COLOMBO INTERNATIONAL NAUTICAL & ENGINEERING COLLEGE (PVT) LIMITED (CINTEC

020-SLLR-SLLR-2008-V-1-COLOMBO-INTERNATIONAL-NAUTICAL-ENGINEERING-COLLEGE-PVT-LIMITED-CINTEC.pdf


SC Colombo International Nautical & Engineering College (Pvt) Limited (CINTEC) v 213
Kaduwela Pradeshiya Sabha, Kaduwela and three others
COLOMBO INTERNATIONAL NAUTICAL &ENGINEERING COLLEGE (PVT.) LIMITED (CINTEC)v
KADUWELA PRADESHIYA SABHA, KADUWELA ANDTHREE OTHERSSUPREME COURTRAJA FERNANDO, J.
SALEEM MARSOOF, J. ANDANDREW SOMAWANSA, J.
SC APPEAL NO. 37/200731 ST JANUARY, 2008
Civil Procedure Code – Prosecution for Contempt of Court for violation of a CourtOrder – Sections 792-800.
The petitioner filed an application in the Court of Appeal to punish the 5th to 23rdrespondents for Contempt of Court for the violation of the interim order dated 28thJuly, 2006 issued by the Court of Appeal.
On the 29th January 2007, the notice returnable date, the 5th to 23rd respondentspleaded not guilty to the contempt charges. Nevertheless, the Court of Appeal,instead of fixing the matter for inquiry had summarily dismissed the application forContempt of Court on the ground that the 5th to 23rd respondents were not partiesto the original application and therefore not bound by the said order dated 28th July,2006.
The Supreme Court granted Special Leave to Appeal against the order of the Courtof Appeal dated 23rd May 2007, dismissing the application of the petitioner on thefollowing grounds –
Has the Court of Appeal grievously erred in law in failing to fix the matter forinquiry in view of the fact that the same court has duly issued summonsagainst the 5th to 23rd respondents as a matter of law.
Has the Court of Appeal grievously erred in law in failing to fix the matter forinquiry in view of the fact that the said 5th to 23rd respondents-respondentspleaded not guilty to the charge of Contempt of Court.
Has His Lordship of the Court of Appeal misdirected himself in law when heheld that since the 5th to 23rd respondents-respondents were not parties tothe original application and they were not bound by the said order.
214Sri Lanka Law Reporis[2008] 1 Sri L.R
Held:
An order against a Pradeshiya Sabha is to be complied with by all memberswho constitute the Pradeshiya Sabha and it makes no sense that the membersof the Pradeshiya Sabha can violate the order of Court even though theyconstitute the Pradeshiya Sabha and they are persons carrying out theduties/obligations/functions of the Sabha.
Per Fernando, J.
Any person who knowingly violates a Court order even if such a person was not aparty to the original action where the order is made, is liable for contempt of court.
If not all that a party has to do is to get the court order violated by a third party andget the other party to plead that such party was not in the original action.
Per Fernando, J.
"It will be incorrect to say that as summons/warrant has been issued on a personthe Court must necessarily proceed to trial, even it is patently clear that for somereason the prosecution cannot succeed. For instance if the Court finds that it hasno jurisdiction or that summons/warrant has been issued on the wrong person.Similarly, it will also be incorrect, that only parties to the action which the order ismade are liable for the violations of the Court order."
APPEAL from an order of the Court of Appeal.
M.A. Sumanthiran with Viran Corea and Suresh Fernando for petitioner.
A. Kasthuriarachchi with A Udeshika Abeysiri for 5th to 7th and 9th to 23rdrespondents.
Cur.adv. vult.
11th September, 2008
RAJA FERNANDO, J.The petitioner-petitioner-petitioner (hereinafter called and referred toas the "petitioner") instituted action on 26th June, 2006 against the 1stto 4th respondents-respondents-respondents (hereinafter sometimesreferred to as the 1 st to 4th respondents) in the Court of Appeal seekinginter alia interim relief against the 1 st and/or 2nd respondent from takingany action to remove the barricade and security Post the petitioner waserecting on the access road to the petitioner's premises.
On 6th July 2006 the Court of Appeal issued an interim Orderdirecting the 1st and 2nd respondents "…Not to remove the barricadeconstructed by the petitioner along the access road to the petitioner'spremises in the petitioner's land until 27th July 2006.
