The Learned Judge has referred to the document marked “D3”. It is anaffidavit filed by the Chief Engineer, Department of Buildings, According to“D3”, the excavation work has been completed, four retention walls havebeen constructed on all four sides and they cover the common boundarybetween the two premises. Accordingly, the possibility of any damage
CARatnapala vs223
Metro Housing Constructions (Pvt) Ltd (Wimalachandra, J.)
being caused to the plaintiff’s property and the building standing thereonis unlikely.
The possibility of further excavation and the use of heavy machineryare the main grounds upon which the plaintiff sought to restrain thedefendant from further construction of the building. In this regard theconsultant civil engineer Mr. Ernest has filed an affidavit, wherein, inter-alia, he has observed that since the construction of retaining walls on allsides are now being completed in premises Nos. 49 and 51, 37th Lane,Wellawatta, there is no possibility of any damage being caused to thewall and the building in premises No. 11, Pennyquick Lane, Colombo 06.
The Learned Counsel for the plaintiff submitted that even though thelearned trial judge has relied on the report marked “D3” (also marked as”E25”) of Mr. Jayachandran, Chief Engineer of the Buildings Department,produced by the defendant, it makes no reference to the damage causedto the plaintiff’s building or steps taken by the defendant to prevent furtherdamage. In the report marked “D3” it is clearly stated that excavation workhas been completed and adequate precautionary measures have beentaken by the defendant.
The Learned Judge has therefore observed that the excavation workhas now been completed and that there is no possibility of causing furtherdamage to the plaintiffs building. The affidavit filed by the Resident Engineerof the defendant, Mr. Atputhananthan dated 19.04.2005 marked as “X14”annexed to the statement of objections reveals that the construction ofthe foundation and the retaining walls up to ground level have beencompleted by the date of filing the affidavit marked “X14”. The said ResidentEngineer has also sworn the affidavit dated 19.04.2005 marked “X4” whereinhe states that the following items of work have commenced and beencompleted:-
Laying of foundation
Construction and completion of a retention wall right around thebuilding site.
Construction and completion of the ground – floor slab after erectingthe necessary pillars
Construction of 1/4 th of the floor.
Sri Lanka Law Reports
(2005) 3 Sri L R.
The averments in the affidavits marked “X4" and “X14" are confirmed bythe affidavit of T. A. Ernest, a chartered Civil Engineer, marked “X2” annexedto the statement of objections which describes the experience andqualifications of Mr. Ernest.
The Plaintiff produced an inspection report (marked “A(e)” annexed tothe petition) prepared by the Chartered Engineer M. K. A. N. B. Alwis inrespect of the premises No. 11, Pennyquick Road, Wellawatte, whichbelongs to the plaintiff. It speaks of the damage that has been caused asa result of the excavation work. However, from the affidavits of the ChiefEngineer of the Buildings Department (vide- document marked ‘D3’) andfrom the affidavit of the Resident Engineer (vide document marked ‘D2b’),it can be seen that the excavation work was completed before the date ofpetition. This is confirmed by the photographs marked “X3” annexed to thestatement of objection. The learned trial judge in his order at page four hasobserved that the photographs marked ‘D1 (a)’to‘Dl (b)’ show no furtherdamage would be caused to the plaintiff’s building and the defendant hastaken all possible steps to prevent any further damage to the building.This has been confirmed by the Chief Engineer, Department of Buildingsin his affidavit marked ‘D3’.
In these circumstances, the question that arises is whether the petitionerin entitled to the extension of the interim order granted in terms of paragraph
of the prayer to the petition, and to an interim injunction.
As regard to the issue of an interim order, the Court must take intoaccount certain principles. In the case of Billimoria l/s. Minister of LandDevelopment and Mahaweli Development and Two Others at 13Samarakoon, C. J. observed :
“In considering this question we must bear in mind thata stay order is an incidental order made in the exerciseof inherent or implied powers of Court.”
Ratnapala vs
Metro Housing Constructions (Pvt) Ltd (Wimalachandra, J.)
In the case of Duwearachchi and Another Vs. Vincent Perera and OthersSeneviratne, J. laid down the following guidelines in granting a stay order:
Will the final order be rendered nugatory if the petitioner issuccessful?
Where does the balance of convenience lie?
Will irreparable and irremediable mischief or injury be caused toeither party ?
Before I proceed to discuss the applicability of the aforesaid principlesto the facts of the present case, I consider it pertinent to consider theequitable considerations. The conduct and the dealings of the parties mustbe taken into account.
