006-SLLR-SLLR-2005-V-3-ARIYAPALA-vs.-SWARNAMALI-AND-ANOTHERS.pdf
Ariyapala VS Swarnamali Another
33
'cAr
ARIYAPALAVSSWARNAMALI AND ANOTHERCOURT OF APPEALSOMAWANSA, J. (P/CA) ANDWIMALACHANDRA, J.
CA 238/2004 (REV.).
DC COLOMBO 3533/RE.
JUNE 22, 2005.
Civil Procedure Code, section 325(1), 325(3), 325(4), 326(1), 327 and 329-Resistance to writ-Sections 325(1) and 325(4) applications are two differentapplications ? – Alternative remedy provided in section 329 – Does revision lie ?Evidence Ordinance, section 101 – Trust Ordinance, section 102 – Burden ofproof.
The fiscal was resisted by the claimant, and the judgment – creditor-respondentmade an application in terms of section 325(4). The judgment-creditor-respondent’s application (s. 325 (I)) was dismissed due to a defect in thepetition. The application of the claimant (S. 325(4)) was also dismissed andthe court ordered that the judgment creditor be placed in possession. Theclaimant moved in revision. The judgment creditor-respondent contended thatthere is an alternative remedy under section 329.
HELD:
Section 329 gives an alternative remedy to an aggrieved party. It is the dutyof court to carry out effectually the object of the statute.
Ordinarily court will not interfere by way of revision, particularly when thelaw has expressly given an aggrieved party an alternate remedy exceptwhen non interference will cause a denial of justice or irremediable harm.
Petitioners' claim that, the land belonged to the Ruhuna KataragamaDevalaya and it was leased out to him was not established. The burden ofproof was on the petitioner (claimant)
Applications made in terms of sections 325(1) and 325(4) are two differentapplications and an application in terms of section 325(4) could be maderegardless of an application in terms of section 325(1)
4- CM 7216
34
Sri Lanka Law Reports
(2005) 3 Sn L R.
Quarere:
"Could the petitioner take advantage of the dismissal of the respondent’sapplication that was dismissed due to a technical default when in fact the courtdid not consider the merits of the application.”
APPLICATION in revision from an order of the District Court of Colombo.Cases referred to:
Letchumi vs. Perera and Another (2000) 3 Sri LR 151
Rasheed Ali vs. Mohamed AH (1981) 1 Sri LR 262
Chinnathamby vs. Somasundera Aiyer (48) NLR 51 at 516
M. U. M. Ali Sabry with Ernha Kalkidasa for petitioner.
Mohan Peiris, P. C. with Widura Ranawaka for respondent.
Cur.,adv.vult.
November 11, 2005.
ANDREW SOMAWANSA, J. (P/CA)This is an application to revise and to set aside and/or vacate and/orvary the order of the learned Additional District Judge of Colombo dated
and to allow the application preferred by the respondent-.claimant-petitioner (hereinafter called the claimant) to the District Court ofColombo in terms of Section 325(3) of the Civil Procedure Code.
When the application was taken up for argument both counsel agreedto tender written submissions and they have tendered their writtensubmissions as well as further written submissions by way of reply.
The relevant facts are the judgment-creditor-petitioner-respondent-respondent (hereinafter called the respondent) instituted the instant actionagainst the judgment-debtor-respondent-respondent and obtained judgmentto eject him from the premises in suit. Thereafter when the Fiscal went toexecute the writ of possession the claimant resisted the execution of thewrit. Accordingly the respondent made an application in terms of section325(1) of the Civil Procedure Code. The claimant too claiming that he is inindependent possession of the premises in suit filed a written statementin terms of section 325(4) of the Civil Procedure Code.
Ariyapala VS Swarnamali Another (Somawansa, J. (P/CA))
35
;c ft
The respondent’s application in terms of section 325(1) of the CivilProcedure Code was dismissed due to a defect in the petition.Subsequently the claimant’s claim in terms of section 325(4) of the CivilProcedure Code was taken up for inquiry and the claimant’s claim too wasdismissed by the aforesaid order dated-27.01.2004. The learned AdditionalDistrict Judge having dismissed the claimant’s claim proceeded to act interms of section 326(1) of the Civil Procedure Code and has ordered thatthe respondent be put in possession of the premises in suit.
It is contended by counsel for the respondent that as there is analternative remedy provided for in section 329 of the Civil Procedure Codethe petitioner cannot have and maintain this action. I must say there ismerit in this argument for section 329 of the Civil Procedure Code reads asfollows:
“No appeal shall lie from any order made under section 326 or section
327 or section 328 against any party other than the judgment-debtor.
Any such order shall not bar the right of such party to institute an
action to establish his right or title to such property”.