SC Colombo International Nautical & Engineering College (Pvt) Limited (CINTEC) v 215
Kaduwela Pradeshiya Sabha, Kaduwela and three others (Raja Fernando, J.)
On 21 st July while the interim order was in force two members of the3rd respondent together with some villagers had entered the petitioner’spremises and forcibly removed the barricade put up by the petitioner.
The petitioner had promptly made a complaint to the Police and thePolice had summoned the villagers to the Police station and read overand explained the said order issued by court.
Apart from complaining to the Police the petitioner has brought thisto the notice of the Court of Appeal by petition on 25th July, 2006.
On 28th July 2006 when the matter came up before the Court ofAppeal for extension of the interim order, court had allowed thepetitioner to re-erect the barricade at the same place and furthergranted order which reads as follows:Court issues an interim orderdirecting the 1st, 2nd and 3rd respondents not to remove thebarricade"
On 23rd August 2006 when the petitioner commenced to re-erectthe said barricade accompanied by the Athurugiriya Police the 5th and6th respondents both members of the 1st respondents-respondent(Kaduwela Pradeshiya sabha) together with the 7th to 23 respondentshad entered the petitioner's premises and forcibly obstructed the re-erection of the barricade.
According to the petitioner the Athurugiriya Police officers who werepresent at the scene had explained to the respondents who werecausing the obstruction including the 5th and 6th respondents the orderof court and requested them to comply with the Order of court.
The petitioner has lodged a complaint with the Athurugiriya policeabout this incident the same day.
The petitioner has on 17th November, 2006 moved Court to punishthe 5th to 23rd respondents for contempt of Court for the violation of theinterim order dated 28th July, 2006 issued by court.
On 6th December, 2006, having heard counsel for the petitioner insupport the court had issued summons on the 5th to 23rd respondentsreturnable 29th January 2007.
On 29th January 2007, the notice returnable date the 5th to 23rdrespondents pleading not guilty the learned Judges of the Court ofAppeal had instead of fixing the matter for inquiry have summarily
216Sri Lanka Law Reports[2008] 1 Sri L.R
dismissed the application for Contempt of Court on the basis that the5th to the 23rd respondents were not parties to the original applicationand therefore not bound by the said order dated 28th July 2006.
This Court on 23rd May, 2007, has granted Special Leave to Appealagainst the order of the Court of Appeal dated 29th January, 2007,dismissing the application of the petitioner on the following questions:-
Has the Court of Appeal grievously erred in law in failing to fix thematter for inquiry in view of the fact that the same court has dulyissued summons against the 5th to 23rd respondents as a matterof law.
Has the Court of Appeal grievously erred in law in failing to fix thematter for inquiry in view of the fact that the said 5th to 23rdrespondents-respondents pleaded not guilty to the charge ofcontempt of law.
Has his Lordship the Court of Appeal misdirected himself in lawwhen he held that since the 5th to 23rd respondents-respondentswere not parties to the original application they were not boundby the said order.
It is the submission of the petitioner that the procedure governingprosecutions for Contempt of Court is contained in Chapter LXV of theCivil Procedure Code (sections 792-800) and that according to suchprovisions once summons/warrants issued on an accused for contemptthe next step is to fix the matter for hearing and the Court of Appeal wasin error when it dismissed the charges on the summons returnable datewithout proceeding to hearing. The petitioner draws specific attention tosection 796 of the Civil Procedure Code which reads "on the dayappointed by the court for the hearing of the charge or on any
subsequent day to which the hearing may have been adjourned
the court shall commence hearing by asking the accused personwhether or not he admits the truth of the charge"
The respondents argue that the charge of contempt was based onthe alleged violation of the directive of the Court of Appeal to which therespondents were not parties and as such the respondents cannot becharged for contempt in this instance as there was no directive on anyof the respondents personally by the Court.
SC Colombo International Nautical & Engineering College (Pvt) Limited (CINTEC) v 217
Kaduwela Pradeshiya Sabha, Kaduwela and three others (Raja Fernando, J.)
