015-SLLR-1984-V1-THIYAGARAJAH-v.-SHAHUL-HAMEED-AND-TWO-OTHERS.pdf
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Sri Lanka Law Reports
11984] 1 SnL.R.
THIYAGARAJAH
v.
SHAHUL HAMEED AND TWO OTHERS
COURT OF APPEAL.
L. H. DE ALWIS. J. AND MOONEMALLE, J.
C. A. 518/82-D. C. MATALE L/2999
OCTOBER 17, 18, 19, 20, 24, 25, 26.27. 28. 1983 ; NOVEMBER 7, 8, 9, 10, 11,14. 17, 18, 1983, DECEMBER 8 and 9, 1983.
Inerim Injunction to restrain structural alterations-Notice issued without enjoiningorder-Pending inquiry respondents restore premises 10 former condition
Contempt of Court, sections 792 and 793 of Civil Procedure Code read with Article105 (3) of the Constitution.
The 1st defendant-respondent was the tenant of premises No. 128, TrincomaleeStreet. Matale. On the 4th of February, 1982, he made certain structural alterations tothe ©of and parts of the building.
The petitioner who was landlord instituted this action in the District Court of Matale on9.2.82, seeking inter alia, a declaration that the contract of tenancy had beenterminated by operation of law on account of the destruction of the premises by the 1 strespondent, for ejectment and damages and also for an interim injunction restraininghim from further demolishing or destroying the said premises and/or erecting anyunauthorised structure thereon until the final determination of the action.
On 9.2.82, the learned District Judge issued notice of the interim'injunction andsummons on the 1 st respondent
The 1st respondent filed objections^ to the application for the interim injunction andinquiry into the application, and answer were fixed for 16.2.82
Inquiry into the application for an interim injunction was re-fixed for 30.3.82. The 1strespondent filed answer wherein he sought permission to restore the roof to its originalcondition.
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When the inqdlry was still pending the 2nd and 3rd respondents at the instance of the1 st respondent worked hurriedly on 1.3.82 and restored the building and replaced theroof to its original position. The petitioner took out a commission and obtained a reportthat all additional structures that the 1st respondent had made in the premises on4 2.82 had been removed and the roof replaced.
On 30.3.82 when the trial and inquiry were taken up in Court, the Attorney-at-law forthe 1st respondent gave an undertaking that no further damage will be caused to thepremises, until the determination of the inquiry. The Court accordingly entered aninterim injunction in terms of paragraph 5 of the prayer to the plaint.
The petitioner moved the Court of Appeal under Article 105 (3| of the Constitutionread with sections 792 and 793 of the Civil Procedure Code to deal with therespondents for contempt of Court.
Held –
Unless an enjoining order or injunction had been issued, the respondents wereunder no duty to maintain the status quo until the determination of the action and nocontempt of Court had been committed by the respondents on 1.3.82 in restoring thepremises to ns former condition while the inquiry into the application for an interiminjunction was pending before Court.
The restoration of the premises to its original state on 1.3.82 did not interfere withthe function of the Court in ascertaining the truth, nor was it an obstruction to the
' administration of justice in the circumstances of this case. The acts of the respondentsdo not constitute an abuse of the process of Court and do not amount to a contempt.
Cases referred to
Gnanamuttuv. ChairmanU. C. Bandarawela. (1942) 43 N.L.R. 366.
Silva v Appuhamy. (1899) 4 N.L.R. 178.
Daniel v. Ferguson. (1891)2 Ch. 27.
Van Joel v. Hornsey. 65 L.J. Ch. 102 : (1896) 2 Ch. 774.
Joseph v. Asst. Excise Commissioner and others. A IR. [1953)Travancore – 145.
Ouseph Ouseph v. Minister for Food Travancore Cochin, A.I.R. (38) .[1951]Tra. – Cochin. 226(2).
Sheeraj v. Batra. AIR [ 1955] Allahabad 638.
A. G. v. Times Newspapers Ltd. [1973] 3AUE.R. 54H.L.
Raymond v. Honey [1981] 2 All E.R. 1084.
Re Brambievale Ltd.. [1969] 3 All E.R. at 1064.
Hewamanne v. Manik de Silva and The Associated Newspapers of CeylontLtd.S. C. 2/83 (Sp) Rule 1/83. Supreme Court Minutes of July 1983.
