068-SLLR-SLLR-2005-V-2-KARUNANAYAKE-vs-SANGAKKARA.pdf
CA
Karunanayake Vs. Sangakkara
Somawansa. J (P/CA)
403
KARUNANAYAKEVS.SANGAKKARACOURT OF APPEALSOMAWANSA J (P/CA)
WIMALACHANDRA. JCA 475/2002CA (PHC) 213/2001H. C. KANDY 21/2001PRIMARY COURT, KANDY 73143MAY 9, 2005.
Primary Courts Procedure Act. S66(2), S68, S69,A71, S72, S78-Administrationof Justice Law 44 of 1973 – 362-Can a Primary Court Judge summon witnessof his choice ex mero motu ? – Closure of case-Can the Primary Court Judgereopen case and summon a witness ?
The Primary Court Judge after having fixed the matter for order, withoutdelivering his order issued summons on the Grama Sevaka and anotherwitness and re-fixed the matter for inquiry. The respondent- petitioners movedthe High Court in Revision and the said application was rejected. On appeal tothe Court of Appeal –
The objective of the procedure laid down in the Primary Courtsprocedure Act is to do away with long drawn out inquiries anddeterminations to be founded on the information filed affidavits,documents furnished by parties.
There is no provision for the Judge to call for oral evidence of witnessesof his own choice. He cannot be permitted to go on a voyage of discoveryon his own to arrive at a decision when the parties have placed beforehim the material on which they rely and it is on this material that, he isexpected to arrive at a determination.
Per Somawansa. J (P/CA)
“If this procedure is to be permitted then S72 would become redundant. Itwill also be opening the flood gates for long drawn out protracted inquirieswhen the primary object was for the speedy disposal of the dispute that hasarisen”.
Appeal from the Provincial High Court of Kandy.
404
Sri Lanka Law Reports
(2005) 2 Sri L R.
Cases referred to :
Ramalingam vs. Thangarah 1982 2 Sri LR 693.
Kanagasabai vs. Mailvanaganam 78 NLH 280S. N. Vijithsingh for petitioners.
L. C. Seneviratne, P. C., with A. Dharmaratne for 1S1 and 200 respondents.
July 1,2005
Andrew Somawasa, J. (P/CA)
The petitioners-respondents initiated proceedings in the Primary CourtKandy seeking a declaration that they are entitled to the lawful possessionof lot 01 in plan No. 2019 and an interim order to evict the respondents-petitioners from the aforesaid land and premises and to place the petitioners-respondents in possession thereon. The learned Primary Court Judgegranted the interim order as prayed for by the petitioners-respondents.The respondents-petitioners objected to the said interim order but thelearned Primary Court Judge having considered the objections refused tovacate the interim order. Thereafter three others namely the two Casichettys’and one Heen Kumari Sangakkara Ranasinghe were also added asintervenient-respondents to the proceedings and they too filed theirobjections to the petitioner-respondent’s application. After the filing ofobjections and counter objections by way of affidavit by all parties alongwith their documents the learned Primary Court Judge fixed the matter fororder on 07.02.2000 on which day the Primary Court Judge withoutdelivering his order issued summons on the Grama Seva Niladhari and Y.L. Sumanaratne and re-fixed the matter for inquiry. Against the aforesaidorder dated 07.12.2000 the two Casiechettys’ filed a revision applicationin the High Court of Kandy and obtained an interim order in the first instancerestraining the Primary Court from proceeding further. However, after inquirythe learned High Court Judge by his judgment dated 30.08.2001 dismissedthe said revision application. From the aforesaid judgment of the HighCourt Judge the aforesaid two Casiechettys’ appealed to the Court ofAppeal and the said appeal is numbered CA(PHC) 213/2001.
CA
Karunanayake Vs. Sangakkara
Somawansa. J (P/CA)
405
In the meantime the original respondent-petitioner filed an applicationfor acceleration of the said appeal and this Court having considered thepoint in issue in appeal, made order that the application for acceleration ofthe appeal as well as the main appeal be heard together and all partiesagreed to tender written submissions by 13.12.2000 and the judgmentthereon was to be delivered by Amaratunga, J. on 16.01.2003 butunfortunately the judgement was never delivered. When this matter cameup before the present bench, parties called upon Court to deliver judgmenton the written submissions already tendered by them.
