Law-Report-part-6.pdf

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D I G E S T
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CONSTITUTION – Infringement of fundamental rights – Article 12[1] – Right to 158
equality – Article 126 – Fundamental rights jurisdiction and its exercise
Geethika And Two Others V. Dissanayaka And Five Others
EVIDENCE ORDINANCE – Section 68 – Proof of execution of 149
documents required by law to be attested – Manner of proving
such documents – Prevention of Frauds Ordinance – Section 2 and
Section 4 – Deeds affecting immovable property to be executed before
a notary and two witnesses.
Samarakoon v. Gunasekera and Another
WRIT OF CERTIORARI – Constitution Article 140 – Court of Appeal 141
(Appellate Procedure) Rules of 1990-91- Affdavit mandatory – Defective
affdavit – Is there a valid application for writ?- Buddhist not affrming –
Oaths and Affrmation Ordinance No. 9 of 1985 Civil Procedure Code
– Section 438 – Judicial review available – Fair hearing
Multi Purpose Co-operative Society, Madawachchiya vs.
Kirimudiyanse and others
(Continued from Part 5)

Multi Purpose Co-operative Society, Medawachchiya vs. Kirimudiyanse and others
CA (Ranjith Silva, J.) 141
In De Silva and Others Vs. L.B.Finance Ltd (supra) the
impugned affdavit at the commencement or in the recital
contained the following words “being a Buddhist do hereby
solemnly sincerely and truly declare and affrm”. The jurat
of the said affdavit contained the words “within named affr-
ment” instead of the transitive verb ‘affrmed’. Thus the word
affrms was wanting only in the jurat but was present in the
recital. In that case His Lordship Justice G.P.S. De Silva held
that the fair meaning that could be given to those words is
that the deponent had affrmed to the contents of the affda-
vit, before the Justice of the peace.
In other words his Lordship held that it was not neces-
sary to mention the word affrms in the jurat if that word
was found in the body of the affdavit such as the recital to
the affdavit. His Lordship endeavoured in that case to give a
constructive meaning to the words contained in the affdavit
even in the absence of the precise word affrm in the jurat. It
is true that in that case the word affrms was at least found in
the recital of the affdavit. In the instant case the word affrm
is found nowhere neither in the recital nor in the jurat.
I fnd that there is no magic in the word affrm. It means
according to the Oxford Advanced Learner’s Dictionary “ to
state frmly or publicly that sth is true or that you support
sth strongly.” The impugned affdavit at the commencement
and in its recital states fn!oaOd.ñlhl= jYfhka wjxlj;a" i;H
f,i;a" .dïNSr;d mQ¾jlj;a – m%;s× § m%ldY lr isák j.kï
Translated into English it means “being a Buddhist I
solemnly sincerely and truly declare and state.” Neither the
Jurat nor the body of the affdavit contains the word affrm.
The Jurat of the impugned affdavit contained the date and
the place of attestation and the fact that the deponent is

142 Sri Lanka Law Reports [2011] 1 SRI L.R.
signing the same having read and understood the contents
of the affdavit. What is wanting in the affdavit is the precise
word ‘affrm’.”
On a consideration of the impugned affdavit I fnd that
the provisions of section 438 of the Civil Procedure Code have
been complied with. The Jurat expressly sets out the place
and the date on which the affdavit was signed. The affdavit
has been signed before a Justice of the Peace. There is
specifc reference in the jurat that the affdavit was duly
signed by the deponent after having read and understood the
contents. The contention that the affdavit is invalid is based
on the absence of the word affrm in the jurat or in the body
of the affdavit.
On the other hand if a Catholic does not swear an
affdavit that might be a different kettle of fsh altogether
because swearing becomes very important and most signif-
cant to a Catholic who believes in Almighty God. i.e. I swear
by the Almighty God that I will tell the truth. A mere assertion
statement or affrmation may not suffce for the purpose of
executing a valid affdavit as far as a Catholic, Christian or a Jew
is concerned. (Edussuriya, J. in Clifford Ratwatte V Thilanga
Sumathipala and Others)(supra) But in the case of a deponent
being a Buddhist this question does not arise.
I cannot understand why a Buddhist cannot believe in
God or Gods. Perera, J. in Rustomjee Vs Khan(6) at 123 held
that the use of the word “may” in the Oaths Ordinance of
1895, instead of “shall”, must be regarded as deliberate; with
the consequences, non-Christians who believe in God would
have the option to swear or to affrm.
Buddhism is a philosophy and a religion. In any case
where a deponent solemnly sincerely and truly state some-

Multi Purpose Co-operative Society, Medawachchiya vs. Kirimudiyanse and others
CA (Ranjith Silva, J.) 143
thing in his affdavit with responsibility, a particular word
should not be allowed to play tricks or stand in the way of
justice and fair play. A particular word should not be allowed
to vitiate or invalidate an affdavit which is otherwise regular
on the face of it. The words solemnly sincerely and truly
connotes that the deponent is publicly admitting the truth of
the contents in the most responsible manner. The absence of
a particular word namely the word ‘affrm’ referred to in the
statute cannot and should not be allowed to stand in the way
of justice. The words must be given a purposive and mean-
ingful construction instead of trying to split hairs on techni-
calities. (Mohamed Vs Jayaratne and Others(7))
The rationale in the above quoted judgments is that the
fundamental obligation of a deponent is to tell the truth and
the purpose of an oath or affrmation is to enforce that obliga-
tion. Therefore the substitution of an oath for an affrmation
or vice versa will not invalidate an affdavit or on the other
hand by reading the affdavit as a whole if a fair meaning
could be given to the words used in the affdavit that the
deponent has affrmed to the contents of the affdavit before
the Justice of the Peace then it could be construed that there
is suffcient compliance with the requirement of an affdavit.
(H/L Hon. S. Srikandarajah, J. in Kalutanthrige Don John Pat-
ric vs Kaluthanthrige Dona Mercy(8))
For the reasons stated I hold that there is no merit
in the frst ground of Appeal taken by the 2nd Respondent
Appellant, namely that there was no valid Writ application
before the Provincial High Court, accordingly the frst ground
of appeal is hereby rejected.
With regard to the third and fourth grounds of appeal I
fnd that there is no substance or merit in those arguments.

