section 66 - a compilation - available for easy reference of the initial judgments

786

DISPUTES AFFECTING LANDS—PART VII—Primary Procedure Act No. 44 of 1979

[Compiler A W A Salam]

ADMINISTRATION OF JUSTICE LAW- No 44 of 1973 2

PRIMARY COURT PROCEDURE ACT No 44 of 1979 6

ARLIS V ABEYNAYAKE 1980 – SLR- Volume 2-Page- 84 [CA] 14

[A] ABEYGUNASEKERA V SETUNGA [SC] Right of appeal in 66 matters against the Judgment of H.C in revision 1997 -SLR Vol 1- P 62 18

1.S. A. KANAGASABAI Vs MYLWAGANAM [S C].78NLR280 37

2. PARAMASOTHY V NAGALINGAM [CA] 1980 SLR - Volume 2 , Page34 50

3.RAMALINGAM v THANGARAJAH [S.C] 54

4.LOKU BANDA V UKKU BANDA 70

5.JAMIS V KANNANGARA [CA] 78

6.WEERASINGHE V SEPALA AND [SC] 82

7.O.I.C KOTAHENA V DEWASINGHE [CA DIVISIONAL BENCH] 86

8.DAVID APPUHAMY vs YASSASSI THERO [CA] 92

9.MARY NONA V FRANSINA [CA] 104

10.RATNAYAKE V PADMINI DE SILVA [CA] 108

11.ABDUL HASHEEB V. MENDIS PERERA [CA] 121

12.SILINONA V DAYALAL SILVA [CA] 143

13.VELUPILLAI AND OTHERS V SIVANATHAN [CA] 150

14.PUNCHI NONA V PADUMASENA [CA] 160

15.TUDOR V ANULAWATHIE [C.A] 169

16.ALI V ABDEEN [CA] 191

17.DAYANANDA V THALWATTE [CA] 196

18.KULAPALA AND V SOMAWATHIE [CA] 206

19.GANDHI V MUBARAK [CA] 211

20.KARUNANAYAKE V SANGAKKARA [CA] 216

21.LOWE V DAHANAYAKE [CA] 225

22.SHARIF VS. WICKRAMASURIYA [CA] 234

23.JAYANTHA GUNASEKARA VS. JAYATISSA [CA Divicional Bench) 249

24.SIRIPALA V LANEROLLE [CA] 271

25.PATHMA ABEYWICKREMA V JEEVANI [CA] 280

26.SUBASHINI VS. OIC, TISSAMAHARAMA [CA] 287

27.KARUNANAYAKE V SANGAKKARA 291

28.IQBAL V MAJEDUDEEN [CA] 300

29.KAYAS V NAZEER [S C] 307

30.NANDAWATHIE V MAHINDASENA [CA] 321

31.MANSOOR Vs O.I.C. AVISSAWELLA [CA] 345

32.BEMPI SINGHO V. DAVITH SINGHO [CA] 356

Ananda Sarath Paranagama Vs Dhammadhinna Sarath Paranagama [CA] right of way Section 69 361

ADMINISTRATION OF JUSTICE LAW- No 44 of 1973

62. Inquiries into disputes affecting lands.

(1) Whenever a Magistrate, on information furnished by any police officer or otherwise, has reason to believe that the existence of a dispute affecting any land situated within his jurisdiction is likely to cause a breach of the peace, he may issue a notice-

(a) fixing a date for the holding of an inquiry into the dispute; and

(b) requiring every person concerned in the dispute to attend at such inquiry and to furnish to the court, on or before the date so fixed, a written statement setting out his claim in respect of actual possession of the land or the part in dispute and in respect of any right which is the subject of the dispute.

(2) A copy of the notice shall, in the manner provided for the service of summons, be served upon such person or persons as the Magistrate may direct, and at least one copy of such notice shall be affixed in some conspicuous place at or near the land which is the subject of the dispute. Where a copy of the notice has been so affixed, an inquiry may be held and an order made notwithstanding that the notice may not have been served on any party concerned in such dispute.

(3) Every inquiry shall be held in a summary manner on the date fixed or on such other date or dates to which the inquiry may be adjourned by the Magistrate, Pending the conclusion of such inquiry the Magistrate may make an interim order containing any provision which he is empowered to make in an order at the conclusion of the inquiry.

(4) In this section " dispute affecting land " includes any dispute as to the right to the possession or to the boundaries of any land or part of a land, or as to the right to cultivate any land or part of a land, or as to the right to the crops or produce of any land or part of a land, or as to any right in the nature of a servitude affecting the land.

63. Determination and order of Magistrates.

(1) Where at the inquiry it appears that the dispute relates to the right to the possession of any land or any part of a land and such dispute is likely to lead to a breach of the peace, it shall be the duty of the Magistrate to determine as to who was in possession of the land or the part in dispute on the date of issue of the notice under section 62. Where he makes a determination he may, unless the provisions of subsection (3) apply, make an order under subsection (2).

(2) An order under this subsection shall declare any one or more persons therein specified to be entitled to the possession of the land or the part of such land in dispute in the manner specified in such order until such person or persons are evicted therefrom under a judgment, order or decree of a competent court, and prohibit all disturbance of such possession or otherwise than under the authority of such judgment, order or decree.

(3) Where at an inquiry into a dispute relating to the right to the possession of any land or any part of a land the Magistrate is satisfied that any person who had been in possession of such land or part has been forcibly dispossessed within a period of two months immediately before the date on which the notice was issued under section 62. he may make a determination to that effect and make an order under subsection (4).

(4) An order under subsection (2) may contain, in addition to the declaration and prohibition referred to in that subsection, a direction that any party specified in the order shall be restored to the" possession of the land or any part specified in such order.

(5) Where the dispute relates to any right to any land or any part of a land other than the right to possession of such land or part, the Magistrate shall determine as to who is entitled to the right which is the subject of the dispute and make an order under subsection (6).

(6) An order under this subsection may declare that any person named therein shall be entitled to any such right in or in respect of the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of a judgment of a competent court, and prohibit all disturbance or interference with the exercise of such right by such party other than under the authority of a judgment as aforesaid. Such order may also contain such other directions as the Magistrate may think fit with regard to the exercise of such right or the sale of any crop or produce of the land or part of the land or to the custody or disposal of the proceeds of the sale of such crop or produce.

(7) A determination under the six immediately preceding subsections shall be made after examination and consideration of any statements furnished in compliance with the notice issued under section 62 and of all such evidence as may be admitted by the Magistrate in his discretion:

Provided, however, that a determination under subsection (1) or subsection (2) may be made without reference to the merits of the claims of any persons to the possession of the land or part of the land.

(8) Where the terms of settlement of a dispute affecting any land are voluntarily agreed on between the persons concerned in the dispute and are approved by the Magistrate, an order under the preceding provisions of this section may be made in accordance with the terms as settled.

(9) Except in the case provided for by subsection (8), a Magistrate of the court by which an order under this section was made may, on application made to him in that behalf by any person affected by the order, rescind the order or vary it in such manner as he may consider expedient.

(10) No appeal shall lie against an order made under this section.

Penalty for contravention of or failure to comply with order.

64. Any person who acts in contravention of or fails to comply with an order under section 62 or section 63 shall be guilty of an offence and shall on conviction after summary trial before a Magistrate be liable to imprisonment for a term not exceeding six months or to a fine not exceeding five hundred rupees, or to both.

Order not to affect right or interest which may be established in civil suit.

65. No order under section 62 or section 63 shall affect or prejudice any right or interest in any land or part of land which any person may be able to establish in a civil suit; and it shall be the duty of a Magistrate before commencing to hold the inquiry to explain the effect of these sections to the persons concerned in the dispute.

Provisions of Conciliation Boards Act not to apply.

66. The provisions of the Conciliation Boards Act shall not apply in relation to any proceeding for the prevention of offences under the preceding provisions of this Chapter.

PRIMARY COURT PROCEDURE ACT No 44 of 1979

PART VII

INQUIRIES INTO DISPUTES AFFECTING LAND WHERE A BREACH OF THE PEACE IS THREATENED OR LIKELY

66. Reference of disputes affecting land.

(1) Whenever owing to a dispute affecting land a breach of the peace is threatened or likely-

(a) the police officer inquiring into the dispute-

(i) shall with the least possible delay file an information regarding the dispute in the Primary Court within whose jurisdiction the land is situate and require each of the parties to the dispute to enter into a bond for his appearance before the Primary Court on the day immediately succeeding the date of filing the information on which sittings of such court are held ; or

(ii) shall, if necessary, in the interests of preserving the peace, arrest the parties to the dispute and produce them forthwith before the Primary Court within whose jurisdiction the land is situate to be dealt with according to law and shall also at the same time file in that court the information regarding the dispute; or

(b) 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.

(2) Where an information is filed in a Primary Court under subsection (1), the Primary Court shall have and is hereby vested with jurisdiction to inquire into, and make a determination or order on, in the manner provided for in this Part, the dispute regarding which the information is filed.

(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.

(4) The court shall, not later than one week of the filing of the information, cause a notice to be affixed in some conspicuous place on the land or part of the land which is the subject-matter of the dispute announcing that a dispute affecting the land has arisen and requiring any person interested to appear in court on the date specified in such notice, such date being the day on which the case is next being called in court:

Provided that where the information has been filed by a police officer, the notice referred to in the preceding provisions of this subsection shall also require that the person interested shall, in addition to appearing in court, file affidavits setting out his claims and annexing thereto any documents (or certified copies thereof) on which he relics.

(5) Where any affidavits and documents are filed on the date fixed for filing them, the court shall, on application made by the parties filing affidavits, grant such parties time not exceeding two weeks for filing counter-affidavits with documents if any. The Judge of the Primary Court shall permit such parties or their attorney-at-law to peruse the record in the presence of the Registrar for the preparation of the counter-affidavits.

(6) On the date fixed for filing affidavits and documents, where no application has been made for filing counter-affidavits, or on the date fixed for filing counter-affidavits, whether or not such affidavits and documents have been filed, the court shall before fixing the case for inquiry make every effort to induce the parties and the persons interested (if any) to arrive at a settlement of the dispute and if the parties and persons interested agree to a settlement the settlement shall be recorded and signed by the parties and persons interested and an order made in accordance with the terms as settled.

(7) Where the parties and persons interested (if any) do not arrive at a settlement, the court shall fix the case for inquiry on a date which shall not be later than two weeks from the date on which the case was called for the filing of affidavits and documents or counter-affidavits and documents, as the case may be.

(8) (a) Where a party or person interested is required to enter an appearance under this Part he may enter such appearance by an attorney-at-law.

(b) Where a party fails to appear or having appeared fails to file his affidavit and also his documents (if any) he shall be deemed to be in default and not be entitled to participate at the inquiry but the court shall consider such material as is before it respecting the claims of such party in making its determination and order.

67. Inquiry to be held in summary manner.

(1) Every inquiry under this Part shall be held in a summary manner and shall be concluded within three months of the commencement of the inquiry.

(2) The Judge of the Primary Court shall deliver his order within one week of the conclusion of the inquiry.

(3) Pending the conclusion of the inquiry it shall be lawful for the Judge of the Primary Court to make an interim order containing any provision which he is empowered to make under this Part at the conclusion of the inquiry.

68. Determination and order of Judge of the Primary Court when dispute is in regard to possession.

(1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the Primary Court holding the inquiry to determine as to who was in possession of the land or the part on the date of the filing of the-information under section 66 and make order as to who is entitled to possession of such land or part thereof.

(2) An order under subsection (1) shall declare any one or more persons therein specified to be entitled to the possession of the land or the part in the manner specified in such order until such person or persons are evicted therefrom under an order or decree of a competent court, and prohibit all disturbance of such possession otherwise than under the authority of such an order or decree.

(3) Where at an inquiry into a dispute relating to the right to the possession of any land or any part of a land the Judge of the Primary Court is satisfied that any person who had been in possession of the land or part has been forcibly dispossessed within a period of two months immediately before the date on which the information was filed under section 66, he may make a determination to that effect and make an order directing that the party dispossessed be restored to possession and prohibiting all disturbance of such possession otherwise than under the authority of an order or decree of a competent court.

(4) An order under subsection (1) may contain in addition to the declaration and prohibition referred to in subsection (2), a direction that any party specified in the order shall be restored to the possession of the land or any part thereof specified in such order.

69.Determination and order of Judge of the Primary Court when dispute is in regard to any other right.

(1) Where the dispute relates to any right to any land or any part of a land, other than the right to possession of such land or part thereof, the Judge of the Primary Court shall determine as to who is entitled to the right which is the subject of the dispute and make an order under subsection (2).

(2) An order under this subsection may declare that any person specified therein shall be entitled to any such right in or respecting the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of an order or decree of a competent court, and prohibit all disturbance or interference with the exercise of such right by such party other than under the authority of an order or decree as aforesaid.

70. Security for possession or exercise of any right may be ordered.

An order made under this Part may also contain such other directions as the Judge of the Primary Court may think fit with regard to the furnishing of security for the exercise of the right of possession of the land or part of it or for the exercise of any right in such land or with regard to the sale of any crop or produce or the manner of exercise of any right in such land or the custody or disposal of the proceeds of the sale of any crop or produce.

71. Order where no party appears.

Where the parties to the dispute do not appear before court or having appeared or been produced do not file any affidavits whether with or without documents annexed the court shall-

(a) in a case where the dispute is in regard to possession make order permitting the party in possession to continue in possession, and

(b) in a case where the dispute is in regard to any other right, make order permitting the status quo in regard to such right to continue.

72. For determination of judge of the Primary Court, material on which he may act.

A determination and order under this Part shall be made after examination and consideration of-

(a) the information filed and the affidavits and documents furnished;

(b) such other evidence on any matter arising on the affidavits or documents furnished as the court may permit to be led on that matter; and

73.Penalty for contravention of or failure to comply with order.

Any person who acts in contravention of or fails to comply with an order made under this Part shall be guilty of an offence and shall on conviction by a Judge of the Primary Court be liable to imprisonment of either description for a term not exceeding six months or to a fine not exceeding one thousand rupees or to both such imprisonment and fine.

74. Order not to affect right or interest which maybe established in civil suit.

(1) An order under this Part shall not affect or prejudice any right or interest in any land or part of a land which any person may be able to establish in a civil suit; and it shall be the duty of a Judge of a Primary Court who commences to hold an inquiry under this Part to explain the effect of these sections to the persons concerned in the dispute.

(2) An appeal shall not lie against any determination or order under this Part.

75. " Meaning of "dispute affecting land".

In this Part " dispute affecting land includes any dispute as to the right to the possession of any land or part of a land and the buildings thereon or the boundaries thereof or as to the right to cultivate any land or part of a land, or as to the right to the crops or produce of any land, or part of a land, or as to any right in the nature of a servitude affecting the land and any reference to " land" in this Part includes a reference to any building standing thereon.

76. Fiscal to executive orders of court.

The Fiscal of the court shall where necessary execute all orders made under the provisions of this Part.

ARLIS V ABEYNAYAKE 1980 – SLR- Volume 2-Page- 84 [CA]

1980 – SLR- Volume 2-Page- 84

THIS JUDGMENT WAS LATER OVERRULED BY SUPREME COURT IN RAMALINGAM VS THANGARAJA 1980 SLR VOL 2 PAGE 84

COURT OF APPEAL.

RANASINGHE, J., AND K. C. E. DE ALWIS J.

C. A. APPLICATION 618/80-PRIMARY COURT, EMBILIPITIYA 1452.

OCTOBER 1. 8, 1980.

Primary Courts Procedure Act, No. 44 of 1979, section 67(2)-Requirement that order be delivered within one week of conclusion of inquiry Non-compliance-Whether judge has jurisdiction to deliver order thereafter.

Held:

Section 67 (2) of the Primary Courts Procedure Act which requires the judge to deliver his order within one week of the conclusion of the inquiry is clear in laying down a definite period of time within which the order must be delivered and the judge ceases to have jurisdiction after the expiry of such period. Accordingly an order delivered after the expiry of such period will be set aside.

Case referred to:

(1) Dias et al, v. Suwaris, (1978) 79 (2) N. L. R. 258.

APPLICATION to revise an order of the Primary Court, Embilipitiya.

D. C. R. Collure, for the petitioner.

P. Jayasekera, for the respondent.

Cur. adv. vult.

November 12 , 1980.

K. C. E. DE ALWIS, J.

This is an application for the revision of an order made by the judge of the Primary Court in favour of an informant party purporting to act under section 67 (2) of the Primary Courts' Procedure Act, No. 44 of 1979. On a consideration of the facts in the case I am of opinion that his decision thereon is correct. However, two questions of law were raised by counsel for the petitioner, namely, (i) the order of the Judge is bad in law as more than one week had lapsed when delivering the order after the conclusion of the inquiry, and (ii) no material has been placed before the Court to indicate that a breach of the peace was likely or was threatened.

With regard to objection (ii), it seems to me that the material placed before the court by way of affidavit sufficiently indicated the possibility of there being a breach of the peace, though it was not specifically stated. Therefore, I cannot see validity in the objection to the Judge having proceeded to inquire into the dispute.

With regard to the objection (i), it must be noted that the order, after the inquiry, has been delivered by the Judge sixteen ,weeks after the conclusion of the inquiry in disregard of section 67 (2) which says:

"The Judge of the Primary Court shall deliver his order within one week of the conclusion of the inquiry ".

The inquiry has been concluded on 29.2.80 and the order has been delivered on 25.5.80. It seems that the Judge alone could explain why the law was so flagrantly disregarded.

Counsel for the respondent submitted that the time limit laid down in that section is not an imperative requirement and submitted a number of authorities in support of his submission. It is unnecessary to discuss them here as they do not interpret the terminology in or even any analogous terminology to that which we find in section 67 (2) with regard to the period of time within which the act should be done. The Criminal Procedure Code required that a magistrate shall "forthwith" record a verdict of " guilty " or " not guilty ", after taking the evidence, and that a District, Court shall record a verdict of acquittal or conviction " forthwith " or " within not more than twenty four hours ". Cases cited by counsel for the respondent dealt with such unprecise terminology as above. In that context these expressions needed judicial interpretation.

The Criminal Procedure Code was repealed by the Administration of Justice Law, No. 44 of 1973, which took its place. The latter Law provided that the Magistrate and the District Judge shall record the verdict " not later had twenty four hours after the conclusion of the taking of evidence. ". It would be seen that there is a similarity with regard to the delivery of the verdict under the Administration of Justice Law and the delivery of the order under section 67 (2) of the Primary Courts Procedure Act. Both enactments lay down a definite period of time within which a verdict or an order as the case may be, shall be delivered.

In the case of Dias et al. v. Suwaris et al. (1), Wijesundera, J. said, "Where the meaning of a statute is plain nothing can be done but to obey it ". When one statute stated that the act in question should be done " within one week " and another said that it should be done " not later than twenty four hours ", both enactments said the same, except, of course, with regard to the actual period of time. They fixed two definite terminals and expressed a duration of time without ambiguity. Therefore the dictum in the above cited case is applicable to the. present case. When section 67( 2) is so clear and there has been a clear departure

from it by the Judge of the Primary Court, there is nothing that this court could do but to set aside the order of the Judge, as the order has been made when the Judge has ceased to have jurisdiction.

In the result, I allow the application but without costs.

RANASINGHE, J.-I agree.

Application allowed.

[A] ABEYGUNASEKERA V SETUNGA [SC] Right of appeal in 66 matters against the Judgment of H.C in revision 1997 -SLR Vol 1- P 62

Sri Lanka Law Reports 1997 - Volume 1 , Page No - 62

SUPREME COURT.

G P S DE SILVA,C.J.,KULATUNGA,J.AND RAMANATHAN, J.

S.C. REFERENCE NO. 1/94.

C.A. APPEAL NO. 18/92 (PHC).

H.C. COLOMBO NO. 22/91 (REV)

M.C. MT. LAVINIA NO. 68192.

MAY 26, 1995.

Jurisdiction of the Court of Appeal to hear appeals from orders of a Provincial High Court made in the exercise of its Revisionary Jurisdiction - Article 154P (3) (b), 154P (6) and 138(1) of the Constitution- Section 74(2) of the Primary Courts' Procedure Act No. 44 of 1979.

The following questions were referred to the Supreme Court for determination in terms of Article 125(1) of the Constitution.

1. Does the Court of Appeal have an appellate jurisdiction in terms of Article 138(1) of the Constitution as amended by the 13th Amendment in respect of a decision of the Provincial High Court made in the exercise of its Revisionary Jurisdiction?

2. Does a party aggrieved by a decision of the Provincial High Court given in respect of a matter coming within Part VII of the Primary Courts' Procedure Act, have a right of appeal to the Court of Appeal in terms of Article 154P(6) of the Constitution as amended by the 13th Amendment read with Section 74(2) of the Primary Courts Procedure Act?

Held:

(i) The Appellate jurisdiction of the Court of Appeal under Article 138(1) read with Article 154P(6) of the Constitution is not limited to correcting errors committed by the High Court only in respect of Orders given by way of appeal. The Court of Appeal has jurisdiction to hear an appeal against a decision of the High Court whether given by way of Appeal or Revision.

(ii) Section 74(2) of the Act No. 44 of 1979 plainly prohibits an appeal from the decision of the Primary Court Judge. Such prohibition cannot affect the right of appeal to the Court of Appeal against a decision of the High Court.

The questions referred to are answered as follows:

1. Yes

2. Yes

Per Kulatunga, J.,

"There is no warrant for dissecting Article 138(1) into two parts and holding that the powers of Appeal and Revision given by the Second Part are limited to decisions given in the exercise of the original jurisdiction of the High Court. The entire article should be read as a whole."

Cases referred to:

. Gunaratne v. Thambinayagam (1993) 2 Sri L.R. 355.

Reference to the Supreme Court under Article 125(1) of the Constitution.

J. W. Subasinghe P.C. with D. R. P. Goonetilake and Manohara de Silva for appellants.

S. Mahenthiran with Sampath Welgampola for appellant in C.A. 1/93 (PHC).

Nihal Jayamanne with Prasantha de Silva, Ms Noorania Amerasinghe and Ms. Vasana Perera for 1st respondent.

Other respondents absent and unrepresented.

Cur. adv. vult.

June 8, 1995.

KULATUNGA, J.

A dispute affecting land (between the Party of the 1st Part and the Party of the 2nd Part, hereinafter referred to as the "appellant" and the "1st respondent", respectively) was referred to the Magistrate's Court of Mt. Lavinia under Section 66 of the Primary Courts' Procedure Act No. 44 of 1979. After inquiry, the Magistrate (acting in his capacity of a Primary Court Judge) made order in terms of Section 68 of the Act directing the appellant to be restored to possession. That order was set aside by the High Court of the Western Province acting in revision on an application made by the 1st respondent. The appellant being aggrieved by the judgment of the High Court, appealed to the Court of Appeal.

At the hearing of the appeal a preliminary objection was raised that the Court of Appeal has no jurisdiction to entertain the appeal as the same is in respect of an order made in the exercise of the revisionary jurisdiction of the High Court. A question was also raised as to whether in the light of Section 74(2) of Act No. 44 of 1979 the appellant is entitled to appeal to the Court of Appeal. The Court of

Appeal acting under Article 125(1) of the Constitution, referred the following questions to this Court for determination.

(1) Does the Court of Appeal have an appellate jurisdiction in terms of Article 138(1) of the Constitution as amended by the 13th amendment in respect of a decision of the Provincial High Court made in the exercise of its revisionary jurisdiction?

(2) Does a party aggrieved by a decision of the Provincial High Court given in respect of a matter coming within part VII of the Primary Courts Procedure Act, have a right of appeal to the Court of Appeal in terms of Article 154P(6) of the Constitution as amended by the 13th amendment read with Section 74(2) of the Primary Courts' Procedure Act.

Learned Counsel for the 1st respondent submitted that on a proper construction of the relevant provisions, the Court of Appeal cannot entertain the appeal; and the appellant's remedy is possibly by way o? revision to the Court of Appeal. In the alternative he submitted that the decision in Gunaratne v Thambinayagam (1) is wrong when it held that Section 9 of Act No. 19 of 1990 does not permit direct appeals to the Supreme Court from orders made in the exercise of revisionary jurisdiction of the High Court of a Province; and that it is the Supreme Court which has the jurisdiction to entertain an appeal from the impugned judgment. On the second question, Counsel submitted that Section 74(2) of Act No. 44 of 1979 provides that "an appeal shall not lie against any determination or order under this part"; that the right of appeal under Article 154P(6) is subject to law; hence Section 74(2) should be interpreted as prohibiting any appeal to any Court, including the Court of Appeal. Counsel argued that this interpretation will give effect to the intention of the Legislature which is to avoid protracted litigation in respect of orders made by a Primary Court Judge which are of an interim nature.

Learned Counsel for the appellant and Mr. Mahenthiran who was heard (in terms of Article ' 34(3) of the Constitution) in view of the fact that he appears for the appellant in a similar case C.A. No. 1/93 (PHC) submitted that in Gunaratne v. Thambinayagam (Supra) this Court was concerned with the interpretation of Section 9 of Act No. 19/1990; hence that decision has no application here. In the matter before us, there is no justification for eroding the appellate jurisdiction

of the Court of Appeal under Article 138(1) to entertain appeals lodged in the exercise of the right of appeal granted by Article 154P(6). Counsel also submitted that Section 74(2) only precludes an appeal from an order of the Primary Court Judge and it would not touch the power of the Court of Appeal to entertain an appeal from the judgment of the High Court.

In order to determine the questions referred to this Court, we have to interpret the provisions of Article 154P (3) (b), Article 154 (P) (6) and Article 138(1) of the Constitution. These Articles are reproduced below.

A. 154 P (3) -

"Every such High Court shall -

(a) ....................

(b) notwithstanding anything in Article 138 and subject to any law, exercise, appellate and revisionary jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrate's Courts and Primary Courts within the Province".

A. 154 P (6) -

"Subject to the provisions of the Constitution and any law, any person aggrieved by a final order, judgment or sentence of any such Court in the exercise of its jurisdiction under paragraph (3) (b) . . . . . ., may appeal therefrom to the Court of Appeal in accordance with Article 138".

A. 138 (1) -

"The Court of Appeal shall have and exercise subject to the provisions of the Constitution or of any law, an appellate jurisdiction for the correction of all errors in fact or in law which shall be committed by the High Court in the exercise of its appellate or original jurisdiction or by any Court of First Instance, Tribunal or other institution and sole and exclusive cognizance, by way of appeal, revision and restitution in integrum, of all causes, suits, actions, prosecutions, matters and things of which such High Court, Court of First Instance, Tribunal or other institution may have taken cognizance".

In Gunaratne v. Thambinayagam (Supra) the question that came up for consideration was whether the right of direct appeal to the Supreme Court provided by S.9 of Act No. 19 of 1990 is limited to orders made by the High Court in the exercise of its "appellate jurisdiction" in the narrow sense and excluded appeals from orders made in the exercise of its "revisionary jurisdiction". It was held that S.9 would not confer a right of appeal in respect of revisionary orders of the High Court. In so deciding, this Court had regard inter alia, to the following considerations:

(a) The power of revision is an extraordinary power distinct from the appellate jurisdiction of the Court.

(b) The right of appeal is a statutory right and must be expressly created and granted by statute.

(c) Section 9 refers to orders made in the exercise of the appellate jurisdiction of the High Court. In contrast S.31DD(1) of the Industrial Disputes Act as amended by Act No. 32 of 1990 (which also provides for direct appeals to the Supreme Court) provides for an appeal from any final order of a High Court, in the exercise of the appellate jurisdiction or its revisionary jurisdiction, vested in it by law, in relation to an order of a Labour Tribunal.

It is thus clear that the expression "appellate jurisdiction" in S.9 of Act No. 19 of 1990 has a restricted meaning. If so, this Court cannot enlarge the right of appeal granted by that section. It is a matter for Parliament. As such, I am unable to agree that the case of Gunarathe v. Thambinayagam (Supra) has been wrongly decided. In the instant case, we are not concerned with the question whether a statutory right of appeal granted by ordinary law is subject to any limitation. The question here is whether the appellate jurisdiction of the Court of Appeal under Article 138(1) of the Constitution to entertain appeals made in terms of Article 154P(6) is restricted and excludes the power to entertain appeals from revisionary orders of the High Court. If it is so restricted then, it also means that the right of appeal granted by Article 154P(6) is restricted by Article 138(1).

Conceptually, the expression "appellate jurisdiction" includes powers in appeal and on revision. From the time of the Administration

of Justice Law No. 44 of 1973 it also includes restitution in integrum. See Sections 36 and 37 of the Courts Ordinance (Cap.6), Sections 11 and 354 of the A.J. L. and Articles 138, 139 and 145 of the Constitution. Prior to the 13th amendment when only the Courts of First Instance, Tribunals and other institutions were subject to the appellate jurisdiction of the Court of Appeal, there was no question that the Court of Appeal was empowered to exercise its jurisdiction "by way of appeal, revision and restitution in integrum". Under the 13th amendment the High Court of a Province which is vested with powers of appeal as well as revision is not a Court of First Instance. Hence, by a consequential amendment to Article 138(1), that Court also has been made subject to the appellate jurisdiction of the Court of Appeal. The amendment provides inter alia that "the Court of Appeal shall have and exercise ... an appellate jurisdiction for the correction of all errors ... which shall be committed by the High Court, in the exercise of its appellate or original jurisdiction".

The power to review the orders of Magistrate's Courts and Primary Courts by way of appeal and revision is conferred on High Courts by Article 154P (3) (b). Section 3 of Act No. 19 of 1993 extended this power to orders of Labour Tribunals and orders made under Sections 5 and 9 of the Agrarian Services Act. Had these provisions conferred appellate jurisdiction on the High Court to be exercised by way of appeal and revision, the questions of interpretation of the kind which have arisen from time to time may not have arisen. However, the use of the expression "appellate and revisionary jurisdiction" has given rise to such questions. Whenever such questions arise as to the meaning of a particular provision, the Court has to interpret the statute and determine its meaning on the basis of the intention of Parliament or the supposed intention of Parliament, having regard to the language of the statute and relevant rules of interpretation. As stated in Bindra's "Interpretation of Statutes" 7th Ed. p.945:

"It is the duty of the Court to determine in what particular meaning or particular shade of meaning the word or expression was used by the Constitution makers, and in discharging the duty the Court will take into account the context in which it occurs, the subject to serve which it was used, its collocation the general congruity with the concept or object it was intended to articulate and a host of other considerations. Above all, the Court will avoid repugnancy with accepted norms of justice and reason".

In the case before us, Article 154P (3) (b) conferred "appellate and revisionary" jurisdiction on the High Court. Article 154P (6) provides that any person aggrieved by a decision of the High Court in the exercise of its jurisdiction inter alia, under paragraph (3) (b) may appeal therefrom to the Court of Appeal in accordance with Article 138. Thus Article 154(P) (6) itself has not limited the right of appeal given by it to orders made by the High Court by way of appeal. However, that Article refers back to Article 138 which spells out the jurisdiction of the Court of Appeal and the manner of its exercise.

Learned counsel for the list respondent relies upon the wording of the first part of Article 138(1) to argue that the right of appeal given by Article 154(p) (6) is limited to correcting errors committed by the High Court in deciding appeals. This argument is based on the use of the words "appellate jurisdiction for the correction of all errors ... committed by the High Court in the exercise of its appellate or original jurisdiction". Counsel next cites the second part of Article 138(1) which gives the Court "sole and exclusive cognizance by way of appeal, revision and restitutio in integrum of all causes, suits actions, prosecutions, matters and things of which such High Court, Court of First Instance, Tribunals or other institution may have taken cognizance". He argues that by this part the Court of Appeal is given appellate and revisionary jurisdiction only with regard to orders made by the High Court in the exercise of its original jurisdiction.

In my opinion there is no justification for the suggested construction of Article 138(1). In using the expression "appellate or original jurisdiction" Parliament intended to refer to the appellate jurisdiction of the High Court as opposed to its original jurisdiction. These words were not used to limit the appellate jurisdiction of the Court of Appeal to correct the errors committed by the High Court only in respect of decisions given by way of appeal. This is the interpretation which is most agreeable to justice and reason.

Secondly, there is no warrant for dissecting Article 138(1) into two parts and holding that the powers of appeal and revision given by the second part are limited to decisions given in the exercise of the original jurisdiction of the High Court. The entire Article should be read as a whole. The second part is complementary to the first part and proceeds to give the Court sole and exclusive cognizance over

all the matters referred to in that Article and to spell out the manner of exercise of the appellate jurisdiction of the Court of Appeal. The second part refers to "such High Court" viz. the High Court having appellate and original jurisdiction. Accordingly, I hold that the Court of Appeal has jurisdiction to hear an appeal against a decision of the High Court whether given by way of appeal or on revision.

There is also no merit in the submission that Section 74(2) of Act No. 44 of 1979 is a bar to an appeal to the Court of Appeal from the judgment of the High Court. That section plainly prohibits an appeal from a decision of the Primary Court Judge. Such prohibition cannot affect the right of appeal to the Court of Appeal against a decision of the High Court. It is true that the right of appeal given by Article 154(P) (6) is subject to any law. However, having regard to its plain meaning, Section 74(2) cannot be invoked to deprive the appellant's right of appeal to the Court of Appeal. On the other hand, in the absence of clear and express provision, it is in the interest of justice that such right should be upheld rather than denied lest erroneous decisions of the High Court will be immune from scrutiny by a Superior Court.

For the foregoing reasons, the questions referred to this court have to be answered as follows:

1. Yes.

2. Yes.

The appellant will be entitled to costs in a sum of Rs. 750/- payable by the 1st respondent.

G. P S. DE SILVA, C. J. - I agree.

RAMANATHAN, J. - I agree.

Questions referred answered.

1.S. A. KANAGASABAI Vs MYLWAGANAM [S C].78NLR280

1976 Present : Sharvananda, J., and Wanasundera, J.

S. C. Application 471/76-M.C. Colombo 42282/1

Administration of Justice Law-Sections 62, 63, 65-Relevance of suit pending in civil court-Conditions precedent to the exercise of jurisdiction-Meaning of dispute affecting land.

(1) The mere fact that a suit is pending in a civil court does not deprive the Magistrate of jurisdiction to make an order under Sections 62 and 63 of the Administration of Justice Law, No. 44 of 1973.

(2) It is sufficient for a Magistrate to exercise powers under Section 62 if he is satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section.

(3) The Magistrate's jurisdiction under section 62 extends to disputes relating to the possession of business premises, and is not confined to disputes affecting agricultural or pastoral land.

(4) The inquiry under section 62 is directed to the determination as to who was in actual possession of the land on the date of the issue of the notice under Section 62 (1) irrespective of the rights of the parties or their title to the said land. On his reaching that finding the Magistrate may unless the facts fall within section 63(3) make an order under section 63(2).

APPLICATION IN REVISION against an order of the Magistrate's Court, Colombo.

M. Tiruchelvam, with N. Tiruchelvam and M. T. M. Faiz, for the Petitioner.

H. L. de Silva, with S. Mahenthiram for the 1st Respondent.

Cur. adv. vult.

September 24, 1976. SHARVANANDA, J.-

This is an application to revise an order made by the Magistrate declining to proceed to act under section 62 of the Administration of Justice Law.

By his report dated 3.5.76. the Inspector of Police, Pettah, stated to Court that on a complaint made by the petitioner Kanagasabai that he was conducting a partnership business at premises No. 68A, 4th Cross Street, Pettah, and that after his closing the shop on 30.4.76 and was about to leave, he was forcibly pushed out by the respondent Mylwaganam who was occupying the other portion of premises No 68, 4th Cross Street, the Police visited the place and found that there was a wall which was separating premises No. 68A, from the rest of premises No. 68 and that this wall was demolished by the respondent Mylwaganam and both the premises were converted into one shop by him. The report also stated that there were two name-boards : (1) N. K. Mylwaganam & Co. (1st respondent's firm) and (2) M. Thasan Trades (Petitioner's firm), and there were two iron safes and three balances and tables and a heap of iron bars. The report also referred to the fact that both parties were inside the shop and could not come to a settlement about the possession of the premises. According to the report, as the Police expected a breach of the peace, they took charge of the keys of the shop from the respondent Mylwaganan and asked both parties to close the shop and go away from the premises.

The Inspector produced both the parties, namely the petitioner and the respondent, and moved the Court to take action under section 62 of the Administration of Justice Law. (Premises No. 68A, the right to possession of which is in dispute, is a defined portion of premises No. 68, 4th Cross Street. There is no dispute regarding the possession of the balance portion of premises No. 68. It is conceded that the respondent Mylwaganam is entitled to possession of that balance portion falling outside premises No. 68A). Though, according to the report dated 3.5.76, both the premises, namely, premises No. 68A and the balance portion of premises No. 68, have been closed on, the orders of Court and the keys of which had been taken charge of by the Police and been produced in Court along with the report on 4.5.76, the Police, without any further order of Court, returned the keys of the balance portion of premises No. 68 to the respondent Mylwaganam. As the learned Magistrate in this case points out, the conduct of the Police, after having filed the report in Court and produced the keys of premises No. 68 in Court, is highly arbitrary The Police should have awaited the orders of Court and should not have done anything to affect the status quo. It is regrettable that the Police should have misconceived their functions and powers. Once the keys were productions in Court, they could have been returned by the Police to any party only on the orders of Court and not of any other authority. I concur with the Magistrate in condemning the action of the Police. Serious notice will be taken of any action by the Police which interferes with the orders of Court.

The inquiry on the Police report commenced on 11.5.76, at which both the petitioner and the respondent were present and represented. Counsel for the respondent Mylwaganam, at the outset informed the Court that his client had instituted action No. 3/1745/RE in the District Court of Colombo for a declaration that the petitioner Kanagasabai is not the tenant of premises No- 68A, 4th Coss Street, Pettah, and that the petitioner had no manner of right to occupy the said premises and for an interim and permanent injunction restraining the petitioner from entering into occupation of the said premises No. 68A. He also stated that in pursuance of his application for an interim injunction, the District Court had issued an ex parte interlocutory order under section 565 of the Administration of Justice Law. He submitted that in view of the proceedings pending in the District Court regarding the possession of premises No. 68A, the Magistrate's Court should not make any order under section 62 or 63 of the Administration of Justice Law.

By his order dated 22.6.76, the Magistrate held that in view of the application pending before the District Court, he should not proceed to act under section 62 of the Administration of Justice Law. According, he refused to proceed to inquire. It is this order which is sought to be revised.

In my view, the learned Magistrate has mis-directed himself as to the nature of the proceedings under section 62 of the Administration of Justice Law and the ambit of his jurisdiction in relation to proceedings pending in a civil Court. As was stated in Imambu v. Hussenbi (A.I.R. 1960 Mysore 203) : " If a civil Court decided the question of possession even for the purpose of giving an interim injuction, the Magistrate, acting under Section 145 of the Indian Criminal Procedure Code (which corresponds to section 62 of our Administration of Justice Law) should respect that decision. But the mere pendency of a suit in a civil Court is wholly an irrelevant circumstance and does not take away the dispute which had necessitated a proceeding under section 145 The possibility of a breach of the peace would still continue."

Section 62 of the Administration of Justice Law confers special jurisdication on a Magistrate to make orders to prevent a dispute affecting land escalating and causing a breach of the peace. The jurisdication so conferred is a quasi-criminal jurisdiction. The primary object of the jurisdiction so conferred on the Magistrate is the prevention of a breach of the peace arising in respect of a dispute affecting land. The section enables the Magistrate temporarily to settle the dispute between the parties before the Court and maintain the status quo until the rights of the parties are decided by a competent civil Court. All other considerations are subordinated to the imperative necessity of preserving the peace. The section requires that the Magistrate should be satisfied, before initiating the proceedings, that a dispute affecting land exists and that such dispute is likely to cause a breach of the peace. But, once he is satisfied of these two conditions, the section requires him to proceed to inquiry and make order under section 63. The pendency of a civil suit in respect of the right in question is no bar to action being taken under section 62 of. the Administration of Justice Law. At an inquiry under that section the Magistrate is not involved in an investigation into title or right to possession, which is the function of a civil Court. The action taken by the Magistrate is of a purely preventive and provisional nature in a civil dispute, pending final adjudication of the rights of the parties in a civil Court. The proceedings under this section are of a summary nature and it is essential that they should be disposed of as expeditiously as possible. Section 65 of the Administration of Justice Law expressly states that no order under section 62 or section 63 shall affect or prejudice any right or interest in any land or part of land which any person may be able to establish in a civil suit. Sub-sections (2) and (6) of section 63 of the Administration of Justice Law under line the fact that the order made by the Magistrate under sections 62 and 63 is intended to be effective only up to the time a competent Court is seized of the matter and passes an order of delivery of possession to the successful party before it, or makes an order depriving a person of any disputed right and prohibiting interference with the exercise of such right.

The plaint in Case No. 3/1745/RE by the respondent Mylwaganam was filed in the District Court of Colombo on 7.5.76 subsequent to the commencement of proceedings in the Magistrate's Court. In that action, the respondent prayed for a declaration that the defendant (the present petitioner) was not the tenant of the said portion No. 68, 4th Cross Street ( commonly referred to as No. 68A, 4th Cross Street), and that the defendant had no manner of right to occupy the said portion and for an interim injunction preventing the defendant from entering into occupation of the said portion until a final determination of the action and also for a permanent injuction restraining the defendant from entering the said portion and premises. By the interlocutory order dated 10.5.76 made in terms of Section 365 (1) (b) of the Administration of Justice Law, the District Judge ordered that " the 17th day of May, 1976, is hereby appointed for a determination of the matter of the applicant and that the matter will be inquired into on the said 17th day of May, 1976 ". This is the interlocutory order referred to by Counsel for the respondent in his submissions made before the Magistrate on 11.5.76 and by the Magistrate in his order dated 22.6.76. It is to be noted that interim injunction in terms of the prayer in the plaint had not been granted by the Court on the application, but the Court had only made an interlocutory order fixing a date for inquiry. The defendant had not been enjoined from doing anything until the hearing and decision of the application for an interim injunction. Hence, no enjoining order or an interim injunction restraining the petitioner from entering into occupation of premises No. 68A was in operation at the material time of the inquiry by the Magistrate which inhibited the exercise of his powers under sections 62 and 63. The Magistrate has fallen into an error in conceiving that his jurisdiction has been ousted by the proceedings taken by the respondent in the District Court subsequent to the institution of the present proceedings by the Police. As stated earlier, the mere pendency of a suit in a civil Court is an irrelevant circumstance for the Magistrate to take into consideration when making an order under sections 62 and 63 of the Administration of Justice Law. His primary function is to maintain law and order. If the mere institution of a suit in a civil Court is sufficient to divest the Magistrate of his jurisdiction, the whole purpose of section 62 will be defeated. A scheming party will be enabled to play hide and seek. A person who has taken forcible possession, realising that the decision of the Magistrate would go against him, may rush to a Civil Court to stall for time and in the meanwhile continue to be in unlawful possession of the premises. The law cannot countenance any such action which is calculated to render nugatory the proceedings before the Magistrate. A party, by merely instituting a civil proceeding, cannot hamstring the Magistrate from proceeding with the inquiry under section 62. Such confrontation does not justify the Magistrate abdicating his functions under section 62. Of course, if the civil Court has already given a decision, final or interim, prior to the Magistrate making his order under section 63, to that extent as the dispute between the parties is decided by a competent Court, the Magistrate would be justified in making his order on the basis of such decision. But, in the absence of such a decision, the Magistrate's jurisdiction to make an order under section 63 is not affected. Correspondingly, a civil Court, before making any decision in the shape of an interim order on the dispute, will have regard to the proceedings pending in the Magistrate's Court under section 62 of the Administration of Justice Law and will, unless there are special circumstances, refrain from proceeding to make an interim decision if proceedings under section 62 are pending in the Magistrate's Court. If the Magistrate has already made an order under section 63 of the Administration of Justice Law, in my view, the civil Court will not have jurisdiction to make any interim order which will in any way prejudice the right of a party who has succeeded in getting an order in his favour under section 63 of the Administration of Justice Law. For, in terms of section 63 (2) and (6), the successful party will be entitled to be in possession until he is ejected therefrom under a judgment, order, or decree of a competent Court, and all disturbance of such possession, otherwise than by a judgment, order, or decree of a competent Court, is prohibited. Similarly, under section 63(6), the right of a successful party can be deprived of only by virtue of a judgment of a competent Court, and all disturbance or interference with the exercise of such right is prohibited other than by the authority or judgment of a competent Court. " Injunctions are not granted directing something to be done, but that something should not be done."-Thamotherampillai v. Arumugam, (29 N.L.R. 406 at 409 & 10). A Court has no power (by way of an Interim injunction) to remove a defendant who is already in possession of the subject matter of the action on the strength of an order made by a Magistrate under section 63 and to place the plaintiff in possession pending the result of the action.-vide Pounds v. Ganegama (40 N.L.R. 73). The eviction referred to in section 63 (2) and deprivation of the right referred to in section 63(6) cannot be achieved by any interim injunction or by any other interim order emanating from a civil Court. The order made under section 63 endures until it is superseded by a final. order or judgment of a competent Court.

The inquiry under section 62 is directed to the determination as to who was in actual possession of the land or part, in dispute on the date of the issue of the notice under section 62(1), irrespective of the rights of the parties or their title to the said land or part. The Magistrate, acting under section 62, is not deciding the rights of parties. The proviso to section 63(7) postulates the determination being made without reference to the merits of the claims of the persons to the possession of the land or part in dispute. The Magistrate is concerned only with finding who was in actual possession on that date and with maintaining the status quo. On his reaching that finding, he may, unless the facts fall within the provisions of section 63(3), make an order under section 63(2) declaring the persons so found to be in possession on the date of the notice to be entitled to possession of the land. Such an order should be based on his prior determination in terms of section 63(1). The provisions of section 63(3) and (4) apply to a case where, though one party is found to have been in possession of the land or part in dispute on the date of the issue of the notice some other party who is found to have been in possession of the land or part in dispute had been forcibly dispossessed within a period of two months immediately before the date of issue of the notice under section 62(1); in which event, the party so found to have been forcibly dispossessed may be ordered to be restored to possession of the land or part in dispute. The party in possession on the relevant date, but who had come into such possession by forcibly dispossessing the other party, may prove that such dispossession took place more than two months next preceding the date of the notice, and in that case the Magistrate cannot make an order under section 63(4). On the other hand, if he is satisfied that forcible dispossession had taken' place within the said two months, he may make an order under section 63(4) directing the party so dispossessed to be restored to possession in terms of section 63(4).

Counsel for the respondent submitted that a report of the Police is not sufficient to justify the Magistrate taking proceedings under section 62. It is essential for the assumption of jurisdiction under section 62 that the Magistrate should have reason to believe from a Police report or other information that a dispute relating to land, which is likely to cause a breach of the peace, exists. The report or other information should contain sufficient material to enable the Magistrate to form the belief that the dispute is likely to cause a breach of the peace. The jurisdiction conferred on a Magistrate to institute an inquiry under this section can be exercised only when the dispute is such that it is likely to cause a breach of the peace. It is the apprehension of a breach of the peace, and not any infringement of private rights or dispossession of any of the parties, which determines the jurisdiction of the Magistrate. It is sufficient for a Magistrate to exercise the powers under this section if he is satisfied on the material on record that there is a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under the section. Power is conferred by section 62 in subjective terms-the Magistrate, being the competent authority, is entitled to act when he has reason to believe that the existence of a dispute affecting land is likely to cause a breach of the peace. The condition precedent to the exercise of the power is the formation of such opinion-the factual basis of the opinion being the information furnished by any Police officer or otherwise. A Magistrate is not bound to take action on a Police report or upon an expression of opinion by the Police. But, before he takes action, he should have a statement of facts before him so that he may exercise his own judgment in arriving at a conclusion as to the necessity of taking action under this section. The question whether, upon the material placed before him, proceedings should be instituted under this section is one entirely within the Magistrate's discretion. He may form his opinion on any information received. In my view, he can base his action on a complaint filed by any of the parties, or on a Police report. The Magistrate should however proceed with great caution where there is no Police report and the only material before him are statements of interested persons.

Counsel for the respondent contended that the Magistrate had no jurisdiction to proceed under section 62 as the dispute between the petitioner and the respondent did not affect 'land'. According to him, the subject of dispute should be bare land and not a building or any other structure erected on the land. In the present case, the dispute relates to the possession of business premises in 4th Cross Street, Pettah. Counsel referred to section 62 (4) which reads as follows :-

"In this section, 'dispute affecting land' includes any dispute as to the right to the possession or to the boundaries of any land or part of a land, or as to the right to cultivate any land or part of a land, or as to the right to the crops or produce of any land or part of a land, or as to any right in the nature of a servitude affecting the land."

This is an interpretation clause. The use of the word 'includes' in significant. Where the word defined is declared to 'mean' so and so, the definition is explanatory and prima facie restrictive; where the word defined is stated to 'include' so and so, the definition is extensive. " ' Include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute, and when it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include."- per Lord Watson Dilworth v. Commissioner of Stamps (1899-A.C. 105 & 106), An interpretation clause which extends the meaning of a word does not take away its ordinary meaning as understood in our jurisprudence. The expression must be given its ordinary meaning and, in addition, it must, in relevant cases, be given the special meaning which the statute says is to be included. The ordinary meaning must however harmonise with the subject of the enactment and the object which the legislature has in view. It must fall within the scope and object of the statute and must not extend to ground foreign to its intention.

Our law does not recognise ownership of a house or building apart from the land on which it stands. The building loses its independent existence and becomes part of the land on which it is constructed. The principle of accessio in the case of buildings is embodied in the maxims, 'Omne quod inaedifecatur solo solo cedet' (All that is built on the soil belongs thereto) and 'Superficies solo cedet' (Things attached to the earth go with the immovable property). Thus, land, in its signification, means not only the surface of the ground, but also everything built on it. Cujus est solum ejus est usque ad caelum (He who possesses land possesses also that which is above it). On a conveyance of land, all buildings erected thereon pass with the land, even though there is no specific mention of such buildings in the deed of transfer. Thus, 'land', in our law, includes houses and buildings, and when the legislature employs the term 'land' in any statute, the word is presumed to include 'houses and buildings', unless there are words to exclude 'houses and buildings'. The language of section 62 does not repel such inclusive meaning. A breach of the peace can ensue from a dispute relating to an agricultural land as well as from a dispute relating to a house or building. There is no justification for restricting or confining the Magistrate's jurisdiction under section 62 to a dispute affecting agricultural or pastoral land only. In my view, the Magistrate's jurisdiction under section 62 extends to disputes affecting business premises and residential premises.

Accordingly, in the exercise of this Court's revisionary powers, I set aside the order of the Magistrate dated 22.6.76 and remit the case to the Magistrate's Court with the direction that he should proceed to act under section 62 and make his order under section 63 regardless of the proceedings in Colombo 1745/RE instituted by the respondent Mylwaganam. The Magistrate should proceed to inquire into the matter expeditiously and endeavour to make his order under section 63 within six weeks of the Registrar, Supreme Court, communicating the order of this Court. It is hoped that the District Court will stay its hands pending the final order of the Magistrate in this matter.

The 1st respondent will pay Rs. 420/- to the petitioner as costs of the application to this Court.

WANASUNDERA J.-I agree.

Order set aside.

2. PARAMASOTHY V NAGALINGAM [CA] 1980 SLR - Volume 2 , Page34

COURT OF APPEAL - 1980 SLR - Volume 2 , Page 34

SOZA, J., AND L. H. DE ALWIS, J.

C. A. APPLICATION NO. 807/80.

OCTOBER 22, 1980.

Primary Courts Procedure Act No. 44 of 1979, sections 66, 67, 72-Breach of the Peace threatened or likely-Objection that failure to consider such requirement deprived court of jurisdiction-Opportunity to lead evidence-When necessary-Discretion of court-Requirement that objection to jurisdiction be taken at earliest opportunity-Judicature Act, No. 2 of 1978, section 39.

The petitioner moved to have an order made in the Primary Court under Part VII of the Primary Courts Procedure Act, No. 44 of 1979, revised. It was submitted on his behalf that :

(a) the court had failed to clothe itself with jurisdiction in that it had not considered whether on the Police report a breach of the peace was threatened or likely; and

(b) the learned judge of the Primary Court had failed to give the petitioner an opportunity to led evidence although such an application was made.

Held

(i) By virtue of the provisions of section 39 of the Judicature Act it was incumbent on any party who objects to jurisdiction to do so at the very first opportunity. In this case the court inspected the site in dispute on the invitation of parties and the order was made after hearing submissions. The petitioner was therefore not entitled to complain on the ground of jurisdiction. The court had plenary jurisdiction and. unless the objection was raised the court must be deemed to have jurisdiction.

(ii) Sections 72 of Act No. 44 of 1979 leaves the question f permitting evidence to be led to the discretion of court and the scheme of these Provisions is to prevent long drawn out inquiries. The court had inspected the land and heard the parties and no prejudice had been caused. Accordingly there was no necessity to grant the petitioner's application to lead evidence.

APPEAL from the Primary Court, Velanai.

S. Navaratnam- for the petitioner and S. C. Dickens, for the 1st respondent

October 22, 1930.

SOZA, J.

This is an application for revision of the order of the Judge of the Primary Court, Velanai made under the provisions of the Primary Courts Procedure Act, No. 44 of 1979. Two main points have been argued, namely, that the Primary Court had failed to advert its attention to whether on the police report a breach of the peace was threatened or likely. Accordingly, it is submitted that the court had failed to clothe itself with the necessary jurisdiction.

In this connection it is only necessary to refer to section 39 of the Judicature Act, No. 2 of 1978. By virtue of the provisions of this section it is incumbent on any party who raises an objection to jurisdiction to do so at the very first opportunity. In this case the parties have invited the court to inspect the site in dispute and the order was made after hearing the submissions. Having participated in the proceedings it does not lie in the mouth of the petitioner to complain that the learned Judge of the Primary Court has not clothed himself with the necessary jurisdiction to hear this case by forming an opinion in regard to the likelihood whether a breach of the peace was threatened or likely. The court had plenary jurisdiction to hear this matter and therefore unless objection was raised the court must be deemed to have jurisdiction. Hence the first objection fails.

In regard to the second question that there was no proper inquiry, our attention has been drawn to section 67 and section 72 of the Primary Courts Procedure Act, No. 44 of 1979. Section 67 stipulates that inquiry should be held in a summary manner and concluded within three months of the commencement of the inquiry. This stipulation shows what the legislature has intended, the inquiry should be held summarily and concluded speedily. Learned counsel for the petitioner complains that the Judge of the Primary Court had failed to give him an opportunity to lead evidence although such an application was made. Section 72 of the Primary Courts Procedure Act, No. 44 of 1979, leaves the question of permitting evidence to be led to the discretion of the court. The entire scheme of the new provisions is to prevent long drawn out inquiries where evidence is led on both sides. In the present case the court had inspected the land and heard the parties and no prejudice has been caused. There was no compelling need for evidence. Section 72 (b) and (c) are so drawn up as to leave to the discretion of the court the question of permitting written or oral submissions. These are not imperative provisions requiring the court to call for evidence to be led. In our view there was no necessity to grant the application of the petitioner to lead evidence. We see no ground on which we can interfere with the order of the learned Judge.

The Application is dismissed with costs L. H. DE ALWIS, J.- I agree.

Application dismissed.

3.RAMALINGAM v THANGARAJAH [S.C]

Sri Lanka Law Reports 1982 - Volume 2, Page No - 693

SUPREME COURT

SHARVANANDA, J., VICTOR PERERA, J., AND COLIN THOME, J.

S.C. 6/82; CA 2460/80;

P.C. AKKARAIPATTU PCA/398

SEPTEMBER 29, 1982

Primary Courts Procedure Act, Sections 66 to 76 ‑ Duty of Judge in disputes as to possession ‑ Consequence of failure to keep to time limits laid down in Act.

The respondent owned a land in extent 8A.1R.22P and had been cultivating it for decades but appellant dispossessed him of the land, on 6.10.79 and continued in possession. The Officer in Charge of the Police Station having failed to bring about a settlement filed information on 10.12.79.

Inquiry was fixed by , the Judge for 17.1.80. Inquiry was postponed from time to time and witnesses were examined and cross examined at length till the Judge brought about a settlement on 24.9.80.

The appellant complains that the above proceedings offend the mandatory provisions of Part VII of the Primary Courts Procedure Act and are therefore null and void.

Held ‑

(1) That a Judge should in an inquiry under Section 66 confine himself to the question of actual possession on the date of filing information except in a case where a person who had been in possession of land had been dispossessed within a period of two months immediately preceding filing of information.

(2) That where the, information filed and affidavits furnished under section 66 are sufficient to make a determination. under Section 68 further inquiry embarked on by the Judge was not warranted by the mandatory provisions of Section 72 and Eire in excess of his special jurisdiction.

(3) that non‑compliance by Court of the provisions of Sections 66 and 67 does not divest Court of jurisdiction conferred on it by Section 66(2).

Cases referred to:

(1) Kanagasabai v. Mailvaganam (1976) 78 NLR 280, 283.

(2) Nagalingam v. Lakshman de Mel (1975) 78 NLR 231, 237.

APPLICATION in revision of order of the Primary Court of Akaraipattu.

S.C. Crossette Thambiah with K. Thevarajah and S.H.N. Reeza for appellant.

K. Kanag‑Iswaran for respondent. .

Cur. adv. vult.

October 19, 1982

SHARVANANDA, J.

This is an appeal from a judgment of the Court of Appeal dismissing the appellant's revision application to have the proceedings No. 398 in the Primary Court of Akkaraipattu declared null and void.

On 10.12.79, the Officer‑in‑Charge of the Police Station, Akkaraipattu filed information under section 66 of the Primary Courts Procedure Act No. 44 of 1979 (hereinafter referred to as the Act) regarding a dispute relating to the possession of a land, between the petitioner-appellant (hereinafter referred to as appellant) and the respondent‑respondent, (hereinafter referred to as respondent), in the Primary Court of Akkaraipattu. He stated in the information that he had inquired into a complaint made by the respondent on 22.10.1979 to the effect that he owned a land 8 acres, 1 rood and 22 perches in extent which he had been cultivating continuously for decades and that the petitioner had entered this land forcibly and was cultivating the same. According to the information, the Officer‑in‑Charge had summoned both parties to the Police Station and had tried to effect a peaceful settlement, but his efforts had failed and he feared a serious breach of the peace as a result of the dispute. The appellant and, respondent appeared in Court on that date and filed their respective affidavits but annexed no documents thereto. In hi s affidavit the appellant stated that he was cultivating and possessing the said land from 1977. On the other hand the respondent in his affidavit dated 8.12.79 stated that while he was in possession of the land the appellant had "on 6.10.79 without any manner of right put him out of the land forcibly and cultivated the land" and prayed that he be restored to possession.

The Judge, Primary Court fixed the matter for inquiry on 17.1.80. On that date the inquiry commenced and counsel for the respondent led the evidence of one, David, Land Officer. Though this witness stated that he did not know who cultivated the land after 1974, the record shows that his evidence had gone on for a fair amount of time. After his lengthy evidence the inquiry was postponed to 22.2.80. On that date, on the application of both parties for a postponement on the ground that their lawyers were not present, further inquiry was re‑fixed for 6.3.80. On 6.3.80 however the inquiry was postponed for want of time for 28.4.80 on which date the Court, stenographer was not available and inquiry was put off again for 23.6.80. On the latter date the respondent gave evidence at length as to how he came into possession of the land and was in possession of it from 1976, till he was, forcibly dispossessed by the appellant on 6.10.79. The respondent's evidence covers eleven pages of the record. Thereafter one Stanislaus, Cultivation Officer gave evidence for the respondent. This witness in examination in chief, referred to the cultivation of the land by the respondent in 1978 but stated that the appellant cultivated the land during the 1979 cultivation season which started in October 1979. This witness was cross‑examined and re‑examined at length. His evidence covers about fifteen pages of the record. His evidence was not concluded that day when further inquiry was refixed for 25.6.80. The inquiry could not be taken up on 25.6.80, nor on 2.7.80 nor on 11.7.80, on which dates the case was postponed, as the. stenographer was on leave. On 11.7.80 on the application of both parties for a long date "as. they had to go to Kataragama", the inquiry was refixed for 6.8.80. On this date too the inquiry had to be postponed as the stenographer was on maternity leave and the inquiry was fixed for 10.9.80. On this date too the Attorney for the appellant moved for a postponement on the ground that his Senior Counsel had gone abroad, and that some documents pertaining to the case were with him. The Judge then inquired from the appellant's Attorney, whether he could assist the Court "as the‑ inquiry had to be completed within three months, in terms of section 67(1) of the Primary Courts Procedure Act No. 44/79". On the Attorney expressing willingness, the cross‑examination of Stanislaus was resumed. After Stanislaus, the next witness called was one Sambanther who testified to a complaint made by the appellant to, the Assistant Government Agent on 10.8.78 regarding the land in dispute. This witness however stated that he did not know who was in possession of the land at the relevant times. Further inquiry was fixed for 24.9.80. On this date the lawyers for the parties were absent, but "as they had not sent any intimation to Court about their appearance", the Judge, proceeded with the inquiry. The respondent called as his witness one Vasantharasapillai, who stated quite early in the course of his examination‑in‑chief that he cultivated this land from 1972‑75 but did not know who cultivated the land after that. On the respondent closing his case with that witness's evidence the appellant got into the witness box and stated that he cultivated the land for the 1977/78 and 1979/80 seasons and for the last cultivation season. Then the appellant was cross examined by the respondent. Thereafter ‑ the appellant called one Mailvaganam to give evidence on his behalf, This witness stated that he knew the land in dispute and that the appellant was possessing it. In cross‑examination this witness was shown two receipts marked 1R4 and 1R5. On the witness denying the signature appearing on the said receipts, the respondent stated that he would be calling the Examiner of Questioned Documents to prove the signature. When he was further being cross examined at length by the respondent the witness fainted. The record sets out what happened then:-

"Inquiry put off. I release him on bail in Rs. 1000/‑ in default of bail remand him for two weeks.

At this stage the respondents propose to settle the case. Case is settled on the following terms:

Terms of Settlement

Both respondents agree that the 1st respondent Thangarasa should possess 4 acres and 32 perches from the northern boundary of this land and the balance portion to be possessed by the 2nd respondent ‑ Ramalingam."

In consideration, of the motion of the 1st respondent to withdraw his application to have the signature of the witness Mylvaganam on 1R4 and 1R5 examined by the Examiner of Questioned Documents, the Judge cancelled the bail on the witness and warned and discharged him."

The appellant complains that the above proceedings offend the mandatory provisions of Part VII of the Primary Courts Procedure Act and are null and void.

Before I proceed to discuss the main contentions urged by the Counsel for the appellant, I would like to express my disapproval of the order for bail made by the Primary Court Judge on Mailvaganam. This order is absolutely unwarranted in law and cannot be. justified The witness was not facing any criminal charge for him to be subject to any remand. An order of this nature tends to discourage witnesses coming forward to give evidence. Courts should not hold out such threats or terrors to witnesses. Such an arbitrary order is not calculated to do any credit to a Court of Justice. Judges should be chary of making such orders.

The lackadaisical fashion in which the inquiry has been carried on reveals a lack of appreciation on the part of the Primary Court Judge and attorneys of the parties concerned, of the proper scope and objective of an inquiry under Part VII of the Act. Had the Judge addressed himself to the relevant issues involved in the case he could have spared himself the exercise of the long and protracted, inquiry which was characterised by digressions into irrelevancies and was conducted in disregard of the time limits prescribed by the provisions of the Act. On the undisputed facts of the case, as disclosed by the affidavits of the parties, the determination and order under section 68 of the Act could have been made on the first day of the inquiry itself. According to the affidavits filed by the appellant and respondent, prior to the commencement of the inquiry it was common ground and, it was not disputed that on the date of the filing of the information under section 66 of the Act, namely 10.12.79 the appellant was in possession of the land in dispute and had been in, such possession at least from 6.10.79. The respondent alleged in his affidavit that he was forcibly dispossessed of the land by the appellant on 6.10.79. Thus, on the respondent's own admission the appellant had entered into and commenced possession of the land prior to the period of two months immediately before the date on which the information was filed viz. prior to 10.10.79. On this uncontested fact of possession by the appellant from 6.10.79, the Judge could have and should have made his, determination and order under section 68 of the Act in favour of the appellant and terminated the proceedings. In law, that was the only order which the Judge could have made, on the facts; no additional evidence was necessary or relevant to enable the Judge to make the said determination and order.

In an inquiry into a dispute as to the possession of any land, where a breach of peace is threatened or is likely under Part VII, of the Primary Courts Procedure Act, the main point for decision is the actual possession of the land on the date of the filing of the information under section 66; but, where forcible dispossession took place within two months before the date on which the said information was filed the main point is. Actual possession prior to that alleged date of dispossession. Section 68 is only concerned with the determination as to who was in possession of the land or the part on the date of the filing of the information under section 66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof Section 68(3) becomes applicable only if the Judge can come to a definite finding that some other party had been forcibly dispossessed within a period of two months next proceeding the date on which the information was filed under section 66. The effect of this sub‑section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the person actually in possession can be said not to have been in possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his possession was acquired within two months of the filing of the information.