It would also be pertinent at this stage to refer to section 326(1) of theCivil Procedure Code which reads as follows :
“On the hearing of the matter of the petition and the claim made, if anythe court, if satisfied-
that the resistance, obstruction, hindrance or ouster complained ofwas occasioned by the judgement-debtor or by some person at hisinstigation or on his behalf;
that the resistance, obstruction, hindrance or ouster complained ofwas occasioned by a person other than the judgment-debtor, andthat the claim of such person to be in possession of the property,whether on his own account or on account of some person otherthan the judgment-debtor, is frivolous or vexatious;or
36
Sri Lanka Law Reports
(2005) 3 Sri L R.
that the claim made, if any, has not been established
shall direct the judgment-creditor to be put into or restored to thepossession of the property and may, in the case specified inparagraph (a), in addition sentence the judgment-debtor or suchother person to imprisonment for a period not exceeding thirty days”
In the case of Letchumi vs. Perera and Another(,) it was held :
“S. 329 gives an alternative remedy to an aggrieved party. It is theduty of court to carry out effectually the object of the statute. Itmust be so construed as to defeat all attempts to do so or avoiddoing in a direct or circuitours manner that which has been prohibitedor enjoined.”
Also in the case of Rasheed AH vs. Mohamed AH{2) itwas held:
■ “The powers of revision vested in the Court of Appeal are very wideand the Court can in a fit case exercise that power whether or notan appeal lies. Where the law does not give a right of appeal andmakes the order final, the Court of Appeal may neverthelessexercise its powers of revision, but it should do so only inexceptional circumstances. Ordinarily the Court will not interfereby way of review, particularly when the law has expressly given anaggrieved party an alternate remedy such as the right to file aseparate action except when non-interference will cause a denialof justice or irremediable harm”.
It is also interesting to consider the observation made by the AdditionalDistrict Judge as to the documentary evidence produced by the petitionerto establish his case. The petitioner claims that he was in occupation ofthe land in suit since 1980. However as observed by the learned AdditionalDistrict Judge documents marked R 2 to R 10 that has been placed beforeCourt by the petitioner are all dated from the year 1988 onwards when theinstant action was instituted in 1979 and the judgment delivered in 1981. Itis also curious to note that extracts of the electoral lists show that thepetitioner’s name appears in that list after the year 1995. Considering theaforesaid facts it is to be seen that as the learned Additional District
ch
Ariyapala vs Swarnamali Another (Somawansa, J. (R/CA))
37
Judge has observed there is very strong presumption that the petitionerhas acted collusively with the judgment-debtor to prevent the respondentfrom taking possession of the premises in suit.
The petitioner has also led the evidence of the Administrative Officerand Divisional Secretary of the Ruhunu Kataragama Devalaya who testifiedthat Ruhunu Kataragama Devalaya had issued rent receipts to the petitionerand an officer of the Regional Office of the Department of Buddhist Affairshas testified to the fact that in 1988 the Commission has granted permissionto the Ruhunu Kataragama Devalaya to lease out the land in suit to thepetitioner. However it is to be seen that no document was placed beforethe learned Additional District Judge to establish the fact that the land insuit belonged to the Ruhunu Kataragama Devalaya.
In the case of Chinnathamby vs. Somasundera Aiyer(3) at 516, it was
observed:
“Plaintiffs obtained an order under section 102 of the Trusts Ordinanceappointing them' trustees of a Hindu Temple and vesting the temporalitiesin them. Thereafter the plaintiffs obtained an order against the 1 st defendantfor delivery of possession of the temporalities to them. Execution of theorder was resisted by certain persons who were not parties to the actionand who claimed the right to manage the temple. The plaintiffs thereuponfiled a petition under section 325 of the Civil Procedure Code and theirpetition was numbered as a plaint under section 327. The District Judgedismissed the plaintiffs’ claim on the ground that the plaint did not disclosea cause of action”.
In any event, Section 101 of the Evidence Ordinance reads as follows :
“Whoever desires any court to give judgment as to any legal right orliability dependent on the existence of facts which he asserts, must provethat those facts exist”.
When a person is bound to prove the existence of any fact, it is saidthat the burden of proof lies on that person.
38
Sri Lanka Law Reports
(2005) 3 Sri L R.
IllustrationA desires a court to give judgment that B shall be punished for acrime which A says B has committed.
A must prove that B committed the crime.
A desires a court to give judgment that he is entitled to certain landin the possession of B by reason of facts which he asserts, andwhich B denies to be true.
A must prove the existence of those facts.”
For the foregoing reasons I am not impressed at all with the argumentof counsel for the petitioner that since the respondent’s application hasbeen dismissed the learned District Judge erred when he ordered that therespondent should be restored to possession. Question arises as to whetherthe petitioner could take advantage of the dismissal of the respondent’sapplication that was dismissed due to a technical default when in fact theCourt did not consider the merits of the application. However as for theclaim of the petitioner it was decided on merit. One should also not forgetthe fact that applications made in terms of section 325(1) and section325(4) of the Civil Procedure Code are two different applications and thatan application in terms of section 325(4) could be made regardless of anapplication in terms of section 325(1).
' For the foreging reasons, I have no hesitation in dismissing thisapplication to revise the order of the learned Additional District Judge dated
Accordingly the application is dismissed with costs fixed atRs. 20,000.
Wimalachandra, J.—I agree.
Application dismissed.