098-NLR-NLR-V-62-In-re-P.-K.-ENSA.pdf
In re Ensa
609
1959 Present : Basnayake, C.J., Pulle, J., and H. N. G. Fernando, J.In re P. K. ENSA
Rule Nisi issued under section 47 of the Courts Ordinance {Chapter 6) onP. K. Ensa of Telunpitiya, 21st defendant in D. C. Avissawella Case
No. 8708JP—re Contempt of Court
Contempt of Court—TJndertahing given by a party—Subsequent infringement thereof—
Culpability—Courts Ordinance, s. 47.
It is a contempt of court to act in breach of an undertaking given to a court.
In a partition action the 21st defendant undertook, pending an inquiry intoan application made by the plaintiffs for an Injunction, not to continue certainbuilding operations. Despite this undertaking she re-commenced buildingoperations.
Held, that the defendant was guilty of contempt of court.
Rule nisi issued under section 47 of the Courts Ordinance.
M. Tiruchelvam, Deputy Solicitor-General, with I/. L. de Silva, CrownCounsel, as Amicus Curiae (on notice).
N. Abeysinghe, for Respondent.
2*J N. R 1G720 (4/G1)
Cur. adv. vult.
4510
BASNAYAKE, C.J.—In re Ensa
July 31, 1959. Basnayake, G.J.—
The respondent Palle ICandelage Ensa the 21st defendant in D. C.Avissawella Partition Case No. 8708, (hereinafter referred to as therespondent), was called upon to show cause why she should not bepunished for contempt of Court in that she acted in breach of anundertaking given by her to the District Court of Avissawella.
Shortly the facts are as follows :—
The plaintiffs in their plaint filed on ISth July 1957 in addition topraying a partition of the land also prayed that the X’cspondcnt berestrained by Injunction from building on the land. On 27th August1957 she filed through her proctor Nissanka Pcrera objections to theapplication for the injunction. She stated therein that she was renovatinga house on the land where she was permitted to reside about 20 years agoby her mother the 12th defendant and asked that the notice be dissolved.The matter was then fixed for inquiry for 5th September 1957. On thatday the following minute was made by the District Judge—
“ Mr. Perora states that his client has been in possession of a houseon this land with the permission of her mother ICalu the 12th defendantand that this house collapsed about a year ago and she is putting up ahouse on the same foundation at the instance of her mother. Bothcounsel move for a date as the Headman who is a very material witnessis absent. Allowed.
The 21st defendant undertakes not to continue the building opera-tions pending the result of this inquiry. B. T. I. of 21st defendant.”
The inquiry was then refixed for 25th September 1957. On that daytoo the respondent undertook not to continue the building operationspending the result of the trial. The undertaking is thus recorded by theDistrict Judge—“ The 21st respondent undertakes not to continue thebuilding operations pending the-result of the trial without prejudice toany rights she may have to the house or to the premises.”
It would appear from the petition of the 6th plaintiff petitioner dated17th October 1957 that despite this undertaking while the trial was stillpending the respondent re-commenced building operations on 10th Octo-ber. When this petition was filed notice was issued on the respondent for4thNovember 1957. On that day she stated " as there was no orderrestricting me from continuing the building operations in accordance withthe law, it is true that I continued the building operations after theundertaking given by me. I am not leading any evidence.” Thereuponafter hearing Counsel the learned District Judge made order referring thematter of the respondent’s contempt to this court. She has appeared inresponse to a rule nisi. She sought to show cause and called witnessesand gave evidence on her own behalf. The evidence proved beyonddoubt that the respondent acted in breach of the undertaking, and we
Krishnar v. Thurairajah
511
accordingly convicted her and sentenced her to three months’ rigorousimprisonment at the conclusion of the hearing and stated that we wouludeliver our reasons later, which we accordingly do now. It is a contemptof court to act in breach of an undertaking given to a court. The law isthus stated in Oswald on Contempt (3rd Edn) p. 108.—
“ An undertaking entered into or given to the Court "by a party orhis counsel or solicitor is equivalent to and has the effect of an order ofthe Court, so fctr as any infringement thereof may be made the subjectof an application to the Court to punish for its breach. The undertakingto be enforced need not necessarily be embodied in an order.”
Pux,l,e, J.—I agree.
H. TT. G. Fernando, J.—I agree.
Utile made absolute.