That person is entitled to possession until he is evicted by due process of law. A Judge should therefore in an inquiry under Part VII of the aforesaid Act, confine himself to the question of actual possession on the date of filing of the information except in a case where a person who had been in possession of the land had been dispossessed within a period of two months immediately before the date of the information. He is not to decide any question of title or right to possession of the parties to the land. Evidence bearing on title can be considered only when the evidence as to possession is clearly balanced and the presumption of possession which flows from title may tilt the balance in favour of the owner and help in deciding the question of possession.

On the other hand, if the dispute is in regard to any right to any land other than right of possession of such land, the question for decision, according to section 69(1), is who is entitled to the right which is subject of dispute. The word "entitle" here connotes the ownership of the right. The Court has to determine which of the parties has acquired that right, or is entitled for the time being to exercise that right. In contradistinction to section 68, section 69 requires the Court to determine the question which party is entitled to the disputed right preliminary to making an order under section 69(2).

The procedure of an inquiry under Part VII of the Act is sui generis. The procedure to be adopted and the manner in which the proceedings are to be conducted are clearly set out in Sections 66, 71 and 72 of the Act. Section 66(2) mandates that the special jurisdiction to inquire into disputes regarding which information had been filed under Section 66(1) should be exercised in the manner provided for in Part VII. The proceedings are of a summary nature and it is essential that they should be disposed of expeditiously. The importance of a speedy completion of the inquiry which culminates in the order under Section 68 or 69 is underscored by the specific time‑schedule prescribed by the provisions of the Act. Section 66(3), requires the Court to appoint a date "which shall not be later than three weeks from the date on which the parties were produced or the date fixed for their appearance under Section 66(1), directing the parties to file affidavits setting out their claims and annex thereto any documents on which they rely. When such affidavits are filed the Court is required on application made by parties to grant them time not exceeding two weeks to file counter affidavits with documents, if any. Sub‑section 6 provides that where no application has been made for filing counter affidavits or on the date fixed for filing counter affidavits the Court should endeavour, before fixing the case for inquiry to induce the parties to arrive at a settlement of the dispute and if there is no such settlement Court should fix the case for inquiry on a date not later than two weeks of the date fixed for filing affidavits or counter affidavits as the case may be. Section 67 specially postulates that the inquiry should be concluded within three months of its commencement and the Judge should deliver his order within one week of its conclusion. It is incumbent on the Judge to conform to these time limits and to discountenance any elaborate and prolonged inquiry in breach of the time limits.

In this connexion what I said with reference to the provisions of section 62 of the Administration of Justice Law No.44 of 1973 (now repealed) in Kanagasabai Vs. Mailvanaganam, (1) apply equally well to the Section 66 and 68 of the Act which correspond to them: ‑

"Section 62 of the the Administration of Justice Law confers special jurisdiction on a Magistrate to make orders to prevent a dispute affecting land escalating and causing a breach of the peace. The jurisdiction so conferred is a quasi‑criminal jurisdiction. The primary object of the jurisdiction so conferred on the Magistrate is the prevention of a breach of the peace arising in respect of a dispute affecting land. The section enables the Magistrate temporarily to settle the dispute between the parties before the Court and maintain the status quo until the rights of the parties are decided by a competent civil Court All other considerations are subordinated to the imperative necessity of preserving the peace. At an inquiry under that section the Magistrate is not involved in an investigation into title or right to possession, which is the function of a civil Court. The action taken by the Magistrate is of a purely preventive and provisional nature in a civil dispute, pending final adjudication of the rights of the parties in a civil Court. The proceedings under this section are of a summary nature and it is essential that they should, be disposed of as expeditiously as possible .........

The scheme embodied in this Part is geared to achieve the object of prevention of a breach of the peace. Section 68(2) enjoins the Judge to decide the dispute which gave rise to the threat to a breach of the peace, provisionally and to maintain the status quo until the right of parties are decided by a competent Civil Court. Section 72 prescribes the material on which the determination and order under section 68 and 69 of the Act is to be based. The determination should, in the main, be founded on "the information filed and the affidavits and documents furnished by the parties". Adducing evidence by way of affidavits and documents is the rule and oral testimony is an exception to be permitted only at the discretion of the Judge. That discretion should be exercised judicially, only in a fit case and not as a matter of course and not be surrendered to parties or their counsel. Under this section the parties are not entitled as of right to lead oral evidence. Section 72 provides: ‑

"A determination and order under this Part shall be made after examination and consideration of ‑

(a) the information filed and the affidavits and documents furnished;

(b) such other evidence on any matter arising on the affidavits or documents furnished as the Court may permit to be led on that matter;

The information, affidavits and documents of parties will identify their respective positions in regard to the issue of possession at the time of the filing of the information, for the purpose of the determination and order under section 68. If the question of possession or dispossession by any of the parties at the relevant time is disputed then the Court may permit oral evidence of the parties and their witnesses directed to that question only, for the purpose of ascertaining the true position. It is imperative that the Judge should so contain the inquiry and not allow parties to enlarge or convert the inquiry into a full scale trial of civil issues, as in a civil case.

Hence, where the information filed and the affidavits furnished under Section 66(2) were sufficient to make a determination under Section 68, the further inquiry embarked upon by the Judge was not warranted by the mandatory provisions of section 72 and was in excess of his special jurisdiction. The Judge should have made his determination on the first day of the inquiry itself, namely 17.1.80, that the appellant was in possession of the land and made order that the appellant was entitled to possession of the said land.

The question was raised as to what was the consequence of the failure of the Judge to observe the time‑limits prescribed for the various acts and steps leading to the determination and order under Section 68. It is significant that the prescription of time is preceded by the word 'shall'. The obligatory nature of the requirement that the particular step/act should be taken or done within a fixed time is indicated by the word 'shall'. This expression is generally used to impose a duty to do what is prescribed, not a discretion to comply with it according to whether it is reasonable or practicable to do. Prima facie the word 'shall' suggests that it ‑ is mandatory, but that word has often been rightly construed as directory. Everything turns on the context in which it is used; and the purpose and effect of the section in which it appears. It is to be noted that the statute does not declare what shall be the consequence of non‑compliance by Court with regard to this requirement's as to time limit prescribed by the law. Are these procedural rules to be regarded as mandatory, in which case disobedience will render void or voidable what has been done or as directory, in which case disobedience will be treated as an irregularity not affecting what has been done? It is to be observed that this obligation with regard to time limit is imposed on court, over whose acts or omissions the parties do not have any control. Maxwell on 'Interpretation of Statutes' 11th Edition, at page 369 appositely states‑

"Where the prescription of a statute related to performance of a public duty and where invalidation of acts done, in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. Neglect of them may be penal, indeed, but it does not affect the validity of the acts done in disregard of them. It has often‑been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, then the Act is directory only and might be complied with after the prescribed time."

In this context, one may also invoke the maxim "Actus curiae neminem gravabit" (an act of Court shall prejudice no man). In my opinion this maxim which is founded upon justice and good sense may be appropriately applied to salvage a determination and order made under section 68, where the Judge has failed to observe the time‑limits imposed by the legislature for the various procedural steps prescribed by it. The Judge is certainly to be blamed but a party in whose favour such an order is made should not suffer for the Judge's default.

A passage from my judgment in Nagalingam vs. Lakshman de Mel, (2), in respect of a similar situtation where the Commissioner of Labour had not made his order within the time prescribed under the Termination of Employment of Workmen (Special Provisions) Act No. 45 of 1971 has application to the present problem.

"The delay should not render null and void the proceedings and affect the parties, as the parties have no control over the proceedings. It could not have been intended that the delay should cause a loss of jurisdiction, that the Commission had to give an effective order of approval or refusal. In my view, a failure to comply literally with the aforesaid provisions does not affect the efficacy or finality of the Commissioner's order made thereon. Had it been the‑intention of the Parliament to avoid such order nothing would be simpler than to have so stipulated."

I am therefore of the view that the provisions as to time limits in Section 66 or 67, though the word 'shall' there suggests that they are mandatory, should be construed as being directory and that non‑compliance by Court of the provisions of Section 66 or 67 of the Act does not divest the Court of the jurisdiction conferred on it by Section 66(2) to make the determination and order under Section 68.

Another contention urged by counsel for the appellant is that an order based on the settlement arrived at by parties on 24.9.80, after the time prescribed by Section 67 of the Act, cannot be treated as an order to which Section 73 would apply. It is not necessary to decide on the correctness of this contention as admittedly the Judge has not made any order on this settlement in question and hence there is no foundation for the imposition of any penalty under Section 73.

For the reasons set out above I set aside all proceedings had in this case on and after 17.1.80, including the proceedings for alleged contempt of court, purporting to be held under Section 73 of the Act and direct the Judge to determine nunc pro tune, under Section 68 that the appellant was on the date of the filing of the information in possess‑ion of the land in dispute in extent 8 acres 1 rood and 22 perches and to make order declaring that the appellant is entitled to the possession of the said land. I allow the appeal and set aside the order of the Court of Appeal and send the case back to the Judge, Primary Court, with the order that he should comply with the aforesaid direction.

The respondent will pay the appellant Rs. 750/‑ as costs of this Court and of the Court of Appeal.

VICTOR PERERA, J. ‑ I agree.

COLIN‑THOME, J. ‑ I agree.

Proceedings after 17.1.80 set aside and case sent back for order.

Sri Lanka Law Reports

4.LOKU BANDA V UKKU BANDA

1982 - Volume 2 , Page No - 704

SUPREME COURT

SHARVANANDA, J., VICTOR PERERA, J., AND SOZA, J.

S.C. 50/80 ‑ C.A. 49/78, M.C. MAWANELLA 4287

SEPTEMBER 3, 1982

Administration of Justice Law, Sections 62, 63 ‑ Ande rights protected by Agricultural Lands Law ‑ Magistrate's duties when breach of peace is threatened over dispute as to possession rights.

Rasnekkumbura belonged in equal shares to Loku Banda, Ukku Banda and Warsakone. Loku Banda was an ande cultivator of Ukku Banda's lot. Disagreement arose and the matter was referred to the Conciliation Board. All three agreed to a survey and by survey Plan No. 1016 Lot 1 was allotted to Ukku Banda, Lot 2 to Warsakone and Lot 3 to Loku Banda.

On 1.4.76 Ukku Banda cultivated his land but was dispossessed by Loku Banda on 2.4.76. On 8.4.76 Loku Banda was ousted.

The Magistrate inquired into the matter and declared that Loku Banda was entitled to cultivate Lot 1 as ande cultivator while Ukku Banda was entitled to receive his landlord's share until a judgment was given by a competent Court.

The Court of, Appeal reversed the Magistrate's Order on the footing that the right to cultivate was an aspect of possession.

Held

1.That the right to cultivate can vest in a person different from the person who has the right to possession.

2. What the Magistrate had to decide was who was entitled to the right to the cultivate.

3.The Magistrate's finding that Loku Banda had an ande right to cultivate Lot 1 was correct as ande rights are protected by the Agricultural Lands Law and therefore not wiped out by the certificate of the Conciliation Board.

Case referred to:

(1) Kanagasabai v. Mylvaganam (1976) 78 NLR 280.

APPEAL from judgment of Court of Appeal.

Sanath Jayatilake for appellant.

Petitioner-respondent absent and unrepresented.

2nd respondent absent and unrepresented.

Cur. adv. vult.

October 27, 1982

SOZA, J.

This appeal raises an important question relating to the interpretation and application of the provisions of sections 62 and 63 of the Administration of Justice Law No.44 of 1973 (now replaced by sections 66 to 72, 74 and 75 of the Primary Courts Procedure Act No.44 of 1979) where Magistrates were called upon to deal with disputes affecting land which are likely to cause a breach of the peace and where only the right to cultivate is in issue.

In the case before us the dispute concerned the right of one Loku Banda the appellant before us to cultivate the one‑third portion of the paddy field called Rasnekkumbura alias Dettapathe Kumbura belonging to M.V. Ukku Banda the first respondent. The whole field called Rasnekkumbura alias Dettapathe Kumbura belonged in equal shares to the said Loku Banda, Ukku Banda and one Warsakone. Loku Banda claimed the right to cultivate not only his own one‑third share but also Ukku Banda's one‑third share as ande cultivator. Disagreement arose among the three owners and the matter was referred to the Conciliation Board of the area. At the inquiry which the Board held on 17.1.1975 the three co‑owners agreed that the field be surveyed and divided into three lots and that each of them would work and from then on possess his separate lot. The Sinhalese words used in the certificate of the Conciliation Board (1D2) are surveyor M.B. Ranatunga and divided in‑to three equal lots on 13.3.1976 and 9.4.1976. The three lots were depicted in Ranatunga's plan No.1016 which though marked 1D1 in the proceedings before the Magistrate is not before us. Ukku Banda was allotted Lot 1, Warsakone Lot 2 and Loku Banka Lot 3 in the said plan. Upon the division being made Ukku Banda began to cultivate Lot No.1 but Loku Banda lost no time in claiming his rights to be the ande cultivator of the same Lot. The dispute led to complaints to the Police being lodged by both Loku Banda and Ukku Banda and the Officer in Charge of the Aranayake Police Station who is the 2nd respondent before us filing An information on 7.5.1976 relating to the dispute before the Magistrate of Mawanella.

At the inquiry before the Magistrate Loku Banda contended that at no stage had he surrendered his ande rights and to establish the existence of these rights he produced convincing proofs. He claimed the right to cultivate Lot No.1 which had been allotted to Ukku Banda at the division concluded on 1.4.1976 and he maintained that he had in fact cultivated this Lot from 2.4.1976 till 8.4.1976 when he was obstructed by Ukku Banda. Ukku Banda relied on the settlement entered before the Conciliation Board in terms of which he claimed he was entitled to cultivate and possess Lot 1 and he said he had in fact entered into possession of it on 1.4.1976 and begun to cultivate it when on 2.4.1976 he was disturbed by Loku Banda.

The learned Magistrate inquired into the matter and by his order dated 9.11.1977 for which he gave his reasons on 23.11.1977 declared that Loku Banda was entitled to cultivate Lot 1 as ande cultivator while Ukku Banda was entitled to receive his landlord's share of the income of Lot 1. Ukku Banda was ordered not to obstruct Loku Banda from cultivating Lot 1 until the tenancy rights pertaining to this Lot were resolved in the appropriate forum. The learned Magistrate felt that no question of the wiping out of the ande rights of Loku Banda had arisen before the Conciliation Board. Indeed such a question could only be dealt with under the provisions of the Agricultural Lands Law No.42 of 1973 by the institutions referred to there.

It is beyond question that the rights of an ande cultivator are, except in the limited circumstances referred to in the Agricultural Lands Law, virtually unassailable and inalienable. Further the proceedings before the Conciliation Board do not show that Loku Banda expressly waived his ande rights. A landlord can work and used in Board do not necessarily imply that Loku Banda waived his ande rights. The ande rights which Loku Banda had, attached to the soil rights of Ukku Banda. So at the partition which the co‑owners effected those ande rights attach themselves to the particular Lot, here Lot 1, which Ukku Banda was awarded. In these circumstances the view of the Court of Appeal that the agreement for Ukku Banda to work and possess Lot 1 wiped out the rights Loku Banda had to cultivate it in the exercise of his ande rights, is not supportable.

The legal provisions under which the Magistrate could have acted are set out particularly in sections 62 and 63 of the Administration of Justice Law No.44 of 1973. The Magistrate has jurisdiction to act under those sections when the existence of a dispute affecting any land situated within his territorial jurisdiction and likely to cause a breach of the peace is reported. The expression "dispute affecting land" according to s.62(4) of the Administration of Justice Law includes any dispute:

(a) as to the right to possession of any land, or part of a land, or

(b) as to the boundaries of any land or part of a land, or

(d) as to the right to the crops or produce of any land or part of a land, or

(e) as to any right in the nature of a servitude affecting the land.

The definition is not exhaustive. Subsections 1,2,3 and 4 of section 63 apply when the dispute relates to the right to possession of any land or any part of a land, that is, a dispute falling under (a) above. Subsections 5 and 6 of this section apply when the dispute relates to any right to any land or any part of a land other than the. right to possession of such land or part, that is, a dispute falling under (b) to (e) above.

The Court of Appeal proceeded on the footing that the right to cultivate is an aspect of possession which cannot be dissociated from possession. As a general proposition this is not invariably true. The right to cultivate can vest in a person different from the person who has the right to possession. The statute itself recognizes this distinction and has spelt out provisions for disputes relating to possession of a land or part of a land which are different from the provisions relating to rights in a land or part of a land other than the right to possession. When the dispute relates to possession the Magistrate must determine who was in possession on the date when he issued notice on his having reason to believe that there was in existence a dispute affecting land and likely to cause a breach of the peace or within two months prior to the issue of such notice where a forcible dispossession has occurred. The order which the Magistrate then makes will declare which of the disputants is entitled to possession and prohibit all disturbance to his possession until he is evicted under the judgment, order or decree of a competent court. Where there has been forcible dispossession within the period of two months prior to the date of the, issue of notice the Magistrate may in addition to such declaration and prohibition, direct that the party specified in his order be restored to possession. When the dispute relates to possession, the Magistrate may make his determination without reference to the merits of the rival claims of the parties ‑ see the proviso to subsection 7 of section 63.

Where the dispute relates to any right to any land or part of a land other than the right to possession, the Magistrate will declare that the person named in his order is entitled to the disputed right until he is deprived of it by virtue of the judgment of a competent court and prohibit all disturbance or interference with the exercise of such right other than under the authority of such judgment. The proviso to subsection 7 of section 63 does not apply here. Hence by implication the Magistrate would have to consider the merits of the rival claims in deciding who is entitled to the disputed right. This he will do on the basis of the material before him. The order which the Magistrate makes may also contain directions as to the exercise of the right or the sale of the crop or produce and as to the custody and disposal of the proceeds of such sale. It is significant that when the order of the Magistrate relates to the right to possession it could be made without reference to the merits of the claims of the disputants and it is operative until eviction is ordered by the judgment, order or decree of a competent Court whereas when it relates to any other right it must be made after consideration of the merits of the rival claims on the basis of the statements of the rival parties and such evidence as may have been admitted by the Magistrate in his discretion and his order is operative until deprivation of that right by a judgment of a competent Court. The omission of the words "order or decree" is not without significance ‑ see subsections 2 and 6 of s.63. Here I would like to add that I reserve my opinion as to whether a competent civil court cannot by an interim injunction or order appointing a receiver, direct the eviction of the person secured or put in possession by the Magistrate as we did not hear argument on the question.

It is clear then that the approach prescribed by the statute when the dispute relates to the possession of a land or part of a land is different from the approach prescribed when the dispute relates to a right other than the right to possession. Therefore it would not be correct to treat the right to cultivate as an aspect of the right to possession for the purposes of the application of the provisions of section 63. The decision of Sharvananda, J. in Kanagasabai v Mylvaganam (1) on which reliance appears to have been placed by the Court of Appeal would not be applicable to the instant case because that was a case where the subject, of the dispute was the right to possession of a land ‑ business premises to be exact.

Given that here was a dispute affecting land which was likely to cause a breach of the peace, all that the learned Magistrate was called upon to do in the instant case was to decide who was entitled to the right to cultivate the disputed Lot. The evidence strongly supports the Magistrate's finding that Loku Banda was the and ecultivator of Ukku Banda's share and was entitled to the right to cultivate it and that after the division these ande rights attached to the disputed Lot 1. The reference to working and possessing the field in the certificate 1D2 of the Conciliation Board cannot wipe out the ande rights of Loku Banda which are under the statutory protection of the provisions of the Agricultural Lands Law.

The appeal is therefore allowed and, the judgment of the Court of Appeal is set aside and the order of the Magistrate restored. In view of the circumstances under which the present dispute arose I award no costs.

SHARVANANDA, J. ‑ I agree.

VICTOR PERERA, J. ‑ I agree.

Appeal allowed.

5.JAMIS V KANNANGARA [CA]

Sri Lanka Law Reports 1989 - Volume 2 , Page No - 350

COURT OF APPEAL

P.R.P. PERERA, J. & PALAKIDNAR, J.

C.A. No. 89/89 - P.C. RATNAPURA No. 191(92031)

JUNE 15 AND JULY 5, 1989.

Lease - Landowner leasing gemming rights - Landowner being in occupation builds house - Can removal of house be ordered? - Primary Courts Procedure Act, section 69(2) - Indian Criminal Procedure Code, section 147(2).

One Jamis gave a lease of gemming rights of a land in his occupation. He built a house on it to the detriment of the lessee's gemming rights. The Primary Court ordered the removal of the house acting under section 69(2) of the Primary Courts Procedure Act.

Held:

The order that can be made under section 69(2) in regard to a right to any land other than the right to possession is a declaration of entitlement of such right after determination by the court subject to a final determination by a competent court and prohibition of all disturbance or interference with the exercise of such right by such a party. The order is of a prohibitory nature preventing an interference with the exercise of such a right. This cannot include a positive order of removal of a structure.

Case referred to:

1. Banerjie v. Rahman 29 AIR 1942 Calcutta 244.

APPLICATION for revision of an order of the Primary Court of Ratnapura.

Mahanama de Silva for petitioner.

Sanath Jayatilleke for respondent.

Cur. adv. vult.

October 20, 1989.

PALAKIDNAR, J.

Jamis the Petitioner is a co-owner, of a land called "Gatanigewatta" in the Ratnapura District. Kannangara the Respondent in year 1979 obtained a ten year lease of gemming rights on this land till 14th June 1989. It was also stated in the lease that the Respondent, Jamis should not disturb Kannangara in digging gem pits and gemming in this land.

The learned Primary Court Judge by his order dated 26.1.89 declared that in terms of the lease Kannangara has a right to gem in this land and that such right should not be disturbed. Proceeding further in the order the Primary Court Judge observed that there was no mention of any disturbance to the gemming rights of the Respondent Kannangara. The complaint was regarding the building of a house on the land in dispute on the 30th August 1987 by Jamis and his children who were in occupation of this land. The complainant further told the police that this building should be stopped till this land was divided. He based his claim on the footing that he had rights in this land.

The learned trial Judge having correctly assessed the dispute, however proceeded to hold that Jamis in building a house was trying to create a new possession and issued an order that this house should be removed by the Police.

It was conceded by the complainant in his complaint that Jamis was living on this land. Thus the dispute was an extention of Jamis's possession to the detriment of Kannangara's rights under the lease.

Thus if there was any infringement of such a right it would be of a breach of contract under the lease. The remedy is a civil one in terms of damages arising out of such breach.

It is to be noted that the learned trial Judge has not viewed the dispute in this manner. There is a finding of fact that Kannangara's gemming rights have not been disturbed.

It now remains to be considered whether the Primary Court Judge's order to remove the structure could have been lawfully made within the ambit of the powers given to him by section 69(2) of the Primary Courts Procedure Act.

The order that can be made under this subsection in regard to a right to any land other than the right to possession is a declaration of entitlement of such right after determination by the court subject to final determination by a competent court and prohibit all disturbance or interference with an exercise of such right by such party.

The order therefore is clearly of a prohibitory nature preventing an interference with the exercise of such a right.

Whether such an order would lawfully include the removal of a structure is a matter which can only draw a negative reply. An order to remove the structure is not an order prohibiting the disturbance or interference with a declared right. An order of removal is a positive order. Such an order was considered in testing the validity of an order made by a Magistrate to remove a stable which was erected to obstruct a pathway under section 147(2) of the Indian Criminal Procedure Code. The words of the section are identical with the words of section 69(2) of the Primary Courts Procedure Act, No. 44 of 1979.

A full bench of the Calcutta High Court in the case of Banerjie vs. Rahman (1) held that the words making an order prohibiting any interference with the exercise of such right does not vest a Magistrate with power to make a positive order of removal of a stable built on a path.

I agree with that view and set aside the order of the learned Primary Court Judge and grant relief as prayed for by the Petitioner to this application with costs fixed at Rs.325/-.

P.R.P. PERERA, J. - I agree.

Order set aside.

6.WEERASINGHE V SEPALA AND [SC]

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.

ANANDACOOMARASWAMY, 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 non payment 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. 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 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 cultivalte and not as to the right of posession, 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.

7.O.I.C KOTAHENA V DEWASINGHE [CA DIVISIONAL BENCH]

Sri Lanka Law Reports 1983 - Volume 2, Page No - 149

COURT OF APPEAL

SENEVIRATNE, J., ABEYWARDENA, J. AND G. P. S. DE SILVA, J.

C.A. REVISION APPLICATION NO. 428/81

PRIMARY COURT OF COLOMBO

CASE NO. 99310/3

29 MARCH 1983.

Primary Courts Procedure Act No. 44 of 1979, Ss. 66, 67 and 68‑Are time limits prescribed In Ss. 66 and 67 mandatory or directory .

Held ‑

Non compliance with the provisions of section 67(1) of the Primary Courts Procedure Act in regard to time limits will not vitiate the proceedings as these time limits are directory.

Cases referred to:

Kanapathipillai Ramalingam v. Sinnathamby Thangarajah ‑ S.C. 6/82 ‑C.A./L.A. (SC) 5/82/CA Appln. No. 2463/80 ‑ Primary Court Akkaraipattu Case No. 398.

APPLICATION for revision of order of the Judge of the Primary Court Akkaraipattu

H. W. Jayewardene, Q.C. with S. L. Gunasekera for 2nd respondent V. S. A. Pullenayagam with T B. Dilimuni and Miss Mangalam Kanapathipillai for 1st respondent‑petitioner.

Cur. adv. vult

14 JULY 1983- SENEVIRATNE, J.

On 12/14.1.1980 the Officer‑In‑Charge Crimes Branch Kotahena Police Station filed an information in terms of section 66 (1) (a) (i) of the Primary Courts Procedure Act No. 44 of 1979 in the Magistrate's Court of Colombo, informing the court that there was a dispute affecting land in respect of premises No. 478/07 Bloemendhal Road, Kotahena which was likely to lead to a breach of peace among the respondents named in the information to wit Nuwarapaksage Sisilin Dewasinghe 1st respondent‑Petitioner and St. Elmo Gunasekera, Director, George Steuart & Company Ltd., 2nd respondent‑ respondent.

After the respondents filed their affidavits and submissions the learned Primary Court Judge commenced the inquiry on 17.8.1980. The recording of the evidence was concluded on 27.2.1981. Written submissions were tendered on 5.3.1981 and the order of the learned Primary Court Judge was delivered on 23.3.1981. There is no need to go into the facts of this case in detail. The evidence revealed that these premises had been what is known as "Keera Land", and according to the evidence a part was cultivated with keera and the rest was grassland. Both the 1st Respondent‑Petitioner and the 2nd Respondent Elmo Gunasekera on behalf of George Steuart & Company limited claimed possession of the land. The learned Primary Court Judge adopted the correct test for the purpose of this inquiry under section 68(1) of the Act by stating that the matter for his determination was as to who was in possession of the land on the date of the filing of the information under section 66". Having considered the voluminous evidence led the learned Primary Court Judge held that as " on the date of the filing of the information" the 2nd Respondent Elmo Gunasekera on behalf of George Steuart & Company Limited, was in possession of the land, and made order on 23.3.1981 under Section 68(1) and 68(2) of the said Act Sisilin Dewasinghe 1st respondent‑petition has filed this application in revision in this court to revise the said order made by the learned Primary Court Judge on 23.3.1981. The grounds on which this application is made are: -

(a) That the judgment is contrary to the express provisions of section 67(2) of the Primary Courts Procedure Act and

(b) There was a wrong finding on facts.

At the hearing of the application only the point off law in ground (a) that the judgment was contrary to the express provisions of section 67(2) of the Primary Courts Procedure Act was urged.

Section 67(2) is as follows: ‑ The Judge of the Primary Court shall deliver his order within one week of the conclusion of the inquiry ". Before proceeding further, at this stage I will express my opinion on this submission even though such opinion will not materially affect this case. The recording of the evidence was concluded on 27.2.1981. Section 72(C) permits the Primary Court Judge to call for written submissions. In this instance written submissions has been filed on 5.3.1981. My view is that in respect of Section 67(2) the period of one week should he computed from 5.3.1981 as there is a statutory provisions for the Primary Court Judge to permit written submissions.

This application in revision came before a Bench of two Judges, and as there was a conflict in the judgments regarding the interpretation of Section 67(2) and as a disagreement arose between the two Judges constituting that Bench, this matter was referred to a Bench of three Judges in terms of Article 146(3) of the Constitution.

This matter came up before a Bench of three Judges on 29.3.1983. By that time the Supreme Court had delivered its judgment in the case of Kanapathipillai Ramalingam v. Sinnathamby Thangarajah,1 (unreported case). In this Appeal, the Supreme Court made a ruling as to whether certain provisions of the Primary Courts Procedure Act, which I will refer to, were mandatory. In Ramalingam's case the information had been filed by the police on 10.12.1979, the inquiry commence on 17.9.1980, and was concluded by a settlement on 24.9.1980. Objection was taken to the proceedings of this case by the petitioner on the ground that as that inquiry was " not concluded " within three months of the commencement of the inquiry in accordance with the mandatory provisions of Section 67(1) the proceedings of that inquiry were a nullity. The immediate question of law which the Supreme Court had to deal with in Ramalingam's case was whether the provision of section 67(1) of this Act was directory or mandatory.

At the hearing of this application the learned Attorney‑at‑law for the 1st respondent‑petitioner Mr. V. S. A. Pullenayagam submitted that in Ramalingam's case the Supreme Court held that the provisions of section 67(1) were directory and that in that case the Supreme Court did not give a ruling on the nature of section 67(2) of the Act which is relevant to this application. The dicta pertaining to section 66 and Section 67(2) were made obiter. Mr. H. W Jayawardane, Q. C. Attorney‑at‑law for the 2nd respondent submitted that the ruling of the Supreme Court in Ramalingam's case included a ruling on section 67(2) also, as its ratio decidendi.

I will now consider the above submissions made.

"The question was raised as to what was the consequence of the failure of the Judge to observe the time limits prescribed for various acts and steps leading to a determination and order under section 68 ... It is to be noted that the statute does not declare what shall be the consequences of non‑compliance by court with regard to this requirements as to the times prescribed by law ".

Sharvananda. J, having considered the provisions referred to above at length finally came to this conclusion ‑ " I am, therefore, of the view that the provisions as to time limit in section 66 or 67 though the words "shall" suggest that they are mandatory should be construed as being directory and the non‑compliance by Court of the provisions of section 66 or 67 of the Act does not divest the court of jurisdiction conferred on it by section 66(2) to make determination and order under Section 68 ". This dictum cited above from the said judgment clearly shows that the Supreme Court has considered the nature of the provisions of both sections 67(1) and 67(2). As such the judgment in Ramalingam's case cannot be restricted to a ruling only on the nature and effect of section 67(1) of the Act. In view of the judgment referred to above, I hold that the non‑compliance by the learned Magistrate of the provisions of section 67(1) of the Primary Courts Procedure Act has not vitiated the proceedings. The learned Primary Court Judge in the course of his order has in several instances stated as to why this inquiry could not be completed within the period of three months as specified in Section 67(1).

The application is dismissed.

ABEYWARDANE, J. ‑ I agree.

G. P. S. DE SILVA, J. ‑ I agree.

Application dismissed.

8.DAVID APPUHAMY vs YASSASSI THERO [CA]

Sri Lanka Law Reports 1987 - Volume 1 , Page No - 253

COURT OF APPEAL.

BANDARANAYAKE, J. AND WIJETUNGA, J.

C. A. APPLICATION No. 1376/81.

M.C. MORAWAKA No. 17993.

NOVEMBER 18, 1986.

Revision -Sections 66 and 68 of the Primary Courts Procedure Act No. 44 of 1979 - Rule 46 of the Supreme Court Rules, 1978 - Meaning of 'proceedings' - Jurisdiction of Primary Court under s. 66 - Ex parte order.

Under the Primary Courts Procedure Code Act the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute and if he is of such opinion he is required to file an information regarding the dispute with the least possible delay. Where the information is thus filed in a Primary Court, such court is vested with jurisdiction to inquire into and make a determination or order on the dispute.

An objection to jurisdiction must be taken at the earliest possible opportunity. If no objection is taken and the matter is within the plenary jurisdiction of the Court, the Court will have jurisdiction to proceed with the matter and make a valid order.

An ex parte order made in default of appearance of a party will not be vacated if the affected party fails to give a valid excuse for his default.

Section 68 of the Primary Courts Procedure Act requires the judge of the Primary Court to make a declaration as to who is entitled to possession. Before he could make such a declaration he should make a determination as to who was in possession of the land on the date of the filing of the information under s. 66. Further the Magistrate should evaluate the evidence if there is a dispute regarding identity of the land.

The expression "proceedings" in Rule 46 of the Supreme Court rules means so much of the record as would be necessary to understand the order to be revised and to place it in its proper context.

Cases referred to:

(1) Navaratnasingham v. Arumugam - [1980] 2 Sri LR 1.

(2) Kanagasabai v. Mylvaganam - 78 NLR 280, 286.

APPLICATION for revision from order of the Primary Court Judge of Morawaka.

A. A. de Silva for petitioner and N. R. M. Daluwatte, P. C. with Mrs. S. Nandadasa for 1st respondent.

Cur. adv. vult.

January 16, 1987.

WIJETUNGA, J.

The petitioner seeks to have the order of the Magistrate, Morawaka dated 31.8.81, made under section 66 et seq. of the Primary Courts' Procedure Act, No. 44 of 1979 revised.

The grounds urged in the petition are that:

(i) the report submitted by the Morawaka Police to the Magistrate does not state that there was a likelihood of a breach of the peace and the Magistrate was thus precluded from continuing these proceedings, as the basis of the court's jurisdiction is threatened or likely breach of the peace;

(ii) the Magistrate had misdirected himself in regard to the order in not taking into consideration matters relevant thereto and the said order is in any event unjust, contrary to law and in excess of his jurisdiction ; and

(iii) the Magistrate should not have held an ex parte inquiry into this matter and should in any event have permitted the petitioner to state his claim and place his evidence and submissions before court, as he had taken immediate steps to purge his default: the order dated 16.11.81 refusing the petitioner's application, to re-open the inquiry is unreasonable and unjust.

Learned President's Counsel for the 1st respondent took a preliminary objection to this application on the ground, that there was non-compliance with Rule 46 of the Supreme Court Rules, 1978.

The preliminary objection relates to the failure of the petitioner to make available to this court a complete set of copies of proceedings in the Court of First Instance, in that the reasons delivered by the Magistrate on 30.11.81, pertaining to the order dated 16.11.81, have not been briefed. That' 'order does not directly affect a , consideration of the order dated 31.8.81 sought to be revised in the present proceedings.

In Navaratnasingham v. Arumugam (1) this court has held that "In relation to an application for revision the term "proceedings" as used in Rule 46 means so much of the record as would be necessary to understand the order sought to' be revised and to place it in its proper context."

I am in respectful agreement with this View of Soza, J. As the failure to provide copies of. the, reasons delivered on 30.11.81 does not prevent this court from reviewing . the order dated 31.8.81, l would hold that there has been sufficient compliance with. Rule 46 for the purpose of this application.

I shall now deal with the first ground on which the order of the learned Magistrate is being challenged, viz. that the court had no jurisdiction to inquire into this matter. The basis of this submission is that the report of the O.I.C., Morawaka Police dated 7.7.80 does not refer to a threatened or likely breach of the peace and the court had, therefore, acted without jurisdiction. However, the said report. makes specific reference to section 66 of the Primary Courts' Procedure Act, which deals with disputes affecting land where a breach of the peace is threatened or likely. Further, the affidavit of 21.7.80 of the present 1st respondent (who was also the 1st respondent to that application) clearly states ;that the act of the present petitioner (who was the 2nd respondent to that application) can lead to a breach of the peace.

On 31.8.81 when the Magistrate took up this matter for inquiry, he has stated that he proposed to make an order thereon as it was likely to lead to a' breach of the peace. In any event, no objection had been taken to the jurisdiction of the court when the matter was being inquired into by that court:

The case of Navaratnasingham v. Arumugam (supra) (1) is again relevant to a consideration of this aspect: of the matter. That case too dealt with an application under section 62 of. the Administration of Justice Law No. 44 of 1973, which corresponds to section 66 of the present Primary Courts' Procedure Act. There too it was submitted that the Magistrate was not vested with jurisdiction to proceed in the matter as he had. failed initially to satisfy himself of the likelihood of a breach of the peace. This court held that such an objection to jurisdiction must be taken as early as possible and the failure to take such objection when the matter was being inquired into must be treated as a waiver on the part of the petitioner. It was further held that where a matter is within the plenary jurisdiction of the court, if no objection is taken, the court will then have jurisdiction to proceed and . make a valid order. The, dicta of Soza, J. in this regard too, which I would adopt, apply to the instant case.

Further; there is a significant difference between the provisions of the Primary Courts' Procedure Act relating to inquiries into disputes affecting land where a breach of the peace is threatened or likely and the corresponding provisions in the Administration of Justice Law. Under section 66 of the present Act, whenever owing to a dispute affecting land, a breach of the peace is threatened or likely, the police officer inquiring into the dispute is required. with the least possible delay to file an information regarding the dispute in the Primary Court within whose jurisdiction the land is situate. When an information is thus filed in a Primary Court, that court is vested with jurisdiction to inquire into and make- a determination or order on the dispute regarding which the information is, filed.

The corresponding section 62 of the Administration of Justice Law provided that whenever a Magistrate, on information furnished by any police officer or otherwise, has reason to believe that the existence of a dispute affecting any land situated within his jurisdiction is likely to cause a breach of the peace, he may take steps to hold an inquiry into the. same in the manner provided for by that Law, Thus, under the Administration of Justice Law, for a Magistrate to exercise power under section. 62 he had to be satisfied on the material on record that there was a present fear that there will be a breach of the peace stemming from the dispute unless proceedings are taken under that section. The power-conferred by that section was in subjective terms - the Magistrate, being the competent authority, was entitled to act when he had reason to believe that the existence of a dispute affecting land was likely to cause a breach of the peace. The condition precedent to the excercise of the power was the formation of such opinion - the factual basis of the opinion being the information furnished by any police officer or otherwise. Kanagasabai v. Mylvaganam (2) .

But, under section 66 of the Primary Courts' Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute and he is, in such circumstances, required to file an information regarding the dispute with the least possible delay. Where the information is thus filed in a Primary Court, subsection (2) of that section vests that court with jurisdiction to inquire into-and make a determination- or order on the dispute regarding which the: information is filed. Hence, in the instant case, when the- O. I. C. Morawaka Police filed the information under section 66: of the said Act, the court was thereby vested with the necessary jurisdiction. ,

Thus, whichever view one takes of the matter, the petitioner fails in his application on the first ground referred to above.

It will be convenient at this stage to deal with the third ground on which the petitioner relied, viz. that he should have been permitted by the Magistrate to re-open these proceedings and that the refusal to vacate the ex-parte order was unreasonable and unjust.' On this aspect of the matter, the reasons dated 30. 11. 81 have not been briefed to this court by the petitioner and consequently the court is unable to consider. the same. However, according to the affidavit of the present petitioner dated 1.9.81, his failure to .attend .court on 31.8.81 had been due to, an error on the part of his Attorney-at-Law who had allegedly written out the date as 31st September, 1981. It should be obvious to anyone, that the month of September has only 30 days and it is. not conceivable that the present petitioner would have. been misled in this manner. Further, in the objections filed by the 1st respondent in this court, he has stated that the petitioner defaulted in appearance not for the reasons given by him but because of his son's wedding. The petitioner, though he has filed counter objections, has not denied that his son's wedding was on this date. In the submissions made by his Attorney-at-Law before the Magistrate on 16.11.81, he had admitted that the petitioner's son's wedding took place on this date, but has stated that his absence from court was not due to that reason. In any event, the learned Magistrate having considered these submissions, has rejected them. In the result, the petitioner cannot succeed on this ground too.

The second ground urged in the petition relates to the validity of the order made on 31.8.81 by the Magistrate.

The relevant subsections of section 68 of the Primary Courts' Procedure Act are as follows:

(1) "Where the dispute relates to the possession of any land or' part thereof it shall be the duty of the Judge of the Primary Court holding the inquiry to determine as to who was in-possession of the land or the part on the date of the filing of the information under section 66 and make order as to who is entitled to possession of such land or part thereof."

(2) "An order under subsection (1) shall declare any one or more persons therein specified to be entitled to the possession of the land or the part in' the manner specified in such order until such person or persons are evicted therefrom under an order or decree. of a competent court,; and prohibit all disturbance of such possession otherwise than under the authority of such an order or decree."

This section requires the, Judge of the Primary Court to make a declaration as to who is entitled to possession of the land. The basis of such declaration is the, determination as to who was in possession of the land ;on the date of the filing of the information under section 66.

Nowhere in the order complained of has the Magistrate made such a determination. After a brief narrative of the facts relating to this matter, the Magistrate has stated that he declares the 1st respondent entitled to possession of the portion of land which is the subject matter of this dispute: Before he could have made such a declaration, there should have been a determination as to who was in possession of the land on the date of the filing of the information.

In this, context, there is merit in the complaint that the -learned Magistrate has misdirected himself when he stated in the order that the. court need not determine as to whether the land in dispute is the northern portion of the land called, Benwalatalawa, about 1/4 acre in extent, or not. The very basis of the claim. of the present petitioner, as is evidenced by the affidavit that he had filed in the original court, is that the subject matter of the dispute is the northern portion of the land called Benwalatalawa, about 1/4 acre in extent and that he present 1st respondent has incorrectly referred to that land as Palupansalawatte. The northern boundary of the land in dispute, according to him, is Palupansalawatte and he claims that he was in undisturbed possession of the said land for over 30 years. He has further referred to the order in case No. 4892/L of the District Court of Matara dated 6.2.80 in terms of which he had completed construction of the, building which the 1st respondent is now complaining about.

The 1st respondent in his affidavit dated 21.7.80, while claiming that the subject matter of the dispute is a portion of the land called Palupansalawatte; has denied that the land in question is Benwalatalawa.

Thus, on the affidavits filed, there was adequate material to alert the Magistrate to the true nature of the dispute, which he appears to have chosen to ignore:

In para. 4 of the petition filed in this court, the petitioner has stated as follows:

"The respondent filed an action in the D. C. Matara L/4892 against the petitioner and sought an injunction as well against the petitioner restraining the, petitioner from constructing an additional building adjoining the 'old house which was in occupation of the petitioner for well over thirty years on the land Benwalatalawa. The respondent first obtained an interim' injunction ex parte against the petitioner preventing the construction of the said building-but on 26.2.80 the injunction was dissolved by consent of parties and the petitioner was allowed by the District Court to continue the construction and complete the building on condition that if the respondent was declared entitled to the land in question (in case No. 4892/L) the petitioner would not be entitled to claim compensation for the building. The petitioner produces a certified copy of the said order of 26.2.80 marked P2."

In regard to. this averment, the 1st respondent, in his statement of objection dated 19.3.82 filed in this Court, has stated in para. 5 as follows

"This respondent states with reference to paragraph 4 of the petition, that the petitioner unlawfully entered the land in dispute and -began to build on the same whereupon this respondent instituted D C. Matara Case No. 4892/L. However, the plantations were in the possession of this respondent: "After dissolution of the injunction, as stated in paragraph 4 of this petition.; the petitioner not only completed the building, referred to in the said injunction proceedings, but also began to construct a new building, whereupon the Dayakayas of the temple became restive and there . was a serious threat to the peace. This respondent complained to the police who instituted these proceedings."

This is an admission by the 1st respondent that the subject matter of the instant case as well as of D. C. Matara Case No. 4892/L, is the same. In para. 4 of the petition, the petitioner has stated that D. C. Matara case No. 4892/L was an action relating to the construction of an additional building adjoining the old house which was in the occupation of the petitioner for well over 30 years, on the land called Benwalatalawa. By the order dated 26.2.80 (P2), the petitioner had been permitted to complete the construction of that building subject to the terms and conditions contained therein. The parties to that action were the same.

Plan No. 895 of 27.5.1895, which has been filed marked, P 1 with the present petition, shows the land called Palupansalawatte to the north of Beawalawatte and the allotment, of land surveyed is called Benwalatalawa.

It is also to be noted that while the date of the order P2 in D. C. Matara Case No. 4892/L is 26.2.80, the complaint in the present case has been made by the 1st respondent on 3.7.80. Documents P6, P7, P8, P9., P 10, and P 1 1 filed with the counter affidavit of the petitioner dated 12. 6. 82, refer to the northern boundary of Benwalatalawa as Palupansalawatte. The plans marked P 13, P 14 and P 15 indicate a roadway to the north of the land called Benwalatalawa, which separates it from Palupansalawatte and the petitioner claims the physical impossibility of encroaching on Palupanasalawatte by building on his land, as the road separates the two lands.

Although this material was not available to the learned Magistrate at the time he made the order complained of, on the affidavits filed it should have been clear that the crux of the dispute between the parties was whether the corpus was Benwalatalawa or Palupanasalawatte. It was, therefore, incumbent on the Magistrate to have determined the identity of the land which was the subject matter of this dispute. He was thus in error when he lightly dismissed the claim of the petitioner that the land in dispute was Benwalatalawa and proceeded to state that the court need of make such a determination.

It is clear from the order of the learned Magistrate that he had not directed his attention to the vital question as to who was in possession of the land in dispute on the date of the' filing of the information under section 66. In the absence of such a determination, he could not have made a valid declaration and prohibition as required by subsection (2) of section 68. The petitioner is, therefore, entitled to succeed on this ground.

For the reasons aforesaid, I am of the view that this case calls for the exercise of the revisionary powers of this court. Accordingly, acting in revision, I set aside the order of the Magistrate dated 31.8.81 and remit the case to the court below with the direction that the Magistrate should proceed to hold an inquiry afresh and make an appropriate order thereon according to law.

The petitioner will be entitled to the costs of the application to this court, from the 1st respondent.

BANDARANAYAKE, J. - I agree.

Order set aside.

Case remitted for fresh inquiry.

9.MARY NONA V FRANSINA [CA]

Sri Lanka Law Reports 1988 - Volume 2 , Page No - 250

COURT OF APPEAL

RAMANATHAN, J.

C. A. 1184/85 - PRIMARY COURT KEGALLE NO. 508/84

MARCH 30, 1988

Revision - Rules of the Supreme Court - Rule 46 - Is compliance, imperative?

Compliance with Rule 46 of the Supreme Court Rules 1978 in an application for revision is mandatory. A copy of the proceedings containing so much of the record as would be necessary to understand the order sought to be revised and to place it in its proper context must be filed. Merely filing copies of three journal entries with no bearing on the matters raised in the petition is not a compliance with Rule 46.

Cases referred to

1. Navaratnasingham v. Arumugam (1980) 2 Sri L. R. 1

2. Mohamed Haniffa Rasheed Ali v. Khan Mohamed Ali and another S.C. No. 6/81 S. C. Minutes of 20.11.1981.

APPLICATION for revision of order of Primary Court, Kegalle.

Eardley Ratwatte for petitioner

D. S. Wijesinghe with Miss D. Dharmadasa for respondent.

Cur. adv. vult

May 24, 1988

RAMANATHAN. J.

This is an application for revision of the order of the learned Magistrate of Kegalle in proceedings taken under Section 66 of the Primary Courts Procedure Act No. 44 of 1979.

When this matter came up for hearing learned counsel appearing for the respondent-respondent raised a preliminary objection on the ground that there had been a failure to comply with Rule 46 of the Supreme Court Rules 1978 (published in Gazette Extraordinary No. 9/10 of 18.11.1978). Rule 46 reads thus -

"Every application made to the Court of Appeal for the exercise of powers vested in the Court of Appeal by Articles 140 and 141 of the Constitution shall be by way of petition and affidavit in support of the averments set out in the petition and shall be accompanied by originals of documents material to the case or duly certified copes thereof in the form of exhibits. Application by way of revision or restitutio in integrum under Article 138 of the Constitution shall be made in like manner and be accompanied by two sets of copies of proceedings in the Court of first instance; tribunal or other institution".

The meaning of the expression 'proceedings' occurring in Rule 46 was considered by Soza, J. in Navaratnasingham v. Armugam (1). In the course of his judgment Soza; J stated: "In relation to an application for revision the term "proceedings" as used in Rule 46 means so much of the record as would be necessary to understand the order sought to be revised and to place it in its proper context. The expression can, and often will, include the pleadings, statements, evidence and judgment".

Thus, it would appear that a mandatory duty is cast by Rule 46 of the applicant for revision to furnish with his petition and affidavit, documents material to his case.

The question is whether Rule 46 is mandatory was considered by the Supreme Court in the case of Mohamed Haniffa Rasheed Ali v. Khan Mohamed Ali and another (2). The majority of the Judges appeared to be of the view that Rule 46 is mandatory. Wanasundera, J. delivering the majority judgment stated thus: "While I am against mere technicalities standing in the way of this Court doing justice, it must be admitted that there are rules and rules. Sometimes courts are expressly vested with powers to mitigate hardships, but more often we are called upon to decide which rules are merely directory and which mandatory carrying certain adverse consequences for non-compliance. Many procedural rules have been enacted in the interest of the due administration of justice, irrespective of whether or not a non-compliance causes prejudice to the opposite party. It is in this context that Judges have stressed the mandatory nature of some rules and the need to keep the channels of procedure open for justice to flow freely and smoothly".

In the present application on a perusal of the petition filed by the respondent reveals that only the three journal entries marked (P1, P2 and P3) were produced with the application. The three journal entries have no bearing on the matters raised in the petition. A copy of the order to be revised has not been filed.

In the objections of the respondent-respondent dated 2.12.85 he has specifically averred that there has been a failure to comply with Rule 46 of the Supreme Court Rules. Subsequent to the filing of the objections, a copy of the order of the learned Magistrate had been filed without even an accompanying affidavit. The "information" referring the dispute to court, the affidavits and counter affidavits and documents have not been filed. In my view, it would not be possible to review the order of learned. Magistrate without these documents.

I accordingly dismiss the application for non compliance with Rule 46 of the Supreme Court Rules 1978. There will be no costs.

Application dismissed.

10.RATNAYAKE V PADMINI DE SILVA [CA]

Sri Lanka Law Reports 1990 - Volume 2 , Page No – 191 [CA]

COURT OF APPEAL,

WIJETUNGA, J. AND WIJEYARATNE, J.,

C. A. No. 612/89 - M. C. KURUNEGALA No. 19272,

FEBRUARY 7 AND 8, 1990.

Civil Procedure-Primary Courts Procedure Act - Failure to affix notice under S. 66(4) on the disputed land. - Revision - Article 138 (1) of the Constitution.

Failure to cause the notice to be affixed on the land as required by S. 66 (4) of the Primary Courts Procedure Act does not affect the jurisdiction of the Court but is only an irregularity in procedure. Under S. 66(2) where an information is filed under subsection (1), the Court is vested with jurisdiction. The other provisions which follow deal with the manner of exercising such jurisdiction. Non-compliance with every rule of procedure does not destroy the jurisdiction of the court. While in some cases it may be only an irregularity, in other cases it may amount to an illegality and thus vitiate the proceedings. The object of affixing a notice in some conspicuous place on the land which, is the subject matter of the dispute is to bring the proceedings to the notice of all persons interested in such dispute and thereby to enable them to participate in such proceedings. In the instant case, it is not suggested that there are any third parties interested in the dispute who would have appeared in court if the notice had been so affixed. No prejudice was caused and the objection itself was taken belatedly.

Wijetunga, J.- " It is well to bear in that the duty is cast by S. 66 (4) on the court to cause the notice to be affixed on the land ".

Cases referred to

(1) Craig V. Kanseen [1943] 1 all ER 108

(2) In Re Pritchard, [1963] 1 All ER 873

(3) Emperor V Sis Ram and others AIR 193 Lahore 895

(4) Emperor V. Hira Lal AIR 1933 Allahabad 96

192

(5) Thambipillai V Thambimuttu S.C. Application No. 927/74

M. C. Kalmunai No. 63310, S.C. minutes of 25.06.75

(6) Ivan de Silva V. Shelton de Silva S.C. Application No. 148/76

M. C. Panadura No. 45437 S. C. minutes of 10.02.1977

(7) Debi Prasad V. Sheodat Rai (1908) 301. L. R. 41

(8) Sukh Lal Sheikh V. Tara Chand Ta (1905) 33 Calcutta 68 (FB)

(9) Ramalingam V Tangarajah [1982] 2 Sri LR 693

APPLICATION in revision of the order of the Primary Court Judge of Kurunegala.

Dr. H. W Jayawardena, Q.C. with J. Salwatura for respondent-petitioner.

Faiz Mustapha, P. C with Mahanama de Silva, H. Withanachchi and J. Wickramarachchi for petitioner-respondents.

Cur. adv. vult.

May 4, 1990

WIJETUNGA, J.

Proceedings in this case had commenced in the Primary Court of Kurunegala under case No. 34372, upon an information filed by the petitioners-respondents (hereinafter referred to as the respondents) naming the respondent-petitioner (hereinafter referred to as the petitioner) and two others as respondents, being the other parties to the dispute.

In the affidavit of the respondents dated 14.10.1986, it is stated inter alia that the 1st respondent was the tenant of the boutique-room, the subject matter of this dispute, since 1963 and was in uninterrupted possession thereof until 7.10.1986. The rents had been paid in the name of the 1st respondent's husband from 1963 to 1966, in the name of the 1st respondent from 1966 to 1980 and in the name of the 1st respondent's daughter from 1980 to 1986. A business styled " Champika Photo " had been carried on in these premises until a few months prior to this incident. Thereafter, the premises were used as a store and also as the sleeping quarters of the 2nd respondent and his servants. On 7.10.1986 when the 2nd respondent went to the said premises for the night as usual, the petitioner and the other two persons named as respondents in the information filed in the Primary Court, together with a large crowd of unidentified persons, had threatened and chased away the 2nd respondent. They had forced open the door by breaking the padlock, entered the premises and locked the same with a new padlock. The respondents had produced copies of the complaints made by the 1st respondent to the Mawathagama Police as P2, that of the 2nd respondent as P3 and a statement of the witness Sujith Weerawardena as P4, together with their petition and affidavit. They had alleged that as a result of the petitioner and the others forcibly entering the said premises, a breach of the peace was threatened. They had also furnished a list of items belonging to them which were in the said premises as P5. They had further alleged that the Mawathagama Police had not taken action on their complaints and had sought inter alia an interim order removing the petitioner and the other two persons from the said premises, for an inventory of the articles lying in the said premises to be taken through a Receiver appointed by the Court and for the premises to be sealed pending the final determination of this application. Accordingly, on 14.10.1986, on the exparte application of the present respondents, the Primary Court Judge who had been of the opinion that on the material disclosed in the affidavits and the other documents, a breach of the peace was threatened, had made an interim order appointing a Receiver and directing that a list of articles lying in the premises be taken, that all persons in the said premises be removed and the building in question be sealed. He had further directed that notices be issued on the present petitioner and the other two persons aforesaid (who were named respondents to that application). On 15.10.1986, it had been brought to the notice of the Court that the order could not be carried out as the premises were padlocked and the Court had thereupon made order that the Fiscal break open the premises. That order had been carried out under the directions of the Fiscal and an inventory of articles obtained and the premises sealed.

Thereafter, the petitioner had filed a Revision application in this Court bearing No. 1234/86 and had obtained an order staying further proceedings in the said case. The petitioner had again invoked the jurisdiction of this Court in Application bearing No. 1439/86 praying for a transfer of the said case to another Primary Court and this Court had, on 3.12.1986, made order transferring the said case to the Magistrate's Court of Kurunegala.

On the case being so transferred to the Magistrate's Court of Kurunegala, it had been assigned the No. 19272 and the parties had appeared in Court on notice on 3.9.1987. On that day the matter had been fixed for inquiry on 12.1 1.1987. On 21.9.1987, the present petitioner had filed his affidavit which, though objected to by the respondents on the ground of default, had later been admitted by agreement of the parties. By that affidavit, the petitioner had stated inter alia that the premises in question had been purchased by the Sri Lanka Samodaya Foundation, of which he was the General Manager of the Mawathagama Branch, upon deed No. 876 dated 17.10.1986 attested by S. W. P. M. G. B. Senanayake, Notary Public. He had further stated that he had taken possession of the said building on 7.10.1986 from one Weerasinghe who had obtained such possesion from one Jayawansa. Thus he had claimed that he had obtained possession 10 days prior to the date of purchase viz., on the date on which the present dispute arose.

Although the inquiry had originally been fixed for 12.1 1.1987, it had been postponed on several occasions and on 10.5.1989 the parties having stated that they were not objecting to the affidavits filed, had moved that the matter proceed to inquiry on those affidavits. It is only on 5.7.1989, after Counsel for the respondents had closed his case, that Counsel for the present petitioner had, for the first time, raised an objection on the basis that there had been non-compliance with Section 66(4) of the Primary Courts' Procedure Act, in that, no notice had been affixed on the land which is the subject-matter of this dispute. The court had directed that written submissions be filed on 19.7.1989. Whereas the respondents had complied with that order, the petitioner had failed to do so. The matter was thereafter set down for order on 2.8.1989, on which date the petitioner had tendered some written submissions. The Court had rejected those submissions and delivered its order. By that order the learned Magistrate had held that the respondents had been in possession of the said premises prior to and on 7.10.1986 and had directed that the respondents be once again placed in possession thereof, if necessary, by executing writ. Pursuant to that order, the Fiscal had handed over the said premises to the respondents on 3.8.1989. By his present application, the petitioner seeks to revise that order.

The sole question that was urged before us was the failure to affix the notice on the land in question as required by Section 66(4) of the Primary Courts' Procedure Act. It was the contention of learned Queen's Counsel for the Petitioner that the Court had violated a fundamental provision of law by its failure to cause a notice to be affixed on the land which is the subject-matter of the dispute announcing that a dispute affecting the land had arisen and requiring any person interested to appear in Court on the date specified in such notice.

Learned President's Counsel for the respondents, on the other hand, while conceding that no notice had been affixed on the land as required by Section 66(4), submitted that non-compliance with the provisions of that section was merely a procedural irregularity and that the objection in . any event had been belatedly taken. It was his submission that this Court should not excercise its extraordinary powers of revision in the facts and circumstances of this case, as that irregularity has not prejudiced the substantial rights of the parties or occasioned a failure of justice.

Learned Queen's Counsel for the petitioner cited a number of authorities in support of his contention that Section 66(4) was an imperative provision of law and the Court, by its failure to cause the required notice to be affixed on the land had violated a fundamental legal provision. I shall refer to those authorities presently.

In Craig v. Kanseen, (1) it has been held that the failure to serve the summons upon which the order in the case was made was not a mere irregularity, but a defect which made the order a nullity, and therefore, the order must be set aside.

In Re Pritchard, (2) where the originating summons had not been issued out of the Central Office but from a District Registry, it has been held (Lord Denning, M.R., dissenting) that there had not been any commencement of proceedings and the originating summons was a nullity : there was not a mere irregularity but a fundamental defect.

In Emperor v. Sis Ram and others, (3) which dealt with similar provisions of Section 145(1) of the Indian Criminal Procedure Code relating to possession of land where there is an imminent danger of a breach of the peace and where the Magistrate's Order was challenged on the grounds inter alia that no notice was served on the other party according to law nor was a copy of the notice affixed to some conspicuous place at or near the house in dispute, it has been held that the provisions of that section are mandatory and consequently if no notice is issued as required and there is no finding that there was a danger of a breach of the peace, the order under Section 145 becomes ultra vires.

In Emperor v. Hira Lal, (4) it has been held that Section 145 of the Indian Criminal Procedure Code is provided in order that a Magistrate may prevent a breach of the peace arising from a dispute as to immovable property and he has no jurisdiction in such a matter unless he is fully satisfied that there is a danger of a breach of the peace and . . . . . . he must give the parties notice that it is to prevent a breach of the peace that he is taking action under that section and if he fails to do so the primary intention of the Section is lost. The order of the Magistrate was accordingly set aside.

I shall now refer to the authorities cited by learned President's Counsel for the respondents in support of the proposition that such noncompliance amounted only to a procedural irregularity.

In Thambipillai v. Thambimuttu, (5) it has been held that the purpose of affixing a notice on the land was to give constructive notice to the parties concerned and where the parties were brought to Court on the date of the information, the necessity did not arise to affix such notice in a conspicuous place at or near the land.

In Ivan de Silva v. Shelton de Silva, (6) where complaint was made in revision that the Magistrate had failed to comply with the provisions particularly in regard to the affixing of the notice on the land, but the only parties concerned in the dispute were aware of and present at the inquiry and no objection was taken in regard to the failure to comply with these provisions except at the concluding stages of the inquiry, it has been held that the failure to comply with procedural requirements, in regard to notices and statements of claim do not affect the question of jurisdiction and would not constitute a fatal irregularity.

In Debi Prasad v. Sheodat Rai, (7) where in proceedings under' Section 145 of the Indian Criminal Procedure Code, no notice was affixed at or near the subject of the dispute, it has been held that notwithstanding that the procedure of the Magistrate was in some respects defective, there was no cause for the. exercise of the revisional jurisdiction of the High Court, inasmuch as the parties had been given an opportunity of representing their respective cases and there was nothing to show that the irregularities in procedure which had occurred had caused any prejudice to either.

In Sukh Lal Sheikh v. Tara Chand Ta, (8) Where the Magistrate drew up an initiatory order under S. 145, CI. (1) of the Indian Criminal Procedure Code, but omitted to direct the publication of a copy of it at or near the subject of dispute and it was not so published in accordance with CI. (3) of that Section, it has been held that the provision as to the publication of a copy of the order in S. 145, CI. (3) of the Code is directory and relates to a matter of procedure only and not of jurisdiction; that if CI. (1) of S. 145 has been complied with, the Magistrate has jurisdiction to deal with the case and the mere fact that he omitted to have a copy of such order published by affixing it to some conspicuous place at or near the subject of the dispute does not deprive him of jurisdiction, but is an irregularity in his procedure.

In Ramalingam v. Thangarajah, (9) where the appellant complained that the proceedings offended the mandatory provisions of Part VII of the Primary Courts' Procedure Act (relating to inquiries into disputes affecting land where a breach of the peace is threatened or likely) and were therefore null and void, it was held that the provisions as to time limits in Section 66 or 67, though the word 'Shall' there suggests that they are mandatory, should be construed as being directory and that non-compliance by Court of the provisions of Section 66 or 67 of the Act does not divest the Court of the jurisdiction conferred on it by Section 66(2).

On a consideration of the authorities cited by learned counsel on both sides, it seems to me that the failure to cause the notice to be affixed on the land does not affect the jurisdiction of the Court but is only an irregularity in procedure. Under Section 66(2), where an information is filed under subsection (1), the Court is vested with jurisdiction. The other provisions which follow deal with the manner of exercising such jurisdiction. Non-compliance with every rule of procedure does not destroy the jurisdiction of the Court While in some cases it may be only an irregularity, in other cases it may amount to an illegality and thus vitiate the proceedings. The object of affixing a notice in some conspicuous place on the land which is the subject-matter of the dispute ' is to bring the proceedings to the notice of all persons interested in such dispute and thereby enable them to participate in such proceedings.-In the instant case, it is not suggested that there were any third parties interested in the dispute who would have appeared in Court if the notice had been so affixed. On the contrary, on the petitioner's own affidavit filed in the Court below, he was the. only party, other than the respondents, who had an interest in this dispute, as he claims to have obtained possession of the subject-matter of the dispute on the date of such dispute and had secured a transfer of the said property ten days later. There is also the further circumstance that by reason of the interim order made by the Primary Court Judge, the Fiscal had broken open the premises in dispute and sealed the same. The learned Magistrate observes in her order that on a consideration of the report relating thereto, it is abundantly clear that the public of the entire Mawathagama town would in consequence have had notice of this dispute. She further states that the record shows that this dispute had received much more publicity than through affixing a notice. But, no one other than these parties to the dispute had made any claims in respect thereof.

This certainly does not mean that judges need not strictly comply with these provisions or are free to adopt procedures of their own. The very fact that this objection has been taken in these proceedings demonstrates the necessity for such strict compliance. It is well to bear in mind that the duty is cast by Section 66(4) on the Court to cause the notice to be affixed on the land. A party in whose favour an order is made should not be exposed to the risk of having such order challenged by the opposing party due to lapses on the part of the Court.

But, in the instant case, it is patently clear that no prejudice has been caused to any party by the Court's failure to cause the notice to be affixed on the land as required. The only parties interested in the dispute were aware of and had participated in the inquiry. The facts and circumstances 'of this case do not indicate that there was any other person interested in the dispute who could not'-have been reached otherwise than through a notice being affixed on the land. Thus, in my view, there had only been a procedural irregularity which did not deprive the court of its jurisdiction to proceed with the inquiry and make an appropriate order.

The next question that would, therefore, arise is whether this Court should exercise its extraordinary powers of revision in a case such as this. As was stated earlier, the original Court's failure to cause the notice so be affixed on the land has not resulted in prejudice to any party. It is not suggested that there is some other party interested in the dispute who would have appeared in Court had such notice been affixed. In fact, the proceedings do not disclose such a likelihood. The objection itself had been belatedly taken at the very concluding stages of the inquiry after the present respondents had closed their case. Nor has the order of the Magistrate been attacked in regard to her findings. It is indeed a well. considered order, supported by the material on record. The respondents have already been, placed in possession by the Fiscal pursuant to the said order. Proceedings had commenced as far back as . 1986. The order complained of, in any event, does not affect the civil rights of parties. The proviso to Article 138(1) of the Constitution itself lays down that no judgment, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice.

