SC State Graphite Corporation v. K.S.P.D. Fernando (Samarakoon. C.J.)693
SHARVANANDA, J., VICTOR PERERA, J., AND COLIN THOME, J.
S.C. 6/82; CA 2460/80; P.C. AKKARAIPATTU PCA/398SEPTEMBER 29, 1982
Primary Courts Procedure Act, Sections 66 to 76 – Duty of Judge in disputes asto possession – Consequence of failure to keep to time limits laid down in Act.
The respondent .owned a land in extent'8A.1R.22P and had been cultivating'itfor decades but appellant dispossessed him of the land, on 6.10.79 and continued. in possession. The Officer in Charge of the Police Station having failed to bringabout'a settlement filed information on 10.12.79.
Inquiry was fixed by the Judge for 17.1.80. Inquiry was postponed from time totime and witnesses were examined and cross examined at length till the Judgebrought about a settlement on 24.9.80.
Sri Lanka Law Reports
(1982) 2 S.L.R.
The appellant complains, that the above proceedings offend pigiifta.toryprovisions of Part VII of .the Primary Courts Procedure Act an^t arep thereforenull and void.■>.!■■■ ■
Thai a Judge should in an inquiry under Section 66 confine himself to the""ifiiestion of actual possession on the date of filing information except in a
case where a person who had been in possession of land had been dispossessedwithin a period of two months immediately preceding filing of information.
Hjat where the information filed and affidavits furnished under section 66are sufficient to make a determination under Section 68 further inquiryembarked- on by the Judge was not warranted by the mandatory provisionsof Section 72 and are in excess of his special jurisdiction. '■
That non-compliance by Court of the provisions of Sections 66 and 67 doesnot divest Court of jurisdiction conferred on it by Section 66(2).
Cases referred to:
Kanagasabai v. Mailvaganam (1976) 78 NLR 280, 283.
Nagalingam v. Lakshman de Me[;(19?5) 78 NLR 231, 237.
APPLICATION in revision of order'of the Primary Court of Akaraipattu.
5.C. Crossette Thambiah with K. Thevatajah and S.H.N. Reeza for appellant.K. Kanag-Iswaran for respondent.
October 19, 1982
This is an appeal from & judgment of the Court of Appeal dismissingthe appellant’s revision application' to have the proceedings No. 398in the Primary Court of Akkaraipattu declared null and Void.
On 10.12.79, the Officer-in-Charge ©f the*Police Station, Akkaraipattufiled information under section 66 of the Primary Courts ProcedureAct No. 44 of 1979 (hereinafter referred to as the Act) regarding' adispute’"relating tothe possession of a; lancfr.^tyeen the petitioner-appellant (hereinafter referred to as appellant) and the res-pondent-respondent, (hereinafter referred to as respondent), in thePrimary Coiiirt'of Akkaraipattu: He" stated1 iff' the"thf6irrnation thathe had inquired into a complaint madefy the respondent on 22.10.1979to the effect_ that he owned a land 8 acres, 1 rood arvd 22 perchdsin extent which he had'been jb'uftivating rontinuo^ly for'dedades andthat the petitioner had entered this, land forcibly. and .wasqul ti va t ingthe same. According to'the information, the Officer-in-Charge hadsummoned both' parties to the Police Station and had tried to effecta peaceful settlement, but his efforts, had failed and he feared a
Ramalingam r. Thangarajah (Sharvunanda. J.)
serious breach of the peace as a result of the dispute. The appellantand respondent appeared in Court on that date and,, filed theirrespective affidavits but annexed no documents thereto. In his affidavitthe appellant stated that he was cultivating and possessing the saidland from 1977. On the other hand the respondent in his. affidavitdated 8.12.79 stated that while he was in possession, of the land theappellant had “on 6,10.79 without any manner of jight.put,him outof the land forcibly, and'cultivated the land” and. prayed .that he berestored to. possession.
