020-SLLR-SLLR-2009-V-1-KANAGALINGAM-vs-JEGATHESWARAN-AND-ANOTHER.pdf
CA
Kanagalingam vs. Jegatheswaran and Another
159
KANAGALINGAM
vs
JEGATHESWARAN AND ANOTHER
COURT OF APPEALRANJITH SILVA. JSALAM. JCA(PHC) 13/2005PHC Colombo 96/2002FEBRUARY 11, 2009
Primary Court Procedure Act – Can a tenant make a Section 66 appli-cation? – Judicature Act No. 2 of 1978 – Is the Primary Court prevent-ed from entertaining a Section 66 application where the parties standin the relationship of tenant and landlord? – Agricultural Lands Law42 of 1973 – Agrarian Services Act – 58 of 1979 – Urban DevelopmentProjects (Special. Provisions) Act – State Lands Recovery of PossessionAct – Compared.
Held:
If a case of rent and ejectment is filed in the Primary Court, the Pri-mary Court has no power to go into the matter, but if the dispute isreferred to by way of Section 66 application where the jurisdiction iscircumscribed and limited to deciding only the issue of possession inorder to prevent a breach of the peace, then such action is within theplenary jurisdiction of the Primary Court.
Per Ranjith Silva, J.
“There is no provision under the Rent Act which gives any special rem-edy to a tenant who is evicted other than to have recourse to the gen-eral law of the country to have been restored to possession”.
APPEAL from the High Court, Colombo.
Cases refened to:-
Mcmsoor and another vs. OIC Avissawella Police and another 1991 2Sri LR at 75
Farook vs. Gwxawardane 1980 2 Sri LR 243
160
Sri Lanka Law Reports
[2009)1 SRI LR.
Ounaratne vs. Abeysinghe 1988 1 Sri LR 255
Sri Lanka Broadcasting Corporation vs. De Silva 1981 2 Sri LR 228
G. R. D. Obeysekera with Dilan Perera for appellantP. Sivaloganathan with Ms. Rajakulendra for respondent.
cur. adv. vult
February 11, 2009RANJITH SILVA, J.
Heard both parties in support of their respective cases.
The only question that has to be decided by this Courtis whether the 4th Schedule to the Judicature Act of No. 02of 1978 prevents the Primary Court from entertaining anapplication under Section 66 (1) (a) where the parties standin the relationship of tenant and landlord.
Fourth schedule to the Judicature Act: Actions excludedfrom the jurisdiction of Primary Courts.
Item: 35: Any action for rent and ejectment and proceedingunder the Rent Law.
Counsel for the appellant cites the Judgment of His Lord-ship Justice S. N. Silva, Judge of the Court of Appeal (as hewas then) in Mansoor and Another vs. O. I. C., AvissawellaPolice and Another(1) where His Lordship has held that whenthere is a specific remedy and a specific tribunal appointedto grant that remedy such disputes should be resolved by theparticular tribunal and no other tribunal.
Mansoor and Another vs. O. I. C. Avissawella Policeand'Another (supra) In this case the question before courtwas whether the existence of a special remedy under theAgricultural Lands of Law No. 42 of 1973 and the AgrarianServices Act No. 58 of 1979 removed the jurisdiction of theprimary court.
CA
KanagaUngam vs. Jegatheswaran and Another(Ranjith. Silva, J.)
161
The court was called upon to determine whether a tenantcultivator who is evicted from a paddy land can avail himselfof an order made by the primary court in proceeding underPart seven of the Primaiy Courts Procedure Act notwithstand-ing the remedy provided to him under the provision of the Ag-ricultural Lands Law and later the Agrarian Services Act.
The court up held the submission of the Counsel forthe respondent that the remedy under the AgriculturalLands Law and the Agrarian Services Act given to a tenantcultivator to complain of eviction and to secure restoration ofpossession is a special remedy which excludes any remedythat may be obtained from the exercise of the ordinaryjurisdiction of the primary court.
Farook us. Gunawardena!2) This was a case underthe State Lands Recovery of Possession Act which providefor ejectment by the magistrate. It was held that the statutecreated a special procedure and an aggrieved person wasrestricted to the procedure specified in the Act itself.
Gunaratne vs. AbeysingheF* this was a case under theUrban Development Projects (Special Provisions) Act No.2 of 1980. This Act provided for the authority to instituteaction for recovery of possession of premises. The State LandsRecovery of Possession Act which prescribes a proceduresimilar to the procedure for recovery of possession prescribedby part VA of the statute was under consideration in thatappeal. The Urban Development Projects Special ProvisionsAct gave a special remedy to a person affected by an orderfor recovery of possession made under the Act namely tomove the Supreme Court by way of writ. The aggrieved party,however, made an application for revision to the Court ofAppeal against the order for eviction made by the magistrate.In this case the Supreme Court upheld the contention of the
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Sri Lanka Law Reports
[2009] 1 SRI LR.
U. D. A. that the Court of Appeal could not act in revisionbecause its jurisdiction had been removed by the Act. (seealso Sri Lanka Broadcasting Corporation vs. de SilvdM)
Whilst fully aggreeing with the view expressed by HisLordship Justice S. N. Silva, we are of the opinion that theJudgment in that case has no application to the instant casebecause in the instant case the course of action is not onebased on Rent and ejectment. The proceedings in the instantcase cannot be termed as proceedings under the Rent Laws.Further .there is no provision under the Rent Act which givesany special remedy to a tenant who is evicted other than tohave recourse to the general law of the country to have himrestored to possession. The Primary Court is not deciding anissue finally and whatever the orders that a Primary CourtJudge shall make would be temporary in nature. If a case ofrent and ejectment is filed in the Primary Court, of course thePrimary Court Judge has no power to go into that matter. Butif the dispute is referred to by way of a 66 application wherethe jurisdiction is circumscribed and limited to deciding onlythe issue of possession in order to prevent a breach of thepeace then such action is within the plenary jurisdiction ofthe Primary Court. Therefore, we are unable to sustain thisargument and thus we dismiss the appeal.
SALAM, J. – I agree.Appeal dismissed