Sri Lanka Law Reports
[2007] 2 Sri L.R
acquisition by the State, the plaintiff has no legal right to thesame. This position has been conceded in the writtensubmissions filed on behalf of the plaintiff. What needconsideration now is when the State has already acquired thesubject matter, in such circumstances whether it would becorrect to say that the plaintiff has made out a prima facie case.The main reliefs sought by sub paragraphs (a) and (b) of theprayer to the plaint (X1) are for declaration of title to the subjectmatter and for ejectment of the defendant therefrom. Thisposition is further established by the document of the plaintiffhimself marked as P3 (gazette notification bearing No. 1117/21dated 3rd February 2000). The government has already takensteps to acquire a portion of land inclusive of the subject matterin suit morefully described in the 2nd schedule to the plaint. Byparagraph 9 of the plaint it has been contended that theDivisional Secretary of Ambagamuwa by letter dated 06.04 2000(annexed to the plaint marked as P4) had informed the brother-in-law of the plaintiff to hand over quiet possession of the subjectmatter to the Divisional Secretary on 20.04.2000. Both the abovedocuments (P3 & P4) are not denied by the defendant. Thisaction has been instituted on 14.06.2001 after the aforesaidacquisition by the State.
Examination of the 1st impugned order reveals that thelearned Judge has failed to consider the aspect of acquisition ofthe subject matter by the State. Further he has taken the viewthat the defendant is a licensee causing damages to the land insuit and therefore the plaintiff is entitled to an interim injunctionnotwithstanding the acquisition by the State . Since the mainrelief sought by the action is the relief of declaration of title whathas to be considered now is whether the plaintiff could seekdeclaration of title to a State land in this manner by way of a rel-vindicatio action. Neither the State not its representatives/theAttorney-General have been made parties to the action. In thecircumstances enumerated as above the plaintiff is not entitled toobtain any relief sought in the plaint in respect of a land whichhas been acquired by State. In other words there is nothing toshow that any legal right of the plaintiff has been or likely to be
Manoharan v Payoe and others
(Chandra Ekanayake, J.)
violated by the acts of the defendant. In this regard it would bepertinent to consider the decision in F.D. Bandaranaike v StateFilm Corporation<4> whereby the principle of law was offered withregard to the sequential tests that should be applied in decidingwhether or not to grant an interim injunction, namely:
'has the plaintiff made out a strong prima facie case ofinfringement or imminent infringement of a legal right towhich he has title, that is, that there is a question to betried in relation to his legal rights and thatthe probabilitiesare that he will win1.
in whose favour is the balance of convenience,
as the injunction is an equitable relief granted in thediscretion of the Court do the conduct and dealings of theparties justify grant of the injunction.'
If the applicant passes the test of a prima facie case then onlybalance of convenience has to be considered. In the said caseper Soza, J., at 303:
"If a prima facie case has been made out, we go on andconsider where the balance of convenience lies."
Further in the case of Guiam Hussain v Coheni5) per S.N.Silva J. (P.CA), (as then he was) at 370,
"The matters to be considered in granting an interim,injunction have been crystallized in several judgments ofthis Court and or Supreme Court. In the case ofBandaranaike v State Film Corporation Soza J., sum-marized these matters as follows:
“in Sri Lanka we start off with a prima facie case that is, theapplicant for an interim injunction must show that there is aserious matter in relation to his legal rights, to be tried at thehearing and that he has a good chance of winning. It is notnecessary that the plaintiff should be certain to win. It issufficient of the probabilities are he will win. “
Sri Lanka Law Reports
[2007} 2 Sri L.R
When the circumstances of this case are considered it has tobe concluded that the plaintiff has failed to establish a primafacie case. Therefore I am inclined to hold the view that thelearned Judge has grossly erred at page 6 of the 1st impugnedorder when he stated that plaintiff's rights are violated due to thecontinuance of business of a metal crusher by the defendant.
