058-SLLR-SLLR-2005-V-2-DENNISE-PERERA-vs-BAUR-COMPANY-LTD..pdf
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DENNISE PERERAVSBAUR & COMPANY LTD.COURT OF APPEAL.
SOMAWANSA, J. (P/CA)
WIMALACHANDRAJ.
A. L. A. 60/2005
C. COLOMBO 7222/Spl.
June. 17. 2005
Civil Procedure Code -S. 217, S. 662, S. 664 – Mandatory Injunction -jurisdictionof trial Court to grant same ? – Judicature Act – S 54 – Constitution – Article 143.
The Plaintiff-appellant instituted action to prevent the defendant-respondentsfrom refusing to recommend to the authorities of the Sri Lanka Police and SriLanka Navy for the issue of entry passes required by the plaintiff-appellant and
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Oennfse Perera vs. Baur & Company Ltd.
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for the vehicles to enter Baurs building situated at Upper Chatham StreetColombo, to obtain and provide such passes to the plaintiff-appellant. In thefirst instance the plaintiff-appellant sought an enjoining order which was refusedby Court, and the plaintiff-petitioner sought leave to appeal.
HELD:
Per Somawansa, J. (P/CA)
“Though the District Judge refused an enjoining order to be issued ex-parte,he had issued notice of interim injuction and summons on the respondent,however, before the inquiry into the application for interim injuction could betaken up which in effect would have given the defendant-respondent anopportunity to be heard the plaintiff-appellant has thought it fit to canvass theDistrict Judge's order -in the circumstances I would say that this is a prematureapplication which should be rejected in limine.”
The plaintiff-appellant’s right to occupy the premises standsterminated and the defendant-respondent has not done anyextraordinary act of recent origin to frustrate any rights of the plaintiff-appellant either before or after he instituted this action.
(2)As the plaintiff-appellant in his plaint does not ask for a declarationthat he be declared the tenant of premises, he has no legal basisto pray for the enjoining order;
Per Somawansa, J. (P/CA)
“I am not inclined to agree that either the decision in Peiris vs. Perera (,)orTudor vs. Anulawathie(2) or the provisions contained in S 217, 662, 664, 54 ofthe Judicature Act or Article 143 of the Constitution would be of any help to theissue of mandatory injunctions for the reason that such an injunction of anaforementioned nature can be issued only at the final determination of theaction."
Quarere
Could the District Court grant a mandatory injunction ?
Application for leave to appeal from an order of the District Court of Colombo.Cases referred to
Peiris vs. Perera – 2002 – 2 Sri LR 128 – (distinguished)
Tudor vs. Anuiawathie – 1999 – 3 Sri LR 235 (distinguished)
Puranik vs. Travotal India Pvt. Ltd. – CA 518/93- CAM 27.7.93 (followed).SC Special No. 54/2005
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P. Nagendran P. C. with Prof. H. M. Zafrullah, Anura Meddegoda and B.Jayasinghe for plaintiff-appellant-appellant.
K. N. Choksy, P. C, with V. K. Choksy for defendant -respondent-respondent.
Cur, adv, vutt
June 17, 2005SOMAWANSA, J. (P/CA)
This is a leave to appeal application filed against the order of the learnedDistrict Judge of Colombo dated 14.02.2005 refusing the application of theplaintiff-applicant-appellant for the issue of an enjoining order as prayed forand directing summons and notice of interim injunction to be issued onthe defendant-respondent-respondent. The said order is marked c’. In pithand substance the plaintiff-applicant-appellant instituted the instant actionto prevent the defendant-respondent-respondent from refusing torecommend to the Authorities of the Sri Lanka Police and Sri Lanka Navyfor the issue of entry passes required by the plaintiff-applicant-appellanthis servants, agents and for the vehicle to enter Bauds building situated atUpper Chatham Street, Fort, Colombo 01, to obtain and provide suchpasses to the plaintiff-applicant-appellant.
On the day on which this application was listed for support Mr. K. N.Choksy, P. C., appeared for the defendant-respondent-respondent and bothparties agreed to resolve the matter of granting interim relief as well as thegranting of leave to appeal by way of written submisions. Accordingly bothparties have tendered their written submissions and also furthersubmissions in reply.