APPLICATION under sections 792 and 793 of the Code of Civil Procedure read withArticle 105 (3) of the Constitution.
H. W. Jayewardene. Q.C., with A. K. Premadasa and D. S. Wijes'mghe tor thepetitioner.
Dr. Colvin R. de Silva with M. MousoofDeen for the respondents.
Cur. adv. vult.
wo
Sri Lanka Law Reports
[1984] ? SriLR.
February 10, 1984.
L. H. DE ALWIS, J.
A brief narrative of the events in their chronological order that led tothese proceedings for contempt of Court, is necessary.
Premises No. 128, Trincomalee Street, Matale. belong to thepetitioner, and the 1 st defendant-respondent has been the tenantof these premises for the past twenty odd years, paying a monthlyrental of Rs. 52/92. The 1st respondent is carrying on a hardwareshop in these premises. The 2nd and 3rd respondents are his sons.On the 4th of February, 1982, the 1 st respondent removed the frontportion of the roof of the premises and raised the central pillar andthe southern wall by 2 1/2 feet in order to construct a new roof withasbestos sheets in place of the old Sinhala tiles. The reason hegave was that the roof timber had decayed and on 3.2.82, a beamcracked and the roof caved in. He was advised by a carpenter toreplace the roof timber and he decided to put in asbestos sheets.The premises originally consisted of 2 units numbered 126 and 128and the common wall separating them had been removed and theywere converted into one premises numbered 128. On the 4th ofFebruary, the 1 st respondent also replaced some of the timber ofthe door frames which gave entrance to the shop as they too werefound to be decayed. He further constructed a curb wall of about afoot in height across the entrance to the shop for the purpose, healleged, of preventing rain water flowing into the shop which wason ja slightly lower elevation than the adjoining road.
The petitioner carries on a business at No. 363, TrincomalfeeStreet, about a 1/4 mile away from the 1st respondent’s premisesahd on seeing the alterations being carried out in premises No. 128by the 1st respondent he went to the Matale Police Station at10.25 p.m. that night and made a complaint marked 'X' againstthe 1st respondent. He also sent a telegram P 2, followed by aletter P 33, to the 1st respondent asking him to stop theunauthorised building alterations in the premises. Police Constable8483 Karunaratne of the Matale Police went for inquiry the next dayand after making observations at the premises, ordered the 2ndrespondent who was present, to stop further work.
On 5 2.82, the petitioner obtained the services of aphotographer, Chandrasekaram, to take photographs Y 1 to Y 3 ofthe premises that day, showing the front portion of the roof
CAThtyagarajah v. ShahulHameed(L. H. de Alwis, J)J07
completely removed and the central pillar and southern wall or thewall on the right side of the building raised by 2 1/2 feet. On thisevidence he instituted action No. L/2999, in the District Court ofMatale on 9.2.82, seeking, inter alia, a declaration that thecontract of tenancy had been terminated by operation of law onaccount of the destruction of the premises as aforesaid by the 1 strespondent, for eiectment and damages and also for an interiminjunction restraining him from further demolising or destroying thesaid premises and/or erecting any unauthorized structure thereonuntil the final determination of the action (vide plaint P1).
On 9.2.82, the learned District Judge issued notice of the interiminjunction and summons on the 1st respondent returnable on
Notice and summons were served on the 1st respondenton that day itself. On the same day, 9.2.82, the 1st respondentsubmitted a building plan for effecting certain structural alterationsto the said premises, to the Municipal Council of Matale, withoutthe knowledge or consent of the petitioner.
On 11.2.82 the 1st respondent appeared in Court in answer tothe notice and summons and filed objections to the application forthe interim injunction. Inquiry into the application was fixed for
and the same date was given for filing the answer.
On 12.2.82, the petitioner made an application to Court for theissue of a commission to Licensed Surveyor and Valuer S.Ranchagoda to report on and value the damage caused to thepremises on 4.2.82. The Commissioner duly inspected the saidpremises in the presence of both the petitioner and 1st respondenton 13.2.82 and tendered his report (P 9) to Court on 15.2.82,confirming that the front portion of the roof and the door frameshad been removed ; that a short wall of bricks one foot high and 24feet long had been constructed where the door frames stood ; andthat the central pillar and the southern edge of the wall had beenraised by 2 1/2 feet.