144 Sri Lanka Law Reports [2011] 1 SRI L.R.
In addition the submissions did not sound convincing and
those two grounds were not prosecuted with much conviction
or vehemence.
Second ground of appeal – undue delay
The counsel for the appellant contended that there was
undue delay in presenting the writ application to the High
Court. He cited the following authorities in support of his
case. (Issadeen V The Commissioner of National Housing and
others(9) Lanka Diamond (Pvt) Ltd V Wilfred Vanells and Two
Others(10))
In order to decide whether there was undue delay in
presenting the application for writ it becomes necessary to
deal with the facts pertaining to the case. The Petitioner
Respondent joined the frst Respondent society on 04 of
February 1971 as a general manager. The Petitioner was
appointed as a curator of the stores on 26 of June 1973.
Due to a leakage of goods to the value of Rs. 8146.76, the
Petitioner was dismissed from service without any enquiry
whatsoever. The Petitioner states that by letter dated 13 of
August 1976, he was dismissed from service with immediate
effect without following any procedure. The Petitioner further
states that the dismissal was totally and completely against
the principles of natural justice, that thereafter the Petition-
er submitted several appeals to the Respondents including
the Respondent Appellant and after four years that is on 8
of August 1979 a charge sheet was issued on the Petitioner
containing three charges but a disciplinary inquiry was not
held to go into the charges framed against him based on that
charge sheet. Thereafter nearly 21 years later another charge
sheet was issued against the Petitioner. The second charge
sheet was issued on 15th of November 1997. At the time of

Multi Purpose Co-operative Society, Medawachchiya vs. Kirimudiyanse and others
CA (Ranjith Silva, J.) 145
issuing the second charge sheet the dismissal made on 13th of
August 1976, prior to the issuance of the two charge sheets,
was not cancelled and was in existence.
The inquiry that followed the second charge sheet
commenced on 25th of February 1998 and was completed on
the sixth of April 1998. It is alleged by the Petitioner that
the disciplinary inquiry was concluded without granting the
Petitioner the opportunity to meet his case properly and
effectively.
It was submitted on behalf of the petitioner that the
1st Respondent informed the petitioner that he had been
convicted of all the charges leveled against him and that
he appealed to the 1st Respondent but was informed that
the 1st Respondent cannot intervene in the matter. The
Petitioner had thereafter submitted a second appeal dated
15th of July 1999, to the, 1st Respondent by stating his
grievance but once again, by the letter dated 30th of August
1999 the 1st Respondent informed the Petitioner that there was
no reason to interfere with the decision. Thereafter the
Petitioner had submitted two more appeals to the 1st Respon-
dent but was informed that his request cannot be considered.
On 5th of January 2001 the Petitioner submitted a further
appeal to the 1st Respondent. As a result of that appeal the
Petitioner was asked to appear before the 1st Respondent
but was informed that there was no reason to change the
decision and it was thereafter that the Petitioner fled the
writ application in the High Court of Anuradhapura on 18
December 2002.
On the facts it is crystal clear that there had been
untoward and inexcusable delay on the part of the
Appellant in holding a proper disciplinary inquiry against the

146 Sri Lanka Law Reports [2011] 1 SRI L.R.
Petitioner. He had been dismissed summarily without holding
any inquiry or even serving a charge sheet on him. Thereafter
it took several years to frame charges against the Petitioner
and there too the authorities failed to prosecute or to hold an
inquiry on the charge sheet issued against him and subse-
quently after 21 years a second charge sheet was served on
him. It is only thereafter a purported inquiry was held and
even at that inquiry, on the evidence it is clear that the Peti-
tioner was not afforded a fair inquiry. He was not permitted
to lead evidence at the inquiry held and thus was deprived
of a fair inquiry. Delay / laches of a party does not bestow
a right or privilege on the other to indulge in delay / laches
but is it ethical, proper, just or fair to allow the Appellant to
rely on the delay on the part of the Petitioner in fling the writ
application, when they themselves delayed long years, for
more than 21 years, in framing charges and proceeding
against the Petitioner. On the other hand in view of the bra-
zen facts I am of the opinion that even if there was a delay in
fling the application for writ that delay is certainly excusable
and pardonable in the light of and in the face of the glaring
injustice, the glaring prejudice that has been caused to the
Petitioner by the conduct of the frst 1st respondent and the
2nd Respondent Appellant.
Tenability of the Learned High Court Judges order
The Appellant has questioned the capacity of the Peti-
tioner to maintain or invoke the writ jurisdiction of the High
Court. The Appellant was a statutory body vested with statu-
tory rights and obligations created by statute. The Petitioner
was an employee but it was not a simple and pure master
and servant contract there was a lot of rights and obligations
governed by and emanating from statutes, especially so when