It is to be observed that the impugned order was delivered on 16.03.2005and this application for leave to appeal was filed on 31.03.2005 and wassupported on 01.04.2005 for an interim stay order on the last day beforethe commencement of the Court vacation, without notice to the defendant.The plaintiff obtained an interim stay order restraining the defendant, itsservants and agents from effecting any construction and/or excavationoperations in premises bearing assessment Nos.: 49 and 51,37th Lane,Colombo 06. Thus it will be seen that the plaintiff supported for an interimstay order, 15 days after the delivery of the impugned order without noticeto the defendant. It shows that the plaintiff had sufficient time to give noticeto the defendant before supporting for an interim stay order.
Moreover the Rules of the Appellate Procedure make it compulsory togive notice to the party concerned before such an application is supported,unless the petitioner comes with a plausible explanation, that the matteris of such urgency that it was not possible to give such notice.
The Rule 2(1) of the Court of Appeal Rules 1990, reads as follows :
2(1) Every application for a stay order, interim injunctionor other interim relief (hereinafter referred to as “interimrelief”) shall be made with notice to the adverse partiesor respondents (hereinafter in this rule referred to as ‘the
Sri Lanka Law Reports
(2005) 3 Sn (.. R.
respondents1) that the applicant intends to apply for suchinterim relief; such notice shall set out the date on whichthe applicant intends to support such applications, andshall be accompanied by a copy of the application andthe documents annexed thereto :
Provided that –
interim relief may be granted although such noticehas not been given to some or all of the respondentsif the Court is satisfied that there has been nounreasonable delay on the part of the applicant andthat the matter is of such urgency that the applicantcould not reasonably have given such notices ; and
in such event the order for interim relief shall be fora limited period not exceeding two weeks sufficientto enable such respondents to be given notice ofthe applications and to be heard in opposition thereto on a date to be then fixed.
In these circumstances, the interim order is liable to be set aside. Inthe plaint, the plaintiff describes the premises which he sought to protectas his residential house (vide – paragraphs 3, 9,13 and 16 of the plaint).In the petition filed in this Court, in paragraph one the Petitioner describedthe said premises as a residential premises. However, the assessmentextracts, marked “X5” annexed to the statement of objection, show thatthe said building in the premises No. 11, Pennyquick Road, Wellawatte isa store house. This is confirmed by the Certificate issued by the GramaNiladari of Pamankada West Marked ‘XT annexed to the statement ofobjections filed by the defendant. The plaintiff has described the buildingin his premises as a residential house when in fact it is a store house. Ingranting interim injunctions and interim relief it is settled law that a personwho makes an ex-parte application to court is under an obligation to makethe fullest possible disclosure of all material facts within his knowledgeand if he does not do so, then he cannot obtain any advantage which mayhave already been obtained by him. That is perfectly plain and requires
Ratnapala vs
Metro Housing Constructions (Pvt) Ltd (Wimalachandra, J.)
no authority to justify it. (Row's Law of Injunctions, 6th edition, Volume Ipage 123). In the instant case, the description of the building in the premisesof the plaintiff as a residential house amounts to a misstatement of thetrue facts, which gives a different picture to his case as presented by him.When the plaintiff gave the impression in the plaint that a residentialhouse has been damaged the Court’s sympathy would have definitelytilted in his favour.
In the case of Hotel Galaxy (Pvt.) Ltd. and Others Vs. Mercantile HotelManagement Ltd:(4)? said at 36,
“Thus a misstatement of the true facts by the plaintiffwhich put an entirely different complexion on the caseas presented by him when the injunction was applied ex-parte would amount to a misrepresentation or suppressionof material facts warranting its dissolution without goinginto its merits”.
In the circumstances, on this ground as well, the interim stay order andinjunctive relief should be set aside.
One of the grounds that the Court should address its mind to is thequestion, in whose favour does the balance of convenience lie? It is theduty of the Court to consider the inconvenience and damage that willresult to the defendants as well as the benefit that will accrue to theplaintiff by granting an interim stay order. The burden lies upon the plaintiff,as the person applying for the interim order, and injunctive relief, of showingthat his inconvenience exceeds that of the defendant.
The plaintiff has estimated the damage caused to his building in a sumofRs. 10 million as a result of the excavation work of the defendant. For thereasons stated above it appears the excavation work has been completedand the construction of the building has now come up to the ground floorat the time of filing the plaint. The possibility of excavation and the use ofheavy machinery are the grounds upon which the plaintiff sought to restrainthe defendant from carrying out further construction. It is the defendant’sposition that the plaintiff is not entitled to the extension of the interim stayorder and interim injunction as there is no danger to the plaintiff s property
Sri Lanka Law Reports
(2005) 3 Sri L. R.
as the defendant has completed the excavation work and already laid thefoundation. The construction and completion of the ground floor slab aftererecting necessary pillars has been completed and a retaining wall hasalready been constructed right around the building site.
