COURT OF APPEALJAYASINGHE, J.
C. MT. LAVAN1A 982/98/LFEBRUARY 23. 2001MARCH 13. 2001
Declaration oj title – Cancellation of Deed of Gift – Cluil ProcedureCode S. 147 – Is a cause of action disclosed? Is this a legal issue to betried first?
The Plaintiff-Respondent instituted action praying for judgment cancellingthe two Deeds of Gift made to the Defendant-Appellant by the PlaintiffRespondent and for a declaration that the Plaintiff-Respondent is entitledto an undivided 1/2 share of the corpus. The Defendant-Appellant in hisanswer averred that the plaint on the face of it does not disclose a cause ofaction. The issue, whether the plaint discloses a cause of action was soughtto be tried first. The District Court took the view that prejudice would becaused to the plaintiff if the said issue is taken up without evidence beingled.
Since the District Court was of the opinion that this case ought not bedisposed of on the issues of law only without any evidence being led,it is not for this Court to invite the District Judge to form a contraryopinion.
Under S. 147 C. P. C a case to be disposed of as a preliminary issue itshould be a pure question of law, which goes to the jurisdiction of thecase.
‘Judges of original courts should as far as possible go through theentire trial and answer all the issues unless they are certain that apure question of law without the leading of evidence can dispose ofthe case."
Ramani Karunanayake u. Girlie Wtmalarqtne
In this case the questions of law are intricately tied up with questionsof fact.
S. 147 is discretionary in that what is relevant is the opinion of Court.
APPLICATION for Leave to appeal from an Order of the District Court ofMt. Lavania.
Cases referred to :
Vlsvallngam Slvasamy v. Vlshvaltngam Vlnagagamoorthy -SC Spl. 576/96 – SCM 27. 11. 98.
Gauder v. Gauder -1 Current Law Reports – Page 11 at 13.
Muthukrishna v. Gomes – 1994 3 SLR 1
Pure Beverages Ltd., v. Shanll Fernando – 1997 3 SLR 202.
Romesh de Silva P.C., with Geethaka Gunawardena. for defendent -Petitioner.
A. L. M. Hedayathulla with Sanath J. Morawaka Plaintiff – Respondent.
Cur. adv. vult.
March 23, 2001.
JAYASINGHE, J.The Plaintiff instituted action in the District Court ofMt. Lavinia praying for judgment cancelling the gift made tothe Defendant by the Plaintiff upon Deed No. 555 of 20. 04. 1987and Deed No 622 of 08. 10. 1989 and for a declaration thatthe plaintiff is entitled to an undivided 1/2 share of the saidpermises No. 46/1, Vajira Road, Colombo 5, and directing thatsuch decree be registered in the Land Registry and for costs.
Defendant filed answer; averred that the plaint on face of itdoes not disclose a cause of action and that in any event Plaintiffhas no right to set aside the Deed No. 555 and or 622 and thatthe Plaintiff cannot be entitled to a 1/2 share of the premises46/1, Vajira Road; that premises No. 46 fajira Road was dividedand registered as condominium property and by Deed No. 555the Defendant became a owner of unit 2 and moved for dismissal
Sri Lanka Law Reports
12001) 3 Sri L.R.
of the Plaintiff's action. When the case was taken up for trialDefendant raised among others issue No. 12. Issue No. 12 was –
For the reasons set out in the paragraph 3 of the answer:
does the plaint disclose a cause of action?
After raising the issues Counsel for the Defendant movedthat issue No. 12 be tried in the first instance as a legal issue interms of Section 147 of the Civil Procedure Code. The learnedDistrict Judge after considering the written submissionstendered by the parties held that serious prejudice would becaused to the Plaintiff if issue No. 12 is taken up withoutevidence being led. In arriving at this finding the learned DistrictJudge was influenced by a judgment of Weerasekera, J. inVisualingam Siuasamy v. Vtshvalingam Vinayagamoorthy'”where he had stated that;
“It must not be lost sight of that under Sec. 147 of the CivilProcedure Code for a case to be disposed of on apreliminary issue it should be a pure question of law whichgoes to the root of the case.”
Weerasekera. J. also referred to an observation made byWendt, J. in Gauder v. Gauderl2> that;
"An issue of law can only arise upon facts and those factsmust be first ascertained by agreement of parties, or by proof.The Court cannot try such a question as this assuming (butwithout admitting) the facts stated in the Defendant’sanswer to be true, do they afford any defence to the action.”
Weerasekera, J. quoted with approval the view taken byWijeratne, J. in Muthukrishna v. Gomes13’ where His Lordshiphad Stated;
“Therefore the Judges of the Original Courts should as faras possible go through the entire trial and answer all theissues unless they are certain that a pure question of law
Ramant Karunanayake a Girlie Wimalaralne
without the leading of evidence (apart from formal evidence)
can dispose of the case."
Weerasekera, J. observed that “Judges must remember andconstantly remind themselves that it is their sacred duty whichthey should exercise with humility that those who present theirgrievances before them are given a Flair Trial. There can be nojustice without a Fhir Trial."
The Petitioner is seeking leave to appeal against the orderof the learned District Judge of 30. 01. 2001.
Section 147 provides that –
“Where issues both of law and of fact arise in the sameaction and the court is of opinion that the case may be disposedof on the issues of law only it shall try those issues first and forthat purpose may if it thinks fit postpone the settlement of theissues of fact until after the issues of law having determined.
It seems that there is a discretion vested in Court to try thelegal issue in that if the Court is of opinion that the case may bedisposed of on the issues of law only that it shall try those issuesfirst. The learned District Judge was however of the opinionthat the case ought not be disposed of on the issues of law onlywithout any evidence being led. Since the opinion of Court isthe consideration for disposal of the case on issues of law only,it is not for this Court to invite the District Judge to form thatopinion.
In Muthukrishna v. Gomes (Supra) Court held that “underSection 147 of the Civil procedure Code a case to be disposedof on a preliminary issue it should be a pure question of lawwhich goes to the root of the case."
“Judges of original Court should as far as practicable gothrough the entire trial and answer all the issues unless theyare certain that a pure question of law without the leading ofevidence can dispose of the case."
Sri Lanka Law Reports
120011 3 Sri L.R.
In Pure Beverages Ltd. v. Shanil Fernando141 it was held“if an issue of law arises in relation to a fact or factual positionin regard to which parties are at variance the issue cannot andought not be tried first as a preliminary issue of law."
“It also needs to be stressed that in a trial of an action thequestion as to how or in what manner the issues have to bedealt with or tried is primarily a matter best left to the discretionof the trial Judge, and a Court exercising Appellate orRevisionary powers ought to be slow to interfere with thatdiscretion except perhaps in a case where it is patent or obviousthat the discretion has been exercised by the trial Judge notaccording to reason but according to caprice."
In this case the questions of law are intricately tied up withquestions of fact. The Plaintiff has made various allegationsagainst the Defendant which Mr. Hedayathulla says constitutethe cause of action. There are matters to be gone into by theDistrict Judge. The learned District Judge having consideredall the circumstances of the case felt that prejudice would becaused to the Plaintiff if the issue No. 12 is answered withoutevidence being led. Section 147 is discretionary in that what isrelevant is the opinion of Court.
I am unable to interfere with the findings of the learnedDistrict Judge.
UDALAGAMA, J. – I agree.