The Judge, Primary Court fixed the matter for inquiry on 17.1.80.On that date the inquiry commenced and counsel for the respondentled the evidence of one David, Land'Officer. Though this witnessstated that he did not know who cultivated the land after 1974; therecord shows that his evidence had*’gone on for a fair amount oftime. After his lengthy evidence the inquiry was-postponed to 22.-2.80;On that date, on the application of both" parties for a postponementon the ground that their lawyers were-not-^present, further-'inquirywas re-fixed for 6.3.80. On 6.3.80 however the inquiry was postponedfor want of time for 28.4.80 on which date the Court stenographerwas not availabe and inquiry was put off again for 23:6.80. On thelatter date the respondent gave- evidence at length as to! how hecame into possession of the land and was in possession-of it from1976, till he was forcibly dispossessed by the appellant on 6.10.79.The respondent’s evidence covers eleven pages of the record. Thereafterone Stanislaus, Cultivation Officer gave evidence for the respondent*.This witness in examination in chief, referred to the cultivation ofthe land by the respondent in 1978 but stated that the appellantcultivated the land during the 1979 cultivation season which-startedin October 1979. This witness was cross-examined and re-examinedat length. His evidence covers about fifteen pages of the record. Hisevidence was not concluded that day when further inquiry was'feftxedfor 25.6.80. The inquiry could not be taken up on 25.6.80, nor bn2.7.80 nor on 11.7.80, on which dates the case–was postponed, asthe stenographer was on leave. On 11.7.80 on the application ofboth parties for a long date “as they had to go to Kataraganrfav;the inquiry was refixed for 6.8.80. On this date too the inquiry hadto be postponed as the stenographer was On maternity leave and theinquiry was fixed for 10.9.80.-On this date 'too the Attorney for theappellant moved for a postponement on the-ground -that his 'SeniorI4_2 Counsel had gone abroad, and that some documents pertaining to
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(1982) 2 S L R .
the case Were with him. The Judge then inquired from the appellant’sAttorney, whether he could assist the Court “as the inquiry had tobe completed within three months, in terms of section 67(1) of thePrimary Courts Procedure Act No. 44/79’’.; On the Attorney expressingwillingness,; the cross-examination of Stanislaus was resumed. AfterStanislaus, the next witness called was one Sambanther who testifiedto a complaint made by-the appellant to the Assistant GovernmentAgent on 10.8.78 regarding the land in. dispute. This witness howeverstatqd that he did not know who was in possession of the land atthe relevant times. Further inquiry was fixed for 24.9.80. On thisdate the lawyers for the parties were.absent, but “as they had notsent any. intimation to Court about their appearance”, the Judge,proceeded with the inquiry. The respondent called as his witness oneVasantharasapillai, who stated quite early in the course of hisexamination-in-chief that he cultivated this land, from 1972-^5 but didnot know who cultivated the land after that. On the respondentclosing his case with , that witness’s evidence the appellant got intothe witness box and stated that he cultivated the tand for the 1977/78and 1979/80 , seasons, and for the r last cultivation season. Then theappellant was cross examined by the respondent. Thereafter theappellant called one Mailvaganam to give evidence-on his behalf,litis witness stated that he knew, the land in. dispute and that theappellant was possessing it.. In cross-examination this witness wasshosyn two receipts marked ,1FU and IRS. On the witness denyingthe. signature appearing on the said Receipts, the respondent statedthat he would,, be calling the Examiner of Questioned Documents toprove the .signature. When he was .further being cross examined.atlength by. the respondent the witness fainted. The record sets outwhat happened then: –
: “Inquiry put off..I release him on bail in Rs. 1000/- in defaultof bail remand him for two weeks.
At this stage the respondents propose to settle the case.Case is settled on the following terms:
Terms of Settlement
Both. respondents agree that the 1st respondent Thangarasashould pqssess 4 acres and 32 perches from, the northernboundary of this land and the balance portion to be possessedby the 2nd respondent – Ramalingam.”
Ramalingam v. Thangarajah (Sharvananda. J.t
In consideratidn of the motion of the lst.‘>resfJondent'to withdrawhis application to have the signature of the witness Myivaganam on1R4 arid 1R5 examined by the Examiner of Questioned Documents,the Judge cancelled the bail on the witness and warned and dischargedhim.”
The appellant complains that the above proceedings offend themandatory provisions of Part VII of1 the Primary Courts ProcedureAct and are null and void.
Before I proceed to discuss the main contentions urged by theCounsel for the appellant, I would like to express my disapprovalof the order for bail made by the Primary Court Judge on Mailvaganam.This order is absolutely unwarranted in law and cannot be justified.The witness was not facing any criminal charge for him to be subjectto any remand. An order of this nature tends to discourage witnessescoming forward to give evidence. Courts should not hold out suchthreats or terrors to witnesses. Such an arbitrary order is not calculatedto do any credit to a Court of Justice. Judges should be chary ofmaking such orders.