For the reasons aforesaid, I am of the view that this case does not warrant interference by this Court, particularly in the exercise of its discretionary and extraordinary powers of revision and would accordingly, dismiss this application.

In all the circumstances of this case, I make no order as regards costs.

WIJEYARATNE, J. - I agree.

Application dismissed.

11.ABDUL HASHEEB V. MENDIS PERERA [CA]

Sri Lanka Law Reports 1991 - Volume 1 , Page No - 243

COURT OF APPEAL

TAMBIAH, J. AND G.P.S. DE SILVA, J.

CA APPLICATION NO. 1092/81

P.C. GAMPAHA CASE NO. 3853

06 APRIL 1982, 14 JUNE 1982, 6, 7, 8 JULY 1982

AND 10, 13 AND 14 SEPTEMBER 1982

Judicature, Act No. 2 of 1978, SS. 46 & 47 - Application for transfer of case from one Primary Court to another - Failure to give notice in writing of the application to the Attorney-General as required by s. 47(3) of the Judicature Act - Bias - Expediency as ground for transfer of case.

Held:

It is section 46 which lays down the grounds of transfer applicable to every kind of proceeding, be it criminal or civil, quasi civil or quasi criminal. Subsections (1) and (2) of section 47 are confined to a prosecution.

The transfer contemplated in section 47(3) must be restricted to a transfer of a prosecution. An information filed under section 66 of the Primary Courts Procedure Act is clearly not a prosecution. Hence the petitioners were not required to give notice of the application to the Attorney-General.

The tests for disqualifying bias are -

(a) the test of real likelihood of bias;

(b) the test of reasonable suspicion of bias

On the application of either test, bias on the part of the Judge has not been established.

The expression 'expedient' in section 46 means advisable in the interests of justice. As there were three connected cases pending, it would promote the ends of justice if the case is transferred to another Primary Court.

Cases referred to:

1. In re Sidie (1948)2 All ER 995, 998

2. Butcher v. Poole Corporation (1942)2 All ER 572, 579

3. Rex v. Sussex Justices, ex parte Me Carthy (1924)1 KB 256

4. R v. Rand (1866) LR 1 Q B 230

5. R v. Camborne Justices, ex parte Pearce (1954)2 All ER 850

6. Metropolitan Properties Co. (F.G.C.) Ltd. v. London (1968)3 All ER 304

7. Regina v. Colchester Stipendiary Magistrate, ex parte Beck (1972)2 WLR 637

8. In re Ratnagopal 70 NLR 409, 435

APPLICATION for transfer of case from Gampaha Primary Court to another Primary Court.

H. L. de Silva, S. A. with Sunil Cooray for respondent - petitioners.

V. S. A. Pullenayagam with Faiz Mustapha, K. Balapatabendi and Miss. Deepali Wijesundera for 1st and 4th respondents.

Dr. Colvin R. de Silva with Faiz Mustapha, S. L. Gunasekera, A. Arunatilake de Silva and K. Balapatabendi for 2nd and 3rd Respondents.

Suri Ratnapala, State Counsel for Attorney-General.

Cur. adv. vult.

07 October, 1982

G. P. S. DE SILVA, J.

This is an application for the transfer of a case pending in the Primary Court of Gampaha to another Primary Court. The application is made under sections 46 and 47 of the Judicature Act, No. 2 of 1978. Counsel for the respondents, Dr. de Silva and Mr. Pullenayagam, raised a preliminary objection to the application on the ground that the petitioners have failed to give notice in writing of the application to the Attorney-General in terms of section 47(3) of the Act, Admittedly, the respondents-petitioners (hereinafter referred to as the petitioners) have failed to give notice of this application to the Attorney-General and it was the contention of Counsel that such notice was an imperative requirement under the law. In the absence of such notice, it was the submission of Counsel, that the application had to fail. Both, Dr. de Silva and Mr. Pullenayagam, relied very strongly on the ordinary and natural meaning of the words of subsection (3) of section 47 as the basis of the preliminary objection. Section 47(3) reads as follows:-

"Every person making an application for a transfer under this Chapter, shall give to the Attorney-General and also to the accused or complainant as the case may be, notice in writing of such application together with a copy of the grounds on which it is made. No order shall be made on the merits of the application unless and until at least 48 hours have elapsed between the receipt of such notice and the hearing of such application. Every accused person making an application for a transfer under the preceeding section may be required by the Court of Appeal, in its discretion, to execute a bond with or without surety conditioned that he will, if convicted, pay the cost of the prosecution."

Counsel for the respondents laid much stress on the generality of the words "every person making an application for a transfer under this Chapter . . .". It was the submission of Counsel that section 47(3) covers every person making an application and also every application made under this Chapter. Further, it was the submission of Dr. de Silva that the words "and also to the accused or complainant as the case may be", do not in any way restrict or qualify the generality of the words, "every person making an application for a transfer under this Chapter". Counsel relied strongly on the literal rule of construction which, it was submitted, is the primary rule of construction. Mr. Pullenayagam urged that plain words must be given their plain meaning unless such meaning leads to a manifest absurdity. Counsel argued that there was nothing absurd in giving notice to the Attorney-General of an application W a transfer of a civil case, for, to use Mr. Pullenayagam's own words, "the Attorney-General has been the constant and unfailing friend of the court." Mr. Pullenayagam suggested a possible reason for giving notice to the Attorney-General. He submitted that applications for transfer of cases often alleged bias against judicial officers who are not represented before court. It was suggested that the point of view of the judicial officer could be best presented to court through the Attorney-General and accordingly there is nothing absurd in giving notice of a transfer application even in respect of a civil matter to the Attorney-General. There has been a deliberate change in the law, and Counsel for the respondents strenuously contended that the legislature must be presumed to have said what it meant and meant what it said. The law having been changed from what it was under the Courts Ordinance and the Administration of Justice Law, No. 44 of 1973, Dr. de Silva submitted that no court is entitled to "negate" legislation through a process of interpretation.

State Counsel, Mr. Ratnapala, who appeared on behalf of the Attorney-General as amicus curiae, supported the submissions made by Dr. de Silva and Mr. Pullenayagam, that plain words should be given their plain meaning and that it is the duty of the court to give maximum effect to the language used in the section. State Counsel contended that one consequence of the literal rule is that wide language should be given a wide construction. State Counsel also submitted that all that section 47(3) requires is to give notice to the Attorney-General and not to make him a respondent.

This is a convenient point to consider the parallel provisions in the repealed Courts Ordinance and the Administration of Justice Law, No. 44 of 1973. Section 42 of the Courts Ordinance and section 44 of the Administration of Justice Law contained provisions which are very similar to section 46 of the present Judicature Act. The provisions which are parallel to section 47(1) and 47(2) of the Judicature Act were found in section 43 of the Courts Ordinance and section 45(1) and 45(2) of the Administration of Justice Law. It is section 44 of the Courts Ordinance and section 43(3) of the Administration of Justice Law which speak of an "accused person" giving notice to the Attorney-General. On the other hand, section 47(3) of the Judicature Act speaks of "every person making an application for a transfer" being required to give notice to the Attorney-General. Thus, prima facie, there appears to be a departure from the provision contained in section 44 of the Courts Ordinance and section 45(3) of the Administration of Justice Law.

It seems to me that the question that arises for consideration is, whether section 47(3) of the Judicature Act is confined to prosecutions or whether it is applicable to all proceedings, civil and criminal. This question cannot be answered by examining section 47(3) in isolation. Sections 46 and 47 have to be read together in order to ascertain the true meaning of section 47(3).

Although section 17(3) speaks of "under this Chapter" there are only two sections (sections 46 and 47) in Chapter VIII, which refer to the power to transfer cases. It is significant that section 46(1) which sets out the subject matter of the transfer, uses the expression "any action, prosecution, proceeding of matter" - - an expression of the utmost generality. The words, "proceeding or matter", signify the residuary class which may not fall within "action or prosecution". This expression occurs thrice in subsection (1) of section 46 and also occurs once in each of the subsections (2) and (3). It is also important to observe that it is section 46(1) which spells out the grounds of transfer applicable to "any action, prosecution, proceeding or matter". In other words, it is section 46 which lays down the grounds of transfer applicable to every kind of proceeding, be it criminal or civil, quasi civil or quasi criminal. Therefore, having regard to the subject matter and the amplitude of the language used, I am of the view that it is section 46 which is the general provision relating to the transfer of every kind of proceeding.

Turning now to section 47, the absence of the expression "action, prosecution, proceeding or matter" or of an expression similar to it, is significant. The difference between the two sections is also apparent on an examination of the structure of section 47. Section 47(1) is limited to "any inquiry into or trial of any criminal offence" and deals with the Attorney-General's power of transfer by the issue of a fiat. Section 47(2) speaks of the steps that may be taken by "any person aggrieved by a transfer made" under section 47(1). Thus, it is clear that subsections (1) and (2) of section 47 are confined to a prosecution.

There follows subsection (3) of section 47, which begins with the very wide words - "Every person making an application for a transfer under this Chapter. . .Mr. H. L. de Silva, Counsel for the petitioners, submitted that the meaning of this collection of words is uncertain. Mr. de Silva posed the question, does it refer to every type of application made under "this Chapter" or to an application made in the context of subsection (3) of section 47? In other words, does it refer to a transfer of a "prosecution" or action proceeding or matter"?

Mr. de Silva relied strongly on the words that follow -- "and also to the accused or complainant as the case may be", which, in his submission, pointed unmistakenly only to a prosecution. Mr. de Silva argued that if section 47(3) is a general provision which applies also to a civil action, then the words, "accused or complainant" will not be meaningful since there is no complainant or accused in a civil proceeding. Moreover, if section 47(2) contemplates a civil action, then there is no requirement to give notice to the opposing party, the defendant or the plaintiff as the case may be. Accordingly, Mr. de Silva urged that section 47(3) contemplates a case where the parties on record are the accused and the complainant.

What is more, the giving of notice to the Attorney-General in respect of a transfer of a prosecution is understandable, having regard to the powers conferred on the Attorney-General by the Code of Criminal Procedure Act, No. 15 of 1979. The Attorney-General has a legitimate interest in receiving notice where there is a deviation from the place of inquiry of trial prescribed in the Code or Criminal Procedure Act.

On a consideration of the submissions outlined above, I am of the view that the words, "under this Chapter" in section 17(3), should be given a meaning which is consistent with the rest of the subsection and which harmonises best with the structure of section 47 read as a whole. The phrase, "under this Chapter" takes its colour and content from the words that follow - "and also to the accused or complainant as the case may be". It is necessary to emphasize that section 47(3) contemplates the double requirement of notice to the Attorney-General as well as notice to the accused or complainant, as the case may be. As stated by Lord Greene M.R. in re Sidie (1) - "The first thing one has to do, I venture to think, in construing words in a section of an Act of Parliament is not to take these words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question: 'In this state, in this context, relating to this subject-matter, what is the true meaning of that word'?" Again, in the words of du Parcq, L.J. in Butcher Vs. Poole Corporation (2),

"It is of course impossible to construe particular words in an Act of Parliament without reference to their context and to the whole tenor of the Act."

Thus, in giving a contextual interpretation to section 47(3), there is no departure from the well-recognised canons of statutory interpretation. Having regard to the immediate context in subsection 47(3), the structure of section 47, and considering the fact that section 46 is the general provision which is applicable to every type of proceeding, I am of the view that the "transfer" contemplated in section 47(3), must be restricted to a transfer of a prosecution. An information filed under section 66 of the Primary Courts' Procedure Act, is clearly not a prosecution. I, therefore, hold that the petitioners were not required to give notice of this application to the Attorney-General. The preliminary objection is accordingly overruled.

I shall now proceed to consider the application on its merits and the basis upon which the petitioners seek to have the case transferred from the Primary Court of Gampaha to another Primary Court. Mr. H.L. de Silva, at the outset of his submissions, stated that the ground upon which he relies is section 46(1 )(a) of the Judicature Act but, in the course of his reply to the submissions of Counsel for the respondents, he relied on an alternative ground as well, namely, section 46(1) (d).

The 1st to the 6th petitioners are members of one family. The 1st petitioner is the husband of the 2nd petitioner, the 3rd and 5th petitioners are the sons of the 1st and 2nd petitioners while the 4th petitioner is the wife of the 3rd petitioner and the 6th petitioner is the wife of the 5th petitioner. The land in respect of which an information was filed in terms of section 66(1) of the Primary Courts Procedure Act, No. 44 of 1979, is called "Werellawatta", situated at Yakkala in Gampaha. The case for the respondents is that this land originally belonged to one Mohideen who died in 1973 leaving a last will in terms of which his widow (4th respondent) and his two daughters became entitled to the land. The widow and the daughters of Mohideen were negotiating to sell the property from about September 1979. The land was surveyed in October 1979 and the surveyor, in his affidavit, states that he was able to enter the land only with the assistance of the Police. Ultimately the land was sold on 31st March, 1981 by deed No. 4413, attested by Mr. Herman J.C. Perera, to A. N. Munasinghe and D. Munasinghe (hereinafter referred to as the Munasinghe brothers) who are the 2nd and 3rd respondents. Thereafter, on 3rd April, 1981, the Munasinghe brothers sought to take possession of the land but they were prevented from doing so by the 1st petitioner and his sons. This was reported to Hasheeb (1st respondent) who is the brother of the deceased Mohideen and who had assisted in the negotiations to sell the property to the Munasinghe brothers. According to the respondents, the petitioners have no right, title or interest in the land and the 1st petitioners have no right, title or interest in the land and the 1st petitioner was merely the conductor or watcher who had been employed by the deceased Mohideen. Hasheeb made a complaint to the Gampaha Police on 7th June, 1981. Sergeant Austin of the Gampaha Police, conducted inquiries into the complaint of Hasheeb and on 28th August, 1981, filed the information under section 66(1) of the Primary Courts Procedure Act, No. 44 of 1979, which is the subject matter of the present application for transfer. The petitioners, on the other hand, claim title to the land by right of prescription, inheritance and purchase, and they assert that they have been in possession of the land from the last several years. Their claim is founded partly on certain recent deeds of transfer.

Sergeant Austin of the Gampaha Police, has conducted investigations into the claim of title put forward by the petitioners and a prosecution has been instituted (Case No. 14595/B of Magistrate's Court of Gampaha) against the 1st petitioner and members of his family, alleging a conspiracy to forge the deeds relied on by the petitioners. It is to be noted that one of the accused in this prosecution for conspiracy to commit forgery is a daughter-in-law of the 1st petitioner named Punyawathie Jayakody.

At this stage, it is relevant to observe that while Punyawathie Jayakody is a party to the information filed under section 66 of the Primary Courts Procedure Act and an accused in the criminal case referred to above, she is also the complainant in a private plaint she filed in the Magistrate's Court of Gampaha, accusing Sergeant Austin of the Gampaha Police of using criminal force on her with intent to outrage her modesty, an offence punishable under section 345 of the Penal Code. These criminal proceedings (Case No. 3832 M.C. Gampaha) were instituted on 28th August, 1981, which was the same date on which Sergeant Austin filed the information under section 66(1) of the Primary Courts Procedure Act. The allegation is that Sergeant Austin used criminal force on Punyawathie Jayakody in the course of his investigations into the complaint of Hasheeb that the petitioners were refusing to hand over possession of the land to the Munasinghe brothers.

Thus, it is seen that there were three connected cases, two in the Magistrate's Court of Gampaha (M.C. Gampaha Case Nos. 14595/ B and 3832) and one in the Primary Court of Gampaha, pending before the same Judge, since the Magistrate of Gampaha functions also as the Primary Court Judge of Gampaha -- It is in this context that the instant application for the transfer of the case pending in the Primary Court of Gampaha to another Primary Court has been made.

The petitioners, in their application for a transfer of the case, do not specifically allege that they will be denied a' fair and impartial trial. Mr. H.L. de Silva submitted that, having regard to the material placed before this court, he was inviting the court to draw the inference that there was either a "real likelihood of bias" or "a reasonable suspicion of bias" on the part of the Judge against the petitioners. The matters set out in the petition as indicative of bias are:-

(a) that the Judge attended the wedding of Munasinghe's son (paragraph 6 of the petition);

(b) that when the private plaint was filed against Sergeant Austin, "the Magistrate did not issue a summons or warrant as is required by law, but fixed the case for the next working day in the expectation that the accused will then be in court as a prosecuting officer for the Gampaha Police" (paragraph 7 of the petition);

(c) the application made on behalf of the petitioners for a longer date to file their affidavits in the case before the Primary Court was refused, although the Judge was informed that the 1st petitioner was in hospital and that seven of his sons were on remand on the allegation of forgery of deeds (paragraph 9 of the petition);

(d) the Judge failed to appreciate the submission made by the lawyers appearing for the petitioners, that there is no basis in law for the prosecution on charges of forgery and accordingly, the several orders of remand were wholly unjustified (paragraphs 10 and 11 of the petition).

Mr. H.L. de Silva invited our attention to the information filed by Sergeant Austin under section 66 of the Primary Courts Procedure Act. He stressed the fact that there was nothing in the report to indicate that there was a threat or likelihood of a breach of the peace at the time the information was filed on the 28th of August, 1981. The attempt by the Munasinghe brothers to take possession of the land was as far back 3rd April, 1981 and the complaint made by Hasheeb to the Gampaha Police was on 7th June, 1981. The information .filed by Sergeant Austin, nowhere states that any incident likely to cause a breach of the peace had occurred between 3rd April, 1981 and 28th August, 1981. Since it is the apprehension of a breach of the peace which determines the jurisdiction of the court in an application made under section 66, Mr. H.L. de Silva submitted that, had the Primary Court Judge perused the information filed before him, it would have been manifest to him that the application could not have been entertained. In regard to the forgery case, Mr. de Silva submitted that, if the Magistrate had perused the reports filed by the Police as he should have done, it would have been clear to him that no offence of forgery was disclosed, for the reason that the allegation was that the impugned deeds were executed to make a false claim to title. Mr. de Silva drew our attention to the relevant journal entries and the submission made by the lawyers appearing for the accused, that this was a civil matter and that the accused should be granted bail. The Magistrate, however, refused all applications for bail and kept the accused on remand for about11/2 months.

The other case before the same Judge was the private plaint filed by the 6th petitioner, Punyawathie Jayakody, against Sergeant Austin, on a charge under section 345 of the Penal Code. Mr. de Silva invited us to examine the journal entries in this case. The plaint in this case was filed on 28.08.81, which was the very date on which Sergeant Austin filed the information under section 66 of the Primary Courts Procedure Act. The prosecution instituted by the 6th petitioner came to an abrupt end on 12 October, 1981, when the Magistrate discharged Sergeant Austin. The journal entry of that date shows that the complainant on being questioned by court, had stated that she is not ready for trial. The Attorney-at-Law appearing for Sergeant Austin, thereupon moved for the discharge of the accused. The Magistrate, in his Order discharging the accused, stated that the complainant has not taken any steps to summon witnesses and that it appears that she is not taking any interest in the matter. Mr. de Silva strenuously contended that this was a perverse order, clearly indicative of bias on the part of the Magistrate, for it was impossible for the complainant, who was on remand on the allegation of forgery since 11.09.81 and who was present in court on 12th October from the remand jail, to have got ready for trial.

Mr. de Silva submitted that the purpose of the Police bringing a charge of forgery and moving for the remand of the petitioners was to remove the petitioners from the land in dispute and to facilitate the taking over of possession by the Munasinghe brothers. It was with the same purpose in view, Counsel contended, that Sergeant Austin filed the information under section 66 and moved for an interim order under section 67(3) of the Act. In short, his submission was that the Police were acting hand in glove with the Munasinghe brothers to ensure that the Munasinghe brothers obtained possession of the land. It was his submission that the filing of an information under section 66 of the Act was a "short-cut" which the Munasinghe brothers have adopted to obtain possession of the land. While the Munasinghe brothers with the assistance of the Gampaha Police were making every endeavour to obtain possession of the land, Counsel submitted, that the trial Judge was repeatedly making clearly wrong orders in all three cases - - orders which were, Counsel contended, always to the detriment of the petitioners and for the benefit of the respondents. Mr. de Silva argued, while he cannot prove actual bias on the part of the Judge yet, having regard to the circumstances in which the several orders were made in the three cases, the petitioners reasonably entertained an apprehensive that they would be denied a fair and impartial trial. It was the contention of Mr. de Silva that the conduct of the Magistrate in the two criminal cases, impinged on his conduct in the case pending before the primary Court.

The question that has now to be considered is whether, the facts set out in the petition (which I have enumerated above) and the conduct of the Judge, having regard to the several orders made by him in all three cases, show that the petitioners would be denied a fair and impartial inquiry. In other words, does it appear that the Judge is biased against the petitioners? At the outset of his submissions, Mr. H.L de Silva referred to the well-known dicta of Lord Hewart, C.J. in Rex vs. Sussex Justices, Ex parte Me Carthy (3):-

"... a long line of cases shows that it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done . . . Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice . . ."

In the subsequent authorities cited before us, two tests for disqualifying bias have been formulated:-

(a) the test of real likelihood of bias; and

(b) the test of reasonable suspicion of bias.

One of the earliest cases in which the test of real likelihood of bias was laid down is R vs. Rand (4), in which Blackburn, J. said:-

"Wherever there is a real likelihood that the Judge would, from kindred or any other cause, have a bias in favour of the parties, it would be very wrong in him to act; . . "

A Divisional Court in R Vs. Camborne Justices ex parte Pearce (5) applied the dictum of Blackburn, J. in R Vs. Rand (supra) and ruled in favour of the "real likelihood" test. The possible difference between the two tests arose from the facts in the case. An information was laid against the applicant under the Food and Drugs Act by an officer of the Cornwell County Council. At the trial of the applicant, Mr. Thomas who had been elected a member of the County Council, acted as clerk to the Justices. After the Justices had retired to consider their verdict, the chairman sent for Mr. Thomas to advise them on a point of law. Mr. Thomas advised the Justices on the point of law but the facts of the case were not discussed at all with him. Having given his advice, he returned to the court. An order for certiorari was sought on the basis that there was a reasonable suspicion of bias because Mr. Thomas was at the time of the trial, a member of the County Council on whose behalf the information was laid against the applicant. It was argued that there was a suspicion of bias but the court rejected that test and stated thus;-

"In the judgment of this court, the right test is that prescribed by Blackburn, J. in R. Vs. Rand, namely that to disqualify a person from acting in a judicial or quasi judicial capacity on the ground of interest (other than pecuniary or proprietory) in the subject matter of the proceeding, a real likelihood of bias must be shown . . The frequency with which allegations of bias have come before the courts in recent times, seems to indicate that the reminder of Lord Hewart, C.J. in R. Vs. Sussex JJ ex parte Me Carthy, that it is 'of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done' is being urged as a warrant for quashing convictions or invalidating orders on quite unsubstantial grounds and, indeed, in some cases, on the flimsiest pretexts of bias. While indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, C.J., this court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done. In the present case, this court is of opinion that there was no real likelihood of bias and it was for this reason that the court dismissed the application . . "

The next important case in which the rule against bias was considered is Metropolitan Properties Co. (F.C.C) Ltd. Vs. Lannon (6). A solicitor sat as chairman of a rent assessment committee to consider an application by the landlords for increases in the rents of several flats. The solicitor's firm had acted for other tenants and the solicitor lived with his father who was tenant of a flat owned by an associate company belonging to the same group as the landlords who had sought an increase in rent. He had assisted his father in a dispute with his landlords. The rent assessment committee fixed as the fair rent of each flat, an amount which was not only below the amount put forward by the experts called at the hearing on behalf of the tenants and the landlords, but also below the amount offered by the tenants themselves. The Court of Appeal held that, on the facts, the solicitor should not have sat as chairman. It would appear that Lord Denning was inclined to adopt the "real likelihood" test but said that it was satisfied if there were circumstances "from which a reasonable man would think it likely or probable that the justice or the chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other", Lord Denning emphasized that "the court looks at the impression which would be given to other people". "The reason" he said " is plain enough, Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking; the Judge was biased." Edmund Davies, L.J., however, adopted the test of "reasonable suspicion of bias" and approved the dictum of Lord Hewart. Danckwerts, L.J. seemed to be inclined to adopt the Hewart approach and said that on the facts, it was "not wise" for the chairman to have acted.

Mr. Pullenayagam cited Regina Vs. Colchester Stipendiary Magistrate ex parte Beck (7) wherein Lord Widgery, C.J. characterized Lord Denning's judgment in Lannon's case (Supra) as "a modern statement of what is meant by bias in the sort of context with which we are now dealing". I find that de Smith's 'Judicial Review of Administrative Action', 4th Edition at pages 263 and 264, cites Lannon's case in support of the "reasonable suspicion" test. A similar view is expressed by Wade in his work on 'Administrative Law1, (4th Edition) at page 411.

Mr. Pullenayagam submitted that not only do the English cases support the test of "real likelihood of bias" but also a Divisional Court of the then Supreme Court adopted the same test in 'in re Ratnagopal" (8). Mr. Pullenayagam referred us to the following passage at page 435-

"The proper test to be applied is, in my opinion, an objective one and I would formulate it somewhat on the following lines; 'Would a reasonable man, in all the circumstances of the case, believe that there was a real likelihood of the Commissioner being biased against him?"

Mr. Pullenayagam submitted that both in principle and on authority, the proper test to apply in relation to an allegation of bias on the part of a judicial officer was the test of "real likelihood of bias".

While I find Mr. Pullenayagam's submission not without attraction, yet, on the facts and circumstances of this case, it is not necessary to give a ruling as to which of the tests is the proper test when an allegation of bias is made against a judicial officer. The reason is that, in my view, the petitioners have failed to prove the allegation of bias on the application of either of the tests.

It is of course not necessary to prove that the judicial officer was, in fact, biased. However, even on the application of the test of reasonable suspicion, it must be shown that the suspicion is based on reasonable grounds which would appeal to the reasonable, right thinking man. It can never be based on conjecture or on flimsy, insubstantial grounds. Adopting the words of Lord Denning in Lannon's case (Supra), Mr. Pullenayagam submitted that "bias" in this context would mean, "a tendency to favour one side unfairly at the expense of the other" - a submission with which I agree.

In this view of the matter, it seems to me that the facts set out in the petition are too remote and too tenuous in character to found an allegation of bias on the part of a judicial officer, who it must be remembered, is one with a trained legal mind. As submitted by Mr. Pullenayagam, it is a serious matter to allege bias against a judicial officer and this court would not lightly entertain such an allegation. The several orders made by the judge in the three cases, which Mr. H.L. de Silva complained were clearly erroneous in law and indicative of bias, are to my mind, at most instances of a wrongful or improper exercise of a discretion. Whatever may be the relationship between Sergeant Austin and the Munasinghe brothers, yet it is not sufficient to impute bias to the Judge. The totality of the circumstances relied on by the petitioners, do not show that the Judge has extended favours to one side "unfairly at the expense of the other" and I accordingly hold that the allegation of bias has not been established. Thus, the first ground on which the transfer is sought (section 46(1 )(a) of the Judicature Act) fails.

I turn now to the alternative ground relied on by Mr. H.L. de Silva -- that the transfer is "expedient on any other ground". I agree with Mr. Pullenayagam's submission that the expression "expedient" in the context means, advisable in the interests of justice. Indeed, the purpose of conferring the power of transfer as provided for in section 46 of the Judicature Act, is to ensure the due administration of justice.

There were three cases pending before the same Judge. They were all "connected cases" in the sense that they had a bearing on the dispute in regard to the possession of "Werellawatte". The charges of forgery were based on deeds alleged to have been executed to support a false claim to title of the land in dispute. The alleged incident relating to the charge of criminal force is said to have taken place in the course of the investigations into the dispute regarding the possession of "Werellawatte". As submitted by Mr. H.L. de Silva, the petitioners in making this application for a transfer, are taking only preventive section. They are not seeking to set aside an order which they allege is bad in law. It so happened that the several orders made by the Judge, tended to operate against the 1st petitioner or one or more members of his family. Having regard to the course the proceedings took in each of these cases, and in particular, the unusual circumstances in which Sergeant Austin was discharged in the criminal force case, thereby denying the complainant of an opportunity of presenting to court her version of the incident, I am of the opinion that it would promote the ends of justice if this case is transferred to another Primary Court.

I accordingly make order that the case be transferred to the Primary Court of Minuwangoda.

In all the circumstances, I make no order as to costs.

Before I conclude, I wish to make it clear, that nothing I have said in the course of this judgment was intended in any way to reflect adversely on the integrity or the conduct of the judicial official concerned.

TAMBIAH. J. - I agree.

Transfer of case ordered.

12.SILINONA V DAYALAL SILVA [CA]

Sri Lanka Law Reports 1992 - Volume 1, Page No - 195

Sri Lanka Law Reports

COURT OF APPEAL

S. N. SILVA, J.

C.A. NO. 17/84; M.C. KALUTARA NO. 45428

29 JUNE, 1990

Primary Courts Procedure Act - Dispute regarding a right of way - Scope of sections 66(3) and 66(8)(b) - Application for postponement to rile affidavit - No order on the application but case fixed to be called on a later-date - Interpretation of time limits in statutes - Mandatory and directory provisions - Scope of maxim "act of court cannot prejudice a party" (actus curiae neminem gravabit).

In proceedings which had commenced under Section 66(1) of the Primary Courts Procedure Act, No. 44 of 1979, the petitioner's attorney-at-law moved for further time to file the petitioner's affidavit. The court made no order on this application but made order that the case be called next on another date, on which date the petitioner tendered her affidavit. Attorney-at-Law for the respondent objected to this affidavit being accepted on the ground that the petitioner was in default in terms of Section 66(3) read with Section 66(8)(b). The learned Magistrate. upheld this objection but the petitioner's affidavit had been filed of record. In revision it was argued by counsel for the petitioner that, since no order was made by the learned Magistrate when the petitioner had moved for further time to file her affidavit, her application should be considered as having been allowed. It was therefore argued that there was no default on the part of the petitioner as contemplated by Section 66(3) read with Section 66(8)(b) of the Primary Courts Procedure Act.

Held:

(1) The time limit of 3 weeks within which a party is required to file his affidavit under Section 66(3) is mandatory because statutory time limits within which a party is required to act are mandatory as distinguished from acts required to be done by a court, where the provision of time limits should be considered as being directory. Consequently the petitioner was in default in terms of Section 66(8)(b).

(2) In circumstances where a court makes no order on an application made by a party for a postponement to perform a mandatory statutory act, the maxim that an act of a court cannot prejudice a party (actus curiae neminem gravabit) cannot have application.

(3) Although a party may be in default in terms of Section 66(3) the documents and affidavits filed of record must be considered before making an order.

Case referred to:

1. Ramalingam v. Thiagarajah Sri Kantha's Law Reports, Vol. 132

APPLICATION in revision of the order of the Magistrate of Kalutara.

J. P. de Almeida Gunaratne for petitioner.

D. Fernando, PC with S. Peiris for respondents.

Cur adv vult.

19th June, 1990.

S. N. SILVA, J.

The petitioner has filed this application in revision against the order dated 30.11.83 made by the learned Magistrate of Kalutara. That order was made in a proceeding instituted under Section 66(i) of the Primary Courts Procedure Act No. 44 of 1979. The proceeding was instituted by the Officer-in-Charge of Aluthgama Police by filing the information dated 24.8.83. That information states that there is a dispute between the petitioner and the 1st and 2nd respondents with regard to a right of way.

It appears that the information was filed in court on 10.8.83 and on that date the petitioner- and the 2nd respondent were present in court. On that date, the court directed that notice be fixed on the land and also directed that affidavits be filed on 24.8.83. (the fact that the court made an order that affidavits be filed on 24.8.83 is borne out by the order made by court on 30.11.83).

On 24.8.83 the petitioner was not present, but she was represented by an Attorney-at-Law. The 1st and 2nd respondents to this application were present and their affidavits were tendered to Court.' The Attorney-at-Law for the petitioner moved for further time to file an affidavit. It appears from the proceedings that no order was made by court on this application. The case was to be called next on 7.9.83.

On 7.9.83 the petitioner was present and her affidavit was tendered The Attorney-at-Law for the 1st and 2nd respondents . objected to this affidavit being accepted and moved that the petitioner be considered as being in default. The court by its order dated 30.11.83 upheld the objection of the 1st and 2nd respondents. The order states that the petitioner is deemed to be in default in terms of Section 66(8)(b) of the Primary Courts Procedure Act No. 44 of 1979.

Mr. Gunaratne appearing for the petitioner submitted that the court was in error when it made the said order. Counsel submitted that the petitioner made an application on 24.8.83 for further time to file her affidavit. Since no order was made by court on this application it is submitted that the application should be considered as having been allowed. On this basis Counsel submits that there was no default on the part of the petitioner since affidavit was filed on 7.9.83 being the next date.

Learned President's Counsel appearing for the 1st and 2nd respondents submitted that in terms of Section 66(3) petitioners are obliged to file their affidavit on or before the date fixed by the court, which should be not later than 3 weeks. It was submitted that if there is default in this respect, the provisions of section 66(8)(b) 'should apply. Counsel further submitted that the petitioner has filed the affidavit well outside the period of 3 weeks provided for under Section 66(3).

I have carefully considered the submissions of Counsel. The petitioner had been granted time till 24.8.83 to file her affidavit. No order has been made on 24.8.83 allowing the application of the petitioner, for further time. In these circumstances, it cannot be inferred that the court permitted the petitioner further time.

I am of the view that there is some merit in the submission that the petitioner should have been permitted to file the affidavit on any date within 3 weeks. Even if this submission is accepted, I note that the affidavit had in fact been filed outside the period of 3 weeks that is provided for by Section 66(3).

Counsel for the petitioner relied on the judgment of Sharvananda, C.J. in the case of Ramalingam v. Thiagarajah (1). The particular passage at page 39 relied upon by the counsel shows that a distinction should be drawn between the time periods that are specified for acts to be done by the parties on the one hand and acts to be done by the court on the other. It is clear from the judgment of Sharvananda, C.J. that where an act has to be done by the court, the provision of time limits should be considered as being directory. In this case, we are concerned with an act that has to be done by a party.

In the circumstances, the requirement that a party should file the affidavit on the date specified by court for that purpose, within 3 weeks, should be considered as mandatory. Therefore, the judgment of the Supreme Court does not support the argument of the counsel.

The other matter relied upon by Counsel is that the act of the court cannot prejudice the petitioner. This submission is based on the premise that on 24.8.83 the court allowed the application of the petitioner. The proceedings clearly show that no order was made on this application. In these circumstances, I am of the view that there is no act on the part of the court that has prejudiced the petitioner. The petitioner failed to file her affidavit within the period of 3 weeks provided for in Section 66(3). Therefore the default clearly lies on her.

For the reasons stated above, I see no error of law in the order dated 30.11.83 made by the learned Magistrate.

Counsel for the petitioner submits that although the petitioner is considered as having been in default, section 66(8)(b) directs the court to consider such material as is before it in respect of the claims of the petitioner. Counsel submits that an affidavit and a counter affidavit had been filed by the petitioner before the order dated 30.11.83 was made. In these circumstances, it is submitted that these 2 documents be considered by the court in making its final order. The learned President's Counsel does not dispute this interpretation of section 66(8) of the Act.

In these circumstances, I refuse the application in revision and direct the court to inquire into the information and to make an order according to law considering the documents and affidavits that have now been filed by the parties to the dispute including -the petitioner. The petitioner shall not be entitled to participate at this inquiry as provided for in Section 66(8)(b). The Court may call for further material as may be considered necessary in the interests of justice.

Application is refused. No costs.

Application refused.

13.VELUPILLAI AND OTHERS V SIVANATHAN [CA]

Sri Lanka Law Reports 1993 - Volume 1 , Page No - 123

COURT OF APPEAL.

ISMAIL, J.

CA APPLICATION NO. 909/85.

PRIMARY COURT, KILINOCHCHI NO. 2817.

NOVEMBER 13 AND DECEMBER 16, 1992.

Primary Courts Procedure Act - Section 66 Application - Dispute affecting land under s. 66 (1)(a), 66 (1)(b) and 66 (2) of the Primary Courts Procedure Act - Jurisdiction.

Under section 66 (1)(a) of the Primary Courts Procedure Act, the formation of the opinion as to whether a breach of the peace is threatened or likely is left to the police officer inquiring into the dispute. The police officer is empowered to file the information if there is a dispute affecting land and a breach of the peace is threatened or likely. The Magistrate is not put on inquiry as to whether a breach of the peace is threatened or likely. In terms of section 66 (2) the Court is vested with jurisdiction to inquire into and make a determination on the dispute regarding which information is filed either under section 66 (1)(a) or 66 (1)(b).

However, when an information is filed under section 66 (1)(b) the only material that the Magistrate would have before him is the affidavit information of an interested person and in such a situation without the benefit of further assistance from a police report, the Magistrate cautiously and ascertain for himself whether there is a dispute affecting land and whether a breach of the peace is threatened or likely.

The scope of the inquiry under this special jurisdiction is of a purely preventive and provisional nature pending the final adjudication of the rights of the parties in a civil court. The Magistrate is not involved in the investigation into title or right to possession which is the function of a civil court.

The expression "dispute affecting land" as interpreted in section 75 of the Primary Courts Procedure Act, includes "any dispute as to the right to possession of any land ..... or as to the right to cultivate any land.......".

The Magistrate would have been slow to find that there was a dispute affecting land owing to which a breach of the peace was threatened or likely if he had focussed his attention on the substance of the mere complaint and viewed it in the background of the attempt to obtain title.

The complaint of being prevented from tending the crops in the lands claimed to have been cultivated by the complainant, is not a dispute as to the "right to cultivate' the land within the meaning of section 75 of the Primary Courts Procedure Act. This was a complaint relating to interference with cultivation rights which could have resulted in damage or loss of crop in regard to Which the Commissioner of Agrarian Services is vested With jurisdiction under section 57 of the Agrarian Services Act.

The information did not disclose a dispute affecting land upon which the Magistrate's Court could have made a determination under Part VII of the Primary Courts Procedure Act.

Cases referred to

1. Kanagasabai v. Mylvaganam (1976) 78, NLR. 280, 283.

2. Ramalingam v. Thangarajah (1982) 2 Sri LR 693, 700.

APPLICATION to revise the order of the Primary Court Judge of Klinochchi.

S. Mahenthiran for petitioners.

C. V. Vivekananthan with V. Pavitharan for respondent.

Cur. adv. vult.

February 24, 1993.

ISMAIL, J.

The 1st petitioner who is the father of the respondent was granted 2 acres 3 roods and 34 perches of high land for residential purposes and 4 acres and 39 perches of land for paddy cultivation on a permit dated 06.02.1985 under the Land Development Ordinance. These two extents of land were surveyed and subdivided each into two portions on or about 05. 09. 1984 and were each allotted new numbers. A permit dated 07.11.1984 for a divided extent of the high land bearing lot No. 74, in extent 1 acre 1 rood and 27 perches, and a divided extent of paddy land bearing lot No. 310, in extent 2 acres 19.5 perches, was granted to the respondent. These two extents were set out in the two schedules to her affidavit dated 11.01.1985 filed as information in terms of section 66 (1)(b) of the Primary Courts' Procedure Act, No. 44 of 1979.

The respondent's complaint was that the petitioners had on 06. 01.1985 fenced up that portion which served as the entrance to their land and had instead opened up another portion of the fence which separated the two divided extents of the high land and had created a pathway to gain access to their portion of the land. The petitioners had threatened her husband with bodily harm and had also threatened her family that they would be forcibly ejected if they did not vacate the land by the end of January 1985. In regard to the paddy land she complained that she had sown the land for the 1984 maha season but that the petitioners were preventing her from tending the crop. She attempted to make a complaint regarding this on the same day to the Kilinochchi police station but it was not entertained.

The learned Magistrate having considered the affidavits and the documents filed by the parties and having inspected the land delivered his order on 16.07.1985, holding that the respondent was entitled to cultivate the paddy land without any interference from the petitioners and that she was entitled to reside in the house situated on the high land and to possess the same jointly with the 1st and 2nd petitioners. The 3rd petitioner was warned against interfering with the respondent and the 4th to 8th petitioners were held not to have any right or title to any of the said lands. The petitioners in this application seek to have the said order of the learned Magistrate revised.

Learned Counsel for the petitioners submitted that the respondent was the daughter of the 1st and 2nd petitioners who had initiated proceedings in the Magistrate's Court, without the intervention of the police, under section 66 (1)(b) of the Primary Courts Procedure Act, and that in the circumstances the failure of the Magistrate to arrive at a specific finding initially that the dispute was likely to cause a breach of the peace vitiated the subsequent proceedings. Learned Counsel for the respondent while conceding that such a finding by the Magistrate had been necessary to clothe himself with jurisdiction under the corresponding repealed section 62 of the Administration of Justice Law submitted that such a condition precedent was not necessary under section 66 of the present law.

The corresponding repealed section 62 of the Administration of Justice Law vested jurisdiction in him only after the Magistrate formed an opinion that the dispute was likely to cause a breach of the peace. It provided as follows : 62 (1) "Whenever a Magistrate on information furnished by a police officer or otherwise has reason to believe that the existence of a dispute affecting land situated within his jurisdiction is likely to cause a breach of the peace, he may issue notice.......".

In Kanagasabai v. Mylvaganam (1) Sharvananda, J. observed "Section 62 of the Administration of Justice Law confers special jurisdiction on a Magistrate to make orders to prevent a dispute affecting land escalating and causing a breach of the peace ..... The section requires that the Magistrate should be satisfied, before initiating the proceedings, that a dispute affecting land exists and that such a dispute is likely to cause a breach of the peace".

However when an information is filed under section 66 (1)(b) the only material that the Magistrate would have before him is the affidavit information of an interested person and in such a situation without the benefit of further assistance from a police report, the Magistrate should proceed cautiously and ascertain for himself whether there is a dispute affecting land and whether a breach of the peace is threatened or likely.

The respondent has in her affidavit filed under section 66 (1)(b) traced the history of the dispute with her parents since 1980 relating to her right or title to the high land and the paddy land originally held by the 1st petitioner on a permit under the Land Development Ordinance. She stated that pursuant to an agreement dated 21.05.1980 she was placed in possession of the entirety of the two lands and that her parents had promised to donate one half of the two lands while the other half was to be given to her and her husband for a consideration of Rs. 20,000 (P1). They continued to be in undisturbed possession of the entirety of the two lands for a period of about eight months, but later in January 1981 the 1st petitioner resiled from the' agreement and had required her to settle the loan outstanding on this property to the Multi-Purpose Co-operative Society as a condition precedent to agreeing to transfer only half the portions of the two lands and to obtain a permit in respect of them. Yet the 1st petitioner had failed to transfer half the portions of the two lands as promised despite the said loan having been settled by the respondent. She had then in this connection lodged a complaint to the police on 16.05.1984.

The 1st petitioner along with the other petitioners had thereafter signed an agreement on 24.05.81 (P6) agreeing to transfer to her one half of each of the two lands. Pursuant to this the 1st petitioner had written to the District Land Officer on 27.07.1984 requesting him to subdivide the two lands in such a way that 1 1/2 acres of the portion the high land with the house situated on it, and 2 acres out of the paddy land could be transferred to the respondent. Accordingly it appears that a subdivision as requested by the 1st petitioner had been done, and on 3.11.1981 the District Land Officer informed the respondent that the two extents of lands had been subdivided and that two lots of each had been transferred in her name (P9). She further averred that it was in these circumstances that she was granted a permit (P28) dated 7.11.1984 for the subdivided extents of the high land and the paddy land fully described in the 1st and 2nd schedules to her affidavit.

In such circumstances where the party to the dispute had initiated proceedings it was incumbent on the Magistrate to have ascertained for himself on the affidavit tendered by the respondent whether there was a dispute affecting either or both the extents of land described in the two schedules. The scope of the inquiry under this special jurisdiction is of a purely preventive and provisional nature pending the final adjudication of the rights of the parties in a civil Court. The Magistrate is not involved in the investigation into title or right to possession which is the function of a civil court-Kanagasabai v. Mylvaganam (1), Ramalingam v. Thangarajah (2).

The expression "dispute affecting land" as interpreted in section 75 of the Primary Courts' Procedure Act, includes "any dispute as to the right to possession of any land...... or as to the right to cultivate any land......".

The respondent resided in that portion of the high land described in the 1st schedule at the time of filing the information, and she further claimed to have resided therein even before she was granted the permit dated 7. 11. 1984. Her complaint was that the petitioners who resided in the adjacent land threatened her husband with bodily harm and threatened the family with forcible eviction if they did not vacate the land by the end of that month. Her husband had not filed an affidavit in this connection nor had she specified as to which of the petitioners made the threats referred to. She further complained that the petitioners had created an alternate access to their land by removing a portion of the common fence having closed up another portion that served as the entrance to their land. No further material was placed before Court from which it could have been ascertained that this act on the part of the petitioners affected her right to possession and that a threat to peace was imminent.

The learned Magistrate would have been slow to find that there was a dispute affecting land owing to which a breach of the peace was threatened or likely if he had focused his attention on the substance of the mere complaint of the respondent and had viewed it in the background of her dispute with her parents since 1980 in attempting to obtain title in her name to the said lands.

Considering next her complaint in regard to the paddy land that the petitioners were preventing her from tending to the paddy crop cultivated by her in the maha season of 1984, this appears to be a complaint that could have been appropriately made to the Commissioner under the Agrarian Services Act, No. 58 of 1979. This section provides that where a complaint is made to the Commissioner by any owner, cultivator or occupier of agricultural land that any person is interfering with or attempting to interfere with the cultivation rights of such person and if he is satisfied that such interference or attempted interference will result in damage or loss of crop, he may issue an order requiring him to comply with such direction as may be necessary for the protection of such rights. The Commissioner is permitted to seek the assistance of a peace officer within the area to ensure compliance with such an order and the peace officer is obliged to render such assistance. Such an order is binding on the persons in respect of whom it is made until set aside by a Court.

The respondent had in fact made a complaint to the Assistant Commissioner in regard to the interference to her cultivation rights by the 3rd petitioner during the maha season of 1983. The Assistant Commissioner held an inquiry into her complaint and had by his letter (P19) dated 19. 09.1984 warned the 3rd petitioner against interfering with the respondent's cultivation rights. The Assistant Commissioner had in this regard drawn the attention of the 3rd petitioner to the provisions of section 57 of the Agrarian Services Act.

I am of the view that the respondent's complaint that she was prevented from tending the crops in the land claimed to have been cultivated by her, is not a dispute as to the "right to cultivate" the land within the meaning of section 75 of the Primary Courts' Procedure Act. This was a complaint . relating to interference with cultivation rights which could have resulted in damage or loss of crop in regard to which the Commissioner of Agrarian Services is vested with jurisdiction under section 57 of the Agrarian Services Act.

The learned Magistrate has, therefore, for these reasons erred in law in entertaining the respondent's complaint as a "dispute affecting land" and proceeding to exercise jurisdiction under Part VII of the Primary Courts' Procedure Act. I therefore set aside the order of the learned Magistrate dated 16.07.1985 made by him after an inquiry and an inspection of the land.

Learned Counsel for the petitioner took up further objections relating firstly to the validity of the affidavit filed by the respondent on the ground that the jurat did not disclose that the deponent affirmed to the contents of the affidavit and secondly that the respondent being governed by the law of Thesawalamai could not have invoked the jurisdiction of the Court by herself. Learned Counsel for the respondent contended that such objections could not be taken for the first time at the stage of appeal. In view of my finding that the information filed by affidavit by the respondent did not disclose a dispute affecting land upon which the learned Magistrate could have made a determination under part VII of the Primary Courts' Procedure Act, it does not appear to me to be necessary to come to a finding on these objections.

I make no order as to costs.

Order set aside.

14.PUNCHI NONA V PADUMASENA [CA]

Sri Lanka Law Reports 1994 - Volume 2 , Page No - 117

COURT OF APPEAL.

ISMAIL, J.

PRIMARY COURT.

MATARA CASE NO. 47970.

C.A. NO. 104/90.

MAY 03 AND JUNE 09, 1994.

Primary Courts Procedure ‑ Primary Courts Procedure Act, ss. 66(1) (a), (b), 68(1) & (3), 69 ‑ Distinction between section 68(1) & (3) and section 69 ‑Jurisdiction distinction between section 66(1) (a) and section 66(1) (b) ‑ Section 68(1) of the Primary Courts Procedure Act is concerned with the determination as to who was in possession of the land on the date of the filing of the information to Court.

Section 68(3) becomes applicable only if the judge can come to a definite finding that some other party had been forcibly dispossessed within a period of two months next preceding the date on which the information was filed. The distinction in section 69 is that it requires the Court to determine the question as to which party is entitled to the disputed right preliminary to making an order under section 69(2) of the Act.

Where the information is filed under section 66(1) (a) of the Primary Courts Procedure Act by a police officer, a Primary Court is vested with jurisdiction to inquire into the dispute. The Police Officer is empowered to file the information only if there is a dispute affecting land and a breach of the peace is threatened or likely. However, when an information is filed by a party to the dispute under section 66(1) (b) it is left to the judge to satisfy himself that there is a dispute affecting land owing to which a breach of the peace is threatened or likely.

The jurisdiction conferred on a Primary Court under section 66 is a special jurisdiction. It is a quasi‑criminal jurisdiction. The primary object of the jurisdiction so conferred is the prevention of a breach of the peace arising in respect of a dispute affecting land. The Court in exercising this jurisdiction is not involved in an investigation into title or the right to possession which is the function of a civil court. He is required to take action of a preventive and provisional nature pending final adjudication of rights in a Civil Court.

In an information by a private party under section 66(1) (b) it is incumbent upon the Primary Court Judge to initially satisfy himself as to whether there was a threat or likelihood of a breach of the peace and whether he was justified in assuming such a special jurisdiction under the circumstances. Failure to so satisfy himself deprives the judge of jurisdiction.

Case referred to:

Velupillai and Others v. Sivanathan [1993] 1 Sri L. R. 123, 126.

APPLICATION for revision of order of the Primary Court Judge, Matara.

W. Dayaratne for respondent‑petitioners.

Ananda Kasturiaratchi for 1st respondent.

2nd respondent absent and unrepresented.

Cur. adv vult.

October 14, 1994.

ISMAIL, J.

The 1st respondent initiated proceedings in the Primary Court, Matara by filing a plaint and an affidavit together with a letter from the grama sevaka, all dated 31.10.89. The caption to the plaint described it as an action instituted in terms of section 66(1) (b) of the Primary Courts Procedure Act.

It was averred in her plaint and the affidavit that she was in possession of the land called 'Kottege Ruppewatte' in extent of about an acre, and that the petitioners entered the land forcibly on 27.10.89, caused damage by cutting down trees and had built a cadjan house thereon. The grama sevaka's letter annexed to the pleadings and which was issued at the request of the 1st respondent for the purpose of instituting legal proceedings certified that she was in possession of the said land. The 1st respondent prayed that the petitioners be evicted and that she be given vacant possession of the said land. This prayer was stated to be sought in terms of section 66(1) and (2) of the Primary Courts Procedure Act, No. 44 of 1979.

The case for the 1st respondent Punchi Nona was that she was in possession of this land since 1946 and that though her son Abraham Chandratilake Pujitha Thilakawardana had later become its owner, yet she continued to possess the said land along with her son. She did not produce any deed or further evidence in regard to her claim to the said land.

The 2nd respondent in his affidavit stated that he purchased the said land called Kottagodage Ruppewatte in extent 1A OR OP from the said Pujitha Thilakawardana by deed No. 2766 dated 26.01.92 attested by D. Samaratunge N.P and that since then he had undisturbed and uninterrupted possession of the land until he sold the same to the petitioners by deed No. 10 dated 3.10.89 attested by P. Batagoda N.P.

The petitioners in their affidavit stated that possession of the said land was handed over to them by the 2nd respondent when they purchased it from him on the said deed No. 10 dated 3.10.89. They confirmed that they commenced clearing the land on 27.10.89 and that on 30.10.89 they erected a cadjan shed in which they are presently living.

The 1st respondent claims to have made a complaint to the police but no such statement was produced in the course of the proceedings. However it is in evidence that the 1st respondent made a complaint to the grama sevaka on 31.10.89.

The grama sevaka who submitted a report dated 3.01.90 on the direction of Court stated that the 1st respondent had made a complaint to him on 31.10.89 to the effect that petitioners had forcibly entered the land and had caused damage to the value of Rs. 5000/‑. The grama sevaka visited the land and met the petitioners who informed him that they had purchased the land for valuable consideration. They produced the deed before him at his office on 3.11.89. According to the observation of the grama sevaka the petitioners had cut 3 coconut trees at the entrance to the land and were engaged in erecting a cadjan shed. He concluded by stating that this was the subject‑matter of the dispute.

The grama sevaka had earlier issued a letter, annexed to the plaint, dated 31.10.89 at the request of the 1st respondent that she was in possession of the land. He had also issued a letter dated 3.11.89 at the request of the petitioners to the effect that they were in occupation of the land since 27.10.89 after purchasing the same. The land was a bare land with no buildings standing thereon. The report of the grama sevaka to Court and his letters issued at the instance of the parties did not contain any fresh material besides the admitted facts relating to the purchase of the land by the petitioners, entering into occupation by them, clearing the land on 27.10.89 and erecting a cadjan shed on 30.10.89. There is no reference either to the purchase of the land by the 2nd respondent in 1982 or to his possession of the land since then prior to its sale to the petitioners.

The learned Primary Court Judge at the conclusion of the proceedings found the facts, as admitted, to be that the 2nd respondent sold the land to the petitioners and handed over possession to them on 3.10.89. As the 1st respondent alleged that the petitioners forcibly entered the land on 27.10.89 and evicted her, the Judge proceeded to consider the question as to who was in possession of the land prior to its sale to the petitioners. The Judge upon a consideration of the report of the grama sevaka and upon a consideration of the affidavits filed by the parties held that the 1st respondent was in possession of the land before its purchase by the petitioners and made order restoring possession of the land to her. He has failed to refer to the deeds produced by the 1st and 2nd respondents.

The petitioners seek to have the said order dated 31.10.90 revised. The petitioners in the present application filed dated 8.2.90 had pleaded that they have invested money in the purchase of this land and that they were living with their children in a house put up on the land. They therefore moved for an order that no further proceedings be taken consequent upon the order of the Primary Court Judge till the final determination of this application. An interim order to this effect was made by this Court on 28.3.90.

Counsel for the petitioners submitted that there has been no finding by the Judge as to who was in possession of the land at the time of the filing of the information as required by section 68(1) of the Primary Courts Procedure Act. His submission further is that the Judge has failed to arrive at a determination on the affidavits and documents furnished and that he has acted solely on the report of the grama sevaka in arriving at the decision that the 1st respondent had possession of the land prior to its purchase by the petitioners. He alleged that the report of the grama sevaka was based on hearsay material and that he had been posted to the area only a few months previously.

In my view the error is more fundamental. The learned Judge has proceeded to treat the dispute as one in regard to possession of the land under section 68(1) of the Primary Courts Procedure Act when it was in fact a dispute under section 69(1), as to who was entitled to the right to the land other than the right to the possession of such land. It was in the forefront of the case for the 1st respondent that though the ownership of the land passed to her son that she continued to possess the land together with her son. She has not furnished any specific dates in regard to this. It is common ground that the land was a bare land with no buildings standing on it. On the other hand, the petitioners claimed to be entitled to the land on the deed of purchase from the 2nd respondent. The 2nd respondent himself claimed to have purchased the land in 1982 from the 1st respondent's son. It was then the duty of Court to have determined under section 69(1) of the Act as to which of the parties had acquired the ownership of the right to the land or became entitled to the right to the land.

Section 68(1) of the Act is concerned with the determination as to who was in possession of the land on the date of the filing of the information to Court. Section 68(3) becomes applicable only if the Judge can come to a definite finding that some other party had been forcibly dispossessed within a period of 2 months next preceding the date on which the information was filed. The distinction in section 69 is that it requires the Court to determine the question as to which party is entitled to the disputed right preliminary to making an order under section 69(2) of the Act. By failing to appreciate the nature of the dispute between the parties initially, the Court failed to consider the merits of the rival claims in deciding as to who is entitled to the disputed right. The plaint filed was itself no assistance as it claimed relief under unrelated sections in the Act.

However the main submission on behalf of the petitioner was that the Judge did not have the jurisdiction to deal with the information filed by the 1st respondent as there was no finding by him that the dispute was likely to cause a breach of the peace. Where the information is filed under section 66(1) (a) of the Primary Courts Procedure Act by a police officer a Primary Court is vested with jurisdiction to inquire into the dispute. The Police Officer is empowered to file the information only if there is a dispute affecting land and the breach of the peace is threatened or likely. However, when an information is filed by a party to the dispute under section 66(1) (b) it is left to the judge to satisfy himself that there is a dispute affecting land owing to which a breach of the peace is threatened or likely. As observed in Velupillai and Others v. Sivanathan (1)"...when an information is filed under section 66(1) (b) the only material that the Magistrate would have before him is the affidavit information of an interested person and in such a situation without the benefit of further assistance from a police report, the Magistrate should proceed cautiously and ascertain for himself whether there is a dispute affecting land and whether a breach of the peace is threatened or likely".

In the present case the 1st respondent filed a plaint together with an affidavit and prayed for the eviction of the petitioners and for restoration of possession. The petitioners then filed their affidavit setting out the basis on which they lawfully came to occupy the land. The learned Primary Court Judge has failed to express his view in regard to the question of the dispute escalating and causing a breach of the peace. The grama sevaka did not state that he anticipated a breach of the peace and there was no intervention by the police though the 1st respondent claimed to have made a statement. The jurisdiction conferred on a Primary Court under section 66 is a special jurisdiction. It is quasi‑criminal jurisdiction. The primary object of the jurisdiction so conferred is the prevention of a breach of the peace arising in respect of a dispute affecting land. The Court in exercising this jurisdiction is not involved in an investigation into title or the right to possession which is the function of a civil Court. He is required to take action of a preventive and provisional nature pending final adjudication of rights in a civil Court. It was therefore incumbent upon the Primary Court Judge to have initially satisfied himself as to whether there was a threat or likelihood of a breach of peace and whether he was justified in assuming such a special jurisdiction under the circumstances. The failure of the judge to satisfy himself initially in regard to the threat or likelihood of the breach of peace deprived him of the jurisdiction to proceed with the inquiry and this vitiates the subsequent proceedings. For these reasons, acting in revision, I set aside the order of the Primary Court Judge dated 30.1.90.

The Application is allowed with costs.

Application allowed.

Order set aside.

15.TUDOR V ANULAWATHIE [C.A]

Sri Lanka Law Reports 1999 - Volume 3 , Page No - 235COURT OF APPEAL

YAPA, J., GUNAWARDANA, J.

C.A. NO. 95/94 (PHC).

HC KANDY REV. NO. 158/94.

PRIMARY COURT KANDY NO. 11493/93.

MAY 26, 1998.

AUGUST 24, 27, 1998.

Primary Courts' Procedure Act ss. 66, 68 (1), (3), 69 (1), (2) Has the Primary Court jurisdiction under s. 68 and s. 69 to make an order of demolition or removal of a structure - Quando Lex Aliquid Concediture Et Id Sine Que Ipsa Esse Non Potest - Should reasons be given?

Held:

1. The ultimate object of s. 68, and s. 69 being to restore the person entitled to the right to the possession of land to the possession thereof or to restore the person entitled to the right (other than the right to possession of land) to the enjoyment thereof - the said provision of the law must be rationally construed to authorize by necessary implication if in fact they had not in terms done so, the removal of all obstructions if the need arise, in the process of restoring the right to the person held to be entitled to such right.

Per Gunawardana, J.

'It is true that there is no specific provision in the Primary Courts' Procedure Act expressly enabling the Court to Order removal of obstructions in the way of restoration of the right to the person entitled thereto in terms of the determination made by the Court nor is there a prohibition either against the Court exercising such a power or making such an order ... but the Courts are not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the Code.'

2. The correctness of the finding by the Primary Court cannot be tested for want of reasons, which finding lacks the aura of moral persuasiveness - a quality which a reasoned Order alone can have.

APPEAL from the Provincial High Court of Kandy.

Cases referred to:

1. Jamis v. Kannangara - [19891 2 Sri L.R. 350 (not followed).

2. A. R. v. Bristol Dock Co. - (1827) 6 B & C 181.

3. Wright v. Scott - 1855 26 LT (05) 180 HL.

4. Gas Company v. City of Perth Corporation - (1991) AC 506.

5. 1845 4 Q. B. 46.

6. -1881 8 QBD 86.

7. Cooksen v. Lee - (1854) 23 L Ch. 473.

8. Bannerjee v. Rahaman - 29 AIR (1942) Cal. 244.

9. Narasingh v. Mangal Dubey - (1883) 5 Allahabad 163.

S. Costa for the appellant.

Reza Muzni for the respondent.

Cur. adv. vult.

May 27, 1999.

GUNAWARDANA, J.

This is an appeal from an order dated 11. 11. 1994 made by the High Court of Central Province dismissing an application for revision of an order made by the Primary Court on 02. 02. 1994 "and such other subsequent orders as had been made by the Primary Court".

In fact, the "order" that had been made by the Primary Court on 02. 02. 1994 is not strictly speaking, couched in terms of a direction as such but partakes also, to all external appearance, of the character of terms of a settlement entered into, more or less by mutual consent. But, upon a closer scrutiny of the relevant facts there is no mistaking that the order dated 02. 02. 94 is an imposed one so far as, at least, the 6th respondent-appellant was concerned and not one to which he had genuinely agreed or consented of his own free will, as such - as the sequel would show. The said order, which had been made by the Primary Court Judge upon an inspection of the site, reads thus:

The learned Primary Court Judge has stated in the aforesaid order, or whatever one may call it, that the 6th respondent-appellant "agrees" to remove the concrete post No. 3 and virtually widen the road "in order to allow a vehicle to go or pass through". It is manifest from the order of the learned Primary Court Judge that the removal of post No. 3 was necessary as it would otherwise obstruct the passage of a vehicle.

It is also equally clear that the 6th respondent-appellant had (as stated in the order) agreed, if, in fact, the 6th respondent-appellant could be said to have genuinely agreed, to remove the concrete post No. 3, upon, to use the very words of the learned Primary Court Judge, "the matters being explained" (by the Primary Court Judge) to the 5th respondent-appellant. What does the expression "the matters being explained" connote in the context? One does not even have to read between the lines to know that it meant that some degree of persuasion had been brought to bear upon the 6th respondent-appellant, by the learned Primary Court Judge in order to induce or prevail upon the 6th respondent-appellant, to remove the concrete post No. 3. It cannot be truly said that the 6th respondent-appellant had "agreed" to remove the concrete post No. 3 in the sense he had volunteered to do so. It would be closer to the truth and reality to say that he had been "made to agree to remove the said concrete post upon the "matters being explained". Perhaps, no Judge can ever be faulted for persuading parties to come to a just settlement of the dispute which can be arrived at as between the parties only upon a true insight being gained by the Court into the real or the true factual position. But, I am afraid the visual inspection of the site that had been undertaken by the learned Primary Court Judge had not enabled him to fully investigate the matter, if one were to take his own order dated 2. 2. 1994 as a guide - for although the learned Primary Court Judge had in the said order, stated that the 6th respondent-appellant had "erected new concrete posts and constructed a parapet wall taking in a part of the roadway into his land' - none can fathom from the Judge's order how the learned Primary Court Judge reached that finding for he had not chosen to give any reasons with respect to that question, viz as to why or how he formed the view or reached the decision that a part of the roadway had been encroached upon. Justice must not only be done but must be seen to be done on a rational basis and this can happen only when reasons are given for a finding and not otherwise. Then only will justice be rooted in confidence.

Of course, the learned Primary Court Judge had in his order said thus: "new concrete posts had been erected and a parapet wall had been built". But, erection of a new parapet wall per se cannot constitute proof of the fact that a part of the roadway had been incorporated into the land of the 6th respondent-appellant for one can construct a new wall along the old boundary, as well, which is precisely the case of the 6th respondent-appellant.

However, in his order the learned Primary Court Judge is silent as to whether it was the existence of new concrete posts which prompted him to take the view that a part of roadway had been encroached.

It is clear from the order of the learned Primary Court Judge made on 02. 02. 1994 that he had 'explained matters" to the 6th respondent-appellant presumably, if not, obviously, with a view to persuading him to remove the concrete post No. 3 obviously because of his (Judge's) impression that a part of the roadway had been taken into the 6th respondent-appellant's land in consequence of the erection of the wall or the post. But, I am not in a position to say whether that impression of the Primary Court Judge is erroneous or not for the Primary Court Judge had omitted to give reasons therefor. Even an order made after an inspection must be demonstrably fair, in fact, even fairer than an order made in the course of or after a trial or inquiry for at an inspection the Judge has, perhaps, a greater scope or freedom to take a view untramelled by the technicalities although even such an order must still be based on reason and justice. The considered order of a Court made after a visual inspection is not such an order as will rise or fall on fine and subtle distinctions based on an overly legalistic approach but one that will be based on straight talk and stark truth.

