043-SLLR-SLLR-2006-V-3-JAYASINGHE-vs.-DASSANAYAKE-AND-ANOTHER.pdf
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Sri Lanka Law Reports
(2006) 3 Sri L.R.
JAYASINGHEVSDASSANAYAKE AND ANOTHERCOURT OF APPEAL,
WIJEYARATNE, J.
CA TR-1696/2003DC RATNAPURA16977/DMAY 20,2005
Civil Procedure Code, Section 10- Judicature Act Section 46-Transfer of acase-Apprehending threat to life-ls it a ground for transfer ?
HELD:
Section 10 of the Civil Procedure Code as well as Section 46 ofthe Judicature Act empowers the Court of Appeal to transfer a
case from one Court to another "whenever it appears(d)
that it is expedient on any other ground".
If a person apprehends threat to his life by reason of attendingany particular Court, he is for all purposes deterred from seekingjustice from such Court as of his right.
It is expedient on such ground to transfer the present action tosome other Court-which the plaintiff-petitioner would attend withconfidence and without fear of life to seek justice on the causespleaded.
APPLICATION for a transfer of case from District Court of Ratnapura.
J. C. Boange for petitioner,
Ananda Panagoda for 1 st respondent,
U.Gunasekera for 2nd defendant-respondent.
Cur.adv. vult.
sc
Jayasinghe Vs Dassanayake and Another(Wijeyaratne, J.)
347
September 8,2005WIJEYARATNE, J.
The Petitoner instituted Divorce action in the District Court ofRatnapura against the 1st and 2nd defendant-respondents, seekingdissolution of his marriage to the 1 st defendant-respondent on groundsset out in the plaint. Whilst the action is proceeding the plaintiff-petitioner made the present application seeking an order of transfer ofthe case to any other District Court from the District Court of Ratnapura.The application was made not oh ground that a fair and impartial trialcannot be had in the District Court of Ratnapura but on ground thatvisiting District Court of Ratnapura entails threat to his life from the2nd defendant-respondent who is described as a Police Officer attachedto Ministerial Security Division.
The 1 st and 2nd defendant-respondents objected to the applicationwhile denying several allegations contained in the application. Theirrespective objections are based on the footing that the Plaintiff-petitionerfailed to establish that the Court is biased or that a fair and impartialtrial cannot be had in that Court. The application however is not onsuch basis but on the apprehension on the part of the plaintiff-petitionerthat he runs the risk of his life if he is to appear before the DistrictCourt of Ratnapura. He has annexed exhibits marked P1 to P11 insupport of such allegations. Upon a perusal of the same, it is clearthat even if they may not establish a charge against the 2nd defendant-respondent, the Petitioner has reasons for his apprehension of fear oflife.
Section 10 of the Civil Procedure Code as well as section 46 ofthe Judicature Act empowers this Court to transfer a case from oneCourt to another.
"Whenever it appears
that it is expedient on any other ground."
It is necessary thus to examine whether it is expedient to transferthe present action on the basis that the Plaintiff-Petitioner apprehends
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a threat to his life when visiting District Court of Ratnapura. As referredto above documents attached shows his apprehension is not withoutreasons. In the recent past there had been several instances whereparties attending Court on a fixed date at a particular time have becomeeasy target of murder. In such a scenario, if a person apprehendsthreat to his life by reason of attending any particular Court, he is forall purposes deterred from seeking justice from such Court as of hisright. In my view it is expedient on such ground to transfer the presentaction to some other Court which the Plaintiff-Petitioner would attendwith confidence and without fear of life to seek justice on the causespleaded.
Accordingly I allow the application for transfer and order that theDivorce action which is the subject of this transfer application betransferred to the District Court of Avissawella. The District judge ofAvissawella is directed to proceed with such action according to lawwith notice to the parties, upon the record of the same being transferredto his Court.
Application allowed.Case transferred to the District Court of Avissawella.