It appears that the plaintiff-applicant-appellant had made an applicationfor enjoining orders ex-parte and he had also moved for issue of interiminjunctions and permanent injunctions claiming the same relief sought inthe enjoining orders which are clearly mandatory orders which would compelthe defendant-respondent-respondent to do certain acts which I would saycould have far reaching consequences without the defendant-respondent-respondent being heard. The reliefs prayed for by the Plaintiff applicantappellant are as follows :
grant and issue a declaration that the plaintiff is entitled-
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to be recommended by the Defendant to the Staff SecurityOfficer of the Sri Lanka Navy for the issuance of entry passrequired by the Plaintiff, his servants and agents, and for hisvehicle to enter Baur’s building situated at Upper ChathamStreet, Fort Colombo 01 and
that the Defendant is obliged to obtain and provide such passesto the Plaintiff.
grant and issue a declaration that Plaintiff and his servants andagents are entitled-
to be recommended by the Defendant to the Authorities of the SriLanka Police for the issuance of entry passes required by thePlaintiff, his servants and agents and
That the Defendant is obliged to obtain / provide passes for hisvehicle to enter Baur’s building situated at Upper Chatham Street,Fort Colombo 01,
issue an enjoining order restraining the Defendants from refusing torecommend to the Staff Security Officer of the Sri Lanka Navy for theissuance of entry passes required by the Plaintiff, his servants and agents,and for his vehicle to enter Baur’s building situated at Upper ChathamStreet, Fort Colombo 01, and refusing to obtain and provide such passesto the Plaintiff.
issue an enjoining order restraining the Defendant from refusing torecommend to the Authorities of the Sri Lanka Police for the issuance ofentry passes required by the Plaintiff, his servants and agents, and for hisvehicle to enter Baur’s building situated at Upper Chatham Street, FortColombo 01, and refusing to obtain and provide such passes to the Plaintiff.
issue an interim injuction restraining the Defendant from refusing torecommend to the Staff Security Officer of the Sri Lanka Navy for theissuance of entry passes required by the Plaintiff, his servants and agents,and for his vehicle to enter Baur’s building situated at Upper ChathamStreet, Fort Colombo 01, and refusing to obtain and provide such passesto the Plaintiff.
issue an interim injunction restraining the Defendant from refusing torecommend to the authorities of the Sri Lanka Police for the issuance of
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entry passes required by the Plaintiff, his servants and agents, and for hisvehicle to enter Baur’s building situated at Upper Chatham Street, FortColombo 01, and refusing to obtain and provide such passes to the Plaintiff.
issue a permanent injunction restraining the Defendant from refusingto recommend to Staff Security Officer of the Sri Lanka Navy for the issuanceof entry passes required by the Plaintiff, his servants and agents, and forhis vehicle to enter Baur’s building situated at Upper Chatham Street, FortColombo 01, and refusing to obtain and provide such passes to the Plaintiff.
issue a permanent injunction restraining the Defendant from refusingto recommend to the Authorities of the Sri Lanka Police for the issuanceof entry passes required by the Plaintiff, his servants and agents, and forhis vehicle to enter Baur’s building situated at Upper Chatham Street, FortColombo 01 and refusing to obtain and provide such passes to the Plaintiff.
/. for costs, and
j. such other and further relief that Your Honour's Court shall seemmeet.
It is to be seen that the enjoining orders prayed for in paragraphs ‘c’ and‘d’ to the prayer of the plaint are clearly not orders which are restrictive innature but mandatory in nature and prayers ‘c’ and ‘d’ as prayed for in thepetition for leave to appeal are in fact identical in nature and if grantedwould tantamount to the issuance of the final relief as prayed for by theplaintiff-applicant-appellant in the District Court.
It is contended by counsel for the plaintiff-applicant-appellant that thefailure on the part of the defendant-respondent-respondent to renew andissue the Naval and Police security passes which should have enabledthe plaintiff-applicant-appellant to enter the premises in suit and to parkhis vehicle is clearly an attempt by the defendant -respondent-respondentto compel the plaintiff-applicant-appellant to vacate the premises and totake up occupation under a new contract of tenancy of the alternative flatoffered by the defendant-respondent-respondent and that if he vacatesand takes up occupation of the new flat, he would be fully caught up in thetrap of the defendant-respondent-respondent as the premises would havebeen let after 01.01.1980 and would be excepted premises in terms of theprovisions of the amending Rent Act, No. 26 of 2002.