Although, according to what is stated in the order of the Primary Court dated 2. 2. 1994, the 6th respondent-appellant had "agreed to remove" the concrete post No. 03, yet he had failed to do so and on 15. 6. 1994 the Primary Court had made an order to enforce, the said order, dated 2. 2. 94 which was the date on which the aforesaid inspection was held. The order made on 15. 6. 94 to enforce the order of 2. 2. 94 is, in the circumstances, substantially, if not wholly, and for all practical purposes, an order of demolition with respect to the said concrete post No. 3.

It will be readily noticed that there is a direct causal connection between "explaining matters" by the Primary Court Judge which in this context meant, to put it euphemistically, persuading the 6th respondent-appellant to remove the concrete post No. 03 so as to widen the roadway and the finding or the impression of the Primary Court Judge formed (after a visual inspection) that erection of the parapet wall had constituted an encroachment on a part of the roadway which finding may or may not be erroneous. Realistically, viewing the matter, there is no gainsaying that it was the impression or the finding by the learned Primary Court Judge that a part of roadway had been encroached upon that prompted him to "explain matters" primarily with a view to prevail upon the 6th respondent-appellant to remove the concrete post No. 3. The correctness of that finding or the impression, as pointed out above, cannot be tested for want of reasons, which finding lacks the aura of moral persuasiveness - a quality which a reasoned order alone can have.

When a Court exercising an appellate jurisdiction finds that it cannot say for certain that the order of the subordinate Court is neither right nor wrong, inasmuch as the subordinate Court had omitted to give reasons for the order, there is little else that the superior can do than to-direct a fresh inquiry and I do so accordingly. This, I think, is the only choice open to me because, so far as I know, there is no practice of requesting reasons for a decision at this stage; nor is there a provision which enables me to do so. But, the parties are well-advised to pause and consider calmly and dispassionately whether it would not be an exercise in futility to proceed with this inquiry afresh as the rights of parties in respect of the same dispute are being currently investigated in the District Court which would hopefully produce a lasting solution.

The long and short of all this is that the aforesaid order dated 2. 2. 1994 (which order is, in fact, it may be observed, described or referred to as an "order" in the Primary Court Judge's order of 15. 6. 1994 itself directing enforcement of the previous order of 2. 2. 1994) may or may not be correct and I cannot sitting in appeal, as 1 do, tell either way. It is possible that the order dated 2. 2. 94 is correct although it is equally possible that it is wrong for, as pointed out above, no reasons had been given for the finding on which the order dated 2. 2. 1994 is rested. An application in revision had been made in respect of that order of the Primary Court dated 2. 2. 1994 which application, as stated above, had been refused by the High Court on 15. 11. 1994. Perhaps, to put it at its lowest, one may even infer doubtfully or even say, of course, tentatively, that it is more probable than not that the order dated 2. 2. 1994 is wrong, inasmuch as in the complaint made on 7. 9. 1993 to the Police upon which complaint these proceedings had been initiated in the Primary Court - no mention whatsoever had been made of any encroachment on the roadway in question. It is worth reproducing the relevant excerpt of that statement which is as follows:

1st respondent must be taken to have said in her complaint what she meant and also meant what she said. Nowhere in the above statement had she said that a wall had been built by Tudor (the 6th respondent-appellant) encroaching on the roadway. In fact, what the 1st respondent had explicitly stated in the above statement was that wall was being put up along the "edge of the road" which means the edging or the border or the line of demarcation between the 6th respondent's land and the roadway. If, as stated in the complaint, the construction was on the border or the boundary it could be said by way of argument, that the roadway could not have been encroached upon by reason of that construction although I am backward in reaching a finding to that effect on such a tenous and rarefied ground. Last, but not the least, the fact that there is no reference to or mention of any encroachment as such even in the report filed by the Police in the Primary Court calls for remark in this regard.

The point on which this appeal is allowed to the extent of directing a fresh inquiry, viz that no reasons are given for the finding that a part of the roadway had been encroached upon, was not urged before the High Court Judge who had been wholly oblivious to that aspect; nor was that point urged before us.

This should suffice to dispose of this matter. But, since what is, in fact, a point of great nicety has been raised in regard to the law, viz that the Primary Court had no jurisdiction either under section 68 or under section 69 of the Primary Courts' Procedure Act to make an order of demolition or removal of a structure, I wish to deal with that point as well although it is only of academic interest as the order of the High Court dated 11. 11. 1994 has, in any event, to be vacated because, the High Court had by such order upheld the order of the Primary Court Judge dated 2. 2. 1994, which latter order (of the Primary Court) as explained above, is not substantiated with reasons. It is to be observed that upon the failure of the 6th respondent appellant to remove the concrete post No. 3 the learned Primary Court Judge had on 15. 6. 1994 directed that the order dated 2. 2. 94 made by the Primary Court be carried out.

In this matter, irrespective of whether the dispute in this case falls under section 68 or section 69 of the said Act, the Primary Court, in making any order with respect to a dispute affecting land is clothed with the jurisdiction, (if necessary, for the due execution of its duty, viz to restore to the person entitled thereto the possession of the land or the enjoyment of the right, as the case may be, and "prohibit all interference" therewith, ie respectively with possession or enjoyment of the right) to make an order directing the removal or demolition of any structure - be it a house, concrete post or anything else that has been constructed or built - if that structure, whatever it may be, constitutes a hindrance to the execution of the aforesaid duty of the Primary Court.

The Primary Court is vested in express terms with the power under sections 68 (3) and 68 (4) of the Primary Courts' Procedure Act to make a tentative order restoring to possession of the land or part thereof, the person who is entitled to possess in terms of the determination made by the Primary Court under sections 68 (1) and 68 (3) respectively and also prohibiting disturbance of possession in the two instances contemplated by sections 68 (1) and 68 (3). To further explain the two instances or the situations referred to above: Section 68 (1) of the Primary Courts' Procedure Act requires or authorizes the Primary Court to determine who was in possession of the land or part thereof on the date of the filing of the information in Court regarding the dispute. After such determination the said Court is empowered under section 68 (4) of the relevant Act to restore possession to that person who was found by the Court to be entitled thereto which section 68 (4) reads thus: "An order under subsection (1). . . may contain a direction that any party specified in the order shall be restored to possession of the land or any part thereof.

(i) The Primary Court is expressly empowered under section 68 (4) of the said Act to restore to possession of the land or part thereof the party who was in actual possession on the date of filing of information regarding the dispute by the Police under section 66 of the Act and the Primary Court is also vested with the jurisdiction under section 68 (2) to make order protecting and prohibiting disturbance of possession of such person, ie the person who was found to be in possession on the relevant date, ie the date of filing of information, until such person is evicted there from under an order or decree of a competent Court;

(ii) the Primary Court makes an identical or the same order under 68 (3) of the said Act, ie prohibiting disturbance of possession when it (the Court) makes order under section 68 (3) of the said Act, restoring to possession a person who had been in possession previously but had been forcibly dispossessed within a period of two months immediately before the date on which the information was filed by the Police in Court pursuant to section 66 of the Primary Courts' Procedure Act. To reproduce the relevant section 68 (3) of the said Act: "Where at an inquiry into a dispute relating to the possession of any land or any part of a land the Judge of the Primary Court is satisfied that any person who had been in possession of the land or part has been forcibly dispossessed within a period of two months immediately before the date on which the information was filed under section 66 he may make a determination to that effect and make an order directing that the party dispossessed be restored to possession and prohibiting all disturbance of such possession otherwise than under the authority of an order or decree of a competent Court".

Thus, it is to be observed that in the two situations described above the Primary Courts' Procedure Act, expressly and in so many words had conferred on the Primary Court the power to restore to possession of a piece of land the person who is entitled to possess pursuant to a determination by the Court arrived at after inquiry in that regard.

The Primary Court is also empowered under section 69 (2) of the relevant Act, to make an order, ie prohibiting disturbance or interference with the exercise of the right of any person who is entitled to exercise that right when the dispute relates to any right other than the right to possession of land. For example, when the Primary Court makes a determination that a person is entitled to the exercise of the right of a servitude of a roadway - the Primary Court will make an order prohibiting interference with the exercise of that right which order will cease to have any binding effect only if a decree of a competent Court is entered in respect of the right as against that person, ie the person in whose favour the Primary Court had earlier made the determination.

But, when the Primary Court makes an order or determination under section 69 of the Act, as to any right to land other than the right to possession of land - the Act, nowhere had stated in express terms as in the case of two situations described above, ie where right to possession of land was in dispute, that the person who, after inquiry, is held by the Court to be entitled to exercise that right (other than the right to possession of land) shall be restored to the possession or exercise of that right. According to the definition of "dispute affecting land", as explained in section 75 of the Primary Courts' Procedure Act, the 'dispute as to any right other than the right to possession of land" refers to or means or embraces all such "disputes as to the right to cultivate any land or part thereof or as to right to the crops or produce thereof or any right in the nature of a servitude affecting land." Then the question arises: when the dispute affecting land relates to any right (enumerated above) other than the right to possession of land - is the Primary Court endowed with the power to make an order restoring that right to the person entitled to the exercise thereof, ie of that right, thereby facilitating the exercise of that right by that person unless and until that person is deprived of that right by an order or decree of a competent Court? The answer must necessarily be in the affirmative. Sometimes, the legislature either through forgetfulness or through erratic or bad drafting or because it is so obvious, (because one need not labour the obvious) fails to expressly incorporate into the section, terms or provisions which, had the legislature adverted to the situation, it would certainly have inserted to give such clarity or rather efficacy to the section, so to speak, that the legislature must have intended, at all events, that it, ie the provision of law, should have. It cannot for a moment be said that implying such a power defeats the intention of the relevant legislative provision; rather by implying such a power the Court carries into effect or effectuates the clear intention of the sections 69 (1) and 69 (2) which two subsections, respectively reads thus.

69 (1): "Where the dispute relates to any right to any land or any part of a land other than the right to possession of such land or part thereof, the Judge of the Primary Court shall determine as to who is entitled to the right which is the subject of the dispute and make an order under subsection (2)" which subsection is as follows: 'An order under this subsection may declare that any person specified therein shall be entitled to any such right in or respecting the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of an order or decree of a competent Court and prohibit all disturbance or interference with the exercise of 'such right . . . other than under the authority of an order or decree as aforesaid."

The intention of the above legislative provision, ie sections 69 (1) and (2) of the Primary Courts' Procedure Act, is all too clear : it is to ensure that the relevant right in question is exercised by the person who, the Primary Court determines, is entitled to the right and by nobody else.

The above subsections, 69 (1) and (2), require the Primary Court after inquiry to -

(i) determine as to who is entitled to the right.

(ii) make an order that the person specified therein shall be entitled to such right until such person is deprived of that right by virtue of an order or decree of a competent Court.

(iii) prohibit all interference with or disturbance of that right other than under the authority of an order or decree of a competent Court.

One cannot reasonably assume that section 69 of the Primary Courts' Procedure Act, required the Court to take all such steps as are enunciated or itemised above but stop short of restoring the right to the person who is, according to the determination (of the Primary Court), entitled to that right so that he may exercise that right without any hindrance. It is worth observing that the section 69 of the Act, requires the Primary Court not only to specify in the order the person who is entitled to such right which means as explained above, any right enumerated or contemplated in section 75 of the Act (other than the right to possession of land) but also make further order prohibiting interference with and disturbance of that right. The power conferred on the Primary Court under section 69 (2) of the Act to prohibit disturbance of the exercise of the rights, I take it, necessarily carries with it the power, if not expressly, at least, by necessary implication, to restore the right to that person who is found or determined by the Primary Court to be entitled to that right if, in fact, that person who is held to be entitled to that right had been deprived of it. The Court cannot and in, fact, need not prohibit disturbance of possession or exercise of a right by a person as required by section 69 (2) of the Primary Courts' Procedure Act, if that person is not, in fact, in possession or restored to possession or rather the enjoyment of the same, ie of that right - so that he can exercise it. Prohibiting disturbance of the exercise of the right as required by section 69 (2) is called for or rendered necessary (as required by the said subsection) because of the restoration of the exercise of the right to the person held to be entitled thereto.

Thus, it is clear that sections 69 (1) and (2) of the Act, authorizes by implication (as explained above) the restoration of the right (other than the right to possession of land) to the person who is held to be entitled to such right just as much as restoration of the right to possession of land is expressly authorized, as explained above, by sections 68 (2) and 68 (4) respectively.

The counsel for the 6th respondent-appellant had referred us to Jamis v. Kannangara(1) which had held that no order of removal of a structure could be made under the said section 69 (2) and submitted on the authority thereof that the learned Primary Court Judge had no authority or power to order the demolition of the concrete post No. 3 as the Primary Court Judge had in fact seems to have done 15. 06. 1994. The said order itself is not all that clear and the whole of which order reads thus and amounts to this:

The so-called order dated 2. 2. 1994 (that being the denomination into which the said order appropriately would fall) is reproduced verbatim at page 01 hereof and nowhere is it contemplated there in the demolition of a wall or a parapet wall which the fiscal in pursuance of the order of 15. 6. 1994 had effected or caused, as stated in his (fiscal's) report, submitted to Court after carrying out the order (of 15. 6. 1994), the relevant excerpt of which report reads as follows:

The above excerpt reproduced from the fiscal's report states that not only the concrete post No. 3 but also a wall or structure or embankment2 feet high which was "connected to the concrete post No. 3 was also removed by the fiscal.

Be that as it may, the basic argument of the learned counsel for the 6th respondent-appellant was that Primary Court was destitute of any power to order the removal of any structure to facilitate the handing over of possession to the person held by Court to be entitled thereto.

A perusal of the order dated 2. 2. 1994 (which was carried out in terms of the order dated 15. 6. 1994) would show that although there is mention of the removal of a concrete post No. 3 - thereis no mention whatever about the removal of any kind of wall. In fact, the order of 2. 2. 1994 (which as explained above was implemented by the order made by the Primary Court on 15. 6. 1994) contemplates or makes mention not of a demolition of any wall but the erection of one, ie a wall. This confusion is attributable, perhaps, to the lack of care and neatness, on the part of the Primary Court Judge, in recording or committing his order into words or writing.

We are not bound by the decision referred to above, ie Jamis v. Kannangara 'and we choose not to follow it as the Court had not considered therein the doctrine of implied powers embodied in the maxim: "Quando Lex Aliquid Councedit Concediture Et Id Sine Quo Res Ipsa Esse Non Potest". Its full and true import was set out in the judgment Fenton v. Hampton (referred to in Bindra). To quote: "Whenever anything is authorized and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something not authorized in express terms be also done, then that something else will be supplied by necessary intendment ... " What the doctrine of implied power means is this : that where an Act, confers jurisdiction, it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution. CAN ONE RATIONALLY ASSUME THAT ALTHOUGH THE LEGISLATURE CLEARLY IMPOSED ON THE PRIMARY COURT, AS POINTED OUT ABOVE, THE DUTY UNDER SECTION 69 OF (I) DETERMINING WHO IS ENTITLED TO THE RIGHT OTHER THAN THE RIGHT TO POSSESSION OF THE LAND AND EVEN (II) MAKING AN ORDER SPECIFYING THE PERSON ENTITLED TO THAT RIGHT AND ALSO MAKING AN ORDER PROHIBITING ALL INTERFERENCE with OR DISTURBANCE OF THAT RIGHT - YET DENIED THE NECESSARY POWER TO COURT TO ACCOMPLISH THAT END OR TO PERFORM THAT DUTY IMPOSED BY THE LAW, BY CLEARING AWAY OR REMOVING SUCH OBSTRUCTIONS AS STOOD IN THE WAY OF THE ENJOYMENT OF THAT RIGHT BY THAT PERSON SPECIFIED IN THE ORDER (MADE BY THE PRIMARY COURT) AS THE PERSON WHO IS ENTITLED TO THE SAID RIGHT? (It has to be repeated that 69 (2) of the Primary Courts' Procedure Act, empowers the Primary Court to prohibit all interference with the exercise of the right to which the person is entitled to in terms of the declaration in terms of section 69 (1). When a statute grants a power or privilege it carries with it everything necessary for its exercise. I think, it is one of the first principles. For instance, by the grant of mines, the power to dig is impliedly conferred. A. R. v. Bristol Dock Co.(2); Wright v. Scott(3); Gas Co. v. City of Perth Corporation(4). Similarly, authority to build a bridge on a stranger's land carries with it the right of erecting on the land the temporary scaffolding which was essential to the execution of its work 1845 4 Q. B. 46(5). 1881-8 QBD-86(6). Implied powers are as much an integral part of any Act, as if those powers had been specifically expressed in the Act, itself.

If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance and essential to the proper and effectual performance of the duty or the work which the statute has in contemplation the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out. In Cookson v. Lee (7) the facts were: a private Act, vested certain lands in trustees for the purpose of enabling them to sell the lands for building purposes. But, the Act, contained no express provision or power to expend any portion of the purchase moneys in setting out the lands or in making the roads. In these circumstances, the Court held that, having regard to the object of the Act, - viz the sale of the property as building land - such power, to make roads and give facilities for putting the property in a state in which it is capable of being sold and immediately used for building purposes, ought to be implied. Lord Crawford who decided that case said: "We must take it (the Act) as we find it and one very natural question - whether if it does not in terms do so - it does not do it by implication/ whether we must not infer from the powers given, the legislature considered that they had given the power which is contended for, or whether by directing something to be done, they must not be considered by necessary implication to have empowered that to be done which was necessary to accomplish the ultimate object".

The ultimate object of the aforesaid sections 68 and 69 respectively, being to restore the person entitled to the right to the possession of land to the possession thereof or to restore the person entitled to the right (other than the right to possession of land) to the enjoyment thereof - the said provisions of the law must be rationally construed to authorize by necessary implication, if, in fact, they had not in terms done so, the removal of all obstructions, if the need arose, in the process of restoring the right to the person held (by the Primary Court) to be entitled to such right. (The right other than the right to possession of land, would include such rights as the right to cultivate any land, or as to the rights to crops of any land or right in the nature of a servitude) So, that it is plain that the case of Jamis v. Kannangara (supra) which held that no order of removal of a structure could be made under section 69 (2) of the Primary Courts' Procedure Act, had been decided, with respect, overlooking the doctrine of implied powers as explained above, as sections 68 (1) and 68 (3) expressly and section 69 (2) by necessary implication, if not expressly, enable, if not require, the Primary Court to restore the benefit of the right to possession to the person entitled to it by placing him in possession or in enjoyment of the right respectively - the legislature must be taken to have given the power to the Court by necessary implication to do everything which is indispensable for the purpose of carrying out the purpose in view - purpose being to restore to possession the person who according, to the determination made by the Primary Court in terms of section 68 (1) or 68 (3) is entitled to possess the land or enjoy or exercise the right (other than right to possess land) in terms of a determination made under section 69 (1) of the Primary Courts' Procedure Act.

That the implying of such a power, ie the power to sweep away all such obstructions and impediments in the way of restoration of the person to possession or enjoyment of the right, ie every kind of right coming within the definition of dispute affecting land as stated in the aforesaid section 75 is necessary, would be made dearer by demonstrating the absurdities and inconvenience of adopting a contrary view, viz that the power to remove obstructions had not been granted by implication. Suppose, the Primary Court holds under section 69 (1) that a particular party or several parties to the application before it had been exercising the right to a servitude of a foot-path – three feet in width, from time immemorial - that being the one and only way to gain access. The owner of the servant tenement over which the foot-path runs blocks it, in a matter of an hour or two, by constructing a wall across it. In such a case as the above, is the Primary Court bound to stop short of making an order to clear the path by directing the demolition or removal of the obstructing wall? One can visualise other similar situations, say, the only opening to a piece of land which is surrounded on all sides by a wall seven feet in height is an entrance which is six feet in width. A person (A) forcibly oust the man (B) who had been in possession thereof and erects a barbed-wire fence or bars the opening with a wall thus effectively preventing the person who had lawfully been in possession from entering even after the Primary Court had held (after inquiry) that "B".was entitled to possess and should be restored to possession. If the power to remove a structure which hinders the recovery of possession by the person who is declared entitled to the right is not implied - order of the Court declaring a man's right to possess or granting a declaration that he is entitled to any other right, eg a right of servitude will for certain be frustrated even if the obstruction is put up after the order or declaration by the Primary Court for if a structure or construction cannot be removed that had been put up before the Court makes an order - then the same rule will apply in the case of obstructions in the form of structures that have been erected even subsequent to the Court making of the order or declaration that a certain person is entitled to the right to possess a land or to the enjoyment or exercise of. a right (other than right to possession of land).

The learned High Court Judge in his order dated 11. 11. 1994 had distinguished James v. Kannangara (supra), viz Bannerjie v. Rahaman(8), being the Indian judgment which was followed in the decision of Jamis' case, on the footing that the structures in question in James' case and Bannerjie's case was a shed for human habitation and a stable respectively and what was ordered to be demolished or removed in this case by the Primary Court Judge was a concrete post. The learned High Court Judge's reasoning was that no construction could be removed or demolished if it was a house or a stable but that a concrete post could be ordered to be removed. But, the learned High Court Judge had signally failed to explain on what principle or rather on what principle of law he had drawn a distinction between a shed put up for human habitation and a stable on the one hand and a concrete post on the other because all those structures are things that are constructed and fall under the same genus of structures.

It is true that there is no specific provision in the Primary Courts' Procedure Act, expressly enabling the Court to order removal of obstructions in the way of restoration of the right to the person entitled thereto in terms of the determination made by the Court; nor is there a prohibition either, against the Court exercising such a power or making such an order as had been held in Narasingh v. Mangal Dubey(9). The Courts are not to act, on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the Code.

The order made by the High Court on 11. 11. 1994 is hereby set aside as also the orders made on 2. 2. 1994 and 15. 6. 1994 by the Primary Court. I direct that a fresh inquiry be held by the Primary Court.

HECTOR YAPA, J. - I agree.

Appeal allowed.

16.ALI V ABDEEN [CA]

Sri Lanka Law Reports- 2001 - Volume 1 , Page No - 413

COURT OF APPEAL

GUNAWARDENA, J.

CA 1329/90

MC WARAKAPOLA NO. 17641

Primary Courts' Procedure Act, No. 44 of 1979 - Sections 66(6) and 66(7) of the Primary Courts' Procedure Act - Jurisdiction to make Order - Precedent condition - Duty to encourage to facilitate dispute settlement.

Held :

(i) The Primary Court Judge was under a peremptory duty to encourage or make every effort to facilitate dispute settlement before assuming jurisdiction to hold an inquiry into the matter of possession and impose on the parties a settlement by means of Court order.

(ii) The making of an endeavor by the Court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under section 66(7) began to consider who had been in possession.

(iii) The fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

APPLICATION for revision from the Order of the Magistrate's Court of Warakapola.

Faiz Musthapha, P.C., with S.N. Senanayake for petitioner.

Aloy Ratnayake, P.C., with R.A.D. Kumarawickrema for 1st respondent.

May 25, 2001.

U. de Z. GUNAWARDENA, J.

This is an application to revise an order made on 21. 11. 1990, by the learned Primary Court Judge (Warakapola)under section 68(2) of the Primary Courts' Procedure Act, whereby he had held that the 1st respondent (A. M. M. Abdeen) had been in possession and so was entitled to continue to possess lot 9 of the land called Nugagahamulahena. The learned Primary Court Judge, although he had not said so in so many words, presumably intended to say that the 1st respondent-respondent had been in possession at the relevant date i.e. 25. 07. 1990 that being the date on which information had been filed by the police under section 66 of the Primary Courts' Procedure Act, No. 44 of 1979 (as amended), in regard to the dispute between 2nd respondent-petitioner (Ameer Ali Halaldeen Ali) and the 1st respondent-respondent with respect to the possession of the relevant lot. It is common-ground that the said lot .9 which is the subject-matter of this application had been left un-allotted by the final decree in the partition action No. 13256 D.C. Kegalle which appears to have been entered on 15. 05. 1979. The 2nd respondent-petitioner states that this lot was owned and possessed by Nisi Umma and Sattu Umma Husaima who on deed No. 251816. 06. 1986 (P3) transferred the same to Hassen. The said Hassen had transferred the same on deed No. 6257 dated 31. 12. 1989 to the 2nd respondent-petitioner.

In this case, the court is called upon to reach a decision on affidavits. The decision arrived at after accomplishing such a feat would be an example of a process of something akin to guessing.

The order dated 21. 11. 1990 made by the learned Primary Court Judge has to be vacated since he had made that order without complying with a precedent-condition, as explained in the sequel. And, as such he had no jurisdiction to make the order he did. Conditio praecedens adimpleri debet prius quam sequatur effectus. It means that the condition-precedent must be fulfilled before the effect can follow. To explain the matter further, it is pertinent to consider the effect, respectively, of the operation of sections 66(6) and 66(7) of the relevant Act, which, merits quotation, in this context, and are as follows: sec. 66(6) : on the date fixed for filing affidavits and documents . . . the court shall before fixing the case for inquiry make every effort to induce parties and persons interested (if any) to arrive at a settlement of the dispute . . ." sec. 66(7) : where the parties and persons interested (if any) do not arrive at a settlement, the court shall fix the case for inquiry . . ."

Thus, it is to be observed that the Primary Court Judge was under a peremptory duty to encourage or make every effort, so to say, to facilitate dispute settlement, before assuming jurisdiction to hold an inquiry into the matter of possession and impose on the parties a settlement by means of the court order. It was obligatory on the Primary Court as a condition-precedent to holding an inquiry, to have made a conscious endeavor to have composed or ironed out the differences between the parties-a duty which, in this instance, had been neglected. The making of an effort by the court was such a duty as should have been done or performed before the court could have validly embarked upon an inquiry in pursuance of or rather in compliance with sec. 66(7) set out above. That is a preliminary requirement which has to be fulfilled before the jurisdiction of the Primary Court exists to hold an inquiry under section 66(7). When Parliament has enacted that provided a certain situation exists, then a tribunal may have certain powers it is clear that the tribunal will not have those powers unless that situation exists. The making of an endeavor by the court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under sec. 66(7) began, that is, to consider who had been in possession. Since the Primary Court had acted without jurisdiction in proceeding to determine the question of possession, its decision is, in fact, of no force or avail in law. Accordingly the decision dated 21. 11. 1990 is hereby set aside. It is the making of an effort to induce parties and the fact that the effort was not attended with success that clothe the Primary Court with jurisdiction to initiate an inquiry with regard to the question as to who was in possession. The fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

For the sake of completeness, I must say that the fact, that the judgment in this case was due was brought to my notice only towards end of March 2001.

The order dated 21. 11. 1990 is set aside. The Primary Court is directed, if the parties so desire, to hold a fresh inquiry in compliance with the provisions of the Primary Courts' Procedure Act, No. 44 of 1979 (as amended).

Order of the Primary Court set aside.

17.DAYANANDA V THALWATTE [CA]

Sri Lanka Law Reports 2001 - Volume 2 , Page No - 73

COURT OF APPEAL.

JAYASINGHE, J. JAYAWICKREMA, J.

MC NUWARAELIYA : 9616/97

CA 912/97

2nd DECEMBER, 1999.

1st FEBRUARY, 2000.

24TH MAY, 2000.

Primary Court Procedure Act - S. 66 - Petitioner declared entitled to possession - Steps under State Lands Recovery of Possession Act, 7 of 1979 - Prerogative writs - Failure to sped - Declaration that Magistrate had no jurisdiction - Can an application for Writ be combined with an application for Revision - Constitution Articles 133 and 140.

The Petitioner instituted proceedings under S. 66 Primary Courts Procedure Act alleging that, the Superintendent of the Estate attempted to interfere with the possession of the petitioner. The Primary Court made order that he was entitled to possession of the said land. Thereafter the Superintendent of the Estate instituted proceedings in the Magistrates Court in terms of Act 7 of 1979.

The Petitioner sought a declaration that the Magistrate's Court had no jurisdiction to hear and determine the matter and sought by way of certiorari and quo warranto to quash the decision of the 1st Respondent to evict the Petitioner and also to declare null and void the steps taken by the 1st Respondent. The application made to the High Court by the Petitioner was withdrawn, and an Application was made to the Court of Appeal to quash the decision by the 1st Respondent to institute proceedings in terms of Act 7 of 1979 and to declare that the quit Notice is of no avail or force, and for an order declaring that the Magistrates Court of Nuwara Eliya has no jurisdiction to hear the case.

Held :

(i) Application for Revision in terms of Article 138 and an application for writ of Quo Warranto, Certiorari and Prohibition under Article 140 cannot be combined as they are two distinct remedies.

(ii) Even though the Petitioner has set out in the caption that 'In the matter of an Application....... for Writs of Quo warranto and Prohibition' there is no supporting averment specifying the writ and there is no prayer as regards the writ that is being prayed for. The failure to specify the writ renders the Application bad in law.

(iii) The institution of proceedings in the Magistrates Court in terms of quit notice is not a determination affecting legal rights "warranting the issuance of a Writ of Certiorari.

It was open for the Petitioner to seek to quash the quit notice by way of certiorari when the determination was made by the 1st Respondent, or to move in Revision at the conclusion of the Magistrates findings.

APPLICATION for Revision and Writs of Quo Warranto, Certiorari and Prohibition under Article 140 of the Constitution.

Cases referred to :

1. K. M. Karunarathne vs Ratnayake - 1986 1 CALR 478

2. Fernando vs University of Ceylon - 58 NLR 285

3. Wijesinghe vs Tharmaratnam - Vol. IV - Sri Kantha Law Reports 47

I. S. de Silva with Siddhi Daluwatte for Petitioner.

Faiz Musthapha PC, with Dr. Jayampathy Wickremaratne for 1st Respondent.

Ms Murdu Fernando SSC for 2nd Respondent.

Cur. adv. vult.

September 29, 2000.

JAYASINGHE, J.

The Petitioner instituted proceedings in the Primary Court of Nuwara-Eliya under Section 66 of the Primary Courts Procedure Act; and alleged that the Superintendent of the Court Lodge Estate attempted to interfere with the possession of the Petitioner of the land morefully described in the schedule to this application, handed over to him for cultivation on a profit sharing basis in June 1994. The learned Primary Court Judge made order that the Petitioner was entitled to possession of the said land and restrained the Udapussellawa Plantations Limited, the lessee its agents from interfering with the possession of the Petitioner. The Petitioner alleged that the 1st respondent wrongfully and unlawfully with a view of negating the order made by the learned Primary Court Judge instituted proceedings in the Magistrate's Court of Nuwara Eliya seeking to eject the Petitioner in terms of the State Lands Recovery of Possession Act No. 7 of 1979 as amended. The petitioner thereafter instituted proceedings in the High Court of Kandy seeking a declaration that the Magistrate's Court had no jurisdiction to hear and determine the said action and sought by way of Writ of Certiorari and Quo Warranto an order to quash the decision of the 1st Respondent to evict the Petitioner and also to declare null and void the steps hither to taken by the 1st Respondent. The 1st Respondent filed objections to the said application: and contended that the High Court of Kandy did not have jurisdiction to hear and determine the said application: that the subject matter of the said application was outside the Provincial Council list in terms of Article 154(P) (4) (b) of the Constitution. Thereafter the Petitioner moved to with-draw the said application before the High Court of Kandy which was allowed. The present application is to quash the decision of the 1st Respondent to institute proceedings in terms of the State Lands Recovery of Possession Act No. 7 of 1979 as amended to eject the Petitioner and, to declare that the quit notice of 08.04.1997 is of no avail or force in law; for an order declaring that the Magistrate Court of Nuwara-Eliya has no jurisdiction to hear and determine this action; for an order staying proceedings pending before the Magistrate's Court of Nuwara-Eliya until the final determination of this application.

When this matter came up for argument on 02.12.1999 Mr. Musthapha, PC. raised a number of preliminary objections regarding the maintainability of this application. He contended that an application for revision cannot be combined with an application for writ as they are two distinct remedies available to a party aggrieved.

(ii). that the Petitioner has failed to identify the writ he has sought from this Court.

(iii). that the prayer sought

a). to quash the decision of the 1st Respondent to institute proceedings in terms of State Lands Recovery of Possession Act and

b). to declare that the quit notice dated 08.04.1997 . . . is of no force or avail are misconceived and unknown to the law and therefore neither relief could be granted.

Mr. I. S. de Silva for the Petitioner submitted that the contention of the 1st Respondent that to quash the decision to institute proceedings, one has to wait till the proceedings are instituted and that as in this instance only a decision to institute proceedings has been made and therefore writ does not lie is an argument that is not maintainable for the reason that an action has already been instituted in the Magistrate's Court of Nuwara-Eliya to eject the Petitioner and that the said action is pending. He submitted that it was during the pendency of this action that these proceedings were instituted to quash the decision of the 1st Respondent and to declare the said quit notice of no avail or force in law. He submitted that a party need not wait until legal proceedings are instituted to preserve his lawful rights. In K. M. Karunaratne Vs. Ratnayake(1) the Court of Appeal having held that there was a contract of tenancy, proceeded by way of writ of certiorari and quashed the quit notice on the ground that the said quit notice was not valid in law. In this case the Assistant General Manager of National Savings Bank a Competent Authority for the purpose of Government Quarters Recovery of Possession Act No. 7 of 1969 as amended gave notice to the Petitioner to vacate certain premises occupied by him. The Petitioner in the said case challenged the quit notice on the ground that there was a tenancy agreement between the parties which was not covered by the said Act No. 7 of 1969. He submitted that in the present case the Respondent not only issued quit notice but also instituted action and the Petitioner has sought both to quash the proceedings that has already been instituted in the Magistrate's Court of Nuwara-Eliya and that can only be done byway of a writ of certiorari; that the Petitioner has also sought a declaration that the Magistrate's Court of Nuwara-Eliya has no jurisdiction. Mr. de Silva then submitted that even though it was contended that in the prayer of the Petition the word certiorari had not been specified and thus there is no basis for application of writ, an examination of the Petition would show both from the caption and the body of the Petition that the Petitioner has sought by way of writs of certiorari and quo warranto to quash the decision of the 1st Respondent to eject the Petitioner and to avoid all consequential steps taken by the 1st Respondent. Mr. de Silva while conceding that the words writ of certiorari does not appear in the petition submitted that there is clear proof of the fact that the Petitioner has sought to invoke the writ jurisdiction particularly byway of certiorari. He also submitted that Courts of England have from time to time held that an applicant might seek any of the five remedies of mandamus, certiorari, prohibition, declaration or injunction and that in Fernando Vs. University of Ceylon(2) Supreme Court has held that where a remedy by way of certiorari may not be available, Courts may intervene by way of a declaration or injunction notwithstanding the absence of a right of appeal.

Mr. Musthapha, PC. submitted in support of his argument that Revision and Writ Jurisdiction cannot be combined in that Writ Jurisdiction is original jurisdiction while Revisionary Jurisdiction is review jurisdiction. In Wijesinghe Vs. Tharmaratnam(3) the caption was as follows:

"In the matter of an application for leave to appeal under Section 156(2) of the Civil Procedure Code and/or for the exercise of the revisionary powers under Section 753 of the said Code." Paragraph 18 of the petition of the above case stated that "in the circumstances aforementioned it is respectfully urged that Your Honours Court be pleased to grant relief to the Defendant-Petitioner by exercising the revisionary powers vested in Your Honours Court in the event that Your Honours Court is pleased to maintain that the Defendant-Petitioner is not able to maintain an application for leave to appeal in this matter." A preliminary objection was raised in appeal that an application for leave to appeal cannot be joined together with an application for revision. It was also urged that stamps furnished have been only for the leave to appeal application and none for the application for revision. The Court did not proceed to make a determination on the objections taken namely, as to misjoinder and the consequent under stamping. Jameel, J. expressed the view that "these two objections are not devoid of merit but they could await a fuller argument in an appropriate case. Mr. Musthapha, P. C. relying on the above case submitted that the two applications cannot be joined for the reason that. different criteria applies for stamping. Mr. Musthapha then submitted that since Mr. De Silva conceded that writ jurisdiction cannot be combined with revisionary jurisdiction the present application could be dismissed on this ground alone.

Mr. Musthapha then submitted that the Petitioner has failed to specify the writ he was seeking even though in the caption he has referred to quo warranto, certiorari and prohibition, there is no reference made to any of these writs either in the body of the application or in the prayer. He submitted that in England due to the confusion resulting from the need to identify a specific writ an important reform was made in 1997 with the introduction of a new form of procedure known as The Application for Judicial Review. In the Administrative Justice Report of the Committee of the Justice - all Souls Review of Administrative Law in the UK laid down the procedural innovation vide order 53 of the Rules of the Supreme Court

"An important reform was made in 1977 with the introduction of the new form of procedure known as 'the application for judicial review'. The change had been proposed in 1976 by the Law Commission of England and Wales in Remedies in Administrative Law (Law Com. No. 73 Cmnd. 6407). Earlier Commonwealth precedents were Ontario's Judicial Review Procedure Act, 1971 (now Revised Statutes of Ontario 1980 c. 224), and New Zealand's Judicature Amendment Act, 1972 as subsequently amended. The Australian Parliament in 1977 enacted the Administrative Decisions (Judicial Review) Act, though not proclaimed until 1 October 1980."

The learned President's Counsel referred to A. A. De Smith in Judicial Review of Administrative Action 4th Edition at Page 568 "On an application for judicial review made under order 53 of the Supreme Court Rules it is now possible for a Court to award in a single proceeding any one or more of the prerogative orders of certiorari, prohibition or mandamus, declaration or an injunction. This was a reform enacted in England by an amendment to the rules by which a specific remedy known as an Application for Judicial Review stated above was introduced to avoid having to specify a writ. However in the absence of such a procedure in Sri Lanka the omission to specify the writ is a fatal irregularity and Mr. Musthapha submits that a bald prayer to quash the decision of the 1st Respondent to institute proceedings in terms of State Lands Recovery of Possession Act is misconceived and cannot be granted. Similarly the prayer to declare the quit notice dated 08.04.1997 as of no force or avail is also misconceived as a fatal error for the same reason.

Mr. Musthapha also submitted that in order to obtain certiorari there must be a determination affecting legal rights. The institution of proceedings in the Magistrate's Court in terms of a quit notice is not a determination affecting legal rights.

I have very carefully considered the submissions of the learned President's Counsel and Mr. I. S. de Silva. I hold that the application for revision in terms of Article 138 and on application for Writs of Quo Warranto, Certiorari and Prohibition under Article 140 of the Constitutions cannot be combined as they are two distinct remedies available to an aggrieved party and for that reason the Petition is fatally flawed. The Petitioner has failed to aver the basis for his entitlement why he is invoking the writ jurisdiction of this Court: Nor has the Petitioner averred in his Petition that he is seeking to invoke the Revisionary Jurisdiction of this Court. The Petitioner in paragraph 13 of his Petition has only stated that the " . . . aforesaid matters constitute exceptional circumstances and grounds warranting the invocation of the jurisdiction of Your Lordships Court." This averment is vague indistinct, ambigious and without a legal basis and therefore cannot be maintained. Mr. I. S. de Silva did concede that revisionary jurisdiction cannot be combined with writ jurisdiction.

An aggrieved person who is seeking to set aside an unfavourable decision made against him by a public authority could apply for a prerogative writ of certiorari and if the application is to compel an authority to perform a duty he would ask for a writ of mandamus and similarly if an authority is to be prevented from exceeding its jurisdiction the remedy of prohibition was available. Therefore it is necessary for the Petitioner to specify the writ he is seeking supported by specific averments why such relief is sought. Even though the Petitioner has set out in the caption that "In the matter of an application . . . for writ of quo warranto and prohibition" there is no supporting averment specifying the writ and there is no prayer as regards the writ that is being prayed for. The failure to specify the writ therefore renders the application bad in law.

The learned President's Counsel's objection that the institution of proceedings in the Magistrate's Court in terms of the quit notice is not "a determination affecting legal rights"

warranting the issuance of a writ or certiorari is well founded. It was open for the Petitioner to seek to quash the quit notice by way of ceriorari when the determination was made by the 1st Respondent or to move in Revision at the conclusion of the Magistrate's finding.

The preliminary objections of the learned President's Counsel is sustained. I am unable to grant the relief prayed for by the Petition.

Application is dismissed with costs fixed at Rs. 5000/-.

JAYAWICKRAMA, J. - I agree.

Application dismissed

18.KULAPALA AND V SOMAWATHIE [CA]

Sri Lanka Law Reports 2001 - Volume 3 , Page No - 317

COURT OF APPEAL

WIGNESWARAN, J.

TILAKAWARDENA, J.

CA. 123/96

D.C. RATNAPURA 10162/L

JANUARY 21, 2000

Possesory action - Prescription Ordinance S.4 - Institution of Action - time period - Dispossession - Primary Courts procedure Act - S.66

Held:

(i) It is incumbent upon the Plaintiff Appellants to have instituted action within one year of the alleged dispossession.

(ii) The action, by the institution of proceedings envisaged in S.4 of the Prescription Ordinance was one where the Plaintiff in such action shall be entitled to a decree against the Defendant for the restoration of such possession without proof of title.

(iii) Dispossession is not an essential ingredient for actions instituted under the Primary Courts Procedure Act.

APPEAL from the Judgment of the District Court of Ratnapura.

Cases referred to :

1. Perera v. Wijesooriya - 59 NLR 529

N. Malalasekera, for Plaintiff Appellant.

T. A. J. Udawatte for Defendant Respondent.

Cur. adv. vult.

March 14. 2000.

SHIRANEE TILAKAWARDANE, J.

The Plaintiff Appellants by Plaint dated 14. 12. 1990 filed this action for a declaration of title to the land described in the second schedule to the said plaint with consequential relief.

The Defendant Respondent by her answer dated 15. 09. 1992 denied the averments in the Plaint and prayed for dismissal of the Plaintiff Appellant's action with costs.

Thereafter the Plaintiff Appellants filed amended Plaint dated 07. 07. 1993 and prayed for a possessory decree and eviction of the Defendant Respondent from the land in dispute and other reliefs.

By amended Answer dated 21. 01. 1994 the Defendant Respondent, inter alia, took up the position that the Plaintiff Appellants could not convert the original action for declaration of title to one of possessory decree. In any event it was pointed out that the action for possessory decree was prescribed in law since the action had been filed more than one year after the alleged dispossession in 1989.

When the case came up for trial on 12. 10. 1995 three preliminary issues were raised on behalf of the Defendant Respondent. They were:

(a) In accordance with the provisions of the Prescription Ordinance, should a possessory action be filed within a year of the date of dispossession?

(b) According to the averments contained in paragraph 9 of the Amended Plaint, was this action instituted after such period of one year?

The District Judge, Ratnapura by his Order dated 08. 02. 1996 held in favour of the Defendant Respondent on these preliminary issues and dismissed the Plaintiffs action with costs. This is an Appeal from the said Order.

The question that has arisen in Appeal is whether there is mandatory statutory requirement that proceedings should be instituted within one year of the date of dispossession. Therelevant Section 4 of the Prescription Ordinance reads as follows:

"It shall be lawful for any person who shall have been dispossessed of any immovable property otherwise than by process of law, to institute proceedings against the person dispossessing him at any time within one year of such dispossession. And on proof of dispossession within one year before action is brought, the Plaintiff in such action shall be entitled to a decree against the Defendant for the restoration, of such possession without proof of title.

Provided that nothing herein contained shall be held to affect the other requirements of the law as respects Possessory cases."

Counsel for the Plaintiff Appellants contended that there was no need for a possessory action to be instituted within one year of dispossession. He relied on the Judgment of Basnayake C. J. in Perera v. Wijesuriya(1). It appears that the learned Counsel has misunderstood the ratio decidendi of that case. The matter resolved in that case was whether it was necessary for a party to have had possession of the land for a period of one year and a day at least to entitle such party to maintain a Possessory action. This case did not deal with the issue of the time limit after dispossession within which a Possessory action should be instituted. Furthermore, the case also held that the Plaintiff could maintain an action under section 4 of the Prescription Ordinance, as long as the ousting was within one year. (Vide Page 536).

In the circumstances, we find that it was incumbent upon the Plaintiff Appellants in this case to have instituted this action within one year of the alleged dispossession on or about 20. 07. 1989. It is to be noted that Police complaint in this regard was made not by the Plaintiff Appellants but by the Defendant Respondent. We therefore hold that the action had been filed out of time and was prescribed in terms of the Prescription Ordinance adverted to above.

The learned Counsel submitted further that since action had been instituted within one year in the Primary Court of Ratnapura, there had been substantive compliance with the provisions of the Prescription Ordinance.

However, the action instituted in terms of section 66 of the Primary Courts' Act was not by the Plaintiff Appellants. In fact, while the Defendant Respondent filed the first complaint in this case, the institution of proceedings was a result of the report to Court lodged by the Officer in Charge of the Kiriella Police Station. Furthermore this section dealt with any dispute that may have arisen pertaining to land which led to a breach of the peace. Dispossession Is not an essential ingredient for actions instituted under the Primary Courts' Act. The purpose of the action so filed was to obtain a temporary Order to maintain status quo ante, until a competent Court of civil jurisdiction could make a final Order on the dispute, based on the merits of the case.

The action by the institution of proceedings envisaged in Section 4 of the Prescription Ordinance was one where "the Plaintiff in such action shall be entitled to a decree against the Defendant for the restoration of such possession without proof of title." In other words "the action" referred in Section 4 of the aforesaid Ordinance was a Possessory action filed in the District Court and not an information fled in the Primary Court in terms of Section 66 of the Primary Courts' Act.

We therefore find the contention of the Counsel for the Plaintiff Appellants untenable in law.

We accordingly dismiss the Appeal. We Order taxed costs payable by the Plaintiff Appellants to the Defendant Respondent.

WIGNESWARAN J. - I agree.

Appeal dismissed.

19.GANDHI V MUBARAK [CA]

Sri Lanka Law Reports 2003 - Volume 3 , Page No - 31

COURT OF APPEAL

AMARATUNGA, J.

BALAPATABENDI, J.

CA(PHC) 8/2000

H.C. RATNAPURA HCRA 134/96

P.C. RATNAPURA 16246

AUGUST 23, 2001

AUGUST 20, 2002

Primary Courts Procedure Act 44 of 1979- S. 66(1) (a) - Can a Primary Court Judge order the demolition of a wall erected across the doorway? - Constitution Article 154P (3) (b)

Held:

1. The only way to restore possession of the store room to the respondent was by demolishing the wall which was forcibly erected which prevented his effective possession of the store room.

2. The Primary Court Judge was correct and justified in making an order to demolish the wall.

APPLICATION for Revision of the Order of the High Court Ratnapura.

Case referred to :

1. James v Kannangara - 1989 2 Sri LR 350 (Not followed)

2. Tudor v Anulawathie - 1999 3 SLR 235 (Followed)

Manohara de Silva with W.D. Weeraratne for petitioner.

Ms. Chamantha Weerakoon - Unamboowa for respodnent.

cur. adv. vult

September 30, 2002

GAMIN1 AMARATUNGA, J.

This is an application to revise the order of the learned High Court Judge of Ratnapura made in the exercise of the revisionary jurisdiction vested in the High Court under Article 154 P(3)(b) of the Constitution. The subject matter of the revision application filed by the present petitioner's mother (who is now dead) was an order made by the learned Primary Court Judge of Ratnapura in a proceeding commenced in terms of section 66(1 )(a) of the Primary Courts Procedure Act No 44 of 1979 regarding a land dispute that existed between the petitioner, (and his mother) on one side and the 3rd party respondent-respondent on the other side.

The dispute that was referred to the Primary Court was that the present petitioner and his mother had dispossessed the 3rd party respondent-respondent of the store room used by him by forcibly erecting a wall at the place which he had used to enter the store room from his shop premises. On being noticed the parties appeared in the Primary Court, filed their affidavits and led oral evidence in support of their respective claims. Thereafter the learned Primary Court Judge inspected the premises in question. After considering the material placed before him and his own observations recorded at the time he inspected the premises the learned Primary Court Judge held that the 1st and 2nd party respondents have dispossessed the 3rd party respondent-respondent by erecting a wall across the doorway between his shop premises and the store room.

Therefore, he made order placing the 3rd party respondent-respondent in possession of the store room and ordered to demolish the newly built wall closing the door way.

The present respondent's mother who was the 1st party respondent before the Primary Court made a revision application to the High Court of Ratnapura against the decision of the learned Primary Court Judge. The learned High Court Judge having considered the revision application dismissed it. The present petitioner who was the 2nd party respondent before the Primary Court was not a party to the revision application filed in the High Court. His mother who had made the revision application died one week before the High Court dismissed the revision application. No appeal was filed against the order of the learned High Court Judge perhaps for the reason that the present petitioner was not a party to the proceedings before the High Court. The present revision application had been filed five months after the date of the order of the High Court.

The order of the Primary Court was executed on 10.2.2000 and the wall across the doorway was demolished and the store room was handed over to the respondent. This application had been filed on 11.2.2000, the day after the execution of the order of the Primary Court.

The petitioner in his petition has stated that there are exceptional circumstances warranting the exercise of the revisionary jurisdiction of this Court but has not set out what those exceptional circumstances are. The petitioner has stated that the learned High Court Judge has failed to identify the mistakes and errors of the order of the Primary Court but has not explained what those mistakes and errors are. The petitioner has prayed that the order of the High Court be set aside. But as pointed out in the written submissions of the respondent the petitioner has not prayed that the order of the Primary Court be set aside. Instead the petitioner has prayed that the order of the Primary Court be suspended. As pointed out by the respondent's written submissions such an order cannot be granted by way of substantive relief. The wall in question has already been demolished. Now there is case No 14201/L pending in the District Court of Ratnapura in respect of the same dispute. It appears that the only point taken against the order of the learned Primary Court Judge is that he did not have jurisdiction to order the demolition of the wall erected across the doorway. The petitioner has relied on the authority of the case of James v Kannangara (1), a decision of this Court. But as Gunawardana J has observed in Tudorv Anulawathie (2) there is no point in making an order unless the court has the power to enforce it.

The only way to restore possession of the store room to the respondent was by demolishing the wall which prevented his effective possession of the storeroom and in these circumstances the learned Primary Court Judge was quite correct and justified in making an order to demolish the wall. The petitioner has not made out a case for the intervention of this Court by way of revision and accordingly the revision application is dismissed with costs fixed at Rs. 5000/-.

BALAPATABENDI J. - I agree

Application dismissed

20.KARUNANAYAKE V SANGAKKARA [CA]

Sri Lanka Law Reports 2005 - Volume 2 , Page No - 403

COURT OF APPEAL

SOMAWANSAJ (P/CA) WIMALACHANDRA. J

CA 475/2002 CA (PHC) 213/2001 H. C. KANDY 21/2001

PRIMARY COURT, KANDY 73143

MAY 9,2005.

Primary Courts Procedure Act. S66(2), S68, S69, A71, S72, S78-Administration of Justice Law 44 of 1973 - S62-Can a Primary Court Judge summon witness of his choice ex mero motu ? - Closure of case-Can the Primary Court Judge reopen case and summon a witness ?

The Primary Court Judge after having fixed the matter for order, without delivering his order issued summons on the Grarna Sevaka and another witness and re-fixed the matter for inquiry. The respondent- petitioners moved the High Court in Revision and the said application was rejected. On appeal to the Court of Appeal -

(1) The objective of the procedure laid down in the Primary Courts procedure Act is to do away with long drawn out inquiries and determinations to be founded on the information filed affidavits, documents furnished by parties.

(2) There is no provision for the Judge to call for oral evidence of witnesses of his own choice. He cannot be permitted to go on a voyage of discovery on his own to arrive at a decision when the parties have placed before him the material on which they rely and it is on this material that, he is expected to arrive at a determination.

Per Somawansa. J (PICA)

"If this procedure is to be permitted then S72 would become redundant. It will also be opening the flood gates for long drawn out protracted inquiries when the primary object was for the speedy disposal of the dispute that has arisen".

Appeal from the Provincial High Court of Kandy.

Cases referred to :

1. Ramalingarn vs. Thangarah 1982 2 Sri LR 693.

2. Kanagasabai vs. Mailvanaganarn 78 NLH 280 S. N. Wjithsingh for petitioners.

L. C. Seneviratne, I? C., with A. Dharmaratne for Is' and Znd respondents.

July 1,2005

Andrew Somawasa, J. (PICA)

The petitioners-respondents initiated proceedings in the Primary Court Kandy seeking a declaration that they are entitled to the lawful possession of lot 01 in plan No. 2019 and an interim order to evict the respondents petitioners from the aforesaid land and premises and to place the petitioners respondents in possession thereon. The learned Primary Court Judge granted the interim order as prayed for by the petitioners-respondents. The respondents-petitioners objected to the said interim order but the learned Primary Court Judge having considered the objections refused to vacate the interim order. Thereafter three others namely the two Casichettys' and one Heen Kumari Sangakkara Ranasinghe were also added as intervenient-respondents to the proceedings and they too filed their objections to the petitioner-respondent's application. After the filing of objections and counter objections by way of affidavit by all parties along with their documents the learned Primary Court Judge fixed the matter for order on 07.02.2000 on which day the Primary Court Judge without delivering his order issued summons on the Grama Seva Niladhari and Y. L. Sumanaratne and re-fixed the matter for inquiry. Against the aforesaid order dated 07.1 2.2000 the two Casiechettys' filed a revision application in the High Court of Kandy and obtained an interim order in the first instance restraining the Primary Court from proceeding further. However, after inquiry the learned High Court Judge by his judgment dated 30.08.2001 dismissed the said revision application. From the aforesaid judgment of the High Court Judge the aforesaid two Casiechettys' appealed to the Court of Appeal and the said appeal is numbered CA(PHC) 213/2001.

In the meantime the original respondent-petitioner filed an application for acceleration of the said appeal and this Court having considered the point in issue in appeal, made order that the application for acceleration of the appeal as well as the main appeal be heard together and all parties agreed to tender written submissions by 13.12.2000 and the judgment thereon was to be delivered by Amaratunga, J. on 16.01.2003 but unfortunately the judgement was never delivered. When this matter came up before the present bench, parties called upon Court to deliver judgment on the written submissions already tendered by them.

The substantial question that this Court is called upon to decide is the correctness and the validity of the decision of the learned Primary Court Judge to summon the Grama Seva Niladhari and Y. L. Sumanaratne after fixing a date for the delivery of the order in this case.

It is contended by counsel for the petitioners-respondents that as all parties to the instant action claim to have been ousted from possession by other parties the desire to have independent as well as important evidence on the question of possession prior to dispossession has led to this decision to call the two witnesses. He further submits that though Part VII of the Primary Court Act has no specific provision giving the Judge the right to call witnesses, the casus ommisu Section 78 of the Primary Court Procedure Act permits this to be done having referred to the provisions of the Civil Procedure Code with relevant adaptation. Therefore he submits that the decision of the Court to call the evidence of the Grama Sevaka and Y. L. Sumanaratne is permissible and valid.

The question whether the Primary Court Judge has the jurisdiction to summon witnesses of his choice exmero motu without stating the reasons for it when the evidence of such witnesses is already on record with the other reliable evidence to test its credibility and specially after he had decided to give his order without calling for oral evidence and parties having agreed to it has been aptly dealt by Sharvananda, J. as he then was in his judgment in Rarnalingarn vs.Thangarajah(1).Before I come to that decision it would be useful to consider the relevant section that is applicable to the issue at hand Section 72 of the Primary Courts Procedure Act.

"A determination and order under this Part shall be made after examination and consideration of-

(a) the information field and the affidavits and documents furnished ;

(b) such other evidence on any matter arising on the affidavits or documents furnished as the Court may permit to be led on that matter ;

The objective of the procedure laid down in the Primary Court Procedure Act is to do away with long drawn out inquiries and determination to be founded on the information filed, affidavits and documents furnished by the parties. With reference to the aforesaid Section 72 of the Primary Courts Procedure Act, Sharvananda, J as he then was in Ramalingam vs. Thangarajah (supra) at 701 observed :

"The determination should, in the main, be founded on "the information filed and the affidavits and documents furnished by the parties". Adducing evidence by way of aff idavits and documents is the rule and oral testimony is an exception to be permitted only at the discretion of the Judge. That discretion should be exercised judicially, only in a fit case and not as a matter or course and not be surrendered to parties or their counsel. Under this section the parties are not entitled as of right to lead oral evidence."

It was held in that case :

"That where the information filed and affidavits furnished under section 66 are sufficient to make a determination under Section 68 further inquiry embarked on by the Judge was not warranted by the mandatory provisions of Section 72 and are in excess of his special jurisdiction".

Counsel for the petitioners-respondents accept the position that Part VII of the Primary Courts Procedure Act has no specific provisions which give the Judge the right to call witnesses. However, he submits as aforesaid that the casus ommisus Section 78 would provide the procedure for such an eventuality to have recourse to the provisions in the Civil Procedure Code. I am unable to agree with this proposition for the simple reason that the inquiry being held in terms of Part VII of the Primary Courts Procedure Act should not be made a protracted trial as in a civil court. As Section 72 indicates, oral evidence is frowned upon and only permitted on matters arising on the affidavit or documents furnished as the Court may permit to be led on that matter. Clearly there is no provision for the Judge to call for oral evidence of witnesses of his own choice. He cannot be permitted to go on a voyage of discovery on his own to arrive at a decision when the parties have placed before him the material on which they rely and it is on this material that he is expected to arrive at a determination. The learned Primary Court Judge as well as the High Court Judge has clearly misunderstood the primary object of the Part VII of the Primary Courts Procedure Act. In this respect, I would refer to the observation made by Sharvananda, J as he then was in Ramalingam vs. Thangarajah (supra) at 299 :

"The procedure of an inquiry under Part VII of the Act is suigeneris.The procedure to be adopted and the manner in which the proceedings are to be conducted are clearly set out in Sections 66,71 and 72 of the Act. Section 66 (2) mandates that the special jurisdiction to inqure into disputes regarding which information had been filed under Section 66(1) should be exercised in the manner provided for in Part VII. The proceedings are of a summary nature and it is essential that they should be disposed of expeditiously. The importance of a speedy completion of the inquiry which culminates in the order under Section 68 or 69 is underscored by the specific time-schedule prescribed by the provisions of the Act."

The case of Kanagasabai vs.Mailvanaganam(2) considered Section 62 of the Administration of Justice Law No. 44 of 1973 (now repealed) and the observation made therein by Sharvananda, J. with reference to Section 62 apply equally well to Sections 66 and 68 of the Primary Courts Procedure Act which correspond to them.

"Section 62 of the Administration of Justice Law confers special jurisdiction on a Magistrate to make orders to prevent a dispute affecting land escalating and causing a breach of the peace. The jurisdiction so conferred is a quasi-criminal jurisdiction. The primary object of the jurisdiction so conferred on the Magistrate is the prevention of a breach of the peace arising in respect of a dispute affecting land. The section enables the Magistrate temporarily to settle the dispute between the parties before the Court and maintain the status quo until the rights of the parties are decided by a competent civil Court. All other considerations are subordinated to the imperative necessity of preserving the peace ..... At an inquiry under that section the Magistrate is not involved in an investigation into title or right to possession, which is the function of a civil Court. The action taken by the Magistrate is of a purely preventive and provisional nature in a civil dispute, pending final adjudication of the rights of the parties in a civil Court. The proceedings under this section are of a summary nature and it is essential that they should be disposed of as expeditiously as possible ....... ".

In view of the foregoing reasons my considered view is that the learned Primary Court Judge having closed the case and fixing the matter for judgment erred in re-opening the inquiry and further erred in summoning two witnesses ex mero motu when there was no provision for such a procedure.

It is to be seen that the learned High Court Judge in dismissing the revision application filed by the two Casiechettys' has also failed to address his mind to the jurisdiction of the Primary Court Judge to call for further evidence ex mero motu and has erred in coming to a finding that the Primary Court Judge was at liberty to call for further evidence if the evidence on record is insufficient to determine the issue. I would say it is an erroneous supposition of the learned High Court Judge when he observed : "What steps primary Court Judge could take if he finds that he has no sufficient facts to write the judgment other than to call for further evidence". If this procedure is to be permitted in making a determination in terms of Part VII of the Primary Courts Procedure Act then Section 72 of the aforesaid Act would become redundant. It would also be opening the flood gates for long drawn out protracted inquiries when the primary object of Part VII of the Primary Courts Procedure Act was for the speedy disposal of the dispute that has arisen. Furthermore, it would permit the Primary Court Judge to go on a voyage of discovery on his own contrary to provisions in Section 72 of the Primary Courts Procedure Act.

For the foregoing reasons, I would allow the appeal and set aside the judgment of the learned High Court Judge as well as the order of the learned Primary Court Judge dated 07.12.2000 issuing summons on the two witnesses. I also direct the learned Primary Court Judge to make his determination in accordance with the provisions of Section 72 of the Primary Courts Procedure Act. He is further directed to make his determination and order as expeditiously as possible. The petitioners-appellants are entitled to costs fixed at Rs. 5,000-.

Wimalachandra, J. 1 agree.

Appeal allowed.

21.LOWE V DAHANAYAKE [CA]

Sri Lanka Law Reports 2005 - Volume 2 , Page No - 413

COURT OF APPEAL,

WIMALACHANDRA, J.

CALA 37/2005

DC NEGOMBO 6385/L

22ND AUGUST, 2005

Interim injuction - Preventing access being obstructed - A person having no soil rights, can he obstruct another using the road ? - How does a right of way Come into existence ? Interim relief-Ingredients- an the District Court invalidate an order made by the Primary Court - Primary Courts Procedure Act, Sections 66, 67, 68 and 69.

The plainfitt-responents Instituted action and prayed inter-alia, for a declaration that they are entitled to a right of way over the roadway depicted in the plan and further Sought an enjoining order / interim injuction restraining the defendant from obstructing the plaintiffs from using the roadway. The Court granted interim I I relief sought. The defendant petitioner sought leave to appeal from the Court of Appeal.

Held :

(1) A right of way can come into existence, by an agreement duly registered, by Crown Grant, by prescriptive possession, by dedication to the public or by a declaration by a competent statutory authority that a right of way of necessity has been granted.

(2) The defendant is not the owner of the roadway - She is not the owner of the servient tenement - she is a mere user of that road, and as she has no soil rights in respect of the right of way, she has no right to obstruct the plaintiffs from using the roadway.

(3) It is only the owner of the servient tenement who can oppose the plaintiff using the road way.

(4) The plaintiffs have a prima facie case, the balance of convenience favours them, and the equitable considerations favour the grant of an injunction.

Per Wimalachandra J.

"The District Court cannot issue an interim injunction which will nullify or invalidate an order made by a Primary Court - if the Primary Court had already made an interim/ final order for possession of land, in the instant case the effect of the interim injunction granted by the District Court is not contrary to the order made by the Primary Court Judge."

APPLICATION for leave to appeal from an order of the District Court, Negombo

Cases referred to :

1.Jinadasa Vs. Werasinghe 31 NLR 33

2.Perera Vs. Gunatilleke, 4 NLR 181 at 182

3.Kanagasabai Vs. Mylvaganam, 78 NLR 288 (distinguished)

D. H. Siriwardane for defendant petitioner Ranjan Suwandaratne with Ranjith Perera for plaintiff-respondents

Cur.adv. vult.

2nd November, 2005

WIMALACHANDRA, J.

The defendant-petitioner (hereinafter referred to as the defendant) filed this application for leave to appeal from the order of the learned District Judge of Negombo dated 20.01.2005. By that order the learned judge granted the interim injunction prayed for by the plaintiff-respondents (hereinafter referred to as the plaintiffs) in their plaint. Briefly, the facts as set out in the petition are as follows :

The plaintiffs instituted this action bearing No. 6385lL in the District Court of Negombo against the defendant and prayed inter-alia for a declaration that the 1st plaintiff is, subject to the life interest of the 2nd plaintiff, the owner of the land described in the 2nd Schedule to the plaint, which is a divided portion of the land described in the 1st Schedule to the plaint (depicted in Plan No. 7815/2000) and for a declaration that the plaintiffs are entitled to a right of way over the roadway depicted in the plan No. 7815/2000 shown as the southern boundary. The plaintiffs also sought an enjoining order and an interim injunction restraining the defendant from obstructing the plaintiffs from using the said roadway. When the application for the interim injuction was taken up, both parties agreed to file written submissions and invited the Court to make the order on the written submissions and the documents filed by the parties. Accordingly, the Court made the order on 20.01.2005 granting the interim injunction sought by the plaintiff. It is against this order that the defendant has filed this application for leave to appeal.

The plaintiffs' title to the land described in the 2nd Schedule to the plaint. which is in extent of 17.2 perches, is not disputed. The land described in the 1st schedule to the plaint is bordering on the north by a 30 ft. wide road and the south by the roadway described as Devata. The plaintiffs' father Don Cyril Samarasekera became the owner of the land described in the 1st schedule by deed of purchase No. 403 dated 15.01.1955 marked "P1". The said Don Cyril Samarasekera gifted the said land to the 1st plaintiff subject to the life interest of the said Don Cyril Samarasekera by deed No. 65689 dated 14.05.1988 marked "P3. The said Don Cyril Samarasekera constructed a house on the land described in the 2nd Schedule to the plaint, which is on the southern part of the land described in the 1st Schedule. This is shown in Plan No. 7815/2000 made by Hugh L. C. Dabrera, Licensed Surveyor marked "PC. It is the plaintiffs' case that the said Don Cyril Samarasekera built the said house and garage close to the southern end of the land facing the roadway described as the "Devata" in deeds marked "P1" and "P3. It is not in dispute that the said road "Devata" is now named Jayaratne Road, which is 20 ft. in width. The plaintiffs' position is that if Don Cyril Samarasekera had not used the said roadway in the south as a means of access, he would not have built the said house and the garage facing the said roadway. The architectural plan of the said house was produced marked "P5 and the plan showing the house built close to Jayaratne Road (previously called Devata Road) marked "P4".

