COURT OF APPEAL.
BANDARANAYAKE, J. AND WIJETUNGA, J.
C. A. APPLICATION No. 1376/81.
M.C. MORAWAKANo. 17993.
. NOVEMBER 18, 1986.
Revision – Sections 66 and 68 of the Primary Courts Procedure Act No. 44 iof 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 towhether a breach of the peace is threatened or likely is left to the police officer inquiringinto the dispute and if he is of such opinion he is required to file an information regardingthe dispute with the least possible delay. Where the information is thus filed in a PrimaryCourt, such court is vested with jurisdiction to inquire into and make a determination ororder on the dispute.
An objection to jurisdiction must be taken at the earliest possible opportunity. If noobjection is taken and the matter is within the plenary jurisdiction of the Court, the Courtwill 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 theaffected party fails to give a valid excuse for his default.
Section 68 of the Primary Courts Procedure Act requires the judge of the Primary Courtto make a declaration as to who is entitled to possession. Before he could make such adeclaration he should make a determination as to who was in possession of the land onthe date of the filing of the information under s. 66. Further the Magistrate shouldevaluate 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 ofthe record as would be necessary to understand the order to be revised and to place itin its proper context.
Cases referred to:
Navaratnasingham v. Arumugam –  2 Sri LR 1
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.
N.R. M. Daluwatte, P.C. with Mrs. S. Nandadasa for 1st respondent.
Cur. adv. vult.
January 16. 1987.
The petitioner seeks to have the order of the Magistrate. Morawakadated 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
the report submitted by the Morawaka Police to the Magistratedoes not state that there yvas a likelihood of a breach of thepeace and the Magistrate was thus precluded from continuingthese proceedings, as the basis of the court's jurisdiction isthreatened or likely breach of the peace ;
the Magistrate had misdirected himself in regard to the order innot taking into consideration matters relevant thereto and thesaid order is in any event unjust, contrary to law and in excess ofhis jurisdiction; and
the Magistrate should not have held an ex parte inquiry into thismatter and should in any event have permitted the petitioner tostate his claim and place his evidence and submissions beforecourt, as he had taken immediate steps to purge his default: theorder dated 16.11.81 refusing the petitioner's application to ,re-open the inquiry is unreasonable and unjust.
Learned President's Counsel for the 1 st respondent took apreliminary objection to this application on the ground that there wasnon-compliance with Rule 46 of the Supreme Court Rules, 1978.
The preliminary objection relates to the failure of the petitioner tomake available to this court a complete set of copies of proceedings inthe Court of First Instance, in that the reasons delivered by theMagistrate on 30.11.81, pertaining to the order dated 16.11.81,have not been briefed. That order does not directly affect aconsideration of the order dated 31.8.81 sought to be revised in thepresent proceedings.
In Navaratnasingham v. Arumugam (1) this court has held that-"ln relation to an application for revision the term 'proceedings' asused in Rule 46 means so much of the record as would benecessary to understand the order sought to be revised and to placeit in its proper context."
I am in respectful agreement with this view of Soza, J. As the failureto provide copies of the reasons delivered on 30.11.81 does notprevent this court from reviewing the order dated 31.8.81, I wouldhold that there has been sufficient compliance with Rule 46 for thepurpose of this application.
I shall now deal with the first ground on which the order of thelearned Magistrate is being challenged, viz. that the court had nojurisdiction to inquire into this matter. The basis of this submission isthat the report of the O.I.C., Morawaka Police dated 7.7.80 does notrefer to a threatened or likely breach of the peace and the court had,therefore, acted without jurisdiction. However, the said report makesspecific reference to section 66 of the Primary Courts’ Procedure Act,which deals with disputes affecting land where a breach of the peaceis threatened or likely. Further, the affidavit of 21.7.80 of the present1 st respondent (who was also the 1 st respondent to that application)clearly states that the act of the present petitioner (who was the 2ndrespondent to that application) can lead to a breach of the peace.
On 31.8.81 when the Magistrate took up this matter for inquiry, hehas 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 beentaken to the jurisdiction of the court when the matter was beinginquired into by that court.
The case of Navaratnasingham v. Arumugam (supra) (1) is againrelevant to a consideration of this aspect of the matter. That case toodealt with an application under section 62 of the Administration ofJustice Law No. 44 of 1973, which corresponds to section 66 of thepresent Primary Courts' Procedure Act. There too it was submittedthat the Magistrate was not vested with jurisdiction to proceed in thematter as he had failed initially to satisfy himself of the likelihood of abreach of the peace. This court held that such an objection tojurisdiction must be taken as early as possible and the failure to takesuch objection when the matter was being inquired into must betreated as a waiver on the part of the petitioner. It was further heldthat where a matter is within the plenary jurisdiction of the court, if noobjection 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 Iwould adopt, apply to the instant case.
