RIGHT OF WAY - S 69

 

HEWA PATHIRANAGE SOMPALA MUNASINGHE VS K.D.S.SUBHASINGHE

 

No: CA (PHC) 70/2014 - High Court Kandy Case No: P/HC/Kandy/14/2013(Rev) Magistrate's Court Kandy Case No. 55160

Order delivered on : 12.01.2023  - Prasantha De Silva, J. - Judgment

The Officer-in-Charge of the Police Station-Kandy had filed an information in the Additional Magistrate's Court of Kandy in case bearing No. 55160 in terms of Section 66(1) (a) of the Primary Courts' Procedure Act No. 44 of 1979, with regard to a roadway which had been used by the 1st Respondent and had been obstructed by the 2nd and 3rd Respondents.

It is seen that the learned Additional Magistrate who was acting as the Primary Court Judge had taken all necessary steps stipulated in the Primary Courts' Procedure Act. After the conclusion of the inquiry, the learned Additional Magistrate had made an Order on the 24th of January 2013 and held that 1st and 2nd Respondents were not entitled to have a servitudanal right of way over the land of 3rd, 4th and 5th Respondents.

Being aggrieved by the said Order, the 1st Respondent-Petitioner had invoked the revisionary jurisdiction of the Provincial High Court of Kandy. It appears that the learned High Court Judge had observed the learned Additional Magistrate had correctly identified the dispute amongst parties as one relating to a roadway, which comes within the purview of Section 69(1) of the Primary Courts' Procedure Act.

Upon the evidence placed before the learned Additional Magistrate, it was revealed that the 1st Respondent-Petitioner is a licensee of 3rd, 4th, 5th Respondents and had been living in the back yard of the land owned by the said Respondents with a separate access through Sri Dhammadhassi Mawatha. Apparently, the dispute has arisen among the parties as the 3rd, 4th, and 5th Respondents had put up a gate to the entrance of their land to protect and safeguard the property from being used by strangers.

As such, it is observable that the learned Additional Magistrate had come to the correct finding of facts and law and held with the 3rd, 4th and 5th Respondents determining that 1st and 2nd Respondents are not entitled to a servitudanal right of way over the disputed road way across the land owned by the 3rd, 4th and 5th Respondents.

In this respect, it is worthy to note the case of Ananda Sarath Paranagama vs Dhammadhinna Sarath Paranagama and Kavitha Asmin Paranagama [CA PHC APN 117/2013] where Salam, J. emphasized:

"A party does not need to establish a servitudanal right by cogent evidence as is usually considered in a civil court. The required proof of the user's right in terms of section 69(1) of the Act, is to consider a right in the nature of a servitude or long-term use."

It is noteworthy that the learned High Court Judge affirmed the said Order of the learned Additional Magistrate and dismissed the revision application filed by the 1st Respondent- Petitioner-Appellant on the ground that no exceptional circumstances warrant to invoke the revisionary jurisdiction of the High Court seeking to set aside the Order of the learned Additional Magistrate.

In this respect Court draws the attention to the decision in the case Nandawathie vs. Mahindasena [2009] 2 SLR 218 which held;

"When an Order of a Primary Court Judge is challenged by way of revision in the Provincial High Court, the High Court can examine only the legality of that Order and not the correction of that Order."

Moreover, by operation of law, right of appeal is conferred against an Order of the High Court exercising its revisionary jurisdiction, such appeal in the circumstances could not be considered as an appeal in true sense, but in fact the application could be considered to examine the correctness, legality or the propriety of the Order made by the learned High Court Judge in the exercise of revisionary powers.

It was emphasized by Ranjit Silva, J. in the said case Nandawathie Vs. Mahindasena [supra] that;

"Court of Appeal should not under the guise of an appeal attempt to rehear or re- evaluate the evidence led in the main case".

As such, we are of the view that the task before this court is not to consider an appeal against the Magistrate's Court Order but to consider an appeal in which an Order pronounced by the Provincial High Court in the exercise of its revisionary jurisdiction is sought be impugned.

It was the main contention of the 3rd, 4th and 5th Respondents that the 1st Respondent- Petitioner-Appellant had failed to comply with the Supreme Court Rules and that the 1st Respondent-Petitioner-Appellant had not shown the existence of exceptional circumstances to invoke the revisionary jurisdiction of the Provincial High Court to revise or set aside the Order of the learned Additional Magistrate made under Section 69(1) of the Primary Courts' Procedure Act.

In the case of Hotel Galaxy (Pvt) Ltd Vs. Mercantile Hotels Management Ltd [1987] 1 SLR 5 it was held that it is settled law the exercise of revisionary powers of the Appellate Court is confined to cases in which exceptional circumstances exist warranting its intervention.

Furthermore, it has been observed in superior court decisions that superior courts have always declined to entertain revision applications when exceptional circumstances have not been averred in those applications.

It is imperative to note that the learned High Court Judge held the 1st Respondent-Petitioner- Appellant had not satisfied court that exceptional circumstances exist to exercise the revisionary powers of court.

Hence, the learned High Court Judge has judiciously dismissed the revision application made by the 1st Respondent-Petitioner-Appellant. Thus, we see no reason for us to interfere with the said dismissal of the application.

Thus, this appeal is dismissed with tax cost.

JUDGE OF THE COURT OF APPEAL

K.K.A.V. Swarnadhipathi, J.

I agree.

JUDGE OF THE COURT OF APPEAL