The substantial question that this Court is called upon to decide is thecorrectness and the validity of the decision of the learned Primary CourtJudge to summon the Grama Seva Niladhari and Y. L. Sumanaratne afterfixing a date for the delivery of the order in this case.
It is contended by counsel for the petitioners-respondents that as allparties to the instant action claim to have been ousted from possessionby other parties the desire to have independent as well as importantevidence on the question of possession prior to dispossession has led tothis decision to call the two witnesses. He further submits that thoughPart VII of the Primary Court Act has no specific provision giving the Judgethe right to call witnesses, the casus ommisu Section 78 of the PrimaryCourt Procedure Act permits this to be done having referred to the provisionsof the Civil Procedure Code with relevant adaptation. Therefore he submitsthat the decision of the Court to call the evidence of the Grama Sevakaand Y. L. Sumanaratne is permissible and valid.
The question whether the Primary Court Judge has the jurisdiction tosummon witnesses of his choice ex mero motu without stating the reasonsfor it when the evidence of such witnesses is already on record with theother reliable evidence to test its credibility and specially after he haddecided to give his order without calling for oral evidence and parties havingagreed to it has been aptly dealt by Sharvananda, J. as he then was in hisjudgment in Ramalingam vs. Thangarajah ']. Before I come to that decisionit would be useful to consider the relevant section that is applicable to theissue at hand Section 72 of the Primary Courts Procedure Act.
"A determination and order under this Part shall be made afterexamination and consideration of-
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(2005) 2 Sri L R.
the information field and the affidavits and documents furnished ;
such other evidence on any matter arising on the affidavits ordocuments furnished as the Court may permit to be led on thatmatter;
such oral or written submission as may be permitted by the Judgeof the Primary Court in his discretion.”
The objective of the procedure laid down in the Primary Court ProcedureAct is to do away with long drawn out inquiries and determination to befounded on the information filed, affidavits and documents furnished by theparties. With reference to the aforesaid Section 72 of the Primary CourtsProcedure Act, Sharvananda, J as he then was in Ramalingam vs.Thangarajah (supra) at 701 observed :
“The determination should, in the main, be founded on “theinformation filed and the affidavits and documents furnished bythe parties”. Adducing evidence by way of affidavits and documents,is the rule and oral testimony is an exception to be permitted onlyat the discretion of the Judge. That discretion should be exercisedljudicially, only in a fit case and not as a matter or course and nolibe surrendered to parties or their counsel. Under this section the;parties are not entitled^as of right to lead oral evidence.”
It was held in that case ;
“That where the information filed and affidavits furnished undeiisection 66 are sufficient to make a determination under Section68 further inquiry embarked on by the Judge was not warranteoby the mandatory provisions of Section 72 and are in excess o:his special jurisdiction”.
Counsel for the petitioners-respondents accept the position that Pan,VII of the Primary Courts Procedure Act has no specific provisions whicl:give the Judge the right to call witnesses. However, he submits as aforesaidthat the casus ommisus Section 78 would provide the procedure for suci:an eventuality to have recourse to the provisions in the Civil ProcedurCode. I am unable to agree with this proposition for the simple reason thsrt.
