026-SLLR-SLLR-2006-V-3-PATHIRANA-vs.-GERTI-AND-OTHERS.pdf
CA
Pathirana vs Gertl and Others
197
PATHIRANAvs
GERTI AND OTHERSCOURT OF APPEAL.
WIMALACHANDRA, J.
RANJITH SILVA, J.
CA (REV) 3/2006.
DC ANURADHAPURA 15708/L.
Civil Procedure Code-Sections 622, 627, 839 Judgment entered – Appeal-District Court functus – Appeal pending – The respondents obtained interiminjunction – Legality -Judicature Act – Section 54(3) – Court functus ?
HELD :
The District Judge has no power to adopt the procedure laid downin Sections 622-627 after the entering of the judgment especiallywhen an appeal is taken against the judgment and the appeal ispending.
To obtain an interim injunction the case must be pending andjudgment has not still been entered – Section 54(3) JudicatureAct. No interim injunction could be granted after the final judgment.
Per Ranjith Silva. J
“In a fit case the District Judge can make orders to remedy injusticeinvoking its inherent powers under Section 839, as Section 839, is notonly intended to repair errors committed by the Court itself but alsoextended to repair injuries done to a party by another party to the action
but it does not mean that the District Judge can invoke the powers
given to him under Section 54 of the Judicature Act subsequent to theentering of the judgment in a case".
APPLICATION in revision from an order of the District Court ofAnuradhapura.
Cases referred to :
1. Edward vs. De Silva – 46 NLR 342 at 343, 344
19g
Sri Lanka Law Reports
(2006) 3 Sri L. R.
Pathma Chanddri Kulatunge vs. Katuwewakge Lucie Pieris —2002 – 1SRL in 357
T. W. U. Seneviratne vs. Francis Fonseka Abeykoon -1986 – 2 SriLR 1.
D. K. Dhanapala for petitionerRespondent absent and unrepresented.
Cur. avd. vult.
17th November, 2006.
RANJIT SILVA, J.
The Plaintiff Respondent Petitioner (who shall hereinafter be referredto as the Petitioner) instituted action bearing 15708/L in the DistrictCourt of Anuradhapura on 17th June 1996 against the 3rd DefendantPetitioner Respondent (who shall hereinafter be referred to as theRespondent) and four others praying inter-alia for a declaration thatthe petitioner is the licensee of the land more fully described in the2nd schedule to the Plaint (hereinafter referred to as the Land), for theejectment of the Respondent and the other Defendants from the saidLand, for vacant possession of the said Land and for damages.
The Petitioner in his plaint alleged that the government agent ofAnuradhapura by permit No. 11/9/3/728 dated 03.08.1983 allotted tothe Petitioner a plot of land (described in the 1 st schedule to the plaint)and that he permitted the Respondent and the other Defendants, upontheir request to put up a temporary shed and occupy a portion of thesaid land which is described in the 2nd schedule to the plaint (referredto as The Land) on the understanding that the Defendants will vacatethe said land at the request of the Petitioner and that the Respondentand the Defendants failed or neglected to vacate the same on beingrequested by the Petitioner to vacate the said Land.
After trial the learned Judge delivered his judgment on 02.03.2005in favour of the petitioner granting relied prayed for in paragraph (a), (b)and (d) c. the prayer to the plaint. Aggrieved by the said judgmentthe Respondent appealed to the Court of Appeal and that appeal ispresently pending in this Court which has been assigned the number
A.78/05 F.
CA
Pathirana vs Gerti and Others (Ranjit Silva, J.)
199
On 18.03.2005 whilst the said appeal was still pending in this Courtthe Respondent filed an application in the District Court by way ofpetition and affidavit along with several documents alleging that thepetitioner forcibly entered the Land he was in occupation (land describedin schedule 2) and started to construct a building, taking the law intohis own hands without following the proper procedure as spelt out inthe Civil Procedure Code praying inter-alia for an enjoining order andand interim injunction. The application for interim relief by way of anenjoining order and interim injunction was made after the judgment inthe main case was delivered and that is quite a significant feature thatshould be remembered and taken into account in disposing of thisapplication for revision.
On 30.03.2005 the learned Judge issued an enjoining order againstthe petitioner as prayed for in the petition and after a purported inquiryon 12.09.2005 delivered his order allowing the application made by theRespondents in which he confirmed the enjoining order and issued aninterim injunction against the Petitioner. Here it must be noted thatthe parties had stipulated that the inquiry into the issuance of theinterim injunction as prayed for in the petition of the Respondent shouldbe disposed of by way of written submissions.
It is against that order dated 12.09.2005 made by the learned DistrictJudge of Anuradhapura issuing an interim injunction, the petitionerseeks to invoke the revisionary powers of this court to revise or setaside the said impugned order.
