Mallika De Silva v. Gamini De Silva
MALLIKA DE SILVA
v.GAMINI DE SILVA
COURT OF APPEALDE SILVA, J.,
A. NO. 579/98
C. MORATUWA NO. 129/DNOVEMBER 6, 12, 1998
Matrimonial action – Divorce – interim relief – to prevent one party from alienating,mortgaging matrimonial home – No claim in reconvention – JudicatureAct S. 54 (1) (2) Applicability – Exceptional Circumstances – Order ex-facie badin law – Does revision lie?
The plaintiff-petitioner filed action against the defendant-respondent praying interalia for a decree of divorce and for interim relief in the form of an injunctionpreventing the respondent from entering the matrimonial home owned by thepetitioner. The -answer did not contain a claim' in reconvention, but only prayedfor a dismissal of the plaint, though the defendant-respondent conceded that thematrimonial home was purchased by the petitioner. The Court granted the interiminjunction.
S. 54 (1) Judicature Act permits only 'plaintiff' to seek an interim injunction.S. 54 (2) permits a defendant to seek an interim injunction only wherethe ‘defendant* has set up a claim in reconvention and has demandedan affirmative judgment. The respondent cannot have recourse to S. 54(2).
Per de Silva, J.
"Interim Injunction is a relief that cannot be granted solely or independentlywithout any final or substantive relief. The respondent who had not soughtany substantive relief has no right in law to seek an interim injunction,as it cannot be a relief by itself but is only a mechanism to assist andprotect final relief.
Where the Order of Court is wrong ex facie it would be quashed by wayof revision even though an appeal may lie against such order.
Sri Lanka Law Reports
[1999} 1 Sri LR.
APPLICATION in Revision from the Order of the learned District Judge of Moratuwa.Cases referred to:
Rasheed Ali v. Mohamed Ali – 1981 2 SLLR 35.
Navaratnasingha v. Arumugam – 1980 – 2 SLR 1.
Rustom v. Hapangama & Company – (1978-79) 2 SLR 226.
Atukorale v. Samyantha – 41 NLR 165.
Lebbaythamby v. AG – 70 CLW 53.
Ranasinghe v. Henry – 1 NLR 303.
Sabapathy v. Dunlop – 37 NLR 113.
Geoff Alagaratnam with M. Adamaly and Ms. N. Buhary for petitioner-petitioner.Anil Silva for defendant-respondent.
Cur. adv. vult.
December 18, 1998.
DE SILVA, J.
This is an application in revision to set aside the order dated13. 05. 1998 by which order the learned District Judge granted aninterim injunction to the defendant-petitioner-respondent.
The plaintiff-respondent-petitioner (hereinafter referred to as thepetitioner) filed action against the defendant-petitioner-respondent(hereinafter referred to as the respondent) in the District Court ofMoratuwa praying inter alia for a decree of divorce and for interimrelief in the form of an injunction preventing the respondent fromentering the matrimonial home which was owned by the petitioner.
Court granted an enjoining order as prayed for, but the matter ofthe interim injunction was settled upon the respondent giving anundertaking to the court that he would not enter the matrimonial home.
In the answer tendered by the respondent, he conceded that thematrimonial home was purchased by the petitioner with the money
CAMallika De Silva v. Gamini De Silva (De Silva, J.)87
provided by the petitioner's father. The answer did not contain a claimin reconvention, but only prayed for a dismissal of the plaint withcosts.
The trial commenced in 1994, and petitioner gave evidence. Halfway through the trial on the 21st of August, 1997, the respondentmade an application to the same court by way of petition an affidavitand claimed that the matrimonial home was held by the petitionerin trust for him and sought an enjoining order and interim injunctionpreventing the petitioner from selling, mortgaging, leasing or otherwisedealing with the matrimonial home. Court granted the enjoining orderas prayed for and issued notice of interim injunction. At the interiminjunction inquiry it was agreed that the matter be resolved on writtensubmissions and accordingly the parties filed their written submissions.The learned District Judge by order dated 13. 05. 98 granted theinterim injunction. This revision application is to revise the said orderof the learned District Judge.
