023-SLLR-SLLR-2006-V-2-INTERNATIONAL-DRESSES-PVT-LTD.-vs.-MUNICIPAL-COUNCIL-OF-MORATUWA.pdf
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International Dresses (Pvt.) Ltd. vs. Municipal Council of Moratuwa 203
INTERNATIONAL DRESSES (PVT.) LTDVS.MUNICIPAL COUNCIL OF MORATUWACOURT OF APPEALSOMAWANSA, J. (P/CA).
WIMALACHANDRA, J.
CALA 357/2004.
DC MORATUWA 173/SPL.
FEBRUARY 10.2006.
Civil Procedure Code, sections 182,183,183A- Affidavit on behalf of a company- Should he have personal knowledge of the facts?-lf the affidavit is bad in lawshould the petition be dismissed ?
HELD:
A Director is a person who may in terms of section 183A make affidavitin lieu of company. However in terms of section 183 it is mandatory thatin such a case the person who makes the affidavit instead of thecompany must be a person having personal knowledge of the facts ofthe cause of action and must in his affidavit swear/affirm that hedeposes from his own personal knowledge of the matter thereincontained.
Per Somawansa, J. (P/CA) :
“The supporting affidavit tendered in support of the petitioner is a statement offact stated by the plaintiff company converted to an affidavit by the addition of averifying clause which is a violation of the provisions in section 182”. I am notat all satisfied that he is a person who has testified to the averments in thepetition on his own personal knowledge nor has he pleaded so.
The plaintiff-petitioner has failed to tender a valid supporting affidavit inlaw and in the circumstances the plaintiff-petitioner cannot maintainthis application.
APPLICATION for leave to appeal from an order of the District Court of Moratuwa.Cases referred to :
Abeywardane vs. Abeywardane 1993 1 Sri LR 272
Simon Fernando vs. Goonasekera 47 NLR 512
Colin A. Amarasinghe for plaintiff-petitioner.
Lasitha Kanuwanaarachchi for defendant-respondents.
cur. adv.vult.
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February 02,2006.
ANDREW SOMAWANSA, J. (P/CA)This is an application seeking leave to appeal from the order of thelearned District Judge of Moratuwa dated 14.09.2004 whereby the learnedDistrict Judge came to a finding that there were no sufficient reasons toissue an enjoining order as prayed for by the plaintiff-petitioner, but howeverissued notice of injunction and summons on the defendants-respondentsand if leave is granted to set aside the aforesaid impugned order dated14.09.2004 and issue an enjoining order or direct the learned District Judgeto issue an enjoining order as prayed for in the prayer to the plaint or in thealternative make an interim order issuing an injunction or stay orderrestraining the defendants-respondents from giving effect to the seizurenotice marked X and seizing the movable property of the petitioner. Counselfor the petitioner having supported has obtained an interim order as perparagraph ‘D’ to the prayer of the petition and the same has been extendedfrom time to time.
When this application was taken up for inquiry counsel for the defendants-respondents took up three preliminary objections to the maintainability ofthis application.
The first preliminary objection taken by the defendants-respondents isthat the plaintiff-petitioner is guilty of suppression of material facts in thatin tendering the Additional Solicitor-General’s determination purportedlymarked X6 has suppressed the most important and material part of theaforesaid determination contained in page 02 and has submitted only thefirst page which is beneficial to the plaintiff-petitioner with the ulterior motiveof misleading Court and obtaining undue advantage which he has done byobtaining an ex-parte stay order from this Court. I am not at all impressedwith the aforesaid submission for the reason that the opinion of the AdditionalSolicitor-General has been tendered in its entirety in two pages 1 and 2marked X6 though both pages have been certified as true copies separately.Accordingly there is no suppression of material facts nor has the Courtbeing misled.
The second objection taken by the defendants-respondents is to thesupporting affidavit filed along with the petition which he submits is contraryto provisions contained in section 183 of the Civil Procedure Code which
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International Dresses (Pvt.) Ltd. vs. Municipal Council of Moratuwa
(Andrew Somawansa, J. (P/CA))
205
provides that where the action is brought by or against a company anySecretary Director or other principal officer of such company may makean affidavit in respect of the matters instead of the party to the action. Inthe instant application the petition for leave to appeal is supported by oneChandana Punchihewa who claims to be a Director of the petitionercompany. Being a Director of the company he is a person who may interms of section 183A make affidavit in lieu of the company. However interms of the proviso to section 183A of the Civil Procedure Code it ismandatory that in such a case the person who makes the affidavit insteadof the company must be a person having personal knowledge of the factsof the cause of action and must in his affidavit swear or affirm that hedeposes from his own personal knowledge of the matters therein contained.