Multi Purpose Co-operative Society, Medawachchiya vs. Kirimudiyanse and others
CA (Ranjith Silva, J.) 147
it comes to disciplinary matters, dismissal, inquiry, appeals
etc.
The remedy of judicial review is available where an
issue of public law is involved. The expression public law
and private law whilst convenient for descriptive purposes
must be used with caution. It is not correct to assume that
there is no public law element in an ordinary relationship of
master and servant and that accordingly in such a case
judicial review would not be available. Even in a master and
servant relationship where conditions of employment or
disciplinary matters are regulated to some degree by statu-
tory provisions or a statutory scheme, such actions attract
public law remedies.
Employment by public authorities does not per se
inject any elements of public law nor does the fact that the
employees in the higher grade or is an offcer. This only makes
it more likely that there will be special statutory restrictions
on dismissal or other underpinning of his employment. It is
this underpinning and not the seniority which injects any
element of public law. The ordinary employer is free to act in
breach of its contracts of employment and if he does so his
employee will acquire certain private law rights and remedies
in damages for wrongful dismissal, compensation for un-
fair dismissal, an order for reinstatement or re-engagement
and so on. Parliament can underpin the position of public
authority employees by directly restricting the freedom of
the public authority to dismiss, thus giving the employee
public law rights and at least making him a potential
candidate for administrative law remedies. (Vide. Malloch
V. Aberdeen Corporation(11) Per Sriskandarajah, J.

148 Sri Lanka Law Reports [2011] 1 SRI L.R.
With regard to the dismissal of the Petitioner I fnd that
it had been done haphazardly without serving a charge sheet
or without holding a proper inquiry. A charge sheet had been
served on the Petitioner after a couple of years and thereaf-
ter a second charge sheet was fled after 21 years and it is
only thereafter that any form of an investigation has been
held. On top of this brazen violation of fundamental norms
and the rights of the Petitioner, even at the investigations
held on the second charge sheet the Petitioner had not been
afforded a fair hearing. The Appellant has not observed the
principles of natural justice. In fact P 13 reveals that the
Petitioner was not allowed to place his case properly, effec-
tively and to the best of his ability. The investigation team
determined that it was not necessary for the Petitioner to lead
evidence and thereafter had prevented him from leading any
evidence, in fact has ruled that they really would not permit the
Petitioner to lead evidence. This is a blatant violation of the
Petitioner’s right to a fair hearing. The Appellant has not
followed a fair procedure in keeping with the rule audi alteram
partem in conducting their investigations against the
Petitioner. (vide. Koralagamage Vs The Commander of the
Army(12), Ratnayake Vs Ekanayake Commissioner General
of Excise and others(13) Lanka Loha Holdings (Pvt) Ltd Vs The
Attorney General(14).
For the reasons adumbrated on the facts and the law
I am of the view that there is no merit in this appeal and
accordingly I dismiss this appeal with costs fxed at
Rs. 5000/= to be paid to the petitioner Respondent by the 2nd
Respondent appellant.
LeCamwaSam, J. – I agree.
Appeal dismissed.

Samarakoon v. Gunasekera and Another
SC 149
SAMARAKOON V. GUNASEKERA AND ANOTHER
SuPREmE COuRT
AmARATuNGA, J.,
RATNAyAkE, J. AND
EkANAyAkE, J.
S. C. APPEAL NO. 84/2010
S.C. (H.C) CALA APPLICATION NO. 75/2010
NCP/HCCA/ARP 303/2007
D. C. ANuRADHAPuRA 17234/L
mAy 26TH, 2011
Evidence Ordinance – Section 68 – Proof of execution of docu-
ments required by law to be attested – Manner of proving such
documents – Prevention of Frauds Ordinance – Section 2 and
Section 4 – Deeds affecting immovable property to be executed
before a notary and two witnesses.
In order to prove the Plaintiff’s title to the property which is the subject
matter of the action, he produced at the trial the notarially executed
deeds marked P3 to P6 which were marked subject to proof. No wit-
nesses were called at the trial on behalf of the Plaintiff to prove the said
deeds. At the end of the Plaintiff’s case, when the Plaintiff’s Counsel
read in evidence the deeds produced in evidence marked P3 to P6, the
defence had made an application to Court to exclude those documents
which were not properly proved. The learned District Judge held that
the documents P3 to P6 had not been properly proved and accordingly,
that the Plaintiff had failed to prove his title to the land in question.
The Plaintiff appealed against the decision of the District Judge to the
High Court. The High Court reversed the District Judge’s fnding on the
basis that when a deed had been duly signed and executed it must be
presumed that it had been properly executed.
Held:
(1) The High Court in total disregard of the specifc and stringent
provisions of Section 68 of the Evidence Ordinance had relied on

150 Sri Lanka Law Reports [2011] 1 SRI L.R.
an obiter dictum made in a case where due execution was chal-
lenged, to reverse the decision of the District Judge.
(2) In terms of Section 2 of the Prevention of Frauds Ordinance a
sale or transfer of land has to be in writing signed by two or more
witnesses before a notary, duly attested by the notary and the
witnesses. If this is not done the document and its contents
cannot be used in evidence.
Per Amaratunga, J.
(3) “When a document is admitted subject to proof, the party ten-
dering it in evidence is obliged to formally prove it by calling the
evidence necessary to prove the document according to law. If
such evidence is not called and if No objection is taken to the
document when it is read in evidence at the time of closing the
case of the party who tendered the document it becomes evidence
in the case.
(4) On the other hand if the document is objected to at the time when
it is read in evidence before closing the case of the party who
tendered the document in evidence, the document cannot be used
as evidence for the party tendering it.”
Per Gamini Amaratunga, J. –
“This Court is not inclined to order a re-trial in the absence of any
miscarriage of justice resulting from a wrong decision made by a
Court. The Plaintiff’s plight is due to the failure of his Attorney-at-
Law to adduce evidence necessary to prove the Plaintiff’s title. This
Court is not inclined to order a re-trial to facilitate an Attorney–at
–Law to rectify the mistake he had made in handling his client’s
case.”
Cases referred to:
Sangarakkita Thero v. Buddarakkita Thero – (1951) 53 NLR 457
appeaL against the judgment of the High Court of the North Central
Province (exercising Civil Appellate jurisdiction)
M. Yoosuf Nassar for the Appellant
K. G. Jinasena for the Respondent.