Answer was filed on 16.2.82 and inquiry into the application foran interim injunction was postponed on that day for 30.3.82. Atparagraph 20 of his answer the 1st respondent requested thepermission of the District Court to restore the roof to its originalcondition. On 17.2.82, the 1st respondent made an application tothe Rent Board of Matale, for permission to re-erect the structures
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that were demolished by him. The Chairman of the Rent Boardnoticed the petitioner to be present at an inspection to be held byhim bn 24.2.82 at 3.45 p.m., but the petitioner through hisAttorney-at-Law replied by letter refusing to attend, as the matterwas sub judice.
The main complaint of the petitioner on which the presentapplication for these contempt proceedings is founded is thatalthough the inquiry had been postponed for 30.3.82, and waspending in Court, the 1st, 2nd and 3rd respondents with theassistance of a large number of labourers worked hurriedly day andnight on 1.3.82 and demolished the curb wall that they hadconstructed, reduced the height of the central pillar and southernwall by 2 1/2 feet and replaced the roof to its original position. Thephotograph P 17 taken of the premises on 2.3 82 shows thepremises as they were in their original state. The petitionerobtained re-issue of a commission from Court to Mr. Ranchagodaon 17 3.82 to report to Court on the damage caused to thepremises on 1.3.82. The Commissioner inspected the premises on23-.3.82 and made his report P 19 on 24.3.82. It reveals that allthe additional structures that the 1 st respondent had made in thepremises on 4.2.82 had been removed and the roof replaced.
On 30.3.82, when the trial and inquiry were taken up in Court,the Attorney-at-Law for the petitioner submitted that he applied foran interim injunction because the 1 st respondent had broken downthe roof and wall of the premises in suit. The Attorney-at-Law for the1 st respondent gave an undertaking that no further damage will becaused to the premises, until the determination of the inquiry. TheCourt accordingly entered an interim injunction in terms ofparagraph 5 of the prayer to the plaint.
On 1.3.82 it was the 2nd and 3rd respondents who were presentin the premises and supervised the restoration operations in theabsence of the 1 st respondent who had gone to Colombo to meethis creditors. The 1 st respondent however admitted that the workwas done at his instance. The petitioner has now invoked the powerof this Court under Article 105 (3) of the Constitution read withsections 792 and 793 of the Civil Procedure Code to deal with therespondents for contempt of Court in respect of the mattersmentioned in the prayer to the petition. Summons in Form 132 ofthe Civil Procedure Code was issued and served on the
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respondents ^nd the matter has come up for inquiry. To avoidrepeating the matters referred to in the prayer to the petition I shallreproduce in toto the contents of the summons that was issued bythis Court in Form No. 132 under section 793 of the CivilProcedure Code, which provides for summary procedure in respectof contempt of Court.
The summons reads as follows
"WHEREAS your attendance is necessary to answer to acharge of contempt committed against the authority of theDistrict Court of Matale in that while the inquiry into anapplication for an interim injunction in D. C. Matale, Case No.L/2999 was pending before the said Court, you have on or about1.3.1982,
demolished part of premises bearing assessmentNo. 128, Trincomalee Street. Matale :
erected and/or carried out building operations in the said
premises ;
demolished and reduced by 2 1/2 feet the height of thesouthern wall of the said premises and of the central pillar inthe said premises, which said acts were calculated ;
to anticipate and forestall the Order and Judgment ofthe District Court of Matale at the inquiry and trial which hadbeen fixed for 30.3.1982. and to prevent a just and fairhearing of action No. L/2999 in all its stages ;
(u) to prejudice, interfere with or obstruct the fairhearing, the due course of justice and the authority of theDistrict Court of Matale and was in abuse of the process ofCourt and in breach of the duty owed to maintain the statusquo in respect of the said premises till such time as the Courtmade an Order and/or delivered Judgment in respectthereof". I
I must confess that a great deal of the evidence led in theseproceedings relating to the events preceding 1,3.82 is irrelevant tothe matter of the contempt of Court under consideration, although
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learned Counsel maintained that it was material. This Court wasthus constrained to- record the evidence. For instance, whether ornot the alterations to the premises were carried out on 4.2.82 withthe prior consent of the petitioner or not is not relevant to the issueof the contempt alleged to have been committed on 1.3.82. I donot propose to express any view on the matter of the consent andcertain other matters as they will have to be considered andadjudicated upon in the main action in the District Court. I shallconfine my attention only to those matters that have a bearing onthe charges of contempt of Court referred to in the summonsissued by this Court, on the respondents, in respect of the actsalleged to have been committed on 1.3.82. The summons itselfexpressly charges the respondents with doing certain acts on
There is no dispute that on 1st March, 1982, the inquiryinto an application for an interim injunction in D.C. Matale Case No.L/2999, was pending. That is borne out by the proceedings and bythe subsequent undertaking given by the respondents in Court on
when the inquiry was taken up for hearing.