The counsel for the defendant submitted that the plaintiffs have access to the land from the roadway shown to be 30 ft. in width as the northern boundary. The learned counsel further submitted that the learned Judge has not examined whether the plaintiffs have made out a prima facie case, in that, they were in fact entitled to a servitude over the said roadway and therefore the order of the learned Judge granting the interim injunction cannot stand. The learned counsel contended that only the defendant is entitled to the right of way over the said roadway by deed No. P13.

In order to entitle the plaintiffs to an interlocutory injunction, the plaintiffs must establish that there is a prima facie case in their favour. Once they clear that hurdle the next requirement is that the balance of convenience should favor the plaintiffs. The Court must also consider whether the equitable considerations favour the grant of an injuction. As regards the above-mentioned first requirement, the Court must be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a possibility of success if the facts alleged by the plaintiffs are proved. (Dalton J. in JinadasaVs. Weerasinghe(1)

A right of way can come into existence by an agreement duly registered, by Crown Grant, by prescriptive acquisition, by dedication to the public, or by a declaration by a competent statutory authority that a way of necessity has been granted (Servitudes by Hall & Kellaway, page 70).

Before I proceed to consider the requirements of prescriptiive acquisition, it must be noted that the defendant is not the owner of the said roadway, in that the defendant is not the servient tenement, and she is a mere user of the said road. Title to a servitude may be acquired by prescription if the occupation or use of something over which a right is asserted has been exercised nec vi, nec clam, nec precario. (Servitudes by Hall and Kellaway, page 29). It must be openly exercised and the person asserting must have suffered no interference from the true owner, Further, the use of the roadway must take place without the consent of the true owner. These are essential elements to a prescriptive claim against the owner of the roadway. As I mentioned above, the defendant is not the true owner and she is one of the users of the roadway among several others. It is only the owner of the servient tenement who can oppose the plaintiff using the said roadway. In this case the defendant is not the owner but merely another user of the said roadway. It is to be noted that an adverse user for the purpose of prescriptive rights has to only show that he has been a user of the definite roadway. According to the evidence placed before the Court, the plaintiffs' father who bought this land on 15.01.1 955 has this roadway as the southern boundary of his land. Thereafter the plaintiffs had build a house bordering the southern boundary of the said land facing the said roadway, which is the subject matter of this action. The certificate of confirmity was obtained for the said house on 30.11.1 998 (videUP6A) ll these are prima facie proof that they have been using the said roadway for well over ten years. Any sporadic interruption coming from another user of the said road, namely, the defendant is immaterial since she is not the owner of the said roadway.

It seems to me that the plaintiffs have used the said roadway, which is the southern boundary of their land as of right for a long period of time. This is borne out by the construction of the house and garage by the plaintiffs in close proximity to the southern boundary of their land facing the said roadway.

In the case of Perera Vs. Gunatilleke(2) at 182, Bonsor C. J, observed:

"It seems to me that, where a person establishes that he has used a way as of right openly and continuously for a long period and is forcibly prevented from using it, he is entitled to an injuction to restore him to the quasi possession of the way, irrespective of whether he can establish the existence of a servitude. We will treat this action as a possessory action and grant an injuction which will restore the status quo ante"

It is also to be noted that the defendant who has no soil rights in respect of the said right of way, has no right to obstruct the plaintiffs from using the said roadway.

The balance of convenience too favours the plaintiffs. Even if the injuction sought by the plaintiff is granted, it will not prevent the defendant from using the said roadway. It will only prevent the defendant from obstructing the plaintiffs from using the roadway. However, it the injunction is not granted their is nothing to prevent the defendent from obstructing the plaintiffs from using the roadway. Accordingly, the inconvenience which the plaintiff will suffer by the refusal of the injuction is greater than that which the defendant will suffer, if it is granted.

Finally, I will consider the objection raised by the learned counsel for the defendant that in view of the order made by the Primary Court, Negombo in Case No. P/3660, dated 20.11.1998, the District Court will not have jurisdiction to grant an interim injuction according to the judgment in the case of Kanagasabai vs. Mylvaganam.(3)

The facts which led to the filing of an information by the Police under Section 66 of the Primary Courts Procedure Act, No. 44 of 1979 was due to a dispute between the 1st party respondent, Yasasiri Ruwan Balasuriya, the 2nd party respondent W. Shereen Malcon Lovi and the 3rd party respondent Don Cyril Samarasekera over the said roadway, namely, Deveta alias Jayarathe road. The plaintiffs were not parties to the primary Court proceedings but the plaintiffs' predecessor in title to land was the 3rd partv respondent. After an inquiry the learned Primary Court Judge made order under Section 69(2) directing the 3rd party-respondent not to cause any obstruction to the 2nd party-respondent in using the said roadway. The learned Magistrate observed that the 3rd party respondent had not used the said roadway as of right.

The order reads as follows:

The operative part of the order is the 2nd paragraph where the learned Judge ordered the 1st and 3rd respondents not to obstruct the 2nd respondent when she uses the road. It is to be noted that nowhere in the order is it stated that the 1st and 3rd respondents are prohibited from using the said road. In the case of Kanagasabai vs Mylvaganam (Supra) it was held that where a Primary Court had already made an interim or final order for Possession of land, the District Court will not have jurisdiction to grant an interim injunction which have the effect of nullifying such order. That is, the District Court cannot issue an interim injunction which will nullify or invalidate the order made by the Primary Court Judge in terms of sections 66,67, 68,69 of the Primary Courts Procedure Act. In the circumstances it is my considered view that in the instant case the effect of the interim injunction granted by the learned District Judge is not contrary to the order made by the Primary Court Judge. Accordinaly, I cannot agree with the submission made by the learned counsel for the defendant that the interim injuction granted by the learned District Judge will prejudice the rights of the defendant. For there reasons I see no grounds to set aside the order of the learned District Judge dated 20.01.2005. Accordingly, the application for leave to appeal is dismissed with costs fixed at Rs. 5,000.

Application Dismissed

22.SHARIF VS. WICKRAMASURIYA [CA]

Sri Lanka Law Reports 2010 - Volume 1 , Page No - 255

COURT OF APPEAL

ERIC BASNAYAKE, J .

CHITRASIRI, J.

CA 972/2007

PR. LT. PUTTALAM 16097/P

SEPTEMBER 10,2008

JUNE 1, 5,2009

OCTOBER 8,2009

NOVEMBER 18, 2009

Restitutio-in Integrum -Primary Courts Procedure Act - Section 66 - Section 66 (1) (a) (i). Jurisdiction of the Court of appeal to entertain Revision/Restitutio-in-Integrum applications from Primary Court orders? Constitution Article 138 - 13th Amendment Article 154P(3) - High Court of the Provinces (Special Provisions) Act 19 of 1990 - Section 9 as amended by Act 54 of 2006.

The petitioner sought an order by way of restitutio in integrum and or revision to set aside an order made by the Primary Court Judge under Section 66 of the Act.

It was contended by the respondent that the Court of Appeal has no jurisdiction to hear revision applications filed against the orders or judgments of Magistrate Courts and that after the 13th amendment to the Constitution and Act 19 of 1990 the aggrieved parties should move the respective High Courts of the Provinces in Revision.

Held

(1) In terms of Article 138 Court of Appeal shall have and exercise sole and exclusive cognizance by way of appeal, revision. However Article 154 (3) has given the High Court Appellate and revisionary jurisdiction in respect of orders by Magistrateslprimary Courts. Hence the Court of Appeal ceased to enjoy sole and exclusive jurisdiction. Article 154 P did not take away the powers exercised by the Court of Appeal under Article 138.

Per Eric Basnayake, J.

"High Court is vested with original jurisdiction and is placed lower to the Court of Appeal in the order of Courts on superiority".

(2) Jurisdiction enjoyed by the Court of Appeal through Article 138 remains intact. Both Courts enjoy concurrent jurisdiction on matters referred to in Article 154 P (3)

(3) High Court of the Provinces (Sp. Prov) Act 19 of 1990 had made provision for the Court of Appeal either to transfer such appeal or application to High Court or to hear and determine such applications.

Per Eric Baaeyake, J.

"I am of the view that it is more expedient for the Court of Appeal to hear and conclude this case rather than to transfer it to High Court and for the reasons given on the merits I find that the learned Judge has gravely erred in her order.

(4) The fact that the Primary Court had not made an effort to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

APPLICATION for Revision/Restitutio in Integrum from an order of the Primary Court of Puttalam.

Cases referred to:-

(1) Kanagasabai vs. Mylvaganam 78 NLR 280

(2) Ramalingam vs. Thangarajah 1982 2 Sri LR 693

(3) David Appuhamy vs. Yassassi Thero 1987 1 Sri LR 253

(4) Punchi Nona vs. Padmasena 1994 2 Sri LR 117

(5) Tundor us. Anulawathie 1999 3 Sri LR 235

(6) Ali vs. Abdeen 2001 1 Sri LR 413

(7) In Re the Thirteenth Amendment 1987 2 Sri LR 312 at 323

(8) Abeywardane vs. Ajith de Silva 1998 1 Sri LR 134

(9) Gunaratne vs. Thambinayagam 1993 2 Sri LR 335

(10) Kanaglingam vs. Logeswaran CA (Rev) 686197 C.A.M. 9.6.1999

(11) Ramalingam vs. Paramashwary 2000 2 Sri LR 340

lkram Mohamed PC with Manjula Niyalpola for petitioner.

Rohan Sahabandu with Athula Perer for respondents.

October 21st 2010

ERIC BASNAYAKE J.

The Petitioners-second party (petitioners) are seeking inter alia an order by way of restitution in integrum and/or revision and to set aside the order dated 17.10.2007 of the learned Additional Magistrate of Puttalam. By this order the learned Judge had determined that the respondents (1st and 2nd respondents) were in possession of the land (subject matter) two months prior to the date the information was filed and thus not to disturb their possession.

The petitioners' case

The extent of the disputed land is 14 acres. The original owners of this land were one Naina Marrikar and his wife. They sold this land by deed No. 11616 of 1967 to one Bashir. Bashir sold it by deed No. 383 of 1971 to the lst petitioner's wife and her sister. Naina Marikar died in 1975. On 25.5.1997 the intestate heirs of Naina Marikar namely, the wife and the children executed deed No. 13501 and purportedly gifted the land in dispute to one of the children, namely, Munawer Ali. The petitioners claim that the deed 13501 did not convey anything as there was nothing left to be conveyed

1st case under section 66 of the Primary Court Procedure Act

On 26.06.1997 Munawer Ali made a complaint to Wanathawiluva police against Letiff, the father of the present owners. In this complaint to the police Munawer Ali stated that he became aware that his father owned 14 acres of land in Puttalam and that one Latiff was claiming ownership. This resulted in a section 66 application being filed. The court dismissed this application as the information was filed two months after the complaint.

2nd case under section 66

On 22.6.2006 the 1st respondent who had a special power of attorney from Munawer Ali had placed the 2nd respondent in the land in a temporary cadjan hut. The first respondent is a retired Grama Sevaka of this province. On 9.7.2008 the 2nd respondent was evicted allegedly by the petitioner or his agents. This resulted in a complaint being made to the police by the 2nd respondent on 10.7.2006. The police filed information on 26.9.2006 and initiated the present case No. 16097/06/P. The petitioners had complained that the court has no jurisdiction to hear this case as two months have lapsed from the date of the complaint to the date of filing the information.

The order of the Judge

The learned Judge having referred to section 68(3) of the Primary Court Procedure Act stated that "the documents filed by the respondents reveal that the respondents have been in possession for more than 6 months prior to the date of the dispute. The learned Judge stated that "by considering the affidavits tendered the court decides that two months prior to the filing of the information by the police, possession was with the respondents (first party). There was no determination as to who was in possession at the time of filing the information and whether there was dispossession.

The objections of the respondents

The respondents claimed that Munawer Ali was the owner by deed No. 13501 and the 1st respondent was in possession throughout until the petitioners disturbed the 1st respondent's possession in 2006.

Written submissions of counsel for the 1st and 2nd respondents

In the written submissions tendered on 18.11.2009 the learned counsel for the respondents confirmed the following facts, Namely:

1. The date of eviction - 9.7.2006

2. The date of complaint - 10.7.2006

3. The date the information was filed 26.9.2006

Thus there is no dispute that the information was filed out of time. Whilst admitting that the information should have been filed within 2 months of the date of complaint, the learned counsel finds fault with the police for not having filed same. However the learned counsel justified the court entertaining this application. The learned counsel submitted that the act of the police should not be held against the aggrieved party. When the aggrieved party acted under Section 66(1) (a) (i), the aggrieved party expected the police also to act according to the law. When section 66(1) (a) (i) lays down that the police shall with the least possible delay file an information and the failure to adhere to the provisions in Section 66 (1) (a) (i) should not be held against the aggrieved party. The learned counsel submitted that a scheming party could prevent the aggrieved party from proceeding with the section 66 application by making the police file information after two months.

The Primarv Courts procedure

The court shall before fixing the case for inquiry make every effort to induce the parties to arrive at a settlement (66(6)). At the inquiry the court is required to determine as to who is in possession of the land on the date of the filing of information under section 66 and make order as to who is entitled to possession of such land (68(1)). If any person who had been in possession is forcibly dispossessed within a period of two months immediately before the date on which the information was filed, he may make a determination to that effect and make an order directing that the party dispossessed be restored to possession (Section 68 (3)) (Kanagasabai vs. Mylvaganarn(1) Ramalingm vs. Thangarajah(2), David Appuhamy vs. Yassassi Thero (3) Punchinona vs. Padumasena (4) Tudor vs. Anulawathie (5)

The learned President's Counsel for the petitioners complained that no effort whatsoever was made by the learned Judge to pursue a settlement. The fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of Competence to hold an inquiry in to the question of possession Ali us. Abdeen ". The learned counsel further submitted that the learned Judge has totally misdirected herself in law and made no determination in terms of sections 68(1) or 68 (3) of the Act.

It appears that the learned Judge has taken as easy path by not following the procedure laid down by the Act. There was no determination by the learned Judge as to who was in possession on the date of filing the information as required by section 68(1). The other limb of this section is to make an order as to who is entitled to possession. To make this order the Judge is required to make a determination as to who was in possession on the date of filing the information. Once the court decided as to who was in possession on the date of filing the information, the court must make an order as to who is entitled to possession. Necessarilv the person who was in possession at the time of filinp the information is entitled to possession, unless there was dispossession within a period of two months immediatelv before the date on which the information was filed.

Admittedly it was the petitioner who was in possession on the date of filing the information. The information was filed on 26.09.2006. Two months period immediately before the date of the filing of the information would be 26.7.2006. The dispossession was on 9.7.2006 which falls outside the period. If the dispossession is outside the two months period, section 68(3) will have no application. A party dispossessed could be restored back in to possession under section 68(3). If section 68(3) has no application the court cannot make an order of restoration. In that event the court will have to make an order declaring the petitioner entitled to possession as it was the petitioner who was in possession on the date of filing the information.

The jurisdiction of the Court of Appeal

The learned counsel for the respondents submitted that the Court of Appeal has no jurisdiction to hear revision applications filed against the orders or judgments of Magistrates. He submitted that after the 13th Amendment to the Constitution and the Act of No. 19 of 1990 (High Court of the Provinces (Special Provisions) Act the aggrieved parties should move the respective High Courts of the provinces in revision.

The Constitution

Article 138 of the Constitution gives jurisdiction to the Court of Appeal with regard to its revisionary powers. Article 138 is as follows:-

138 (1): The Court of Appeal shall have and exercise (subject to the provisions of the Constitution or of any law) an appellate jurisdiction for the correction of all errors in fact or in law which shall be committed by any court of first instance, tribunal or other institution and sole and exclusive cognizance, by way of appeal, revision and restitution in intearum, of all cases, suit, action, prosecutions matters and things of which such courts of First instance, tribunal or other institution may have taken cognizance (emphasis added).

Proviso not reproduced

(2) Is not reproduced.

The sole jurisdiction given by Article 138 was expended to High Courts by Article 154P (3) (b) under the 13th Amendment to the Constitution. The Article is as follows:

154P (3) Every High Court shall -

(b) Notwithstanding anything in Article 138 . . . exercise, appellate and revisionary jurisdiction in respect of orders. . . by Magistrate Courts and Primary Courts within the province

In terms of Article 138 the Court of Appeal shall have and exercise. . . sole and exclusive cognizance by way of appeal; revision. . . However Article 154(3) (b) has given the High Court appellate and revisionary jurisdiction in respect of orders by Magistrate Courts and Primary courts. Hence the Court of Appeal ceased to enjoy sole and exclusive jurisdiction. Article 154P did not take away the powers exercised by the Court of

Appeal under Article 138.

However section 9 of the High Court of the Provinces (Special Provisions) Act appears to have caused a conflict with regard to the jurisdiction enjoyed by the Court of Appeal. According to this section an aggrieved person by a final order of a High Court in the exercise of the appellate jurisdiction vested in it by paragraph (3) (b) of Article 154P may appeal to the Supreme Court on a substantial question of law with leave first obtained from High Court.

Section 9 of High Court of the Provinces (Special Provisions) Act No. 19 of 1990 is as follows:-

Subject to the provisions of this Act or any other law any person aggrieved by (a) a final order. . . of a High Court. . . in the exercise of the appellate jurisdiction vested in it by paragraph (3) (b) of Article 154P. . . which involves a substantial question of law, may appeal there from to the Supreme Court if the Court grants leave to appeal to the Supreme Court. . .

High Court is vested with original jurisdiction and is placed lower to the Court of Appeal in the order of Courts on superiority. However when a party chooses to go to High Court with a right of appeal to the Supreme Court, one may argue that the appellate powers of the Court of Appeal have been removed.

Has the powers of the Court of Appeal with regard to its appellate and revisionary jurisdiction been removed? This is not so. Articles 138 and 154P give jurisdiction to Court of Appeal and High Court respectively to hear appeals and revision from the Magistrate's Court Against the orders of these courts appeal lie to the Supreme Court with leave first obtained from the Court of Appeal or the High Court as the case maybe, on a question of law. This does not mean that the powers enjoyed by the Court of Appeal had been taken away. The powers of the High Court are limited to the Province. The Court of Appeal exercises its powers for the whole island.

The High Courts are given jurisdiction with regard to appeals and revision against judgements and orders of the Magistrate's Courts and Primarv Courts through the Constitution (13th Amendment). High Courts are given appellate and revisionary jurisdiction with regard to judgements, decrees and orders of the District Courts in the Provinces through an Act of Parliament (Act No. 54 of 2006). Against the judgments and orders of the High Court, appeal would lie again to the Supreme Court with leave first obtained on a question of law from the Supreme Court. In this respect the High Courts have been given concurrent jurisdiction along with the Court of Appeal.

Act No. 54 of 2006

This Act amended Act No. 19 of 1990 with the insertion of sections 5A, 5B, 5C and 5D. Section 5A(1) gives the appellate and the revisionary jurisdiction which is as follows:-

5A (1) A High Court established by Article 154P of the Constitution for a province, shall have and exercise appellate and revisionary jurisdiction in respect of judgments, decrees and orders delivered and made by anv District Court or a Family Court within such a province and the appellate jurisdiction for the correction of all errors in fact or in law, which shall be committed by any such District Court or Family Court, as the case may be (emphasis added).

(2) Not reproduced

I am of the view that the jurisdiction enjoyed by the Court of Appeal through Article 138 remains intact. Through Article 138 one has the liberty to invoke the jurisdiction of the Court of Appeal or to resort to a Provincial High Court in terms of Article 154P (3) (b). If one chooses to go to the High Court, an appeal would lie to the Supreme Court with leave first obtained from the High Court (Section 9 of the Act 19 of 1990). If one invokes the jurisdiction of the Court of Appeal under Article 138 an appeal would lie from any final order or judgement of the Court of Appeal to the Supreme Court with leave of Court of Appeal first obtained (Article 128(1) of the Constitution). It is thus clear that both courts enjoy concurrent jurisdiction on matters referred to in Article 154P (3) (b). The jurisdiction enjoyed by the Court of Appeal had not been disturbed by Articles of the Constitution or by the Acts of Parliament.

Sharvananda C. J., Colin-Thome, Atukorale and Tambiah J. in the case of In Re the Thirteenth Amendment to The Constitution and The Provincial Councils Bill (7) at 323 in their determination held as follows:-

"The Bill do not effect any change in the structure of the courts judicial power of the people. The Supreme Court and the Court of Appeal continued to exercise unimpaired several jurisdictions vested in them by the Constitution. There is only one Supreme Court and one Court of Appeal for the whole Island. The 13th Amendment Bill only seeks to give jurisdictions in respect of. . . Without prejudice to the executing jurisdictions of the Court of Appeal. Vesting of this additional jurisdiction in the High Court of each province only brings justice nearer home to the citizen and reduces delay and cost of litigation."

In the case of Abeywardene vs. Ajith De Silva the question was whether a direct appeal lies to the Supreme Court from an order of the High Court in the exercise of its revisionary jurisdiction without first preferring an appeal to the Court of Appeal. Anandacoomaraswamy J held (with four Justices agreeing)"

There is no right of appeal from an order of the Primary Court Judge. . . However parties appeal to the Court of Appeal by way of revision under Article 138 of the Constitution read with Article 145 to have the order set aside. After the 13th Amendment, section 5 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 read with Article 154P (3) (b) of the Constitution entitled him to file such application in the High Court of the province. The Jurisdiction of the High Court in the matter is concurrent (In re 13th Amendment to the Constitution (supra)) In the result, he may file an application in the Court of Appeal or in the High Court" (emphasis added). In Gunaratne vs. Thambinayagam(9) Kulatunga J., G.P.S. De Silva C. J. and Ramanathan J agreeing) referring to Article 138 of the Constitution read with Act No. 19 of 1990 and 154P (3) (b) of the Constitution held that "The jurisdiction of the High Court in the matter is concurrent. . . In the result he may file his application in the Court of Appeal or in the High Court" (at 357) (Also Kanagalingam us. Logeswaran(10) vy J . A. N. De Silva J. (now Chief Justice). Ramalingam us. Parameshwary(11) Act No 19 of 1990 had made provision for the Court of Appeal either to transfer such appeals or applications to High Court or to hear and determine such applications (by the Court of Appeal). It appears that Act 19 of 1990 was introduced for the purpose of expediting and disposing of cases. The relevant section is as follows:-

12(a) Where any appeal or application is filed in the Court of Appeal and an appeal or application in respect of the same matter has been filed in a High Court established by Article 154P of the Constitution invoking jurisdiction vested in that Court by paragraph (3) (b) or (4) of Article 154P of the Constitution, within the time allowed for the filing of such appeal or application, and the hearing of such appeal or application by such High Court has not commenced, the Court of Appeal may proceed to hear and determine such appeal or application or where it considers it expedient to do so, direct such High Court to hear and determine such appeal or application:

Provided, however, that where any appeal or application which is within the jurisdiction of a High Court, . . . is filed in the Court of Appeal, the Court of Appeal may if it considers it expedient to do so, order that such appeal or application be transferred to such High Court and such High Court shall hear and determine such appeal or application.

(b) Where the Court of Appeal decides to hear and determine any such appeal or application, as provided for in paragraph (a), the proceedings pending in the High Court shall stand removed to the Court of Appeal for its determination (emphasis added).

(d) Not reproduced

This application was filed in the Court of Appeal on 16.11.2007. The parties were noticed by the Court of Appeal and objections were filed by the respondents on 7.2.2008. The written submissions were filed on 10.9.2008 and 1. 6.2009 & 18.1 1.2009. This was taken up for argument on 8.10.2009. When this case was taken up for argument counsel for both parties had addressed court with regard to the merits and the court was ready and had time to hear both counsel on its merits. Thus the Court of Appeal is in a position to make an order on its merits. Therefore there is no reason for the Court of Appeal to send it back to High Court. I am of the view that it is more expedient for the Court of Appeal to hear and conclude this case rather than to transfer it to the High Court.

Provisions have been made in the event an appeal or revision is filed in the Court of Appeal and without filing in the High Court of the Province, to transfer such cases. This is by Act No. 54 of 2006.

The section is as follows:

5D (1) Where any appeal or application in respect of which the jurisdiction is granted to a High Court established by Article 154P of the Constitution by section 5A of this Act is filed in the Court of Appeal, such appeal or application, as the case may be, may be transferred for hearing and determination to an appropriate High Court as mav be determined by the President of the Court of Appeal and upon such reference the said High Court shall hear and determine such appeal or the application, as the case may be, as if such appeal or application was directly made to such High Court.

Thus both courts enjoy concurrent jurisdiction with regard to judgments and orders of the Magistrate/Primary Courts and District Courts. The powers enjoyed by the Court of Appeal had been given to the High Court of the Provinces to facilitate the litigants in the provinces and also to reduce the work load of the Court of Appeal. I am of the view that the petitioners are at liberty to file this application before the Court of Appeal and the petitioners are before the correct forum. For the reasons given on its merits I find that the learned Judge has gravely erred in her order. Thus I set aside the order of the learned Judge and make order directing the Judge to issue a writ of possession forthwith and repair the injustice caused to the petitioner. I allow this application with costs.

CHITRASIRI J. - I agree.

Application allowed.Sri Lanka Law Reports

23.JAYANTHA GUNASEKARA VS. JAYATISSA [CA Divicional Bench)

Sri Lanka Law Report 2011 - Volume 1 , Page No - 284

COURT OF APPEAL

SISIRA DE ABREW. J

SALAM. J

LECAMWASAM. J

CA PHC APN 17/2006 (DB)

HC AWISSAWELLA 55/04

MC AVISSAWELLA 65720

FEBRUARY 25,2011

MARCH 3,4,2011

MAY 16,2011

Constitution Article 154 (P) 3 (b) - Primary Courts Procedure Act - Section 2, Section 66, Section 68-Section 76-High Court exercising revisionary jurisdiction -Appeal to Court of Appeal- Does the filing of an appeal ipse facto stay the execution of the judgment of the High Court? - Cassus omissus clause in the Primary Courts Procedure Act -Applicability of the provisions of the Civil Procedure Code - Stare decisis - Obiter dicta -Ratio decidendi - Approbation reprobation - Principles

The petitioner sought to revise the judgment of the Provincial High Court entered in the exercise of its revisionary jurisdiction under Art 154 (3) b. The High Court set aside the order made by the Primary Court under Section 68 (3) by which order the Magistrate had determined that the petitioner had forcibly been dispossessed of the subject matter by the respondent. The respondent moved in revision, the High Court held that the respondent is entitled to possession. The petitioner preferred an appeal to the Court of Appeal. The respondent sought to enforce the judgment of the High Court.

The petitioner contended that, on the lodging of the appeal to the Court of Appeal the order of the High Court to execute the order was automatically stayed.

Held:

(1) Mere lodging of an appeal against the judgment of the High Court in the exercise of its revisionary power in terms of Section 154 P (3) (b)of the Constitution to the Court of Appeal does not automatically stay the execution of the order of the High Court.

Per Abdus Salam.J

"In the case of Kanthilatha and Nandawathie the decision reached is on the assumption that the cassus omissus clause is applicable and therefore the approach reached by inadvertence needs to be set right. Further in Kathilatha's case obiter dictim has been given prominence ignoring the ratio decedendi; the judgment of Sillem (7) relied and referred to in Edward vs. de Silva (8) is a criminal matter arising from a statutory offence".

Per Abdus Salam.J

"In any event to rely on the decision in Attorney General vs. Sillem for our present purpose may amount to destructive analysis of Chapter VII of the Primary Courts Procedure Act than the ascertainment of the true intention of the Parliament and carry it out by filling in the gaps - obviously to put off the execution process until the appeal is heard would tantamount to prolong the agony and to let the breach of the peace to continue for a considerable length of time".

Held further:

(2) In view of the decision in Kayas vs. Nazeer (3) the cassus omissus clause (Section 78 of the Primary Courts Procedure Act) has no application to proceedings under Cap VII of the Act.

(3) The High Court set aside the order of the Magistrate solely based I on the purported failure to endeavour to settle the matter prior to the inquiry. This was one of the objections taken by the respondent. The Magistrate has taken meaningful steps to settle the matter, on that aspect of the matter the learned High Court Judge has erred when he came to the conclusion that such an attempt is not in compliance with the provisions of the Primary Courts Procedure Act.

(4) The objection to jurisdiction must be taken at the earliest possible opportunity. If no objection is taken and the matter is within the plenary jurisdiction of the Court, court will have jurisdiction to proceed with the matter and make a valid order.

It is the respondent before the High Court Judge who had benefitted by that argument. He has not adverted the Magistrate to the non compliance of Section 66 (6) before the commencement of the inquiry.

APPLICATION in revision of an order of the Provincial High Court of Avissawella- on a preliminary objection taken.

Cases referred to:-

1. R.A. Kusum Kanthilatha vs. Indrasin - 2005 1 Sri LR 41 1 (overruled)

2. R.P. Nandawathie vs. K. Mahindasena - CA PHC 242/06

3. Kayas vs. Nazeer - 2004 1 Sri LR 202

4. Perera vs. Gunathilake (1900) 4 NLR 181

5. Imampu vs. Hussenbi AIR 1960 Mysore- 203

6. Kanagasabai vs. Mylvaganam 78 NLR 280- 282

7. Edward vs. de Silva 46 NLR 343

8. A.G. vs. Sillem 11 Eng. LR 1208

9. Keel vs. Asirwathan 4 CLW 128

10. Ragunath Das vs. Sundra Das Khelri AIR 1914 PC 352

11. Malkav Jun vs. Nahari NLR 25 Bombay 338

12. Charlotte Perera vs. Thambiah and another - 1983 1 Sri LR 352

13. Rustom vs. Hapangama Co. Ltd 1978-79- 2 Sri LR225,1978/79/80- 1 Sri LR 353

14. Ali vs. Abdeen 2001- 1 Sri LR 413

15. Mohamed Nizam vs. Justin Dias CA PHC- 16/2007

16. David Appuhamy vs. Yassasi Thero 1987-1 Sri LR 253

17. Visuwalingam and others vs. Liyanage and others - 1983- 1 Sri LR 203

18. Banque Des Marchands De Hoscou v. Kindersley and another - 1950 - 2 All ER 549 at 552.

19. Evans vs. Bartlam 1937- 2 All ER 646 - 652

20. Lissenden vs. Bosh Ltd 1940 A1 412- (1940) 1 All ER 405,412

W. Dayaratne PC with Rangika Jayawardane, D.M. Dayaratne and 1 Nadeeka Karachchi for 1st party respondent-petitioner.

Rohan Sahabandu for 2nd party respondent.

September 30th 2011

ABDUS SALAM, J.

This is an application to revise the judgment of the Provincial High Court entered in the exercise of it's revisionary jurisdiction under Article 154 P (3) (b) of the constitution. By the impugned judgment, the Learned High Court Judge set aside the determination made in terms of section 68 (3) of the Primary Court Procedure Act (PCPA) and ordered the unsuccessful party in the Magistrate's Court to be restored to possession of the subject matter, pending the determination of an appeal preferred to this court. (Emphasis is mine)

The important events leading up to the present revision application began with the filing of an information in the Magistrate's Court, under section 66 (a) (i) of PCPA. The dispute was over the right of possession of a land between two brothers, viz. Jayantha Wickramasingha Gunasekara1 (1st party-respondent-petitioner) and Jayathissa Wickramasingha Gunasekara2 (2nd party - 1st respondent-petitionerrespondent). The involvement of the other parties in the dispute is not dealt in this judgment, as they had merely I acted as the agents of the two main rival disputants.

The learned Magistrate, in making his determination, held inter alia that the petitioner had forcibly been dispossessed of the subject matter by respondent, within a period of two months before the filing of information and accordingly directed that he (the party dispossessed) be restored to possession.

Against the determination, the respondent moved in revision in the High Court which set aside the same, purportedly due to the failure to induce the parties to arrive at a settlement of the dispute under section 66(8) of the PCPA, and held that the respondent is entitled to the possession of the disputed property and directed the Magistrate to forthwith handover the same to him.

The Petitioner (Jayantha) preferred an appeal to this Court against the said judgment of the High Court. Pending the determination of the appeal, he also filed a revision application challenging the validity of the judgment of the learned High Court judge and in particular the part of the order of the judge of the High Court directing the execution of his judgment forthwith, pending the determination of the appeal. The legality of the impugned judgment of the learned High Court judge, based on the sole ground of failure to settle the dispute will be examined in this judgment at another stage.

There are two conflicting views expressed on the question as to whether the filing of an appeal against the decision of a High Court in the exercise of its revisionary powers in respect of a determination made under part VII of the PCPA would ipso facto stay the execution of its judgment or it operates otherwise.

In order to resolve the conflict, the present divisional bench was constituted to hear and dispose of the revision application. Being mindful of what prompted the constitution of the divisional bench, I now venture to embark upon a brief discussion on the pivotal question. It is worthwhile to briefly refer to the two conflicting decisions. In point of time the first decision was made in R A Kusum Kanthilatha Vs Indrasiri(1) where it was held inter alia that upon proof of an appeal being preferred to the Court of Appeal against a judgment of the High Court acting in revision in respect of an order made I under part VII of the PCPA, the original court should stay its hand until the determination of the appeal. (Emphasis added)

The second and subsequent view was expressed in the case of R P Nandawathie Vs K Mahindasena(2) where it was held inter alia that the mere lodging of an appeal does not automatically stay the execution of the order of the High court. (Emphasis added)

At the argument we were adverted to the position that prevailed immediately prior to the vesting of the revisionary powers in the High Court in respect of orders made under chapter VII of the Primary Courts Procedure Act. Prior to the introduction of the Constitutional provision in Article 154 P (3) (b), the revisionary jurisdiction in relation to orders of the Primary Court concerning land disputes where the breach of the peace is threatened or likely had to be invoked through the Court of Appeal. Any person dissatisfied with the order of the Court of Appeal had to seek special leave to appeal from the Supreme Court within 42 days. Under Supreme Court Rules of 1990 a party aggrieved by the judgment of the Court of Appeal in the exercise of its revisionary powers had to apply for stay of proceeding till special leave is granted. Every party aggrieved by such a judgment of the Court of Appeal had to seek the suspension of the execution of the judgment of the Court of Appeal in the Supreme Court. As has been submitted by the learned counsel this shows that by mere lodging an application for special leave to appeal invoking the jurisdiction of the Supreme Court, does not ipso facto, stay the order of the Court of Appeal. It does not stay the execution of judgment. This shows that even prior to the recognition of the revisionary powers of the High Court in terms of Article 154 P (3) (b) of the Constitution the rule was to execute the judgment and exception was to stay proceedings.

Be that as it may, the fact remains that in both cases referred to above the question relating to the execution of orders made under part VII of the PCPA pending appeal has been decided on the premise that the provisions of the Civil I Procedure Code are applicable. This is basically an incorrect approach which should stand corrected by reason of the decision Kayas Vs Nazeed(3). In the circumstances, I do not propose to delve into the applicability of the casus ommisus , clause in the Primary Courts Procedure Act, in respect of proceedings under chapter VII, in view of the decision of His Lordship T B Weerasuriya, J who held that the casus omisus clause (Section 78) of the Act has no application to proceedings under chapter VII. The relevant passage with omission of the inapplicable words from the judgment in the case of Kayas (supra) is deservedly chosen for reproduction below:

"Section 2 of the Primary Court Procedure Act stipulates that subject to the provisions of the Act and other written law, the civil and criminal jurisdiction of the Primary Court shall be exclusive. Part I11 of the Act .... Provides for the mode of institution of criminal prosecutions; while part IV of the Act comprising provides for , the mode of institution of civil actions. Thus, Section 78 has been designed to bring in provisions of the Criminal Procedure Code Act or the provisions of the Civil Procedure Code Act only . . . . . . ... Inquiries into disputes affecting land . . . . . . . . under part VII comprising Sections 66 - 76 are neither in the nature of a criminal prosecution ..... nor in the nature of civil action. Those proceedings are of special nature since orders that are being made are of a provisional nature to maintain status quo for the sole purpose of preventing a breach of the peace and which are to be superseded by an order or a decree of a competent Court. Another significant feature is that Section 78 while making reference to criminal prosecutions or proceedings and civil actions or proceedings, has not made any reference to disputes affecting land. This exclusion would reveal the legislative intent that Section 78 is not intended to be made use of, for inquiries pertaining to disputes affecting land under part VII of the Act "- (Emphasis is mine)

The vital question that needs to be resolved now is whether execution of orders made under Part VII would be automatically stayed by reason of an appeal filed under 154 P (3) (b) of the Constitution or it would operate otherwise. To find an answer to this question one has to necessarily examine chapter VII of the legislation in question which deals with what is commonly known among the laymen as "section 66 cases".

Historically, there has always been a great deal of rivalry in the society stemming from disputes relating to immovable properties, where the breach of the peace is threatened or likely. In the case of Perera Vs. Gunathilakd(4) His Lordship Bonser C.J, with an exceptional foresight, spelt out the rationale well over a century and a decade ago, underlying the principle as to why a court of law should discourage all attempts towards the use of force in the maintenance of the , rights of citizens affecting immovable property. To quote His Lordship

"In a Country like this, any attempt of parties to use force in the maintenance of their rights should be promptly discouraged. Slight brawls readily blossom into riots with grievous hurt and murder as the fruits. It is, therefore, all the more necessary that courts should be strict in discountenancing all attempts to use force in the assertion of such civil rights".

Let us now look at how the Indian court had once viewed the importance of preserving the peace. In the case of Imambu v. Hussenbi(5) the court emphasized the importance in this manner . . . . .

"The mere pendency of a suit in a civil Court is wholly an irrelevant circumstance and does not take away the dispute which had necessitated a proceeding under section 145. The possibility of a breach of the peace would still continue."

In the case of Kanagasabai Vs Mylvaganam(6) Sharvananda, J (as His Lordship was then) whose outspokenness needs admiration stated as follows ....

"The primary object of the jurisdiction so conferred on the Magistrate is the prevention of a breach of the peace arising in respect of a dispute affecting land. The section enables the Magistrate temporarily to settle the dispute between the parties before the Court and maintain the status quo until the rights of the parties are decided by a competent civil Court. All other considerations are subordinated to the imperative necessity of preserving the peace. ........... The action taken by the Magistrate is of a purely preventive and provisional nature in a civil dispute, pending final adjudication of the rights of the parties in a civil Court. The proceedings under this section are of a summary nature and it is essential that they should be disposed of as expeditiously as possible .............. Sub-sections (2) and (6) of section 63 of the Administration of Justice Law underline the fact that the order made by the Magistrate under sections 62 and 63 is intended to be effective only up to the time a competent Court is seized of the matter and passes an order of delivery of possession to the successful party before it, or makes an order depriving a person of any disputed right and prohibiting interference with the exercise of such right."

The emphasis added by me in the preceding paragraph in the process of quoting Sharvananda, J speaks volumes about the sheer determination and the commendable courage adopted by the Supreme Court as to need for prompt execution of orders made in "66 matters". To recapitulate the salient points that are in favour of expeditious execution of orders under part VII, the following points are worth being highlighted.

1. It is quite clear, that the intention of the legislature in enacting Part VII of the PCPA is to preserve the peace in the society. If an unusual length of time (sometimes more than a decade) is taken to execute a temporary order for the prevention of peace, the purpose of the legislation would definitely be defeated and the intention of the Legislature in introducing the most deserving action of the era in the nature of sui generis would be rendered utterly ridiculous.

2. In as much as there should be expeditious disposal of a case stemming from the breach of the peace there should correspondingly be more expeditious and much efficient methods to give effect to the considered resolution of the dispute, with a view to arrest in some way the continued breach of the peace and to avoid justice being frustratingly delayed.

3. All other considerations being subordinate to the imperative necessity of preserving the peace, the execution mechanism also should keep pace with the Legislative commitment designed under Chapter VII of the PCPA.

The word "appeal" generally signifies legal proceedings of a Higher Court to obtain a review of a lower court decision and a reversal of it or the granting of a new trial. It is said that the wisest of the wise is also bound to err. The Judges are no exception to this rule. Justice Cardozo a well known American judge once observed that "the inn that shelters for the night is not the journey's end" but "we are all on the journey, a journey towards ............. our legal response, to the legal needs of the public. We are at various stages in this long journey have devised various structures and various solutions and they might be inadequate for the night, but they are not our journey's end".

This thought becomes particularly appropriate when one considers the specific prohibition imposed by the legislature in its own wisdom against appeals being preferred under Chapter VII, with the full knowledge of the fallibility of judges as human beings. It is common knowledge that an appeal is a statutory right and must be expressly created and granted. Under Chapter VII not only the Legislature did purposely refrain from creating such a right but conversely imposed an express prohibition. Presumably, as the determinations under chapter VII are categorized as of temporary nature even with regard to the execution of them we are required to ensure a meaningful construction of the statute as shall suppress the mischief and advance the remedy.

The next question which needs to be addressed is, what then is the nature and the purpose of the right of appeal conferred under Article 154 P (3) (b) of the Constitution. Such a right is unquestionably not against the determination made under 66(8)(b), 67(3),68(1)(2)(3)(4) 69 (1)(2),70,71 or 73 by the primary court. It is quite clear on reading of section 74(2) which is nothing but a draconian measure taken in the best interest and absolute welfare of a society. However, the fact remains that such a measure is necessary to safeguard their rights until a court of competent jurisdiction is seized of the situation to find a permanent resolution.

There is no gainsaying that the revisionary powers of this court are extensive and extremely far and wide in nature. It is an absolutely discretionary remedy. Such powers are exercised only in exceptional circumstances. This reminds us of the right of appeal granted under Article 154 P (3) (b) is a right to challenge the judgment of the High Court exercising revisionary powers and not to impugn the primary court judge's order by way of an appeal. When section 74(2) of the Primary Court Procedure Act is closely 1 scrutinized along with Article 154 P (3) (b), it would be seen that it makes a whale of difference as to the purpose, nature, 1 and scope of such right of appeal. Had the right of appeal been granted under chapter VII at the very inception of its introduction, the interpretation under consideration would have been totally different. Appeals contemplated under I Article 154 P (3) (b) on one hand and appeals permitted under the Civil, Criminal, Admiralty, Labour, Agrarian, Judicature and other laws on the other hand are worth examining to find out whether an appeal under 154 P (3) (b) in fact ipso facto should stay proceedings in the original court.

Needless to state that in an application for revision as contemplated under Article154 P (3) (b), what is expected to be ascertained is whether there are real legal grounds for impugning the decision of the High Court in the field of law relating to revisionary powers and not whether the impugned decision is right or wrong. Hence, in such an application the question of a re-hearing or the re-evaluation of evidence in order to arrive at the right decision does not arise. The appeal in the strict sense is not one against the determination of the judge of the primary court but against the judgment of the High Court exercising revisionary powers. Therefore, it would be correct to say that the right of appeal is not unconditional as in the other cases but a qualified right provided one has the legal ground to invoke the discretionary jurisdiction of the High Court against an order under chapter VII.

In the case of Kanthilatha(supra) relying heavily on the decision in Edward Vs De Silva (7) it was observed that the ordinary rule is that once an appeal is taken from the judgment of an inferior Court, the jurisdiction of the court in respect of that case is suspended. The judgment in Edward Vs de Silva (supra) was based on the decision of A.G. vs. Sillem(8).

The judgment in Edward Vs De Silva (supra) relates to the question of the procedure to be followed when a judgment creditor is desirous of reaping the reward of his hard work in the District Court, pending the determination of the appeal. The provisions of the Civil Procedure Code being applicable in such an instance, it was held it is a condition

precedent for execution pending appeal to notice the judgment debtor in terms of section 763 of the CPC and also make him a party to such incidental proceedings. Commenting on the failure to take such steps, it was held that it would result in a failure of jurisdiction and none of the orders made thereafter would be of any legal consequences. Further, commenting on the effect of issuing writ pending appeal in a civil action Soertsz A.C.J opined that the ordinary rule is that once an appeal is taken from the judgment of an inferior Court, the jurisdiction of that Court is suspended except, of course, in regard the perfecting of the appeal. His Lordship then cited with approval the dictum of Lord Westbury, Lord Chancellor (1 864), who observed in Attorney-General v. Sillem (supra) at 1208 as follows . . .

"The effect of a right of appeal is the limitation of the jurisdiction of one Court and the extension of the jurisdiction of another"

Having cited the above dictum, Soertsz A.C.J expressed that the right of appeal being exercised the case should be maintained in status quo till the appellate Court has dealt with it. His Lordship then expressed that the language of Chapter 49 of the Code makes it sufficiently clear that the Legislature was creating an exception to the ordinary rule in a limited way.

Soertsz A.C.J was greatly influenced by the decision of the Privy Council in three Indian cases Keel Vs Asirwathan(9), Ragunath Das v. Sundra Das Khelri(10) and Malkar Jun v. Nahari(11) when His Lordship decided Edward's case. Surprisingly, neither the three Indian cases nor the case of Edward Vs De Silva (supra) were either relevant or have any bearing whatsoever in respect of the pivotal issue before us. With due respect even the dicta of Lord Parker and Lord Westbury, had no bearing upon the present revision application, especially with regard to the question of execution pending appeal under chapter VII of PCPA.

The stare decisis in the case of Edward Vs De Silva (supra) centered round the right to maintain an application for writ pending appeal without making the judgment-debtor a party and with no notice to him. Whatever pronouncement made in that judgment as to the limitation of the jurisdiction of one court, extension of the jurisdiction of another and the status quo to be maintained till the appellate court has given - its decision when an appeal is pending is nothing but an obiter. It is in any event extremely inapposite to an application for execution of a determination/order made under chapter VII of the PCPA pending appeal.

In passing it might be useful to observe that the Legislature like in the Civil Procedure Code has not provided a mechanism for an aggrieved party to obtain an order staying the execution of the judgment, when it conferred the right of appeal under Article 154 P (3). The presumption is that when Article 154 P (3) was introduced the Legislature was not unaware of the existence of section 74(2) of the Primary Court Procedure Act, particularly chapter VII.

If such provisions are not made in the Constitution or in any other Acts including the High Court of the Provinces (Special Provisions) Act 19 of 1990, then the observations of His Lordship Chief Justice Samarakoon would be of some use, although strictly may not be relevant. Nevertheless, let me reproduce the words of His Lordship for the sake of clarity.

"Today's legal position thus appears to me to be that it is not competent for the Court to stay execution of the decree merely on the ground that the judgment-debtor has preferred appeal against it, but it is competent for the Court to stay execution of a decree against which an appeal is pending, if the judgment - debtor satisfies the Court that substantial loss may result to him unless an order for stay of execution is made and furnishes the necessary security for the due performance of such decree, as may ultimately be binding upon him". (Charlotte Perera Vs Thambiah and Another(12)

Hence, we are constrained to state that in the case of Kusum Kanthilatha (supra) and Nandawathie (supra) the decision reached is on the assumption that the casus omisus clause is applicable and therefore the approach reached by inadvertence needs to be set right. Further, in Kanthilatha's case the obiter dictum has been given prominence ignoring the ratio decidendi. The judgment of Sillem relied and referred to in Edward Vs De Silva is a criminal matter arising from a statutory offence namely to refuse to pay certain revenues due to Her Majesty. As was rightly observed in the case of Attorney General us Sillem (supra) the creation of a right of appeal is an act which requires legislative authority. Neither the inferior nor the superior tribunal, nor both combined can create such a right, it being essentially one of the limitations and the extension of jurisdiction.

In any event to rely on the decision in Attorney General us Sillem for our present purpose may amount to destructive analysis of Chapter VII of the PCPA than the ascertainment of the true intention of the Parliament and carry it out by filling in the gaps. Obviously, to put off the execution process until the appeal is heard would tantamount to prolong the agony and to let the breach of the peace to continue for a considerable length of time. This in my opinion cannot be the remedy the Parliament has clearly decided upon. Hence I am confident that the construction we are mindful of placing by this judgment would definitely suppress the mischief and subtle inventions and evasions for continuance of the mischief.

In the result subject to the slight variation as to the basis of the decision, we are inclined to follow the decision in R P Nandawathie Vs K Mahindasena (supra) and therefore hold inter alia that the mere lodging of an appeal against the judgment of the High Court in the exercise of its revisionary power in terms of Article 154 P (3) (b) of the Constitution to the Court of Appeal does not automatically stay the execution of the order of the High court.

The petitioner has filed a petition of appeal and also a revision application. As the determination of the petition of appeal is still pending in order to avoid duplicity of work, it would be convenient to consider the merits of the revision application in this judgment itself. It is trite law that when there is alternative remedy available the existence of special circumstances need to be established necessitating the indulgence of court to exercise such revisionary powers vested in terms of the Constitution. VideRustum v. Hapangama Co. Ltd.(13).

It has already been stated that the judgment of the learned district judge setting aside the determination of the magistrate was solely based on the purported failure to endeavour to settle the matter prior to the inquiry. In order to come to this conclusion the learned High Court judge has relied heavily on the judgment of Ali Vs. Abdeen(14) in which it was held inter alia that the making of an endeavor by the Court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under section 66(7) began to consider who had been in possession and the fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

As far as the present case is concerned admittedly the learned magistrate has endeavoured to settle the dispute among the parties. This is clearly borne out by the record maintained by the learned Magistrate. The journal entry which demonstrates the attempt made by the Magistrate had been reproduced by the learned High Court Judge at page 13 of the impugned judgment. In terms of the judgment at page 13 the learned High Court Judge has reproduced some of the proceedings of the Magistrate in the following manner.

Upon perusal of the journal entries it is quite clear that the learned Magistrate has taken much interest to endeavour the parties to settle the matter. In terms of Section 66(7) it is the duty of the Primary Court to endeavour to settle the matter amicably before the matter is fixed for inquiry.

A different view has been taken by a Bench of two Judges in Mohomed Nizam v. Justin Dias(15) where His Lordship Sisira de Abrew, J clearly held that the delayed objection regarding non compliance of Section 66(7) cannot be taken for the first time at the stage of the appeal. This view was totally different to the basis of the decision in Ali v. Abdeen (supra) on the ground of laches.

On the facts, the present case is much stronger than the case of Ali v. Abdeen (supra) and Mohomed Nizam v. Justin Dias (supra) as regards the question or laches or acquiescence or express consent

For purpose of completeness let me reproduce the relevant part of the judgment of Sisira de Abrew, J. which reads as follows:-

"According to the above judicial decisions, the P.C.J. does not assume jurisdiction to hear the case if he fails to act under section 66(6) of the Act. In the present case, have the parties taken up the issue of jurisdiction in the Primary Court? The answer is no. The appellant in this appeal takes up the issue of jurisdiction only in the Court of Appeal. If the appellant or the respondent wants to keep up the issue of jurisdiction it must be taken up at the earliest opportunity."

This view is supported by the judicial decision in David Appuhamy Vs. Yassasi Thero(16) where it was held that an objection to jurisdiction must be taken at the earliest possible opportunity. If no objection is taken and the matter is within the plenary jurisdiction of the Court, the Court will have jurisdiction to proceed with the matter and make a valid order.

By reason of the argument advanced before the learned High Court judge as to the non-compliance of section 66(6), it is the respondent before the High Court judge who hadbenefited by that argument. He has not adverted the Magistrate to the non-compliance section 66 (6) before the Magistrate commenced the inquiry. In any event as has been stated above there has been meaningful steps taken by the Magistrate to settle the matter. On that aspect of the matter the learned High Court judge has erred when he came to the conclusion that such an attempt is not in compliance with the provisions of the PCPA.

In the land mark case of Visuvalingam And Others Vs Liyanage And Others(17) it was held that where a person by words or conduct made to another a representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or so conducts himself that another would as a reasonable man, understand that a certain representation of fact was intended to be acted on, and that other has acted on such representation and alters his position to his prejudice, an estoppel arises against the party who has made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be.

"The phrase "approbating and reprobating" or "blowing hot and cold" must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and secondly, that he will not be regarded .......... as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent" - Per Evershed M.R., (1950) 2 A.E.R. 549 at 552.

"The doctrine of approbation and reprobation requires for, its foundation, inconsistency of conduct, as where a man, having accepted a benefit given to him by a judgment cannot allege the invalidity of the judgment which confers the benefit" - Lord Russel in Evans v. Bartlam(19).

"In cases where the doctrine of approbation and reprobation does apply, the person concerned has a choice of two rights either of which he is at liberty to accept, but not both. Where the doctrine does apply if the person to whom the choice belongs irrevocably and with knowledge adopts the one, he cannot afterwards assert the other," Per Lord Atkin in Lissenden v. Bosh Ltd(20).

Therefore it is quite clear that the petitioner who invoked the revisionary jurisdiction of the High Court having taken part in the settlement and clearly expressed his unwillingness to have the matter settled (although the settlement was tried at a premature stage) cannot be allowed to take the advantage to attack the determination on the ground.

Taking into consideration all these matters, it is my considered view that the learned High Court Judge was clearly wrong when he reversed the determination of the learned Magistrate based on the ground of non compliance of Section 66(7) of the PCPA. For the foregoing reasons, I allow the revision application and accordingly set aside - the impugned judgment of the Judge of the High Court. Consequently the determination that was challenged by way of revision in the High Court will now prevail and the learned Magistrate is directed to give effect to the same. The registrar is directed to cause a copy of this judgment filed in the relevant file pertaining to appeal No CA PHC 35/2006.

There shall be no costs.

SISIRA DE ABREW, J- I agree

LECAMWASAM, J. - I agree

Application allowed.

24.SIRIPALA V LANEROLLE [CA]

Sri Lanka Law Reports 2012 - Volume 1 , Page No - 105

COURT OF APPEAL

IMAM.J

SARATH DE ABREW.J

CA PHC APN 101/2007

MC GALLE 86042

HCRA601/07

AUGUST 30,31/2007

SEPTEMBER 12/2007

OCTOBER 18/2007

Primary Courts Procedure Act- section 66- Order of Magistrate's Court- Revision in High Court dismissed - Revisionary jurisdiction of the Court of Appeal- When applicable ?- Discretionary remedy- Uberrima fides towards Court- Exceptional circumstance - Have to be pleaded ?

The petitioner Instituted action in terms of section 66 of the Primary Courts Procedure Act. Action was dismissed. The Revision application filed in the High Court was also dismissed. The petitioner thereafter moved in Revision in the Court of Appeal. On an objection- lodged that Revision does not lie.

Held:

(1) Revisionary power is a discretionary power arid its exercise cannot be demanded as of right unlike the statutory remedy of appeal.

(2) Revision would lie if

(i) aggrieved party has no other remedy

(ii) if there is, then revision would be available if special circumstances could be shown to warrant it .

(iii) Party must come to court with clean hands and should not have contributed to the current situation.

(iv) he should have complied with the law at that time

(v) acts should have prejudiced his substantial rights

(vi) acts should have occasioned a failure of justice.

(3) General principles that have emerged from a galaxy of authorities is that revision will not lie where an appeal or other statutory remedy is available.

(4) Failure to avail himself of the alternative remedy of appeal would not necessarily be a bar to Invoking the revisionary powers provided there are exceptional circumstances.

(5) Presence of exceptional circumstances by itself would not be sufficient If there is no express pleading to that effect in the petition whenever an application is made invoking the revisionary jurisdiction of the Court of Appeal.

(6) Petitioner has neither disclosed nor expressly pleaded exceptional circumstances that warrant intervention by way of revision.

Per Sarath de Abrew, J .

it is a cardinal principle in revisionary jurisdiction that In order to invoke discretionary, revisionary powers the petitioner shall make a full disclosure of material facts known to her and there by show uberrima fides towards Court. Deliberate non disclosure is fatal.

APPLICATION in Revision from an order of the High Court of Galle.

Cases referred to :

1. T. Varapragasam and another v. S. A. Emmanual CA931/84 (Rev) CAM 24.7.1991

2. Thilagaratnam v. E.A.P. Edirisinghe 1982 - 1 Sri LR 56

3. Camillus Ignatius v. OLC Uhana and another - CA Rev. 907/89

4. M . A. Sirisena v. C. D. Richard Arsala and others - CA 536/84 CAM 24.10.1990

5. Hotel Galaxy Ltd. v. Mercantile Hotel Management Ltd. - 1987 1 Sri LR 05

6. Urban Development Authority v. Ceylon Entertainments Ltd. -CA 1319/2001 CAM 5 . 4 . 2002

Ransiri Fernando with Chandana Liyanage for petitioner - petitioner - petitioner

J. C. Wellamuna with Maduranga Ratnayake for respondent - respondent - respondent .

Cur. adv. vult .

June 05, 2008

Sarath De Abrew, J .

This is a revision application filed by the petitioner - petitioner -petitioner (hereinafter referred to as the petitioner) in order to set aside the impugned order dated 23.07.2007 (A9) of the High Court of Galle and the order dated 27.06.2007 (A7) of the Magistrate's Court of Galle respectively. The petitioner instituted action against the respondent - respondent - respondent (hereinafter referred to as the respondent) in terms of Section 66 of the Primary Courts Procedure Act regarding a dispute with regard to the possession of land called . "Halwaturegoda Kekunagaha Bedde" depicted as lot A in plan No . 1882 (P3) situated at Lelwala, Galle, where in the petitioner claimed he had been forcibly dispossessed by the respondent. After granting interim relief , the learned Magistrate of Galle, after due inquiry, made order dismissing the action of the petitioner (A7). Thereafter the petitioner moved in revision in the High Court of Galle , whereupon the learned High Court Judge, after hearing the petitioner in support, refused to issue notice and made order dismissing th e application (A9). Being aggrieved by the aforesaid orders, the petitioner has invoked the revisionary jurisdiction of this Court by filing this revision application in order to have the aforesaid orders set aside.

When the matter came up for support before this Court, learned Counsel for the respondent raised the following preliminary object ions, and urged Court to uphold the preliminary objections and dismiss the application of the petitioner in limine .

(a) The Petitioner could not have filed and maintained the instant Revision Application without exercising the statutory right of appeal available thereof, and in any event the petitioner has failed to plead and demonstrate existence of exceptional or special circumstances and, in fact, there does not exist exceptional or special circumstances warranting the exercise of the discretionary power of this Court by way of revision.

(b) The instant revision application should fail in as much as the petitioner has sought to revise the order of the learned Magistrate twice over (first in the High Court and now in the Court of Appeal) which is contrary to the legislative intent.

As both parties agreed that the aforesaid preliminary objections be decided by way of written submissions, both the petitioner and the respondent have filed written submissions along with case law authorities.

I have perused the petition as well as the entirety of the documentation annexed to the petition including the proceedings before the Galle Magistrate Court and the High Court, and the respective written submissions fried by both parties.

The revisionary power of this Court is a discretionary power and its exercise cannot be demanded as of right unlike the statutory remedy of Appeal. Certain pre-requisites have to be fulfilled by a petitioner to the satisfaction of this Court in order to successfully Invoke the exercise of such discretionary power. This is best illustrated in T. Varapragasan and another vs. A. Emanuel(1) where it was held that the following tests have to be applied before the discretion of the Court of Appeal is exercised in favour of a party seeking the revisionary remedy.

(a) The aggrieved party should have no other remedy.

(b) If there was another remedy available to the aggrieved party, then revision would be available if special circumstances could be shown to warrant it.

(d) The aggrieved party should have complied with the law at that time.

(e) The acts complained of should have prejudiced his substantial rights.

(f) The acts or circumstances complained of should have occasioned a failure of justice.

The main contention of the Respondent is that not only has the petitioner failed to avail himself of the alternative remedy of the statutory right of appeal against the impugned order of the learned High Court Judge of Galle (A9), but also has failed to plead and demonstrate the existence of exceptional circumstances which would open the gate-way to revision.

The legal principle with regard to the above is succinctly stated by L.H. De Alwis J in Thilagaratnam v. EAP Edirisinghe(2) who remarked "though the Appellate Courts powers to act in revision were wide and would be exercised whether an appeal has been taken against the order of the original Court or not, such powers would be exercised only in exceptional circumstances."

Therefore the legal principle that failure to adopt the alternative remedy of Appeal would not necessarily be a bar to Invoking the revisionary powers, provided there are exceptional circumstances, have been followed in several authorities and has now become settled law.

Eg: Camillus Ignatius v. O.I.C. Uhana and others.(3)

M. A. Sirisena v. C. D . Richard Arsala and others.(4)

In Hotel Galaxy Ltd. V. Mercantile Hotel Management Ltd.(5) Sharvananda C.J. reiterated "It is settled law that the exercise of revisionary powers of the Appellate Court is confined to cases In which exceptional circumstances exist warranting its intervention."

The general principle that has emerged from a galaxy of such authorities is that revision will not lie where an appeal or other statutory remedy is available. It Is only if the aggrieved party can show exceptional circumstances for seeking relief by way of revision, rather than by way of appeal when such appeal is available as of right, that the Court will exercise its revisionary jurisdiction in the Interests of the due administration of Justice.

In the instant case the petitioner has not adopted the statutory right of appeal nor has he given any reasons far not doing so in the petition. Paragraph 13 of the Petition has set out several questions of law which could have been easily settled in an appeal. In fact paragraph 14 of the Petition reads "The Petitioner states that there are well and sufficient issues of Law arising out of the order of the learned High Court Judge marked A9 that deserve to be tested by an order of Your Lordship's Court". The petition therefore fails to demonstrate any exceptional circumstance or any error on the face of the record that would open the gateway for revision.

Even though the petitioner attempts to justify the recourse to revision as against appeal in his written submissions, It is well settled law that existence of such exceptional circumstances should be amply and clearly demonstrated in the petition itself.

In Urban Development Authority v. Ceylon Entertainments Ltd. and another(6) Nanayakakara J. held with Udalagama J. agreeing) that presence of exceptional circumstances by itself would not be sufficient if there is no express pleading to that effect in the Petition whenever an application is made invoking the revisionary jurisdiction of the Court of Appeal.

In the instant application the petitioner has neither disclosed nor expressly pleaded exceptional circumstances that warrant intervention by way of revision. In the event, I am inclined to uphold the first preliminary objection raised by the respondent and therefore do not proceed to consider the second ground.

However my task would not be complete if I fail to dwell on a very salient feature of this application, namely the application of the principle of uberrima fides. On a perusal of the totality of the pleadings, it is quite apparent that as disclosed in documents V4 and V25, the petitioner himself has been a party and signatory to a mortgage of a larger land which included the corpus in this case to the Peoples Bank who had acquired and sold the land in question to the respondent on the failure of the petitioner and others to redeem the mortgage and repay the loan to the Bank. However in paragraph 05 of the petition the petitioner vaguely refers to his brother having mortgaged part of the land to the People's Bank. In the proceedings before the Magistrate Court and the High Court, the petitioner has not sought to challenge the illuminating deed of mortgage V4. In the petition filed before the Magistrate Court (A 1) there is no reference at all to the aforesaid mortgage. By his failure to redeem the Mortgage, the petitioner too appears to have contributed to the current situation, which conduct accrues adversely against the petitioner in view of the Varapragasam case quoted above.

It is a cardinal principle in revisionary jurisdiction that in order to invoke discretionary revisionary powers the petitioner should made a full disclosure of material facts known to him and thereby show uberrima fides towards Court. Deliberate non- disclosure should be regarded as fatal to the application.

Eg: Sirisena v. Richard Arsala and others (supra). In the instant case the Petitioner has clearly infringed the aforesaid cardinal rule.

For the reasons stated above this Court is of the view that this is not a fit case to invoke the discretionary revisionary powers of this Court. Therefore I uphold the first preliminary objection raised by the respondent and dismiss the application of the petitioner in limine. In all the circumstances of this case I make no order as to costs.

The Registrar is directed to forward copies of this order to the learned High Court Judge and the learned Magistrate of Galle. Application is accordingly dismissed

Imam , J. - I agree.

Preliminary objection upheld.

Application dismissed.

25.PATHMA ABEYWICKREMA V JEEVANI [CA]

Sri Lanka Law Reports 2012 - Volume 1 , Page No - 393

COURT OF APPEAL

SISIRA DE ABREW.J CHITRASIRI.J

CA[PHC] 67/2000 HC GALLE 51/99

JULY 23,24,2012

Primary Courts Procedure Act- 44 of 1979- Section 66- Order canvassed in Revision- Permission not granted to file objections- Order on the Revision application fixed- Appeal against the order refusing to grant time lodged in the Court of Appeal - Not taken up- Is the order refusing the application to tender objections a final order or an interlocutory order- Civil Procedure Code- Section 754 [1], [2] - [5] - Partition Law

Held:

Per Sisira de Abrew.J

"The High Court by the said order-6.4.2000 refusing permission to file objections, has not decided the revision application. He was going to deliver his order later. The High Court Judge by his order- 6.4.2000 has not finally disposed of the rights of the parties. This is not a final order."

The order of the High Court Judge on 6.4.2000 has not determined the matter in litigation.

