011-SLLR-SLLR-2003-V-3-RATNAYAKE-MENIKE-v.-DATANANDA-AND-OTHERS.pdf
CA
Ratnayake Menike v Dayananda and others (Fernando, J.)
57
RATNAYAKE MENIKEvDAYANANDA AND OTHERSCOURT OF APPEALFERNANDO, J.
EDIRISURIYA, J.
CA REV. 663/2003
D.C. KULIYAPITIYA NO. 12149/P
JUNE 25, 2003
Judicature Act S.46 – Transfer of Case – Fundamental Right of every litigant
to be represented by an Attorney-at-Law – Fair and impartial trial to be held.
Held :
It appears that, the petitioner is unable to retain a lawyer from theKuliyapitiya Bar because of the fact that one of the defendants is apractitioner at the same Bar. 2
2.It is a fundamental right of every litigant that he/she must have the lib-erty to be represented by an Attorney-at-Law at the trial.
APPLICATION for Transfer of case.
Cases referred to :
Sivasubramaniam v Sivasubramaniam – 1980 2 Sri LR 58 (Distin-guished)
Jayakody v Attorney General – 4 Sri Lanka Law Reports 106
Chula Bandara for the petitioner.
Aravinda Athurupana for the 7th defendant-respondent
Cur.adv.vult
July 11, 2003
RAJA FERNANDO, J.
The plaintiff-petitioner has filed this application for the transfer of 01D.C. Kuliyapitiya case No. 12149/P to the District Court of Colomboin terms of section 46 of the Judicature Act as amended.
58
Sri Lanka Law Reports
[2003] 3 Sri L.R
Section 46 of the Judicature Act permits the transfer of anyaction prosecution, proceeding or matter pending before a court toany other court where it appears to the Court of Appeal:
that a fair and impartial trial cannot be had in any particularcourt or place.
In the petition and affidavit of the petitioner it is stated that nolawyer from the Kuliyapitiya and Kurunegala Bars would appear for 10the plaintiff-petitioner as the 7th defendant-respondent is a lawyerpracticing in Kuliyapitiya and Kurunegala Courts.
It is further stated in the petition and affidavit of the petitionerthat they retained a lawyer from Marawila courts and he too havinginitially accepted the brief later, on the morning of the trial date, i.e.
4th of October 2002 returned the brief stating that he could notappear in the case as the 7th defendant-respondent was anAttorney-at-Law practicing in that court.
The defendant-respondents have filed their objections to thetransfer on the ground that great hardship difficulties and prejudice 20would be caused to the eleven defendant-respondents if the caseis transferred out of Kuliyapitiya District Court.
Further it is submitted on behalf of the respondents that there isno material other than the bare assertion of the petitioner in her affi-davit to substantiate what she asserts.
In the counter affidavit of the petitioner she has listed the namesof eleven Attorneys-at-Law to whom the petitioner has gone whohave declined to accept her brief for the reason that they are per-sonally known to the 7th defendant-respondent.
The court would not expect the petitioner to file affidavits from 30each of the lawyers she went to in support of her assertion that theydeclined to appear for her for the reasons stated.
According to the proceedings of 4th October 2002 the plaintiff-petitioner has been awarded costs in a sum of Rs.15,000/- to bepaid to the defendant for the postponement of the trial. Counsel forthe respondents cited two cases Sivasubramaniam vSivasubramaniam 0) and Jayakody v The Attorney-General(-2).
In the first case the grounds for transfer was the same as in this
Ratnayake Menike v Dayananda and others (Fernando, J.)
59
CA
case; however the court did not allow the application mainly for thereason that the affidavit of the petitioner was contradicted by the 40lawyers whom she alleged were prevented by the respondent fromappearing for her.
In the other case the Court of Appeal allowed the transfer of thecase to another Court close to the court where the case was origi-nally instituted.
In the present case it would appear that the petitioner is unableto retain a lawyer from the Kuliyapitiya Bar because of the fact thatone of the defendants is a practitioner at the same Bar.
It is a fundamental right of every litigant that he/she must havethe liberty to be represented by an Attorney at the trial which in this 50case the petitioner finds difficult to exercise due to the fact that thecase is taken up in Kuliyapitiya District Court.
Therefore we find that a fair and impartial trial cannot be had inthe Kuliyapitiya District Court.
In the circumstances we are of the view that it will be expedi-ent to have the case transferred from the Kuliyapitiya DistrictCourt to the District Court of Marawila which is not too far fromKuliyapitiya.
Accordingly we order the transfer of D.C. Kuliyapitiya case No.
12149/P to the District Court of Marawila.60
EDIRISURIYA, J. – I agree.Application allowed. Case transferred.