008-SLLR-SLLR-2007-V-1-MOSES-v.-WELARATNE.pdf

On 19.8.1998 the District Court issued the enjoining order. On2.9.98 the respondent filed his objections to the said application foran interim injunction. Further the respondent filed his answer for themain case. On the 23.2.1999 the District Court delivered the orderdismissing the said application for an interim injunction.
On 8.4.1999 the petitioner filed an application for revision inthe Court of Appeal against the order of the District Court. Thereliefs sought in the said revision application were as follows:
Act in Revision and set aside the said Order 23.2.99 of thelearned Additional District Judge of Colombo.
Grant issue an interim injunction until the hearing anddetermination of this action restraining the respondents, hisagents and servants from destroying and breaking the roofand the wall on the Northern side of the premises depictedas Lot 2B in plan No. 2451 dated 4.11.1986 made byA.E. Wijesuriya licensed Surveyor bearing assessmentNo. 54/14A, Jayaweera Mawatha, Etui Kotte, and construct-
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CAMoses v Welaratne (Rohini Perera, J.)81
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ing structures on the Northern side in the said premises.
Grant and issue an interim injunction until the hearing anddetermination of this action restraining the respondent andhis agents and servants from destroying and breaking theroof and the wall on the northern side premises depicted asLot 2B on Plan No. 2451 dated 4-11-1986 made by A.E.Wijesuriya, Licensed Surveyor, bearing assessment No.
57/14A, Jayaweera Mawatha, Etui Kotte, Kotte and 90constructing structures on the northern side in the saidpremises.
The respondents filed objections to the revision application on10.6.1999, and annexed R1 which is the police complaint dated8.3.98.
In the statement of objections the respondents stated that theconstruction of the building was now been completed with the roofas well and the Certificate of conformity was marked as R2. Thisrevision application was taken up for argument on the 30.6.99 andthe Court of Appeal made the following order.100
"same appearance as before – at this juncture the respondent(as the defendant stood then) undertakes not to effect furtherconstructions and to maintain status quo. The interiminjunction is accordingly issued restraining the defendant-respondent from continuing to build thereafter".
I shall refer to this order dated 30.6.99 as Y.
Any undertaking given in ex facie curiae is equivalent to ajudgement or Order from a Court. Whenever, such an undertakingis breached it would amount to a contempt of Court. On the 30th ofJune 1999, the parties would have provided the court an noundertaking to refrain from constructing any additional buildingsand thereby to maintain the status quo ante of the Northern side ofthe boundary of lot 2B as depicted in the plan 2451.
'It may sometimes happen that a party gives a more wideranging undertaking than he intended. In such a situation, the Courtin it's discretion may decline to enforce that part of the undertakingwhich had been given by mistake', (see: Aldridge, Eady and Smith,
CAMoses v Welaratne (Rohini Perera, J.)83
on Contempt, Sweet & Maxwell, London, 2005, at paragraph12-189)
The parties could not have undertaken to maintain the statusquo ante and thus refrain from building on 'all the boundaries' forthat is not the dispute. In Ranjith Senanayake and Others v PaulPeiri&V at 169, 175, this Court had laid down the following prin-ciples to which I will now refer. The facts of that case are notrelevant to these proceedings. However, the principles laid down inthat decision is relevant to the present Appeal. It was held by thisCourt.
That the petitioner's apprehension that they would be liablefor Contempt of Court is not well founded and thereforethere was no exceptional circumstances to act in revision.
That in view of the criminal nature of the Contempt ofCourt proceedings,
there must be clear evidence of violation of anyCourt order or injunction
such an order should be strictly construed
in determining whether or not breach has beencommitted, regard should be paid to circumstancesand the object for which such injunction wasgranted or order was made".
The object of the order referred to as Y was to preserve thestatus quo ante only of the Northern boundary.
At 175 in Ranjith Senanayake's (supra) decision to which wehave referred above, the Court of Appeal had written:
"in the case of P.A. Thomas and Company v Mould2) it was
held that,where parties seek to invoke the power of the
Courts to commit people to Prison and deprive them of theirliberty, there have got to be quite clear and certainty about it."
It has been stated in Arlidge, Eady & Smith at 908:
"An order of undertaking will not be enforced by committal ifit’s terms are ambiguous, the rule being analogous to thatwhich govern the interpretation of Penal Statutes. It is to theterms of the order itself that one must lot>k in order to definethe obligations imposed."