APPLICATION in Revision from an order of the High Court of Galle.

Cases referred to:-(1) Siriwardena vs. Air Ceylon Ltd 1984 1 Sri LR 28

(2) Ranjit vs. Kusumawathie -1998 3 Sri LR 232

(3) White vs. Brunton-1984 2 AlI ER606

(4) Shubrook vs. Tufnel-1882 9 QBD 621

(5) Salaman vs. Warner and Others- 1891 1 QB 734

(6) Bozon vs. Altrincham Urban District Court 1903 1 KB (7) Issac and Sons vs. Salbstuien 1919 [2 KB 139 at 147]

(8) Chettiar vs. Chettiar 2011 BALR 25

Varuna Senadheera for appellant

Sanjeeva Ranaweera for respondent.

September 27, 2012

SISIRA DE ABREW J.

This is an appeal to set aside the order of the learned High Court Judge dated 6.4.2000. The learned Magistrate in an application under section 66 of the Primary Courts Procedure Act No 44 of 1979 made an order in favour of the appellant. Being dissatisfied with the said order, the respondents filed a revision application in the High Court seeking to set it aside. The appellant could not file her objection although notice was sent by the High Court directing her to file objection. The learned High Court Judge thereafter decided to deliver his order without the objections of the appellant. The appellant however sought permission of the High Court to file her objection. The learned High Court Judge, by his order dated 6.4.2000, (delivered on 7.4.2000) rejected the said application and decided to deliver his order on the revision application filed in the High Court. This order was fixed for 31.5.2000. But before 31.5.2000, the appellant, on 3.5.2000, filed an appeal against the order of the learned High Court Judge dated 6.4.2000. The learned High Court Judge forwarded the case record to this court.

Learned counsel for the respondents submitted that the order of the learned High Court Judge dated 6.4.2000 was not a final order and that therefore this appeal should be rejected. Learned counsel for the appellant submitted that as the learned High Court Judge, by the said order, has finally disposed of the rights of the appellant, the order was a final order. I must therefore examine whether the said order of the learned High Court Judge is a final order or not. In order to decide this question I would like to consider certain judicial decisions.

In Siriwardene Vs Air Ceylon Ltd(1) Sharvananda J (as he then was) held thus: "The tests to be applied to determine whether an order has the effect of a final judgment and so qualifies as a judgment under section 754(5) of the Civil Procedure Code are :

1. It must be an order finally disposing the rights of the parties.

2. The order cannot be treated as a final order, if the suit or the action is still left a live suit or action for the purpose of determining rights and liabilities of the parties in the ordinary way.

3. The finality of the order must be determined in relation to the suit.

4. The mere fact that a cardinal point in the suit has been decided or even a vital and important issue determined in the case, is not enough to make an order a final one.

By these tests an order amending a decree made under section 189 of the Civil Procedure Code is a final order. Hence the appellant's application for leave to appeal was misconceived, could not be entertained."

In Ranjith Vs Kusumawathie(2) case filed in the District Court was a partition action. In the said case the 4th defendant filed his statement of claim. On the day of the trial all parties except the plaintiff were absent. Evidence of the plaintiff was led and the judgment and the interlocutory decree were entered. Later the 4th defendant applied to the trial court in terms of section 48(4)(a)(IV) of the Partition Law, for special leave to establish his right, interest and title to the corpus, seeking to explain his failure to appear at the trial. The application for leave to appeal was rejected by the District Court. The appellant then preferred an appeal to the Court of Appeal against the order of the Court of Appeal in terms of section 754(1) of the Civil Procedure Code. The Court of Appeal rejected the appeal on the basis that what was appealed from was an order within the meaning of section 754(2) of the Civil Procedure Code and that therefore an appeal could lie only with the leave of the Court of Appeal first had and obtained. The Supreme Court affirming the judgment of the Court of Appeal held thus: "the order of the District Court is not a judgment within the meaning of section 754 (1) and 754(5) of the Civil Procedure Code for the purpose of an appeal. It is an order within the meaning of section 754(2) of the Code from which an appeal may be made with the leave of the Court of Appeal first had and obtained."

Justice Dheerarathne in Ranjith Vs Kusumawathi (supra) at 236 observed thus: "There have been two virtually alternating tests adopted by different judges from time to time in UK to determine what the final orders and interlocutory orders were. In White Vs Brunton(3) Sir John Donaldson MR labeled the two tests as the order approach and the application approach. The order approach was adopted in Shubrook Vs Tufnel(4) Jessel MR and Lindely LJ held that an order is final if it finally determines the matter in litigation. Thus the issue of final and interlocutory depended on the nature of the order made. The application approach was adopted in Salaman Vs Warner & Others(5) in which the Court of Appeal consisting of Lord Esher MR, Fry and Lopes LJJ held that the final order is one made on such application or proceeding that, for whichever side the order was given, it will, if it stands, finally determine the matter in litigation. Thus the issue of final or interlocutory depended on the nature of the application or proceedings giving rise to order and not the order itself."

In Bozson Vs Altrincham Urban District Council(6) at 548 Lord Alverstone CJ dealing with a question whether an order was a final order or interlocutory order laid down the following test: "It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion an interlocutory order". Swinfen Eady LJ (with whom Pickford and Bankes LJJ agreed) in Isaac & Sons v. Salbstein(7) at 147 approved the test of finality stated by Lord Alverstone C J.

In Chettiar Vs Chettiar(8) plaintiff filed action in the District Court of Colombo praying for relief against the trustees of a Hindu Temple in terms of section 101 of the Trust Ordinance. The defendants by way of a motion brought to the notice of court that the plaintiffs action is barred by a positive rule of law and moved to dismiss the plaint in limine in view of section 46(2) of the Civil Procedure Code. The learned District Judge, by his order dated 14.5.2008, upheld the objection and dismissed the plaint. The matter for determination was whether the order of the District Judge was a final order. The Supreme Court (a bench of five judges) after considering several judicial decisions including Siriwardene vs Air Ceylon (supra) and Ranjith vs Kusumawathi (supra) held thus:

"Considering the decision given by Dheerarathne J in Ranjith Vs Kusumawathi (supra) it is abundantly clear that the order dated 14.5.2008 is not a final order having the effect of a judgment within the meaning of sub section 754(1) and 754(5) of the Civil Procedure Code, but is only an interlocutory order."

Coming back to the facts of this case, I ask the question: even according to the dictum of Alverstone CJ is the order of the learned High Court Judge dated 6.4.2000 a final order. Has the said order finally disposed of the rights of the parties? The learned High court Judge, by the said order, has not decided the revision application. He was going to deliver his order on 31.5.2000. Therefore the learned High Court Judge, by his order dated 6.4.2000, has not finally disposed of the rights of the parties. Thus even according to the dictum of Lord Alverstone CJ, the order of the learned High Court Judge dated 6.4.2000 is not a final order.

Even according to the principles laid down in the Shubrook Vs Tufnell (supra) and Salaman Vs Warner and Others (supra) is the order of the learned High Court Judge dated 6.4.2000 a final order? Has the said order finally determined the matter in litigation? The answer is clearly 'no'. The learned High Court Judge was going to deliver his order on the revision application on 31.5.2000. Before the said date the appellant filed this appeal.

For the above reasons, I hold that the order of the learned High Court Judge dated 6.4.2000 is not a final order and that therefore no appeal lies against the said order. I therefore dismiss the appeal with costs.

The learned High Court Judge is directed to deliver the order on the material already submitted to the High Court in connection with the Revision application.

Appeal dismissed.

CHITRASIRI J. -I agree.

Appeal dismissed.

26.SUBASHINI VS. OIC, TISSAMAHARAMA [CA]

Sri Lanka Law Reports 2014 - Volume 1, Page No - 83

COURT OF APPEAL

ABDUL SALAM, J. (P/CA)

RAJAPAKSE, J.

CA PHC 128/2011

PHC HAMBANTOTA 7/2010

MC TISSAMAHARAMA 99595/09

FEBRUARY 18, 2014

SEPTEMBER 2, 2014

Primary Courts Procedure Act No. 44 of 1979 Section 66(1) (a) - Agricultural Development Act Section 90 - interference with Cultivation Rights of owner cultivator or occupier - Could the jurisdiction conferred under Section 66 be exercised? - Special Tribunal created to give specific remedy - Resort to that Tribunal?

Held:

(1) Where a statute created a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement a party seeking to enforce the right must resort to that tribunal and not to others.

APPEAL from the Judgment of the provincial High Court (Hambantota)

Cases referred to:-

1. Mansoor vs. OIC Avissawella 1991 2 SLR 75

Anuruddha Dammika with Indika Jayaweera for 1st party petitioner - Appellant

Gamini Premathilake with Ranjith Henri for 2nd party respondent

02nd October 2014

A.W.A. SALAM, J (P/CA)

This is an appeal preferred against the judgment of the learned High Court Judge of Hambantota. The learned High Court Judge in turn delivered his judgment, when the 1st party respondent petitioner Appellant sought a writ against the order of the learned Magistrate refusing to exercise jurisdiction over a dispute relating to paddy land with regard to right to cultivation and dispossession.

The learned Magistrate relying on Section 90 of the Agricultural Development Act has rejected the report filed under Section 66(1)(a) of Act No 44 of 1979, on the basis that the jurisdiction conferred under the said Section 66 cannot be exercised, when the legislature has conferred a particular relief over such disputes.

The learned Judge of the High Court has affirmed the decision of the learned Magistrate on the same premise relied upon by the Magistrate.

Section 90 of the Agrarian Development Act reads as follows. . .

"INTERFERENCE WITH CULTIVATION RIGHTS OF OWNER CULTIVATOR OR OCCUPIER.

90.(1) Where a complaint is made to the Commissioner general by any owner cultivator or occupier of agricultural land that any person is interfering with or attempting to interfere with the cultivation rights, threshing rights, rights of using a threshing floor, the right of removing agricultural produce or the right to the use of an agricultural road of such owner cultivator or occupier, the Commissioner General after inquiry may if he is satisfied that such interference or attempted interference will result in damage or loss of crop or livestock, issue an order on such person, cultivator or occupier requiring him to comply with such directions as may be specified in such order necessary for the protection of such rights:

Provided that an order under this section shall not be made for the eviction of any person from such agricultural land:

Provided further that an order issued under subsection(1)

shall not prejudice the right, title or interest of such person, cultivator or occupier to such land, crop or livestock in respect of which such order is made.

[2] For the purpose of ensuring compliance with the provisions of an order under subsection (1) the Commissioner - General may seek the assistance of a peace officer within whose area of authority such agricultural land in respect of which such order is made lies, and it shall be the duty of such Peace Officer to render such assistance as is sought and the Peace Officer may for such purpose use such force as may be necessary to ensure compliance with such order.

[3] An order under subsection (1) shall be binding on the person in respect of whom it is made until set aside by a court of competent jurisdiction.

[4] Any person who fails to comply with an order made under subsection (1) shall be guilty of an offence under this Act.

[5] A certificate in writing issued by the Commissioner - General to the effect that the directions contained in an order made by him under subsection (1) has not been complied with by the person specified therein shall be prima facie evidence of the facts stated therein.

In Mansoor vs. OIC Avissawella(1) this Court reiterated the principle that where a Statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement a party seeking to enforce the right must resort to that tribunal and not to others.

Taking into consideration the Agricultural Development Law (Section 90) and the ratio in Mansoor Vs. OIC, Avissawella (supra), I am of the opinion that the appeal preferred merits no favourable consideration. Accordingly, the appeal stands dismissed.

SUNIL RAJAPAKSE, J. I agree.

Appeal dismissed.

Sri Lanka Law Reports

27.KARUNANAYAKE V SANGAKKARA

2005 - Volume 2, Page No - 403

COURT OF APPEAL

SOMAWANSAJ (P/CA), WIMALACHANDRA. J

CA 475/2002, CA (PHC) 213/2001, H. C. KANDY 21/2001

PRIMARY COURT, KANDY 73143

MAY 9,2005.

Per Somawansa. J (PICA)

Appeal from the Provincial High Court of Kandy.

Cases referred to :

1. Ramalingarn vs. Thangarah 1982 2 Sri LR 693.

2. Kanagasabai vs. Mailvanaganarn 78 NLH 280 S. N. Wjithsingh for petitioners.

L. C. Seneviratne, I? C., with A. Dharmaratne for Is' and Znd respondents.

July 1,2005

Andrew Somawasa, J. (PICA)

"A determination and order under this Part shall be made after examination and consideration of-

(a) the information field and the affidavits and documents furnished ;

(b) such other evidence on any matter arising on the affidavits or documents furnished as the Court may permit to be led on that matter ;

It was held in that case:

Wimalachandra, J. 1 agree.

Appeal allowed.

28.IQBAL V MAJEDUDEEN [CA]

Sri Lanka Law Reports 1999 - Volume 3 , Page No - 213

COURT OF APPEAL.

YAPA, J., GUNAWARDANA, J.

C.A. (PHC) NO. 100/97 - HCRA NO. 820/96

M.C. COLOMBO NO. 72192/3.

SEPTEMBER 7, 1998, DECEMBER 15, 1998.

MAY 8, 1999.

Primary Courts Procedure Act - Possession - Actual or constructive - Forcible dispossession - S. 68 (3) - Breach of Peace - Dispossession in the absence of the party.

The 1st respondent-respondent upon the death of her husband, went to live with her mother, and the premises in question, where she was living earlier was locked up by her. The 2nd respondent-appellant, after she returned to Sri Lanka, broke open the door of the premises and entered into possession.

The 1st respondent-respondent was restored to possession by the Primary Court and the High Court. On appeal -

Held:

1. The fact for determining whether a person is in possession of any corporeal thing, such as a house, is to ascertain whether he is in general control of it.

2. The law recognizes two kinds of possession:

(i) When a person has direct physical control over a thing at a given time - actual possession.

(ii) When he though not in actual possession has both the power and intention at a given time to exercise dominion or control over a thing either directly or through another person - constructive possession.

3. 'Forcibly dispossessed' in s. 68 (3) means, that dispossession had taken place against the will of the persons entitled to possess and without authority of the law.

4. "Breach of the Peace is likely' does not mean that the Breach of the Peace would ensue for certainty, rather it means that a Breach of the Peace is a result such as might well happen or occur or is something that is, so to speak, on the cards.

S. Mahenthiran with Ms. P. Narendran for petitioner.

M. C. M. Muneer with Ms. Inoka Ranasinghe for respondents.

Cur. adv. vult.

September 30, 1999

GUNAWARDANA, J.

This is an appeal against an order dated 30. 06. 1997 made by the High Court dismissing an application in revision in respect of an order dated 27. 12. 1996 whereby the learned Primary Court Judge had restored, in terms of that order, Samsunnisa Majeebuden (hereinafter referred to as the 1st respondent) to the possession of the premises in dispute, ie No. 24/67, Maha Vidyalaya Mawatha, Colombo 13.

The aforesaid 1st respondent had made a complaint to the Kotahena Police on 15. 08. 1996 to the effect that she was ousted from the possession of the relevant premises on or about the same date by the 2nd respondent-petitioner-appellant, viz Affeerun Nihar Hasnoon Iqbal.

The 1st respondent in her statement to the Police, referred to above, had stated that she upon the death of her husband, somewhere in June, 1995, with whom she had been living along with their children, went to live with her mother at No. 49/20, 17th lane, Kotahena, but that she kept the premises in question locked up and retained control there of. The 1st respondent had explained that she went to live with her mother temporarily as she had to live in seclusion on the death of her husband for a period of 04 months in observance of the custom prevalent amongst Muslims.

The statement marked 1 V 21 made by the 2nd respondent petitioner-appellant to the Police on the same date, ie 15. 08. 1996 is revealing, in that she had admitted therein, that some time after she returned to Sri Lanka, somewhere in May, 1995, from the Middle East, she broke open the door of the premises No. 24/67 which is the subject-matter of this case, and entered into possession thereof. The 2nd respondent-petitioner-appellant had, in that statement to the Police, even chosen to give a reason for doing so - the reason given by her being that the premises, ie No. 24/68 occupied by her was not spacious enough for her family consisting, as it did, of six persons or members. In her statement to the Police, the 2nd respondent petitioner-appellant had clearly admitted that she gained entry into or possession of premises No. 24/67 (which is the subject-matter of this case) which premises had been closed or locked up by the 1st respondent. This admission, that is, that the premises in question was kept locked up by the 1st respondent confirms the fact that the 1st respondent had actual control and management of the same which served to show that the 1st respondent had possession of the property in question, before the 1st respondent was, admittedly, ousted by the 2nd respondent-petitioner-appellant. The test for determining whether a person is in possession of any corporeal thing, such as a house, is to ascertain whether he is in general control of it. Salmond observes that a person could be said to be in possession of, say, a house, even though that person is miles away and able to exercise very little control, if any. It is also significant to note that in her statement to the Police, the 2nd respondent-appellant had admitted that the 1st respondent lived in the relevant premises during the life-time of the latter's husband. It is interesting to notice that the 1st respondent's position that she was in possession and was ousted by 2nd respondent-petitioner-appellant is largely proved, as explained above, on the statement that the 2nd respondent-petitioner-appellant herself has made to the Police.

The law recognizes two kinds of possession:

(i) when a person has direct physical control over a thing at a given time, he is said to have actual possession of it;

(ii) a person has constructive possession when he, though not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing either directly or through another person. In this case in hand, perhaps, it cannot be said that the 1st respondent has actual physical possession because she was not in physical occupation of the house in question; but she clearly had, at least, constructive possession because she, by keeping the premises locked, clearly exercised not only dominium or control over the property in question but also excluded others from the possession there of. By keeping the premises locked, she, ie the 1st respondent, had not only continued to retain her rights in respect of the property in question but also was exercising a claim to the exclusive control there of, and her affidavit evidence is that she had not terminated her intention to revert to the physical occupation of the relevant premises.

The report of the officer in charge of the Police station whereby this dispute was brought to the cognizance of the Primary Court had been filed on 16. 09. 1996 and according to the statements that had been made to the Police, the 2nd respondent-petitioner-appellant had entered into occupation of the relevant premises on or about 15. 08. 1996. But, as the dispossession of the 1st respondent had been effected forcibly within 02 months of the date immediately preceding the date on which information regarding the dispute had been filed by the Police, the 1st respondent is entitled to be restored to possession. "Forcibly dispossessed" in 68 (3) of the Primary Courts' Procedure Act, means that dispossession had taken place .against the will of the person entitled to possess and without the authority of law. Such dispossession is calculated to or tend to a breach of the peace although, in this instance, there had been no such breach, because the dispossession had taken place in the absence of the party, ie the 1st respondent who would have opposed and resisted the dispossession had she been, in fact, present on the scene, at the relevant time.

There is somewhat of an interesting feature in this case: it was the 2nd respondent-petitioner-appellant who had, rather surprisingly, first, made a statement to the Police, regarding this incident, wherein she had made the admissions referred to above - one such admission being, as pointed out above, that she entered into occupation of the premises No. 24/67 which had till then remained locked up by the 1st respondent. This statement had been made on 15. 08. 1996 at 9.30 am, whereas the 1st respondent, who was ousted, had made the complaint, subsequently, on the same day at 4.30 pm. In her statement, the 2nd respondent-petitioner-appellant had stated that she was making that statement to the Police for, to use her own words, her "future safety or protection" - perhaps, protection from or against the consequences of her own wrongful act. it is significant to note that by the time, ie 9.30 am, that the 2nd respondent-petitioner appellant made the statement to the Police, nobody had made any complaint against her regarding her entry into premises No. 24/67, for the 1st respondent's complaint of ouster, although made on the same date, ie 15. 08. 1996 was later in point of time, ie at 4.30 pm. It is not difficult to put two and two together and infer that the 2nd respondent-petitioner-appellant had been prompted, by the consciousness of her own wrongdoing in forcibly entering the premises under the control of the 1st respondent - to make the first move in bringing what she had done to the notice of the Police.

I see no reason to interfere with the said orders made by the learned Magistrate and the High Court Judge respectively, restoring the 1st respondent to possession of the premises in question, viz No. 24/67, Maha Vidyalaya Mawatha, Colombo 13, and I affirm both the said orders. The appeal is hereby dismissed.

In conclusion, it is to be remarked that it would not be inopportune to add to what I have said above, in regard to the vexed or much discussed question: under what circumstances can it be said that a given dispute is likely to lead to a breach of the peace. A hint or slight indication relative to that question may be helpful, in that it would offer a directing principle in regard to the question whether any given dispute or circumstances are likely to lead to a breach of the peace which expression generally signifies disorderly, dangerous conduct and acts tending to a violation of public tranquility or order. One may safely conclude that if the entry into possession is done or effected by force or involves force it is, in the nature of things, such an entry as is likely to evoke resistance which would invariably be fraught with the danger that it would be productive of friction. "BREACH OF THE PEACE IS LIKELY" DOES NOT MEAN THAT THE BREACH OF THE PEACE WOULD ENSUE FOR A CERTAINTY; RATHER, IT MEANS THAT A BREACH OF THE PEACE (OR DISORDER) IS A RESULT SUCH AS MIGHT WELL HAPPEN OR OCCUR OR IS SOMETHING THAT IS, SO TO SPEAK, ON THE CARDS.

HECTOR YAPA, J. - I agree.

Appeal dismissed.

29.KAYAS V NAZEER [S C]

Sri Lanka Law Reports

2004 - Volume 3 , Page No - 202

SUPREME COURT

FERNANDO, J.. AMEER ISMAIL, J. WEERA SURIYA, J.

SC 49/2002, CA 105/96, P.C PANW1LA 8113

JANUARY 27, 2003

MARCH 4, 2003

MAY 8, 29, 2003

JUNE 5, 2003

Primary Courts Procedure Act - Section 23-36, Section 37-53, Section 66, Section 68 (1), Section 68(3), Section 68(7), Section 76, Section 78 - Who is an aggrieved party - Locus Stand) - Issuing of a writ of ejectment - Validity? -Restoration to possession? - Circumstances - What is the object of Revision? When could the Primary Court activate the fiscal to eject a person in possession?

In a Section 66 inquiry, the Primary Court held that the 1st respondent N was in possession of the land on the date of filing the information and prohibited any interference by the 2nd respondent T. The application in Revision filed in the Court of Appeal was dismissed, Thereafter - when the 1st respondent N sought a writ from the Primary Court for restoration of possession, he was resisted by the petitioner, The Primary Court dismissed the claim of the petitioner. The application in Revision filed in the High Court was dismissed on the ground that the petitioner lacked locus standi. The appeal lodged in the Court of Appeal was also dismissed.

On appeal to the Supreme Court.

Held (1) Section68 (4) does not make It obligatory for the Primary Court to make an order for restoration of possession. It is an additional order a Primary Court Judge could make at his discretion if the facts and circumstances warrant such a direction.

(2) It is superfluous for the Primary Court Judge to make an additional order in favour of the 1st respondent in terms of Section 68 (4) to order restoration of possession since the 1st respondent was in actual possession.

(3) Section 68(3) mandates the primary Court Judge directing restoration, if he is satisfied that any person who had been in possession has been forcibly dispossessed within two months immediately preceding the date of filing the information.

(4) The Primary Court could activate the fiscal to eject a person in possession in terms of Section 76 in the following circumstances.

(a) Where there is an order under Section 68 (3).

(b) Where this is an order under Section 68 (4)

This remedy is not available to a person who had voluntarily parted his possession flowing from transferring his proprietary rights.

(5) The Primary Court Judge lacked jurisdiction to issue a writ against the appellant ordering restoration of possession to the 1 st respondent N as -

(a) He has parted with his possession when he transferred his proprietary rights.

(b) The order of the Primary Court Judge did not contain an order under Section 68 (4) to restore possession to the 1st respondent.

(6) However it appears that a new dispute had arisen as regards possession 11 years after the 1st respondent N parted with his possession, the appellant was not a stranger to the execution proceedings in the Primary Court, being a person directly affected by such proceedings as it would entail his ejectment from a property where the 1st respondent had no claim to possession from 9.11.1985, in that sense the appellant is an aggrieved party being a victim of an erroneous decision by the Primary Court.

(7) The object of Revision is the due administration of justice and correction of errors and that power can be exercised in respect of any order of a lower Court to prevent an injustice on an application by an aggrieved person who is not even a party to the case.

The High Court/Court of Appeal has taken ihe mistaken view that the appellant has no locus standi. Appeal from the judgment of the Court of Appeal.

Cases referred to:-

1. Mariam Bee Bee v Seyed Mohamed - 69 CLW 31

2. AbdulSamad v Musajee -1982 -2-CALR147

3. A. G. v Gunawardane - 1996-2 Sri LR 149

S, K. Sangakkara with David Weeraratne for petitioner-petitioner- appellant Dr. J. de Almeida Gunaratne with Kishaii Pinto Jayawardane and Mangala Wijesinghe for 1st respondent-respondent-respondent.

Cur. adv. vult.

August 8, 2003

WEERASURIYA, J.

Pursuant to an information filed by Wattegama Police in terms of c Section 66 of the Primary Court Procedure Act the learned Primary Court Judge of Panwila held an inquiry into the dispute between Nazeer {1st respondent) and Thaha (2nd respondent) in respect of the land called Uduwannawalta and held that the 1st respondent was in possession of the land in dispute on the date of filing the information and accordingly prohibited any interference by the 2nd respondent. Dissatisfied with that order the 2nd respondent invoked the revisionary jurisdiction of the Court of Appeal without success. Thereafter on 25.04.1996, the 1st respondent obtained a writ from the Primary Court for restoration of possession which was resisted by the petitioner-petitioner-appellant (appellant) on the basis that he had come into possession on the strength of a deed of conveyance by the 2nd respondent (Thaha). The Primary Court Judge rejected his claim for relief by his order dated 16.05.1996.

Against that order the appellant filed an application in revision in Kandy High Court which was dismissed on a preliminary objection that he had no locus standi to make the revision application. Thereafter he invoked the appellate jurisdiction of the Court of Appeal and by order dated 14.12.2001, the Court of Appeal dismissed his appeal affirming the order of the High Court. The appellant sough special leave to appeal against the Court of Appeal order and this Court granted him leave on the following questions of law:

(1) was the Court of Appeal correct in upholding the judgment of the High Court that the appellant has no status to file a revision application as an aggrieved party in view of the binding judgments Mariam Beebi v Seyad Mohamed 0) and Abdual Samad v Musajee (2) and A. G. v Gunawardena (3) which had been cited at the argument?

(2) Was the Court of Appeal correct in its pronouncement that there is no merit in the appeal and which matter was not considered by the High Court and when it is patent;

(i) that the Primary Court lacked the jurisdiction to issue a writ of ejectment as the order of 24.10.1985 affirmed by the Court of Appeal was only a declaratory order under Section 68(1) and (2) without an enabling order under Section 68(4) of the Primary Court Procedure Act.

(ii) that the 1st respondent had divested his possession of the land by deed No. 1928 on 09.11.1985, that is eleven years prior to the order.

(iii) that the Primary Court had failed to follow the procedure mentioned in the Civil Procedure Code in execution proceedings with adaptations in terms of the casus omissus procedure laid down in Section 76 of the Primary Court Procedure Act or the procedure in Section 73 of the Act to the prejudice of the appellant.

(3) Can an order under Section 68(1) and (2) of the Primary Court Procedure Act be made use of by a party after he has divested his possession by a deed to a third party to obtain writ and eject a bona fide purchaser for value without notice of the order thereby destroying his jus retentionis right and acquire valuable improvement without payment of compensation when he had not made any protest while the improvements were being made?

Submissions

Learned Counsel for the appellant contended that appellant had ample status in law to appear in Court as an aggrieved party; that in the absence of orders under Section 68{3) or 68(4) the 1st respondent cannot apply to resolve a dispute after 11 years between assignees; that failure to follow the provisions of Section 78 is an illegality.

Learned Counsel for the 1st respondent contended that 1st respondent had merely sought the enforcement of the original order made by the Primary Court: that during the pendency of the Court of Appeal case the appellant had obtained possession from the 2nd respondent and that an order made under Section 68(1); entitles the Primary Court by using its inherent powers to make an order for ejectment.

Sections 68(1), and 68(2) of the Primary Court Procedure Act Sections 68(1) & 68(2) read as follows:

68(i) - "Where the dispute related to the possession of any land or part thereof, it shall be the duty of the Judge of Primary Court holding the inquiry to determine as to who was in possession of the land or the part on the date of the filing of the information under Section 66 and make order as to who is entitled to possession of such land or part thereof.

68(2) "An order under Sub Section (1) shall declare any one or more persons therein specified to be entitled to the possession of the land or the part in the manner specified in such order until such person or persons are evicted therefrom under an order or decree of a competent Court and prohibit all disturbance of such possession otherwise than under the authority of such order or decree".

The order of the Primary Court Judge of Panwila dated 24,10.1985 affirmed by the Court of Appeal contain following directions.

(1) A declaration that the 1st respondent is entitled to possession of the land;

(2) A prohibition on the 2nd respondent to desist from disturbing such possession of the 1st respondent; and that

(3) Any violation of the order will tantamount to commission of an offence under Section 73 and liable for punishment.

Undoubtedly, this order had been made in terms of the provisions of Section 68(1) and 68(2) of the Primary Court Procedure Act.

Section 68(4) of the Primary Court Procedure Act

Section 68(4) reads as follows:

68(4) - "An order under Section (1) may contain in addition to the declaration and prohibition referred to in Sub Section (2) a direction that any party specified in the order shall be restored to the possession of the land or any part thereof specified in such order".

Section 68(4) does not make it obligatory for the Primary Court Judge to make an order for restoration of possession, it is an additional order a Primary Court Judge could make at his discretion if the facts and circumstances warrant such a direction.

In the instant case, the Primary Court Judge had made a finding that the 1st respondent was in possession of the land on the date of filing of the information. The complaint of the 1st respondent was that, the 2nd respondent had erected a barbed wire fence obstructing his entry into the land and prayed for the removal of the fence, reiterating his position that he was in possession of the land. In the light of that material, the learned Primary Court Judge declared that the 1st respondent was entitled to possession of the land and rightly prohibited any interference with such possession by the 2nd respondent on pain of punishment.

It was superfluous for the Primary Court Judge to make an additional order in favour of the 1st respondent in terms of Section 68(4) to order restoration of possession since he was in actual possession of the land. The fact that the 1st respondent was in actual possession is manifest by his subsequent divesting of possession arising from his deed of conveyance No. 1928 dated 09.11.1985 in favour of Luthufik and Mohamed AN.

The significance of this position could be highlighted by contrasting it with the provisions of Section 68(3) of the Primary Court Procedure Act. This section mandates the Primary Court Judge to make an order directing restoration of possession if he is satisfied that any person who had been in possession has been forcibly dispossessed within two months immediately preceeding the date of filing the information.

The revision application filed by the 2nd respondent in the Court of Appeal was finally dismissed on 19.10.1994. Pending the final determination of this application, the 2nd respondent had obtained a stay order effective from 26.11.1985. Before the stay order was obtained by the 2nd respondent, the 1st respondent had transferred his ownership and possession of the land on 09.11.1985 by deed No. 1928 to Luihufik and AN. The stay order could make no impact on Luthufik and AN since by that time they had obtained possession. There was no material to suggest that between 09.11.1985 (deed of conveyance) and 19.10.1994 (date of dismissal of the revision application) that either Luthufik or AN was dispossessed by the 2nd respondent. The 1st respondent has not complained of any disturbance to his possession either by the 2nd respondent or by the appellant after the Primary Court made its initial order on 24.10.1985. However, Luthufik had complained of his dispossession on 05.04.1996 as evident from his complaint to Wattegama Police on 06.04.1996 (1 D 3 page 481 of the brief) and complaint to the Grama Niladari of Madige on 10.04.1996 (18 5 page 483 of the brief). These two complaints had been made 1 1/2 years after the dismissal of the revision application. On this material it would be clear that Luthufik was dispossessed on 05,04.1996 after the 1st respondent transferred his proprietory rights and parted with possession to Luthufik and AN on 09.11.1985 (Vide deed No. 1928 dated 09.11.85). Therefore, no question could arise of any disturbance of the 1st respondent's possession. The order made on 24.10.1985 in favour of the 1st respondent ceased to have any legal effect on the 1st respondent with his divesting of possession to Luthufik and AN on 09.11.1985.

Section 76 of the Primary Court Procedure Act

Section 76 states as follows:

"The Fiscal of the Court shall where necessary execute all orders made under the provisions of this part" The Primary Court could activate the Fiscal to eject a person in possession in terms of this Section in the following instances.

(1) Where there is an order under Section 68(3)

(2) Where there is an order under Section 68(4) and

(3) By using inherent power of Court arising from a conviction for violating orders made under Section 68(1) and (2).

It follows that the Primary Court has jurisdiction to issue a writ against a person in possession, where there is an order under Section 68(3) or 68(4) of the Act, independent of any direction to restore possession arising from a conviction in terms of Section 73 of the Act.

A person who has the benefit of an order made in terms of Section 68(1) and (2) can be restored to possession only on a conviction arising from a complaint of his dispossession. Thus a condition precedent to obtain an order for restoration of possession in favour of a person whose possession had been protected by a Section 68(1) and 68(2) order, is the existence of a conviction arising from a complaint of a violation of such order, in terms of Section 73 of the Act. This remedy is not available to a person who had voluntarily parted his possession flowing from transferring his proprietory rights.

Casus Omissus Clause (Section 78)

Section 78 of the Primary Court Procedure Act is in the following terms.

78 - "If any matter should arise for which no provision is made in the Act, the provisions in the Code of Criminal Procedure Act governing a like matter which the case or proceeding is a criminal prosecution or proceedings, and the provisions of the Civil Procedure Code governing a like matter where the case is a civil action or proceeding shall with suitable adaptations as the justice of the case may require be adopted and applied."

Section 2 of the Primary Court Procedure Act stipulates that subject to the provisions of the Act and other written law, the civil and criminal jurisdiction of the Primary Court shall be exclusive. Part III of the Act comprising Sections 24 - 36 provides for the mode of institution of criminal prosecution; while part IV of the Act comprising Sections 37 - 53 provides for the mode of institution of civil actions. Thus, Section 78 has been designed to bring in provisions of the Criminal Procedure Code Act or the provisions of the Civil procedure Code Act only in situations where either a criminal prosecutions or a civil action within part Ml or part IV of the Act respectively are involved. Inquiries into disputes affecting land where a breach of the peace is threatened or likely to be threatened under part VII comprising Sections 66 - 76 are neither in the nature of a criminal prosecution or proceeding nor in the nature of civil action or proceeding. Those proceedings are of special nature since orders that are being made are of a provisional nature to maintain status quo for the sole purpose of preventing a breach of the peace and which are to be superseded by an order or a decree of a competent Court. Another significant feature is that Section 78 while making reference to criminal prosecutions or proceedings and civil actions or proceedings, has not made any reference to disputes affecting land. This exclusion would reveal the legislative intent that Section 78 is not intended to be made use of, for inquiries pertaining to disputes affecting land under part VII of the Act.

Locus Standi

The appellant has not challenged the legality of the order of the Primary Court made on 24.10.1985 which was affirmed by the Court of Appeal. The appellant has made it clear that he is challenging the writ obtained by the 1st respondent to eject him from the land. The initial order of the Primary Court Judge to issue the writ was made on 25.04.1996 (page 248 of the brief). Admittedly, the appellant was not a party to the proceedings of the Primary Court and therefore was not a party when the Primary Court made the order on 24.10.1985, declaring that the 1st respondent was entitled to possession.

The complaint by Luthufik of his dispossession to the Police was made on 06.04.1996 and the complaint to Grama Niladari was made on 10.04.1996. Both these complaints were to the effect that 2nd respondent and some others were making preparations to build on the land. The Fiscal came to the land on 30.04.1995 (P2) to execute the writ obtained by the 1st respondent and Luthufik accompanied the Fiscal claiming that he was the agent of the 1st respondent. While the 2nd respondent did not object to the writ the appellant resisted the Fiscal and he was directed to appear before Primary Court on 02.05.1996- The appellant presented himself in Court on 02.05.1996 with his Attorney-at-Law and after hearing oral submissions, the learned Primary Court Judge directed him to tender written submissions as to why he should not be ejected. The appellant tendered written submissions on 14.04.1996 and the learned Primary Court Judge delivered his order on 13-05.1996 directing the issue of writ to eject the appellant.

The Primary Court Judge lacked jurisdiction to issue a writ against the appellant ordering restoration of possession to the 1st respondent on two grounds.

(1) The 1st respondent has parted with his possession of the land when he transferred his proprietory rights by deed No. 1928 on 09.11.1985.

(2) The order of the Primary Court Judge dated 24.10.1985 did not contain an order under Section 68(4) to restore possession to the 1st respondent.

It would appear that a new dispute had arisen between Luthufik and the appellant as regards possession 11 years after the 1st respondent parted with his possession to the land.

In the circumstances, the appellant was not a stranger to the execution proceedings in the Primary Court being a person directly affected by such proceedings as it would entail his ejectment from a property where the 1st respondent had no claim to possession from 09.11.1985. In that sense the appellant is an aggrieved party ; being a victim of an erroneous decision by the Primary Court. The error is caused by misconceiving of the applicability of the order made on 24.10.1985 vis-a-vis the 1st respondent.

In the light of the above material, the case of the appellant is clearly covered by the dictum of Sansoni J. in Mariam Beebi v Seyad Mohamed (6 supra 34) that the object of revision is the due administration of justice and correction of errors and that power can be exercised in respect of any order of a lower Court to prevent an injustice on an application by an aggrieved person who is not even a party to the case.

The High Court and the Court of Appeal has taken the mistaken view that the appellant has no locus standi to seek relief. 1 hold that the appellant being an aggrieved party has sufficient status to seek relief in the circumstances of this case. Therefore, I set aside the order of the Court of Appeal dated 04.12.2001, and the order of the High Court dated 26.08.1996 and the order of the Primary Court dated 16.05.1996 and allow this appeal with costs fixed at Rs. 10,000/= payable by the 1st respondent to the appellant.

FERNANDO, J. -I agree.

ISMAIL, J. -I agree.

Appeal allowed.

30.NANDAWATHIE V MAHINDASENA [CA]

Sri Lanka Law Reports 2009 - Volume 2 , Page No - 218

COURT OF APPEAL

RANJIT SILVA. J SALAM, J.

CA( PHC) 242/2006

HC AVISSAWELLA (REV) 67/2004

MC AVISSAWELLA 66148 (66)

JANUARY 15TH, 2009

MAY 4TH, 2009

Primary Court Ordinance Sections 68, 69, 74 (2), 78 - Relief granted - Moved High Court in revision - Application allowed - Appeal lodged - Can the writ be executed while the appeal is pending? - Is there an automatic stay of proceedings? Civil Procedure Code Sections 754, 757 (2), 761, 630 - Amended by Act No. 38 of 1998 - Judicature Act - Section 23 - High Court of the Provinces (SpI Prov) Act No.19 of 1990 - Constitution 154 P 13th amendment- Supreme Court Rules 1940 - Industrial Disputes Amendment Act No. 32 of 1990 - Maintenance Act No. 34 of 1990 - Section 14 - Criminal Procedure Code No.15 of 1979 Section 323 - Bail Act - Section 19- Constitution Article 138 - Examined - Compared. - Obiter dicta.

Held

(1) When an order of a Primary Court Judge is challenged by way of revision in the High Court the High Court can examine only the legality of that order and not the corrections of that order.

(2) On appeal to the Court of Appeal the Court of Appeal should not under the guise of the appeal attempt to re-hear or re-evaluate the evidence led and decide on the facts which are entirely and exclusively falling within the domain of the jurisdiction of the Primary Court.

(3) Orders given by the Primary Court should be executed or implemented expeditiously as possible without undue delay unless there is a stay order currently in operation there should be no automatic stay of proceedings for whatever reason otherwise that would negate and frustrate the very purpose for which that provisions were enacted.

Per Ranjith Silva J.

"I am of the opinion that this particular right of appeal in the circumstances should not be taken as an appeal in the true sense but in fact an application to examine the correctness, legality or the propriety of the order made by the High Court Judge in the exercise of revisionary powers. The Court of Appeal should not under the guise of an appeal attempt to rehear or re-evaluate the evidence led in the main case."

Per Ranjith Silva. J.

"General laws, concepts and general principles whether they have been there from time immemorial should not be applied mechanically to new situations which were never in contemplation when those laws, principles or concepts came into being, extraordinary situations demand extraordinary remedies. It is the duty of Court of law to give effect to the laws to meet new situations, by brushing aside technicalities, the so called rules and concepts which cannot be reconciled should not be allowed to stand in the way of the administration of justice causing hindrance impeding the very relief the legislature wanted to enact".

Per Ranjith Silva, J.

"The decision in R. A. Kusum Kanthilatha and others v. Indrani Wimalaratne(1) and two others placing reliance on the dictum in Edward v. Silva(2) as authority for the proposition that once an appeal is taken against a judgment of a final order pronounced by a High Court in the exercise of its revisionary jurisdiction ipso facto stays the execution of the judgment or order is clearly erroneous. Lodging of an appeal does ipso facto stay execution. Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the judgment or order - it is not automatic".

Cases referred to:-

1. R.A. Kusum Kathilatha and others v. lndrani Wimalaratne and two others - 2005 1 Sri LR411 (not followed)

2. Edward v. de Silva - 46 NLR343 (distinguished)

3. AG v. Silem -11 Eng. Reports at 1208.

4. Sokkalal ram Sart v. Nadar- 34 NLR 89

5. Charlotte Perera v. Thambiah 1983 - 1 Sri LR at 352

6. Brooke Bond (Ceylon) Ltd., v. Gunasekera - 1990 1 LR 71

7. Nayar v. Thaseek:Ameen - 20003 Sri LR at 103

8. Kulatunga v. Perera - 2002 - 1 Sri LR at 357

APPLICATION in revision from an order of the High Court of Avissawella.

W Dayaratne for petitioners

Rohan Sahabandu for respondent.

Cur.adv. vult

November 11th, 2009

RANJITH SILVA, J.

The Petitioners Respondents Petitioners, who shall hereafter be referred to as the Petitioners, filed an information by affidavit regarding a dispute over a right of way between the Petitioners and the Respondent, in the Primary Court of Avissawella on 25th March 2004 under and in terms of Section 66(1)(b)of the Primary Court Procedure Act No.44 of 1979.

The Learned Magistrate (learned Primary Court Judge) by his order dated 1st of July 2004 granted the roadway as prayed for by the Petitioners in their petition and thereafter the said order was executed by the fiscal and accordingly the use and enjoyment of the said roadway was granted over to the 1st Petitioner.

Being dissatisfied with the said order of the Learned Primary Court Judge, dated 01.07.2004, the Respondent moved the High Court of Avissawella in revision.

The Learned High Court Judge on 16.03.2006 allowed the application for revision filed by the Respondent and set aside the order of the learned Primary Court Judge, dated 1st July 2004.

Aggrieved by the said order of learned High Court Judge dated 16.03.2006 the Petitioners, have preferred an appeal to this Court on 29th March 2006, which is pending before another division of this Court.

Thereafter the Respondent filed a motion in the High Court and made an application to obtain an order to close the road which was opened in accordance with the order made by the learned Primary Court Judge and the said application of the Respondent was allowed by the learned High Court Judge on 29.03.2006, the same day the petition of appeal against the order of the learned High Court Judge ,was lodged and accepted. The petition of appeal was accepted by the registrar of the High Court at 3.15 p.m. on 29.03.2006. The Petitioners lodged the appeal 13 days after the final order in the application for revision, was made by the High Court. Thus it appears that the appeal was lodged within the appealable period namely within 14 days of the date of the final order.

On 30th ofMay2006 on a motion filed by the Respondent, learned High Court Judge affirmed both the orders dated 16th March 2006 and 29th March 2006. Consequently the learned Primary Court Judge ordered the execution of the final order made by the learned High Court Judge restoring the Respondent to possession of the land over which the said right of way is claimed by the petitioners

Being aggrieved by the said orders of the learned High Court Judge dated 29th of March 2006 and 30th May2006 the Petitioners have filed this application in this Court seeking to revise/set-aside the orders of the learned High Court Judge dated 29th of March 2006 and 30th May 2006 and the order for execution of the writ made by the learned Magistrate while the appeal is pending and to restore the Petitioner to possession of the land over which the said right of way is claimed by the petitioner's.

It was virtually the main and only contention of the Counsel for the petitioners that the learned High Court Judge (the learned Primary Court Judge) had no jurisdiction to execute the orders after an appeal was taken to the Court of Appeal in that there aren't any provisions to execute a writ while the appeal is pending in the Court of Appeal as such power is given only under Section 761 and 763 of Civil Procedure Code which have no effect, relevance or bearing at all to the instant case. In support of his contention the Counsel for the petitioners cited the judgment delivered by His Lordship Justice Gamini Amaratunga, in R.A. Kusum Kanthiltha and Others v. Indrani Wimalaratne and Two others"

In the said case His LordshipJustice GaminiAmaratunga, citing Edward v. De Silva(2) at 343, held as follows;

"Asstated above, a party dissatisfied with an order made by the High Court in a revision application has a right of appeal to this Court against such order. In terms of the Court of Appeal (procedure for appeals from the High Courts) rules of 1988, such an appeal has to be filed in the High Court within 14 days from the order appealed against. Once an appeal is filed, the High Court has to forward its record together with the petition of appeal to the Court of Appeal. In the meantime, as has happened in this case, the party who is successful in the High Court may make an application to the original Court supported by a certified copy of the order of the High Court, to execute the order of the High Court. Several revision applications which have come before this Court indicate that in such situations, some of the original Court Judges have taken the view that in the absence of a direction from the Court of Appeal directing the stay of execution pending appeal, the order appealed against is an executable order. With respect, this is an erroneous view. It appears that the learned Magistrate in this case has fallen into the same error when the order was made to execute the order of the High Court pending the receipt of an order from the Court of Appeal. There is no provision or necessity for issuing a direction to stay execution. The filling of an appeal ipso facto operate to suspend the jurisdiction of the original Court to execute the order appealed against.

There is a practical difficulty faced by the original Courts when an application to execute the order of the High Court is made. The appeal is filed in the High Court and it is then transmitted to the Court of Appeal. There is no provision to officially intimate the original Court that an appeal has been filed, In such situations it is the duty of the party resisting execution on the basis of the pending appeal to furnish proof by way of a certified copy of the petition of appeal to satisfy the original Court that an appeal has been made. When such proof is tendered, the original Court should stay its hand until the appeal is finally disposed of."

Counsel for the Respondent argued to the contrary and submitted that the judgment of Justice Gamini Amaratunga in Kanthiltha's case (supra) is wrongly decided. (Decided per incuriam) for the reason that their Lordships in that case have not considered the statutes and the relevant authorities referred to in that judgment and also for the reason that their Lordships have followed the decision in Edward v. De Silva (supra) to arrive at the conclusion it arrived at, since the Judges who decided the case decided that case, relying on the Judgment in AG v. Sillem(3)at 1208. It is quite significant to note that AG v. Sillem (supra) is a criminal case, to be precise a case dealing with breach of statutory provisions.

AG v. Sillem (Supra) relied on by their Lordships in arriving at their decision in Edward v. De Silva (supra) is a criminal case. In Criminal matters, the normal practice and the rule is that once an appeal is taken from a Judgment of an inferior Court the jurisdiction of the inferior Court with regard to the execution of the judgment and sentence, in respect of that case, is suspended.

In Edward v. De Silva (Supra) the ratio decidendi was that in an application for execution of decree after an appeal has been filed by the judgment debtor it is the duty of the Judgment creditor to make the Judgment debtor a party respondent. The failure to comply with this requirement stipulated in Section 763 of the Civil Procedure Code would result in a failure of jurisdiction of the Court to act and would render anything done or any order made thereafter devoid of legal consequences. The observations made by their Lordships in the said case, regarding the suspension of the jurisdiction of a lower Court after the lodging of an appeal was an obiter dictum as that was never the issue that had to be decided in the case.

Proceedings under Section 66 of the Primary Court Procedure Act, are generally considered as quasi criminal in nature, yet matters with regard to execution of orders of a Primary Court Judge are very much civil in nature. The particular section dealing with casus omissus secures this position beyond any doubt.

Section 78 of the Primary Court Procedure Act is as follows;

If any matter should arise for which no provision is made in this Act, the provisions in the Code of Criminal Procedure Act governing a like matter where the case or proceeding is a criminal prosecution or proceeding and the provisions of the Civil Procedure Code governing a like matter where the case is a civil action or proceeding shall with such suitable adaptations as the justice of the case may require be adopted and applied."

Counsel for the Respondent contended that if a stay of the order of the High Court is required it is for the aggrieved party to move the Court of Appeal to get a stay of the order of the High Court. The mere filing of an appeal does not ipso facto stay the execution of the judgment or order. He contended further that in civil maters, the decided cases, the rules of the Supreme Court and the statutes clearly lay down the principle that the execution of the decree is the rule and the stay of execution is the exception and for a stay order to be obtained specific provision must be provided for in the Act.

The provisions of chapter LV 111 of the Civil Procedure Code dealing with appeals do not contain any provisions for stay of execution of the judgment. Sections 761 and 763 in chapter L1V are the only provisions that deal with stay of execution of orders, judgments or decrees. But it has to be borne in mind that none of these provisions are applicable to the instant case as part V11 of the Primary Court Procedure Act does not provide for an appeal against an order. Not only does it not provide for an appeal but also specifically debars an appeal.

Section 74 (2t of the Primary Court Procedure Act

"An appeal shall not lie against any determination or order under this Act. "

By an amendment to the Civil Procedure Code provisions were made for stay orders in Leave to Appeal matters. Section 757(2) as amended by ActNo.38of 1998 has provided for stay orders, interim injunctions and other relief, unlike section 754 of the Civil Procedure Code dealing with appeals.

Section 757(2)

"Upon an application for leave to appeal being filed, in the registry of the Court of Appeal the Registrar shall number such application and shall fort hunih: sent notice of such application by registered post, to each of the respondents named therein, together with copies of the petition, affidavit and annexure, if any. The notice shall state that the respondent shall be heard in opposition to the application on a date to be specified in such notice. An application for leave to appeal may include a prayer for a stay order, interim injunction or other relief". (Emphasis added)

By contract the provisions of Section 754 dealing with appeals are silent with regard to stay orders. Even the Supreme Court rules dealing with appeals do not provide for stay of execution. But the Supreme Court rules provide for stay orders in application such as revision application and leave to appeal applications.

The Civil Procedure Code contains specific provisions with regard to the staying of execution of the decree pending appeal. If no application to stay execution is made the judgment creditor is entitled to apply for execution of the decree. Such application cannot be made before the expiry of the time prescribed for tendering the notice of appeal. The stay of execution of decree will not be made unless the judgment debtor can establish that substantial loss will be caused to him if the judgment is executed pending appeal. The Judicature Act too contains specific provisions with regard to stay of execution of judgment pending appeal. Thus it is seen that under the Civil Procedure Code the rule is to execute the judgment and the exception is to stay the execution pending appeal on proof of substantial loss. In this regard I would like 'to quote the following provisions of the Civil Procedure Code and the Judicature Act.

Section 763(2) of the Civil Procedure Code.

The Court may order execution to be stayed upon such terms and conditions as it may deem fit, where.

(a) the Judgment debtor satisfies the Court that substantial loss may result to the Judgment debtor unless an order for stay of execution is made, and

(b) security given by the Judgment debtor for the due performance of such decree or order as may ultimately be binding upon him.

In Sokkalal Ram u. Nadar" it was held that stay of execution pending appeal is granted only where the proceedings would cause irreparable injury to the appellant and where 'the damages suffered by the appellant by execution of decree, would be substantial.

Section 23 of the Judicature Act No.2 of 1978.

Any party who shall be dissatisfied with any judgment, decree, or order pronounced by the District Court may (except where such right is expressly disallowed) appeal to the Court of Appeal against any such judgment, decree or order for any error in law or in fact committed by such Court, but no such appeal shall have the effect of staying the execution of such Judgment, decree or order unless the District Judge shall see fit to make an order to that effect, in which case the party appellant shall enter into a bond, with or without sureties as the District Judge shall consider necessary, to appear when required and abide the Judgment of the Court of Appeal upon the appeal.

In Charlotte Perera us. Thambiabr' at 352 it was held that the mere filing of an appeal does not stay the execution of the decree appealed against. The Court may stay the execution if an application is made for stay of execution on the grounds mentioned in Section 761.

In Brooke Bond (Ceylon) Ltd v. Gunasekaras' it was held in that Section 761 should not be construed in such a way as not to lightly interfere with the decree holders rights to reap the fruits of his victory as expeditiously as possible.

The Counsel for the Respondent in support of his case has cited two cases. In Nayar u. Thaseek Ameen[7] the District Court held with the plaintiff, aggrieved by the judgment, the defendant appealed to the Court of Appeal but the appeal was dismissed by the Court of Appeal. The defendant filed a motion stating that he intended to appeal to the Supreme Court and moved for a stay of execution of the Judgment. The Supreme Court held that the Court of Appeal has no power to stay proceedings and the jurisdiction is with the Supreme Court. In fact in that case leave to appeal to the Supreme Court was granted by the Court of Appeal, yet the Court of Appeal did not have the jurisdiction to grant a stay order.

It is discernible from the said Judgment that once the Court of Appeal or the High Court gives its Judgment the proceedings are not automatically stayed in the High Court. the Court of Appeal or the Supreme Court, as the case may be, should be moved, to obtain a stay order. In the earlier. case referred to above it is the Supreme Court which had the power to grant a stay order, staying the execution of the order of the Court of Appeal. By the same token and by parity or reasoning it is only the Court of Appeal that can grant a stay order against an order of the High Court and the mere loading of an appeal does not automatically stay the execution of the Judgment or Order of the High Court. This is yet another aspect that their Lordships had failed to consider by an oversight in Kanthilatha's case (supra).

The second case cited by the Counsel for the respondent IS Kulatunga v. Peiris". This case deals with interim restraining orders as distinct from stay orders staying the execution of a judgments or orders. An average interim order should be distinguished from an interim order in the nature of a stay order especially the stay orders that tend to stay the execution of judgments or orders. Their Lordships in the above case held that the Court of Appeal has the inherent power to restrain a party from destroying the subject matter of the action and also to authorize a party to take necessary steps (subject to such terms and conditions as the Court may prescribe) to preserve the subject matter of the action, his Lordship Justice Mark Fernando observed I quote; "However such inherent jurisdiction can be invoked only by way of a proper application supported by an affidavit and giving the opposite party an opportunity of being heard before making an order."

The Supreme Court further held in that case that the tenant had the right to do so in the exercise of his rights under;

(a) the tenancy agreement,

(b) in the discharge of his duty to mitigate loss and damage which he would otherwise suffer,

(d) or to avoid criminal liability.

Therefore I find that the decision in Kalutunga v. Peiris (supra) would not be directly relevant to a decision of this Court in the instant case. But from the decision of that case we can derive some support to augment that the mere lodging of an appeal does not ipso facto stay the execution of the Judgment or the order appealed against. Even to obtain an interim order from the Court of Appeal there ought to be a proper application.

Nowhere in the Civil Procedure Code it is stated that lodging of an appeal will stay the writ of execution of the decree, Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the decree. It is not automatic. When an appeal is taken against a final order of a High Court Judge made in the exercise of its revisionary jurisdiction, the Supreme Court Rules do not provide for a stay of execution of that order whereas in application for revision, in application for leave to appeal and also in applications for special leave to appeal, although there is no automatic stay, the Supreme Court rules provide for applications for stay of execution pending such applications but this is not so in appeals. Therefore a party, who wishes to have the execution of the impugned order stayed pending appeal, could file a revision application to obtain a stay of execution of the impugned order.

Prior to the 13th Amendment and the High Court of the Provinces Special Provisions Act No. 19 of 1990 which conferred upon the High Courts the jurisdiction to entertain applications for revision, a person aggrieved by an order made by a Primary Court Judge or a Magistrate had to move the Court of Appeal in revision. If any person was dissatisfied with the order of the Court of Appeal he had to seek special leave to appeal From the Supreme Court within 42 days. (Vide Rule 42 of the Supreme Court Rules). The Supreme Court Rules of 1990provides for stay of proceedings. Where special leave is granted, if a party wants a suspension of the Judgment of the Court of Appeal, he has to make an application to the Supreme Court and thus it would be seen that the mere lodging of an application for special leave to appeal to the Supreme Court does not ipso facto stay the order of the Court of Appeal. Generally such stay orders are given exparte by the Supreme Court and such stay orders remain in force for a period of 14 days which fact is indicative of the fact that stay of execution is the exception and execution of the Judgment is the rule. According to rule 43 (3) if an interim stay is granted and if special leave is granted subsequently the Petitioner has to make yet another application to get a stay of the execution of Judgment pending the final determination of the appeal. These matters have not been considered by their Lordships who decided Kanthilaths's case (supra).

Unlike in applications for special leave to appeal to the Supreme Court where the Supreme Court Rules provide for stay orders, (vide 43(3))Article 154 P or the High Court of the Provinces Special Provisions Act, or the Supreme Court Rules do not provide for stay orders in appeals.

The modern trend in some of the recently enacted. legislations Industrial Disputes

The Industrial Disputes (amendment) Act No. 32 of 1990 contains provisions dealing with security that has to be deposited in case an appeal is to be taken against an order, by an aggrieved party. The purpose of deposit of security is to ensure satisfaction of the Labour Tribunal order. Thus there is a guarantee of satisfaction of the order of the Labour Tribunal in case the appeal is not successful. In terms of the provisions of the Industrial Disputes Act, the order of the Labour Tribunal will not be implemented during the pendency of the appeal provided that sufficient funds have been deposited as security to satisfy the order of the Labour Tribunal in case the appeal is unsuccessful.

Maintenance Matters

Section 14 (1) of the Maintenance Act No. 37 of 1999 is as follows;

Any person who shall be dissatisfied with any order made by the Magistrate under Section 2 or Section 11 may prefer an appeal to the relevant High Court established by Article 154 P of the Constitution in the like manner as if the order was a final order pronounced by a Magistrate's Court in criminal cases or matters, and Section 320 and 330 both, inclusive of Section 357 and 358 of the Code of Criminal Procedure Act No. 15 of 1979 shall mutatis mutandis apply to such appeal.

Provided however, not withstanding anything to the contrary in Section 323 of the Criminal Procedure Code Act No. 15 of 1979 such order under Section 2 shall not be stayed by reason of such appeal, unless the High Court directs otherwise for reasons to be recorded.

It is evident from the above provisions that even under the new Maintenance Act the rule is not to stay the execution of the order unless the High court directs otherwise for reasons to be recorded.

Section 14 (2) states that, any person dissatisfied with an order of the High Court may lodge an appeal to the Supreme Court on a question of law with the leave of the High Court and where such leave is refused, with the special leave of the Supreme Court ,first had and obtained.

Then the question arises, whether the order of the High Court is ipso facto stayed the High Court grants leave to Appeal to the Supreme Court. To answer this question one must look at rule 42 of the Supreme Court Rules, wherein it is stated that, if the Court of Appeal grants leave the party seeking to stay the execution of the judgment or final order, should obtain such relief from the Supreme Court. In the same way, when the High Court grants leave to appeal to the Supreme Court, the order is not automatically stayed. The party will have to move the Supreme Court to obtain a stay.

According to the old Criminal Procedure Code when a person is convicted in the Magistrate's Court the Magistrate has no discretion but to grant bail on the accused. If the accused was condemned to undergo hard labour he shall be detained in custody without hard labour until the Judgment of the Court of Appeal is made known to the Superintendent of the prison. If an accused is convicted for murder, by the High Court, the sentence of death will not be carried out and the execution of the Judgment will be stayed during the pendency of the appeal. This position of the law was changed/altered by Section 19 and 20 of the Bail Act No. 30 of 1997. Under the current law the Magistrate has the discretion to grant or refuse bail pending appeal. It is significant to note that even after a conviction in the Magistate's Court if the ,sentence is not hard labour the punishment will not be stayed unless the Magistrate decides to grant bail on the accused; it is only hard labour that is automatically stayed. This position is not the same in the High Court as the High Court Judge has the discretion to either release the accused on bail or keep him in custody pending appeal whether the sentence is hard labour or otherwise. But if an accused is sentenced to death the execution is stayed pending appeal.

Criminal cases - Magistrate's Court

Section 323 (1) of the Criminal Procedure Code

(When an appeal has been preferred the Court from which the appeal is preferred shall order the awellant if in custody to be released on his entering into a recognizance in such sum with or without a surety or sureties as such Court may direct conditioned to abide the judgment of the Court of Appeal and to pay such costs as may be ordered. (emphasis added)

Section 323 (4) of the Criminal Procedure Code

When a person sentenced to a term of rigorous imprisonment has preferred an appeal, but is unable to give the required recognizance or other security he shall be detained in custody without hard labour until the Judgment of the Court of Appeal is made known to the Superintendent of the prison.

Section 19 of the Bail Act is as follows;

Where an appeal has been preferred from a conviction in the Magistrate's Court the Court from which the appeal is preferred may having taken into consideration the gravity of the offence and the antecedents of the accused, refuse to release the appellant on bail.

Bail Act Section 19(6)

When a person sentenced to a term of rigorous imprison. ment has preferred an appeal, but is unable to give the required recognizance or other security he shall be detained in custody without hard labour until the Judgment of the Court is made known to the Superintendent of the prison.

According to this Section it is only hard labour that is ipso facto stayed.

Criminal cases - High Court

Section 333(1' of the Criminal Procedure Code Act No.1S of 1979

Upon the appeal being accepted all further proceedings in such case shall be stayed (not the law anymore) and the said appeal together with the record of the case and eight copies thereof and the notes of evidence taken by the Judge shall be forwarded as speedily as possible to the Court of Appeal.

Section 333 (2' Criminal Procedure Code

When an appeal against a conviction is lodged, the High Court may subject to subsection (4) admit the appellant to bail pending the determination of his appeal. An appellant who is not admitted to bail shall pending the determination of the appeal be treated in such manner as may be prescribed by rules made under the Prisons Ordinance.

Section 20 (2) of the Bail Act is as follows;

"When an appeal against a conviction by a High Court is preferred, the High Court may subject to subsection (3) release the appellant on bail pending the determination of his appeal. An appellant who is not released on bail shall, pending the determination of the appeal be treated in such, manner as may be prescribed by the rules made under the Prisons Ordinance.

As far as the High Court is concerned the position has now changed. The law that prevailed prior to the Bail Act to the effect that " Upon the appeal being accepted all further proceedings in such case shall be stayed" is not the law any more. The High Court Judge has the discretion to either grant or refuse to grant bail. If bail is refused the appellant will be treated in such manner as may be prescribed by rules made under the Prisons Ordinance. According to Section 20 (3) of the Bail Act it is only the death sentence that is automatically stayed pending appeal.

Section 20(3) of the Bail Act

Where the accused is sentenced to death, execution shall be stayed and he shall be kept on remand in prison pending the determination of the appeal.

It is discernible from the contents of these provisions in the Bail Act that the trend now is not to stay the execution of the Judgments unless the sentence is one of hard labour imposed by the Magistrate's Court or a sentence of death imposed by a High Court. Therefore it is seen that even in criminal matters stay of execution pending appeal is limited in scope. Automatic stay of execution operates only when the sentence is one of hard labour or death sentence.