Samarakoon v. Gunasekera and Another
SC (Gamini Amaratunga J.) 151
Septembe 22nd 2011
Gamini amaraTunGa J.
This is an appeal, with leave to appeal granted by this
Court, against the judgment of the High Court of the North
Central Province exercising Civil Appellate jurisdiction, allow-
ing the appeal fled by the plaintiff-respondent (hereinafter
called the plaintiff) in that Court against the judgment of the
District Court of Anuradhapura, dated 24.6.2005, dismissing
the plaintiff’s action.
The facts relevant to this appeal are briefy as follows:
The plaintiff fled action in the District Court praying for a
declaration of his title to the land described in the sched-
ule to his plaint, an order for ejectment of the 1st to 3rd
defendants (hereinafter called the appellant and the 2nd and
3rd respondents) and for damages for their unlawful occupa-
tion of the land in suit. The defendants fled answer denying
the plaintiff’s claim that they were in occupation of his land
and claiming a declaration of title in their favour, on the
basis of long continued prescriptive possession, of the land
described in the schedule to the answer. The case proceeded
to trial on 24 issues based on the respective claims of the
parties.
The land described in the schedule to the plaint was lot
No. 16 of the fnal plan No. 437 in partition action No. P 66
of the District Court of Anuradhapura. The said lot No. 16
had been allotted in common to the plaintiff and four others.
The plaintiff’s position was that he had bought the shares of
the others and had become the sole owner of the entire lot
No.16. In order to prove his title he produced at the trial the
notarially executed deeds marked P3, P4, P5 and P6 subject
to proof. However no witnesses were called at the trial on
behalf of the plaintiff to prove those deeds in accordance with

152 Sri Lanka Law Reports [2011] 1 SRI L.R.
the provisions of section 68 of the Evidence Ordinance. At the
end of the plaintiff’s case, when the plaintiff’s counsel read in
evidence the deeds marked P3 to P6 the defence had made
an application to Court to exclude those documents which
were not properly proved. The defendants have then adduced
evidence in support of their prescriptive title.
The learned trial Judge had held that documents P3,
P5 and P6 had not been properly proved and accordingly
the plaintiff had failed to properly prove his title to the land
in question. On that basis he had dismissed the plaintiff’s
action. The counter claim of the defendants was also
dismissed for want of evidence to establish their prescriptive
title.
The plaintiff appealed to the Civil Appellate High Court
against the dismissal of his action. The learned High Court
Judges have reversed the fnding of the learned trial Judge
that documents P3, P5 and P6 had not been properly proved.
Their reasoning was that the deeds marked P3, P5 and P6
were originals which had been referred to in the plaint; that
the defendants had not contested the genuineness of those
deeds or had raised any issue relating to their genuineness
and as such when a deed had been duly executed and signed
it must be presumed that it had been properly executed. On
that basis the learned High Court Judge had set aside the
learned District Judge’s fnding that in view of the failure
of the plaintiff to duly prove the deeds P3, P5 and P6 the
plaintiff had not properly proved his title. Accordingly the
High Court allowed the appeal of the plaintiff in relation to
the declaration of his title. For their conclusion that when a
deed had been duly signed and executed it must be presumed
that it had been properly executed, the learned Judges have
relied on the decision in Sangarakkita Thero vs. Buddarak-
kita Thero

Samarakoon v. Gunasekera and Another
SC (Gamini Amaratunga J.) 153
On an application by the 1st defendant respondent, this
Court has granted leave to appeal against the judgment of the
Civil Appellate High Court on the following question of law:
(a) Whether the plaintiff-respondent discharged his burden
as required in a vindication action (sic.)
(b) Did the honourable judge of the High Court of Civil Appeal
err in law by holding that the plaintiff-respondent had
identifed the land in question in the circumstances of
the case?
(c) Whether the plaintiff respondent has proved his claim on
a balance of probability?
At the hearing of the appeal both parties made sub-
missions on the correctness of the reasoning of the Civil
Appellate High Court on the issue whether document P3, P5
and P6 had been properly proved.
Documents P3, P5 and P6 are notarially executed deeds.
The plaintiff by producing those deeds in evidence sought to
prove that the rights of the others who become co-owners
of lot No. 16 in plan No. 437 of the partition action P66 had
lawfully transferred their title to Lot No. 16 to him, making
him the lawful owner of their shares.
In terms of section 2 of the Prevention of Frauds
Ordinance a sale or transfer of land has to be in writing signed
by two or more witnesses before a notary and duly attested
by the notary and the witnesses. Thus the deeds marked P3,
P5 and P6 being documents for the sale and transfer of an
interest in the land are documents required by law to be
attested. When such a document is to be used in evidence,
the manner of proving it is set out in section 68 of the
Evidence Ordinance which reads as follows:

