Law-Report-part-11.pdf

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D I G E S T
Page
CODE OF INTELLECTUAL PROPERTY ACT (NO. 52 OF 1979) – Section 281
10 – The author of a protected work shall have the exclusive right to do
or authorize any person to reproduce the work, make translations, ad-
aptation, arrangement or other transformation of work or communicate
the work to the public – Section 19(1) – The rights referred to in Section
10 shall be protected during the life time of the author and for ffty years
after his death. – Law relating to the trademarks and passing off
Fernando v. Gamlath
(Continued from Part 10)
CONSTITUTION ARTICLE 154 (P) 3 (B) – Primary Courts Procedure Act – 284
Section 2, Section 66, Section 68 – Section 76 – High Court exercising
revisionary jurisdiction – Appeal to Court of Appeal – Does the fling
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
Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
INDUSTRIAL DISPUTES ACT – Section 3(1)(d) – Of consent, parties to the 305
Industrial dispute refer the dispute for settlement by Arbitration to an
Arbitrator, for settlement by Arbitration. – Section 4(1) – Powers of the
Minister in regard to industrial disputes – Section 17(1) – Duties and
powers of Arbitrator – Section 36(4) – In the Conduct of Proceedings
in respect of an industrial dispute any industrial court, Labour Tribunal,
Arbitrator or the Commissioner is not bound by any provisions of the
Evidence Ordinance.
Brown & Company PLC V. Minister of Labour And 6 others
(Continued from Part 12)

Fernando v. Gamlath
SC (Suresh Chandra J,) 281
In the instant case the Learned Judge of the Commercial
High Court having considered the evidence before Court had
arrived at the conclusion that the late Mr. C.T. Fernando was
entitled to rights in respect of the composition in respect of
the song “pinsiduwanne” in terms of the provisions of the
Code of Intellectual Property Act, he had further held that the
Plaintiff who is the widow of the Late Mr. C.T. Fernando had
inherited such rights but went onto hold that the Defendant
had not infringed such rights.
Although the Plaintiff alleged the distortion of the
musical composition by the Defendant there was no proof of
such distortion which was established by the Plaintiff and
the Learned High Court Judge arrived at the conclusion that
there was no such distortion. Considering the evidence before
the Commercial High Court the Learned Judge has arrived at
a correct fnding on that matter.
With the advancement in technology it is very easy to
copy works of original artists, composers, singers, etc. But
there has to be a way of safeguarding the rights of the original
artists such as the singer as in the present instance, specially
when a singer has achieved a reputation which would be
recognized for generations and generations. Once such
recognition has been there, and rights acquired which
according to law can be inherited, the works of such original
reputed artists such as singers can be used by others only
by obtaining permission from the original artist or from those
who inherit such rights which amounts to a recognition of the
fame and reputation of the original singer.
We fnd that the Defendant had in the case before the Com-
mercial High Court admitted including the said song in his

282 Sri Lanka Law Reports [2011] 1 SRI L.R.
teledrama without permission from the Plaintiff. Futhermore
in evidence the Plaintiff stated that the Defendant had asked
permission from her to use the said song of her late hus-
band to which she had declined. The book published by the
Educational Publishing Department which the Defendant
claims to have been the source material used for the song in
his teledrama contained only the lyrics to the said song and
to which the Plaintiff claimed no such copyright as copyright
was owned by a different individual who is not a party to the
above action. In such an event as the Plaintiff had the rights
for the musical composition under the Act it will be clear that
the use of the said composition by the Defendant without
permission was an infringement of the rights of the Plaintiff.
The Plaintiff had claimed the sum of Rs. 25,000/= for the said
infringement by the Defendant in view of the position that
there has been an infringement of the Plaintiffs rights regard-
ing the composition by the Defendant and the Plaintiff would
be entitled to damages as claimed by her plaint. Therefore a
sum of Rs. 25,000/= as claimed by the Plaintiff is awarded to
her which is to be paid by the Defendant.
In the petition of appeal fled by the Plaintiff she had
prayed for:
(a) setting aside the judgment of the High Court dated
27.11.2000;
(b) to decide the appeal in her favour;
(c) alternatively to send the case back for a fresh hearing.
As stated above the judgment of the High Court is varied
in relation to the fnding that there has been no infringement
of the Plaintiffs rights as there has been such infringement.
In the prayers mentioned above there is no specifc prayer