Section 68 or 69 of the Primary Court Procedure Act does not provide for an appeal against an order made by a Primary Court Judge. If at all the only remedy against such an order or determination is to move the High Court of the province in revision under Article 154 P of the High Court of the Provinces Special Provisions Law Act No.19 of 1990, or to move the Court of Appeal in revision under Article 138 of the Constitution. The intention of the legislature is not to provide an appeal against such orders because proceedings under the particular chapter are meant to be disposed of expeditiously as possible in order to prevent a breach of the peace. On the other hand orders under the Primary Court Procedure Act are temporary in nature subject to a final decision of a competent Court of civil jurisdiction. Legislature has deliberately refrained from granting the relief of appeal against such orders because the parties have an alternative remedy which is more effective and also which will finally and conclusively determine the rights of the parties. If an appeal is provided against such an Order, this process will be delayed and litigation will continue for a long period of time like in a civil suit. This is the mischief the legislature intended to avoid. The only inference that one could draw is that these provisions are meant to prevent a breach of the peace by obtaining an appropriate order as speedily as possible from the Primary Court Judge, after an inquiry held, and thereafter, if necessary, for the parties to have recourse to a properly constituted civil suit, in the relevant District Court, to have the matter fully and finally adjudicated. On the other hand although not specifically provided for, an aggrieved party can move in revision under Article 154 P of the High Court of the Provinces Special Provisions Act, against an order of a Primary Court Judge made under the particular chapter. In an application for revision, what could be decided is whether the decision is legal or illegal and not whether the decision is right or wrong. Therefore in an application for revision there is no question of a rehearing or the re-evaluation of evidence in order to arrive at a decision. In an application for revision the task of the High Court is to decide, not whether, the decision is right or wrong but simply whether the decision is legal or illegal. Revision applications could be disposed of easily and quickly unlike appeals, where the parties are allowed to re-agitate the entire matter. It is for this reason that the legislature has in its wisdom devised this stratagem to prevent inordinate and undue delay. Parties should not be allowed to achieve indirectly by resorting to devious or indirect methods, the very thing that the legislature directly intended to deprive them of. When an order of a Primary Court Judge made under this chapter is challenged by way of revision in the High Court the High Court Judge can examine only the legality of that order and not the correctness of that order. The High Court may be able to prevent a breach of the peace by issuing interim stay orders or by allowing an interim order made by the Primary Court Judge to remain in force. But what is the position when a person aggrieved by such an order made in revision by the High Court is also appealed against to the Court of Appeal. Is the Court of Appeal vested with the power to re-hear or allow the parties to re-agitate the main case by reading and evaluating the evidence led in the case in the Primary Court or is it that the Court of Appeal is restricted in its scope and really have the power only to examine the propriety or the legality of the order made by the learned High Court judge in the exercise of its revisionary jurisdiction. I hold that it is the only sensible interpretation or the logical interpretation that could be given otherwise the Court of Appeal in the exercise of its appellate jurisdiction may be performing a function the legislature, primarily and strictly intended to avoid. For the reasons I have adumbrated I am of the opinion that this particular right of appeal in the circumstances should not be taken as an appeal in the true sense but in fact an application to examine the correctness, legality or the propriety of the order made by the learned High Court Judge in the exercise of its revisionary powers. The Court of Appeal should not, under the guise of an appeal attempt to re-hear or re-evaluate the evidence led in the main case and decide on the facts which are entirely and exclusively matters falling within the domain of the jurisdiction of the Primary Court Judge. For the reasons I have stated I hold that orders given by Primary Court Judge under this chapter should be executed or implemented expeditiously as possible without undue delay. Unless there is a stay order currently in operation, there should be no automatic stay of proceedings for whatever the reason, otherwise that would negate and frustrate the very purpose for which these provisions were enacted, The Primary Court Procedure Act is an act promulgated by the legislature in recent times. Although there were similar provisions in the Indian Criminal Procedure Code, we in Sri Lanka, did not have such provision till the enactment of the Administration of Justice LawNo.44 of 1973 (Section 62) and later by the Primary Court Procedure Act. General laws, concepts and general principles whether they have been there from time immemorial should not be applied mechanically to new situations which were never in contemplation, when those laws, principles or concepts came into being. Extraordinary situations demand extraordinary remedies. It is the duty of a Court of law to give effect to the laws to meet new situations, by brushing aside technicalities, the so-called rules and concepts which cannot be reconciled should not be allowed to stand in the way of the administration of justice, causing hindrance impeding the very relief the legislature wanted to enact.

Thus, I hold that their Lordships decision arrived at in R.A. Kusum Kanthilatha and Others v. Indrani Wimalaratne and Two Others, (supra) placing reliance on the dictum in Edward v. De Silva (supra) as authority for the proposition that once an appeal is taken against a judgment or a final order pronounced by a High Court in the exercise of its revisionary Jurisdiction ipso facto stays the execution of that judgment or order, is clearly erroneous. Lodging of an appeal does not ipso facto stay execution. Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the judgment or order. It is not automatic.

For the reasons adumbrated I hold that there is no merit in this application for revision and dismiss the same without costs.

SALAM, J. - I agree.

appeal dismissed.

31.MANSOOR Vs O.I.C. AVISSAWELLA [CA]

Sri Lanka Law Reports 1991 - Volume 2 , Page No - 75

COURT OF APPEAL.

S. N. SILVA, J.

C. A. APPLICATION NO. 04/85.

M. C. AVISSAWELLA NO. 38240.

May 06, June 03, July 15, and August 26, 1991.

Tenant cultivator ‑ Eviction ‑ Proceedings under section 62 (1) (b) of the Administration of Justice Law and section 77 of the Primary Courts Procedure Act ‑Jurisdiction ‑ Rights as tenant cultivator under Agricultural Lands Law, No. 42 of 1973 and succeeding law under Agrarian Services Act, No. 58 of 1979 ‑ Can relief be also claimed under the Administration of Justice Law and Primary Courts Procedure Act No. 44 of 1979?

Where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that tribunal and not to others.

The machinery under the Agricultural Lands Law and the Agrarian Services Act is the only one available to a tenant cultivator of paddy land to secure and vindicate his tenurial rights. The general procedure obtaining in Part VII of the Primary Courts Procedure Act with regard to disputes affecting land where a breach of the peace is threatened or likely, is not applicable in such a situation.

Cases referred to:

1. Hendrick Appuhamy vs John Appuhamy, 69 N.L.R. 289.

2. Wilkinson vs Barking Corporation (1948) 1 K.B.D. 721, 724.

3. Pasmore vs Oswaldwistle, U.D. (3) (1898) A.C. 387, 394.

4. Argosam Finance Co., Ltd. vs Oxby (1964) 3 All E. R. 561.

5. Bempy Singho vs Davith Singho, (1978 ‑ 79) 2 Sri L.R. 215.

Application in revision of the order of the Magistrate of Avissawella.

N. R. M. Daluwatta, P.C. with Miss S. Abeyjeewa for Petitioners.

D. S. Wijesinghe, P.C. with Miss A. B. D. Dharmadasa for Respondents.

October 04, 1991.

S. N. SILVA, J.

The Petitioner has filed this application in revision against the Order made by learned Magistrate on 26‑09‑1984, in the above case. The proceedings in the case commenced upon an information filed by the Officer‑in‑charge of the Avissawella Police on 20‑02‑1979 under section 62(1)(b) of the Administration of Justice Law, No. 44 of 1973, which was then in operation. The proceedings were continued under the Primary Courts Procedure Act, No. 44 of 1979 in terms of section 77 of that Act.

The information states that there is a dispute as to the "ande" rights to the paddy land called "Honiton deniya". The 1st Petitioner claims to have been the owner of the paddy land. He gifted his rights to his son who is residing abroad and was not a party to the proceedings in the Magistrate's Court. The claim of the 1st and 2nd Petitioners to this application (being the 1st and 3rd Respondents in the Magistrate's Court) is that the 2nd Petitioner is the lawful tenant cultivator of the paddy land under the 1st Petitioner and was evicted from the paddy land on 05‑02‑1979 by the 2nd Respondent to this application.

The 2nd Respondent filed an affidavit in the Magistrate's Court claiming that he purchased the paddy land on 25‑07‑1976 from a sister of the 1st Petitioner. It is also stated that the 1st Petitioner was a witness to that deed of transfer. The 2nd Respondent further claims that he has cultivated the paddy land from the date of purchase.

Learned Magistrate by his order held that the 2nd Petitioner was the tenant cultivator of the paddy land till he was evicted on 05‑02‑1979. It appears from this finding that the learned Magistrate did not accept the affidavit of the 2nd Respondent. Learned Magistrate held that the Court had no jurisdiction to order relief since it is a matter of an eviction of a tenant cultivator of a paddy land and dismissed the information.

Learned President's Counsel appearing for the Petitioner submitted that the Magistrate was in error when he refused to grant relief to the 2nd Petitioner. Whilst conceding that the 2nd Petitioner's rights as tenant cultivator were secured by the Agricultural Lands Law, No. 42 of 1973 which was then in operation, it was submitted that the existence of a special remedy under the said law and under the succeeding Agrarian Services Act, No. 58 of 1979 did not remove the jurisdiction of the Primary Court, in the matter of granting relief.

Learned President's Counsel for the 2nd Respondent urged certain matters of a preliminary nature. It was submitted that the 2nd Petitioner in whose favour relief is sought in this application has not filed an affidavit and that in any event there is a failure to comply with the provisions of Rule 46 of the Supreme Court Rules. It was further submitted that the 1st Petitioner who is neither the owner nor the person entitled to possession of the paddy land, has no locus standi in this matter. In any event it was submitted that the complaint of the Petitioners is of an unlawful eviction of a tenant cultivator and that such a matter has to be redressed through the special means provided for in the Agricultural Lands Law and the Agrarian Services Act.

The 1st Petitioner has specifically stated in his affidavit dated 30‑04‑1979 that the 2nd Petitioner being the tenant cultivator was evicted by the 2nd Respondent and certain others on 05‑02‑1979. The 2nd Petitioner has also made the same complaint in his affidavit addressed to the Assistant Superintendant of Police (1RS). Hence, the complaint of the Petitioners is of an unlawful eviction of a tenant cultivator.

The Paddy Lands Act, No. 1 of 1958 was enacted for the specific purpose of providing security of tenure to tenant cultivators of paddy land. The Act was succeeded by the Agricultural Lands Law, No. 42 of 1973 which has the same objective. The Law was succeeded by the Agrarian Services Act, now in operation, which has the same objective. These Laws grant special recognition to tenant cultivators of paddy lands and protection to their tenurial rights. Section 3(1) of the Agricultural Lands Law and section 5(1) of the Agrarian Services Act specifically provide that a tenant cultivator of any extent of paddy land has the right to occupy and use such extent in accordance with the provisions of the respective Laws and shall not be evicted from such paddy land notwithstanding anything to the contrary in any oral or written agreement. It is further provided that no person shall interfere with the occupation and use of such paddy land by the tenant cultivator. Therefore the right of a tenant cultivator to use and occupy the paddy land of which he is tenant, is protected not only visa‑vis his landlord but also as against any other person.

Section 3(3) of the Agricultural Lands Law and section 5(3) of the Agrarian Services Act give a right to a tenant cultivator who is evicted to make a complaint of such eviction to the Agricultural Tribunal or the Commissioner of Agrarian Services, as the case may be. If such complaint of eviction is established a tenant cultivator is restored to possession by an order issued to the Fiscal by the Magistrate. It is thus seen that the applicable law provides an extensive protection to the tenurial rights of cultivators of paddy lands. The law also contains provisions for the vindication of such rights and for redress against any breach of these rights by any person.

In a proceeding instituted under section 62 of the Administration of Justice Law or the corresponding section 66 of the Primary Courts Procedure Act, the Magistrate's Court or the Primary Court, as the case may be, is empowered to inquire into disputes affecting land where a breach of the peace is threatened or likely. The phrase "dispute affecting land" is interpreted in section 75 of the Primary Courts Procedure Act to include "any dispute as to the right to the possession of any land............or as to the right to cultivate any land or a part of a land...............". Therefore, ordinarily, the right of a tenant cultivator to occupy and cultivate a paddy land would come within the meaning of a "dispute affecting land". However, as noted above, the status and rights of tenant cultivators of paddy lands is the subject matter of specific statutory provisions. In contrast the procedure in the Primary Courts Procedure Act is in the nature of a general provision which applies in relation to every dispute affecting land where a breach of the peace is threatened or likely.

The question to be decided in this application is whether a tenant cultivator who is evicted from a paddy land can avail himself of an order made by the Primary Court in a proceeding under Part VII of the Primary Courts Procedure Act notwithstanding the remedy provided to him under the provisions of the Agricultural Lands Law and later the Agrarian Services Act. Learned President's Counsel for the Petitioner submitted that such a course of action is possible and contended that the Primary Courts Procedure Act in fact gives additional protection to a tenant cultivator.

The submission of learned President's Counsel for the 2nd Respondent is that the remedy under Agricultural Lands Law and the Agrarian Services Act given to a tenant cultivator to complain of eviction and to secure restoration of possession is a special remedy which excludes any remedy that may be obtained from the exercise of the ordinary jurisdiction of the Primary Court.

As noted in Halsbury's Law of England (4th Edition) at paragraph 946, the question whether a special statutory remedy excluding the ordinary jurisdiction of a Court has to be decided by an examination of the scope and the wording of the statute providing such special remedy.

In the case of Hendrick Appuhamy vs John Appuhamy (1), Sansoni, CJ examined the provisions of the Paddy Lands Act (then in operation) to consider whether those provisions exclude the right of a landlord to institute an action in the District Court for the ejectment of his tenant and for damages, on the ground that the tenant has failed to maintain the paddy land diligently. The District Judge held with the landlord on the basis that there was no section in the Paddy Lands Act ousting the jurisdiction of the District Court. After an examination of the provisions of the Paddy Lands Act and certain leading authorities in England, Sansoni CJ concluded that he cannot agree with the decision of the District Judge. It was held that the action was not maintainable in view of the special provisions contained in the Paddy Lands Act.

Sansoni CJ followed the dicta of Asquith LJ, in the case of Wilkinson vs Barking Corporation (2). At page 724 Asquith LJ stated as follows:

"It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that tribunal and not to others."

The authority for that statement of Asquith LJ is traced to the dictum of Lord Halsbury in the case of Pasmore VS Oswaldwistle, U.D. (3) (1898) A.C. 387. At page 394 Lord Halsbury stated as follows :

"The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and runs through the law."

It is apparent on an examination of the later case law in England that this principle stated by Lord Halsbury and Asquith LJ is now accepted without contest. In a later case, Argosam Finance Co. Ltd. vs Oxby (4) Lord Denning, and Diplock LJ stated as a firm proposition of law, that where a matter has been vested by Parliament within the jurisdiction of the Commissioner of Inland Revenue, there was clearly no jurisdiction on the part of a Court to answer such a matter in an action begun by an originating summons.

Learned President's Counsel for the Petitioners relied on the judgment of this Court in the case of Bempy Singho vs Davith Singho (5). In that case a tenant cultivator who was unlawfully evicted filed an action in the District Court for restoration of possession and damages. He restricted his remedy in the District Court only to damages and obtained relief from the Commissioner for restoration of possession under the Agrarian Services Act. The learned District Judge granted the claim for damages. It was argued in this Court that the District Judge had no jurisdiction to grant damages in view of the provisions of the Agrarian Services Act, Atukorale, J. held that there is no provision in the Agrarian Services Act whereby a tenant who has been unlawfully evicted could secure damages in respect of such eviction. In the absence of such provision it was held that a tenant who has been unlawfully evicted has a cause of action in the regular Courts to recover damages. This decision does not in any way support the submission of learned President's Counsel that a tenant who is unlawfully evicted is entitled to obtain restoration of possession upon an order of the Primary Court. The basis of the decision is an absence of any provision ::Y the Agrarian Services Act whereby the tenant may obtain damages for unlawful eviction. It has to be noted that there is specific provision in the Agricultural Lands Law and the Agrarian Services Act which gives a right to a tenant as against the landlord and any other person to use and occupy the paddy land and to secure restoration of possession if he is unlawfully evicted. These provisions in the Agricultural Lands Law and the Agrarian Services Act are in the nature of a special right and a remedy for the infringement of that right. Therefore, I hold that the machinery under the Agricultural Lands Law and the Agrarian Services Act is the only one available to a tenant cultivator of paddy land to secure and vindicate his tenurial rights. The general procedure obtaining in Part VII of the Primary Courts Procedure Act with regard to disputes affecting land where a breach of the peace is threatened or likely, is not applicable in such a situation.

A further reason for the above conclusion is manifest on an examination of the provisions of Part VII of the Primary Courts Procedure Act. In terms of section 67(1) an inquiry under this Part has to be held in a "summary manner" and has to be concluded within three months of the commencement of the inquiry. Section 74(2) provides that, an appeal will not lie against any determination or order under this Part. It appears from section 74(1) that the remedy available to a person affected by an order after such a summary inquiry is to establish his right or interest to the land in a civil suit. A Judge of the Primary Court is specially required to explain the effect of this provision to the persons concerned in the dispute. Therefore, according to the legislative schemes an order made by the Primary Court in a proceeding under Part VII will be operative only till the dispute affecting land is finally resolved on a "civil suit". The phrase "civil suit" is clearly referable to an action filed in a regular Court exercising civil jurisdiction. In view of the aforesaid provisions of the Agricultural Lands Law and the Agrarian Services Act a dispute arising from a complaint of eviction made by a tenant cultivator of a paddy land cannot be the subject of a civil suit. Such a complaint has to be the subject of an inquiry by the Tribunal or the Commissioner, as the case may be. Therefore, the Judge of the Primary Court cannot comply with the requirements of section 74(1) in respect of such a dispute. This by, itself is in my view good reason for holding that the Primary Court should not exercise jurisdiction in relation to a dispute arising from a complaint of eviction of a tenant cultivator of paddy land. Furthermore, if such jurisdiction is exercised it may result in conflicting orders made by the Primary Court on the one hand and the Commissioner on the other.

For the reasons stated above I am of the view that the Primary Court Judge did not err in law when he declined to exercise jurisdiction in this matter.

In view of the foregoing finding it would not be necessary to consider the other matters urged by, learned President's Counsel for the 2nd Respondent. However, I have to note that there is merit in the objection based upon an absence of an affidavit filed by the 2nd Petitioner. The relief sought by this application is for an order directing that the 2nd Petitioner be restored to possession of the paddy land in question. According to the certified copy of the proceedings in the Magistrate's Court the 2nd Petitioner did not file an affidavit in that Court claiming a right to be restored to possession. He has also not filed an affidavit in this Court claiming such a right. In the circumstances I am of the view that there is contravention of the provisions of Rule 46 of the Supreme Court Rules and that the Petitioners are not in any event entitled to the relief sought in the application. The application is accordingly dismissed. The 1st and 2nd Petitioners will pay a sum of Rs. 1750/‑ as costs to the 2nd Respondent.

Application dismissed.

32.BEMPI SINGHO V. DAVITH SINGHO [CA]

Sri Lanka Law Reports-1978-79-Volume 2 , Page No - 215

COURT OF APPEAL.

VYTHIALINGAM, J. AND ATUKORALE, J.

C.A. (S.C.) 678/75 (F)‑D. C BALAPITIYA 1994/.

OCTOBER 24, 1978.

Paddy Lands Act, sections 4 (1A), 4 (9), 14 (1), 19(1)‑Action by tenant cultivator in District Court for damages caused by Wrongful eviction- Jurisdiction of Court to entertain such action.

Held

A person who is a tenant cultivator within the meaning of the Paddy Lands Act can maintain an action in an appropriate civil Court for damages that may be caused to him as a result of a wrongful eviction.

Case referred to

(1) Hendrick Appuhamy v. John Appuhamy (1966) 69 N.L.R. 29 ; 71 C. L. W. 97.

E. A. G. de Silva with Miss D. Seneviratne, for the appellant.

No appearance for the respondent.

Cur. adv. vult.

November 22, 1978.

ATUKORALE, J.

The appellant appeals from a judgment of the learned District Judge ordering him to pay the respondent a sum of Rs. 872 as damages for unlawful eviction from a paddy field. The respondent filed this action stating that he was the tenant cultivator of a certain paddy field and that he prepared the field for cultivation and sowed paddy therein on 10.5.1972. The appellant on 10.10.1972 unlawfully entered the field and ploughed it again and thereby caused loss and damage to the respondent. In his plaint the respondent prayed for a declaration that he was the tenant cultivator of the field and for restoration of possession and damages. The appellant in his answer denied that the respondent was the tenant cultivator. It would appear from the evidence led at the trial that the respondent on 21.5.1972 made a written complaint to the Assistant Commissioner of Agrarian Services notifying of his eviction from the paddy field‑vide P6. The Assistant Commissioner who held an inquiry into the complaint under the provisions of the Paddy Lands Act by his order dated 24.3.1973 held that the respondent was the tenant cultivator and that he had been evicted by the appellant‑vide P8. The plaint in the present action was filed on 30.8.1972, that is about 3 months after the written complaint (P6) to the Assistant Commissioner. The trial commenced on 30.3.1975. On that day issues were framed and the respondent confined his case to damages only, apparently in view of the above finding by the Assistant Commissioner, in his favour.

The only submission made by learned counsel for the appellant was that the respondent cannot maintain this action in view of the fact that the Paddy Lands Act contained a special and the only procedure open to a tenant cultivator in the event of his eviction from the land. He cited the judgment of His Lordship Sansoni, C. J.(1) in support of his contention. In that case the owner of a paddy field sought to eject the tenant cultivator on the ground that the latter failed to cultivate the field diligently. After a consideration of the provisions of the Paddy Lands Act the Chief Justice came to the conclusion that the landlord must resort to the machinery set out in the Act itself if he wants to evict the tenant cultivator or to have the field properly cultivated. We are in respectful agreement with that decision. Section 4 (1) of the Act gives a tenant cultivator the right to occupy and use the land. in accordance with the provisions of the Act and states further that he shall not be evicted therefrom. It also prohibited every person from interfering in the occupation and use of the land by the tenant cultivator The only manner in which a tenant cultivator can be deprived of his right either under section 14(1) when the landlord gives written notice of his desire to be owner cultivator or under section 19 (1) when the tenant cultivator is not cultivation land in accordance with the principles of good paddy cultivation. In either case the Act. lays down the procedure to to be followed before eviction of the tenant cultivator. It is thus quite clear that no landlord can institute action in the regular courts to eject his tenant cultivator.

The matter for our decision, however, is whether a tenant cultivator can maintain in court a claim for damages for unlawful eviction. Section 4 (1A) of the Act provides the machinery by which a tenant cultivator who has been evicted can obtain for himself restoration of the use and occupation of the land. Section 4 (9) makes it an offence for any person to interfere with the use and occupation of the land by a tenant cultivator. Such a person on conviction after a summary trial before a Magistrate becomes liable to a fine not exceeding five hundred rupees and in default to imprisonment to a term not exceeding one month. The question for determination is whether the provisions of the Paddy Lands Act, particularly in view of the procedure set out in section 4 (1A) and the penalty imposed by section 4 (9) oust the jurisdiction of a civil court to grant damages caused to a tenant cultivator as a result of his being unlawfully evicted. A perusal of the various sections of the Paddy Lands Act makes it quite clear that the whole object was to provide the maximum amount of security of tenure for tenant cultivators. Section 4(1) of the Act gives a tenant cultivator an absolute legal right to occupy and use the land for the purpose of paddy cultivation. In the instant case in the exercise of this right the respondent prepared the land for cultivation and in fact sowed paddy therein. He was entitled to do so and in the normal course he would have reaped the crop and enjoyed the benefit of his labour but for the appellant's wrongful act. Thus the respondent has a valid cause of action against the appellant to claim the damages which resulted from the appellant's wrongful act. The Act does not provide for any relief to be granted to a tenant cultivator from the date of his eviction until he is restored to the enjoyment of his rights. Section 4 (1A) sets out the procedure for regaining the lost right of user and occupation. Section A (9) penalises a person who interferes with the enjoyment by a tenant cultivator of his rights. Neither section gives any relief to a tenant cultivator for the loss he sustains as a result of being evicted. I do not think that the legislature by prescribing a penalty in section 4 (9) intended to deprive a tenant cultivator of the right to institute action in a court for damages for wrongful eviction. The maximum fine that can be imposed on a wrongdoer under that section is Rs. 500. No part of this fine is payable to the tenant cultivator. The fine that is prescribed does not take into consideration the enormity of the damage that may be caused to a tenant cultivator. Unless a tenant cultivator is permitted to recover damages in a civil court a scheming landlord can set at naught the benefit of the statutory protection given to a tenant cultivator under the Act by causing the cultivation to be damaged every season until the tenant cultivator is compelled to abandon the land out of sheer frustration. For the above reasons we are of the view that a tenant cultivator can maintain an action in an appropriate civil court for damages that may be caused to him as a result of a wrongful eviction. Accordingly we dismiss this appeal. There will be no costs of appeal.

VYTHIALINGAM, J. ‑I agree.

Appeal dismissed.

Ananda Sarath Paranagama Vs Dhammadhinna Sarath Paranagama [CA] right of way Section 69

http://www.jsasl.lk/wp-content/uploads/2021/05/News-Letter-Ecopy.pdf

C A (PHC) APN 117/2013

HC Galle HCRA 32/13

Before: A.W.A.Salam, J (P/CA) and Sunil Rajapaksha, J Counsel: Dr Sunil Cooray with R. M Perera for the 2nd party-petitioner-petitioner and Janaka Balasuriya for the parties of the 1st respondent respondents.

Argument on: 10 February 2014

Decided on: 07 August 2014

A.W. A. SALAM, J (P/CA)

This application is aimed at revising an order of the Provincial High Court entered in the exercise of the revisionary jurisdiction vested in it under Article 154 P(3)(b) of the Constitution. A narrative description of the main events preceded the instant revision application, briefly are as follows; Proceedings began under Chapter VII of the Primary Court Procedure Act (hereinafter referred to as the “Act”), before the learned Magistrate (who is deemed to be a Judge of the Primary Court ) upon a dispute referred for adjudication under Section 66(1) (a) regarding the obstruction of a pathway. The parties to the dispute were three siblings.

The learned Magistrate declared the parties of the 1st part-respondents-respondents (referred to in this judgment as the “respondents”) as being entitled to use the pathway of 17 feet in width. Based on this decision, the learned Magistrate directed the removal of the obstruction that was constructed across the pathway so as to facilitate the use of it.

Discontented with the determination, the party of the 2nd Part- Petitioner-Petitioner (referred to in the rest of this judgment as the “petitioner”) sought to invoke the revisionary jurisdiction of the Provincial High Court. Upon hearing the parties as to the maintainability of the revision application, the High Court refused to entertain the same, on the ground that the petitioner has failed to adduce exceptional/ special grounds. The instant revision application has been filed thereafter, with a view to have the impugned order refusing to entertain the revision application set aside and revised inter alia on the following grounds.

1. The impugned refusal to entertain the revision application is contrary to law and the facts of the case.

2. The learned High Court Judge has failed to consider, evaluate, and give reasons for not considering or accepting as exceptional circumstances, the several matters set out in paragraphs 10 and 11 of the said petition.

3. No other remedies are available to the petitioner to prevent the wall being demolished although the High Court had set out as the second ground that there are other remedies available;

4. No reasons whatsoever are given in the said judgment for dismissing the revision application on the two grounds stated therein.

When an alternative remedy is available the type of restrain imposed on the exercise of the revisionary powers, had been discussed in several cases both in our Courts and other jurisdictions. Suffice it to discuss the principle embodied in the judgment of the well-known case of Rustom Vs Hapangama [1978-79-80 SLR Volume 1V Page 352] where it is laid down that the revisionary powers of a Court will not be invoked, if an alternative remedy is available, unless the existence of special circumstances are urged and established necessitating the indulgence of Court to exercise its powers in revision.

The term ‘revision’ means the examination of a decision with a view to correction. The material points that may arise for consideration in a revision application inter alia are whether a subordinate Court has exercised jurisdiction which is not vested in it in law or whether it has failed to exercise such jurisdiction which is so vested or has acted in the exercise of the jurisdiction illegally or in excess of jurisdiction or with material irregularity. In other words, strictly speaking a revision application calls for the correction of errors concerning illegalities and patent irregularities which are of such magnitude that call for the discretionary powers of Court to correct them.

Hence, it is the duty of a High Court and the Court of Appeal vested with the revisionary jurisdiction under the Constitution, to ensure that the revisionary powers of such Courts are not invoked as a matter of course, at the expense of a successful party in the original Court having to needlessly wait for the fruits of his victory to be reaped.

Inasmuch as the facts of this case are concerned, the trend of authority not being in favour of the exercise of the discretionary remedy unless upon the applicant showing the existence of special circumstances warranting the clemency of Court to exercise the revisionary jurisdiction, the petitioner was obliged to adduce special or exceptional circumstances. This is a condition precedent to entertain the revision application by the High Court.

Similarly, as there is a right of appeal to this Court against the refusal of the learned High Court Judge to entertain the revision application, the petitioner has to establish exceptional circumstances to have the impugned order revised by this Court as well. It was contended on behalf of the petitioner that the High Court Judge without giving any reasons by a judgment of two lines refused to issue notices and dismissed the application stating that there were no exceptional circumstances on which its revisionary jurisdiction could be exercised. He complains that this has culminated in a miscarriage of justice. On a consideration of the practice ordinarily adopted by Courts in disposing revision applications at the threshold stage, it is manifest that the contention raised by learned Counsel is wholly untenable and devoid of merits. In other words, in an order refusing to entertain an application, the High Court Judge can most of the time able to state that there are no exceptional circumstances that warrant the entertainment of the application and no more. He is not obliged to give details regarding the existence or nonexistence of special or exceptional circumstances.

In passing it might be of some relevance to mention that this is the procedure adopted even in the Supreme Court when application for special leave is refused.

The main ground alleged in the revision application made to the High Court was that the learned Magistrate had not given his mind as to the proof required of the right in question in a Section 66 matter, as the action is commonly known. It was submitted on behalf of the petitioner that the respondents were obliged to establish in the Magistrate’s Court the entitlement to use the pathway by proof of user for an uninterrupted period of 10 years adverse to the petitioner’s rights. This ground alleged as a special circumstance warranting the intervention of the High Court by way of its revisionary powers should fail in limine as there is no requirement under Chapter VII - Section 69 to establish the entitlement in the same manner as is usually proved in a civil case.

The ingredients necessary to be proved to obtain a declaration of ‘entitlement’ as contemplated in Section 69 of the Act will be discussed at a different stage.

On a consideration of the material available, it appears to me that the petitioner has failed to impress upon this Court that there are exceptional circumstances to warrant the intervention of this Court by way of revision. Therefore, the endeavour made by the petitioner to involve this Court in the correction of the purported error committed by the High Court should fail.

The learned Counsel for the petitioner has submitted that a glaring error of law has been committed by the learned Magistrate by his failure to address his mind as to whether one brother has used the right of way over the other brother’s land adversely to the latter, and for a period of not less than 10 years. The glaring error said to have been committed in coming to the conclusion as to the existence of the pathway followed by the order of demolition to remove the impediment and according to the petitioner, this has ended up in serious miscarriage of justice.

It is elementary principle of law that under Chapter VII of the Act, when the dispute relates to the possession of an immovable property, the Judge of the Primary Court is duty-bound under Section 68 to restrict to the issue of actual possession as at the date of filing the information, except where a person who was in possession of the subject matter is dispossessed within a period of two months immediately preceding the date on which information under Section 66 was filed.

Unlike in the case of a dispute relating to possession of immovable property, no timeframe has been laid down as to the length of time during which the right should have been enjoyed in relation to the purported entitlement. In resolving such a dispute, the Judge of the Primary Court is expected to determine as to who is entitled to the right which is the subject of the dispute and make an order under Section 69(2).

The marginal note to Section 69 of the Act reads as “Determination and order of Judge of the Primary Court when dispute is in regard to any other right”. For purpose of ready reference, Section 69 of the Act is reproduced below…

(2) An order under this Sub-Section may declare that any person specified therein shall be entitled to any such right in or respecting the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of an order or decree of a competent Court, and prohibit all disturbance or interference with the exercise of such right by such party other than under the authority of an order or decree as aforesaid.

The question that arises for determination at this stage is whether a party claiming a right to any land other than the right to possession should establish his right precisely as he is expected to do in a civil case or whether he could succeed in obtaining the declaration as contemplated in Section 69, merely by proving that he enjoyed the right as at the time when the dispute arose. It is to be understood that the proof of the acquisition of the right is totally different from proving the enjoyment/existence of the right at the time the dispute arose.

In dealing with the nature of the right, a Judge of the Primary Court is expected to adjudicate under Section 69 of the Act, Sharvananda, J (later Chief Justice) in the case of Ramalingam Vs Thangarajaha 1982 Sri Lanka Law Reports - Volume 2 , Page – 693 stated that in a dispute in regard to any right to any land other than right of possession of such land, the question for decision, according to Section 69(1), is who is entitled to the right which is subject of dispute.

The word “entitled” here connotes the ownership of the right. The Court has to determine which of the parties has acquired that right or IS ENTITLED FOR THE TIME BEING TO EXERCISE THAT RIGHT. In contradistinction to Section 68 of the Act, Section 69 requires the Court to determine the question as to which party is entitled to the disputed right preliminary to the making of an order under Section 69(2). (Capitalization is mine)

According to the decision in Ramalingam (supra) the Judge of the Primary Court has two options, in deciding as to which of the parties should be declared entitled to the right. Since the word “entitle” as used in Section 69 implies ownership of the right, the Judge of the Primary Court could determine as to who in fact has acquired the disputed right. In the larger sense it means any kind of proof of the acquisition of the disputed right as envisaged by any law dealing with the ingredients to be proved. For instance, if the disputed right is the existence of a right of way, the party who desires the Court to pronounce his entitlement may establish the uninterrupted and undisturbed use of the pathway, by a title adverse to or independent of the owner that is to say, a use of the pathway unaccompanied by any payment from which an acknowledgment of a right existing in another person would fairly and naturally be inferred for ten years previous to the filing of the information under Section 66 of the Act.

This may not be possible in every case relating to a dispute over a right concerning an immovable property, as the proceedings under Chapter VII of the Act is required to be held in a summary manner, concluded within three months of the commencement of the inquiry and the order under Section 68 or 69 as the case may be, having to be delivered within one week of the conclusion of the inquiry. Further, under Section 72 of the Act before the pronouncement of the order, the material on which the Judge of the Primary Court may act are limited to certain types of material unlike in a civil case where parties have the option to lead evidence of any volume as long as it is admissible and relevant to the facts in issue and facts relevant to the facts in issue.

It is now trite law that in an inquiry under Chapter VII of the Act, adducing evidence by way of affidavits and documents is the rule and oral testimony is an exception to be permitted only at the discretion of the Judge. The discretion is hardly exercised to permit oral testimony and generally not granted as a matter of course. In such an instance it is not only impracticable but beyond the ability of a party to establish a right as is usually accomplished in a civil Court under the regular procedure. Although in certain limited number of disputes, a party may be able to establish the right he claims strictly in accordance with the substantial law, in a large number of cases they may not be able to do so, by reason of the limited time frame within which the inquiry has to be concluded, the restricted mode of proof and the sui generis nature of the procedure.

There are two ways in which an entitlement can be proved in the Primary Court. They are …

1. By adducing proof of the entitlement as is done in a civil Court.

2. By offering proof that he is entitled to the right FOR THE TIME BEING.

The phrase “for the time being” as used in the decision in Ramalingam’s case connotes the exercise of right by one party, temporarily or for the moment until such time such person is deprived of his right by virtue of a judgment of a Court of competent jurisdiction. If you describe a party as being entitled to enjoy a right but for the time being, it means that it will be like that for a period of time, but may change in the future. This is exactly in keeping with legislative wisdom embodied under part VII of the Act.

The rationale behind this principle is that the conferment of the special jurisdiction on a Judge of the Primary Court under Chapter VII of the Act is quasi-criminal in nature and is intended to facilitate the temporary settlement of the dispute between the parties so as to maintain the status quo until the rights of the parties are decided by a competent civil Court. Subject to this, every other concerns however much prominent they may appear to be, will have to be placed next to the imperative necessity of preserving the peace. As has been emphasized in the case of Ramalingam (supra) at an inquiry under Chapter VII, the action taken by the Judge of the Primary Court is of a purely preventive and provisional nature, pending the final adjudication of the rights of the parties in a civil Court and the proceedings under this Section are of a summary nature. Moreover, it is essential that they should be disposed of as expeditiously as possible.

In the circumstances, although it is open to a party to prove the right he claims to be entitled to as is required under the substantial law dealing with a particular right, it is not impossible for him to be content with adducing proof to the effect that he has the right to enjoy the entitlement in dispute for the time being.

Even in a civil action when the plaintiff had failed to prove a clear case of servitude there had been instances where the Courts have issued restraining orders against the right of way being obstructed. One such case is Perera Vs. Gunatilleke where Bonsor C. J, observed as follows:

“It seems to me that, where a person establishes that he has used a way as of right openly and continuously for a long period and is forcibly prevented from using it, he is entitled to an injunction to restore him to the quasi possession of the way, irrespective of whether he can establish the existence of a servitude. We will treat this action as a possessory action and grant an injunction which will restore the status quo ante” [4 NLR 181]

Historically, unlike in India which introduced laws to combat the breach of the peace arising from disputes relating to immovable properties very early, the Magistrates here did not have the jurisdiction to adjudicate over such disputes until recently. As it was unaffordable to permit violence in the name of civil disputes which generally culminates in the devastation of the progress of a nation, the bench and the bar had continued to clamour for Laws to be introduced to meet the challenges.

In 1953 the Criminal Courts Commission headed by E F N Gratian (Chairman) and M S F Pulle (Commissioner) accompanied by its Secretary M C Sansony forwarded its report to His Excellency the Governor suggesting that changes be brought into the law to put an end to this menace. The suggestions made by the commission with regard to disputes affecting lands, resulting in the breach

of the peace are found at page 8 and 9 of the report. The suggestion made by the Criminal Courts Commission was to strengthen the hands of the Magistrates to adjudicate summarily on disputes affecting land where the breach of the peace is threatened or likely and to permit the enjoyment of the rights relating to lands to those who are entitled to enjoy them FOR THE TIME BEING.

It took almost two decades to pass Laws in terms of the suggestion made by the Criminal Courts Commission, when the National State Assembly in 1973 made Provisions by enacting law No 44 of 1973 with the inclusion of Section 62 which was later replaced by Act No 44 of 1979 (Vide Chapter VII).

As the original Provision of Section 62 in the Administration of Justice Law was based on the report of the Criminal Courts Commission, it is pertinent at this stage to reproduce the relevant passages from the said report concerning the suggestions made with regard to disputes affecting immovable properties. For purpose of ready reference the suggestions made by the commission are reproduced below…

“Dispute as to immovable property

10. Many disputes and resulting offences spring from rival claims to land. There is at present no method by which a Magistrate can deal speedily and summarily such disputes. It is essential that the Magistrate should be vested with statutory powers to make orders with regard to the possession of lands where disputes affecting such lands may result in a breach of the peace. The procedure suggested by us in Section 98A is based in part on the provisions of Section 145 of the Indian Code of Criminal Procedure. As far as possible, notice will be given to the parties alleged to be concerned in the dispute, but whether such notice reaches the parties or not the Magistrate will hold summary inquiry and may, even before the inquiry is concluded, make an interim order on the question of possession in order to maintain the peace. The purpose of the inquiry is to enable the Magistrate to determine in a summary manner who should FOR THE TIME BEING permitted to enjoy the right in dispute, but he will make an order which may not be founded strictly on the legal merits of the claim of the rival parties but rather with the view to the necessities of the immediate emergency. It will be directed rather to resorting to the status quo and to ensure that interference, except by due process of law, which possession does not give rise to a breach of the peace. The ultimate decision as to the legal right of the parties will necessarily have to be made, in subsequent proceedings, by a competent civil Court. No particular procedure has been prescribed in regard to the manner of holding the inquiry, for that would only have introduced technicalities. The order eventually made by the Magistrate will be purely a temporary one and a refusal to comply with it in breach of it is made punishable. [Capitalization added]

11. We have sought to give effect to the principle that parties should not take the law into their own hands. Therefore, any party who dispossesses another forcibly should not gain any advantage thereby, when the Magistrate makes his final order. The scope of the Section has been deliberately made as wide as possible in order to embrace all possible disputes concerning any rights affecting land, and the intention is that in making an equitable interim order, a Magistrate is empowered to order a party placed in possession FOR THE TIME BEING to furnish security for the purpose of complying with the final decision of the dispute”. [Capitalization added]

From the above report, it would be seen that the commission has given the highest priority to orders being made FOR THE TIME BEING, permitting those who enjoy the rights to continue with it, until

such time the Court of competent jurisdiction resolves

the dispute on a permanent basis. Insistence on the proof of a right as in the case of a civil dispute, in this type of proceedings, would lead to two original Courts having to resolve the identical dispute on the same evidence, identical standard of proof and quantum of proof twice over. This would indeed an unnecessary duplicity and is not the scheme suggested by the Criminal Courts Commission and could neither be the intention of the Legislature.

One has to be mindful of the fact that there are still judicial officers in this country who function simultaneously as Judges of the Primary Court, Magistrates, and Judges of the Juvenile Court, Judges

of the family Court and District Judges. If disputes affecting lands under the Primary Court Procedure Act are to be heard by the Primary Court Judges and later the civil case as District Judges on the same evidence, same standard of proof and identical quantum of proof, it would not only result in the utter wastage of the precious time of the suitors and the Courts but will be a meaningless exercise as well.

Turning to the determination, the learned Magistrate has addressed his mind to the averments in the affidavits of both parties and considered the documents annexed and given cogent reasons for his findings. In short, the findings of the learned Magistrate are quite logical, stand to reasons and consistent with the material available. He has referred to the petitioner as having stated at the inspection that the respondents used the pathway in question as permissive users. As a result, the parties in the Magistrate’s Court were at variance only as to the nature of the pathway and not whether the respondents used the pathway. There is thus an implied admission of the road having been used by the respondents. Therefore the issue is whether the pathway used by the respondents is a right of servitude or a merely permissive user in nature. The wall has been put up overnight to obstruct the pathway.

In the Primary Court Procedure Act under Section 75 a dispute is defined as follows…

“dispute affecting land includes any dispute as to the right to the possession of any land or part of a land and the buildings thereon or the boundaries thereof or as to the right to cultivate any land or part of a land, or as to the right to the crops or produce of any land, or part of a land, or as to any right in the nature of a servitude affecting the land and any reference to “ land” in this Part includes a reference to any building standing thereon. (Emphasis added)

In the case of Kandiah Sellappah Vs Sinnakkuddy Masilamany (CA application 425/80- C A. minute dated 18 March 1981, Abdul Cader, J with the concurrence of Victor Perera, J held inter alia that the claimant of a footpath who started using it in 1966 August and was obstructed a few months before the prescriptive period of 10 years, in June 1976 was not entitled to a declaration under section 69.

Having analysed the evidence led in the lower court his Lordship formed the opinion that there had been no satisfactory evidence on which it can be held that the claimant exercised a right which has been in continuous existence for a period of time prior to his use.

I am of the view that the decision in Kandiah Sellappah’s case has been entered per incuriam without properly defining or appreciating that all what section 75 mandates is “a dispute in the nature of a servitude” and not a dispute touching upon a servitude per se.

Therefore, when the right concerned is in the nature of a servitude relating to a right of a pathway, the period of 10 years plays no important role. Further, the answer to this issue is found in the Judicature Act No 2 of 1978 by which the primary court had been created. In terms of section 32 (2) of the Judicature Act the primary court shall have no jurisdiction in respect of the disputes referred to in the 4th schedule, irrespective of the value thereof.

According to the 4th schedule the actions excluded from the jurisdiction of the primary court inter alia are as follows..

12. Any action for a declaratory decree including

a decree for the declaration of title to a land.

24 (i) for obstruction to or interference with the enjoyment of any servitude or the exercise of any right over property.

The two exclusions referred to above provide clear authority for the proposition that the right intended to be declared under section 69 is definitely not with the regard to servitude per se but a right in the nature of a servitude.

Since the dispute in this case therefore is a right connected with land in the nature of servitude there is no doubt that the learned Magistrate had jurisdiction to adjudicate on the issue in terms of the Act.

He also had jurisdiction to order the demolition of the construction that obstructed the pathway. In Tudor Vs. Anulawathie and Others - 1999 - Sri Lanka Law Reports Volume 3, Page No - 235 it was decided that although there is no specific Provision in the Primary Courts’ Procedure Act, expressly enabling the Court to order removal of obstructions in the way of restoration of the right to the person entitled thereto in terms of the determination made by the Court, there is no such prohibition, against the Court exercising such a power or making such an order. As was held in Narasingh v. Mangal Dubey - (1883) 5 Allahabad 163, the Courts are not to act on the principle that every procedure is to be taken prohibited unless it is expressly provided for by law. What in fact matters here is the converse that every procedure is to be understood as permissible till it is shown to be prohibited. As such, I can see no reason as to how the order of demolition made by the learned magistrate can be faulted as being illegal. It is axiomatic wisdom that prohibitions are generally not presumed and therefore a court cannot be faulted for acting on the converse.

The photograph produced marked as 2D9b, by the petitioner has been observed by the Magistrate as an attempt to mislead Court with regard to certain important features of the subject matter.

According to the affidavit of the Postmaster of the relevant area, following the construction of the wall, postal authorities had experienced difficulties in delivering the mails, addressed to the respondents. Further, the affidavit of the sister of both parties bears testimony that the pathway had existed over a period of 40 years serving as access road to buildings bearing assessment No’s 195/1 and 195/2.

According to the affidavit of the Grama Niladhari the pathway in question had been used for a period of 50 years as access to the aforesaid buildings. In addition, a lawyer practising in Galle and a science teacher had affirmed severally that the right of way had been used over a period of time.

The employees of the respondents also have affirmed to the existence of the road in question. Further, certain others who had used the pathway also had given affidavits.

Upon a consideration of the material referred to in Section 72 of the Act, the learned Magistrate has formed the opinion that the respondents are entitled to use the said pathway. This being a finding based on the credibility of the witnesses and parties, I do not think the High Court Judge or this Court should interfere with it, as the law permits the reversal of such a strong finding only if it had ended up in a miscarriage or travesty of justice. No such eventualities appear to have taken place by reason of the magisterial determination.

By placing a permanent obstruction in a haste, with no justification or explanation warranting such a quick action, carried into effect over a weekend, the petitioners appear to have aimed at making the respondents unable to turn to Court for redress, a compelling reason that had influenced the Magistrate to look for a draconic measure to undo the damage.

I feel obliged here to reiterate the concern of Bonser CJ penned over a century and a decade ago (4 NLR 181) which needs to re-echo in the minds of every officer exercising judicial, quasi-judicial and administrative powers in resolving or investigating into a complaint touching upon the breach or apprehension of a breach of the peace emanating from a dispute affecting land. It reads as follows…

“In a Country like this, any attempt of parties to use force in the maintenance of their rights should be promptly discouraged. Slight brawls readily blossom into riots with grievous hurt and murder as the fruits. It is, therefore, all the more necessary that Courts should strict in discountenancing all attempts to use force in the assertion of such civil rights”. Per BONSER CJ- Perera Vs. Gunathilake (1900 – 4 N.L.R 181 at 183)

In conclusion, I wish to place it on record that land disputes can cause social disruption and sometimes loss of lives. They can have a negative impact on the development of lands and eventually on the economy of the Country. An efficient and effective system for settling land disputes is essential in any Country although the resolution of land disputes may appear to be complex. However trivial the dispute may be, it is the duty of the law enforcing authorities to pay serious attention to the issue, particularly with a view to take a preventive measure against possible violence.

The determination of the learned Magistrate points to a right decision taken at the right time in the best interest of the parties, in consistent with the Law and the Legislative aim. Any decision to overturn such a decision by the High Court would have ended up in a miscarriage of justice.

Hence, it would be seen that the petitioner has failed to adduce exceptional circumstances or made out a case deserving the exercise of the revisionary powers of this Court under Article 138 of the Constitution. He has neither unfolded a case deserving the intervention of the Provincial High Court by way of revision under Article 154 (3) (b) of the Constitution.

In the circumstances, the fate of the petition could not have been different from how it culminated in the High Court.

Hence, the Magistrate and the Learned High Court Judge are amply justified in their respective conclusions which effectively had prevented the petitioner from taking the law into his own hands. The decision allowing the respondents to continue to enjoy the disputed right in the nature of a servitude for the time being, is the only order that could have been lawfully made by the Magistrate.

Revision application is therefore dismissed.

subject to costs fixed at Rs 1,03,000/-.

President/Court of Appeal

Sunil Rajapaksha, J

I agree

Judge of the Court Of Appeal

TW/-

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

CA PHC 108/2011

PHC Banality 814/10

Damith Kodithuwakku, Siththragoda, Amugoda

Pinnaduwa Hewa Samson, Bogahawatta,

Amugoda

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

Rohan Sahabandu PC for the appellant and 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 GG (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 s 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

Ananda Sarath Paranagama VS. D Sarath Paranagama

OIC, Habaraduwa Police Station,

INFORMANT-RESPONDENT- RESPONDENT

C A (PHC) APN 117/2013

HC Galle HCRA 32/ 13

Before: A.W.A.Salam, (P/ CA) and Suni1 Rajapaksha, J

Counsel: Dr Sunil Cooray with R. M Perera for the2nd party-petitioner-petitioner and Janaka Balasuriya for the parties of the 1st Party respondents.

Argument on: 10 February 2014

Decided on: 07 August 2014

A.W.A.SALAM, J (P/CA)

This application is aimed at revising an order of the Provincial High Court entered in the exercise of the revisionary jurisdiction vested in it under Article 154 P(3)(b) of the Constitution. A narrative description of the main events preceded the instant revision application, briefly are as follows; Proceedings began under Chapter VII of the Primary Court Procedure Act (hereinafter referred to as the ‘Act"), before the learned Magistrate (who is deemed to be a

Judge of the Primary Con 1) upon a dispute referred for

adjudication under Section 66(1) (a) regarding the obstruction of a pathway. The parties to the dispute were

three siblings. The learned Magistrate declared the parties of the 1st p art-respondents-respondents (referred to in this

judgment as the ‘respondents") as being entitled to use the pathway of 17 feet in width.

Based on this decision, the learned Magistrate directed the removal of the obstruction that was constructed across the pathway so as to facilitate the use of it.

Discontented with the determination, the party of the 2nd Part- Petitioner-Petitioner (referred to in the rest of this judgment as the ‘petitioner") sought to invoke the revisionary jurisdiction of the Provincial High Court. Upon hearing the parties as to the maintainability of the revision

Vide Section 57 of the Judicature Act

C A (PHC) APN 117/ 2013 HC Galle HCRA 32/ 13

application, the High Court refused to entertain the same, on the ground that the petitioner has failed to adduce exceptional/special grounds. The instant revision application has been filed thereafter, with a view to have the impugned order refusing to entertain the revision application set aside and revised inter nfin on the following grounds.

1. The impugned refusal to entertain the revision application is contrary to law and the facts of the case.

2. The learned High Court Judge’ has failed to consider, evaluate, and give reasons for not considering or accepting as exceptional circumstances, the several matters set out in paragraphs 10 and 11 of the said petition.

3. No other remedies are available to the petitioner to prevent the wall being demolished although the High Court had set out as the second ground that there are other remedies available;

4. No reasons whatsoever are given in the said judgment for dismissing the revision application on the two grounds stated therein.

C A (PHC) APN 117/ 2013 HC Galle HCRA 32/ 13

urged and established necessitating the indulgence of Court to exercise its powers in revision.

The term 'revision’ means the examination of a decision with a view to correction. The material points that may arise for consideration in a revision application inter min are whether a subordinate Court has exercised jurisdiction which is not vested in it in law or whether it has failed to exercise such jurisdiction which is so vested or has acted in the exercise of the jurisdiction illegally or in excess of jurisdiction or with material irregularity. ’In other words, strictly speaking a revision application calls for the correction of errors concerning illegalities and patent irregularities which are of such magnitude that call for the discretionary powers of Court to correct them.

the petitioner was obliged to adduce special or exceptional !

C A (PHCJ APN 117/ 2013 HC Galle HCRA 32/ 13

circumstances. This is a condition precedent to entertain the revision application by the High Court.

It was contended on behalf of the petitioner that the High Court Judge without giving any reasons by a judgment of two lines refused to issue notices and dismissed the application stating that there were no exceptional circumstances on which its revisionary jurisdiction could be exercised. He complains that this has culminated in a miscarriage of justice.

On a consideration of the practice ordinarily adopted by Courts in disposing revision applications at the threshold stage, it is manifest that the contention raised by learned Counsel is wholly untenable and devoid of merits. In other words, in an order refusing to entertain an application, the High Court Judge can most of the time able to state that there are no exceptional circumstances that warrant the entertainment of the application and no more. He is not obliged to give details regarding the existence or nonexistence of special or exceptional circumstances. In passing it might be of some relevance to mention that this is the procedure adopted even in the Supreme Court when application for special leave is refused.

C A (PHC) APN 117/ 2013 HC Galle HCRA 32/ 13

The main ground alleged in the revision application made to the High Court was that the learned Magistrate had not given his mind as to the proof required of the right in question in a Section 66 matter, as the action is commonly known. It was submitted on behalf of the petitioner that the respondents were obliged to establish in the Magistrate’s Court the entitlement to use the pathway by proof of user for an uninterrupted period of 10 years adverse to the petitioner’s rights. This ground alleged as a special circumstance warranting the inteNention of the High Court by way of its revisionary powers should fail inlimine as there is no requirement under Chapter VII — Section 09 to establish the entitlement in the same manner as is usually proved in a civil case.

The ingredients necessary to be proved to obtain a declaration of ‘entitlement’ as contemplated in Section 69 of the Act will be discussed at a different stage.

The learned Counsel for the petitioner has submitted that a glaring error of law has been committed by the learned Magistrate when failing to address his mind as to whether

C A (PHC) APN 117/ 2013 HC Galle HCRA 32/ 13

one brother has used the right of way over the other brother’s land adversely to the latter, and for a period of not less than 10 years. The glaring error said to have been committed in coming to the conclusion as to the existence of the pathway followed by the order of demolition to remove the impediment, according to the petitioner, has ended up in serious miscarriage of justice.

It is elements principle of law that under Chapter VII of the Act, when the dispute relates to the possession of an immovable property, the Judge of the mary Court is duty-bound under Section 68 to restrict to the issue of actual possession as at the date of filing the information, except where a person who was in possession of the subject matter is dispossessed within a period of two months immediately preceding the date on which information under Section 66 was filed.

Unlike in the case of a dispute relating to possession of immovable property, no timeframe has been laid down as to the length of time during which the right should have been enjoyed in relation to the purported entitlement. In resolving such a dispute the Judge of the Primary Court is expected to determine as to who is entitled to the right which is the subject of the dispute and make an order under Section 69(2).

The marginal note to Section 69 of the Act reads as ‘Determination and order of Judge of the Primary Court when dispute is in regard to any other right”. For purpose

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of ready reference, Section 69 of the Act is reproduced below...

(2) An order under this Sub-Section may declare that any person specified therein shall be entitled to any such right.in or respecting the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of an order or decree of a competent Court, and prohibit all disturbance or interference with the exercise of such right by such party other than under the authority of an order or decree as aforesaid.

at the time when the dispute arose. It is to be understood that the proof of the acquisition of the right is totally

different from proving the enjoyment/existence of the right at the time the dispute arose.

In dealing with the nature of the right, a Judge of the Primary Court is expected to adjudicate under Section 69

C A (PHC) APN 117/ 2013 HC Galle HCRA 32/ 13

of the Act, Sharvananda, I (later Chief Justice) in the case of Ramalingam Vs Thangarajaha 1982 Sri Lanka Law Reports - Volume 2 , Page — 693 stated that in a dispute in regard to any right to any land other than right of possession of such land, the question for decision, according to Section 69(1), is who is entitled to the right which is subject of dispute. The word "entitle" here connotes the ownership of the right. The Court has to determine which of the parties has acquired that right or IS ENTITLED FOR THE TIME BEING TO EXERCISE THAT

RIGHT. In contradistinction to Section 68 of the Act, Section 69 requires the Court to determine the question as to which party is entitled to the disputed right preliminary to the making of an order under Section 69(2). (Capitalization is mine)

According to the decision in Ramalingam (supra) the Judge of the Primary Court has two options, in deciding as to which of the parties should be declared entitled to the right. Since the word ‘entitle” as used in Section 69 implies ownership of the right, the Judge of the Primary Court could determine as to who in fact has acquired the disputed right. In the larger sense it means any kind of proof of the acquisition of the disputed right as envisaged by any law dealing with the ingredients to be proved. For instance, if the disputed right is the existence of a right of way, the party who desires the Court to pronounce his entitlement may establish the uninterrupted and undisturbed use of the pathway, by a title adverse to or

C A (PHC) APN 117/ 2013 HC Galle HCRA 32 / 13

independent of the owner that is to say, a use of the pathway unaccompanied by any payment from which an acknowledgment of a right existing in another person would fairly and naturally be inferred for ten years previous to the filing of the information under Section 66 of the Act.

This may not be possible in every case relating to a dispute over a right concerning an immovable property, as the proceedings under Chapter VII of the Act is required to be held in a summary manner, concluded within three months of the commencement of the inqui and the order under Section 68 or 69 as the case may be, having to be delivered within one week of the conclusion of the inquiry. Further, under Section 72 of the Act before the pronouncement of the order, the material on which the Judge of the Primary Court may act are limited to certain types of material unlike in a civil case where parties have the option to lead evidence of any volume as long as it is admissible and relevant to the facts in issue and facts relevant to the facts in issue.

C A (PHC) APN 117/ 2013 HC Galle HCRA 32/ 13

of a party to establish a right as is usually accomplished in a civil Court under the regular procedure.

Although in certain limited number of disputes, a party may be able to establish the right he claims strictly in accordance with the substantial law, in a large number of cases they may not be able to do so, by reason of the limited time frame within which the inquiry has to be concluded, the restricted mode of proof and the sui genesis nature of the procedure.

There are two ways in which an entitlement can be proved in the Primary Court. They are .

1. By adducing proof of the entitlement as is done in a civil Court.

2. By offering proof that he is entitled to the right FOR THE TIME BEING.

The phrase ‘for the time being" as used in the decision in Ramalingam’s case connotes the exercise of right by one party, temporarily or for the moment until such time such person is deprived of his right by virtue of a judgment of a Court of competent jurisdiction. If you describe a party as being entitled to enjoy a right but for the time being, it means that it will be like that for a period of time, but may change in the future. This is exactly in keeping with legislative wisdom embodied under part VII of the Act.

The rationale behind this principle is that the conferment of the special jurisdiction on a Judge of the Primary Court

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under Chapter VII of the Act is quasi-criminal in nature and is intended to facilitate the temporary settlement of the dispute between the parties so as to maintain the status quo until the rights of the parties are decided by a competent civil Court. Subject to this, every other concerns however much prominent they may appear to be, will have to be placed next to the imperative necessity of preserving the peace.

As has been emphasised in the case of Ramalingam (supra) at an inquiry under Chapter VII, the action taken by the Judge of the Primary Court is of a purely preventive and provisional nature, pending the final adjudication of the rights of the parties in a civil Court and the proceedings under this Section are of a summary nature. Moreover, it is essential that they should be disposed of as expeditiously as possible. In the circumstances, although it is open to a party to prove the right he claims to be entitled to as is required under the substantial law dealing with a particular right, it is not impossible for him to be content with adducing proof to the effect that he has the right to enjoy the entitlement in dispute for the time being.

Even in a civil action when the plaintiff had failed to prove a clear case of servitude there had been instances where

the Courts have issued restraining orders against the right of way being obstructed. One such case is Perera Vs. Gunatilleke where Bonsor C. J, observed as follows:

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"It seems to me that, where a person establishes that he has used a way as of right openly and continuously for a long period and is forcibly prevented from using it, he is entitled to an injunction to restore him to the quasi possession of the way, irrespective of whether he can establish the existence of a servitude. We will treat this action as a possessory action and grant an injunction which will restore the status quo ante" [4 NLR 181]

° All of them adorned the Supreme Court

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The suggestions made by the commission with regard to disputes affecting lands, resulting in the breach of the peace are found at page 8 and 9 of the report. The suggestion made by the Criminal Courts Commission was to strengthen the hands of the Magistrates to adjudicate summarily on disputes affecting land where the breach of the peace is threatened or likely and to permit the enjoyment of the rights relating to lands to those who are entitled to enjoy them FOR THE TIME BEING.

62 which was later replaced by Act No 44 of 1979 (Vide Chapter VII).

disputes affecting immovable properties. For purpose of

ready reference the suggestions made by the commission are reproduced below...

“Dispute as to immovable property

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10. Many disputes and resulting offences spring from rival claims to land. There is at present no method by which a Magistrate can deal speedily and summarily such disputes. It is essential that the Magistrate should be vested with statutory powers to make orders with regard to the possession of lands where disputes affecting such lands may result in a breach of the peace. The procedure suggested by us in Section 98 A is based in part on the provisions of Section 145 of the Indian Code of Criminal Procedure. As far as possible, notice will be given to the parties alleged to be concerned in the dispute, but whether such notice reaches the parties or not the Magistrate will hold summary inquiry and may, even before the inquiry is concluded, make an interim order on the question of possession in order to maintain the peace. The purpose of the inquiry is to enable the Magistrate to determine in a summary manner who should FOR THE TIME BEING permitted to enjoy the right in dispute, but he will make an order which may not be founded strictly on the legal merits of the claim of the rival parties but rather with the view to the necessities of the immediate emergency. It will be directed rather to resorting to the status quo and to ensure that interference, except by due process of law, which possession does not give rise to a breach of the peace. The ultimate decision as to the legal right of the parties will necessarily have to be made, in subsequent proceedings, by a competent civil Court. No

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particular procedure has been prescribed in regard to the manner of holding the inquiry, for that would only have introduced technicalities. The order eventually made by the Magistrate will be purely a temporary one and a refusal to comply with it in breach of it is made punishable. [Capitalisation added]

11. We have sought to give effect to the principle that parties should not take the law into their own hands. Therefore, any party who dispossesses’ another forcibly should not gain any advantage thereby, when the Magistrate makes his final order. The scope of the Section has been deliberately made as wide as possible in order to embrace all possible disputes concerning any rights affecting land, and the intention is that in making an equitable interim order, a Magistrate is empowered to order a party placed in possession FOR THE TIME BEING to furnish security for the purpose of complying with the final decision of the dispute". JCapitalisation added]

From the above report, it would be seen that the commission has given the highest priority to orders being made FOR THE TIME BEING, permitting those who enjoy

the rights to continue with it, until such time the Court of competent jurisdiction resolves the dispute on a permanent

basis.

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Insistence on the proof of a right as in the case of a civil dispute, in this type of proceedings, would lead to two original Courts having to resolve the identical dispute on the same evidence, identical standard of proof and quantum of proof twice over. This would indeed an unnecessary duplicity and is not the scheme suggested by the Criminal Courts Commission and could neither be the intention of the Legislature.

One has to be mindful of the fact that there are still judicial officers in this country who function siinultaneously as Judges of the Primary Court, Magistrates, and Judges of the Juvenile Court, Judges of the family Court and District Judges. If disputes affecting lands under the Primary Court Procedure Act are to be heard by the Primary Court Judges and later the civil case as District Judges on the same evidence, same standard of proof and identical quantum of proof, it would not only result in the utter wastage of the precious time of the suitors and the Courts but will be a meaningless exercise as well.

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users. As a result, the parties in the Magistrate’s Court were at variance only as to the nature of the pathway and not whether the respondents used the pathway. There is

thus an implied admission of the road having been used by

the respondents. Therefore the issue is whether the pathway used by the respondents is a right of servitude or a merely permissive user in nature. The wall has been put up overnight to obstruct the pathway.

In the Primary Court Procedure Act under Section 75 a

dispute is defined as follows...

" dispute affecting land includes any dispute as to the right to the possession of any land or part of a led and the buildings thereon or the boundaries thereof or as to the right to cultivate any land or part of a land, or as to the right to the crops or produce of any land, or part of a land, or as to any right in the nature of a servitude affecting the land and any reference to " land" in this Part includes a reference to any building standing thereon. (Emphasis added)

In the case of Kandiah Sellappah Vs Sinnakkuddy Masilamany (CA application 425/80- C A. minute dated 18 March 1981, Abdul Cader, I with the concurrence of Victor Perera, J held inter alia that the claimant of a footpath who started using it in 1966 August and was obstructed a few months before the prescriptive period of 10 years, in June 1976 was not entitled to a declaration under section 69.

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I am of the view that the decision in Kandiah Sellappah’s case has been entered per incuriam without properly defining or appreciating that all what section 76 mandates is “a dispute in the nature of a servitude” and not a dispute touching upon a servitude per se. Therefore, when the right concerned is in the nature of a servitude relating to a right of a pathway, the period of 10 years plays no important role.

further, the answer to this issue is found in the Judicature Act No 2 of 1978 by which the primary court had been created. In terms of section 32 (2) of the Judicature Act the primary court shall have no jurisdiction in respect of the disputes referred to in the 4 schedule, irrespective of the value thereof. According to the 4 schedule the actions excluded from the jurisdiction of the primary court inter alia are as follows..

12. Any action for a declaratory decree including a decree for the declaration of title to a land.

24 (i) for obstruction to or interference with the enjoyment of any servitude or the exercise of any right over property.

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As was held in Narasingh v. Mangal Dubey - (1883) 5 Allahabad 163, the Courts are not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by law. What in fact matters here is the converse that every procedure is to be understood as permissible till it is shown to be prohlbited. As such, I can see no reason as to how the order of demolition made by the learned magistrate can be faulted as being illegal. It

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axiomatic wisdom that prohibitions are generally not presumed and therefore a court cannot be faulted for acting on the converse.

The photograph produced marked as 2D9b, by the petitioner has been observed by the Magistrate as an attempt to mislead Court with regard to certain important features of the subject matter.

Further, the affidavit of the sister of both parties bears testimony that the pathway had existed over a period of 40 years serving as access road to buildings bearing assessment No’s 195/ 1 and 195/2.

According to the affidavit of the Grama Niladhari the pathway in question had been used for a period of 50 years as access to the aforesaid buildings.

In addition, a lawyer practising in Galle and a science teacher had affirmed severally that the right of way had been used over a period of time.

The employees of the respondents also have affirmed to the existence of the road in question. Further, certain others who had used the pathway also had given affidavits.

Upon a consideration of the material referred to in Section

72 of the Act, the learned Magistrate has formed the opinion that the respondents are entitled to use the said pathway. This being a finding based on the credibility of the witnesses and parties, I do not think the High Court Judge or this Court should interfere with it, as the law permits the reversal of such a strong finding only if it had ended up in a miscarriage or travesty of justice. No such eventualities appear to have taken place by reason of the magisterial determination.