It will be noted that no enjoining order or interim injunction issuedby the District Court was in operation on 1.3.82. The question ofthe respondents acting in disobedience to any order of the DistrictCourt therefore does not arise for consideration. The complaint ofthe petitioner, as stated earlier, is that the respondents restoredthe premises to its former condition while the inquiry into theapplication for ah interim injunction was pending before the Court,and that it amounted to a contempt of the Court. Learned Queen'sCounsel for the petitioner himself submitted that the question fordetermination is whether the conduct of the respondents on
was in contempt of Court. I
I shall now refer to the acts complained of in the summons whichare alleged by the petitioner to amount to a contempt of Court. Dr.de Silva, who appeared for the respondfents, submitted that thecharge refers to several acts of contempt and lacks clarity andunambiguity. For instance he submitted that "to forestall" is onething while "to prevent a just and fair hearing of the action" isanother thing. I am of the view that the charge gives therespondents sufficient particulars of the acts of contempt alleged tohave been committed by them and have not misled or prejudicedthem.
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Thiyagarajah v. Shahul Hameed (L. H. deAlwis, J)
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Count (1) of the charge is that the respondents demolished a partof premises bearing assessment No. 128, Trincomalee Street,Matale. All the charges relate to the work done in the premises on.
According to the petitioner himself all that the respondentsdid on 1.3.82 was to demolish the short curb wall that theythemselves had built; reduce the height of the southern wall andcentral pillar by 2 1/2 feet which they had raised ; and to replacethe roof which they had removed, in order to restore the premisesto their original condition. What the respondents did was to removethe alterations they had themselves effected to the premises on
and replace the roof. They had merely restored thepremises to their original state. In short, they undid what they haddone in the premises on 4.2.82. No damage to or demolition ofthe premises had taken place on 1.3.82.
Count (2) states that they erected and/or carried out buildingoperations in the said premises. The building operations are thosereferred to above in count (1) and had for their object therestoration and not the destruction of the premises in suit. Per se,they constitute no offence, except, as alleged, in relation tosub-Paragraph (i) and (ii) of charge (3) which I will deal withpresently.
Count (3) specifies the particular acts done by the respondentswhich are alleged to amount to a contempt of Court by reference tosub-paragraphs (i) and (ii). Count (3) omits any reference to theremoval of the 1 foot high curb wall constructed by the respondentsand the replacement of the roof. However if the intention of thepetitioner was that the matters alleged in sub-paragraphs (i) and (ii)refer to all the 3 charges, then they would relate to the two itemsalso which are omitted in count (3).
The question now is whether doing the items of work referred toin the charges amounts to a contempt of Court. For the sake ofconvenience I shall enumerate them as follows
Demolish and reduce by 2 1/2 feet the height of the southernwall.
Demolish and reduce by 2 1/2 feet the central pillar.
Demolish and remove the 1 foot high and 24 feet long curbwall constructed by the respondents.
Replace the front portion of the roof of the premises.
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[1984] 1 SnLR.
It is not the petitioner's case that this work was Carried out indisobedience to an interim injunction issued by Court. For noenjoining order or interim injunction had been issued by Court bythat date. An interim injunction was sought by the petitioner fromthe District Court in terms of paragraph (5) of the prayer to theplaint and is as follows ;
'For an interim injunction restraining the defendants fromfurther demolishing or destroying the said premises and/orerecting any unauthorised structure thereon until the finaldetermination of this action’. It was issued only on 30.3.82.