It will be incorrect to say that as summons/warrant has been issuedon a person the court must necessarily proceed to trial, even when it ispatently clear that for some reason the prosecution cannot succeed. Forinstance if the court finds that it has no jurisdiction or thatsummons/warrant has been issued on the wrong persons. Similarly itwill also be incorrect, that only parties to the action which the order ismade are liable for the violation of the court order.
The order of the court was directed at the 1st and 2nd respondentsnot to remove the barricades constructed by the petitioner along theaccess road to the petitioner's premises in the petitioner's land until
27.7.2006.
The 1st respondent was the Kaduwela Pradeshiya Sabha and the2nd respondent was A.F. Buddhadasa, Chairman, Kaduwela Prade-shiya Sabha.
The Kaduwela Pradeshiya Sabha being an inanimate person, thedirection is necessarily on the persons working in the PradeshiyaSabha. If not the order against the Pradeshiya Sabha will have nomeaning.
It is the position of the petitioner that on 21.7.2006 while the interimorder was in force 2 members of the 1st respondent – the KaduwelaPradeshiya Sabha – together with some villagers have come andforcibly removed the barricade erected by the petitioner.
On the 25th of July 2006 the petitioner has brought the violation tothe notice of court and the court has again issued an interim orderdirecting the 1st, 2nd and 3rd respondents not to remove the barricade.While the said interim order was in force on 23rd August, 2006, the 5thand 6th respondents both members of the 1st respondent KaduwelaPradeshiya Sabha together with several villagers (7th-23rdrespondents) have forcibly obstructed the re-erection of the barricade.
The first matter for consideration is whether the 5th and 6threspondents being members of the Pradeshiya Sabha are liable forContempt of Court as they were not parties to the original applicationwhere order was made.
As stated earlier in this judgment an order against the PradeshiyaSabha is to be complied with by all members who constitute thePradeshiya sabha and it makes no sense that the members of the
218Sri Lanka Law Reports(2008J 1 Sri L.R
Pradeshiya Sabha can violate the order of court even though theyconstitute the Pradeshiya Sabha and they are persons, carrying out theduties/obligations/functions of the Sabha.
Therefore, the argument of the 5th and 6th respondents that they arenot parties to the order of the court which was against the 3rdrespondent Kaduwela Pradeshiya Sabha is untenable.
The next matter to be considered is whether the 5th and 6threspondents were in fact aware of an order of the Court.
This is a matter that will have to be decided on the evidence at thehearing.
Let me next consider the case against the 6th to 28th respondentsvillagers who along with the 5th and 6th respondents were involved inthe obstruction.
It may be possible that all the villagers who participated in theobstruction were aware of an order of court until they were informed bythe Police unlike the 5th and 6th respondents who were in factmembers of the Kaduwela Pradeshiya Sabha against whom the orderwas in operation.
Therefore it is the view of this Court that, prima facie the chargeagainst the 6th to 23rd respondents who were the villagers who may nothave knowledge of a court order could be prosecuted for Contempt ofCourt.
The basis of the order of the Court of Appeal in discharging allrespondents that only persons who are parties to the order of the courtthat is violated is wrong. If any person who knowingly violates a courtorder even if such a person was not a party to the original action wherethe order is made is liable for Contempt of Court. If not all that a partyhas to do is get the court order violated by a third party and get the otherparty to plead that such party was not in the original action. This wouldlead to a mockery of Justice.
For the above reasons we set aside the order of the Court of Appealdated 29/01/2007 where all respondents-respondents were dischargedfrom the Contempt of Court proceedings.
Having considered all the circumstances of this case and giving thebenefit of the doubt to the 7th to 23rd respondents who were thevillagers who may not have been aware of the order of the Court wedischarge the 7th to 23rd respondents from the Contempt of Court
ScVallibel Lanka (Pvt.) Limited v Director-General of Customs 219
and three others
proceedings and send back the record to the Court of Appeal toproceed to trial against the 5th and 6th respondents who were membersof the 1 st respondent Kaduwefa Pradeshiya Sabha on the charge ofContempt of Court for the violation of the Court Order of 28/7/2006.
Registrar is directed to send a copy of this order with the originalrecord to the Court of Appeal to proceed with the Contempt of Courtinquiry against the 5th and 6th respondents.
SALEEM MARSOOF, J. – I agree.
SOMAWANSA, J.- l agree.