023-SLLR-SLLR-1999-V-3-KUMARIHAMY-AND-OTHERS-v.-WIMALADASA.pdf
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Kumarihamy and Others v. Wimaladasa
175
KUMARIHAMY AND OTHERS
v.WIMALADASA
COURT OF APPEALEDUSSURIYA, J.,
JAYASINGHE, J.
A. NO. 214/92 (F).
C. KURUNEGALA NO. 451/LFEBRUARY 11, 1998.
Contempt of Court – Interim injunction – Acting in violation – Burden of proof- Acquisition of land in respect of which an injunction is issued – Its effect.
The plaintiff-appellants instituted action against the defendant-respondents com-plaining that defendants were attempting to open up a cart-track over the plaintiffspaddy-field and obtained an interim injuction restraining the defendant-respondentsfrom proceeding with the proposed roadway. The plaintiffs later complained thatthe defendants along with the administrative officer of the Village Council hadacted in violation of the interim injunction and moved Court to deal with thedefendants for contempt of Court. The District Court found the defendants notguilty. On appeal –
Held:
Injunction granted by a competent Court must be obeyed by the party untilit is discharged notwithstanding the fact that it was irregularly issued.
The question for determination is whether the plaintiff-appellant hasadduced enough evidence to support the position that the defendants infact has acted in violation of the interim injunction. It must be borne inmind that the burden of proof in a charge of contempt is very high.
The interim injunction was issued on the basis that the plaintiffs were theowners of the land in respect of which the interim injunction was issued.However, by the date of the alleged contempt, the said land had beenacquired by the State, thus, the interim injunction though formally still inforce as it had not been dissolved ceased to be meaningful and thereforethe plaintiff cannot urge the Court to punish the accused for contemptof Court.
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[1999] 3 Sri LR.
APPEAL from the District Court of KurunegalaCase referred to:
Silva v. Appuhamy 4 NLR 178.
Faiz Musthapha, PC with Hemasiri Withanachchi for the plaintiff-appellant.Ananda Kasturiarachchi with Ms. Medini de Silva for the defendant-respondent.
Cur. adv. vult.
September 18, 1998.
JAYASINGHE, J.
The plaintiffs instituted action in the District Court of Kurunegalaagainst the defendants on 10.03.1978 complaining that the defendantswere attempting to open up a cart-track over the plaintiffs paddy landknown as Amuna Maha Liyadda and that the 1st defendant summonedthe plaintiff (identity of the plaintiff not disclosed in the plaint) to hisresidence, and threatened him with bodily harm if he (plaintiff) objectedto the proposed cart track which was scheduled to commence on12.03.1978. The plaintiff states that he was offered alternate land fora roadway and also alleged that the proposed cart-track was to gaindirect access to the house of the 2nd defendant. Plaintiffs allegedthat the 3rd and 4th defendants were also motivated by jealousy. Theplaintiffs asked for and obtained an interim injunction restraining thedefendants from proceeding with the proposed roadway. The defend-ants filed objections on 16.05.1978; that 2nd, 3rd and 4th defendantsare respectively the Secretary, Chairman and Member of the PalleThibatuwawe Grama Sangwardana Samithiya. They pleaded that therewas a roadway from Weerembugedara Gamsabaha road toBamunugedara via Yalawa which runs over the plaintiffs and severalother paddy-fields; that steps were being taken by the Village Councilto widen the existing cart-track and that the defendants had maderepresentations to the Special Commissioner and Member of Parlia-ment of the area, the 1st respondent regarding the said road widening
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after the dissolution of the Village Council; that the plaintiff too par-ticipated at the discussions held at the Grama Sanwardana Samithiya;that the land required for the said road widening was acquired byorder made under proviso to 38 (a) to the Land Acquisition Act andpublished by Gazette notification dated 04.05.1978 and that the AssistantCommissioner of Local Government was taking steps for the wideningof the roadway and moved for dismissal of the plaintiffs' action. Thedefendants filed answer on 20.10.1978 thereafter. The plaintiff filedan amended plaint on 25.03.1983 in which they alleged that thedefendants had notwithstanding the interim injunction proceeded towiden the roadway causing damage in a sum of Rs. 53,176 and prayedfor judgment. The plaintiffs on 11.03.1981 complained to the DistrictCourt of Kurunegala by way of petition/affidavit that the defendantsalong with the Administrative Officer of the Kalugamuwa Village Councilhad acted in violation of the interim injunction and moved Court todeal with the defendants for contempt of Court. The inquiry com-menced on 02.05.1991. At the said inquiry the 2nd plaintiff gaveevidence; that in the year 1978 he obtained an interim injunctionrestraining the defendants from opening up a roadway through hisland as set out in the schedule to the plaint which is depicted in planNo. 1310 prepared by A. B. M. Webber marked and produced X. Thesaid interim injunction was served on all four defendants. In answerto a question by Court the witness stated 2nd, 3rd and 4th defendantsproceeded with the construction on 6.3.1981. He denied that therewas roadway over his land when he obtained the interim injunction.The witness identified by name Tikiri Banda the 2nd defendant,Appuhamy the 3rd and Wimaladasa the 4th. The 2nd defendant isnow deceased and that he is proceeding against the 3rd, 4th onlyand prayed that the 3rd and 4th defendants be dealt with. (On a laterdate the 3rd defendant also died and the case proceeded only againstthe 4th). He stated that the Shramadana to construct the roadwaycommenced on 06.03.1981. Under cross-examination he admitted thatthe land had been acquired by the State and according to D2 anorder has been made by the Magistrate to hand over possession tothe fiscal by order dated 09.10.1979 when the plaintiff resisted thetake over by the Acquiring Officer. One R. M. Tikiribanda also gaveevidence. He stated that the construction of the road commencedon 11.03.1978 through a Shramadana and it was recommenced on
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06.08.1981 after a lapse of time; that Wimaladasa the 4th defendantand 25 to 30 people were engaged in the Shramadana. When ques-tioned regarding the specific acts done by the 3rd and 4th defendants,the witness replied that they supplied tea to the volunteers and alsobrought earth from their fields. The volunteers stated under cross-examination that he was not present at the scene where the Shramadanawas done but that he watched what they did from his house whichaccording to him was 60 to 70 fathoms away. Though the witnessstated that Wimaladasa and 25 to 30 others participated in theShramadana he shifted his position therefrom stating that Wimaladasaand Appuhamy brought tea and earth. When questioned as to whoconstructed the culvert having said that it was Wimaladasa and TikiriBanda he again shifted his position saying that he was not there.He also stated that he was unaware that the 3rd and 4th defendantsgave instructions regarding the construction of the road.
