Sri Lanka Law Reports
 3 Sri L.R
NAZEER AND OTHERSSUPREME COURTFERNANDO, J.
AMEER ISMAIL, J.WEERASURIYA, J.
SC 49/2002CA 105/96HCRA 56/96 (F)
PRIMARY COURT, PANWILA8113
JANUARY 27, 2003
MARCH 4, 2003
MAY 8, 29, 2003
JUNE 5, 2003
Primary Courts Procedure Act – Section 23-36, Section 37-53, Section 66,Section 68 (1), Section 68(3), Section 68(7), Section 76, Section 78 – Who isan aggrieved party – Locus Standi – Issuing of a writ of ejectment – Validity? -Restoration to possession? – Circumstances – What is the object of Revision?When could the Primary Court activate the fiscal to eject a person inpossession?
In a Section 66 inquiry, the Primary Court held that the 1st respondent N wasin possession of the land on the date of filing the information and prohibitedany interference by the 2nd respondent T. The application in Revision filed inthe Court of Appeal was dismissed, Thereafter – when the 1st respondent Nsought a writ from the Primary Court for restoration of possession, he wasresisted by the petitioner, The Primary Court dismissed the claim of thepetitioner. The application in Revision filed in the High Court was dismissed onthe ground that the petitioner lacked locus standi.The appeal lodged in theCourt of Appeal was also dismissed.
On appeal to the Supreme Court.
Held (1) Section68 (4) does not make it obligatory for the Primary Court tomake an order for restoration of possession. It is an additionalorder a Primary Court Judge could make at his discretion if thefacts and circumstances warrant such a direction.
Kayas v Nazeer and Others
It is superfluous for the Primary Court Judge to make anadditional order in favour of the 1st respondent in terms ofSection 68 (4) to order restoration of possession since the 1strespondent was in actual possession.
Section 68(3) mandates the primary Court Judge directingrestoration, if he is satisfied that any person who had been inpossession has been forcibly dispossessed within two monthsimmediately preceding the date of filing the information.
The Primary Court could activate the fiscal to eject a person inpossession in terms of Section 76 in the following circumstances.
Where there is an order under Section 68 (3).
Where this is an order under Section 68 (4)
By using of inherent power of Court arising from aconviction for violating orders under Section 68 (1) and (2).
This remedy is not available to a person who had voluntarily parted hispossession flowing from transferring his proprietary rights.
The Primary Court Judge lacked jurisdiction to issue a writagainst the appellant ordering restoration of possession to the 1strespondent N as—
Me has parted with his possession when he transferred hisproprietary rights.
The order of the Primary Court Judge did not contain anorder under Section 68 (4) to restore possession to the 1strespondent.
However it appears that a new dispute had arisen as regardspossession 11 years after the 1 st respondent N parted with hispossession, the appellant was not a stranger to the executionproceedings in the Primary Court, being a person directly affectedby such proceedings as it would entail his ejectment from aproperty where the 1st respondent had no claim to possessionfrom 9.11.1985, in that sense the appellant is an aggrieved partybeing a victim of an erroneous decision by the Primary Court.
The object of Revision is the due administration of justice andcorrection of errors and that power can be exercised in respect ofany order of a lower Court to prevent an injustice on anapplication by an aggrieved person who is not even a party to thecase.
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The High Court/Court of Appeal has taken the mistaken view that theappellant has no locus standi. Appeal from the judgment of the Court ofAppeal.
Cases referred to:-
Mariam Bee Bee v Seyed Mohamed – 69 CLW 31
Abdul Samad v Musajee -1982 – 2-CALR147
A. G. v Gunawardane – 1996 – 2 Sri LR 149
S. K. Sangakkara with David Weeraratne for petitioner-petitioner- appellantDr. J. de Almeida Gunaratne with Kishali Pinto Jayawardane and MangalaWijesinghe for 1st respondent-respondent-respondent.
Cur. adv. vult.
August 8, 2003WEERASURIYA, J.
Pursuant to an information filed by Wattegama Police in terms of 01Section 66 of the Primary Court Procedure Act the learned PrimaryCourt Judge of Panwila held an inquiry into the dispute betweenNazeer (1st respondent) and Thaha (2nd respondent) in respect ofthe land called Uduwannawatta and held that the 1st respondentwas in possession of the land in dispute on the date of filing theinformation and accordingly prohibited any interference by the 2ndrespondent. Dissatisfied with that order the 2nd respondentinvoked the revisionary jurisdiction of the Court of Appeal withoutsuccess. Thereafter on 25.04.1996, the 1st respondent obtained awrit from the Primary Court for restoration of possession which was 10resisted by the petitioner-petitioner-appellant (appellant) on thebasis that he had come into possession on the strength of a deedof conveyance by the 2nd respondent (Thaha). The Primary CourtJudge rejected his claim for relief by his order dated 16.05.1996.
