006-SLLR-SLLR-2003-V-3-GANDHI-v.-MUBARAK.pdf
Gandhi v Mubarak (Amaratunga, J.)
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CA
GANDHIv
MUBARAKCOURT OF APPEALAMARATUNGA, J.BALAPATABENDI, J.
CA(PHC) 8/2000H.C. RATNAPURA HCRA 134/96P.C. RATNAPURA 16246AUGUST 23, 2001AUGUST 20, 2002
Primary Courts Procedure Act 44 of 1979 – S.66(1) (a) – Can a Primary CourtJudge order the demolition of a wall erected across the doorway? – Constitu-tion Article 154P (3) (b)
Held :
The only way to restore possession of the store room to the respondentwas by demolishing the wall which was forcibly erected which prevent-ed his effective possession of the store room.
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The Primary Court Judge was correct and justified in making an orderto demolish the wall.
APPLICATION for Revision of the Order of the High Court Ratnapura.
Case referred to :
James v Kannangara – 1989 2 Sri LR 350 (Not followed)
Tudor v Anulawathie – 1999 3 SLR 235 (Followed)
Manohara de Silva with W.D. Weeraratne for petitioner.
Ms. Chamantha Weerakoon – Unamboowa for respodnent.
cur.adv.vult
September 30, 2002GAMINI AMARATUNGA, J.
This is an application to revise the order of the learned High 01Court Judge of Ratnapura made in the exercise of the revisionaryjurisdiction vested in the High Court under Article 154 P(3)(b) of theConstitution. The subject matter of the revision application filed bythe present petitioner’s mother (who is now dead) was an ordermade by the learned Primary Court Judge of Ratnapura in a pro-ceeding commenced in terms of section 66(1 )(a) of the PrimaryCourts Procedure Act No 44 of 1979 regarding a land dispute-thatexisted between the petitioner, (and his mother) on one side andthe 3rd party respondent-respondent on the other side.10
The dispute that was referred to the Primary Court was that thepresent petitioner and his mother had dispossessed the 3rd partyrespondent-respondent of the store room used by him by forciblyerecting a wall at the place which he had used to enter the storeroom from his shop premises. On being noticed the partiesappeared in the Primary Court, filed their affidavits and led oral evi-dence in support of their respective claims. Thereafter the learnedPrimary Court Judge inspected the premises in question. After con-sidering the material placed before him and his own observationsrecorded at the time he inspected the premises the learned Primary • 20Court Judge held that the 1st and 2nd party respondents have dis-
CA
Gandhi v Mubarak (Gamini Amaratunga, J.) ■
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possessed the 3rd party respondent-respondent by erecting a wallacross the doorway between his shop premises and the storeroom.
Therefore he made order placing the 3rd party respondent-respondent in possession of the store room and ordered to demol-ish the newly built wall closing the door way.
The present respondent's mother who was the 1st party respon-dent before the Primary Court made a revisipn application to theHigh Court of Ratnapura against the decision of the learned soPrimary Court Judge. The learned High Court Judge having con-sidered the revision application dismissed it. The present petitionerwho was the 2nd party respondent before the Primary Court wasnot a party to the revision application filed in the High Court. Hismother who had made the revision application died one weekbefore the High Court dismissed the revision application. No appealwas filed against-the order of the learned High Court Judge per-haps for the reason that the present petitioner was not a party tothe proceedings before the High Court. The present revision appli-cation had been filed five months after the date of the order of the 4oHigh. Court.
The order of the Primary Court was executed on 10.2.2000 andthe wall across the doorway was demolished and the store roomwas handed over to the respondent. This application had been filedon 11.2.2000, the day after the execution of the order of the PrimaryCourt.
. The petitioner in his petition has stated that there are excep-tional circumstances warranting the exercise of the revisionaryjurisdiction of this Court but has not set out what those exceptionalcircumstances are. The petitioner has stated that the learned High soCourt Judge has failed to identify the mistakes and errors of theorder of the Primary Court but has not explained what those mis-takes and errors are. The petitioner has prayed that the order of theHigh Court be set aside. But as pointed out in the written submis-sions of the respondent the petitioner has not prayed that the orderof the Primary Court be set aside. Instead the petitioner has prayedthat the order of the Primary Court be suspended. As pointed outby the respondent's written submissions such an order cannot be
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granted by way of substantive relief. The wall in question hasalready been demolished. Now there is case No 14201/L pendingin the District Court of Ratnapura in respect of the same dispute. Itappears that the only point taken against the order of the learnedPrimary Court Judge is that he did not have jurisdiction to order thedemolition of the wall erected across the doorway. The petitionerhas relied on the authority of the case of James v Kannangara 0),a decision of this Court. But as Gunawardana J has observed inTudor v Anulawathie <2) there is no point in making an order unlessthe court has the power to enforce it.
The only way to restore possession of the store room to therespondent was by demolishing the wall which prevented his effec-tive possession of the storeroom and in these circumstances thelearned Primary Court Judge was quite correct and justified in mak-ing an order to demolish the wall. The petitioner has not made outa case for the intervention of this Court by way of revision andaccordingly the revision application is dismissed with costs fixed atRs. 5000/-.
BALAPATABENDI J. – I agreeApplication dismissed
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