The chief clerk of the Pradeshiya Sabhawa one Karunasena gaveevidence for the defence. He produced D3 an agreement entered intobetween the Pradeshiya Sabha and the Grama Sanwardana Samithiyafor the construction of the road which included the culvert at a costof Rs. 86,840. Thereafter, the 4th defendant gave evidence. He statedthat he was a Grama Sevaka Niladhari and that there was an interiminjunction issued and that the said interim injunction related to theconstruction of Yalawa Motabara road which feeds five other roadsat Uhumiya; that the said road was vital to the life of the communityand that the land owners agreed to contribute to the construction ofthe said road; that there was no existing roadway or even a footpath.The villagers used the ridge or the niyara and that the area is inhabitedby about three hundred to four hundred families. He denied that theroadway was constructed over the plaintiffs' land; that the land inquestion was acquired by the State for the roadway; that theKalugamuwa Village Council had entered into an agreement with TikiriBanda (2nd defendant) for the construction of the said road; that heparticipated at the Shramadana in the year 1978; denied that heparticipated in the year 1981; that it was Tikiri Banda (2nd defendant)who constructed the road and he denied that any earth was removedfrom his paddy-field for the construction of the road.
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The 3rd defendant who is now deceased also gave evidence.His position was that he did not participate in the construction ofthe roadway after the interim injunction was issued. He denied thathe participated in the Shramadana on 6.3.1981 and that it wasTikiri Banda who constructed the road having obtained the contract.His position was that at the time the interim injunction was servedthe construction of the road had not reached the plaintiffs land andthe construction was abandoned. Thereafter, it was recommenced on6.3.1981 after a lapse of about 3 years. He denied that he even sawthe construction proceeding after 6.3.1981. His evidence was a totaldenial that he acted in violation of the interim injunction.
The question for determination by this Court is whether the de-fendants had defied the judicial order and consequently committedcontempt of Court. Mr. Musthapha submitted that the interim injunctionissued by the District Court of Kurunegala at the time Tikiri Bandaentered into an agreement for the construction of the road was stillin force. Admittedly, the defendants had not sought to have the saidinjunction dissolved on the ground that the portion of the land inrespect of which the injunction was issued and operative had sub-sequently being acquired. Mr. Musthapha also submitted that thesubsequent acquisition of the land in respect of which an injunctionhas been issued does not affect the validity of the injunction inasmuchas an injuction granted or obtained is an order of Court and mustbe obeyed and that the defendants are guilty of breach of theinjunction. It is contempt which the Court will punish. Mr. Musthaphafurther submitted that the reason for the rule stated above is foundin the necessity of preserving the respect and obedience due to themandate of equity and preventing disastrous confusion which wouldinevitably result from allowing parties against whom injunctions areissued to be themselves the Judges of the propriety of the relief orthe regularity of the proceedings from the nature of the case. Thetribunal granting the relief must itself be the arbitor and its mandateare to be strictly observed until properly revoked. Mr. Musthaphareferred to N. D. Basu, Law of Injuctions second revised edition.Mr. Musthapha further submitted that if the defendants-respondentswere of the view that the subsequent acquisition of the said land had
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automatically nullified the effect of the injunction they ought to haveapplied to the District Court for an appropriate order instead oferroneously assuming that their purported recourse to executive -administrative action would have the effect of overriding the authorityof the Courts by forestalling an order thereof. In Silva v. Appuhamy°>it was held that an injunction granted by a competent Court must beobeyed by the party whom it affects until it is discharged notwith-standing the fact that it was irregularly issued. I am not in disagreementwith Mr. Musthapha on the exposition of the principles cited above.
But, the question for determination as stated before is whetherthe plaintiff has adduced enough evidence to support the positionthat the defendants in fact has acted in violation of the interiminjunction. The tried Judge has given his mind to this aspect and hadobserved that the plaintiffs had failed to discharge that burden. Hehas in his order adverted to the discrepancies in the plaintiffs caseand consequently held that there has been no violation of the interiminjunction by the 3rd and 4th defendants as alleged and has foundthe defendants not guilty. In this connection it must be borne in mindthat the burden of proof in a charge of contempt is very high.
We may add that the interim injunction was issued on the basisof the averments that the plaintiffs were the owners of the land inrespect of which the interim injunction was issued. However, by thedate of the alleged contempt, admittedly by the 2nd plaintiff, the saidland had been acquired by the Government and thus, the interiminjunction though formally still in force as it had not been dissolvedceased to be meaningful and therefore the plaintiffs were no longerin a position to urge this Court to punish the accused for contemptof Court.
We see no reason to interfere with the findings of the learnedDistrict Judge. The appeal is accordingly dismissed. We make no orderfor costs.
EDUSSURIYA, J. – I agree.
Appeal dismissed