GUNASEEERA.. T. —Seltanayagam v. Sellammah
1978Present: VytMaimgam, J. and Gimasekera, J.
'RATNAM SELVANAYAGAM, Petitioner
SELLAMMAH, WIFE OF PAVILU PHILIP, Respondent
S.C. Application 919/76—M. C. Jaffna 11447
Administration of Justice Law. No. 44 of 19 73, section 62—Nature of the
proceedings in an inquiry under this section—What orders hasthe Magistrate yov:er to mzke.
CrUNASEKERA, J—Selvaixayagam v- Scilammah
Proceedings under section 62 of the Administration of JusticeLaw, No. 44 of 1973, are not meant to be a determination of therights of parties in dispute relating to land, but are intended onlyto preserve the peace, by maintaining the status quo with regardto possession until the rights of parties are decided in a properaction in a civil Court. What a Magistrate is expected to do incases of this nature is to determine on the evidence as to whowas in possession of the land on the date the notice was issuedby him in these proceedings and to make order that that personis entitled to remain in possession of the land in dispute until acivil Court decided the rights of parties. If, however, he findsthat the person in possession had been forcibly evicted from theland during a period of two months prior to such notice, theMagistrate can then order the person so forcibly ousted to berestored to possession. These are the only two orders a Magistratecan make in these proceedings except by consent of parties.
Case referred to :
Kanagasabai v. Mylioaganam, 78 N.L.R. 280.
j/^PPEAL from an order of the Magistrate’s Court, Jaffna.
K.Kanag-Iswaran, for the petitioner.
V. Tharmalingam, for the respondent.
Cur. adv- vult.
June 1, 1978. Gunasekera, J.
The respondent (who was the 1st respondent in the procee-dings in the Magistrate’s Court), who was the owner of certainbusiness premises in the Jaffna town complained to the policethat she was obstructed by the petitioner (2nd respondent inthe Magistrate’s Court) when she attempted to build on thevacant land adjacent to the shop building owned by her andtenanted by the petitioner. The petitioner claimed that thisvacant lot was appurtenant to his tenancy. On this dispute thepolice instituted these proceedings in terms of section 62 of theAdministration of Justice Law on 17.11.1975. The petitionerthereafter filed action No. D. C. Jaffna 5876/L on 12.2.1976 seekinga declaration that the petitioner was the monthly tenant of thevacant allotment and prayed for an interim and permanentInjunction restraining the respondent from interfering with hispossession thereof. On 9.4.1976 at the inquiry into this appli-cation for an interim Injunction the parties arrived at a settle-
GUNASEKSRA, .T—Ssb.anayagam, v. Sellammah71
menu, both parties agreeing not to build on. this land until thefinal determination of that action and the petitioner also agreedto remove a temporary hut he had erected there before 16.4.1976.
In the meantime the learned Magistrate in these proceedingsinspected the premises on 25. 3.1S76 and 13. 7.1976 and orderedthe petitioner to remove a fence and cement a doorway of hispremises opening to the vacant land. After several interveningdays* during which the petitioner was not present in 'Court, on
the Court ordered a notice to be sent by registeredpost to the petitioner to appear for inquiry on 8.10.1976 and on
the petitioner not being present he proceeded toinquiry ex parte, and made order granting the prayer in therespondent’s statement of claim, namely,
“ (a) that this Court do direct the 2nd respondent to removethe door and the roof erected by the 2nd respondentwith a view to preventing this respondent’s possessionof this land ;
that the 2nd respondent be directed not to interfere
with the possession, of this respondent of this lot B ;
for such other and further relief as to which this Court
shall seem meet ”.
It is against this Order of the learned Magistrate that thepetitioner has moved in revision in this Court. The petitionerhas produced before us mark 2d X7 the notice received by himfrom the post office to show vhat he received the notice sent byCourt of the inquiry fixed for 8. 10.1976 only on 11.10.1976. Weare satisfied that the Petitioner had no notice of the inquiry-held on 8.10. 1976.
We are also of the view that the learned Magistrate failed toappreciate the nature of the proceedings under section 62 of theAdministration of Justice Law and misdirected himself withregard to his jurisdiction in such proceedings. Proceedings underthis section are not meant to be a determination of the rights ofparties in dispute relating to land but are intended only’ topreserve the peace, by mlaintaining the status quo with regardto possession until the rights of parties are decided in a proper
GUNASEKERA, J.—Sdvaivt^agan v- Sellammoh
action in a Civil Court. As has been pointed out in severaldecisions of this Court (see for instance Kanagasabai v.Mylwaganam, (1976) 78 N.L.R. 280) all that a Magistrate isexpected to do in cases of this nature is to determine on theevidence as who was in possession of the land on the date thenotice was issued by him in these proceedings and to makeorder that that person is entitled to remain in possession of theland in dispute until a Civil Court decided the rights ofQtheparties. If however he finds that the person in possession hadbeen forcibly evicted from the land during a period of twomonths prior to such notice the Magistrate can order the personso forcibly ousted to be restored to possession. These are the onlytwo orders a Magistrate^ can make in proceedings under thischapter and except by consent of parties he cannot make, anorder of the nature he has made in this case.
We therefore set aside the order of the learned Magistratedated G.11.1976 and send the record back to the Magistrate’sCourt for him to proceed with the inquiry and make a properorder in terms of the law having regard also to any orders madein the District Court case above referred to. The petitioner willbe entitled to his costs of this application-
Vythialingam, J.—I agree.
Set aside and sent back.