The lackadaisical fashion in which the inquiry has been carriedon, reveals a lack of appreciation on the part of the Primary CourtJudge and attorneys of the parties concerned, of the proper scopeand objective of an inquiry under Part* VII of the Act._ Had theJudge addressed himself to the relevant issues involved in the casehe. could have spared himself the exercise of the long and protractedinquiry which was characterised by digressions into irrelevancies andwas conducted in disregard of the time limits prescribed by theprovisions of the Act. On the undisputed facts of the case, as disclosedby the affidavits of the parties, the determination and order undersection 68 of the Act could have been made on the first day of theinquiry itself. According to the affidavits, filed by the .appellant andrespondent, prior to the commencement of the inquiry it.was commonground and it was not disputed that on the date of tfie. filing of theinformation under section 66 of the Act, namely 10.12.7.9 the appellantwas in possession of the land in dispute and had been in suchpossession at least from 6.10.79. The respondent alleged jn his affidavitthat he was forcibly dispossessed of the land by the appellant on6.10.79. Thus, on the respondent’s own admission the appellant hadentered into and commenced possession of the land prior to theperiod of two months immediately before the date oh which theinformation was filed viz. prior to 10.10*79. On this uacont'ested fact
Sri Lanka Law Reports
(1982) 2 S.L.R.
of possession by the appellant from 6.10.79, the Judge could haveand shdiHd have made his determination and order under secton 68of the^A'ct in favour of the appellant and terminated the proceedings,m irev'ttar was the only order which the Judge could have made,on the facts; no additional evidence was necessary or relevant toenable the? Judge to make the said determination and order.
"In an inquiry into a dispute as to the possession of any land,where a breach of peace is threatened or is likely under Part VII,-of the Primary f.Gourts • Procedure Act, the majsi point for decisionis–the actual*; possession of the land on the date. of Jhe filing of theinformation• under-section 66; but, where forcible dispossession tookplace within tw,o.months before the date on which the said informationwas filed the tinain point is actual possession prior .to .that allegeddate of dispossession. Section 68 is only concerned with the determinationas to who was in possession. of the land or the part on .the date ofthe filing of the information under section 66. It directs the Judgeto declare that the person who was in such possession was entitledto possession pf the land or part thereof. Section 68(3) becomesapplicable only if the Judge can come to a definite finding that someother party had' been forcibly dispossessed within a period of twomonths next preceeding the date on which the information was filedunder section 66. The effect of this sub-section is that it enables aparty .to be treated to be in possession on the date of the filing ofthe information though actually he may be found to have beendispossessed before that date provided such , dispossession took placewithin, the . period of two month? .next preceeding the date of thefiling oif the information. .It. is^qhjy if such^a party can be treatedor cjeemed to be in possession-.on the date of t)ie filing of theinformation that the j^fspjQ actually in possession cap., be said notto have been in posses?)pn; on the date of the filling of the information. .Thu§, the duty of the Judge ,uj,. proceedings under section 68 is toascertain which party was or .deemed to have been in possession on. the relevant date, namely, on the date of the filing of the informationunder .section 66. Under section 68 the Judge is bound to maintainthe possession, of such person even if he be a rank trespasser asagainst. any inteference even by the rightful owner. This sectionentitles even a squatter to the protection of the law, unless hispossession was acquired within two months of the filing of theinformation.
rv>f ?kf-j ••• • •
That person is entitled-40 possession until he is . evicted by dueprocess of law. A Judge-should .therefore in an inquiry under Part
SCRamalingam v. Thangarajah (Shantma'itl.i. ].)699
VII of the aforesaid Act, confine himself to the question of actualpossession on the date of filing of the information except in a cisewhere a person who had been in' possession of the land had beendispossessed within a period of two months immediately before thedate of the information. He is not to decide any question of titleor right to possession of the parties to the land. Evidence bearingon title can be considered only when the evidence'as to possessionis Clearly balanced and the presumption of possession which flowsfrom title may tilt the balance in favour of the owner and help''indeciding the question of possession.
On the other hand, if the dispute is in regard to any right to anyland other th#n right of possession of such land,'the question fordecision, according to section 69(1), is who is entitled to the fightwhich is subject of dispute. The word “entitle” here connotes theownership of the right. The Court has to determine which of theparties has acquired that right, or is entitled for the time being toexercise that right. In contradistinction to. section- 68,=* section 69requires the Court to determine the question which party is entitledto the disputed right preliminary to making an order under section 69(2).