The ordinary rule is that once an appeal is taken from the judgmentand decree of an inferior court, the jurisdiction of that court in respectof that case is suspended, except of course, in respect of matters tobe done and directions to be given for the perfecting of the appeal andfor the performance of other administrative actions. The competencyor the jurisdiction of the court as the court appointed to try anddetermine the case ends once the judgment is entered in that case ;in other words the court becomes functus with regard to that particularcase in the absence of any special provision or procedure empoweringthat court to act (eg. writ pending appeal). The effect of a right ofappeal is the limitation of the jurisdiction of one court and the extensionof the jurisdiction of another. The necessary corollary that follows is
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(2006) 3 Sri L R.
when an appeal is taken from a judgment the original case should bemaintained in statu cuo till the appellate court has dealt with it andgiven its decision, {vide Edward vs. De Silva(,) at 343 and 344).
The appellate Court shall have the power to grant interim relief in afit case although it does not have the power to grant stay orders. Anaverage interim order granting interim relief should be distinguishedfrom interim orders in the nature of stay orders which tend to stay theexecution of judgments and orders of inferior tribunals. InPathmachanddri Kulatunge vs Katuwawalage Lucie Peiris(2> TheSupreme Court held that the Court of Appeal had the power to restraina party from destroying the subject matter of the action and also toauthorize a party to take necessary steps (subject to such terms andconditions as the court may prescribe) to preserve the subject matter.
In a fit case the District Judge can make orders to remedy injusticeinvoking its inherent powers under Section 839 of the Civil ProcedureCode as Section 839 of the Civil Procedure Code is not only intendedto repair errors committed by the Court it self but also extended torepair injuries done to a party by another party to the action. If a Plaintiff,pending appeal, evicts the Defendant, taking the law into his own handsthe District Judge should have the power to issue a writ to restore theDefendant to possession even without a decree for possession. {Vide.
T.W. U. Senaviratne Vs Franis Fonseka Abeykoon™. But that doesnot mean that the District Judge can invoke the powers given to himunder Section 54 of the Judicature Act subsequent to the entering ofthe judgment in a case. The District Judge has no power to adopt theprocedure laid down in Sections 622-627 after the entering of thejudgment especially so when an appeal is taken against the judgmentand the appeal is pending.
The learned district judge when he made the impugned order dated
granting an interim injunction acted outside his jurisdictionand therefore the said order is an absolute nullity as he patently lackedjurisdiction to hold an inquiry to decide on the question of issuing aninterim injunction after the judgment in the case was entered. What ismore when there is an appeal pending in this court against the judgmententered in the District Court.
CA
Pathlrana vs Gertl and Others (Ranjit Silva, J.)
201
There is another reason why the impugned order cannot be allowedto stand. The said order is illegal as there is no provision to issueenjoining orders or interim injunctions after judgment is entered in acase. At this stage I would like to analyse the relevant provisions ofthe Judicature Act dealing with this subject.
According to Section 54 (3) of the Judicature Act an interim injunctioncould be granted restraining the Defendant or any other person untilthe hearing and decision of an application for an injunction. A plaintiffor a Defendant who set up a claim in reconvention in his answer anddemands an affirmative judgment against the Plaintiff can ask for apermanent injunction or an interim injunction and/or an enjoining orderuntil the application for an interim injunction is disposed of. Theprocedure is laid down in the Civil Procedure Code. (Vide. Sections662-667). According to Section 54(1) (a), (b) and (c) such an injunctioncould be obtained only during the pendency of the case that is beforethe judgment is entered in the case. On a perusal of the wording of theprovisions of this section it makes it abundantly clear, that to obtainan interim injunction the case must be pending and judgment has notstill been entered. The relevant portion of Section 54(3) reads asfollows;
54(3) “such injunction may be granted to accompany the summons,or at any time after the commencement of the action and before finaljudgment,”.
Therefore it is crystal clear that no interim injunction could be grantedafter the final judgment and thus the impugned order dated 12.09.2005,since it was made after the final judgment in this case dated 02.03.2005was entered, is one made without jurisdiction and therefore an absolutenullity.
For the aforesaid reasons I have referred to on the applicable law Ifind that it would be redundant to refer to the facts of this case.Accordingly application for revision is granted. I set aside the ordermade by the learned District Judge of Anuradhapura dated 12.09.2005with costs fixed at Rs. 5,000.00 to be paid to the petitioner by theRespondent. This order shall not be construed as a license granted to
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the Petitioner to take possession of the subject matter (The Land)without resorting to due process of law.
Application for revision is allowed.
WIMALACHANDRA, J. — I agree.
Application allowed.