PREMASIRI v. GUNAPALA

015-SLLR-SLLR-2004-V-2-PREMASIRI-v.-GUNAPALA.pdf


CA
Premasirl v. Qunapala
(Imam. J.)
125
PREMASIRIv
GUNAPALACOURT OF APPEALIMAM, J.
CALA NO. 383/03D.C. WALASMULLAMARCH 22,2004
Writ pending appeal – Civil Procedure Code, section 763(1) – Judicature Act,section 23 – Substantial loss – Affidavit-ls the Commissioner for Oaths an allIsland Justice of the Peace? – Oaths Ordinance, section 12.
Held:
Irreparable loss and damage would be caused to the defendant-peti-tioner, if stay of execution of the decree is not granted.
A Commissioner of Oaths is not confined to a particular district and canoperate anywhere in the Island irrespective of where his or her perma-nent address is. His appointment is similar to an all Island Justice of thePeace. Thus notwithstanding that her address is at Anuradhapura, theaffidavit which has been affirmed in Colombo is valid in law.
Cases referred to:
Charlotte Perera v Thambiah – (1983) 1 Sri LR 352 at 360
Sokkalal Ram Sart v Nadar-41 NLR 89
Mack v Sanmugam – 3 Sri Kantha Law Reports Vol. 3 page 89 .
Don Piyasena v M. Jayasuriya – (1986) 1 Sri LR 6
Grindlays Bank Ltd., v Mackinnon Mackenzie Ceylon Ltd., (1990) 1 SriLR 19
Perera v Gunawardena – (1993) 2 Sri LR 27
Saleem v Balakumar- (1981) 2 Sri LR 74
Amarange v Seelawathie Weerakoon – (1990) 2 Sri LR 352
Chandana Premathilaka for petitionerDavid Weeraratne for plaintiff-respondent.
Cur.adv.vuit
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Sri Lanka Law Reports
[2004] 2 Sri L.R
IMAM, J.This is an application for Leave to Appeal filed by the defendant- oirespondent-petitioner (hereinafter referred to as the defendant) toset aside the order of the learned Additional District Judge ofWalasumulla dated 3.10.2003. Counsel for both sides agreed to anorder being made by this Court on the written submissions ten-dered on 22.3.2004.
The plaintiff-petitioner-respondent (hereinafter referred to as theplaintiff) filed the aforesaid case No. L/404 in the District Court ofWalasmulla on 07.2.1996 against the defendant seeking inter aliaa declaration that the land set out in the schedule to the plaint 10namely Lot 78 which is 0.171 hectares in extent depicted in FinalVillage Plan No. 209 made by the Surveyor-General belongs to theplaintiff, an Order to evict the defendant and those under him fromthe said land and to obtain vacant possession thereof.
The plaintiff stated in the plaint that his father RatnayakeDiyapotage Jaanis was the permit holder of the said land belong-ing to the State and on 22.10.1990 the said Jaanis was given agrant by His Excellency the President by way of a SwarnabhoomiDeed under the Land Development Ordinance. The plaintiff furtherstated that upon the death of his father who resided in the house in 20the aforesaid land, the defendant in 1992 had entered the land withthe consent of the plaintiff who was nominated as his successor byhis father. By way of Notice dated 07.02.1996, although the plain-tiff noticed the defendant to vacate the property, the defendant didnot comply and remained in the land.
The defendant in his answer dated 22.01.1997 stated that heand his family had been in possession and occupation of the saidland since 1984 independently and without any one’s consent, andthat he had constructed a house, obtained electricity, planted jakand pepper as permanent vegetation, and had been registered as 30a Voter at the said address since 1989. The defendant further stat-ed in the answer that the plaintiff cannot seek a declaration of titlein respect of the aforesaid land by virtue of the SwarnabhoomiDeed, as such a grant under The Land Development Ordinancedoes not confer an Absolute Title upon the grantee, and as Titleremains with the State, this action cannot be maintained without
Premasiri v. Gunapala
(Imam. J.)
127
CA
making the State a party. At the Trial 17 Issues were raised. Theplaintiff gave evidence and produced a certified copy of the grantdated 22.10.1990, and stated that his father had been conferredtitle to the said land by virtue of the grant. The defendant too gaveevidence and said that he and his family members had been in pos-session of the said land since 1984, constructed a house and thathe was responsible for the plantations therein. The defendant fur-ther called several witnesses to give evidence with regard to hispossession of the land since 1984.
