046-SLLR-SLLR-2005-V-2-GUNASEKERA-vs-ARCHBISHOP-OF-COLOMBO-AND-OTHERS.pdf
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Gunasekera vs. Archbishop of Colombo and others
(Wimalachandra, J.)
253
GUNASEKERAvs
ARCHBISHOP OF COLOMBO AND OTHERSCOURT OF APPEALAMARATUNGA, J.
WIMALACHANDRA, J.
CALA 171/2004
DC. MT. LAVINIA472/03/P
OCTOBER 19, 2004
Civil Procedure Code – section 666 – Interim Injunction granted – Exparte -Vacation of same under Section 666 – Is there a time limit ?
The Plaintiff obtained an interim injunction against the 1st Defendant Re-spondent ex-parte on 24.6.2003. Thereafter on 15.9.2003 the 1st DefendantRespondent filed papers and sought an order to vacate same under Section666 – Court after Inquiry vacated the interim injunction. The Plaintiff Petitionerthereafter sought leave to appeal from the said Order, it was contended thatthe 1st Defendant-had filed papers to dissolve the interim injunction after 3months from granting the injunction and the Defendant cannot resort to Sec-tion 666.
HELD
Section 666 does not speak of a time period within which a party ag-grieved could avail of Section 666. An order for an interim injunctionmay be set aside by the same court on an application made thereto, byany party dissatisfied with such order.
An injunction issued ex-parte must be canvassed in the Court whichmade that order.
It was correct for the Defendant Petitioner to move under Section 666 ofthe Civil Procedure Code.
APPLICATION for Leave to Appeal from an order of the District Court ofMt. Lavinia.
Case referred to :
1. Senahayake vs Petris – 1992 — 2 Sri LR 169.
254
Sri Lanka Law Reports
(2005) 2 Sri L. R.
Rohan Sahabandu for Petitioner.
Nihal Jayamanne P.C., with Ms Noorani Amerasinghe for the 1st DefendantRespondent.
November 30, 2004
cur. adv. vult.
WIMALACHANDRA, J.This is an application for leave to appeal from the order of the DistrictJudge of Mount Lavinia dated 20.04.2004, setting aside the interim injunc-tion granted in favour of the plaintiff-petitioner (petitioner).
Briefly, the facts relevant to this application are as follows :
The petitioner instituted the partition action bearing No. 472/03/P in theDistrict Court of Mt. Lavinia to partition the land called Lunawewatta andGorakagahawatte described in the schedule to the plaint. The plaintiff alsosought an interim injunction against the 1st defendant-respondent(1 st defendant) restraining him from constructing buildings and/or makingimprovements to the existing buildings on the land.
The application for an interim injunction was supported on 17.06.2003and the Court issued a notice of interim injunction returnable for 24.06.2004on the 1 st defendant. Admittedly, it was served on one B.L.A.V. Emmanualwho was residing in the Archbishop’s House, which is the residence of the1 st defendant. The said B.L.A.V. Emmanual swore to an affidavit (marked X)stating inter-alia that there was no possibility of the said notice beingbrought to the notice of the 1 st defendant, prior to 24.06.2003 which datewas the notice returnable day. On 24.06.2003, since there was no appear-ance for the 1st defendant, the Court issued the interim injunction asprayed for in the prayer to the plaint. Thereafter on 15.09.2003 the 1st
CAGunasekera vs. Archbishop of Colombo and others255
(Wimalachandra, J.)
defendant filed a petition and affidavit and sought an order to vacate theinterim injunction under Section 666 of the Civil Procedure Code. Thereaf-ter when the matter was taken up for inquiry the Court directed the partiesto file written submissions, and the learned Judge having considered thesubmissions, delivered the order on 30.04.2004 setting aside the interiminjunction granted by the Court. It is against that order the plaintiff has filedthis application for leave to appeal.
The learned Counsel for the plaintiff-petitioner (plaintiff) submitted thatthe learned District Judge has failed to consider the following two prelimi-nary objections raised by the plaintiff at the inquiry in to the applicationmade by the 1st defendant for the vacation of the interim injunction. Theyare:
the 1st defendant has filed papers to dissolve the interim in-junction after 3 months from granting the injunction.
the 1st defendant cannot resort to section 666 of the Civil Pro-cedure Code to vacate the interim injunction.
Section 666 of the Civil Procedure Code states that an order for aninjunction or enjoining order made may be discharged, or varied or setaside by the Court, on application made thereto, by any party dissatisfiedwith such order.
it is to be noted that Section 666 does not speak of a time period withinwhich a party aggrieved by the Court granting an interim injunction couldavail to Section 666 of the Civil Procedure Code. Accordingly, an order foian interim injunction made by a District Court, may be set aside by thatCourt on an application made thereto, by any party dissatisfied with suchorder. The setting aside of an interim injunction may be done on a consid-eration of the merits and the law applicable thereto.