Against that order the appellant filed an application in revision inKandy High Court which was dismissed on a preliminary objectionthat he had no locus standi to make the revision application.Thereafter he invoked the appellate jurisdiction of the Court ofAppeal and by order dated 14.12.2001, the Court of Appealdismissed his appeal affirming the order of the High Court. The 20appellant sough special leave to appeal against the Court of Appeal
Kayas v Nazeer and Others
order and this Court granted him leave on the following questionsof law:
was the Court of Appeal correct in upholding the judgment ofthe High Court that the appellant has no status to file a revisionapplication as an aggrieved party in view of the bindingjudgments Mariam Beebi v Seyad Mohamed <1> and AbdualSamad v Musajee <2) and A. G. v Gunawardena <3) which hadbeen cited at the argument?
Was the Court of Appeal correct in its pronouncement that 30there is no merit in the appeal and which matter was notconsidered by the High Court and when it is patent;
that the Primary Court lacked the jurisdiction to issue a writof ejectment as the order of 24.10.1985 affirmed by the Courtof Appeal was only a declaratory order under Section 68(1)and (2) without an enabling order under Section 68(4) of thePrimary Court Procedure Act.
that the 1 st respondent had divested his possession of the
land by deed No. 1928 on 09.11.1985, that is eleven yearsprior to the order.40
that the Primary Court had failed to follow the procedurementioned in the Civil Procedure Code in executionproceedings with adaptations in terms of the casus omissusprocedure laid down in Section 76 of the Primary CourtProcedure Act or the procedure in Section 73 of the Act to theprejudice of the appellant.
Can an order under Section 68(1) and (2) of the PrimaryCourt Procedure Act be made use of by a party after he hasdivested his possession by a deed to a third party to obtain writand eject a bona fide purchaser for value without notice of the soorder thereby destroying his jus retentionis right and acquirevaluable improvement without payment of compensation when
he had not made any protest while the improvements werebeing made?
SubmissionsLearned Counsel for the appellant contended that appellant hadample status in law to appear in Court as an aggrieved party; that
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in the absence of orders under Section 68(3) or 68(4) the 1strespondent cannot apply to resolve a dispute after 11 yearsbetween assignees; that failure to follow the provisions of Section78 is an illegality.
Learned Counsel for the 1st respondent contended that 1strespondent had merely sought the enforcement of the originalorder made by the Primary Court: that during the pendency of theCourt of Appeal case the appellant had obtained possession fromthe 2nd respondent and that an order made under Section 68(1);entitles the Primary Court by using its inherent powers to make anorder for ejectment.
Sections 68(1), and 68(2) of the Primary Court Procedure ActSections 68(1) & 68(2) read as follows:
68(i) – “Where the dispute related to the possession of any landor part thereof, it shall be the duty of the Judge of Primary Courtholding the inquiry to determine as to who was in possession ofthe land or the part on the date of the filing of the informationunder Section 66 and make order as to who is entitled topossession of such land or part thereof.
68(2) – “An order under Sub Section (1) shall declare any one ormore persons therein specified to be entitled to the possessionof the land or the part in the manner specified in such order untilsuch person or persons are evicted therefrom under an order ordecree of a competent Court and prohibit all disturbance of suchpossession otherwise than under the authority of such order ordecree”.
The order of the Primary Court Judge of Panwila dated
affirmed by the Court of Appeal contain followingdirections.
A declaration that the 1st respondent is entitled topossession of the land;
A prohibition on the 2nd respondent to desist from disturbingsuch possession of the 1st respondent; and that
Any violation of the order will tantamount to commission ofan offence under Section 73 and liable for punishment.
Kayas v Nazeer and Others
Undoubtadly, this order had been made in terms of theprovisions of Section 68(1) and 68(2) of the Primary CourtProcedure Act.
Section 68(4) of the Primary Court Procedure ActSection 68(4) reads as follows:
68(4) – “An order under Section (1) may contain in addition to thedeclaration and prohibition referred to in Sub Section (2) adirection that any party specified in the order shall be restoredto the possession of the land or any part thereof specified insuch order”.100
Section 68(4) does not make it obligatory for the Primary CourtJudge to make an order for restoration of possession. It is anadditional order a Primary Court Judge could make at his discretionif the facts and circumstances warrant such a direction.