Fernando v. Gamlath
SC (Suresh Chandra J,) 283
claiming damages except for seeking a decision in favour of
the Appellant which would presuppose seeking a decision
as prayed for in the Plaint which includes a prayer claiming
damages in the sum of Rs. 25,000/=. This is to be considered
only for the purposes of granting relief to the Plaintiff as there
is a fnding regarding the infringement of the Plaintiffs rights
which would naturally result in causing damages to the owner
of such rights. However such damages are limited to the
amount claimed by the Plaintiff in her plaint which is the
sum of Rs. 25,000/=.
In the above circumstances the Plaintiffs appeal is
allowed and she is awarded a sum of Rs. 25,000/= as
damages with costs fxed at Rs. 10,500/=.
J.A.N. DE SILVA CJ – I agree.
EKANAYAKE J – I agree.
Appeal allowed. Appellant is awarded Rs. 25,000/- as
damages with costs fxed at Rs. 10,500/-.

284 Sri Lanka Law Reports [2011] 1 SRI L.R.
JAYANTHA GUNASEkARA VS. JAYATISSA GUNASEkARA
AND OTHERS
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 fling
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.

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 285
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
Capter vII of the Primary Courts Procedure Act than the ascer-
tainment of the true intention of the Parliament and carry it out
by flling 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
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.

286 Sri Lanka Law Reports [2011] 1 SRI L.R.
(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 beneftted
by that argument. He has not adverted the Magistrate to the non
compliance of Section 66 (6) before the commencement of the in-
quiry.
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. Indrasiri – 2005 1 Sri LR 411 (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 LR 225, 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 Al 412- (1940) 1 All ER 405, 412

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 287
W. Dayaratne PC with Rangika Jayawardane, D.M. Dayaratne and
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 fling 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 Wickramas-
ingha Gunasekara2 (2nd party – 1st respondent-petitioner-
respondent). The involvement of the other parties in the
dispute is not dealt in this judgment, as they had merely
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 dispos-
sessed of the subject matter by respondent, within a period
of two months before the fling of information and accord-

288 Sri Lanka Law Reports [2011] 1 SRI L.R.
ingly 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 fled 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 conficting views expressed on the question
as to whether the fling 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 confict, 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 briefy

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 289
refer to the two conficting decisions. In point of time the frst
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
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 revision-
ary powers in the High Court in respect of orders made un-
der 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 or-
ders 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 dissatisfed with
the order of the Court of Appeal had to seek special leave to
appeal from the Supreme Court within 42 days. under Su-
preme Court Rules of 1990 a party aggrieved by the judg-
ment 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 execu-
tion 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

290 Sri Lanka Law Reports [2011] 1 SRI L.R.
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
Procedure Code are applicable. This is basically an incor-
rect approach which should stand corrected by reason of the
decision Kayas Vs Nazeer(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 proceed-
ings 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 stipu-
lates 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 ….
Provides for the mode of institution of criminal prosecu-
tions; 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

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 291
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 signifcant feature is that
Section 78 while making reference to criminal prosecu-
tions or proceedings and civil actions or proceedings, has
not made any reference to disputes affecting land. This
exclusion would reveal the legislative intent that Sec-
tion 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 fled under
154 P (3) (b) of the Constitution or it would operate otherwise.
To fnd 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 immov-
able properties, where the breach of the peace is threatened
or likely. In the case of Perera Vs. Gunathilake(4) His Lord-
ship 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

292 Sri Lanka Law Reports [2011] 1 SRI L.R.
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 discoun-
tenancing 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 outspo-
kenness 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 aris-
ing 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 un-
til 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

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 293
provisional nature in a civil dispute, pending fnal
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 expedi-
tiously 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 legis-
lation would defnitely 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 effcient

294 Sri Lanka Law Reports [2011] 1 SRI L.R.
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 frustrat-
ingly 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 signifes 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 specifc 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

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 295
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 con-
ferred 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 fnd 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
scrutinized along with Article 154 P (3) (b), it would be seen
that it makes a whale of difference as to the purpose, nature,
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
Article 154 P (3) (b) on one hand and appeals permitted under
the Civil, Criminal, Admiralty, Labour, Agrarian, Judicature

296 Sri Lanka Law Reports [2011] 1 SRI L.R.
and other laws on the other hand are worth examining to fnd
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 feld 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 qualifed 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 judg-
ment 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

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 297
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 (1864), 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 suffciently clear that the
Legislature was creating an exception to the ordinary rule in
a limited way.
Soertsz A.C.J was greatly infuenced 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. Surpris-
ingly, neither the three Indian cases nor the case of Edward
Vs De Silva (supra) were either relevant or have any bearing

298 Sri Lanka Law Reports [2011] 1 SRI L.R.
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, especial-
ly 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 Legis-
lature 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 (Spe-
cial 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.

