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RANJAN RAMANAYAKEvKALUARATCHI AND OTHERSCOURT OF APPEALAMARATUNGA, J.
DC MT. LAVINIA 684/02 SPL.
MARCH 3, 2003.
APRIL 28, 2003.
JULY 28, 29, 2003.
Civil Procedure Code – Sections 55 (1), 84, 91 (A) – Amendment Act No. 79of 1998 – Section 666 – Enjoining order issued – Date to file answer – Notfixed by Court – Default by the defendant? – Has an application under section666 to be made by petition and affidavit? – If enjoining order operates unfairlyagainst the defendant, has the Court inherent power to vary same?
If the Court has not fixed a date for the defendant's answer, in theabsence of a date given for the answer no question of default arisesand the Judge had the right and the power to give a date for thedefendants to file answer.
The summons (Form 16) under section 55 (1) indicated that theanswer of the defendant has to be filed on or before the date to be
specified in the summons(dates given) – but this is not a date
fixed by Court for the answer.
An enjoining order is in the nature of immediate prohibition madeagainst a person at the discretion of the Court pending the hearingand the determination of the application. It is different to aninjunction in the sense that normally an injunction may be grantedonly after the petitioner's application with the accompanyingaffidavit testifying to the truth of the averments is served on theopposite party. An exception is made only where the object ofgranting the injunction would be defeated by delay.
The exercise of the Court's discretionary powers give in a sensethat Court a broad undefined jurisdiction to act fairly to preventwrongs and its effect is immediate.
Ranjan Ramanayake v Kaluaratchi and others
This same broad undefined jurisdiction to act fairly is available toCourt to vary the terms of an enjoining order when it is clear toCourt that the enjoining order made by Court operates unfairlyagainst one party. When it is brought to the notice of the Court thatthe enjoining order operates unfairly against the defendants, theCourt has inherent power to vary the enjoining order.
APPLICATION for leave to appeal from an order of the District Court of Mt.Lavinia.
Cases referred to:
A.B.N. Amro Bank NV v Conmix (Pvt.) Ltd. and others – 1996 1 Sri LR 8.
Dharmasena and others v Ekanayake and others – CALA 116/2003 -CAM 10.7.2003.
Finnegan v Galadari Hotels Lanka Ltd. – 1989 – 2 SLR 272.
Faizer Musthapa for petitioner.
A.L.M. Hedayathulla with N. Bahundeen for 1 – 3 defendant-respondents.
Ajith Munasinghe for 4th defendant – respondent.
November 13, 2003.
GAMINI AMARATUNGA, J.This is an application for leave to appeal against the Order of 01the learned District Judge of Mount Lavinia, dated 21.10.2002 bywhich the learned Judge (i) permitted the 1st to 3rd defendants tofile answer and (ii) varied the enjoining order first issued against the1st to 3rd defendants by extending it to cover the plaintiff as well.
The plaintiff and the 1 st to 3rd defendants have entered into apartnership agreement to produce the film titled "ParliamentJokes". The said partnership business was known as 'Lak Films'.
The four partners of Lak Films entered into an agreement with the4th defendants, a registered company, for granting the distribution 10rights of the said film to the 4th defendant company. After the saidfilm was produced and exhibited a dispute has arisen among thepartners about the manner in which the income/profits derived fromthe exhibition of the said film was to be apportioned. For thepurposes of the present application it is not necessary to set out indetail the particulars relating to the dispute. It is sufficient to statethat in paragraph 17 of his plaint the plaintiff himself has stated that
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in view of this dispute, he by letter dated 25.4.2002, informed theChairman of the 4th defendant that as there was a dispute not tomake payments to any partner. The plaintiff filed action against the1st to 4th defendants seeking the reliefs he has claimed in theprayer to the plaint. Among the reliefs, he sought interiminjunctions;
to restrain the 1st to 3rd defendants from managing theaffairs of the partnership Lak films,
to restrain the 1st to 3rd defendants from interfering withthe plaintiffs management of the partnership business LakFilms.
to restrain the 4th defendant from making payments to the1st to 3rd defendants (other than to the plaintiff) of theamounts payable to the Lak Films by the 4th defendant interms of the agreement signed with the partnership LakFilms.