154 Sri Lanka Law Reports [2011] 1 SRI L.R.
“If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness
at least has been called for the purpose of proving its
execution, if there be an attesting witness alive and
subject to the process of court and capable of giving
evidence.”
In the course of giving evidence, if a witness refers to a
document which he proposes to use as evidence, it shall be
marked in evidence. If the party against whom such docu-
ment is sought to be used as evidence, does not object to it
being received in evidence, and if the document is not one
forbidden by law to be received in evidence, the document
and its contents become evidence in the case, On the other
hand if the opposing party objects to the document being
used as evidence, it is to be admitted subject to proof. When
a document is admitted subject to proof, the party tender-
ing it in evidence is obliged to formally prove it by calling
the evidence necessary to prove the document according to
law. If such evidence is not called and if no objection is tak-
en to the document when it is read in evidence at the time
of closing the case of the party who tendered the document
it becomes evidence in the case. On the other hand if the
document is objected to at the time when it is read in evidence
before closing the case of the party who tendered the
document in evidence, the document cannot be used as
evidence for the party tendering it.
A deed for the sale or transfer of land, being a document
which is required by law to be attested, has to be proved
in the manner set out in section 68 of the Evidence Ordi-
nance by proof that the maker (the vendor) of that document
signed it in the presence of witnesses and the notary. If this
is not done the document and its contents cannot be used in

Samarakoon v. Gunasekera and Another
SC (Gamini Amaratunga J.) 155
evidence. The plaintiff in this case had not called the
witnesses necessary to prove deeds P3, P5 and P6 in
accordance with section 68 of the Evidence Ordinance.
The learned High Court Judges in their judgment have
not referred to section 68 at all. Instead, they have based
their conclusion on the obiter dictum contained in the
judgment in Sangarakkita Thero vs. Buddharakkita Thero
(supra). That was a case where a deed, executed when the
executant was warded in a hospital, appointing an incum-
bent of a temple, was challenged on the ground that it had
not been executed in accordance with the provisions of sec-
tion 4 of the Prevention of Frauds Ordinance relating to the
executions of wills. The ground of challenge was that the deed
had not been executed in accordance with the manner pro-
vided in section 4. On the evidence available the Supreme
Court had held that the will had been duly executed in con-
formity with the requirements of section 4 of the Prevention
of Frauds Ordinance.
Having come to that conclusion, Rose C.J. by way of
obiter had made the following statement.
“But even if that were not so, and if the correct view is
that there is some small omission in the chain of evi-
dence, I would not be disposed to say in the light of
the emphasis which was placed on the various issues
in the Court below that such small omission was fatal
to the respondent’s position. There is of course, a pre-
sumption that a deed which on its face appears to be in
order has been duly executed, and it seems to me that the
mere framing of an issue as to due execution of the deed
followed in due course by a perfunctory question or two
on the matter of execution without specifying in detail the
omissions and illegalities which are relied upon, is insuf-
fcient to rebut that presumption” (at 459)

156 Sri Lanka Law Reports [2011] 1 SRI L.R.
What the learned Chief Justice said in the above passage
was that although there are small omissions in the chain of
evidence in a situation where due execution according to law
is being challenged, a small omission in the chain of evidence
may be cured by the presumption that a deed which on its face
appears to be in order has been duly executed. The framing
of an issue as to due execution and a perfunctory question or
two on the general matter of execution, without specifying in
detail the omissions or illegalities regarding execution, would
be insuffcient to rebut the presumption of due execution
despite small omissions in the chain of evidence regarding
due execution.
In the present case, the defendants had not challenged
the due execution of deeds P3, P5 and P6. When they
objected to those documents at the time the same were
marked in evidence what they did was to challenge the plaintiff
to prove those documents in the proper way in which a docu-
ment required by law to be attested has to be proved if it is
to be used as evidence. The plaintiff thus had notice that he
had to prove P3, P5 and P6 in the manner provided in section
68 of the Evidence Ordinance. He had failed to lead the
evidence necessary to prove those documents in accordance
with the provisions of section 68. At the close of the plaintiff’s
case when the documents marked were read in evidence the
defendants have stated that documents not proved should be
excluded. This was a reference to documents marked subject
to proof and proved in accordance with the law. In view of
the failure of the plaintiff to prove documents P3, P5 and P6
on which the title claimed by him depended, the learned trial
Judge had rightly excluded those documents and had held
that the plaintiff had failed to prove his title.
The learned High Court Judge in total disregard of the
specifc and stringent provisions of section 68 of the Evidence

Samarakoon v. Gunasekera and Another
SC (Gamini Amaratunga J.) 157
Ordinance have relied on an obiter dictum made in a case
where due execution itself was challenged, to reverse the
decision of the learned trial judge. The basis upon which they
reversed the trial judge’s conclusion was totally erroneous. If
the view taken by the learned High Court Judges was correct
it would make the provisions of section 68 of the Evidence
Ordinance a dead letter. The erroneous legal basis on which
the trial Judge’s decision was reversed vitiates the judgment
of the High Court entered in favour of the plaintiff. I therefore
answer the question of law set out in question No. (a) and
(c) in the negative and allow the appeal and set aside the
judgment of the High Court dated 11.2.2010 and affrm the
judgment of the learned trial judge dismissing the plaintiff’s
action.
The learned counsel for the plaintiff respondent invited
this court to send the case back to the District Court for re-
trial. This Court is not inclined to order a re-trial in the ab-
sence of any miscarriage of justice resulting from a wrong
decision made by a court. The plaintiff’s plight is due to the
failure of his attorney at law to adduce the evidence neces-
sary to prove the plaintiff’s title. This Court is not inclined to
order a re-trial to facilitate an attorney-at-law to rectify the
mistakes he had made in handling his client’s case. I make
no order for costs.
raTnayake J – I agree.
ekanayake J. – I agree.
Appeal allowed. Judgment of High Court dated 11.2.2010 set
aside and the judgment of the District Judge dismissing the
Plaintiffs action affrmed.