In the case of DamayanthiAbeyawardena vs. HemalathaAbeyawardena(,):
‘The fact that T. Nadesan holds a power of attorney and is arecognized agent pertains to his capacity to file an affidavit on behalfof the petitioner respondent and does not lend any extra credence tothe affidavit. His affidavit must comply with the requirements of theCivil Procedure Code. Even if the provisions of section 183(a) of theCivil Procedure Code brought in by the Civil Procedure Code(Amendment) Act, No. 79 of 1988 (not yet in operation at the time ofthis case) are applied, the relevant amendment permits an attorney tofile an affidavit instead of the party to the action where such party isabsent from Sri Lanka. The proviso to this section states that in suchsituation the person making the affidavit must be one having personalknowledge of the facts of the cause of action and must in his affidavitswear or affirm that he deposes from his own personal knowledge”.
However on an examination of the affidavit tendered in support of thepetition, it is apparent that it does not comply with the mandatory provisionscontained in section 183A of the Civil Procedure Code for nowhere in theaffidavit is it stated that declarant has personal knowledge of the factsaffirmed by him nor does he swear or affirm that he deposes from his ownpersonal knowledge of the matters therein contained. Facts are stated bythe plaintiff-petitioner company and not by the declarant as averred inparagraphs 4,9 and 10 of the affidavit. In effect the supporting affidavit is astatement of fact stated by the plaintiff-petitioner company converted toan affidavit by the addition of a verifying clause which is a violation of the
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provisions contained in section 182 of the Civil Procedure Code whichreads as follows:
“A petition stating facts of observation and belief is not convertedinto an affidavit by the addition of a verifying clause, an affirmation oroath, to the effect that the statements in the petition are true”.
In the case of Simon Fernando vs. Goonasekera(2) it was held:
“An affidavit must be confined to a statement of such facts as thedeclarant is able of his own knowledge and observation to testify to.
An exception is made in the case of an interlocutory affidavit in whichstatement regarding his belief may be admitted provided reasonablegrounds for such belief be set forth in the affidavit”
For the foregoing reasons, my considered view is that the plaintiff-petitioner has failed to tender a valid supporting affidavit in law and in thecircumstances the plaintiff-petitioner cannot maintain this instant applicationfor leave.
In this respect, I would like to refer to certain observations made by S.N. Silva, J (as he then was) in the case of Damayanthi Abeywardena vs.Hemalatha Abewardena (supra) at 281:
“Learned District Judge has observed that the affidavit confirmsthe averments in the petition. Indeed, on a comparison it is revealedthat the affidavit is a verbatim repetition of the averments of the petition.However, the correct test is not to consider whether one confirmsthe other upon a comparison of this nature. Repetition of the avermentsof a petition in the affidavit is an evil that we often note in affidavitsthat are filed. Learned Judge has regrettably seen a virtue in this evil.The correct test is to ascertain whether the affidavit contains directevidence, that is, statements of such facts as the declarant is ableof his own knowledge and observation to testify to and whether thisevidence together with the documentary evidence furnishes primafacie proof of the matters of fact set out or alleged in the petition”. I
I might also refer to paragraph 1 of the affidavit tendered in support ofthe petition wherein it is stated:
CA International Dresses (Pvt) Ltd. vs. Municipal Council of Moratuwa 207
(Andrew Somawansa, J. (P/CA))
“I am the Managing Director of International Dresses PrivateCompany Limited and do hereby swear to the correctness of theaverments herein contained in this affidavit”.
If the declarant is the Managing Director of the plaintiff-petitionerCompany I am at a loss as to why he is unable to testify to the facts in theaffidavit rather than stating company states this and that and therebydisassociating himself with the averments stated in the affidavit. There isno indication as to when he became the Managing Director.
In the circumstances, I am not at all satisfied that he is a person whohas testified to the averments in the petition on his own personal knowledgenor has he pleaded so.
For the foregoing reasons, I would uphold the objection taken by thedefendants-respondents and reject the application for leave to appeal. Imight also say that there is no prejudice caused as the plaintiff-petitioneris also seeking for an interim injunction and for reasons known to him hedid not wish to proceed with his application for an interim injunction andhas in fact prevented the defendants-respondents from tendering theirobjections to the application for an interim injunction by informing Court asfollows:
Accordingly the learned District Judge has made the following orderdated 24.02.2005 which reads as follows:
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For the foregoing reasons, I would up-hold the objection taken by thedefendants-respondents to the maintainability of this application and rejectthe application for leave with costs fixed at Rs. 20,000.
WIMALACHANDRA, J.— I agree.