The plaintiff has sought enjoining orders for the same purpose.The Court having considered the plaint and the documentssubmitted by the plaintiff, issued the enjoining orders, notice ofinterim injunction and summons returnable on 14.10.2002. After thesummons were served the 1 st to 3rd defendants filed their proxyand filed a motion dated 7.10.2002 to get the case called on8.10.2002 in order to get the enjoining order varied. When the casewas called on 8.10.2002 the parties agreed to go into the questionof varying the enjoining order on the summons returnable date i.e.
The plaintiff agreed not to draw monies from the 4thdefendant till 14.10.2002. On the summons returnable date, bothparties agreed to argue the matter relating to the proposedvariation of the enjoining order on 16.10.2002 and the plaintiffundertook not to draw money from the 4th defendant till
On the following day, i.e. 15.10.2002 the plaintiff fileda motion moving the Court to grant the interim injunctions and to fixthe case for ex parte trial against the 1 st to 3rd defendants as theyhave not sought further time on the summons returnable date to fileanswer and objections. On 16.10.2002 both parties have madesubmissions on the question of making an order for ex parte trialand both parties have agreed to file written submissions. It appearsfrom the journal that on 16.10.2002 a motion has been filed by the
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attorney-at-law for the 1st to 3rd defendants seeking further time tofile objections and answer. This motion dated 15.10.2002 has beenfiled on 16.10.2002 and entered in the journal on 17.10.2002. It issignificant to note that on 16.10.2002 when the learned Counsel forthe 1st and 3rd defendants made his submissions, the motion ofthe 1st to 3rd defendants seeking further time to file objections hasalready been filed in Court. The learned Counsel for the 1st and 3rddefendants has referred to it in his submissions. Vide proceedingsof 16.10.2002 as appearing at 31 of document 'Z3‘. Afterconsidering the submissions made by parties, the learned Judgehas made her order dated 21.10.2002 permitting the 1st to 4thdefendants to file objections and answer. Another matter dealt withby Counsel in their submissions and the Judge in her order was thevariation of the enjoining order issued on the 4th defendantrestraining it from making any payments to the 1st to 3rddefendants. The 1st to 3rd defendants sought to have the saidenjoining order extended to cover the payments to the plaintiff. Thiswas done by way of a motion. It was the contention of the plaintiffthat this application to vary the enjoining order to cover the plaintiffas well should be done by petition and affidavit and defendants'position was that after the amendment brought to section 666 of theCivil Procedure Code by Act No. 79 of 1988 a petition was notnecessary and the application could be made by way of a motion interms of Section 91 of the Code. The learned Judge by her orderdated 21.10.2002 has varied the enjoining order, by restraining the4th defendant from making payments to the plaintiff as well.
At the hearing before me both parties made oral submissionsand later filed written submissions. Both parties, in their oralsubmissions and in their written submissions have referred to thedecision of the Supreme Court in A.B.N. Amro Bank N. V. v Conmix(Pvt) Ltd. and others<1). In that case the Court held that there wasdefault within the meaning of section 84 of the Civil ProcedureCode in filing answer on the due date. In that case Fernando, J. hasreferred to the discretion available to a Judge under Section 91A ofthe Code to allow a party to file answer even if the party was indefault. In the instant case the Judge has specifically stated thatthat case has no application to the case before her. In her order thelearned Judge has stated that the task of fixing the date for theanswer is a step to be taken by Court and that in this case the Court
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has not fixed a date for the defendants' answer. In the absence ofa date fixed by Court for the answer of the defendant, no questionof deciding whether there was default by the defendant andwhether the Court should exercise its discretion under Section 91A could arise. The learned Judge has permitted the 1st to 4thdefendants to file answer on the basis that up to that time the Courthas not specified a date to file answer.
The order made by the learned Judge on 30.9.2002, was toissue the enjoining order, notice of interim injunction and summonsreturnable for 14.10.2002.
According to Section 55 (1) of the Civil Procedure Code "Uponthe plaint being filed …. the Court shall order summons in the formNo. 16 in the First Schedule to issue, signed by the registrar of theCourt, requiring the defendant to answer the plaint on or before theday to be specified in the summons…" According to this sectionsummons shall specify a date for the answer. Copies of summonsserved on the defendants have been produced by the petitioner asZ8. The summons sent indicate that 14.10.2002 was the datespecified in the summons for the answer. However the learnedJudge has specifically stated that the Court has not fixed a date forthe answer. What is the correct position in this situation?