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Therefore it is fundamentally important that one reads thepetition and the reliefs that were prayed for on which the allegedbreached undertaking was based.
In this case the relevant application is the application dated08.04.1999 which is also connected to the original Plaint filed in theDistrict Court dated 08-081998 which was marked XI. Thatundertaking which was imposed on 30.06.1999 had been properly 160entered and the writing is sufficiently clear to ensure that thedefendant should not disturb the boundary and maintain the statusquo ante of the premises concerned. It should be noted notwithstanding the fact that the word "Northern Boundary" is notincorporated in the said order, the disputed area is the “NorthernBoundary" as stated both in the Plaint and the Petition and Affidavitdated 08.04.1999.
"A defendant cannot be committed for contempt on the groundthat upon one of two possible constructions of undertakingbeing given he has broken that undertaking. For the purpose 170of relief of this character, I think the undertaking must be clearand the breach must be clear beyond all question. “
Words of Jenkins J. in Redwing Ltd v Redwing ForestProducts LtdS2ai Cited in Harris v Harris<3> at 328. Quoted at page909 of Arlidge, Eady and Smith on Contempt.
The petition now before this Court for decisions is dated24.3.2003. The relevant paragraph is paragraph 17 which statesthe following.
"In the aftermath of the aforesaid conviction, while beingplaced on bail by your Ladyship's Court, the respondent once 180again in violation and/or disobedience of the interim injunctionissued by your Lordship's Court on 30-06-1999 acting by orthrough his agents carried out the construction of
Steel posts along the boundaries of the premisesconcerned,
A steel mesh along the boundaries of the premisesconcerned,
A new covering of the roof of the premises concerned,overlooking the Plaintiff-Petitioner-Petitioner's roof.
CAMoses v Welaratne (Rohini Perera, J.)85
The petitioner produces herewith marked “C5", a copy of thecomplaint made by the petitioner to Welikada Police on 07-06-2003and marked “C6", "C7", and “C8“ photographs depicting theunlawful construction work carried out by the respondent on 07-06-2003 and plead them part and parcel hereof.
And the plaintiff-petitioner prays that this Court takecognizance of the Contempt Committed by the respondentbreaching/disobeying/violating the order Y and punish therespondent."
On 28.2.2006 Counsel for the respondent took up apreliminary objections as to the sustainability in Law of theapplication of the petitioner dated 24 Nov. 2003 on the basis thatthere is no charge to which the respondent could plead. TheCounsel agreed to file written submissions on this preliminaryobjection.
"It is a well recognized principle of Law that no person oughtto be punished for Contempt of Court unless the specificcharge against him be distinctly stated and opportunity ofanswering it had been given to him". Cowardv StapletorW at579-80.
"This principle must be rigorously insisted upon", (ibid.,Arlidge, Eady and Smith page 68 para 2-18).
However, before this Court makes a determination with regardto that aspect of the objection, the Court should determine whetherthe order made by the Court, had been violated, and whether thereis a basis for commencing proceedings for contempt.
However, I do not agree with the written submissionssubmitted by the respondents to this Court in its entirety. The orderY does not refer to the demolishing of the wall or the roof and if therespondent had not demolished the wall or the roof of the Northernside he cannot be held to have acted in defiance of the order Y. Itmust be noted that at the time the respondent filed his statement ofobjections it had been alleged by the petitioner that the walls hadalready been demolished and the roof had already been damaged.The building on the alleged disputed area was already completed.And it was undertaken by the parties on the 30.6.99 'not to effect
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further constructions and to maintain status quo ante. By order Ythe parties are prohibited from effecting additional constructionsand the parties must maintain the current situation that existed onthe Northern boundary as at 30th June 1990 as depicted in the plan2451. Though the order Y does not specify the location it is obvious 230that the Order applies only to the Northern side, as that in fact wasthe disputed area. It may also be relevant to mention that theearlier application for revision was filed by the petitioner, at a timewhen, the respondent had been punished for contempt. This matteris now on appeal to the Supreme Court. In that petition dated08.04.99 the petitioner alleged that "the respondent is continuing toconstruct structures on the Northern side in the said premisesdestroying the boundaries of the premises on the Northern side andthereby irreparable loss and damage is caused to the petitioner",(paragraph 13)240
However, in the present petition dated 24-03-2003 thepetitioner states the following namely,
"That the respondent is carrying out the construction of
Steel posts along the boundaries of the premises concerned,
A steel mesh along the boundaries of the premisesconcerned,
A new covering of the roof of the premises concerned,overlooking the plaintiff-petitioner-petitioner's roof."
