051-SLLR-SLLR-2004-V-1-KRISHNAMOORTHY-v.-GANESHAN.pdf
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KRISHNAMOORTHYv
GANESHANCOURT OF APPEALAMERATUNGA, J„
A.L.A. 24/2002 (LG)
C. KANDY 20715/LFEBRUARY 21,2003
Civil Procedure Code, sections 34 (2) and 217 (f) – Judicature Act, No. 2 of1978, section 54(1) – Enjoining order – Interim injunction sought – Courtissued notice of interim injunction without a hearing
The plaintiff-petitioner sought an enjoining order and an interim injunction anda permanent injunction against the defendant. The petitioner moved court by
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way of a motion to call the case in open court to support this application. Thecourt without hearing the plaintiff issued notice of interim injunction on thebasis that the plaintiff has not sought any main relief.
Held:
When a litigant seeks a hearing from court, he is entitled to be heardbefore an order is made in his suit.
Failure of court to give a hearing to the plaintiff deprived the plaintiff anopportunity to make submissions in support of the enjoining order and thishas resulted in grave prejudice to the plaintiff.
APPLICATION for leave to appeal from an order of the District Court ofKandy.
Cases referred to:
Gorden Frazer & Co. v Jean Marie Losio and Martin Venzel- (1984)2 Sri LR 85.
Ittepana v Hemawathie – (1981) 1 Sri LR 476 at 479
P. Nagedra, P.C., with A. R. Surendran for plaintiff-appellant.
C.Vivekanandan with P. N. Joseph and I.L.M. Answer for defendant – respon-dent.
Cur.adv. vult
March 7,2003
GAMINI AMARATUNGA, J.This is an application for leave to appeal against the order of the 01learned District Judge dated 17/1/2002 made in the above action.
The plaintiff filed his plaint, proxy and affidavit on 15/1/2002 andmoved court, by way of a motion bearing the same date to call thecase in open court on 18/1/2001 to enable Counsel to support theapplication contained in the plaint. In the prayer of the plaint, theplaintiff has prayed for an enjoining order and an interim injunctionand a permanent injunction against the defendant. The learnedJudge has made an order on 17/1/2002 to the following effect.
“According to prayer of the plaint, the plaintiff has not sought any 10main relief. He has merely sought permission under section 34(2)of the Civil Procedure Code to institute action after 31/3/2002 toenforce remedies available to him under the law. Issue notice of
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interim injunction to the defendant in respect of the relief prayed forin paragraph “B" of the prayer in relation to the property set out inthe schedule.”
The complaint of the learned President’s Counsel for the peti-tioner is that the learned Judge should have given an opportunityfor the plaintiff's Counsel to support the application for an enjoiningorder and if such opportunity had been given the plaintiff's Counselwould have placed his submissions before the learned Judge topersuade him to grant the enjoining order prayed for by the plain-tiff. It was the contention of the learned President’s Counsel that thefailure of the Court to give a hearing to the plaintiff's Counsel beforethe learned Judge made order directing notices to be issued inrespect of the application for interim injunction deprived the plaintiffof the opportunity to make submissions in support of the enjoiningorder and this resulted in grave prejudice to the plaintiff. Thelearned President’s Counsel therefore sought leave to appeal onthe basis that the learned Judge’s order gives rise to a question oflaw fit to be adjudicated by this Court by way of an interlocutoryappeal.