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 299
“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 satisfes
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 vs 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
vs 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 fll-
ing in the gaps. Obviously, to put off the execution process
until the appeal is heard would tantamount to prolong the

300 Sri Lanka Law Reports [2011] 1 SRI L.R.
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
confdent that the construction we are mindful of placing
by this judgment would defnitely 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 automati-
cally stay the execution of the order of the High court.
The petitioner has fled 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 revi-
sion 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. Vide Rustum 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

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 301
the Court to settle amicably is a condition precedent which
had to be satisfed 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.
iji 2'00 g le|jk úg m<uq md¾Yjfha 1 jk j.W;a;rlre
fjkqfjka fmkS isá kS;s{jrhd bÈßm;a l, lreKq wkqj fiajlhka
w;r iduh lvùug wdikak ;;a;ajhla we;s njg ks.ukh lrñ
iui:hla weoa±hs úuiñ' iu¾:hla i|yd wjia:dj foñ' ±kg iu:hla
ke;s nj md¾Yjlrejka okajhs'
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 fxed 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

302 Sri Lanka Law Reports [2011] 1 SRI L.R.
regarding non compliance of Section 66(7) cannot be taken
for the frst 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 acquies-
cence 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 with-
in 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 had

Jayantha Gunasekara Vs. Jayatissa Gunasekara and others
CA (Abdus Salam, J.) 303
benefted 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, frst, that the par-
ty 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
beneft under or arising out of the course of conduct which he
has frst pursued and with which his present action is incon-
sistent” – 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 beneft given to him by a judgment can-
not allege the invalidity of the judgment which confers the
beneft” – Lord Russel in Evans v. Bartlam(19).

304 Sri Lanka Law Reports [2011] 1 SRI L.R.
“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 unwilling-
ness 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 fled
in the relevant fle 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.

Brown & Company PLC v. Minister of Labour And 6 others
SC 305
BROwN & COMPANY PLC V. MINISTER OF LABOUR
AND 6 OTHERS
SuPREME COuRT
J.A.N. DE SILvA, CJ
SALEEM MARSOOF, PC., J. AND
P.A.RATNAyAKE, PC., J.
S.C.APPEAL NO. 108/2008
S.C( SPL.) LA NO. 12/2003
CA ( APPLICATION) NO. 2056/2003
NOvEMBER 1ST, 2010
Industrial Disputes Act – Section 3(1)(d) – Of consent, parties to
the Industrial dispute refer the dispute for settlement by Arbitra-
tion to an Arbitrator, for settlement by Arbitration. – Section 4(1)
– Powers of the Minister in regard to industrial disputes – Section
17(1) – Duties and powers of Arbitrator – Section 36(4) – In the
Conduct of Proceedings in respect of an industrial dispute any
industrial court, Labour Tribunal, Arbitrator or the Commissioner
is not bound by any provisions of the Evidence Ordinance.
The dispute that arose between the relevant employees with Brown
& Co., and Browns Engineering, has been referred for settlement by
arbitration in terms of Section 4(1) of the Industrial disputes Act. The
Arbitrator, after considering the evidence placed before him, entered
an award in favour of the relevant employees of Brown & Co., that they
are entitled to receive travel expenses from 1st June 1992 up to the
termination of their services with effect from 23rd November 1996. The
Arbitrator also found that in addition to aforesaid amounts, 4th, 5th,
6th Respondents were entitled to receive respectively further sums of
Rs. 349,095.37, Rs. 346,907.00 and Rs. 366,219.00 as total dues and
directed Brown & Co. to pay the said sums.
Being aggrieved by the said Award of the Arbitrator, Brown & Co. fled
the Writ application from which this appeal was fled in the Supreme
Court, seeking a mandate in the nature of a Writ of Certiorari quashing