The party had been expressly enjoined by injunction fromdoing a particular thing in a particular location and if he violates 250those particular acts, then he shall be guilty of Civil Contempt. Thepetitioner should have demonstrated that the alleged Contemnorintentionally (not accidentally) knowing the facts which rendered ita breach of the relevant order or undertaking had committed theact. Here there is no undertaking with regard to the "otherboundaries* other than Northern boundary.
The Authorities have clearly stated, that:
"Probabilities not sufficient". Mere probabilities may not be
sufficient to exercise jurisdiction and there must be proof of
willful conduct. Nigam v Kedarnath Guptal5). (See Narayan, 260
Law of Contempt 4th Edition, at paragraph 85).
CA
Moses v Welaratne (Rohini Perera, J.)
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What is relevant is whether the Contemnor had breached theundertaking and not whether it was done accidentally, mistakenly,intentionally, or willfully. These matters are matters that are relevantat the inquiry. Here in this Court it is only a determination of apreliminary issue.
If the respondent did any act on the Northern boundary whichwould amount to a construction or which would change thecondition in which the boundary was, as it had existed on the 30thJune 1999, he may then be guilty of Contempt of .Court.270
When there is no order with regard to the other boundariesthere cannot be any compliance of such an order, hence noContempt is Committed. The pleadings merely refer to"Boundaries of the premises concerned" and refer further to "anew covering of the roof of the premises concernedoverlooking the plaintiff-petitioner-petitioner's roof".
These do not indicate with any specificity which part of theboundary has been violated and which part of the roof hasbeen given a new covering. There is a most cogent view of thelaw which is relevant to these proceedings on this point, 280expressed by the authors of the book On Contempt to whichreference has been made earlier (ibid., Arlidge, Eady & Smithat paragraph 12-190). It reads as follows:
"Just as with a breach of an Order, where the Court will notcommit and alleged contemnor unless the breach is strictlyproved, so with an undertaking if there is doubt it may beappropriate, instead of invoking the process of contempt, toapply for an order requiring the alleged contemnor to statewhether he has complied with his undertaking, although thisdoes not seem to be an option that is often invoked", (see 290Kangol Industries Ltd. v Bray (Alfred) & Sons Ltd.w
Additionally, Lord Denning M.R., in his judgment in the EnglishCourt of Appeal, in Comet Products (UK) Ltd. v. HawkexPlastics LtdS7> expressed the view:
"I am prepared to accept that such a rule [compulsoryinterrogation] did exist in the days of Sir William Blackstonebut I do not think it exists any longer today. The genius of the
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Common Law has prevailed. I hold that a man who is chargedwith contempt of court cannot be compelled to answerinterrogatories or to give evidence himself to make him prove 300his guilt. I reject the submission that the defendant is acompellable witness in the contempt proceedings" {ibid., atpages 74-75). We are firmly of the view that the petitioner hadfailed to establish to our satisfaction that the respondent hadviolated the Order Y, to which we have previously referred andtherefore on the facts submitted to this court, thecircumstances do not warrant a commencement of contemptproceedings.
To commence Contempt proceedings in cases of CivilContempt summons should be issued on the Contemnor with 310a copy of the order of the alleged violation.
"It is also necessary to establish service of any order which isalleged to have been disobeyed by leaving a copy with the personto be served. The importance of personal service of the order,where committal is sought, is to enable the person bound by thatorder, and who is alleged to be in contempt, to know what conductwould amount to a breach; (at page 904 of Arlidge, Eady & Smithon Contempt)
It appears that the documents served on the respondents areC1 and C8. And along with the Summons the charge sheet is also 320attached. But the alleged violated order dated 30.6.99 is notattached. C1 is the judgment dated 8.10.2002, C2 sentencing orderdated 8.10.2002, C3 petition of the S.C. Spl. L.A. ApplicationNo. 271/ 2002, C4 the order with regard to bail C5 which is thestatement of the petitioner to the Welikada Police on 07-06-2003. 3photographs marked as C6, C7, C8 and the negatives of thephotographs and the police investigation notes.
However, there is no disclosure of a violation of the Courtorder Y in the Petition and Affidavit produced on behalf of thepetitioner on 24-11-2003. Therefore, not withstanding the fact that 330summons had been issued this Court has a discretion to terminatethese Contempt Proceedings. The Contempt Proceedings are thusterminated and the respondent is discharged from these ContemptProceedings.
Contempt proceedings terminated.