The procedure of an inquiiry under Part VII of the Act is suigeneris. The procedure to be adopted and the manner in which theproceedings are- to be conducted are clearly set out in Sections 66.71 and 72 of the Act. Section 66(2) mandates that- the specialjurisdiction to inquire into disputes regarding which information hadbeen filed, under Section 66(1) should be exercised in. the mannerprovided .for in Part VII. The proceedings are of a-summary natureand it is essential that they should..be., disposed of expeditiously. Theimportance of a speedy completion of the inquiry which culminatesin the order under Section 68 or 69 is underscored by rthe specifictime-schedule prescribed by the provisions of.-the Act.-Section 66(3),requires the Court to appoint a date “which shall not be later thanthree weeks from the date on which, the parties were produced orthe date fixed for their appearance under Section 66(L)..‘directingthe parties to file affidavits setting out their claims and annex theretoany documents on which they rely. When such affidavits are filedthe Court is required on application made by parties to grant themtime not exceeding two weeks to file counter affidavits with documents,if any. Sub-section 6 provides that where no application.Jias beenmade for. filing counter affidavits or on the date fixed for filing14_3 counter affidavits the Court should endeavour, before, fixjng the case
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(1982) 2 S.L.R.
for inquiry to induce the parties to arrive at a settlement of thedispute and if there is no such settlement Court should fix the casefor inquiry on a date not later than two weeks of the date fixed forfiling affidavits or counter affidavits as the case may be. Section 67specially postulates that the inquiry should be concluded within threemonths of its commencement and the Judge should deliver his orderwithin one week of its conclusion. It is incumbent on the Judge toconform to these time limits and to discountenance any elaborateand prolonged inquiry in breach of the time limits.
In this connexion what I said with reference to the provisions ofsection 62 of the Administration of Justice Law No.44 of 1973 (nowrepealed) in Kanagasabai Vs. Mailvanaganam, (1) apply equally wellto the Section 66 and 68 of the Act which correspond to them:-
“Section 62 of the the Administration of Justice Law confersspecial jurisdiction on a Magistrate to make orders to preventa dispute affecting land escalating and causing a breach of thepeace. The. jurisdiction so conferred is a quasi-criminaljurisdiction. The primary object of the jurisdiction so conferredon the Magistrate is the prevention of a breach of the peacearising in respect of a dispute affecting land. The sectionenables the Magistrate temporarily to settle the dispute betweenthe parties before the Court and maintain the status quo untilthe rights of the parties are decided by a competent civil Court.All other considerations are subordinated to the imperativenecessity of preserving the peace …… At an inquiry under
that section the Magistrate is not involved in an investigationinto title or right to possession, which is the function of a civilCourt. The action taken by the Magistrate is of a purelypreventive and provisional nature in a civil dispute, pendingfinal adjudication of the rights of the parties in a civil Court.The proceedings under this section are of a summary natureand it is essential that they should be disposed of as expeditiouslyas possible ”
The scheme embodied in this Part is geared to achieve theobject of prevention of a breach of the peace. Section 68(2)enjoins the Judge to decide the dispute which gave rise to thethreat to a breach of the peace, provisionally and to maintainthe status quo until the right of parties are decided by acompetent Civil Court. Section 72 prescribes the material onwhich the determination and order under section 68 and 69of the Act is to be based. The determination should, in the
SC.Ramalingam i Thangarujah iSharvunanda. J.)701
main, be founded on “the information filed and the affidavitsand documents furnished by the parties”. Adducing evidenceby way of affidavits and documents is the rule and oraltestimony is an exception to be permitted only at the discretionof the Judge. That discretion should be exercised judicially,only in a fit case and not as a matter of course and not besurrendered to parties or their counsel. Under this section theparties are not entitled as of right to lead oral evidence. Section72 provides:-
“A determination and order under this Part shall bemade after examination and consideration of –
the information filed and the affidavits and documentsfurnished;
such other evidence on any matter arising on theaffidavits or documents furnished as the Court maypermit to be led on that matter;
such oral or written submissions as may be permittedby the Judge of the Primary Court in his discretion.
The information, affidavits and documents of parties will identifytheir respective positions in regard to the issue of possession at thetime of the filing of the information, for the purpose of the determinationand order under section 68. If the question of possession or dispossessionby any of the parties at the relevant time is disputed then the Courtmay permit oral evidence of the parties and their witnesses directedto that question only, for the purpose of ascertaining the true position.It is imperative that the Judge should so contain the inquiry andnot allow parties to enlarge or convert the inquiry into a full scaletrial of civil issues, as in a civil case.
Hence, where the information filed and the affidavits furnishedunder Section 66(2) were sufficient to make a determination underSection 68, the further inquiry embarked upon by the Judge was notwarranted by the mandatory provisions of section 72 and was inexcess of his special jurisdiction. The Judge should have made hisdetermination on the first day of the inquiry itself, namely 17.1.80,that, the appellant was in possession of the land and made order thatthe appellant was entitled to possession of the said land.