Further, there is a significant difference between the provisions ofthe Primary Courts' Procedure Act relating to inquiries into disputesaffecting land where a breach of the peace is threatened or likely andthe corresponding provisions in the Administration of Justice Law.Under section 66 of the present Act, whenever owing to a disputeaffecting land, a breach of the peace is threatened or likely, the policeofficer inquiring into the dispute is required with the least possibledelay to file an information regarding the dispute in the Primary Courtwithin whose jurisdiction the land is situate. When an information isthus filed in a Primary Court, that court is vested with jurisdiction toinquire into and make a determination or order on the disputeregarding which the information is filed.
The corresponding section 62 of the Administration of Justice Lawprovided that whenever a Magistrate, on information furnished by anypolice officer or otherwise, has reason to believe that the existence of.a dispute affecting any land situated within his jurisdiction is likely tocause a breach of the peace, he may take steps to hold an inquiry intothe same in the manner provided for by that Law. Thus, under theAdministration of Justice Law, for a Magistrate to exercise powerunder section 62 he had to be satisfied on the material on record thatthere was a present fear that there will be a breach of the peacestemming from the dispute unless proceedings are taken under thatsection. The power conferred by that section was in subjective terms- the Magistrate, being the competent authority, was entitled to actwhen he had reason to believe that the existence of a dispute affectingland was likely to cause a breach of the peace. The conditionprecedent to the excercise of the power was the formation of suchopinion – the factual basis of the opinion being the informationfurnished by any police officer or otherwise.- Kanagasabai v.Mylvaganam (2).
But, under section 66 of the Primary Courts' Procedure Act, theformation of the opinion as to whether a breach of the peace isthreatened or likely is left to the police officer inquiring into the disputeand he is, in such circumstances, required to file an informationregarding the dispute with the least possible delay. Where theinformation is thus filed in a Primary Court, subsection (2) of thatsection vests that court with jurisdiction to inquire into and make a
determination or order on the dispute regarding which the informationis filed. Hence, in the instant case, when the O.I.C., Morawaka Policefiled the information under section 66 of the said Act, the court wasthereby vested with the necessary jurisdiction.
Thus, whichever view one takes of the matter, the petitioner fails inhis application on the first ground referred to above.
It will be convenient at this stage to deal with the third ground onwhich the petitioner relied, viz. that he should have been permitted bythe Magistrate to re-open these proceedings and that the refusal tovacate the ex parte order was unreasonable and unjust. On this aspectof the matter, the reasons dated 30.11.81 have not been briefed tothis court by the petitioner and consequently the court is unable toconsider the same. However, according to the affidavit of the presentpetitioner dated 1.9.81, his failure to attend court on 31.8.81 hadbeen due to an error on the part of his Attorney-at-Law who hadallegedly written out the date as 31 st September. 1981. It should beobvious to anyone that the month of September has only 30 days andit is not conceivable that the present petitioner would have beenmisled in this manner. Further, in the objections filed by the 1strespondent in this court, he has stated that the petitioner defaulted inappearance not for the reasons given by him but because of his son'swedding. The petitioner, though he has filed counter objections, hasnot denied that his son's wedding was on this date. In the submissionsmade by his Attorney-at-Law before the Magistrate on 16. T1.81, hehad admitted that the petitioner's son's wedding took place on thisdate, but has stated that his absence from court was not due to thatreason. In any event, the learned Magistrate having considered thesesubmissions, has rejected them. In the result, the petitioner cannotsucceed on this ground too.
The second ground urged in the petition relates to the validity of theorder made on 31.8.81 by the Magistrate.
The relevant subsections of section 68 of the Primary Courts'Procedure Act are as follows
"Where the dispute relates to the possession of any land or partthereof it shall be the duty of the Judge of the Primary Courtholding the inquiry to determine as to who was in possession ofthe land or the part on the date of the filing of the informationunder section 66 and make order as to who is entitled topossession of such land or part thereof.”
"An order under subsection (1) shall declare any one or morepersons therein specified to be entitled to the possession of theland or the part in the manner specified in such order until suchperson or persons are evicted therefrom under an order ordecree of a competent court, and prohibit all disturbance ofsuch possession otherwise than under the authority of such anorder or decree."
This section requires the Judge of the Primary Court to make adeclaration as to who is entitled to possession of the land. The basisof such declaration is the determination as to who was in possessionof the land on the date of the filing of the information under section66.
Nowhere in the order complained of has the Magistrate made sucha determination. After a brief narrative of the facts relating to thismatter, the Magistrate has stated that he declares the 1 st respondententitled to possession of the portion of land which is the subjectmatter of this dispute. Before he could have made such a declaration,there should have been a determination as to who was in possessionof the land on the date of the filing of the information.
