that the Fiscal Officer’s evidence be admitted despite the absence being due to external obligations. The holding reaffirmed the principle that procedural integrity and fairness under the Civil Procedure Code, supported by the Evidence Ordinance, dictate that inquiries to set aside ex parte decrees must observe strict evidentiary standards while ensuring opportunities for both parties to present relevant material. The decision highlights the requirement for defendants challenging service to provide substantial evidence and clarifies the evidentiary value of official court documents. S. N. Silva J. — The procedural background, including the ex parte trial, loss of the original record, and the defendant’s revision application, was examined. It was determined that the burden to prove non-service of summons was upon the defendant. Emphasis was placed on the evidentiary value of the Fiscal’s report and affidavit, and that excusal of the Fiscal Officer due to election duty was not attributable to the plaintiff. It was found that, consistent with principles of fairness and natural justice, the Fiscal Officer’s evidence should be accepted when circumstances necessitate. The actions taken at the inquiry were held to be proper according to the Civil Procedure Code and Evidence Ordinance. Consequently, dismissal of the defendant’s application was ordered, without an award of costs. Dr. Ranaraja J. — agreed with S. N. Silva J. Both S. N. Silva J. and Dr. Ranaraja J. were aligned in dismissing the defendant’s application, unanimously affirming that the procedural and evidentiary requirements were satisfied and maintaining the original order.

Decided on reference

:

1994-12-16

Judges

:

S. N. Silva, J. (President C/A), Dr. Ranaraja, J.

Comments

Post a Comment

Popular posts from this blog

constructive trust - synopsys of a presentation

-
Image
  TRUST - A presentation -  October 29, 2016 786 GALLELAW BLOGGER   [ many authorities cited in this document have been hyperlinked by the blogger to save the precious time of the reader]     "Constructive trust serves as the guardian of the oppressed when the rigidity of written law hinders the pursuit of justice. It embodies the flexibility and moral conscience of the legal system, ensuring that equity prevails where legal technicalities may fall short. By recognizing the rightful claims of those unjustly deprived, constructive trust provides a path to fairness and restores balance, offering hope and remedy to those wronged by the limitations of formal law." - GALLELAWBLOGGER     October 29, 2016   TRUST – synopsis of a presentation made to the District Judges on 24.8.2002 by A W A Salam at the auditorium of the Office of Judicial Service Commission presided over by Justices Udalagama Director of SLJI  ...
Read more

EQUITY SAVES A MAN AND HIS RESIDENCIAL HOUSE- CONSTRUCTIVE TRUST SUPREME COURT RECENT JUDGMENT ARJUNA OBEYSEKERA J

-
Image
  The plaintiff sued the 1st and 2nd Defendants for a declaration of title to the subject matter of the action and ejectment of a landed property. In the amended answer, the 2nd defendant admitted the execution of several deeds affecting the subject matter including one in favour of Odayan Kureishan, but claimed that Kureishan, the 1st defendant, and subsequently the plaintiff, came to hold the property in trust for him [ the 2nd Defendand]​​  The main issue was whether the beneficial interest in the property had been transferred to Odayan Kureishan or if the property was being held in trust for the 2nd  defendant by Kureishan, the 1st defendant, and subsequently the plaintiff. Essentially, the court had to determine if these transactions were actual sales or just loans with the second defendant still owning the property.  The District Court decided that the beneficial interest in the property had not been transferred to Odayan Kureishan. The court held that the prop...
Read more

some selected

-
Image
  Terms of Service · Privacy · Content Policy All Blogs MANAGE GALLELAW BLOGGER 1 minute ago PEIRIS AND ANOTHER v. PERERA AND ANOTHER Sri Lanka Law Reports 2002 - Volume 2 , Page No - 128 *PEIRIS AND ANOTHER v. PERERA AND ANOTHER* *(The blogger's understanding of the judgment is summarized as follows)* *CLICK ON ME* The defendants filed a petition seeking permission to appeal against the orders issued by the District Judge on January 19 and January 24, 2001. They also requested a stay of proceedings in DC Panadura case No. 2794/spl. Initially, the court granted a stay order on January 31, 2001, but later refused to extend it on April 6, 2001, as the dispute involved a right of way. The situation arose from the following facts: The District Judge, through his o...  read more GALLELAW BLOGGER 5 days ago Having exercised jurisdiction the Magistrate is not permitted to revisit the question of breach of peace. The Magistrate is clothed with the jurisdiction to ent...
Read more