The learned Additional District Judge gave judgment in favour ofthe plaintiff by granting him the reliefs prayed for in ($) (qo) and (c)of the prayer to the plaint, and ordered the eviction of the defendantas prayed for by the plaintiff.
The plaintiff subsequently filed an application in the DistrictCourt under section 763 of the' Civil Procedure Code for the exe-cution of the decree pending Appeal. The defendant filed objec-tions, and the matter was taken up for inquiry on 28.08.2003. Bothparties had tendered written submissions and relevant papers,without calling any witnesses, consequent to which the learnedAdditional District Judge delivered Order on 03.10.2003 andallowed the plaintiff’s application for writ pending Appeal.
It was submitted on behalf of the plaintiff that the defendant(judgment debtor) did not adduce evidence to establish substantialloss that would be caused to him in the event of the writ being exe-cuted.
The relevant statutory provisions in the issue or staying of writpending appeal are contained in section 23 of the Judicature Actand section 763(2) of the Civil Procedure Code. Samarakoon, CJ.in Chariott Perera v Thambiah <1) at p. 360 said that the matter ofstaying of execution pending appeal is governed by the provisionsof section 23 of the Judicature Act read with section 763(2) of theCivil Procedure Code; the former permits the Court to stay Writ ofExecution if it sees fit and the latter permits it to stay if the judgmentdebtor satisfies the Court that substantial loss may result.
Stay of execution of the decree pending appeal is granted whenthe proceedings would cause irreparable loss and injury to theappellant, and where the damages suffered by execution would besubstantial, as held in Sokkalal Ram Sart v Nadar. (2)
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[2004] 2 Sri LR
In Mack v Sanmugarrt3> it was held that Stay of Execution willbe granted if there is any doubt of the justice of the decision andexecution will cause damage to the appellant which will be bothirreparable and exhaustive.
The requirement of proof of substantial/irreparable loss/lnjuryhas been declared in a number of subsequent cases as well such soas Don Piyasena v Mayawathie JayasuriyaW■ Grindlay’s Bank Ltdv Mackinnon Mackenize & Co.Ceylon Ltd. (1995)(5> and Perera vGunawardena (fi).
In Saleem v Balakumar V) it was held that writ must be stayeduntil the final disposal of the Appeal if the Court is satisfied thatthere is a substantial question of law to be adjudicated upon at thehearing.
In Perera v Gunawardena, supra it was observed that someconsideration of the degree of hardship to the judgment-creditormay also be relevant in such an application.go
In Amarange v Seelawathie Weerakoori8), it was held that sub-stantial loss is not necessarily monetary loss, and the expressionmust have a relative meaning and must vary with the facts of eachcase.
I examined the order of the learned District Judge dated03.10.2003. In this Leave to Appeal application the defendant in hisprayer (i) to the petition has sought a stay order until the final deter-mination of this application. This Court issued a stay order on21.10.2003 which has continuously been extended to cover thenext date on which the case was called. If a stay order is not issued 100.until the final determination of this application, Irreparable Lossand Damage would be caused to the defendant-respondent-peti-tioners. Hence I issue a Stay Order staying further proceedings incase No. L/404 in the District Court of Walasmulla until the finaldetermination of this Application as prayed for in prayer (i) of thesaid petition.
The plaintiff-respondent’s Counsel’s submission that the affi-davit pertaining to this application was defective as the ‘Jurat’ stat-ed that the affidavit was affirmed on 20.10.2003 at Colombo where-
CA
Jeganathan v. Sufiyan
(Wiiavaratne. J.)
129
as the Commissioner for Oaths and/or Justice of Peace had been 110in Anuradhapura according to the Rubber Seal, was considered byme. The said Affidavit too was examined by me. A Commissionerfor Oaths is not confined to a particular District and can operate anywhere in the island irrespective of where his or her permanentaddress is. His or her appointment under section 12 of the OathsOrdinance is similar to an all Island JP. Thus notwithstanding heraddress at Anuradhapura. I am of the view that the aforesaid affi-davit is valid in law.
For the aforesaid reasons, I grant Leave to Appeal to the defen-dant-respondent-petitioner from the order of the learned Additional 120District Judge of Walasmulla dated 03.10.2003. No costs.
Leave to appeal granted.