158 Sri Lanka Law Reports [2011] 1 SRI L.R.
GEETHIKA AND TWO OTHERS V. DISSANAYAKA AND FIVE
OTHERS
SuPREmE COuRT
mARSOOF.J,
EkANAyAkA, J .
SuRESH CHANDRA J.
S.C.F.R. APPLICATION NO. 35/2011
mAy 31ST , 2011
Constitution – Infringement of fundamental rights – Article 12[1] –
Right to equality – Article 126 – Fundamental rights jurisdiction
and its exercise
The Petitioners made an application in terms of Article 126 of the
Constitution for the alleged violation of their fundamental rights
guaranteed under Article 12(1) of the Constitution as a consequence
of the 3rd Petitioner not being selected for admission to Grade 1 of
D. S. Senanayake College.
The application for admission for the year 2011 had been submitted
under the category of ‘children of the residents at close proximity to the
school.’ The main thrust of the Petitioners’ application was that on the
basis of residence, they are entitled to have their child (3rd Petitioner)
admitted to the school.
Held:
1. A consideration of Clause 6.1 of the Circular No. 2010/21 dated
31.5.2010 shows that the main consideration for selection of
children under the category of “children of those who are residing
close to the school” would be the Applicant’s place of residence.
Per Suresh Chandra, J.
“ . . . interview panels should consider all the documents that are
submitted by a prospective applicant and assess them carefully
and see whether the cumulative effect of such documents would
establish the genuine residence of such applicant.”

Geethika And Two Others V. Dissanayaka And Five Others
SC (Suresh Chandra J.) 159
2. The interview panel failed to evaluate the documents that were
submitted by the Petitioners in support of their application to
admit the child to the school and appear to have acted arbitrarily.
The panel appears to have considered the concept of residence in
a very abstract manner and has failed to consider the totality of
the documents that were submitted which clearly establish the
residence of the Petitioners.
3. Petitioners have established the fact of violation of their funda-
mental rights in terms of Article 12(1) of the Constitution.
Cases referred to –
Haputhantirige and others v. Attorney General – (2007) 1 Sri L.R.
101
appLiCaTion made in terms of Article 126 of the Constitution
Kanishka Witharana for Petitioners
Ms. Barrie, State Counsel for the Attorney General
Cur.adv.vult.
July 12th 2011
SureSH CHandra J.
The Petitioners made an application in terms of
Article 126 of the Constitution for the alleged violation of their
fundamental rights guaranteed under Article 12(1) of the
Constitution as a consequence of the 3rd Petitioner not
being selected for admission to Grade 1 of D. S. Senanayake
College.
The Petitioners in their application have stated that the
1st and 2nd Petitioners are the parents of the 3rd Petitioner
for whose admission to D. S. Senanayake College they made
an application for the year 2011. The application had been

160 Sri Lanka Law Reports [2011] 1 SRI L.R.
submitted under the category of “Children of the residents
at close proximity to the School” which category is dealt with
under Clauses 6.1 (I-IV) of the circular No. 2010/21 dated
31.5.2010 issued by the ministry of Education regarding
admission of children to Grade 1 of Government Schools
marked P5. The Petitioners stated that they submitted docu-
ments P8 to P17 along with their application and tendered
documents marked P19A to P19T at the interview held on
7th September 2010 and that they were informed by the
Panel who held the interview that they had received 57
marks. They were surprised to see that the name of the 3rd
Petitioner was not in the list of children selected for admis-
sion which was displayed by the school. The 1st Petitioner had
submitted an appeal in terms of the said circular and had
given further grounds to substantiate her entitlement to
have her child selected to the said School. Thereafter the 1st
Petitioner had been required to attend an inquiry before the
Appeals Board and she had submitted a further document
(P22) from the National Housing Development Authority
regarding the house that they were residing. According to
the matters indicated by the 2nd Respondent at the appeal
inquiry, the 1st Petitioner had been given the impression
that she would be given a further 25 marks on distance and
4 marks for title documents by treating same as a lease,
entitling them to earn 86 marks. However, when the fnal list
was displayed in the School the name of the 3rd Petitioner
was not included in the list either among those who were
selected or those who were on the waiting list. The waiting list
consisted of those who had received between 55 and 60
marks. The Petitioners had thereafter made the present
application to this Court.
The Respondents fled objections by fling an affdavit
from the 1st Respondent, who stated that the petitioner’s