The order made by the learned District Judge on 24.06.2003 is an ordermade ex-parte as the person against whom that order has been made
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Sri Lanka Law Reports
(2005) 2 Sri L. R.
was not present in Court and it was made without giving a hearing to theaffected party. Accordingly, an injunction issued ex-parte must be firstcanvassed in the Court which made that order.
It was held in the case of Senanayke vs. Peirisu) that it has become arule of practice deeply ingrained in our legal system that a party moving toset aside an ex-parte order must first go before the Court which made theex-parte order to have it vacated, before moving to the Court of Appeal.
Therefore, it seems to me that it was correct for the 1st defendant tocome under Section 666 of the Civil Procedure Code to have the interiminjunction set aside.
The plaintiff claims that he is the owner of 1 /8th share and the 1stdefendant is entitled to 7/8th share, minus 29.12 perches. The plaintiffstates (in paragraph 23 of the plaint) that his mother Mary Clotilda An-thony had transferred an undivided 3/8th share to the plaintiff by deed No.306 dated 08.03.2003. It is to be noted that the plaintiff has failed to pro-duce the said deed No. 306 for the perusal of Court to see whether hebecame entitled to 1 /8th share of the said land. Without producing thesaid deed it is not possible to come to a conclusion that he has 1 /8thshare of the land.
The plaintiff s position as stated in the plaint is that his mother had gotrights in the land by deed No. 2472 of 11.05.1942. But the plaintiff has notproduced this deed.
The plaintiff admits that his father Rowland Gunasekera entered into anagreement bearing No. 1659 dated 08.09.1980 in respect of the land to bepartitioned and thereafter executed Deed No. 1696 of 17.02.1981 withArchbishop restricting his rights in the land in suit to 29.12 perches. DeedNo. 1696 has been produced marked “X13” by the 1 st defendant.
In these circumstances, in the absence of the aforesaid deed No. 306of 08.03.2003 and Deed No. 2472 of 11.05.1942 the plaintiff cannot estab-lish that he has 1 /8th share of the land in suit. As against the aforesaiddeeds referred to by the plaintiff which he failed to produce, the 1 st defen-dant produced the Deed No. 1696 marked “X13”. According to this deedthe plaintiff’s father, Rowland Gunasekera has got lot 2 which is in extent
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Gunasekera vs. Archbishop of Colombo and others
(Wimalachandra, J.)
257
of 29.12 perches and the Archbishop has got lot 1 which is in extent “X1”.The plaintiff has conceded that by the said deed marked "X13” his rightswere restricted to 29.12 perches. The plaintiff has failed to produce deedsfor the 1 /8th share he claimed in the corpus. In the absence of the deedsthe Court is unable to form an opinion that in addition to the aforesaid29.12 perches he is also entitled to 1 /8th share of the land.
The resultant position is that the plaintiff has failed to establish a primafacie case in his favour that he is the owner of 1 /8th share of the propertyin addition to 29.12 perches. The failure to produce the deeds he relied onto establish that he is the owner of a 1 /8th share of the property will onlydisclose the fact that he is now confined to 29.12 perches.
According to the aforesaid partition deed No. 1696 marked “X13” it wasagreed between the plaintiffs father Rowland Gunasekera and the Arch-bishop that lot 1 in plan 2719 belongs to the Archbishop and lot 2 toRowland Gunasekera in plan “X1”. Accordingly the portion belonging tothe 1st defendant is clearly demarcated from lot 2 which was given toRowland Gunasekera.
The plaintiff is under obligation to make the fullest possible disclosureof all material facts within his knowledge. Though the plaintiff claimed1 /9th share by deed No. 306 dated 08.03.2003, the plaintiff did not pro-duce the said deed. In my view this is a material fact, because the failureto establish 1 /8th share means that he has only 29.12 perches which is aseperate lot in terms of the deed No. 1696 of 17.02.1981 which is depictedas Jot 2 in the plan marked “X1 ”. I am of the strong view that if this fact hadbeen disclosed by producing the relevant deed marked “X13” and the por-tion plan marked “X1 ” the learned Judge would have given a different orderat the time the Court granted the interim injunction.
In these circumstances the 1st defendant has failed to establish aprima facie case in his favour and hence we are not inclined to interferewith the order made by the learned Judge dated 30.04.2004.
For these reasons, the application for leave to appeal is refused andaccordingly dismissed without costs.
AMARATUNGA. J. — I agree.
Application dismissed.