306 Sri Lanka Law Reports [2011] 1 SRI L.R.
the said award and a Writ of prohibition to prevent the Commissioner
of Labour from taking steps to enforce the said Award.
Held:
(1) Arbitration under the Industrial Disputes Act is intended to be even
more liberal, informal and fexible than commercial Arbitration,
because Section 17(1) of the Industrial Disputes Act requires the
Arbitrator to make all such inquiries into the dispute as he may
consider necessary, hear such evidence as may be tendered by
the parties to the dispute and thereafter make such award as may
appear to him just and equitable.
(2) The function of the arbitral power in relation to industrial disputes
is to ascertain and declare what in the opinion of the Arbitrator
ought to be the respective rights and liabilities of the parties as
they exist at the moment the proceedings are instituted.
(3) The Arbitrator’s role is more inquisitorial, and he has a duty to go
in search for the evidence, and he is not strictly required to follow
the provisions of the Evidence Ordinance in doing so. The proce-
dure followed by him need not be fettered by the rigidity of the
law.
Per Marsoof, J. –
“It is important not to lose the sight of the fact that this appeal
arises from an application for the Writ of Certiorari to quash the
award of the arbitrator in an industrial arbitration, and the Court
of Appeal which refused the appeal in the circumstances of this
case did so in the exercise of its supervisory jurisdiction and not
in its capacity as an appellate Court.”
(4) The Court of Appeal did not err in affrming the fnding of the
Arbitrator that although reimbursement of the cost of travelling
was not expressly provided for in the letter of appointment is-
sued to the relevant employees of the Brown & Co. it was just and
equitable to award them an allowance to meet the offcial travelling
expenses, especially considering the fact that they had been pro-
vided with a company vehicle for their offcial and personal travel
in the past and withholding of this facility had given rise to an
industrial dispute.

Brown & Company PLC v. Minister of Labour And 6 others
SC (Saleem Marsoof J,) 307
(5) The impunged award of the Arbitrator is just and equitable and
there are no errors on the face of the record to justify intervention
by way of certiorari.
Cases referred to –
(1) Associated Provincial Picturehouses V. Wednesbury Corporation, –
(1948) 1 KB 223
(2) Council of Civil Service Unions V. Minister for the Civil Service –
(1985) AC 374
(3) Thiruvanakaresu V. Siriwardene and Others – (1986) 1 SLR 185
(4) Brown & Co. Ltd. and another V. Ratnayake, Arbitrator and others
(1994)3SLR 91
AppEAL from the Court of Appeal dated 30.11.2007
A.R.Surendra, PC, Nadarajar Kandeepan and K. Tharshini for Petitioner-
Petitioner-Appellant
Yuresha de Silva, S.C., for 1st and 2nd Respondent – Respondent –
Respondents
Rohan Sahabandu with Dulani Warawewa for 4th – 6th Respondent –
Respondents.
Cur.adv.vult
March17th 2011
SALEEm mArSooF, J.
The Petitioner-Petitioner-Appellant (hereinafter referred
to as “Brown & Co.”), is a Company incorporated in Sri Lanka
with the corporate name Brown & Company (Pvt.) Ltd., which
name has since been changed to Brown & Company PLC.
The 4th to 6th Respondent-Respondent-Respondents (herein-
after referred to as the “relevant employees”) were originally
employed as Engineering Executives in the Engineering
Division of Brown & Co. They were purportedly transferred

308 Sri Lanka Law Reports [2011] 1 SRI L.R.
to the 7th Respondent-Respondent-Respondent Browns
Engineering (Pvt.) Ltd. (hereinafter referred to as the Browns
Engineering) with effect from 1st January 1992, and their
services were subsequently terminated by the letters dated
23rd November 1994 consequent to a decision taken by the
management of Browns Engineering to close its business.
Even prior to the said closure of business and termi-
nation of the services of the relevant employees, they had
apprised the management of Browns Engineering as well
as the Board of Directors of Brown & Co. of some of their
grievances and sought redress. One of their grievances was
related to the expenses they had to incur personally as a
result of the withdrawal of the facility of a company main-
tained vehicle with fuel, made available to them for their
offcial and personal travel by Brown & Co., prior to their
transfer to Browns Engineering. This facility had been
continued even thereafter, up to and inclusive of the month
of May 1992. It is common ground that the offcial vehicles
used by them while working for Brown & Co. were sold to
them in May 1992, at prices determined on valuations by the
Automobile Association of Sri Lanka, and the relevant
employees had been provided with soft loans by Browns
Engineering to fnance their purchases. As a result of the
decision not to continue the facility of a company maintained
car after the said sale of vehicles after 1st June 1992, the
relevant employees were compelled to utilize the vehicles
purchased by them even for their offcial travel, sans the
facility of a company driver or provision for fuel. They
agitated for redress of this and other grievances, claiming
inter alia, a sum of Rs. 15,000 per month in lieu of the
company maintained vehicle, a sum of Rs. 3,000 per month
as driver’s salary and an additional allowance of Rs. 5,250
for fuel computed on the basis of 150 litres per month at