It is to be seen that the defendant-respondent-respondent by letter dated
had given the plaintiff-applicant-appellant notice to quit and
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vacate the premises in suit. The said notice marked X7 also terminatedthe right to occupy the staff quarters and garage. On the other hand, theplaintiff-applicant-appellant claims that the tenancy of the premises isgoverned by the Rent Act, No. 07 of 1972 and hence the notice to quit isinvalid and his tenancy still continues. On this basis the plaintiff-applicant-appellant claims enjoining orders restraining the defendant-respondent-respondent from refusing to recommend to the Navy and the Police for theissue of passes to the plaintiff-applicant-appellant and further restrainingthe defendant-respondent-respondent from refusing to obtain and providesuch passes to the plaintiff-applicant-appellant. In other words, the plaintiff-applicant-appellant is seeking enjoining orders from Court to compel thedefendant-respondent-respondent to make recommendation to the Navyand Police and also to obtain and make available to the plaintiff-applicant-appellant the passes in question which are in effect orders of mandatorynature. It is the contention of counsel for the defendant-respondent-respondent that enjoining orders of such nature cannot be issued. In replycounsel for the plaintiff-applicant-appellant submits that the aforesaidargument is without any foundation whatsoever and that our Courts haverepeatedly pointed out that they have the power to issue mandatory orders.For this proposition of law he cited the decision in Peirisvs Perera^I haveno bone to pick with that decision. However on a perusal of the judgmentof that case shows that the dispute in that case was in respect of ownershipof land and the defendant had recently erected a wall with the object ofpreventing the plaintiff having access to the land pending final determinationof the action. The learned District Judge had come to a finding that theplaintiff had established a prima facie case establishing the title to theland and therefore was entitled to have access to the land pending thefinal determination of the action. The only way in which this access couldbe granted pending the final determination of the case was by directingthe demolition of the wall recently erected deliberately to prevent the plaintifffrom entering the land. This was considered by Court as a peculiarcircumstance and ordered the demolition of the obstructing wall. The Courtalso emphasized that it is only in very rare circumstances that such orderwould be made. In that case the plaintiff had established a prima facieright and that some peculiar circumstance had been brought about by thedefendant’s conduct.
In the instant action the defendant-respondent-respondent has not doneany act of recent origin to frustrate any right of the plaintiff. The plaintiff-applicant-appellant instituted action in the District Court of Colombo on
It is the plaintiff-applicant-appellant’s own pleadings in his
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plaint as per paragraph 15 of the plaint marked A that the defendant-respondent-respondent did not give any pass to the plaintiff-applicant-appellant as from 31.10.2004. In the circumstances, it is apparent whenthe plaintiff-applicant-appellant instituted his action 26.01.2005 he did notpossess a pass from the Commander of the Navy. It is contended bycounsel for the plaintiff-applicant-appellant that though requested thedefendant-respondent-respondent has refused to obtain such passesthereafter on behalf of the plaintiff-applicant-appellant.
It is strange that the plaintiff-applicant-appellant in his plaint does notask for a declaration that he be declared the tenant of the premises. In thecircumstances, I would hold that the plaintiff-applicant-appellant has nolegal basis to pray for the interim relief of an enjoining order. In paragraphs17,18 of the petition the plaintiff-applicant-appellant states that he forwardedletter dated 01.10.2004 together with Cheque No. 844404 for Rs. 25,875being rent and charges for the flat in question for the months of October,November and December 2004 marked XII. The defendant-respondent-respondent had acknowledged the receipt of the said sum as damagespayable without prejudice to the defendant-respondent-respondent's noticeto quit. I am unable to accept the position of the counsel for the plaintiff-applicant-appellant that the said sum of money is the rent paid for theaforesaid months for in fact as alleged by the defendant-respondent-respondent the plaintiff-applicant-appellant’s right to occupy had beenterminated by notice dated 31.10.2004 marked X7. These matters are yetto be decided at the trial instituted by the defendant-respondent-respondentand not in the action instituted by the plaintiff-applicant-appellant.