For the above reasons I have already concluded that theplaintiff had failed to establish a prima facie case. Therefore inview of the above decisions the existence of other requirementsto grant interim injunction need not be examined. In the light ofthe above it has to be concluded that the 1st impugned order(dated 13.12.2001) is erroneous and thus a miscarriage ofjustice has been occasioned by the same.
Now what needs consideration is whether the 1st impugnedorder could be allowed to stand. This Court has to be mindful ofthe fact that the present application of the defendant is anapplication by which revisionary jurisdiction has been invoked.When it has been already concluded that miscarriage of justicehas been occasioned by the 1st impugned order would thisbecome a fit instance to invoke revisionary jurisdiction of thisCourt.
Assistance could be derived in this regard from the decisionof Sansoni C.J., in Mariam Beebee v S. Mohamed6>.
PerSansoni C.J. at 38.
"The power of revision is an extraordinary power which isquite independent of and distinct from the averagejurisdiction of this Court, its object is the due administrationof justice and the correction of errors sometimes committedby this Court itself, in order to avoid miscarriage of justice.It is exercised in some cases by a Judge of his own motion,when an aggrieved person who may not be a party to theaction brings to his notice the fact that, unless the power isexercised injustice will result
Manoharan v Payoe and others
(Chandra Ekanayake, J.)
When applying the above principle of law an aggrievedperson who may not even be a party to the action brings to thenotice of Court that unless the revisionary power is exercisedinjustice would result, that becomes a fit instance for the Court toinvoke revisionary jurisdiction. In the present case the defendantwho was a party right along has made the present application forrevision.
The trend of authority amply indicates that when revisionarypowers of the Court of Appeal are invoked, same will beexercised only if exceptional circumstances are urged whichnecessitate the indulgence of the Court to exercise itsrevisionary powers. This principle was further strengthened bythe decision in Caderamanpulle v Ceylon Paper Sacks Ltd.W. Inthe above case this Court held as follows:
“The existence of exceptional circumstance is a pre-condition for the exercise of the powers of revision.*
Per Nanayakkara, J. at 116.
when the decided cases cited before us are carefullyexamined, it becomes evident in almost all the cases cited thatpowers of revision had been exercised only in a limitedcategory of situations. The existence of exceptionalcircumstances is a pre-condition for the exercise of the powersof revision and absence of exceptional circumstances in anygiven situation results in refusal of remedies.M
In this regard further assistance could be derived from thedecision of this Court in Dharmaratne and another v PalmParadise Cabanas Ltd. and others<8>. In the above case perAmaratunga, J. at 30,
'Thus the existence of exceptional circumstances is theprocess by which the Court selects the cases in respect ofwhich this extra-ordinary method of rectification should beadopted."
Sri Lanka Law Reports
120071 2 Sri L.R
For the reasons stated above when the 1 st impugned orderlas occasioned miscarriage of justice, this Court is compelled tonvoke the powers of revision and thus I hold the view that said>rder should be set aside.
By the present petition 2nd relief sought is to set aside thejrder of the learned Trial Judge dated 08.11.2002. What hasjiven rise to this order was the application made by theiefendant to set aside the interim injunction already issued byhe 1st order dated 13.12.2001. By the 2nd impugned order theearned Trial Judge has dismissed the application of thedefendant. Perusal of the 2nd order reveals that the maincontention of the defendant submitted in this regard to wit – oncean interim injunction has been granted inter-parte an aggrievedparty cannot seek the reliefs under Section 666 of the CivilProcedure Code, has been rejected. This conclusion of thelearned Trial Judge is also not correct.
When the 1st impugned order has been already set aside nonecessity arises to consider the merits of the 2nd impugnedorder since the application of the defendant which had given riseto the making of the 2nd order is to set aside or vary the 1st orderto wit: granting of the interim injunction.
Viewed in the above context I conclude that the defendant inthis case has been successful in establishing the existence ofexceptional circumstances that would warrant the invocation ofrevisionary jurisdiction of this Court. Accordingly both the aboveimpugned orders are hereby set aside. This application isallowed with costs fixed at Rs. 15,000/-.
SARATH DE ABREW, J. – 1 agree.
Application allowed.