The facts relevant to the institution of proceedings by the plain-tiff against the defendant are as follows. The plaintiff claims that atone time he was the Administrative Manager of the SriSelvavinayagar Kovil also known as Pulleyar Kovil situated at No71, Colombo Street, Kandy. In that capacity, by agreement markedP1 he let premises No 36 Peradeniya Road, Katukele, Kandy, prop-erty belonging to the Temple to the defendent. Subsequently thehereditary trustees of the said Temple gave Powers of Attorney tothe plaintiff and in view of these Powers of Attorney the tenancyagreement P1 entered into between the plaintiff in his capacity asthe Administrative Manager continued to subsist. The Plaintiffalleges that he became aware around 24/11/2001 that the defen-dant was making unauthorised alterations to an unauthorised erec-tions of the property let to him and in consequence of this heinstructed the defendant to stop all such activities. But when he didnot respond to such requests/instructions a notice to quit dated29.12.2001 was sent informing the defendant that his tenancy hasbeen terminated and requesting him to leave the premises let tohim on or before 31/3/2002. The notice to quit has been marked
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p14. The grounds upon which the said notice to quit has been sentare set out in that letter. However since the defendant did not stophis acts relating to the alterations 'and the construction of newbuilldings in the premises let to him, the plaintiff filed the presentaction to obtain injunctive relief preventing the defendant fromgoing ahead with the buiding operations. However since the actionhas been instituted before the date set out in the quit notice for thedefendant to hand over vacant possession of the premises theplaintiff was unable to seek a decree for the ejectment of the defen-dant. The learned President’s Counsel submitted that the plaintiffout of abundance of caution sought permission of Court, under sec-tion 34(2) of the Civil Procedure Code, to file action against thedefendant after 31/3/2002 to enforce remedies available to himunder the law. The learned Judge's order made in respect of theprayers contained in the plaint of the plaintiff is the subject matterof this application.
At the hearing of this application it was agreed that if the Courtis inclined to grant leave to appeal, the Court may in the same orderdeal with the appeal as well. Mr. Vivekanandan who appeared forthe defendant-respondent raised certain matters relating to theaction of the plaintiff. He submitted that whether the plaintiff is theproper holder of the Power of Attorney of the Hereditary Trustees isa question which is in dispute. He further raised the questionwhether the plaintiff's act of seeking permission of Court under sec-tion 34(2) of the Civil Procedure Code is correct and tenable in law.At the very outset I wish to state that all those matters raised by Mr.Vivekanandan are not matters to be considered by this Court at thisstage and all those are matters to be raised before the DistrictCourt at the appropriate stage. The Court’s present task is to seewhether the District Court should have given a hearing to the plain-tiff before making the order dated 17/1/2002.
On that point, Mr. Vivekanandan very graciously agreed thatwhen a litigant seeks a hearing from Court he is entitled to be heardbefore an order is made in his suit. The point to be decided here iswhether the failure to give a hearing to the plaintiff has caused anyprejudice to him. It appears that basis for the learned Judge’s orderwas the learned Judge’s view that the plaintiff has not claimed anysubstantive relief. In connection with this the learned President’sCounsel cited the decision of this Court in Gordon Frazer and Co.
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v Jean Marie Losio and Martin VenzefJ). He brought to the noticeof Court the following passage from the judgment.
“Section 54(1) (a) of the Judicature Act, No. 2 of 1978provides that the plaintiff is entitled to an injunctionagainst the defendant restraining the commission of anact, the commission or continuance of which would pro-duce injury to the plaintiff. This in itself is a substantiverelief which can be made the subject of a decree in termsof sections 217(f) of the Civil Procedure Code, without aprayer for declamatory relief’. P92 (emphasis added).100
The learned President’s Counsel submitted that if the plaintiff’sCounsel had an opportunity to make submissions before thelearned Judge to explain the legal position as set out in the pas-sage cited above" that would have been a vital factor to be consid-ered in deciding whether an enjoining order should be issued toprevent the defendant from carrying out further construction opera-tions. After considering the legal position set out above, a Judge isentitled to make his own decision but Mr. Nagendran’s submis-sions was that the failure of the Court to give a hearing to the plain-tiff's counsel deprived the plaintiff's chance to attempt to persuade 11cthe Court to issue an enjoining order as prayed for. I am in agree-ment with this submission. When a litigant seeks a hearing it is theduty of Court to grant it. As was stated by Sharvananda, J. (as hethen was) in Ittapana v HemawathieW at 479 principles of naturaljustice are the basis of our laws of procedure. For the reasons setout above I grant leave to appeal and allow the appeal and setaside the order of the learned District Judge dated 17/1/2002 anddirect the learned judge to give a hearing to the Counsel for theplaintiff to support his application for the relief prayed for in theplaint and make an appropriate order thereafter. In the circum- 120stances of this case I make no order for cost.
Appeal allowed.
Trial judge directed to give hearing to the counsel for plaintiff tosupport his application for reliefs prayed for.