Sri Lanka Law Reports
11983] 2 Sri L. R.
SAMARAKOON. C.J.. WANASUNDERA. J.. AND SOZA. J.
SC. NO. 33/1982. NO. 34/1982DECEMBER 9. AND 10. 1982
Interim injuction to prevent obstruction to laying of electric cables alongcommon roadway.
The Appellant and Respondent were owners of two blocks of land served by aroadway (Lot E) which was used in common as a means of access. TheAppellant made an application to the Electricity Board to obtain a supply ofelectricity and the Board's employees commenced the work of layingunderground cables. The Respondent disputed the right of the Appellant to layunderground cables and compelled the employees of the Electricity Board tostop work.
The Appellant thereupon obtained an interim injuction ordering the Respondentnot to interfere with the laying of the cables. The Respondent filed an applicationin the Court of Appeal for leave to appeal and an application in revision.Accordingly leave to appeal was granted and the order directing interiminjuction to issue was_set aside. The Appellant appealed from this order of theCourt of Appeal.
If the Appellant is allowed to have cables laid and work completed, theRespondent will, if successful, be faced with a fait accompli and may faceresistance in getting the cables removed. This is eminently a case where themain trial and the application for an injuction should be taken together.
Caw referred to:
RichardPerera v. Albert Perera 67 NLR 445APPEAL from an order of the Court of Appeal.
Eric Amerasinghe. S. A. with N. S. A. GunatiUake. V. Basnayake. K.Kanagasunderam and Miss. D. Guniyangoda for Appellant,
H. L. de Silva. S. A. with K. Kanang — Iswaran, Gamini Jayasinghe and S.Mahenthiran for Respondent.
Cur. adv. vult
Gnanapragasam v. Sivanantham (Samarakoon. C.J.)
January 25th. 1983SAMARAKOON. C.J.
The Respondent and one Murugesu Krishnapillai purchased aland called Etambagahawatta bearing assessment No. 128,Lauries Road. Bambalapitiya in extent AO – R1 — P20 upon DeedNo. 400 dated 31st January. 1971 (D1) attested by AThavanesan, N.P. By Deed of Partition No. 6982 dated 7thMarch. 1978 attested by A. B. W. Jayasekera. N.P. (D2) theypartitioned the land amicabl/ between themselves as depictedin Plan No. 2459 dated 5th January, 1979 made by K.Kidnapillai, Licensed Surveyor (D2A). The Respondent becameentitled to Lots 1 and 2 in Plan D2A and the said Krishnapillaibecame entitled to Lots 3 and 4 in the said Plan D2A. Lot 5was reserved as a common roadway, 1 5 feet wide, to serve alllots. These lots are also shown as Lots A to E in Plan No. 2728dated 17th January, 1980, (marked X) made by K. K.Thirunavukarasu, Licensed Surveyor. By Deed No. 34 dated
977 (marked XI) attested by G. S. Sivadasan, N. P. theRespondent and his wife transferred Lot 2 in Plan D2A (i.e..Lot B in Plan X) to the Appellant with a right of way over Lot 5(i.e., Lot E in Plan X) The said Deed recited inter alia "the rightto erect, lay down and instal electric cables, water mains,drains, sewage pipes and other contrivences of whatsoeverkind or nature in, under "provided they do not interfere withthe use of the roadway by persons entitled to such use. ByDeed No. 29 dated 14.06.79 the said Krishnapillai sold Lot Cin Plan X to K. Kandiah Ganendran. Thereafter the Appellant,the Respondent, the said Krishnapillai and the said Ganendranentered into Deed No. 41 dated 19.05.1980 attested by S.Sivadasan. N. P. whereby they were each allotted theirrespective lots according to the re-survey in Plan X in lieu oftheir respective allotment of land they seised and possessed(sic.) earlier" in the following manner:-
Respondent to Lot A.
Appellant to Lot B.
Kandiah Ganendran to Lot C. and
Krishnapillai to Lot D.
Sri Lanka Law Reports
(198312 Sri L. R.
Lot E was to be held and used in common by all parties "as ameans of access to their respective Lots marked A, B. C, and Ddepicted in Plan No. 2728". This roadway which was depictedLot 5 in Plan D2A, 1 5 feet wide (5.25 perches) was depicted asLot E in Plan X, 12 feet wide (4.15 perches). The Appellantappears to have obtained a water supply to his Lot B from theMunicipal mains by laying water pipes through Lot E. He thenmade an application to the Electricity Board for the supply ofelectricity to the residential premises constructed on Lot B andthe Board acceded to the request. The Board's employeescommenced the work of laying underground cables along Lot E.For this purpose a 9 inch trench was cut leaving a clearance of10 feet for use as roadway. On the 19th March, 1982, theRespondent objected to the cutting of trenches and disputed theright of the Appellant to lay underground cables along Lot E. By ashow of force he compelled the Board's employees to stop thework. The Appellant then obtained an interim injunction orderingthe Respondent not to interfere with the work of laying cables.The Respondent then filed an application for leave to appeal andan application in Revision, both in the Court of Appeal.Ranasinghe, J. dealt with both in one Order and granted leave toappeal and acting in revision set aside the District Judge's orderof 6-4-82 directing an interim injuction to issue. The Appellantappeals from this Order of the Court of Appeal.
Ranasinghe, J. referred to the two Deeds No. 41 and No. 34and expressed the view that the special rights acquired on DeedNo. 41 over Lot 5 (Lot E of X) had been given up and "thePlaintiff-Respondent would therefore seem to be entitled tosubject Lot E without the consent of the other parties to Deed Y2only to its natural use, namely to use it as a roadway". Howeverthe Respondent conceded that the Appellant had the right to layoverhead lines to obtain a supply of electricity. The reasons forthis concession cannot be gathered from the record. Thesubstantive question is whether the Appellant in fact had theright to lay underground cables along Lot E. This has to bedecided at the trial of the case. If the Appellant is allowed to havethe cables laid and the work completed pending trial theRespondent will, if he succeeds in his contention, be faced with afait accompli and the Electricity Board may well resist the
Gnanapragasam v. Sivanantham (Samarakoon. C.J.j
removal of such cables. Furthermore a consideration of theDeeds No. 41 and No. 34 seems to suggest that the rightacquired on the former Deed was whittled down by the latter. Inthe circumstances Ranasinghe, J. correctly followed the principlein the case of Richard Perera v. Albert Perera^). This is eminentlya case where the application for an injuction and the main trialshould be taken together. I would therefore dismiss the appealwith costs here and in the Court of Appeal.
WANASUNDERA. J. — I agree
SOZA, J. — I agree