The petitioner may have been unaware of what the respondentswere doing in the premises behind the barricade of planks shown inphotograph Y1. But it was quite, evident that the roof had beenremoved and the central pillar and southern wall had been raised.That was done for the purpose of constructing a new roof withasbestos sheets. The structure was unauthorised because the newroof would have violated the street line regulation. In fact thebuilding alteration application P 22 submitted to the MunicipalCouncil was refused for this reason. When all efforts to get thepermission of the local authority failed and since the petitionerobjected to any alteration of the premises and the rains wereimminent, the respondents, in order to protect their stock-in-trade,removed the alterations they had effected and restored the buildingto its original state, nay, to a better condition, as the evidencediscloses. They had replaced the decayed timber of the roof andthe door frames with new timber.
The petitioner's case is that the acts set out above whichconstitute the three charges in the summons were done while theapplication for the interim injunction was pending and werecalculated
(i) 'To anticipate and forestall the Order and Judgment of theDistrict Court of Matale, at the inquiry and trial which hadbeen fixed for 30.3.82 and to prevent a just and fair hearingof action No. L/2999 in all its stages :
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(ii) To prejudice, interfere with or obstruct the fair hearing, thedue course of justice and the authority of the Distict Court ofMatale and was in abuse of the process of Court and inbreach of the duty owed to maintain the status quo inrespect of the said premises till such time as the Court madean Order and/or delivered judgment in respect thereof.”
The application for an interim injunction in terms of paragraph (5)of the prayer to the plaint, was allowed only on 30.3.82. In otherwords on 1.3.82 when the acts referred to above were committedthere was no interim injunction in operation but only an applicationfor one pending in the District Court. It is on this basis that thecontempt proceedings have been brought. There can therefore beno disobedience to any interim injunction issued by Court, on thatday.
Learned Queen's Counsel for the petitioner contended that theacts committed on 1.3.82 in the premises, at the instance of the1 st respondent, were intended to efface evidence of the wrongfulacts done on 4.2.82 and constituted an attempt to forestall theorder and judgment of the District Court, at the inquiry into theapplication for an interim injunction and the trial of the main action.
The authorities relied on by learned Queen's Counsel however donot support his contention. In Gnanamuttu v. Chairman U.C.Bandarawela {1) an interim injunction restraining the 1strespondent from discontinuing the petitioner’s water supply hadalready been issued by the District Court and the Supreme Courtfound that the telegram notifying the 1 st respondent of the issue ofthe interim injunction had reached him before he disconnected thewater supply and that therefore he was guilty of contempt. In Silvav. Appuhamy (2) too. an injunction had been granted anddisobedience to it was held punishable even though it had beenirregularly issued. In the present case there was no disobedience toan interim injunction issued by the District Court, on 1.3.82
In Daniel v. Ferguson (3) the defendant, in an action to restrain ■him from building so as to darken the plaintiff’s lights, uponreceiving notice of a motion for injunction, put on a number of extramen and by working night and day ran up his wall to a height ofnearly 40 feet before receiving notice that an ex parte interiminjunction had been granted. In view of the defendant's conduct.
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The Court of Appeal upheld the order of the lower Court that thewall he had erected, be pulled down at once since he hadendeavoured to anticipate the action of the Court by hurrying on hisbuilding. See also Van Joel v. Hornsey (4).
In Joseph v. Asst. Excise Commissioner and others (5) the Courtendorsed what it said in Quseph Ouseph v. Minister for Food,Travancore, Cochin (6) as follows
' If a party, knowing that his opponent has either approachedthe Court or is taking steps to approach it for specific relief, doesanything to make the grant of the relief, by way of prevention,ineffective, the Court has always jurisdiction to pass orders evenin ordinary cases, in a mandatory form, and to direct therestriction of the status quo ante in the manner and to the extentpossible'.
In such cases the power of the Court is restricted to the issue ofmandatory orders only since there has been no disobedience to anorder of Court. In these latter cases no notice of the issue of theinterim injunction had reached the defendant. Hence no action forcontempt for disobeying the orders of Court could be taken. Insteadthe Court issued a mandatory order to undo what the defendanthad done hurriedly.