The question was raised as to what was the consequence of thefailure of the Judge to observe the time-limits prescribed for thevarious acts and steps leading to the determination and order under
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Sectioh 68. It is significant that the prescription of time is precededby the word ‘shall’. The obligatory nature of the requirement thatthe particular step/act should be taken or done within a fixed timeis indicated by the word ‘shall’. This expression is generally used toimpose a duty to do what is prescribed, not a discretion to complywith it according to whether it is reasonable or practicable to do.Prima facie the word ‘shall’ suggests that it is mandatory, but thatword has often been rightly construed as directory. Everything turnson tfoe context in which it is used; and the purpose and effect ofthe section in which it appears. It is to be noted that the statutedoes not declare what shall be the consequence of non-complianceby Court with regard to this requirement as to time limit prescribedby the law. Are these procedural rules to be regarded as mandatory,in which case disobedience will render void or voidable what hasbeen .done or as directory, in which case disobedience will be treatedas an irregularity not affecting what has been done? It is to beobserved that this obligation with regard to time limit is imposed oncourt, over whose acts or omissions the parties do not have anycontrol. Maxwell on ‘Interpretation, of Statutes’ 11th Edition, at page369 appositely states –
“Where the prescription of a statute related to performanceof a public duty and where invalidation of acts done, in neglectof. them would work serious general inconvenience or injusticeto persons who have no control over those entrusted with theduty yet not promote the essential aims of the legislature, suchprescriptions seem-to be generally understood as mere instructionsfor the1 guidance and government of those on whom the dutyis imposed, or, in other words', as directory only. Neglect ofthem may be penal, indeed, but it does not affect the validityof the acts' done in disregard of them. It has often been held,for instance, when an Act ordered a thing to be done by apublic body or public officers and pointed out the specific timewhen it was to be doie, then the Act is directory only andmight be complied with after the prescribed time.’’
In this context, one may also invoke the maxim “Actus curiaeneminem gravabit’’ (an act of Court shall prejudice no man). In myopinion this maxim which is founded upon justice and good sensemay be appropriately applied to salvage a determination and ordermade under section 68, where the Judge has failed to observe thetirrife-lirhits imposed by the legislature for the various procedural steps
SCRamalingam v«. Thangarajah (Shurvittumda. J.l703
prescribed by it. The Judge is certainly to be blamed but a party inwhose favour such an order is made should not suffer for the Judge'sdefault.
A passage from my judgment in Nagalingam Vs. Lakshman deMel, (2), in respect of a similar situtation where the Comrtiissibnerof Labour had not made his order within the time prescribed tinderthe Termination of Employment of Workmen (Special Provisions)Act No. 45 of 1971 has application to the present problem.
“The delay should not render null and void the proceedingsand affect the parties, as the parties have no control over theproceedings. It could not have been intended that the delayshould cause a loss of jurisdiction, that the Commission hadto give an effective order of approval or refusal. In my view,a failure to comply literally with the aforesaid provisions doesnot affect the efficacy or finality of the Commissioner’s ordermade thereon. Had it been the intention of the Parliament toavoid such order nothing would be simpler than to have sostipulated.”
I am therefore of the view that the provisions as to time limitsin Section 66 or 67, though the word ‘shall' there.suggests that..theyare mandatory, should be construed as being directory and thatnon-compliance by Court of the provisions of Section 66 or 67 ofthe Act does not divest the Court of the jurisdiction conferred.onit by Section 66(2) to make the determination and order under Section 68.
Another contention urged by counsel for the appellant is that anorder based on the settlement arrived at by parties on 24.9.80, afterthe time prescribed by Section 67 of the Act. cannot be treated asan order to which Section 73 would apply. It is not necessary todecide on the correctness of this contention as admittedly the Judgehas not made any order on this settlement in question and hencethere is no foundation for the imposition of any penalty under Section 73.
For the reasons set out above 1 set aside all proceedings had-inthis case on and after 17.1.80, including the proceedings for allegedcontempt of court, purporting to be held under Section 73 of theAct and direct the Judge to determine nunc pro tunc, under Section68 that the appellant was on the date of the filing of the informationin possession of the land in dispute in extent 8 acres 1 rood and 22perched1,and to make order declaring that the appellant is entitledto the possession of the said land. I allow the appeal and set aside
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the order of the Court of Appeal and send the case back to theJudge, Primary Court, with the order that he' should comply withthe aforesaid direction.
The respondent will pay the appellant Rs. 750/- as costs of thisCourt and of the Court of Appeal.
VICTOR PERERA, J. – I.agree.
COllN-THOMf), J. – I agree.
Proceedings after 17.1.80 set aside andcase sent back for order.