PEIRIS AND ANOTHER v. PERERA AND ANOTHER

020-SLLR-SLLR-2002-V-2-PEIRIS-AND-ANOTHER-v.-PERERA-AND-ANOTHER.pdf


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Sri Lanka Law Reports
[2002] 2 Sri L ft
PEIRIS AND ANOTHER
v.PERERA AND ANOTHER
COURT OF APPEALUDALAGAMA, J., ANDNANAYAKKARA, J.
CALA NO. 26/2001DC PANADURA NO. 2794/SPLJULY 19, 2001
Mandatory Injunction to remove obstructions of access – jurisdiction of DistrictCourt – Civil Procedure Code s. 662 and s. 664 (1) – Judicature Act, No. 2 of1978 – s. 54 (1).
The District Court issued a mandatory injunction to remove an obstruction of accessto the plaintiff-respondent's premises and issued a further order todemolish a wall constructed to prevent access of the plaintiff-respondent to herpremises.
It was contended that the District Court had no jurisdiction to issue a Mandatoryinjunction, as the ownership of the land in dispute and the rights of title oughtto be decided after trial.
Held:
Acts which tend to make a restraining order nugatory must necessarilybe prevented especially when an act appear to be of a recent originwhich compels a party to seek such relief. Interim relief is equitablerelief. Delay would defeat equity.
Mandatory injunctions demanding a positive act mandated only as anecessary ancillary to an injustice aimed at the protection or preventionof the subject in the same condition it was when the cause of action arose.
Per Udalagama, J.
"With today's improved technologies in the field of construction suchobstructions by way of a cement block wall could come up in hours. In such
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Peiris and Another v. Perera and Another (Udalagama, J.)129
instances before an injunction could issue to restrain someone from doingsomething the mischief complained of could well have been done.
Although injunctions are normally granted directing that something shouldnot be done, exceptions could arise where something has been done toalter the status quo. In which event courts should as far as reasonablypossible intervene to undo it even by the grant of mandatory relief."
APPLICATION for leave to appeal from the order of the District Court of Panadura.
Cases referred to:
Redland Bricks Ltd. v. Morris – 1969 – 2 ALL ER 575.
Tudor v. Anulawathie and Others – 1999 2 SLR 235.
V. Kulatunga for 3rd and 4th defendants-appellants.
C. Prematilake for plaintiff-respondent.
Cur. adv. vult.
August 27, 2001
UDALAGAMA, J.
The defendants-petitioners, vide their petition dated 30. 01. 2001, 1prayed for leave to appeal against the orders of the learned DistrictJudge dated 19. 01. 2001 and 24. 01. 2001. The petitioners alsoprayed to stay proceedings in DC Panadura case No. 2794/spl. Onthe petitioners' application made ex parte, this Court on 31. 01. 2001granted a stay order but on 06. 04. 2001 refused to extend sameas the dispute concerned a right of way.
The facts briefly appears to be as follows : The learned DistrictJudge by his order of 19. 01. 2001 issued a mandatory injunctionto remove an obstruction of access to the plaintiffs premises in 10accordance with paragraph (b) of the plaint and on 24. 01. 2001
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issued a further order to demolish a wall constructed to preventaccess of the plaintiff to her premises.
The basis of this application of the petitioners to set aside theimpugned order appears to be that the learned District Judge hadno jurisdiction under section 664 (1) of the Civil Procedure Code orsection 54 (1) of the Judicature Act of 1978 to issue a mandatoryinjunction. As conceded by the petitioners the ownership of the landin dispute and the rights of title ought to be decided by the DistrictCourt after trial.20
In no case has it been said that courts cannot issue mandatoryinjunctions. Section 54 of the Judicature Act together with sections662 and 664 of the Civil Procedure Code empowers court to issueinterim injunctions. Operational word in the provisions of the aboveis "restrain". I am of the view that in certain instances restrain envisagesa positive act, for example, for removing of an obstruction to a roadby a recently erected fence. Any restraining order could not be madenugatory by some act of the defendants. Acts which tend to makea restraining order nugatory must necessarily be prevented especiallywhen an act appears to be of a recent origin which compels a party 30to seek such relief. Interim relief is an equitable relief. Delay woulddefeat equity. Mandatory injunctions demanding a positive act is somandated only as a necessary ancillary to an injunction aimed at theprotection or prevention of the subject in the same condition it waswhen the cause of action arose.
I am inclined to the view that an interim injunction restrictive innature can be supplemented by a mandatory one in order to makeit effective.
However, as stated by Lord Upjohn in Redland Bricks Ltd v.Morris™ “the grant of a mandatory injunction is, of course, entirely 40
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discretionary and unlike a negative injunction can never be "as ofcourse". Every case must depend essentially on its own particularcircumstances".
Even though in England and in India legislation to meet specificinstances where mandatory injunctions could be granted is in place,no such special discretion exists in Sri Lanka. However, in particularcircumstances when justice demand, I would hold that courts are notprecluded from granting such relief of a mandatory nature.
As stated by Justice Gunawardana in the course of his judgmentin Tudor v. Anulawathie & Others “nor is there a prohibition either 50against the Court exercising such a power”. The above decisionconcerned an order under the provisions of the Primary Courts Actwhere the learned Primary Court Judge ordered a demolition of aconstruction. Gunawardana, J. went on to say – "but the Courts arenot to act on the principle that every procedure is to be taken asprohibited unless it is expressly provided for by the Code, but on theconverse principle that every procedure is to be understood aspermissible till it is shown to be prohibited by the Code". The analogyof that decision could apply to a situation as has arisen in the instantcase. I would also hold that in the instant case as seen by the 60photographs filed on behalf of the respondent a gate admittedlyconstructed by the latter has been completely obstructed by a "cementblock" wall, also admittedly constructed by the petitioner. With today'simproved technology in the field of construction such obstructions byway of a cement block wall could come up in hours. In such instancesbefore an injunction could issue to restrain someone from doingsomething the mischief complained of could well have been done.Although injunctions are normally granted directing that somethingshould not be done, exceptions as in this instance could arise wheresomething has been done to alter the status quo. In which event Courts 70should as far as reasonably possible intervene to undo it even by
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the grant of mandatory relief. In the instant case, as stated above,by the observance of the photographs filed shows a blatant violationof respondent's rights when a gate to the respondent's premises hadbeen obstructed by obviously a recently built wall of cement blocksdepriving the respondent of any access to her partly built premises.
I am of the view that the learned District Judge was correct toissue the impugned orders dated 19. 01. 2001 and 24. 01. 2001 and
would not venture to interfere with the learned District Judge's orderwhereby a mandatory injunction was warranted considering thepeculiar circumstances of this case.
Leave to appeal is refused with costs fixed at Rs. 5,250.
NANAYAKKARA, J. – I agree.
Application dismissed.
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