If the damage caused to the plaintiff is quantifiable, then no injunctionor interim order will usually be granted (vide – Jinadasa vs. Weerasinghe*)Where the injury is capable of being estimated in money, generally aninjunction may not be granted. This principle of law has been stated asfollows in Snell’s Principles of Equity, 38th edition , at page 640 :
“The ’governing principle’ is that if the plaintiff would be adequatelycompensated by an award of damages if he succeeds at the trial, and thedefendant would be able to pay them, no injunction should be granted,however strong the plaintiffs case"
The above principle was applied in the America Cyananamid Co. vs.Ethicom Ltd.5 at 510, where Lord Diplock said ;
"If damages in the measure recoverable at common law would beadequate remedy and the defendant would be in a financial position topay them, no interlocutory injunction should normally be granted, however,strong the plaintiffs claim appeared to be at that stage."
In the instant case the plaintiff has estimated damages in a sum of Rs.10 million. Since the plaintiff has quantified the damages he is not entitledto an interim stay order or interim injunction. Moreover, the defendant hasproduced an Insurance Policy from Eagle Insurance Co. Ltd., which coversthird party loss upto a sum of Rs.10 million, (vide document marked D2 (b)annexed to the defendant’s statement of objections). Thus, the defendantshas shown its financial capacity to pay such damages. Moreover, themischief complained of can be fully and adequately compensated by apecuniary sum. In these circumstances the plaintiff is not entitled to anyinterim slay order nor an interim injunction.
If the granting of an interim injunction or issue of an interim stay orderwould have the effect of inflicting serious damage upon the defendant, andespecially when the mischief complained of can be adequately
Ratnapata vs
Metro Housing Constructions (Pvt) Ltd (Wimalachandra, J.)
compensated by a pecuniary sum, an injunction will not lie. In the instantcase the defendant has established by documentary evidence that if aninterim stay order or an interim injunction is granted, immense loss anddamage would be caused to the defendant. The defendant states thatmany prospective buyers of the apartments that are to be constructedhave made advance bookings in the proposed multi storey residentialcomplex to be constructed by the defendant. Advance payments havealready been made by the prospective buyers (vide ‘X15’ annexed to thestatement of objections of the defendant). The defendant has already madepayments for building materials worth millions of rupees as evident bydocument marked ‘X16' annexed to the statement of objections. Thedefendant has spent large sums of money for excavation work, laying thefoundation, building a retaining wall to protect the neighbouring properties,and already constructed the ground floor, apart from spending an equallylarge amount of money on architects, civil engineers, workers etc. If thestay order or interim injunction is granted a large quantity of buildingmaterials already at the work site will go waste and finally will be of no useto the defendant. If the stay order is extended or the interim injunction isgranted, apart from the harm, loss, and damage that would be caused tothe defendant, it’s reputation as a construction company will be affected.In the circumstances if the stay order is extended or an interim injunctionis granted irremediable injury would be caused to the defendant.
It seems to me that the learned judge has correctly applied the relevantprinciples of law to the facts of this case in making his order. The learnedjudge has correctly held that at the time the plaintiff made the applicationfor injunctive relief, the excavation work had been completed and therewas no possibility of causing further damage to the plaintiff s building asalleged by the plaintiff. The documents produced before Court show thatthe excavation work has been completed. As regards the balance ofconvenience, the learned judge has correctly assessed the situation. Thelearned Judge has also held that the plaintiff has quantified the damagecaused to him and that it could be open to the plaintiff to lead evidence toprove the damage caused to him at the trial. In any event as the defendanthas already taken a policy of insurance for Rs.10 million in respect ofdamages to third parties, the plaintiff could recover damages in the eventhe establishes at the trial of any damage being caused to his property.The Court has compared the damage that will be caused to the parties and
Sri Lanka Law Reports
(2005) 3 Sri L R.
upon the evidentiary material placed before Court, the Court has held thata greater damage would be caused to the defendant than to the plaintiff ifthe interim injunction is granted.
For these reasons, we affirm the order of the learned District judgedated 16.03.2005 and dismiss the plaintiffs application for leave to appealwith costs. The question of the extension of the interim stay order will notarise as the Court has refused the plaintiffs application for leave to appeal.
SOMAWANSA, J. – / agree.
Application dismissed.