015-SLLR-SLLR-2002-V-2-RANASINGHE-v.-GUNERATNE.pdf
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Sri Lanka Law Reports
[2002] 2 Sri L ft.
RANASINGHE
v.
GUNERATNE
COURT OF APPEALWIGNESWARAN, J.
TILAKAWARDANE, J.
CA NO. 681/89 (F)
DC KURUNEGALA NO. 4663/LSEPTEMBER 20. 1999FEBRUARY 08, 14, 2000
Prepayment of costs – Before next date of trial – Routine sittings of Court disrupted- Impossibility of performance.
Plaintiff-respondent instituted action seeking a declaration of title to the premisesin question. On 28. 10. 1988 during the trial the defendant-appellant sought anadjournment, the Court allowed the adjournment on the condition that costs wereto be prepaid and failure to make payment of the costs before 9 a.m. on thenext date of trial i.e. 12. 12 1988, would entitle the Court to enter judgment infavour of the plaintiff-respondent.
The District Court did not sit on 12. 12. 1998 due to civil disturbances. The casehad subsequently taken up on 25. 04. 1989, on 07. 04. 1989 the defendant-appellant had obtained a deposit slip to take steps to deposit the sad sum, buthad failed to make such deposit. On 25. 04. 89 when the case was taken upfor hearing objection was taken that there had been non-compliance with the Orderfor prepayment. The trial Judge held in favour of the plaintiff-respondent.
On appeal –
Held:
After 12. 12. 1988 there was no date fixed for trial. The defendant stillhad time until the next date of trial. Although originally the case was fixedfor 12. 12 1988, the supervening circumstances that led to the closureof the Courts made prepayment before that date impossible. The case wasthereafter not fixed for trial.
The interpretation of the Order for prepayment would depend on the wordsof the order as well as the circumstances for the delay. Ultimate deter-mination would be on the facts and circumstances relevant in each case.
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Upon a consideration of all the attenuate facts, especially the then prevailingconditions in the NW Province, during the period the order is unwarrantedand unjust.
APPEAL from the judgment of the District Court of Kurunegala.
Cases referred to:
Perera v. Gonaduwa – 74 NLR.
Velupillai v. Chairman, Urban Council – 39 NLR 464 at 465.
P. A. D. Samarasekera, PC with Upali de Almeida for defendant-appellant.Faiz Mustapha, PC with Reza Muzni for the substituted plaintiff-respondent.
Cur. adv. vult.
March 31, 2000
SHIRANEE TILAKAWARDANE, J.
The original plaintiff instituted this action on 05. 06. 1975, seekinga declaration of title to the premises described in the schedule to theplaint, for the ejectment of the defendant from the premises, and forthe grant of consequential reliefs.
During the pendency of the action, the substituted plaintiff-respon-dent purchased the aforesaid premises and filed an amended plaintdated 12. 06. 1984.
On 28.10.1988 during the trial, the defendant-appellant was unableto proceed and had made application for an adjournment to producea document that he had failed to list. The Court allowed the applicationand had postponed the trial for 12. 12. 1988, on the condition thatthe defendant-appellant makes payment of costs in a sum of Rs. 5,000to the plaintiff-respondent. The Court also made order that the costswere to be prepaid, and failure to make payment of the said costsbefore 9 a.m. on the next date of trial would entitle the District Judgeto enter judgment in favour of the plaintiff-respondent. The relevantproceedings in Sinhala are as follows :
(sx&Q ood o®0® oxJqj SoooaJ Cx&2@ 5,000 a ffeQfiS. 0a)Sooa5©q0 6gxs e®. o®@ e£© Os® Sfflxs ooCQdt 9.00 0 ooO oc®^®0 SaSSoosi
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Sri Lanka Law Reports
[2002] 2 Sri LR.
oraSca gqj o0. o® osxsSa) 6eeS o®8®0 ©eafitaOc qooxxHxKi §0g®)cJ oc@®god030(30 a)§0 Sale esCiaEDO SsJSaCt da® 00. 0£0eO Stoxscs oo ooO g®0@ (sodq1988. 12 12 ckd 5®0."
Admittedly, the District Court of Kurunegala did not sit on 12. 12.1988 due to civil disturbances as the routine sittings of the Courthad been disrupted. This is borne out by Journal Entry Number 54of the Record maintained by the Court, the case had subsequentlybeen taken up on 25. 04. 1989. On 7. 04. 1989, the defendant-appellant had purportedly obtained a deposit slip to take steps todeposit the sum determined as costs but had failed to make suchdeposit. (vide J. E. 52).
On 25. 04. 1989 when the case was taken up for hearing theplaintiff-respondent took up the position that there had been non-compliance with the Order for prepayment. Accordingly, the plaintiff-respondent submitted that judgment be entered in favour of theplaintiff-respondent. The defendant-appellant resisted this applicationon the basis that there was impossibility of performance due tosupervening circumstances. The District Judge by his Order dated 05.07. 1989 held in favour of the plaintiff-respondent because of non-compliance with the prepayment Order. The defendant-appellant haspreferred this appeal against the said Order.
The Counsel for the plaintiff-respondent contended that the defen-dant-appellant should have led evidence regarding the impossibilityof performance of the agreement for prepayment of costs. However,this fact, that there was an impossibility of performance had not beenchallenged in the proceedings and the Order is also on the basis thatthe work of the Courts were disrupted during the relevant period.
We, therefore, find that there was no need for the defendant-appellant to have led evidence either of the impossibility ofperformance or break down of civil order.
The District Judge made Order that the prepayment of costs wasto be made "before the next date of triaf'. Although originally thiswas fixed for 12. 12. 1988, the supervening circumstances that ledto the closure of the Courts made prepayment before that dateimpossible. The case was, thereafter, not "fixed for trial". So that a
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payment on or before the next date when the case was mentioned,was substantive compliance with the agreement for prepayment ofcosts as it had been made before the next date of trial. In fact, after02. 12. 1988 there was no date fixed for trial. The defendant-appellantstill had time until the next date of trial.
In the case of Perera v. Gonaduwam cited in support of the 60contention of the defendant-appellant, the date to which the case wasfixed was a poya holiday. The parties therefore would have knownthat the Courts would function on the following working day. However,during the relevant period of civil disturbance it was not possible todetermine the next working day, as the Court did not function for anundetermined period. In the circumstances the facts of this case canbe distinguished.
The interpretation of the Order for prepayment would depend onthe words of the Order as well as the circumstances for the delay.Ultimate determination would be on the facts and circumstances 70relevant in each case. Upon a consideration of all the attenuate factsof this case, and especially the then prevailing conditions in the NorthWestern Province during this period, we hold that the order of theDistrict Judge dated 05. 07. 1989 was unwarranted and unjust.
In the case of Vellupillai v. The Chairman of the Urban Council2) at465, Abraham, CJ. stated that : "If we do not allow the amendmentin this case we would be doing a very grave injustice to the plaintiff.
It would appear as if the shortcomings of his legal adviser, thepeculiarities of law and procedure, and the congestion of the Courtshave all combined to deprive him of his cause of action and I for soone refuse to be a party to such an outrage upon justice. This isa Court of Justice, it is not an academy of law. I would allow theamendment . . .“
Accordingly, we allow the Appeal and set side the Order of theDistrict Judge dated 25. 04. 1989. We also Order that the defendant-appellant shall pay the sum of Rs. 5,000 before the next date of trialas determined by the District Judge. We make no order as to costsof this Appeal.
WIGNESWARAN, J. – I agree.
Appeal allowed.