Geethika And Two Others V. Dissanayaka And Five Others
SC (Suresh Chandra J.) 161
assertion that they had earned 57 marks at the interview was
false and that they had been awarded only 37 marks as per
document marked R2, and that there was no alteration of the
said marks at the Appeals Board, and that the 3rd Petitioner
did not qualify for selection on the marks obtained by the
Petitioners. The 1st Respondent has further stated that the
Petitioners could not be awarded any marks under Clause
6.1 (II) as they had not produced any of the documents set
out in the circular, and that no marks could be allocated
under Clause 6.1 (IV) as the Petitioners could not be
considered to have established the requirement of residence.
The 1st Respondent further stated that the cut off mark for
selection was 61 marks and that those who had obtained
over 55 marks had been placed in the waiting list. The 1st
Respondent in the said circumstances denied violating the
fundamental rights of the Petitioners as alleged.
The application requires a consideration of the provisions
of the circular P5(R1) which lays down the criteria for
admission to Grade 1 of Government Schools specially
regarding the matters pertaining to residence. The main
thrust of the Petitioners application is that on the basis of
residence they are entitled to have the 3rd Petitioner admitted
to the school.
Clause 6.1 sets out that 50% would be admitted on
the basis of “Children of residents in Close Proximity to the
School”. The said Clause 6.1 comprises four sub-clauses I, II,
III and IV. under I – “Titled residence”, the electoral lists are
taken into account and a maximum of 35 marks is allocat-
ed on the basis of 7 marks per year from the year prior to
admission and the previous continuous fve years.
under Sub-Clause II – “Documents establishing residence”
a maximum of 10 marks is given if the Ownership Deed is in

162 Sri Lanka Law Reports [2011] 1 SRI L.R.
the name of the Applicant or the spouse and within brackets
it is stated as Transfer/Gift. If the Deed (Transfer/Gift) is in
the name of the Applicant’s or spouses father or mother, 6
marks are allotted.
It also stated that documents under the Buddhist
Temporalities Ordinance can be accepted according to the
area, and further that Folios and Duplicates can also be
considered.
Registered lease deeds and Government Offcial Quarters
Documents would be allotted 4 marks and unregistered lease
deeds would be allotted 2 marks.
under Sub – Clause III – “ Other Documents establishing
residence” – A maximum of 5 marks is allotted on the basis
of 1 mark for each document for documents such as National
Identity card, Electricity bills, Water bills, Telephone bills,
marriage certifcates, etc.
under Sub-Clause IV – “Proximity to School from
Residence” – under this a maximum of 50 marks is allotted on
the basis that if there are no other government schools having
primary sections between the residence and the school that
the child is sought to be admitted. If there are other schools
in between where the child could be admitted, 5 marks to be
deducted for each school.
The Respondents have produced document R2 along
with their objections, which is a copy of the document which
had been used by the School at the Interview which sets out
the manner in which marks have been allotted. The said
document is divided into four cages according to Clause 6.1
I to IV of the aforesaid Circular.

Geethika And Two Others V. Dissanayaka And Five Others
SC (Suresh Chandra J.) 163
According to the said document R2, 35 marks have been
allocated under Clause 6.1 – I for the electoral Lists that had
been produced as the names of the Petitioners have been
registered at the address given by them as their residence for
the years 2005 to 2009 continuously. It is also signifcant to
note that the names of the 1st and 2nd Petitioners as well as
the name of “kariyawasam uluwita Gamage kusumalatha”
the mother of the 1st Respondent is also included as being at
the same address.
No marks have been allocated under 6.1 – II regarding
documents relating to the residence. In this cage, the neces-
sary documents are listed as 1,2, 3 and 4. In the category 2,
which is “In the name of the Applicant’s mother or father”
for which 6 marks can be given, in the column set apart for
“maximum marks” a “?” mark has been put, and the word
“mother” has been underlined.
under Sub-Clause 6.1 – III, 02 marks have been given
on the basis of other documents establishing the residence.
It is not quite clear as to the documents for which the 02
marks have been allocated, and it appears that out of the fve
documents stated in R2, namely, National Identity card, Tele-
phone bills, Water bills, marriage certifcate, driving license
or other, only water bills have been ticked off.
under Sub-Clause 6.1 – IV, regarding proximity to school
from the residence, the fgures “06” have been put within
the cage stating this category and under the marks allotted
column the fgures “20” within brackets have been written
and struck off with an oblique stroke of a pen and on the side
it is written in Sinhala as follows:” Since there is no deed no
marks can be given regarding schools.”

164 Sri Lanka Law Reports [2011] 1 SRI L.R.
An examination of the said document shows that below
the cage setting out the above mentioned particulars regard-
ing the residence and marks, there is a legend “Full marks
obtained:” and alongside that the following “…….. (in words).
There is no entry alongside “Full marks Obtained” nor is
there anything written in words. However, at the right edge of
the document which is below the cage set out for marks the
fgures “37” is written.
A further observation regarding Document R2 is that on
the left hand margin of the document the word “kusumal-
atha” is written in Sinhala in ink, which is the name of the
Applicant’s mother as has been revealed in the petition and
the documents produced. Further it is also stated in Sinhala
in that margin in Sinhala that “there is no deed” and also the
words “National” and “Documents” in Sinhala.
A consideration of Clause 6.1 of the Circular (R1) shows
that the main consideration for selection of children under
the category of “Children of those who are residing close to
the School”. Would be the Applicant’s place of residence. The
relevant indices or criteria that are to be taken into account
regarding the establishing of same are set out in 6.1 – I – IV
referred to above.
The main thread which runs through all four categories
is the concept of “residence”.
The ordinary meaning that is given to “residence” is “the
place where an individual eats, drinks, and sleeps or where
his family or his servants eat, drink and sleep. (Wharton’s
Law Lexicon).
Residence as envisaged by the said Circular would imply
a permanent abode which has been used for a continuous