In the present case no interim injunction had been issued byCourt before 1.3.82, but only notice of the application for one hadbeen served on the first respondent. In these circumstances, in myview, no contempt of Court has been committed by therespondents in what they did on 1.3.82 and, even if it were with aview to forestalling or anticipating the order or judgment of theDistrict Court, the only order the Court could make was to issue amandatory order. But that is out of the question, because it wouldonly result in the removal of the roof and cause more damage to thepremises if they were left exposed to the elements.
Learned Queen's Counsel for the petitioner next submitted thatthe function of the Court is the ascertainment of the truth in a casebut the respondents had obstructed and frustrated this object bydestroying the evidence of their unlawful acts by their conduct on
They had also prevented the Court from ascertaining thetruth by rendering an inspection of the premises after 1.3.82, futile.
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Thiyagarajah v, Shahul Hameed jL. H. de Alwis, J.)
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In Sheeraj* v. Batra (7) the D.S.P. prevented the Policeinvestigation .into an applicant's report about an offence by sendinga forged application for its withdrawal to the Magistrate. It was heldto amount to an interference with the course of justice andpunishable as a contempt of Court.
In ,4.6. v. Times Newspapers Ltd. (8) which concerned apublication of legal proceedings, Lord Diplock was of the view that' the due administration of justice requires first that all citizensshould have unhindered access to the constitutionally establishedCourts of criminal and civil jurisdiction for the determination ofdisputes as to their legal rights and liabilities.'
In Raymond v. Honey (9) it was held that the petitioner who was aprisoner had a right to unhindered access to the Courts, and an actwhich prejudiced that right or obstructed or interfered with the duecourse of justice or with lawful process was contempt. In that casethe Governor of the prison stopped certain documents and anaccompanying letter of the prisoner-petitioner constituting anapplication to commit the Governor for contempt: This amountedto conduct calculated to prejudice the requirement that a citizenshould have direct access to the Courts and the Governor wastherefore guilty of contempt.
These cases are not applicable to the facts of the present case.The respondents at no time sought to conceal what they weredoing in regard to the alterations in the premises on 1.3.82 or toobstruct the Court in ascertaining the truth of it. What they did on
is admitted by them and indeed there is the report of theCommissioner of Court who inspected the premises in regard to itscondition. It was therefore unnecessary for the Court to inspect thepremises to ascertain the truth of the case in view of the abundanceof evidence available in regard to the condition of the premises. Onboth occasions Police Officers had also visited the premises andmade observations. The version of the respondents is that since therains were imminent, they decided to replace the roof by restoringthe premises to their original state in order to protect theirstock-in-trade. Godage the carpenter who did the roof work saidthat as soon as he had finished, the rains came down. The
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petitioner alleged that the work was hurried through on 1.3.82since notice to quit had just been served on the 1st respondent inthe District Court action. In Re Bramblevale Ltd. (10) Lord Denning,M.R. said : ' Where there are 2 equally consistent possibilitiesopen to Court, it is not right to hold that the offence is provedbeyond reasonable doubt". It was held in that case that contemptof Court was an offence of a criminal character and must be provedwith such strictness as was consistent with the gravity of theoffence charged and the Court could not be said to be satisfiedbeyond reasonable doubt, that the appellant still had the books inNovember 1968, See also Gnanamuttu v. Chairman U.C.Bandarawela and another (supra). In view of the two equallyconsistent versions given by the parties for the hurried work, I donot think the requisite burden of proof has been discharged. I donot think that the restoration of the premises to their original stateon 1.3.82, interfered with the function of the Court in ascertainingthe truth or, was an obstruction to the administration of justice inthe circumstances of this case.
Learned Queen's Counsel next argued that the respondents hada duty to maintain the status quo until the determination of theaction, unless they obtained the permission of the Court to alter it.In my view, unless an enjoining order or injunction had been issued,the respondents were under no such duty. In the absence of suchan order, a party is at liberty to deal with his property as he wishes.But it must be noted that in the present case the respondents intheir objections did ask the District Court for permission to restorethe premises to their former state and to replace the roof.