In the instant case, the Primary Court Judge had made a findingthat the 1 st respondent was in possession of the land on the dateof filing of the information. The complaint of the 1st respondent wasthat, the 2nd respondent had erected a barbed wire fenceobstructing his entry into the land and prayed for the removal of thefence, reiterating his position that he was in possession of the land, noIn the light of that material, the learned Primary Court Judgedeclared that the 1st respondent was entitled to possession of theland and rightly prohibited any interference with such possessionby the 2nd respondent on pain of punishment.
It was superfluous for the Primary Court Judge to make anadditional order in favour of the 1st respondent in terms of Section68(4) to order restoration of possession since he was in actualpossession of the land. The fact that the 1st respondent was inactual possession is manifest by his subsequent divesting ofpossession arising from his deed of conveyance No. 1928 dated 120
in favour of Luthufik and Mohamed AN.
The significance of this position could be highlighted bycontrasting it with the provisions of Section 68(3) of the PrimaryCourt Procedure Act. This section mandates the Primary CourtJudge to make an order directing restoration of possession if he issatisfied that any person who had been in possession has been
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forcibly dispossessed within two months immediately preceedingthe date of filing the information.
The revision application filed by the 2nd respondent in the Courtof Appeal was finally dismissed on 19.10.1994. Pending the final 130determination of this application, the 2nd respondent had obtaineda stay order effective from 26.11.1985. Before the stay order wasobtained by the 2nd respondent, the 1st respondent hadtransferred his ownership and possession of the land on
by deed No. 1928 to Luthufik and Ali. The stay ordercould make no impact on Luthufik and Ali since by that time theyhad obtained possession. There was no material to suggest thatbetween 09.11.1985 (deed of conveyance) and 19.10.1994 (date ofdismissal of the revision application) that either Luthufik or Ali wasdispossessed by the 2nd respondent. The 1st respondent has not 140complained of any disturbance to his possession either by the 2ndrespondent or by the appellant after the Primary Court made itsinitial order on 24.10.1985. However, Luthufik had complained ofhis dispossession on 05.04.1996 as evident from his complaint toWattegama Police on 06.04.1996 (1 8 3 page 481 of the brief) andcomplaint to the Grama Niladari of Madige on 10.04.1996 (1 3 5page 483 of the brief). These two complaints had been made 1 1/2years after the dismissal of the revision application. On this materialit would be clear that Luthufik was dispossessed on 05.04.1996after the 1st respondent transferred his proprietory rights and 150parted with possession to Luthufik and Ali on 09.11.1985 (Videdeed No. 1928 dated 09.11.85). Therefore, no question could ariseof any disturbance of the 1st respondent’s possession. The ordermade on 24.10.1985 in favour of the 1st respondent ceased tohave any legal effect on the 1st respondent with his divesting ofpossession to Luthufik and Ali on 09.11.1985.
Section 76 of the Primary Court Procedure Act
Section 76 states as follows:
“The Fiscal of the Court shall where necessary execute all
orders made under the provisions of this part”160
The Primary Court could activate the Fiscal to eject a person inpossession in terms of this Section in the following instances.
Kayas v Nazeer and Others
Where there is an order under Section 68(3)
Where there is an order under Section 68(4) and
By using inherent power of Court arising from a convictionfor violating orders made under Section 68(1) and (2).
It follows that the Primary Court has jurisdiction to issue a writagainst a person in possession, where there is an order underSection 68(3) or 68(4) of the Act, independent of any direction torestore possession arising from a conviction in terms of Section 73 170of the Act.
A person who has the benefit of an order made in terms ofSection 68(1) and (2) can be restored to possession only on aconviction arising from a complaint of his dispossession. Thus acondition precedent to obtain an order for restoration of possessionin favour of a person whose possession had been protected by aSection 68(1) and 68(2) order, is the existence of a convictionarising from a complaint of a violation of such order, in terms ofSection 73 of the Act. This remedy is not available to a person whohad voluntarily parted his possession flowing from transferring his igoproprietory rights.
Casus Omissus Clause (Section 78)
Section 78 of the Primary Court Procedure Act is in the followingterms.
78 – "If any matter should arise for which no provision is made inthe Act, the provisions in the Code of Criminal Procedure Actgoverning a like matter which the case or proceeding is acriminal prosecution or proceedings, and the provisions of theCivil Procedure Code governing a like matter where the case isa civil action or proceeding shall with suitable adaptations as the 190justice of the case may require be adopted and applied.”
Section 2 of the Primary Court Procedure Act stipulates thatsubject to the provisions of the Act and other written law, the civiland criminal jurisdiction of the Primary Court shall be exclusive.