In this context, there is merit in the complaint that the learnedMagistrate has misdirected himself when he stated in the order thatthe court need not determine as to whether the land in dispute is the. northern portion of the land called Bonwalatalawa, about 1 /4 acre inextent, or not. The very basis of the claim of the present petitioner, asis evidenced by the affidavit that he had filed in the original court, isthat the subject matter of the dispute is the northern portion of theland called Benwalatalawa, about 1/4 acre in extent and that thepresent 1st respondent has incorrectly referred to that land asPalupansalawatte. The northern boundary of the land in dispute,according to him, is Palupansalawatte and he claims that he was inundisturbed possession of the said land for over 30 years. He hasfurther referred to the order in case No. 4892/L of the District Court ofMatara dated 6.2.80 in terms of which he had completedconstruction of the building which the 1st respondent is nowcomplaining about.
The 1st respondent in his affidavit dated 21.7.80, while claimingthat the subject matter of the dispute is a portion of the land calledPalupansalawatte, has denied that the land in question isBenwalatalawa.
Thus, on the affidavits filed, there was adequate material to alert theMagistrate to the true nature of the dispute, which he appears to havechosen to ignore.
In para. 4 of the petition filed in this court, the petitioner has statedas follows:
"The respondent filed an action in the D. C. Matara L/4892against the petitioner and sought an injunction as well against thepetitioner restraining the petitioner from constructing an additionalbuilding adjoining the old house which was in occupation of thepetitioner for well over thirty years on the land Benwalatalawa. Therespondent first obtained an interim injunction ex parte against thepetitioner preventing the construction of the said building but on26.2.80 the injunction was dissolved by consent of parties and thepetitioner was allowed by the District Court to continue theconstruction and complete the building on condition that if therespondent was declared entitled to the land in question (in caseNo. 4892/L) the petitioner would not be entitled to claimcompensation for the building. The petitioner produces a certifiedcopy of the said order of 26.2.80 marked P2."
In regard to this averment, the 1 st respondent, in his statement ofobjection dated 19.3.82 filed in this Court, has stated in para. 5 asfollows:
"This respondent states with reference to paragraph 4 of thepetition, that the petitioner unlawfully entered the land in disputeand began to build on the same whereupon this respondentinstituted D. C. Matara Case No. 4892/L. However, the plantationswere in the possession of this respondent. After dissolution of theinjunction, as stated in paragraph 4 of this petition, the petitionernot only completed the building, referred to in the said injunctionproceedings, but also began to construct a new building,whereupon the Dayakayas of the temple became restive and therewas a serious threat to the peace. This respondent complained tothe police who instituted these proceedings.
This is an admission by the 1 st respondent that the subject matterof the instant case as well as of D. C. Matara Case No. 4892/L, is thesame. In para. 4 of the petition, the petitioner has stated that
D. C. Matara case No. 4892/L was an action relating to theconstruction of an additional building adjoining the old house whichwas in the occupation of the petitioner for well over 30 years, on theland called Benwalatalawa. By the order dated 26.2.80 (P2), thepetitioner had been permitted to complete the construction of thatbuilding subject to the terms and conditions contained therein. Theparties to that action were the same.
Plan No. 895 of 27.5.1895, which has been filed marked P1 withthe present petition, shows the land called Palupansalawatte to thenorth of Benwalawatte and the allotment of land surveyed is calledBenwalatalawa.
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 presentcase has been made by the 1st respondent on 3.7.80. DocumentsP6, P7, P8, P9, P10, and P11 filed with the counter affidavit of thepetitioner dated 12.6.82, refer to the northern boundary ofBenwalatalawa as Palupansalawatte. The plans marked P13, P14 andP15 indicate a roadway to the north of the land called Benwalatalawa,which separates it from Palupansalawatte and the petitioner claimsthe physical impossibility of encroaching on Palupanasalawatte bybuilding on his land, as the road separates the two lands.
Although this material was not available to the learned Magistrate atthe time he made the order complained of, on the affidavits filed itshould have been clear that the crux of the dispute between theparties was whether the corpus was Benwalatalawa orPalupanasalawatte. It was, therefore, incumbent on the Magistrate tohave determined the identity of the land which was the subject matterof this dispute. He was thus in error when he lightly dismissed theclaim of the petitioner that the land in dispute was Benwalatalawa andproceeded to state that the court need not make such adetermination.
It is clear from the order of the learned Magistrate that he had notdirected his attention to the vital question as to who was in possessionof 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 havemade a valid declaration and prohibition as required by subsection (2)of section 68. The petitioner is, therefore, entitled to succeed on thisground.
For the reasons aforesaid, I am of the view that this case calls forthe exercise of the revisionary powers of this court. Accordingly,acting in revision, I set aside the order of the Magistrate dated31.8.81 and remit the case to the court below with the direction thatthe Magistrate should proceed to hold an inquiry afresh and make anappropriate order thereon according to law.
The petitioner will be entitled to the costs of the application to thiscourt, from the 1st respondent.
BANDARANAYAKE, J.-l agree.
Order set aside.
Case remitted for fresh inquiry.
DAVID APPUHAMY v. YASSASSI THERO