It is to be noted that the plaintiff had in Peiris vs. Perera (supra)established a prima facie right or title to the land and that some extraordinaryor peculiar circumstance had been brought into existence by the defendant'sconduct. In the instant action piainiirf-appiicani-appeiiants right to occupythe premises stands terminated and the defendant-respondent-respondenthas not done any extraordinary act of recent origin to frustrate any rightsof the plaintiff-applicant-appellant either before or after he instituted thisaction. In this context, I would hold that the decision in Peiris vs Perera(supra) has no application or relevance to the instant action.
In further support of the contention of the plaintiff-applicant-appellantthe decision in Tudor vs. Anulawathie <2) is cited which considered anapplication under section 662 of the Civil Procedure Code and a decisionunder Primary Courts Procedure Act which has no relevance to the issue
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at hand. I am not impressed with the submission and the decisions andauthorities cited by the plaintiff-applicant-appellant. I am also unable toagree with the submission that authorities cited by the plaintiff-applicant-appellant is buttressed by reliance on section 217 of the Civil ProcedureCode which the counsel suggest sfhould be read with sections 662 and664 of the Civil Procedure Code together with section 54 of the JudicatureAct which confers ample jurisdiction on Court to issue mandatory orders.Considering the facts and circumstances of this action, I am not inclinedto agree that either the aforesaid decisions or prpvisions contained inSections 217, 662, 664, section 54 of the Judicature Act or Article 143 ofthe Constitution would be of any help to the issue of mandatory injunctionsfor the reason that such an injuction of an affirmative nature can be issuedonly at the final determination of the action. In Puranikvs. Travotal India(Pvt) Ltd.,(3), the plaintiff obtained an interim injuction directing the 2nddefendant to remit certain sums of money to the plaintiff in India. TheCourt of Appeal held that this was an interim injunction of a mandatorynature which should not be made before final judgment. The same principleshould apply to the instant action filed by the plaintiff-applicant-appellantfor the only relief sought by the plaintiff-applicant-appellant in the instantaction by way of enjoining orders, interim injunctions and the permanentinjunctions is the identical relief of orders directing the defendant-respondent-respondent to do an affirmative act of a mandatory nature viz. seekingCourt orders compelling the defendant-respondent-respondent to makerecommendations to the Navy and Police and to obtain and make availableto the plaintiff-applicant-appellant the passes in question. Considering thecircumstances of this case, I am unable to agree that enjoining orders ofsuch nature could be issued ex-parte.
It is to be noted that though the learned District Judge refused anenjoining order to be issued ex-parte, he had issued notice of interiminjuction and summons on the respondent. However, before the inquiryinto the application for interim injuction could be taken up which in effectwould have given the defendant-respondent-respondent an opportunity tobe heard the plaintiff-applicant-appellant has thought it fit to canvass thelearned District Judge’s order refusing to issue an enjoining order ex-parteby way of leave to appeal. In the circumstances I would say this is apremature application which should be rejected in limine. If we are toentertain this type of application, it would be the opening of floodgates forparties to seek leave to appeal against orders of refusing to grant reliefs onapplications made ex-parte in fact the Court in the instant action has
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thought it fit to issue notice to the defendant-respondent-respondent andgive him a hearing before an order for interim injunction either preventive ormandatory is issued.
In any event, the learned District Judge has carefully considered thefacts placed before him and refused the application on the basis that theplaintiff-applicant-appellant has failed to establish a prima facie case andno irreparable loss would be caused to the plaintiff-applicant-appellant. Inthis respect, I would refer to the two documents considered by the learnedDistrict Judge viz : documents marked X3 and X6. It is to be noted inparagraph 3(u) of the petition dated 01.03.2005 the plaintiff-applicant-appellant says that he frequently has urgent business in Colombo and forthis purpose he resides in the flat but vide his letter dated 17.05.2004marked X3 wherein he informs the defendant-respondent-respondent thathe rarely comes down to Colombo. Again in document marked X6 dated
wherein he says I have also had to consider the fact that Ihardly come down to Colombo now”.
It is to be noted that there is no other document which shows theconverse. In any event there was no material placed before the learnedDistrict Judge or before us to establish that the plaintiff-applicant-appellantwould suffer irreparable loss in the event the enjoining order is not granted.
For the foregoing reasons, I have no hesitation in refusing leave to appeal.Accordingly the leave to appeal application of the plaintiff-applicant-appellantwill stand dismissed with costs fixed at Rs. 15,000.
Wimalachandra, J.-1 agree.
Application dismissed.