At the hearing of this application counsel for the petitionersubmitted that the District Judge's order is erroneous and contraryto the applicable law.
The legal principles governing the grant of an interim injunctionare clearly set out in section 54 of the Judicature Act, No. 2 of 1978.Section 54 (1) permits only a "plaintiff" to seek an interim injunction.Section 54 (2) permits a defendant to seek an interim injunction onlywhere the "defendant" has set up any claim in reconvention and hasdemanded an affirmative judgment.
As pointed out by counsel for the petitioner the respondent in thiscase has set up no counter claim or claim in reconvention and hasonly moved for dismissal of the plaint which amounts to a demandof a negative judgment. Therefore the respondent cannot haverecourse to section 54 (2) of the Judicature Act. I agree with thissubmission of the learned counsel for the petitioner.
Sri Lanka Law Reports
(1999] 1 Sri LR.
The principles embodied in section 54 of the Judicature Act arefundamental. Any party seeking an injunction should demonstrate thathe has a prima facie case against the other party. In the answer filedin the District Court the respondent has not set up any claim.
It is also clear from the provisions of section 54 of the JudicatureAct that interim injunction is a relief that cannot be granted solelyor independently without any final or substantive relief. The respond-ent who had not sought any substantive relief has no right in lawto seek an interim injunction as an interim injunction cannot be a reliefby itself but is only a mechanism to assist and protect final relief.
The respondent by his petition and affidavit dated 21. 08. 1997attempted to make out that the petitioner holds the property in trustfor him, ie nearly 3 1/2 years after the plaint was filed. The plaintis dated 23. 03. 94. The respondent filed the answer on 17. 06. 94.By this answer the respondent conceded that the property in questionwas bought by the money provided by the father of the petitioner.There is no trust pleaded or claimed. The respondent not having setup a counter claim in his answer of 17. 06. 94 is now not entitledto claim a trust by petition and affidavit since he has not moved toamend the answer.
Learned counsel for the respondent submitted that as the petitionerhas not filed a leave to appeal application the extraordinary powersin revision should not be exercised in favour of the petitioner as shehas not shown any exceptional circumstances. He cited the followingJudgments in favour of his contention. Rasheed AH v. Mohomed A!PNavaratnasingha v. Arumugami2}; Rustom v. Hapangama andCompart^3'.
Learned counsel submitted that the powers of revision conferredon the Court of Appeal are very wide and the court has the discretionto exercise them whether an appeal lies or not or whether an appealhad been taken or not. However the discretionary remedy can beinvoked only where there are "exceptional circumstances" warranting
Mallika De Silva v. Gamini De Silva (De Silva, J.)
intervention of court. His contention was that the petitioner has notestablished any exceptional circumstances to invoke the jurisdictionof this court.
In the case of Rasheed Ali v. Mohomed Ali (supra) which decisionthe counsel for the respondent relied on too recognizes severalsituations which could be considered as exceptional circumstances.It had been held that where an appeal would take time to come upon hearing and the ensuing delay would render the ultimate decisionnugatory then that would be an exceptional circumstance calling forinterference of the court by way of revision. Athukorala v. Samyanathd*Lebbaythamby v. AG5K Where the order of court is wrong ex facieit would be quashed by way of revision even though no appeal maylie against such order Ranasinghe v. Heniy6>. Where the interestsof justice demand then the court would not hesitate to act in revision.Sabapathy v. Dunlop(7>.
In the instant case the trial Judge's order is ex facie wrong inthat he failed to consider the respondents application for an injunctionwas contrary to sections 54 (1) and 54 (2) of the Judicature Act. Inthe circumstances we set aside the order of the District Judge dated13. 05. 1998 and allow the application.
WEERASURIYA, J. – I agree.
MALLIKA DE SILVA v. GAMINI DE SILVA