section 69 of the PRIMARY COURT PROCEDURE ACT -

 

Andrahennadige Peter Silva and Others v. Denagama Vitharanage Ajith Pushpakumara and Others

Court of Appeal of the Democratic Socialist Republic of Sri Lanka

CA (PHC) 05/2019 — High Court Tangalle No. 11/17 (Rev); Magistrate’s Court Tangalle Case No. 23135

Before: Damith Thotawatte J., Sarath Dissanayaka J.

Decided on: 27 August 2025

Headnote

Primary Courts’ Procedure Act No. 44 of 1979 — Sections 66, 67 and 69 — Dispute affecting land in the nature of a servitude of right of way — Scope of preventive jurisdiction — Whether Magistrate’s order ultra vires for failure to consider affidavits and title documents — Whether refusal of site inspection warrants adverse inference — Alternative road and servitude of necessity — Exceptional circumstances for revision.

Facts

Information was filed under Section 66(1)(a) of the Primary Courts’ Procedure Act by the Officer-in-Charge, Tangalle Police Station, reporting an imminent breach of the peace between neighbouring landowners at East Kudawella, Nakulugamuwa.

The 1st Party Respondent, Andrahennadige Peter Silva, complained that the 2nd Party Ajith Pushpakumara (the present Appellant) had blocked a ten-foot-wide roadway leading to his residence by parking a lorry and erecting a fence. The dispute centred on a strip of land shown in Plan No. 2009/61 (1P2 and 3P2), claimed as a long-used right of way by the 1st, 3rd, and 4th Party Respondents.

The Appellant asserted exclusive ownership of the land, denied any servitude, and produced deeds and a separate plan (2P1) contending that the Respondents had an alternative access road (“Olukku Road”) and that the survey relied upon by them was fraudulent.

After considering affidavits and submissions, the Magistrate held that the Respondents had possessed and used the roadway, and were entitled to continue to do so under Section 69, pending determination of rights by a civil court.

Dissatisfied, the Appellant invoked the revisionary jurisdiction of the High Court of Tangalle, which dismissed the application on 02 January 2019, holding that no exceptional circumstances warranted intervention.

The Appellant then appealed to the Court of Appeal.

Arguments Before the Court of Appeal

For the Appellant:

The Magistrate improperly relied on an adverse inference arising from the Appellant’s refusal of a proposed site inspection, contrary to Hewagarusinge Sugathadasa v. Wijayamunige Anulawathi (CA PHC 45/2011).

The Magistrate and High Court failed to evaluate affidavits, counter-affidavits, and title deeds, which established the absence of any servitude.

The Magistrate misapplied Sections 67 and 69, failing to make a lawful determination as to the right of way.

The lower courts ignored the binding ratio in Ramalingam v. Thangarajah ([1982] 2 SLR 693) and instead relied on Ananda Sarath Paranagama v. Dhammadinna Paranagama (CA PHC APN 117/2013), said to be per incuriam.

The existence of an alternative road disentitled the Respondents from claiming a servitude of necessity, citing Tressila v. Hathrusinghe (2024/2025 BALR 490).

The corpus was not properly identified in accordance with Section 41 CPC read with Section 78 PCP Act.

For the Respondents:

Counsel maintained that the Magistrate’s order was properly made under Section 69 as the dispute involved a right of way, not possession; that the refusal of inspection was one evidentiary factor among many; and that the Magistrate’s function was merely preventive and provisional, not adjudicative of ownership.

Held

Correct Application of Section 69 PCP Act – The dispute concerned a servitude-like right of way, not possession. Under Section 75, “dispute affecting land” includes any “right in the nature of a servitude”; therefore, the Magistrate was correct to act under Section 69 and to preserve the Respondents’ use of the roadway pending civil adjudication.

Refusal of Site Inspection – While refusal of inspection cannot per se justify an adverse inference, the Magistrate had considered the entire evidentiary record. The High Court rightly found that the order did not rest solely on that factor and that no miscarriage of justice arose.

Evaluation of Affidavits and Documents – Proceedings under Part VII are summary; Section 67 requires the Court to rely primarily on affidavits and limited oral submissions. The Magistrate evaluated the material in compliance with statute and the preventive objective articulated in Kanagasabai v. Mylvaganam ([1976] 78 NLR 280) and Punchi Nona v. Padumasena ([1994] 2 SLR 117).

Precedential Hierarchy – Ramalingam v. Thangarajah dealt with possession disputes under Section 68, not servitudes; the Magistrate correctly followed Ananda Sarath Paranagama, which addressed rights of way under Section 69. Thus, no disregard of binding authority occurred.

Alternative Road Argument – The presence of another access route is a civil-law question irrelevant to preventive proceedings. Under R. Malkanthi Silva v. L.G.R.N. Perera (SC Appeal 181/2010), the existence of an alternate path does not negate temporary recognition of a right of way for maintaining peace.

Identification of the Corpus – Unlike a District Court action where Section 41 CPC demands precise boundary description, a proceeding under Section 69 is temporary and preventive. It suffices if the disputed path is physically identifiable; hence, strict compliance with Section 41 CPC was unnecessary.

Revisionary Jurisdiction – Revision is discretionary and lies only for illegality or material irregularity causing injustice. Citing Ratnayake v. Padmini de Silva ([1990] 2 SLR 191) and Ananda Sarath Paranagama, the Court held that the Appellant failed to demonstrate any jurisdictional error, illegality, or exceptional circumstance.

Decision

The Court of Appeal dismissed the appeal, affirming the High Court’s refusal of revision and the Magistrate’s order recognising the Respondents’ temporary right of way over the disputed roadway. The Court reiterated that orders under Part VII of the Primary Courts’ Procedure Act are preventive, provisional, and without prejudice to civil rights. No order as to costs.

READ JUDGMENT CLICK