Part III of the Act comprising Sections 24 – 36 provides for the modeof institution of criminal prosecution; while part IV of the Actcomprising Sections 37 – 53 provides for the mode of institution of
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civil actions. Thus, Section 78 has been designed to bring inprovisions of the Criminal Procedure Code Act or the povisions ofthe Civil procedure Code Act only in situations where either a 200criminal prosecutions or a civil action within part III or part IV of theAct respectively are involved. Inquiries into disputes affecting landwhere a breach of the peace is threatened or likely to be threatenedunder part VII comprising Sections 66 – 76 are neither in the natureof a criminal prosecution or proceeding nor in the nature of civilaction or proceeding. Those proceedings are of special naturesince orders that are being made are of a provisional nature tomaintain status quo for the sole purpose of preventing a breach ofthe peace and which are to be superseded by an order or a decreeof a competent Court. Another significant feature is that Section 78 210while making reference to criminal prosecutions or proceedingsand civil actions or proceedings, has not made any reference todisputes affecting land. This exclusion would reveal the legislativeintent that Section 78 is not intended to be made use of, forinquiries pertaining to disputes affecting land under part VII of theAct.
Locus StandiThe appellant has not challenged the legality of the order of thePrimary Court made on 24.10.1985 which was affirmed by theCourt of Appeal. The appellant has made it clear that he is 220challenging the writ obtained by the 1st respondent to eject himfrom the land. The initial order of the Primary Court Judge to issuethe writ was made on 25.04.1996 (page 248 of the brief).Admittedly, the appellant was not a party to the proceedings of thePrimary Court and therefore was not a party when the PrimaryCourt made the order on 24.10.1985, declaring that the 1strespondent was entitled to possession.
The complaint by Luthufik of his dispossession to the Police wasmade on 06.04.1996 and the complaint to Grama Niladari wasmade on 10.04.1996. Both these complaints were to the effect that 2302nd respondent and some others were making preparations tobuild on the land. The Fiscal came to the land on 30.04.1995 (P2)to execute the writ obtained by the 1st respondent and Luthufikaccompanied the Fiscal claiming that he was the agent of the 1strespondent. While the 2nd respondent did not object to the writ the
Kayas v Nazeer and Others
appellant resisted the Fiscal and he was directed to appear beforePrimary Court on 02.05.1996. The appellant presented himself inCourt on 02.05.1996 with his Attorney-at-Law and after hearing oralsubmissions, the learned Primary Court Judge directed him totender written submissions as to why he should not be ejected. Theappellant tendered written submissions on 14.04.1996 and thelearned Primary Court Judge delivered his order on 13.05.1996directing the issue of writ to eject the appellant.
The Primary Court Judge lacked jurisdiction to issue a writagainst the appellant ordering restoration of possession to the 1strespondent on two grounds.
The 1st respondent has parted with his possession of theland when he transferred his proprietory rights by deed No. 1928on 09.11.1985.
The order of the Primary Court Judge dated 24.10.1985 didnot contain an order under Section 68(4) to restore possessionto the 1st respondent.
It would appear that a new dispute had arisen between Luthufikand the appellant as regards possession 11 years after the 1strespondent parted with his possession to the land.
In the circumstances, the appellant was not a stranger to theexecution proceedings in the Primary Court being a person directlyaffected by such proceedings as it would entail his ejectment froma property where the 1st respondent had no claim to possessionfrom 09.11.1985. In that sense the appellant is an aggrieved partybeing a victim of an erroneous decision by the Primary Court. Theerror is caused by misconceiving of the applicability of the ordermade on 24.10.1985 vis-a-vis the 1st respondent.
In the light of the above material, the case of the appellant isclearly covered by th dictum of Sansoni J. in Mariam Beebi vSeyad Mohamed (6 supra 34) that the object of revision is the dueadministration of justice and correction of errors and that power canbe exercised in respect of any order of a lower Court to prevent aninjustice on an application by an aggrieved person who is not evena party to the case.
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The High Court and the Court of Appeal has taken the mistakenview that the appellant has no locus standi to seek relief. I holdthat the appellant being an aggrieved party has sufficient status toseek relief in the circumstances of this case. Therefore, I set asidethe order of the Court of Appeal dated 04.12.2001, and the order ofthe High Court dated 26.08.1996 and the order of the PrimaryCourt dated 16.05.1996 and allow this appeal with costs fixed atRs. 10,000/= payable by the 1st respondent to the appellant.
FERNANDO, J. -1 agree.
ISMAIL, J. -1 agree.280
KAYAS v. NAZEER AND OTHERS