At this stage l refer to the case of Dhanasena and others vEkanayake and others<2>. In that case too an enjoining order andnotice of injunction were issued. Before the summons returnabledate the defendants filed their objections to the enjoining order. Intheir objections they have stated that they reserved their right to fileanswer later. On the summons returnable date the answer was notfiled and no application was made to get a further date for theanswer. The plaintiff moved to have the case fixed for ex parte trial.After the interim injunction inquiry was concluded and the orderwas delivered, the learned Judge granted permission to thedefendants to file answer. That order was challenged in this Court.That case was from the same Court i.e. District Court of MountLavinia and the Judge who has made that order was the sameJudge who has made the order canvassed in the presentapplication. In my order refusing leave to appeal in that case Ispecifically referred to one of the reasons the learned Judge hasgiven in that case for allowing the defendants to file answer. It was
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as follows."The learned Judge has stated that it is the practice ofthat Court, in instances where there is an inquiry for an injunctionin which the defendant has filed objections, to give a date foranswer after the order relating to the interim injunction is given. Ifthis is the practice followed by that Court there is nothingobjectionable in that practice."
The statement made by the learned Judge in her order, dated
in the instant case, to the effect that the Court has notgiven a date for the answer, has to be viewed in the light of thepractice of that Court as specifically referred to in the order in theabove case, Dhanasena and others v Ekanayake and others,(supra). Therefore I fully accept the learned Judge's reason that theCourt has not fixed a date for the defendants' answer. In theabsence of a date given for the answer no question of default couldarise and the Judge had the right and the power to give a date forthe defendants to file answer. Accordingly there is nothing wrong inthe learned Judge's order granting a date to the defendants to fileanswer.
In view of the conclusion set out above, the questions whetherthere was an oral application by the defendants' Attorney-at-law fortime to file answer; whether the Court has failed to record it andwhether the Court should have fixed the case for ex parte trial uponthe plaintiff's motion of 15.10.2002 which was prior in time do notarise for consideration.
The next question is whether the learned Judge's orderextending the enjoining order issued against the 4th defendant, torestrain the 4th defendant from making any payments to the plaintiffwas correct. The learned Counsel for the plaintiff argued that anapplication under Section 666 has to be made by petition andaffidavit. The learned Counsel for the defendants on the other handargued that after the amendment of 1988 there is no requirement tofile petition and what is necessary is an application which can bemade, in terms of Section 91 of the Code, by way of a motion.
Section 666 of the Code as it stood before the amendment wasas follows.
"An order for an injunction made under this chapter may bedischarged or varied or set aside by the Court on applicationmade thereto on petition by way of summary procedure…."
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In Finnegan v Galadari Hotels (Lanka) Ltd.®), it was stated that"An enjoining order in the first instance is in the nature of animmediate prohibition made against a person at the discretion of theCourt pending the hearing and'the determination of the application.It is different to an injunction in the sense that normally an injunctionmay be granted only after the petition of application with theaccompanying affidavit testifying to the truth of the averments isserved on the opposite party. An exception is made only where theobject of granting the injunction would be defeated by delay. Theexercise of the Court's discretionary powers gives in a sense theCourt a broad undefined jurisdiction to act fairly to prevent wrongsand its effect is immediate." (at 282) This same 'broad undefinedjurisdiction to act fairly' is available to Court to vary the terms of anenjoining order when it is clear to Court that the enjoining orderissued by the Court operates unfairly against one party. It is aninherent power of the Court. In this case the learned Judge hasexercised that inherent power to prevent the enjoining order unfairlyoperating against the 1st to 3rd defendants. The plaintiff's ownmaterial was sufficient to exercise that power. Accordingly I upholdthe learned Judge's order varying the enjoining order issued againstthe 4th defendant. In view of this finding it is not necessary for me todecide the question of law raised relating to that order namelywhether the application should have been made by petition andaffidavit.
For the foregoing reasons, I uphold the order made by thelearned Judge on 21.10.2002 and refuse leave to appeal anddismiss this application with costs in a sum of Rs. 7500/-.
RANJAN RAMANAYAKE v. KALUARATCHI AND OTHERS