021-NLR-NLR-V-77-B.-M.-D.-PERERA-Appellant-and-TOWN-COUNCIL-MAHARAGAMA-Respondent.pdf
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Perera v. Town Council, Maharagama
Present : G. P. A. Silva, S.P.J. and Samerawickrame, J„M. D. PERERA, Appellant, and TOWN COUNCIL,MAHARAGAMA, Respondent
S. C. 9/69 (Special)—-D. C. Colombo, 2130/Z
Contempt of Court—Interim injunction preventing the carrying on of anunlicensed private market—Quantum of evidence necessary toshow that the injunction' was disobeyed.
The defendant-appellant was found guilty by a District Courtof the offence of contempt of Court for disobeying an interiminjunction restraining him from carrying on an unlicensed privatemarket on his premises.
Held, that before the appellant could be convicted there shouldbe positive proof that he was carrying on a market, supported byevidence such as his organizing a market, providing stalls for thetraders, charging rents for such stalls and having some controlor supervision over such a market.
G. P. A. SILVA, S.P.J.—Perera v. Town Council, Maharagama
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PPEAL from a judgment of the District Court, Colombo.
G. E. Chitty, Q. C., with G. E. Chitty (Jnr.), for the defendant-appellant.
Plaintiff-respondent absent and unrepresented.
March 31, 1971. G. P. A. Silva, S.P.J.—
The defendant in this case has been found guilty of a contemptof Court by disobedience to comply with an order issued by theDistrict Judge to the following effect : —
“ The plaintiff abovenamed has in the above styled actionfiled in this Court prayed for among others for an interiminjunction and/or enjoining order restraining you thedefendant abovenamed and your servants and agents andall persons claiming through or under you from carryingon the private market referred to in his plaint and affidavit(copies of which are annexed) on the said premises withouta licence from the plaintiff until the final determination of* this action. -■
And whereas this Court after considering the plaint andaffidavit filed by the plaintiff and the submissions made bycounsel on that behalf, made order on 25.7.1969 to “ issuenotice of injunction and enjoining order accordingly for8.8.1969.”
You the defendant abovenamed, your servants and agentsand all persons claiming through or under you are thereforehereby enjoined from carrying on the unauthorised andunlicensed Private Market on premises No. 20, DehiwelaRoad, Maharagama, as referred to above until the finaldetermination of this action.
Herein fail not under the penalty of law ensuing. ”
Counsel for the defendant-appellant submits that the learnedDistrict Judge has misdirected himself, in the first place, inholding that the defendant was carrying on a market in thepremises in question. The evidence led on behalf of the partywho prayed for an injunction does not disclose that the defendanteither organized the market or charged any rent from anyparticular trader, or had any stalls or even allotted any spaceon the land on which the market is alleged to have been carriedon. In fact the evidence is to the contrary. The evidence rathershows that when the traders had some trouble with one CicyPerera, they walked into the defendant’s land and began to selltheir goods in his land; that there was no organiser orx‘ barakaraya ” there ; that there were no persons to collect any
130 G. P. A. SILVA, S.P.J.—Perera v. Town Council, Maharagama
money ; and that there were no sheds or buildings on the land.Although admittedly the land, on which the traders sold theirgoods, is the defendant’s land, the evidence led on behalf of thedefendant, through one K. Soloman, the Secretary of the Traders’Association, Maharagama, disclosed that the arrangements forthe laying of the goods were made among the traders themselves ;that it was uncertain whether the defendant was even presenton the occasion when such arrangements were made ; that nopayments were made by the traders, either to the defendantor to anybody else and that the defendant did not hold a “ pola ”,and this evidence would clearly go counter to any charge thatthe defendant was carrying on a market in this place.
In this state of evidence, without affirmative proof of anypositive act on the part of the defendant which shows that hewas carrying on a market, there is no warrant for holding thathe was carrying on a market either on the 26th of July, 1969, onwhich day the notice of the injunction is stated to have beenserved on him, or on any other day either prior or subsequentto this day in question.
The learned District Judge appears to have formed the viewthat the mere abstention on the part of the defendant fromtaking any steps to turn out those who kept their wares on thisland and sold them was sufficient proof of his carrying on amarket on this land. He says in the course of his judgment : —
“ In my opinion, the act of carrying on the fair does notrequire anything more than allowing one’s premises, ownedby one and occupied by one, to be used as a fair. Thedefendant could have certainly disallowed the traders fromholding the fair just as he had allowed them to do so. ”
This appears to us to ise a misdirection in view of the wordsof the injunction which enjoined him from carrying on a marketin the said premises. Before a person could be convicted of anyoffence of contempt for contravention of such an injunction ororder, there should, in our opinion, be positive proof that he wascarrying on a market, supported by evidence such as hisorganizing a market, providing stalls for the traders, chargingrents for such stalls and having some control or supervisionover such a market. In this case there is no evidence of anysingle one of these acts on the part of the defendant, and thefinding is therefore not supportable.
We accordingly allow the appeal and set aside the convictionand sentence imposed on the defendant-appellant by the learnedDistrict Judge.
Samerawickraivee, J.—I agree.
Appeal allowed.