CA
Karunanayake Vs. Sangakkara
Somawansa. J
407
the inquiry being held in terms of Part VII of the Primary Courts ProcedureAct should not be made a protracted trial as in a civil court. As Section 72indicates, oral evidence is frowned upon and only permitted on mattersarising on the affidavit or documents furnished as the Court may permit tobe led on that matter. Clearly there is no provision for the Judge to call fororal evidence of witnesses of his own choice. He cannot be permitted togo on a voyage of discovery on his own to arrive at a decision when theparties have placed before him the material on which they rely and it is onthis material that he is expected to arrive at a determination. The learnedPrimary Court Judge as well as the High Court Judge has clearlymisunderstood the primary object of the Part VII of the Primary CourtsProcedure Act. In this respect, I would refer to the observation made bySharvananda, J as he then was in Ramafingam vs. Thangarajah (supra) at299:
‘The procedure of an inquiry under Part VII of the Act is suigeneris.The procedure to be adopted and the manner in which theproceedings are to be conducted are clearly set out in Sections66,71 and 72 of the Act. Section 66 (2) mandates that the specialjurisdiction to inqure into disputes regarding which informationhad been filed under Section 66(1) should be exercised in themanner provided for in Part VII. The proceedings are of a summarynature and it is essential that they should be disposed ofexpeditiously. The importance of a speedy completion of the inquirywhich culminates in the order under Section 68 or 69 is underscoredby the specific time-schedule prescrbed by the provisions of theAct.”
(2)
The case of Kanagasabai vs. Mailvanaganam considered Section62 of the Administration of Justice Law No. 44 of 1973 (now repealed) andthe observation made therein by Sharvananda, J. with reference to Section62 apply equally well to Sections 66 and 68 of the Primary Courts ProcedureAct which correspond to them.
“Section 62 of the Administration of Justice Law confers specialjurisdiction on a Magistrate to make orders to prevent a disputeaffecting land escalating and causing a breach of the peace. Thejurisdiction so conferred is a quasi-criminal jurisdiction. The primary
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(2CG5) 2 Sri L R.
object of the jurisdiction so conferred on the Magistrate is theprevention of a breach of the peace arising in respect of a disputeaffecting land. The section enables the Magistrate temporarily tosettle the dispute between the parties before the Court and maintainthe status quo until the rights of the parties are decided by acompetent civil Court. All other considerations are subordinated
to the imperative necessity of preserving the peace At an
inquiry under that section the Magistrate is not involved in aninvestigation into title or right to possession, which is the functionof a civil Court. The action taken by the Magistrate is of a purelypreventive and provisional nature in a civil dispute, pending finaladjudication of the rights of the parties in a civil Court. Theproceedings under this section are of a summary nature and it isessential that they should be disposed of as expeditiously aspossible”.
In view of the foregoing reasons my considered view is that the learnedPrimary Court Judge having closed the case and fixing the matter forjudgment erred in re-opening the inquiry and further erred in summoningtwo witnesses ex mero motu when there was no provision for such aprocedure.
It is to be seen that the learned High Court Judge in dismissing therevision application filed by the two Casiechettys’ has also failed to addresshis mind to the jurisdiction of the Primary Court Judge to call for furtherevidence ex mero motu and has erred in coming to a finding that thePrimary Court Judge was at liberty to call for further evidence if the evidenceon record is insufficient to determine the issue. I would say it is an erroneoussupposition of the learned High Court Judge when he observed : “Whatsteps primary Court Judge could take if he finds that he has no sufficientfacts to write the judgment other than to call for further evidence”. If thisprocedure is to be permitted in making a determination in terms of Part VIIof the Primary Courts Procedure Act then Section 72 of the aforesaid Actwould become redundant. It would also be opening the flood gates for longdrawn out protracted inquiries when the primary object of Part VII of thePrimary Courts Procedure Act was for the speedy disposal of the disputethat has arisen. Furthermore, it would permit the Primary Court Judge togo on a voyage of discovery on his own contrary to provisions in Section72 of the Primary Courts Procedure Act.
CA
Rathnayake vs. Wijewardana and Others.
409
For the foregoing reasons, I would allow the appeal and set aside thejudgment of the learned High Court Judge as well as the order of thelearned Primary Court Judge dated 07.12.2000 issuing summons on thetwo witnesses. I also direct the learned Primary Court Judge to make hisdetermination in accordance with the provisions of Section 72 of the PrimaryCourts Procedure Act. He is further directed to make his determinationand order as expeditiously as possible. The petitioners-appellants areentitled to costs fixed at Rs. 5,000-.
Wimalachandra, J. / agree.Appeal allowed.