There are also allegations in the summons that the respondentsprevented a just and fair hearing of the action in all its stages andthat they prejudiced, interfered with, or obstructed the fair hearing,the due course of justice and the authority of the District Court ofMatale. As pointed out earlier, there is nothing in their conduct on
to indicate that they obstructed or interfered with theadministration of justice. They merely restored the premises to theiroriginal, if not to a better condition. These acts did not affect thedignity or authority of the Court.
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Tbtyagarajah v Sbahu! Hameed {L. H. deAlwis. J)
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Absmg the .process of Court is explained by Aiyer in Law ofContempt, 1960, Gour, 2nd Edition at page 365 as, "a termgenerally applied to a proceeding which is wanting in bona tidesand is frivolobs, vexatious or oppressive Halsbury 4th Edition.Vol. 9, at paragraph 38, states in regard to abuse of process ingeneral : " The Court has power to punish as contempt any misuseof the Court's powers. Thus the forging or altering of Courtdocuments and other deceits of the like kind are punishable asserious contempts. Similarly, deceiving the Court or the Court'sofficers by deliberately suppressing a fact, or giving false facts, maybe a punishable contempt. Certain acts of a lesser nature may alsoconstitute an abuse of process as, for instance, initiating or carryingon proceedings which are wanting in bona fides or which arefrivolous, vexatious, or oppressive ". The acts of the respondentscommitted on 1.3.82 do not therefore constitute an abuse of theprocess of Court.
Halsbury 4th Edition, Vol. 9, page 3 referring to the differentkinds of contempts says : ” Contempt of Court may be classifiedeither as (1) Criminal contempt, consisting of words or actsobstructing, or tending to obstruct or interfere with, theadministration of justice or (2) contempt in procedure, otherwiseknown as civil contempt, consisting of disobedience to thejudgments, orders or other processes of the Court, and involving aprivate injury But later he says “ The'classification of contemptsas criminal or civil has become progressively less important and hasbeen described as 'unhelpful and almost meaningless- in thepresent day ", The distinction between criminal and civil contemptis no longer prevalent today.
The law applicable in this country in the case of contempt is theEnglish Law (Per Wanasundera, J. in the unreported case ofHewamanne v. Manik de Silva and the The Associated Newspapers
of Ceylon Ltd. (11) His Lordship went on further to say "
the law of contempt has now reached the stage when it has to beregarded as a separate branch of law carrying with it its ownprinciples and procedures *.
Aiyer in Law of Contempt 1960, Gour. 2nd Edition at page 18states that “ the law of contempt is not a codified law, as an act ofcontempt can adopt innumerable ways and methods which has
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rendered it impossible to give a satisfactory definition of the term.Every case of contempt will have to be carefully gone into todetermine whether the peculiar circumstances associated with itwarrant or justify contempt proceedings against the contemnerIn other words as Aiyer says elsewhere at page 222 ' Everythingdepends on the peculiar circumstances of each case, and,therefore, no hard and fast rule, as to what does or does notconstitute contempt of Court, could be laid down. I am consciousthat the categories of contempt are not exhaustive but learnedQueen's Counsel for the petitioner was unable to cite a singleauthority in support of his case in the present proceedings, norhave I been able to find any myself. I am therefore of the view thatthe acts complained of in the charges, which were committed bythe respondents on 1.3.82, do not constitute a contempt of theDistrict Court of Matale.
I accordingly dismiss the charges laid against the respondentsand acquit them.
Before I part with this record I wish to refer to several erasures,omissions and interpolations that were discovered in thestatements made by the petitioner Thyagarajah, marked 1 R5 andrecorded in the Matale Police Information Book at page 120,paragraph 118 under date 4.2.82 and in the statement marked
R8 and recorded in the Information Book at page 271 paragraph
under date 1.3.82. These erasures and interpolations appear tohave been made in contravention of Police Circulars or Regulationsand have not been authenticated by the author of them. Furtherthere are discrepancies between the original statements and thecertified copies of them, 1 R14 and 1 R15. issued by the Police. Itherefore direct that the Information Books along with certifiedcopies of 1 R14 and R15 and certified copies of the evidence givenin these proceedings by PC 8483 Karunaratne. PC 13460Wimaladasa, PS 6620 Bandara and IP Hapuarachchi be forwardedto the Inspector-General of Police, for any action he may deemnecessary to take in the matter.
MOONAMALLE, J.-t agree.
Charges dismissed. Respondents acquitted.