“In a Country like this, any attempt of parties to use force in the maintenance of their rights should be promptly discouraged. Slight brawls readily blossom into riots with grievous hurt and murder as the fruits. It is, therefore, all the more necessary thot Courts should strict in discountenoncing all attempts to use force in the assertion of such civil rights”. Per BONSER CJ- Perera Vs. Gunathilake (1900 – 4 N.L.R 181 at 183)

In conclusion, I wish to place it on record that land disputes can cause social disruption and sometimes loss of life. They can have a negative impact on the development of lands and eventually on the economy of the Country. An efficient and effective system for settling land disputes is essential in any Country although the resolution of land disputes may appear to be complex. However trivial the dispute may be, it is the duty of the law enforcing authorities to pay serious attention to the issue, particularly with a view to take a preventive measure against possible violence. The determination of the learned Magistrate points to a right decision taken at the right time in the best interest of the parties, in consistent with the Law and the Legislative aim. Any decision to overturn such a decision by the High Court would have ended up in a miscarriage of justice.

He has neither unfolded a case deserving the intervention of the Provincial High Court by way of revision under Article 154 (3) (b) of the Constitution. In the circumstances, the fate of the petition could not have been different from how it culminated in the High Court.

Revision application is therefore dismissed subject to costs fixed at Rs 1,03,000/ -.

President/Court of Appeal

I agree

Sunil Rajapaksha, J

Judge of {he Court Of Appeal

TW/ -

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Meenachchi Vs S Wijeshwari [CA] unreported

CA case No: CA(PHC) 39/2003

HC Kandy case No: H.C. 41/2000

Primary Court Nuwaraeliya case No:19876/99

HC Kandy case No: H.C. 41/2000

Before : P.R.WaIgama, J and Mlini Gunaratne J

Argued on Decided on 12. 03.2015

P.R.WaIgama, J.

The Petitioner- Appellant (herein after called and referred to as the Appellant) filed an information by affidavit under section 66 (1) (b) of the Primary Courts’ Procedure Act No. 44 of 1979.

The Appellant had set out in the said affidavit alleging a breach of the peace due to a dispute regarding a land. Being satisfied with the information contained therein the Learned Primary Court Judge has issued notice to the Respondents to appear in court on the specified date.

As the information filed by the Petitioner - Appellants in terms of above section 66 (1) (b) of the Primary Court Act No 44 of 1979, had disclosed a breach of the peace due to a dispute regarding a Premises. The Learned Primary Court Judge being satisfied with the facts averred in the affidavit, had issued notice on the Respondents to appear in court on the specified date.

On receipt of the said notice the 1st and the 2nd Respondents had filed the affidavits and had stated the following;

That the husband of the 1st Respondent and the father of the 2nd Respondent was carrying on a business in the said disputed premises. In addition, the 3 d Respondent who is the husband of the 2nd Respondent was also occupying the same. The permit issued in respect of the said business was marked as 2 R 1. In addition, the Respondents had produced a certificate from the gramasevaka in order to prove the fact that the Respondents were residing in the said disputed premises.

There after the case was fixed for inquiry and the Learned Primary Court Judge, having taken in to consideration the material placed before him, had made order dated 18.01.2000 placing the Appellants in possession in the southern portion of the disputed premises.

Being aggrieved by the said order the Respondents had made an application by way of Revision to have the said order vacated / set aside. Pursuant to the said application the Learned High Court Judge by exercising the Revisionary powers had set aside the said order on the basis that the Primary Court Judge has made the said order without having Jurisdiction to do so. In that it is said that the Primary Court Judge before issuing notice in terms of section 66

(1) (b) should be satisfied that there is a breach of the peace due to a dispute in respect of a land. The Learned High Court Judge was of the view that the Leaned Primary Court Judge has not acted in accordance with section 66 (1) (b) of the said Act.

Being aggrieved by the said Judgment of the Learned High Court Judge, dated 10.12.2002, the Petitioner - Appellants had appealed to this court to heave the Judgment of the Learned High Court Judge set aside or vacated.

After issuing notice on the Respondents in respect of the appeal lodged in this court, on many occasions the Respondents and the Registered Attorney had failed to make appearance in court. Nevertheless, as per Journal entry dated 20.11.2012, it is evident that both parties were represented and as such the court fixed the case for argument accordingly. After the said date the respondents or

their Registered Attorney did not appear in court. Hence this court heard only the argument of the counsel for the Appellants. Hence this court heard only the argument of the counsel for the Appellants.

The facts averred by the Appellants is the affidavits are as follows.

That the Appellants were in possession in the premises in suit for well over 25 years. To buttress the said position the Appellants had tendered the documents marked P1 -P5.

It is common ground that this dispute had arisen among the family members who were living in the disputed premises in two different portions. It is stated in the said affidavits that the Appellants were occupying the southern portion of the said premises whereas Respondents were to the northern portion of the same.

The Petitioners had also averred that the Respondents had forcibly entered the house in which the petitioners were living and had obstructed and dispossessed them from the premises in suit. The Petitioners had made a complaint to Nanuoya Police on 23.08. 1999 regarding the said dispossession by the Respondents.

In the said affidavit filed by the Petitioner Appellants, it is emphatically stated that they were dispossessed and ejected from the disputed premises. It was on the strength of the assertions made by the appellants in the said petition that the Learned Primary Court Judge had assumed jurisdiction and proceeded to issue notice on the Respondents.

Further it is noted that there had been a scuffle between the Petitioners and the Respondents, and as a result the 1st Appellant had received injuries, and was treated at the Nuwaraeliya hospital.

It was the stance of the 1st to 3rd Respondents that they are carrying on a business in the said premises and alleged that the Petitioners left the disputed premises after their marriage and was living at Welimada.

The Learned Primary Court Judge has adverted his attention to the electoral list tendered by the Appellants which is marked as P4, in proof of the fact that the Appellants were occupying the part of the disputed premises. Hence in the light of the above the Learned Primary Court Judge was of the view that the Appellants were living in the disputed house in a portion towards the South and the Appellants were forcibly dispossessed on 23.08. 1999, by not allowing the Appellants to enter the southern portion of the house by the Respondent.

In the said background the Learned Primary Court Judge was of the view that the Appellants were dispossessed within two months prior to the filing of the information in Court in terms of Section 66 (1)(b) of the Primary Courts Procedure Act No. 44 of 1979.

Thus, the Learned Primary Court Judge by his order dated 18.01.2000 has placed the Appellants in possession in the premises in suit.

Being aggrieved by the said order of the Primary Court Judge, the Respondents had made an application by way of revision to the High Court of Kandy to have the said order vacated. In analyzing the facts before the High Court, the Learned High Court Judge has arrived at the following decision;

In that it is said, when a party files a petition in terms of Section 66 (1)(b) the Primary Court Judge should be satisfied that there has been a breach of the peace or is threatened or likely, and it is only then the jurisdiction is conferred on the Primary Court Judge to act under Section 66 (1) (b) of the Primary Court Act No: 44 of 1979. But if the Primary Court Judge fails to arrive at the said decision, the Primary Court Judge, will be barred in proceeding further.

The said proposition was observed in the case of PUNCHI NONA VS PADUMASENA- 1994 2SLR- 117. Therefore, the Learned High Court Judge was of the view that the Learned Primary Court has failed to satisfy himself that the facts averred in the affidavit, have revealed of a dispute which has threatened the breach of the peace. Hence the Learned High Court Judge has dismissed the revision application accordingly.

It is against the said order of the High Court Judge the Appellants had preferred the instant appeal to this Court and pleaded inter alia;

To have the judgment of the Learned High Court Judge to be set aside or vacated. It is viewed from the said impugned judgment that the Learned High Court Judge has dismissed the application in revision on the basis that the Primary Court Judge acting under Section 66 (1)(b) has failed to satisfy himself that there is a dispute which will result in a breach of the peace. When considering the contents in the petition filed in the Primary Court the petitioners had given a vivid description of events that will ensue a breach of the peace. Therefore, the Learned Primary Court Judge acting under Section 66 (1) (b) had sufficient material to assume jurisdiction to proceed with the above application.

The Learned High Court Judge in the said impugned Judgment had also referred to the case of PUNCHI NONA.VS. PADUMASENA – 1994 -2 SRI.LR- 117 which has laid down the said proposition. Therefore, it is seen that the Learned High Court Judge was of the view that the Learned Primary Court Judge has failed to arrive at the conclusion that the existence of a dispute which has threatened the breach of the peace or likely, therefore in the above setting the Learned High Court

Judge has dismissed the application in revision accordingly. But it is contended by the Appellants that the said position was never an issue in the Primary Court or in the High Court and the jurisdiction of the Primary Court was never challenged.

When proceedings are instituted by way of filing of an information in court in terms of Section 66(1)(b) by a private party it is the duty of the Primary Court Judge to ascertain whether there is a situation where breach of the peace is threatened.

The above position was entertained and accepted in the case of VELUPILLAI.VS. SIVANANTHAM- (1993) 1SLR- 123. It has been held that, “However, when an information is filed under Section 66(1)(b) the only material that the Magistrate would have before him is affidavit, information of an interested person and in such situation without the benefit of further assistance from the police the Magistrate should proceed cautiously and ascertain for himself whether there is a dispute affecting land and whether a breach of the peace is threatened or likely.” (Emphasis added)

Therefore, the Primary Court Judge has to decide on the above situation before issuing notice on the other party. if the informant fails to satisfy the Magistrate on this aspect, the application will be liable to be rejected. A wide interpretation has been given to the above principle in the case of HASANOON IQUIBAL.VS. MAJUBDEEN (1999) 3 SLR- 213 which held thus;

“Breach of the peace is likely does not mean that breach of the peace would ensue for certainty; rather, it means that a breach of the peace or disorder is a result such as might well happen or Occur.”

Therefore, it is well settled law that in order to issue notice under 66(1)(b) imminent breach of the peace is not an essential ingredient, in absolute sense. Nevertheless, from the affidavit tendered to court by the Petitioner- Appellants it is crystal clear, undoubtedly there was a dispute over the disputed premises, and in fact the breach of the peace is threatened. Therefore, it is abundantly clear that the Learned High Court Judge has arrived at an incorrect finding in setting aside the order of Learned Primary Court Judge dated 18.01.2000.

It is obvious that the Learned Primary Court Judge has assumed jurisdiction pursuant to the affidavit filed under Section 66(1)(b) after being satisfied of the facts averred in the affidavit, and has issued notice to the respondents accordingly.

As per paragraph 7 of the Petition filed by the Petitioners in the Primary Court the alleged dispossession had taken place on 04.08.1999, and the above affidavit in terms of Section 66(1)(b) of the Primary Courts Procedure Act No.44 of 1979 was filed on 13.9.1979. Therefore, it is abundantly clear that the Appellants were dispossessed by the Respondents within two months prior to the filing of the petition in terms of the Section 66 (1)(b) of the above Act.

When the judgment of the Learned High Court Judge is reviewed in the above backdrop, I’m of the view that the said impugned judgment is devoid of merits and should be set aside.

Hence, we set aside the Judgment of the Learned High Court.

Judge and allow the appeal accordingly.

JUDGE OF THE COURT OF APPEAL

W.M.M. Malini Gunaratna, J

I agree.

JUDGE OF THE COURT OF APPEAL

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

CA PHC 108/2011

PHC Banality 814/10

Damith Kodithuwakku, Siththragoda, Amugoda

Pinnaduwa Hewa Samson, Bogahawatta,

Amugoda

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

Rohan Sahabandu PC for the appellant and D M G Dissanayaka for the respondents.

ARGUED: 17.10.2012.

DECIDED ON: 17.01.2013.

A W A SALAM, J

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...

A W A Salam, J

Deepali Wesner, J I agree.

Judge of the Court of Appeal

Gaspe Mudiyanselage Kusumalatha vs G.D.J. Samarawickrama

CA (PHC) 78A/2005

CA CASE NO: CA (PHC) 78/2005

CA (PHC) 78A/2005

HC KURUNAGALA CASE NO: HCR 133/2003 MC KULIYAPITIYA CASE NO: 6971/66

Before: K.K. Wickramasinghe, J. Mahinda Samayawardhena, J.

Counsel: Manohara De Silva, P.C., with Imalka

Abeysinghe for the original Respondents- Petitioners-Appellants in CA (PHC) 78/2005.

R. Wimalarathna for the original Petitioners- Respondents-Appellants in CA (PHC) 78A/2005.

Decided on: 21.05.2019

Samayawardhena, J.

The two petitioners (G.M. Kusumalatha and P.G.D.J. Samarawickrama) filed this application in the Magistrate’s Court of Kuliyapitiya under section 66(1)(b) of the Primary Courts’ Procedure Act, No. 44 of 1979, making three parties as respondents (H.M. Sriya Swarnakanthi, H.M. Piyadasa Gunathilake, W.A. Sudath Vijitha Weerakkody) seeking an order under section 68(3) of the Act to restore them in possession on the premise that they were forcibly dispossessed by the respondents and their agents within two months prior to the filing of the application in Court. After filing objections and counter objections together with documents, the Court disposed of the inquiry by way of written submissions. By order dated 31.10.2003, the learned Magistrate granted the relief prayed for by the petitioners, and the order was executed through Fiscal and the petitioners were restored in possession.

The respondents filed a revision application before the High Court against this order, and the High Court by order dated 31.03.2005 set aside the order of the Magistrate’s Court.

The petitioners as well as the respondents have appealed against that order to this Court. The appeal by the petitioners is understandable. But the respondents also appealed, because, after setting aside the Magistrate’s Court order, the learned High Court Judge did not make the consequential order in restoring the respondents in possession.

The learned counsel for both parties agreed to abide by a single Judgment in respect of both appeals and invited the Court to pronounce the Judgment on the written submissions tendered to this Court long time ago.

It is common ground that the learned High Court Judge set aside the order of the learned Magistrate on the sole basis that the learned Magistrate has not, according to the journal entries of the Magistrate’s Court case record, endeavoured to induce the parties to arrive at a settlement before the matter was fixed for the inquiry as required by section 66(6) of the Primary Courts’ Procedure Act. The learned High Court Judge relied only on the Judgment of this Court in Ali v. Abdeen [2001] 1 Sri LR 413 to come to that conclusion.

Sections 66(6) and 66(7) of the Primary Courts’ Procedure Act read as follows:

66(6) On the date fixed for filing affidavits and documents, where no application has been made for filing counter- affidavits, or on the date fixed for filing counter-affidavits, whether or not such affidavits and documents have been

filed, the court shall before fixing the case for inquiry make every effort to induce the parties and the persons interested (if any) to arrive at a settlement of the dispute and if the parties and persons interested agree to a settlement the settlement shall be recorded and signed by the parties and persons interested and an order made in accordance with the terms as settled.

66(7) Where the parties and persons interested (if any) do not arrive at a settlement, the court shall fix the case for inquiry on a date which shall not be later than two weeks from the date on which the case was called for the filing of affidavits and documents or counter-affidavits and documents, as the case may be.

In terms of section 66(6), after the counter-affidavits are filed, the Court shall, before fixing the case for inquiry, make every effort to induce the parties to arrive at a settlement of the dispute and if the parties agree to a settlement, the settlement shall be recorded and order made accordingly. If there is no settlement, in terms of section 66(7), the Court shall fix the case for inquiry.

In Ali v. Abdeen (supra), Gunawardena J., sitting alone has held that non-compliance with section 66(6) makes the final order of the learned Magistrate invalid as “It is the making of an effort to induce parties and the fact that the effort was not attended with success that clothe the Primary Court with jurisdiction to initiate an inquiry with regard to the question as to who was in possession.” According to Gunawardena J. the Magistrate’s Court has no jurisdiction to hold the inquiry and then make an order unless the Court makes an effort to induce the parties to arrive at a settlement of the dispute.

Gunawardena J. has further elaborated this at pages 415-416 in the following terms:

Thus, it is to be observed that the Primary Court Judge was under a peremptory duty to encourage or make every effort, so to say, to facilitate dispute settlement, before assuming jurisdiction to hold an inquiry into the matter of possession and impose on the parties a settlement by means of the court order. It was obligatory on the Primary Court as a condition- precedent to holding an inquiry, to have made a conscious endeavor to have composed or ironed out the differences between the parties-a duty which, in this instance, had been neglected. The making of an effort by the court was such a duty as should have been done or performed before the court could have validly embarked upon an inquiry in pursuance of or rather in compliance with sec. 66(7) set out above. That is a preliminary requirement which has to be fulfilled before the jurisdiction of the Primary Court exists to hold an inquiry under section 66(7). When Parliament has enacted that provided a certain situation exists, then a tribunal may have certain powers, it is clear that the tribunal will not have those powers unless that situation exists. The making of an endeavor by the court to settle amicably is a condition precedent which had to be satisfied before the function of the Primary Court under sec. 66(7) began, that is, to consider who had been in possession. Since the Primary Court had acted without jurisdiction in proceeding to determine the question of possession, its decision is, in fact, of no force or avail in law. Accordingly the decision dated 21. 11. 1990 is hereby set aside. It is the making of an effort to induce parties and the fact that the effort was not attended with

success that clothe the Primary Court with jurisdiction to initiate an inquiry with regard to the question as to who was in possession. The fact that the Primary Court had not made an endeavor to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession. (emphasis added)

This Judgment of Gunawardena J. is extensively made use of in appeals by the defeated parties in the Magistrates’ Courts as an easy way of getting well-considered orders of the Magistrates’ Courts set aside.

With respect, I am unable to agree with the above conclusion of Gunawardena J. for several reasons.

Firstly, it is not clear from the Judgment on what basis Gunawardena J. came to the conclusion that the learned Magistrate in that case, did not endeavor to induce the parties to settle the matter before fixing the case for inquiry. I presume it is from the journal entries of the Magistrate’s Court case record, as the learned High Court Judge did in the instant case. That is, in my view, not a healthy practice.

Section 66(6) does not require the Magistrate to record his failure to settle the matter. That section only requires the Magistrate to record “the settlement”, if the attempt is successful. To put differently, if the matter is settled, the settlement shall be recorded and order be made accordingly; and if the matter is not settled, case can straightaway be fixed for inquiry. Hence, merely because there is nothing in the journal entries in the Magistrate’s Court case record to show that the Magistrate took effort to induce

the parties to arrive at a settlement of the dispute, the Judge in appeal, in my view, cannot, with a stroke of the pen, set aside a well-considered order of a Magistrate. Failure to record of the failure to settle does not amount to failure to comply with the law.

Secondly, notwithstanding the act of inducement on the part of the Magistrate for a settlement under section 66(6), prima facie suggests to be mandatory as the word used in the section is “shall”, that step shall be construed as directory, especially in view of the fact that, a party shall not be made to suffer for the lapses of the Judge, over which he (the party) has no control.

It is interesting note that, except 66(8)(a), in all the sub-sections from (1)-8(b) in section 66, which includes 66(6), although the word “shall” has been used, the Superior Courts have not considered those steps/acts as mandatory, but treated them only as directory.

In Ramalingam v. Thangarajah [1982] 2 Sri LR 693 at 701-703, Sharvanada J. (later C.J.) explained:

The question was raised as to what was the consequence of the failure of the Judge to observe the time-limits prescribed for the various acts and steps leading to the determination and order under Section 68. It is significant that the prescription of time is preceded by the word ‘shall’. The obligatory nature of the requirement that the particular step/act should be taken or done within a fixed time is indicated by the word ‘shall’. This expression is generally used to impose a duty to do what is prescribed, not a discretion to comply with it according to whether it is reasonable or practicable to do. Prima facie the word ‘shall’ suggests that it is mandatory, but that word has often been rightly construed as directory. Everything turns on the context in which it is used; and the purpose and effect of the section in which it appears. It is to be noted that the statute does not declare what shall be the consequence of non-compliance by Court with regard to this requirement as to time limit prescribed by the law. Are these procedural rules to be regarded as mandatory, in which case disobedience will render void or voidable what has been done or as directory, in which case disobedience will be treated as an irregularity not affecting what has been done? It is to be observed that this obligation with regard to time limit is imposed on court, over whose acts or omissions the parties do not have any control. Maxwell on ‘Interpretation of Statutes’ 11th Edition, at page 369 appositely states-

“Where the prescription of a statute related to performance of a public duty and where invalidation of acts done, in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. Neglect of them may be penal, indeed, but it does not affect the validity of the acts done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, then the Act is directory only and might be complied with after the prescribed time.”

In this context, one may also invoke the maxim “Actus curiae neminem gravabit” (an act of Court shall prejudice no man). In my opinion this maxim which is founded upon justice and good sense may be appropriately applied to salvage a determination and order made under section 68, where the Judge has failed to observe the time-limits imposed by the legislature for the various procedural steps prescribed by it. The Judge is certainly to be blamed but a party in whose favour such an order is made should not suffer for the Judge’s default. (emphasis added)

In Officer-in-Charge, Police Station, Kotahena v. Dewasinghe [1983] 2 Sri LR 149, Seneviratne J. at pages 152-153, in reference to the said Judgment in Ramalingam’s case (supra) stated as follows:

It is clear from the judgment of Sharvananda J. that though that appeal was specifically related to section 67(1) of the Act, the Supreme Court has considered the broader issue whether the violation of the mandatory provisions of part 7 of the Primary Courts Procedure Act makes the proceedings of the Primary Court null and void. Part 7 is the Chapter of the Act which deals with “inquiry into disputes affecting land”, and where a breach of peace is threatened or likely. The mandatory provisions of this part 7 are section 66(3), 66(4), 66(5), 66(6), 66(7), 67(1) and 67(2). In dealing with the question as to whether these provisions were directory or mandatory, Sharvananda, J. stated as follows:- “The question was raised as to what was the consequence of the failure of the Judge to observe the time limits prescribed for various acts and steps leading to a determination and order under section 68…. It is to be noted that the statute does not declare what shall be the consequences of non-compliance by court with regard to this requirements as to the times prescribed by law”. Sharvananda. J, having considered the provisions referred to above at length finally came to this conclusion – “I am, therefore, of the view that the provisions as to time limit in section 66 or 67 though the words “shall” suggest that they are mandatory should be construed as being directory and the non-compliance by Court of the provisions of section 66 or 67 of the Act does not divest the court of jurisdiction conferred on it by section 66(2) to make determination and order under Section 68”. This dictum cited above from the said judgment clearly shows that the Supreme Court has considered the nature of the provisions of both sections 67(1) and 67(2). As such the judgment in Ramalingam’s case cannot be restricted to a ruling only on the nature and effect of section 67(1) of the Act. In view of the judgment referred to above, I hold that the non-compliance by the learned Magistrate of the provisions of section 67(1) of the Primary Courts Procedure Act has not vitiated the proceedings. (emphasis added)

Thirdly, and more importantly, the ratio of the Judgment in Ali v. Abdeen (supra) is that the Court lacks jurisdiction to make a final determination unless the Court makes an attempt to settle the matter. I regret my inability to agree with it.

There is no dispute that the learned Magistrate had jurisdiction over the subject to make a valid order. In other words, the matter was within the plenary jurisdiction of the learned Magistrate, but the question was whether he invoked it in the right way. If a party to a case (such as the respondents in this case) asserts that the Magistrate invoked the jurisdiction in the wrong way, he should have objected to it at that time before the same Magistrate. The respondents in the instant case did not do so. They kept silent and allowed the Magistrate to fix the case for inquiry without the Magistrate (according to the respondents) making an effort to settle the matter. They cannot keep silent without objecting to the jurisdiction and allow the Court to exercise the jurisdiction in the wrong way and challenge the jurisdiction later when the order is against him. That is prohibited in law. In such a situation, the objection to jurisdiction is deemed to have been waived and the party is deemed to have acquiesced in the wrong invocation of the jurisdiction.

However the situation is different, if the Court had total or patent want of jurisdiction over the subject, in which event, the objection can be taken up at any time including for the first time in appeal, and, if upheld, all the previous proceedings become a nullity as there was coram non judice. By acquiescence or waiver, one cannot convert nullity into validity. The situation under consideration is not patent want of jurisdiction but latent want of jurisdiction.

In Navaratnasingham v. Arumugam [1980] 2 Sri LR 1, Soza J. at pages 5-6, citing both statutory and case law, lucidly explained this principle in the following manner:

It is necessary to remember that an objection to jurisdiction must be taken as early as possible. Section 39 of the Judicature Act, No. 2 of 1978 (and prior to that section 43 of the Administration of Justice Law, No. 44 of 1973) laid down that- “Whenever any defendant or accused party shall have pleaded in any action, proceeding or matter brought in any Court of First Instance neither party shall afterwards be entitled to object to the jurisdiction of such court, but such court shall be taken and held to have jurisdiction over such action, proceeding or matter”. (cf. also sections 30 and 71 of the old Courts Ordinance).

Further the failure to object to jurisdiction when the matter was being inquired into must be treated as a waiver on the part of the 2nd respondent-petitioner. It is true that jurisdiction cannot be conferred by consent. But where a matter is within the plenary jurisdiction of the Court, if no objection is taken, the Court will then have jurisdiction to proceed on with the matter and make a valid order. This point has been well explained by Chandavakar, J. in the case of Jose Antonio Baretto v. Francisco Antonio Rodrigues (1910) 35 Bombay 24:

“But it is urged that the parties cannot by consent give jurisdiction where none exists. That is so where the law confers no jurisdiction. Here the consent is not given to jurisdiction where none exists”.

In the case of Alagappa Chetty v. Arumugam Chetty (1920) 2 CL Rec 202, Bertram. C.J. on the same point cited with approval a dictum of Mookerjee, J. in the case of Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehary Singh, I.L.R., (1907) 36 Cal. 193:

“ where jurisdiction over the subject matter exists requiring only to be invoked in the right way, the party who has invited or allowed the Court to exercise it in a wrong way, cannot afterwards turn round and challenge the legality of the proceedings due to his own invitation or negligence.”

In the case of Pisani v. Attorney-General for Gibraltar (1987) L.R. 5 P.C. 516, the Privy Council affirmed this same doctrine that unless there is an attempt to give the Court a jurisdiction which it does not possess, the Court can, in the absence of objection, hear a case where it has jurisdiction over the subject. These principles were followed also in the case of Thevagnanasekeram v. Kuppammal (1934) 36 NLR 337 where Macdonell, C.J. held that a party was not entitled to challenge the jurisdiction of the Court to give the decision invited by such party, so long as the Court had jurisdiction over the subject.

The distinction between elements which are essential for the foundation of jurisdiction and the mode in which such jurisdiction has to be assumed and exercised is of fundamental importance. Non-compliance with the prescribed mode in which a particular jurisdiction should be assumed and exercised can be waived, provided there is jurisdiction over the subject matter.

Therefore in the instant case as there was no objection to the invocation of the jurisdiction of the Magistrate, he was entitled to proceed on with the matter as it was within his plenary jurisdiction. (emphasis added)

In David Appuhamy v. Yasassi Thero [1987] 1 Sri LR 253 at page 255, Wijetunga J., applied the said dicta of Soza J. to overrule the jurisdictional objection:

The case of Navaratnasingham v. Arumugam (supra) is again relevant to a consideration of this aspect of the matter. That case too dealt with an application under section 62 of the Administration of Justice Law No. 44 of 1973, which corresponds to section 66 of the present Primary Courts’ Procedure Act. There too it was submitted that the Magistrate was not vested with jurisdiction to proceed in the matter as he had failed initially to satisfy himself of the likelihood of a breach of the peace. This court held that such an objection to jurisdiction must be taken as early as possible and the failure to take such objection when the matter was being inquired into must be treated as a waiver on the part of the petitioner. It was further held that where a matter is within the plenary jurisdiction of the court, if no objection is taken, the court will then have jurisdiction to proceed and make a valid order. The dicta of Soza, J. in this regard too, which I would adopt, apply to the instant case. (emphasis added)

Hence if a party has not objected to fixing the case for inquiry and allowed the Magistrate to make an order according to law, without the latter first making an effort to settle the matter as provided for in section 66(6), such party cannot, when the order is against him, take up the belated objection that the Magistrate did not have jurisdiction to make that order as he did not comply with section 66(6).

This conclusion is supported by the Divisional Bench decision of this Court in Jayantha Gunasekera v. Jayatissa Gunasekera [2011] 1 Sri LR 284 at 302.

When the determination of the matter is within the plenary jurisdiction of the Court, objection to jurisdiction shall be taken at the earliest possible opportunity for otherwise objection is deemed to have been waived.

The decision in Ali v. Abdeen [2001] 1 Sri LR 413 does not, with utmost respect, represent the correct position of law, and therefore need not be followed.

As was held in Ponniah v. Sheriff (1966) 69 NLR 67 “Court was not bound by an earlier decision in which material cases and statutory provisions were not considered.”

In the circumstances, the order of the learned High Court Judge cannot be allowed to stand.

There is no necessity to send the case back to the High Court 14 years after the impugned order of the High Court (and 16 years after the order of the Magistrate’s Court) to hear the revision application on merits. The learned Magistrate has given cogent reasons acceptable to this Court for his conclusion that the petitioners were entitled to the relief under section 68(3) of Primary Courts’ Procedure Act. The petitioners have been restored in possession since the order the Magistrate’ Court in 2003. The parties can go before the District Court to resolve the dispute permanently, if they have not gone before so far, as the order of the Magistrate’s Court is a temporary order made only to prevent breach of the peace.

The order of the learned High Court Judge dated 31.03.2005 is set aside and the order of the learned Magistrate dated 31.10.2003 is restored and the appeal of the original petitioners is allowed.

The consideration of the appeal of the original respondents does not arise and the appeal of the said respondents is therefore pro forma dismissed.

Let the parties bear their own costs.

Judge of the Court of Appeal

K.K. Wickramasinghe, J. I agree.

Judge of the Court of Appeal

IN THE COURT OF APPEAL OF THE DEMOCRAIC SOCIALIST REPUBLIC OF SRI

LANKA.

Court of Appeal case no. CA/PHC/APN58/2015

M.C. Galle case no. 34/13

M.C. Galle case no. 4216/13

Lelio Orsetti,

Petitioner

Vs.

Umagiliyage Rasika

Chaminda,

Respondent

Before: P.R.Walgama J. : L.T.B. Dehideniya J.

Counsel : Shantha Jayawardane with Camara Nanayakkara for the Respondent Respondent Petitioners.

W. Dayarathne PC with R.Jayawardane for the Petitioner Petitioner Respondent.

Argued on : 04.03.2016

Written submissions filed on : 19.05.2016

Decided on : 09.12.2016

L.T.B. Dehideniya J.

This is a revision application filed against an order of the learned High Court Judge of Galle.

The 1st and 2nd Petitioner Petitioner Respondents (the 1st and 2‘d Respondents), as a private party, filed information in the Magistrate Court Galle under section 66(1)(b) of the Primary Court Procedure Act indicating that a land dispute threatening breach of the peace has arisen. The Respondent’s contention is that the land in dispute called Thibbatukanaththawatta with the house in it was purchased by the 2nd

Respondent and was transferred to a company owned by the 1st

Respondent. Thereafter the land and the house were developed by the 1st Respondent. The 1st Respondent was in possession of the land and the house and the 2‘d Respondent was assigned to look after the house. On 22.02.2013 the 1st Respondent has come to Sri Lanka and found that the Respondent Respondent Petitioner (the Petitioner) was in occupation of the land and the house. The Respondents filed this action in the

, 4

Magistrate Court of 20.03.2013 under section 66(1)(b) of the Primary Court Procedure Act.

The Petitioners contention is that they have not sold the land called Mahamesthrigawatta and house where they were residing. Their side of the case is that they were residing in the said house for about fifty years. The electricity and water connections were obtained by them. They are not in possession of a land called Thibbatukanaththawatta but they are in Mahamesthrigawatta.

The learned Magistrate afler filing the affidavits, counter affidavits, documents and written submissions held that the date of dispossession has not established and dismissed the application. Being moved in revision in the High Court of Galle, the order of the learned Magistrate was set aside and held with the Respondents. This revision application is from the said order of the learned High Court Judge.

Under the part VII of the Primary Court Procedure Act, the title to the land is not the deciding factor. Section 68 of the Act provides;

68 . (1) Where the dispute relates to the possession of any land or part thereof it shall be the duty of the Judge of the Primary Court holding the inquiry to determine as to who was in possession of the land or the part on the date of the filing of the-information under section 66 and make order as to who is entitled to possession of such land or part thereof.

(3) Where at an inquiry into a dispute relating to the right to the possession of any land or any part of a land the Judge of the Primary Court /s satisfied that any person who had been in possession of the land or part has been forcibly dispossessed within a period of two months immediately before the date on which the information was filed under section 66, he may make a determination to that effect and make an order directing that the party dispossessed be restored to possession and prohibiting all disturbance of such possession otherwise than under the authority of an order or decree of a competent court.

The Court is vested with a duty under section 68 inquire in to the fact that who was in actual possession on the date of filing of the information and to protect his possession until the matter is adjudicated before a competent court. The only exception is where a dispossession has taken place within two months from filing the information. It has been held in the case of Ramalingam V. Thangarajah [1982] 2 Sri L R 693 that;

66. It directs the Judge to declare that the person who was in such possession was entitled to possession of the land or part thereof Section 68(3) becomes applicable only if the Judge can come to a definite finding that some other party had been forcibly dispossessed within a period of two months next proceeding the date on which the information was filed under section 66. The effect of this sub‘section is that it enables a party to be treated to be in possession on the date of the filing of the information though actually he may be found to have been dispossessed before that date provided such dispossession took place within the period of two months next proceeding the date of the filing of the information. It is only if such a party can be treated or deemed to be in possession on the date of the filing of the information that the

person actually in possession can be said not to have been /o

possession on the date of the filling of the information. Thus, the duty of the Judge in proceedings under section 68 is to ascertain which party was or deemed to have been in possession on the relevant date, namely, on the date of the filing of the information under section 66. Under section 68 the Judge is bound to maintain the possession of such person even if he be a rank trespasser as- against any interference even by the rightful owner. This section entities even a squatter to the protection of the law, unless his

possession was acquired within two months of the filing of the

information.

In the present case the Respondents alleged that they were dispossessed by the Petitioner. On the date of filing of the information, the disputed land was in the possession of the Petitioner. It was an undisputed fact. The Respondents to regain the possession, they must have established that the dispossession took place with two months immediately prior to the date of filing of the information. If the dispossession is not proved, the party who was in possession, the Petitioners, becomes entitle to possess.

The burden of proving the fact that the dispossession took place within the two months prior to the filing of the information is on the Respondents. Under section 101 of the Evidence Ordinance, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”

The Respondents when they were dispossessed. The 1st Respondent in not residing in the country and the 2nd Respondent is not residing in the disputed house. What the 1st Respondent knows is that when he came to Sri Lanka on 22.02.2013, he has been dispossessed by the Petitioners. In paragraph 19 of the affidavit of the 1st and 2nd Respondents dated 08.03.2013 stated that the 2nd Respondent visited the house “about one week prior to 23.02.2013”. This statement is the only evidence presented to Court to establish that they were in possession till 15.02.2013. The date, 23'd February is the date where the 1st Respondent came to the country, but the date he visited the house is “about one week back” from that date. The date he visited the house is not definite. Under section 68(3) of the Act, the date of dispossession is very material. The date

cannot be established by a loose and uncertain statement such as “about one week”, it has to be a specific and certain.

The 1st Respondent, after coming to Sri Lanka and visiting the disputed premises, made a complaint to the police on the same date. The said complaint is marked and produced as ‘PS’. What the 1st Respondent has said to the police is that the 1st Respondent has locked the premises and left the country but when came back, the Petitioners are occupied the premises. This statement is silent on the involvement of the 2nd Respondent. If the 2nd Respondent was in charge of the premises, the 1st Respondent would have reveled his name to the police and if so, it would have given some weight to the statement of the 2nd respondent.

Punchi Nona v. Padumasena and others [1994] 2 Sri L R 117 at 121

The Respondents have failed to establish the definite date that they were dispossessed and by that they have failed to establish that they were dispossessed within two months prior to the filing of the information.

The Petitioners submit that this case does not come under section 68 of the Primary Court Procedure Act but comes under section 69. The section 69 is on “the dispute relates to any right to any land or any part of a land, other than the right to possession of such land or part thereof’ but the dispute in this case is clearly on “the dispute relates to the

possession of any land or part thereof” where the section 68 of the Act applies. The 1st Respondent claims that the land was purchased by him and on the strength of the ownership, he is entitle to posses. It is a matter for a competent civil court to decide, does not come within the purview of the Primary Court Procedure Act.

The learned Magistrate has correctly decided that the land in dispute was in possession of the Petitioners on the date of filing of the information and the Respondents have failed to establish that they were dispossessed within a period of 2 months next preceding the date on which the information was filed.

Accordingly, I act in revision and set aside the order of the learned High Court Judge dated 16.02.2014 and affirm the order of the learned Magistrate dated 07.08.2013.

Application allowed with costs fixed at Rs. 10,000.00

P.R.Walgama J.

I agree.

Judge of the Court of Appeal

C.A. (PHC) Case No.41/2004

H.C. Jaffna Case No.107/03(REV)

P.C. Jaffna Case No.5060

In the matter of an Appeal from an Order of the High Court made under Article 154 P of the Constitution and the Provisions of Act No.19 of 1990.

Shanmugasundara Kurrukkal Sriskandarajah Kurukkal

Ramalingham Nadarajah

The Officer-in-charge Police Station, Kopay

COMPLAINANT-TRESPONDENT- RESPONDENT

BEFORE A.H.M.D. Nawaz,J. &

M.M.A. Gaffoor,J.

COUNSEL U. Abdul Najeem for the 2nd Party Respondents Respondent-Appellant.

S. Mandaleswaran with M.A.M. Haleera and S. Ponnambalam for the 1" Party Respondents Petitioner-Respondents.

Decided: 08.08.2018

A.H.M.D. Nawaz, J.

The Officer in Charge of the Police station, Kopay-the Complainant-Respondent- Respondent in this case, filed information in the Primary Court of Jaffna under Section 66(l) of the Primary Court Procedure Act No.44 of 1979. As Section 75 of the Primary Court Procedure Act No.44 of 1979 define it, the expression dispute affecting land“ includes inter alia any dispute as to the right of possession of any land or part of a land and building thereon. The dispute between parties in the case was one that affected the right of possession of Matta Kanapathi Pillaiyar Temple in Kondavil and the information by the Police had been filed before the Primary Court of Jaffna on ll' September 2002. The parties brought forward as the lSt Party Respondents by Police were 16 persons, wMst the 2nd Party Respondent was one Shanmugasundara Kurukkal Sriskandaraja Kurukkal of Kondavil Wcst, Kondavil The 2nd Party Respondent who has since become the Appellant before this Court averred in his affidavit before the Primary Court the following:-

a) The dispute pertained to possession of Mdâd Kdndpdthi Pillaiydr temple and the land in Kondavil West and;

b) The 2‘d Party Respondent had become the Kuruââal of the said temple through succession from his ancestors who had successively held that office for generations in the past;

c) During an interregnum between 1983 and 1989, the 2nd Party Respondent was in Singapore and upon his return to the country in 1989, he once again functioned as the Poosari of the temple continuously,

d) A document chronicling the ancestral administration of the temple was marked and produced as R2;

e) Upon his return from Singapore he had taken over the administration of the temple as the Chief Priest.

The Appellant (the 2nd Party-Respondent-Respondent-Appellant or the PooSari or Kxruâ£dl as he is referred to in the course of this judgment) averred further in his affidavit that since the temple premises had gone to rack and ruin, he appointed a group of nine members to oversee the ritual rites that were taking place in the temple but the Appellant emphasized that despite the constitution of this committee he

continued to be in total control of the administration of the temple and more over the keys to the temple were in his custody. Thus, the evidence before the learned Primary Court Judge was that the Appellant had the possession of the temple premises. He claimed long possession of the temple by his ancestors and an assertion was made that it was his paternal grandfather who had built a small temple on his land and later expanded it- para 4 of his affidavit dated 8th January 2003. It is in paragraphs l4 and 15 of the affidavit that he alleges as to how his dispossession from the temple premises took place.

On 5'h September 2002, one Ramalingam Nadaraja who features as the 1st Party Respondent in the information filed before the Primary Court having come in a three- wheeler with four other persons, broke open the door and forcibly entered the temple premises. Having thus made an illegal entry he made off with Rs.13,50,000/- worth of jewelry and cash. This allegation is not contradicted by any of the affidavits filed by the Respondents. In fact Ramalingam Nadaraja who is referred to by name in the affidavit of the Appellant is one of those who have sworn one of the affidavits but there is nary a denial of this allegation of threats at the Appellant and the forcible dispossession. Such silence as we encounter in the affidavits dated 8'h January 2003 must be deemed to be an admission. In light of the failure on the part of the Respondents to respond to the specific allegation of the Appellant, I take the view that such failure in the affidavit evidence would amount to an admission. Silence in court may be used to strengthen inferences from opposing evidence.1

According to the Appellant (the Kuruhhal or Poosari of the temple), it was on 5'h September 2002 that the 1st Party Respondent along with his confederates forcibly evicted the Appellant from the Kovil, having threatened first to put him to death. At this stage I would briefly refer to the documents tendered by the Appellant along with his affidavit. One document 2Rl described the hereditary succession of the Appellants

{scc pagt 159 oftbc brief. This is drawn in the form of a pedigree.

In another printed document marked as 2R2, a history of a succession of priests for generations is chronicled and among those who had performed services as Rxru£#al of the temple-(sCe pagc 16O of tic brief, the name of the Appellant figures corroborating his

See J.D. Heydon, Silence as evidence 1 Monash University Law Review 53 (1974).

version in his affidavit that he had been officiating as the chief priest at the temple. The overall contention of the 2nd party Respondent (the Appellant in this Court) before the Primary Court was that he had been in full control and physical possession of the said temple as the Kuruhhal performing all pooja ceremonies in the temple and he had been maintaining and administering the properties of the temple prior to his forcible dispossession on 5th September 2002. The Appellant prayed that he be restored to possession until such time as the Respondents obtained a suitable order in a District Court.

In response to the affidavits filed by the 2nd Party Respondent-Respondent-Appellant, the lSt Party-Respondents-Respondents (the Respondents in this Court) filed two

separate statements of claim (two separate affidavits) admitting inter alia that since

1998 the Appellant had been functioning as the Kxruâ£al of the said temple-see paragraph 4 of the affidavit dated 8'h January 2003 of Respondents who were 11 in number. The other affidavit of 5 other Respondents bears the same date and admits that the Appellant had been functioning as the priest of the temple. But the 2nd, 3'd, 5th and 7'h Respondents before the Primary Court admitted in their affidavit that they had placed a new priest in place to perform religious ceremonies as they had found the Appellant intransigent. One of the affidavits filed speaks of how the religious performances came to a halt as a result of the recalcitrant behavior of the priest.

In fact the Respondents filed documents to show intransigency on the part of the Appellant. They attached MI-a letter dated 20.12.1993 addressed by Deputy Director, Department of Hindu Cultural Affairs, that only speaks of the registration of the temple but this is not a document acknowledging that the Respondents were the trustees of the temple. There is also a letter addressed by the Divisional Secretary, Nallur to the Appellant wherein he was instructed to hand over the keys to a till and stores to the then administrative body and in the same letter, the Divisional Secretary requested the Appellant to co-operate with the administrative body to conduct the ceremonies-scc letter dated 22.08.2011.

By A3 dated 22.01.2002, the Additional Government Agent, Jaffna writes to the Administrative body of the temple and laments that the interim administration that he established had resulted in a failure as the Appellant had not been cooperative enough. Therefore, the Additional Government Agent, Jaffna advised the administrative body or the Board of Management to seek legal redress, if any.

But in September 2002, the Appellant was evicted and a new I?oosari was put in place. No doubt all this correspondence shows that there had been constant quarrels between the Appellant and the administrative body but no legal remedy was sought. Instead the temple was forced open on 05.09.2002 and possession of the temple taken over. So, it has to be reiterated that there had been a concession on the part of the Respondents of the allegation that they had dispossessed the appellant from the temple.

But does this alleged behavior of the Appellant authorize the Respondents to deal with him so hastily and summarily? What is the instrument that empowers the Respondents to mete out palm tree justice to a priest, however intransigent he was? When were the Respondents appointed trustees of the temple? None of these items of evidence were available before both the Primary Court and High Court. Perhaps these were matters that were competent to be adjudicated upon in a civil suit and in the absence of such evidence the learned High Court Judge could not have concluded that the Appellant was standing in the shoes of an agent of an administrative body. The underlying tenor of the judgment of the High Court certainly indicates the nexus of an agency by implication, if not expressly.

Whichever claim that was contending for supremacy was true, one thing stands as plain as a pikestaff. The Appellant had been the Kxruââal or the priest officiating at the temple and the affidavit evidence of the Respondents itself establishes dispossession of the Appellant.

The Respondents in their respective affidavits though took an interesting argument that the complaint made by the Appellant could not be investigated as a dispute affecting land under Section 66 of the Primary Court Act No.44 of 1979 (hereinafter

sometimes referred to as the “Act”) since there was no breach of the peace. The Respondents also contended before the learned Magistrate that Section 32(2) of the Judicature Act prohibits the Primary Court from assuming jurisdiction in respect of matters set out in the 4'h schedule and items 11 and 12 therein such as relating to trust and declaratory actions for title to land and in the circumstances the application must be dismissed. The learned Primary Court Judge made short shrift of the argument of the jurisdictional bar and held that he had jurisdiction. The learned Magistrate of Jaffna proceeded to hold that prior to the forcible dispossession of the Appellant, he had been in exclusive physical possession of the temple, its premises and administration and accordingly by his order dated 2nd April 2003 the learned Magistrate declared that the Appellant who had been dispossessed be restored to possession and in addition the learned Judge made consequential orders placing an embargo on all disruption and disturbance to the peaceable possession of the Appellant, otherwise than through the authority of a legal order (see tâe ordtr dated 2" April 2003). Consequently, by a writ of execution issued by the learned Magistrate of Jaffna, the Appellant was restored to possession of the temple premises. I have no reason to disturb this finding and determinations.

Revisionary Application to the High Court

In a Revisionary Application made to the High Court of Jaffna, the Respondents in the prayer of their Petition dated 08.04.2003 reiterated that the Primary Court Judge had no jurisdiction whatsoever to make a determination in respect of this dispute and upon a perusal of the reliefs sought in the petition the Respondents sought from the High Court, it would appear that the only relief that had been prayed for was to have the order of the learned Magistrate set aside on the basis that the Primary Court had no jurisdiction to inquire into this matter. By an order dated 14th October 2003, the learned High Court Judge rejected the submissions on the jurisdictional bar raised by the Respondents and concluded that the 4'h Schedule to the Judicature Act did not preclude the Primary Court Judge from making a determination in respect of possession of the temple, its land and administration and in any event the learned High

Court Judge proceeded to hold that any title or rights relating to the temple had to be adjudicated upon only in an appropriate District Court and not in the Primary Court.

No argument was made before us against this conclusion and in the circumstances one need not go into the propriety of the order pertaining to jurisdiction as the issue raised before the Primary Court was one that turned on dispossession and recovery of possession and indisputably the Court was clothed with jurisdiction to investigate and adjudicate upon those quesBons.

The learned High Court Judge proceeded to hold in the end that since the temple and its properties are always vested in the administrative body of a temple, the said body enjoys the power to remove a priest at any time and merely because the Kuruhâal had custody of the keys he could not be said to have possession ithin the meaning of Section 68(3) of Primary Court Act No. 44 of 1979. The learned High Court Judge further held that though the Kuruââdl was in possession of the keys to the temple, the continuous possession of the temple lay with the administrative body. A Ruruâhal could not claim possession of a temple. It was only for ritualistic rites that the keys of the temple had been handed over to the Ruru££al or the priest. The learned High Court Judge further concluded that in order to vindicate his rights to continue to perform pooja, the Appellant must institute action in the District Court. Merely because the keys of the temple were in his custody, that fact cannot be interpreted to invest the Appellant with possession of the temple.

The learned High Court Judge also compared the capacity of the Appellant as a Poosari or Kuruâ£dl to that of a Manager of a Bank Branch. The learned High Court Judge made a few assumptions in regard to the manager of a Bank. He stated that the manager of a Bank branch would have the keys to the branch as well as the safety lockers containing cash. The learned High Court Judge stated in his order under impingement that on no account could the possession of the keys of the contents of a bank branch as above be

regarded as possession within Section 66 of the Primary Court Act. He further drew an

analogy that merely because a Manager of a Hotel had administrative functions, it 8

would not lie in his mouth to contend that he had possession vis-d-vis the administration of the hotel. In the view of the learned High Court Judge the respective positions of a Branch Manager of a Bank or a Manager of a Hotel would be comparable to that of the Appellant.

In the circumstances the learned Judge of the High Court of Jaffna summed it up in two important conclusions;

1. the Primary Court Judge had jurisdiction to inquire into this dispute under Section 66 of the Primary Court Act No.44 of 1979,

it was unfortunate that the learned Primary Court Judge restored the Appellant back to possession of the temple merely because the Appellant had custody of the keys to the temple.

Accordingly the learned High Court Judge by his order dated l4' h October 2003 set aside order made by learned Primary Court Judge and handed over possession to the Respondents. It is against this order of the learned High Court Judge of the High Court of Jaffna that the Appellant has preferred this appeal to this Court. Thus, it was contended by the learned Counsel for the Appellant that it was never the contention of the Respondents before the learned High Court Judge that the possession of the temple must be handed to the Respondents, whilst the Appellant had akeady been placed in possession by the learned Magistrate. The Counsel argued that their only prayer before the learned High Court Judge in their Petition dated 18.04.2003 was to secure an order from the High Court of Jaffna that the learned Primary Court Judge had no jurisdiction to inquire into this matter. In other words, the argument was that the learned High Court Judge had given a relief of repossession to the Respondents though this relief had not been sought at all by the Respondents.

If one were to understand this argument, one is driven to the complaint that is usually made namely the learned High Court Judge has given a relief of repossession to the Respondents who were the spoliators, whatever right they may have claimed to have possessed in regard to the temple. In other words it was a grant of a remedy that had

not been sought before him. Having held that the learned Primary Court Judge had jurisdiction over the matter, the learned High Court Judge could not have gone further and placed out of possession a Rurru£al who had been quited in possession by the learned Primary Court Judge. This was the submission of Mr. U. Abdul Najeem-the Counsel for the Appellant. Mr. Mandaleswaran for the Respondents contended that it was well within the right of the learned High Court Judge to have engaged in this exercise. The possession of the Kuruâ£al reflected the possession of the administrative body.

Let me appraise these respective arguments raised on behalf of the Appellant and Respondents.

This Court is thus confronted with two orders which are diametrically diverse to each other as regards possession. In the opinion of the learned Primary Court Judge, the Appellant had been forcibly dispossessed by the Respondents within a period of two months immediately before the date on which the information was filed under Section 66 of the Primary Court Act and his determination was that the Ruruâhdl must be restored to possession. But the learned High Court Judge arrived at a conclusion that the Kxruâhal did not have possession at all.

The possession of the Kuruâhdl was akin to that of a Branch Manager of a Bank or a Hotel Manager and the tenor of the judgment of the learned High Court Judge appears to be that such possession as the Kuru£âdl had in the temple does not qualify to be possession within the meaning of Section 68(3) of the Primary Court Act No.44 of 1979. To that extent the judgment of the High Court concludes that possession must be handed back to the administrative body.

What does one make of the possession held by the priest? Did that exist in vacuo! If possession on the part of the priest was non est to qualify to be possession within the meaning of Section 68(3) of the Primary Court Act No.44 of 1979, what kind of possession proprio vigort is necessary so as to be invested with the attributes of

possession required in Section 68 (3) of the Act? There is sparse discussion by the learned High Court judge on this requirement.

Does the possession of the Poosarl or NuzuMa/satisfy the requisites for possession in Section 68?

A slew of case law throws light on the kind of possession that would suffice for purposes of Section 68. Before I look at them, let me reiterate that there is nothing in the nvo affidavits of the Respondents to suggest that they had some kind of right to summarily put out a priest. What was it that gave them power? Did they appoint him as a priest? If so can they proceed to throw him out in the way he was ousted? This is not made clear more unambiguously in the two sets of affidavits filed by the Respondents and these questions become more pronounced in light of the fact that an administrative body was written to by the Additional Government Agent on 22nd January 2002 to seek legal relief. If this was the advice of the Additional Government Agent, why was violence resorted to in the dispossession of the priest? It is the Respondents who produced the above letter to the Primary Court Judge along with their affidavits and it shows that they were in the know of what had to be done legally, regardless of the fact whether the Respondents were in fact members of the administrative body or not.

The forcible dispossession as I have commented above is abundantly clear from the affidavit evidence of the Respondents. They admit in the affidavit that having broken open the closed door of the temple on the 5'h of September 2002, they secured the temple with new locks and took away the possession from the Appellant.

There are several determinations that a Primary Court Judge has to make at the conclusion of an inquiry into a dispute relating to the right of the possession of any land or any part of a land. Firstly he must make a determination as to who was in possession of a land or any part thereof on the day the information was filed. Secondly he must make order as to who is entitled to posscssion of such land or part thereof. In regard to the determination of the second question he must be satisfied that a

particular person who had been in possession of the land or part thereof has been forcibly dispossessed within a period of two months before the date on which the information was filed under Section 66 of the Act. It is the possession of the dispossessed person that comes into play and it is crystal clear that it was this Kxru£#aI or Appellant who had been in possession of the temple premises with the period of two months preceding the date on which the information was filed.

The reason why the learned High Court Judge overturned the determination of the Primary Court Judge appears to be that the possession of the Appellant cannot be equated to an exclusive possession and in engaging in the exercise of equiparating the possession of the Appellant to that of a Bank Manager or a Hotel Manager the High Court was laboring under an impression, as misconceived as it was, that it was the Respondents who had possession. The Respondents did not claim possession in their affidavits nor is it clear upon a perusal of their affidavits by what right they could claim such possession as would give them right to put the appellant out of possession summarily.

I cannot not but discountenance the approach taken by the High Court Judge to the possession enjoyed by the Appellant. Sri Lankan case law on possessory actions have recognized possession of the office holders qua the Appellant.

ChangarapNai z. left was one such case where a possessory action in which the Plaintiff was, as the District Judge found, the Manager of a Hindu Temple and its property. Bonser C.J. and Wendt J. were of opinion that if the Plaintiff, who was called the Manager, had control of the fabric of the temple and of the property belonging to it, his possession was such as to entitle him to maintain the action. The case was sent back for evidence as to the exact nature of the plaintiff’s interest.

Bonser C.J. expressly stated that control of the temple and its property was sufficient to enable the Plaintiff to maintain the action, even though he made no pretence of claiming the beneficial interest of the temple or its property, but was only a trustee for

2 (1902) 5 N.L.R. 270

the congregation who worshipped there. Bonser D.J. distinguished the previous case of Tlssern r. Costs on the facts: “The muppu who appears to be kind of beadle, has no control over the fabric of the church, and was only a caretaker entrusted with the custody of certain movables, a vey subordinate servant, whose duty is was to keep the church clean, but who had no sort or kind of possession either on behalf of himself or anybody else .4

This approach was emphatically endorsed by Pulle, J. (with Swan, J. agreeing) in

Sameem v. Dep .

The facta probanda of possessory actions have received definition by the South African courts. In Scholtz r. Fled Innes C.J. said: “A person who applics for such rclicJ must satis ttc Court upon two poinii: that tic was in posscssion of tic property) at tic datc of the alltgcd dcprivatioz and that bc was illicitly oustcd form such posscssion. ” In Buzc he z v. Benz eye Bristowe J. stated the essential requisites as follows: “that the thfltQS 6IHCQt tO ANC bCC11 spoliatcd were in tit plaintiJ’s posstssion, and that tb‹:y werc removcd com his posstssion forcibly or

wronfully or against his consent”.9

Scholtz z. Fled is an illuminative case in this regard. The appellant, who had contracted to erect certain buildings for the respondent on condition that the latter supplied the materials and paid for the work as it progressed every two weeks, applied for an order reinstating him in possession of the building then partially erected. The Appellant alleged that the Respondent had unlawfully taken possession of the partly constructed building and placed another contractor in charge of the work.

One of the questions which arose was whether the Appellant had sufficient physical control or dct‹:ntio of the building, to be declared entitled to possessory relief.

8 S.C.C. 193

° At p. 272

* (1954) 55 N.L.R. at p. 525

1910 T.S. 243

At p. 246

1917 T.P.D. 630

At p. 633

1’ 1910 T.P.D. 243

It was accepted that when the house had advanced so far towards completion that the doors are placed in position, it may be locked up and possession of the key would be equivalent to possession of the building.10 The position in regard to a partially constructed building is obviously more difficult.

Innes C.J. said in the course of his judgment: “Mere temporary absencc {of tic contractor) for a short time would not dtstroy tlic physical tlement which is necessary to constitutc posstssion. Tait tic txtremc cast wberc a builder gocs away every night; he still has tic detention of tic work which bc is in coursc oJ crccting. IQ it cxisttd originally, bt still bas it; werc absenct at night docs not deprive him of it. But wberc work is susptndcd for a considcrablc time, th:n it seems to mc that iJ tit buildtr dcsircs to preserve his possession be rnusr take some special step, such as placing a rcpYesmtati e in charge of the work, or putting a boarding round it; or doing somctbing to enforct his right to its physical control. Use

Leaving aside these cases which were decided on possessory actions, I would observe that the purpose and intendment of relief under Section 66 of the Primary Court Procedure Act No.44 of 1979 are to accord protection against forcible dispossession at the hands of a spoliator and this right must be available to a priest of a temple who has been officiating at ceremonies. If he is found to be intractable, he must be dealt with in accordance with the law and the established rules and regulations pertaining to the affairs of the temple.

In iVZfsoacñ x Kai dev lVesrZuZzeo and Ha 2 Buchanan A.C.J, observed: “The whole foundation of tic mlt for tlic rcstoration of propert y take:n possession of in this wdy is that a spoliator iS not entitlcd to takc tit law into his own bands, and a perSon who bas taken tic law into his own bands must rcstorc tlic propcrty, and establish his right tbercto in a pcaccablc matter in a court of ldw.”

10 At p. 247

11 At pp. 247-248

12 (1907) S.C. 600

Sohoni in his treatise on the Indian Criminal Procedure at page 1331 describes that the proviso to Section 145(4) of the Indian Criminal Procedure Code which could boast of parentage over its Sri Lankan counterpart in Section 66 of the Primary Procedure Act No.44 of 1979 is founded on the principle that forcible and wrongful dispossession is not to be recognized under the Criminal Law. The word “dispossessed” means to be out of possession, removed from the premises, ousted, ejected or excluded. Even where a person has a right to possession, he cannot do so by taking the law into his hand. That will make it a forcible entry otherwise than in due course of law. It would be a case of both forcible and wrongful dispossession.

In the case of P.K. Anlce r. Shzldhar SndasNJ’ it has been held that: “The words 'forcibly and wrongfully’ qualifiing tic word 'disposstssion’ in tic proviso to scction 145 4), cannot bc given a rtstrictcd meaning of disposstssion accompanied by tlic use of criminal forcc. To constitutc forciblt dispossession, even tlic use of misrcprcsentation and improper threats would matte tâe dispossession

In the case of Bhuttanl v. Desai,” Dharam Strand z. State! and Thrulatha Deed z. Mlszn , it has been held that, even where a person has a right to possession, but taking the law into his hands, makes a forcible entry otherwise than in the due course of the law. It would be a case of both forcible and wrongful dispossession. The Magistrate will be entitled to dislodge a person who thus secured possession.

The phrase ‘forcible dispossession’ does not contemplate a fugitive act of trespass or interference with possession. The dispossession referred to, is one that amounts to a completed act of forcible and wrongful driving out party from his possession-see Bhuttanl r. Desk".

1*1982, Cri.L.J. 1463 (Born. H.C.)

1* AIR 1968 SC

15 1973 Cut.L.J. 755

1‘ 1982 Cr.L.J. 1965 (Guj)

”AIR 1968 SC. 144

Therefore when violence was resorted to in order to deprive the Appellant on 05.09.2002, in my view it was forcible dispossession of the Poo5ari or the Kuruââdl.

In fact U.D.Z. Gunawardana, J. in Iqba Vs Majedudeen and Others’ took the view that the words “forcibly dispossessed” in Section 68(3) of the Primary Court Act No.44 of 1979 as amended means that dispossession had taken place against the will of the person entitled to possess and without authority of the Law.

In the course of the judgment the learned Judge acknowledged possession to be of two kinds.

I. When a person has direct physical control over a thing at a given time-actudl

2. When he is not in actual possession he may have both a power and intention at a given time to exercise dominion or control over a thing either directly or through another person-construCtfvC OSSCSStOfL

In Black’s law Dictionary, 9th Edition the term constructive possession is defined as control or dominion over a property without actual possession or custody of it. There is no affidavit evidence that the Respondents had control or dominion over the temple. No instrument was before the Primary Court to indicate a vesting of such control. Therefore it cannot be contended that the Respondents had constructive possession. Even if they had had constructive possession, it could not be argued that their possession was disturbed when they themselves caused the disturbance.

Rather it was the Appellant who had acuial possession and he was forcibly

dispossessed

Whichever may be the kind of possession it is dispossession of a person that is frowned upon by law. Such dispossession as is frowned upon by the Primary Court Procedure Act would not enjoy the imprimatur or the authority of the law. No doubt there might have been an administrative body to oversee the functioning of the temple as it is

1’ 1993 Sri LR p.213

evident by the document marked as A3. But they cannot seek self help and put out of possession someone holding the position of a Kuru££d( in a summary and precipitate manner.

In the case of Moolchand v. State ofMadya Pradesh’ the Court held that the relevant section strictly limits even the violence self-help by the true owner of the premises. On the other hand, it seeks to maintain, if necessary and if justified under this provision of the section, the possession of even a wrong-doer, the prime consideration being the prevention of the breach of the peace by declaring one party to be entitled to possession, until evicted by due course of the law.

In proceedings under this section the Magistrate is not required to investigate the title of the disputed land or the rights of the administrative body. In fact, he can use the evidence of title merely to guide and aid his mind in coming to a decision upon the question of possession, but he is precluded from deciding questions of title alone.

The learned High Court Judge fell into an error by implying an agency into the relationship between the Appellant and the Respondents. In fact the evidence is to the contrary-namely the actual possession of the temple was with the Appellant and in the circumstances the learned High Court Judge need not have gone on a voyage of discovery to compare the possession of the Appellant to that of a Bank Manager or a Manager of a Hotel. In fact, there is no evidence, so to speak, to establish that the Respondents had actual possession of this temple. It was the Appellant who had been in possession of the temple premises by virtue of the fact that his presence therein was necessitated by his functions and the fact that the key to the temple had been in his custody at the relevant time of dispossession connotes actual possession of the temple premises on the part of the Appellant.

The fact that the Respondents may have labored under the impression that the Appellant was their agent is not borne out at all by evidence and any purported notion that the learned Judge entertained as to the duty of a Poosari under the control of an

1’ 1968 M.P.W.R. 345

administrative body is not supported by evidence. In any event evCn i{ SOltlC StFCfC 0 imagination that tic should 6e at tlic back dnd call oJ tlit Respondents, it does not authorize them to disturb his possession and deprive him of his possession.

In the case of BlbFusnn z. Abdul R Nd, it was held that a Criminal Court will have to maintain the possession of even a trespasser, if he is found to be in actual possession for more than two months before the date of preliminary order.

An identical view was articulated by Sharvananda, J. (as His Lordships then was) in the case of Ramalingam v. Thangaraja , “under section 68 the Judge is bound to maintain the possession of such person if he be rank trespasser as against any interference even by the rightful owner”. This section, entitles even a squatter to the protection of the Law, until his possession was acquired within two months of the filing of the information.

The above position had been expressed by the Indian decision SoLan Mushar v. Kallinsh Singh, wherein Raj Kishor Prasad, J. voiced the opinion that “the possession contemplated in this section is the ‘actual possession’ of the subject of the dispute. Actual physical possession means the possession of the person who has his feet on the land, who is ploughing it, sowing or growing crops in it entirely irrespective of whether he has any right or title to possess it. But ‘actual possession’, irrespective of whether he has any right or title to possess it. But, “actual possession” does not always mean “actual physical possession”. For example, if there is a tenant occupying a house and there is a dispute between two persons, each claiming to be the landlord, admittedly neither is in actual physical possession, still proceedings under section 145 of the Code will lie, and in such a case, the decision will rest upon who is in ‘actual possession’ by realization of rent from the tenant. “Actual possession” postulated by Sub section (I) of Section 145, however, is not the same as a ‘right to possession’ nor does it necessarily mean lawful or legal possession. It includes even the possession of a mere trespasser.

2’ 1968 Patna L.J.R. 639

21 1982 Sriskantha Law Reports 32 and 1982 2 SLR 693

22 1962 (1) Cri. L.J. 751

It should, however be real and tangible, that is, there should be effective occupation and control over the property.

Thus in light of the above the learned High Court Judge was in error when he misdirected himself on the facts and law and made order directing the handing over of the temple back to the Respondents. In the circumstances I set aside the order of the learned High Court Judge dated 14.10.2003 and allow the appeal with costs.

JUDGE OF THE COURT OF APPEAL

M.M.A. Gaffoor,J.

I agree.

JUDGE OF THE COURT OF APPEAL

Judge of the Court of Appeal

GALLELAWBLOGGER

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