Geethika And Two Others V. Dissanayaka And Five Others
SC (Suresh Chandra J.) 165
period. The manner in which 35 marks have been allotted
would indicate that the continuity in such residence should
be at least for a period of 5 years. Such residence does not
necessarily connote ownership as the circular speaks of
leases whether registered or unregistered being acceptable
for the purpose of establishing residence. Credence is also
given to the acceptability of other documents such as utility
bills, employment letters, bank documents, letters received
etc which would all serve as items establishing the genuine-
ness of the residence. Such documents if available for a long
period of time would indicate that they have been obtained
for the purpose of getting a residential qualifcation. Procure-
ment of such documents is sometimes referred to as “manu-
facturing” of documents. Care has to be taken in identifying
such “manufactured” documents from genuine documents.
Therefore interview panels should consider all the documents
that are submitted by a prospective applicant and assess
them carefully and see whether the cumulative effect of such
documents would establish the genuine residence of such
applicant.
According to Clause 6.1, 35 marks are given for the
electoral register Extracts which would seem to be the basic
and most important criterion and that the other documents
referred to in Sub-Clause 6.1 – II and III substantiate or
confrm the residence given in the electoral register extract.
Therefore, if the electoral register extracts have been accepted
and the entitlement of full marks (35) have been given, there
is no reason as to why such an applicant cannot get marks
under Sub-Clause 6.1 – IV which is 50 marks less 5 marks
for each school from the residence to the school applied.

166 Sri Lanka Law Reports [2011] 1 SRI L.R.
In R2 the interview sheet, under the category for
other schools, the fgure “6” being entered is signifcant,
which would mean that there are six other schools between
the residence and the relevant school for which 30 marks
would be deducted and the applicant would be entitled to 20
marks. This is apparently the reason why the fgures “20”
have been entered in R2 within brackets and for some reason
best known to the Interview Panel has been struck off with
an oblique stroke and with the note “not entitled to marks as
there is no valid deed”.
It is my view that, once marks are given under Clause
6.1 for the Electoral Register Extracts which satisfed the
criterion of “residence”, then such an applicant is entitled to
marks under Clause 6.1 – IV. Therefore accepting the fact
that 20 marks could have been given as is seen in R2, to
deprive the petitioner of such marks is incorrect and they are
entitled to 20 marks on that score.
The Petitioners had also submitted several other
documents, among which the relevant documents were the
National Identity Cards and Telephone Bills which were in
the name of the 2nd Petitioner, Child Health Development
Record, Bank statements, documents regarding employ-
ment which refer to the residence of the petitioner etc. The
other utility bills such as electricity and water were in the
name of the mother of the 1st Petitioner, kusumalatha. The
documents that can be considered under Clause 6.1-III are
not confned to the fve documents listed therein, it refers to
other documents without mentioning the type of documents.
It is left to the interview Panel to consider other relevant
documents. They cannot rule out those documents just
because they are not listed in the relevant Clause. What is
necessary to be seen is as to whether such documents can

Geethika And Two Others V. Dissanayaka And Five Others
SC (Suresh Chandra J.) 167
be considered to confrm the residence of the Applicants.
In such circumstances important documents such as the
child’s health development record, and the letters regard-
ing their employment should have been considered. Only 2
marks had been given under this category whereas according
to the documents produced, even if the other documents are
disregarded, for the two national identity card, the telephone
bill and the health record marks should have been given. I
am of the view that at least 4 marks should have been given
under this category.
The other matter that requires consideration is the
documents produced as P17 which is a document issued
by the National Housing Development Authority on 1st June
2004 in favour of “k. u. P. kusumalatha”, which states that
the said premises has been conveyed to her. According to the
Affdavit tendered as P16 she is the mother of the 1st
Petitioner. According to Clause 6.1, the documents listed
are Transfer deeds, Gift deeds, Leases both registered and
unregistered and government quarters documents. Would it
mean that the document P17 cannot be considered to satisfy
the criterion of residence, just because it is a letter and not
a deed? From the documents that are to be considered in
the circular, what is important is the establishing of the
“residence” and not ownership. In effect the writing of the
name “kusumalatha” in R2 is indicative of the fact that the
Interview Panel’s attention had been drawn to P17.
On the face of it, P17 is not a deed which confers
ownership of a premises. However, it is a document issued by
the National Housing Development Authority relating to the
particular residence wherein the petitioner’s mother
kusumalatha is residing. If the deed of a parent of an

168 Sri Lanka Law Reports [2011] 1 SRI L.R.
applicant, and if a registered or unregistered lease docu-
ment can be considered in favour of an applicant to establish
residence, I see no reason as to why P17 cannot be consid-
ered, a reading of which clearly indicated that kusumalatha
would be given the said premises, which certainly goes to
establish her residence at the said address, as well as its
legitimacy. When the appeal was considered, the Petitioners
had submitted P22 which was a confrmation of P17 issued
by the National Housing Development Authority. In the said
circumstances the Petitioners are entitled to get marks for
P 17 and since it is in the name of the mother of the Petitioner
it should entitle the petitioner to get 6 marks.
In Haputhantirige and others v. Attorney General, the
question of residence and ownership was looked into by
this Court in relation to a previous circular by the minis-
try of Education and it went on to note certain instances
where there have been large amounts of “manufactured
deeds” shown as evidence of ownership when entering chil-
dren into government schools. It was further noted that
in circumstances such as where a property was inherited
from a parent who had died and testamentary proceedings
were not concluded or where instances of co-ownership or
prescriptive possession could not be proven by title deeds
people in such circumstances who would be considered
owners of the property would not be allocated marks
according to the marking scheme. It is clear that the interview
panel should always have to look at the establishment of
evidence to prove residence and consider the totality of what
has been put forward as evidence by a parent to establish
evidence rather than only carrying out an exercise of ticking the
relevant box in relation to the specifed documents mentioned
in the circular alone. It has to be noted that such arbitrary