RATNAYAKE v. WIJESINGHE AND OTHERS

035-SLLR-SLLR-1989-V-1-RATNAYAKE-v.-WIJESINGHE-AND-OTHERS.pdf


406
Sri Lanka Law Reports
1198911 SnL R.
RATNAYAKE
V.
WIJESINGHE AND OTHERS
COURT OF APPEALGOONEWARDENE. J. ANDPALAKIDNAR. J.
A. NO. LA 114/87
C. COLOMBO NO. 5345/2OCTOBER 20. 1987.
Declaratory Action — Entitlement to Scholarship — Interim Injunctions &Enjoining orders and their discharge.
The plaintiff (Wasantha Wijesinghe) filed action against .the petitioner — 1stdefendant (Ratnayake) seeking a declaration of his entitlement to a scholarshipabroad relating to the production of pharmaceuticals and a permanentinjunction restraining the 1st to 4th defendants from continuing to take stepsto send out the 5th and 6th defendants on scholarship. He also sought aninterim injunction and enjoining order against Vto 4 defendants on the samelines as the permanent injunction and an enjoining order against 5 and 6defendants from proceeding on' such scholarship. On the matter beingsupported ex parte the District Judge.issued the enjoining orders and notice ofapplication for interim injunction on 1 to 4 defendants. The 1 to 4 defendantsapplied to have the enjoining order discharged. After'inquiry the District Judgggranted the interim injunction ’against 1 to 4 defendants so that theenjoining order would cease to be operative.
Held:—
(1) Jf.the District Judge felt that the enjoining order should not.be dischargedhe could have so ordered instead of deciding at that stage whether or not theinterim injunction should be granted.
'(2)' Proceedings upon an application to discharge an enjoining order aredistinct from proceedings in opposition to the grant of an interim injunction.
' The plaint does not disclose even a cause of action upon the materialaverred quite apart from any question of the plaintiff having made out a casewith respect to which it could'be thought he had a real prospect of winning—an essential ingredient to. succeed in an application for an interiminjunction.-
An enjoining order cannot be issued where there is no application for aninterim injunction. Against the 5th. and 6th. defendants there was noapplication for an interim injunction. Hence they could not have, beenenjoined.
CARatnayake v. Wijesinghe and Others .407
It is no part of the Court's function to involve itself with questions of thiskind relating to the selection of candidates to be sent out on scholarship. Judges-are-ill qualified to decide which of several aspirants for a scholarship should bechosen, especially when it is no part of the.terras of employment^ of. anyparticular claimant that he is assured of'any such right. ■
Cases referred to:
1 Hotel Galaxy Ltd. v. Mercantile Hotels Management Ltd. [1987) „
Sri L.R.- 5-
Jinadasa v. Weerasinghe 31 NLR 33. 34
Preston v. Luck-0 884) 27 C’h. D. 497, 506. 508
Felix Dias Bandaranayake v. State Film Corporation^ 1981) 2 Sri L. R. •
287'. 302''
Hubbard v. Vesper [ 1 972) 1 All ER 1023.- 1Q29;. 1032; (1972) 2QB ■
84. '"
'• 6, RichardPerera v Albert Perera 67 NLR 445
7. Garnage v. The Minister of Agriculture and Lands 7.6 NLR 25. 43. 44.
8,. American Cyanarriid Co. v. Ethicon Ltd. (1975) 1 All-ER 504-
Dissanayake v. Agricultural and Industrial Credit Corporation 64 NLR283. 285.
Donmar Production Ltd., v. Bart (1967) 2 All ER 338. 339. (1967.) 1
WLR 740. 742/
1 1., Harman Pictures NV v. Osborne [ 1 967)- 2 All ER 324, 326. (1967)1WLR 723. 738.
Smith y. Inner London Education Authority [1978] 1 All ER 41 1.426
The Council of Civil Service Unions v.. Minister for the Civil Service
984) 3 All ER 935. 951
APPEAL from order of the District Court of Colombo
Dr. H. W. Jayewardene Q.C. with 14/. P. Gunafilleke and J. A. J. Udawatte forPetitioner-1 st defendant.
D.'R. P. Guna'ti/leke with K. Bafapatabendi. W. A, Karunaratne and Neil Perera forplaintiff-respondent.
Cur. adv. vult.
408
Sri Lanka Law Reports
119891 1 Sri L. R.
November 6. 1987GOONEWARDENE. J.
This is an appeal, with leave of this Court first obtained,preferred by the petitioner the Chairman of the Sri LankaAyurvedic Drugs Corporation against an order of the DistrictJudge made on 24th August 1987 granting an interiminjunction..
The plaintiff-respondent instituted this action in the DistrictCourt against the petitioner the. 1st defendant and othersseeking upon his plaint as substantive reliefs, a declaration ofhis entitlement to a scholarship abroad for 1 986 relating to theproduction of pharmaceuticals and a permanent injunctionrestraining the 1st to 4th' defendants from continuing to takesteps to send out the 5th and 6th defendants on scholarship.Along with his plaint the plaintiff filed an affidavit and soughtan interim injunction in like terms as the permanent injunctionand two enjoining orders directed respectively against the 1stto 4th defendants on the same lines as the permanentinjunction and against the 5th and 6th defendants fromproceeding on such scholarship. There was no interim orpermanent injunction sought .against the 5th and 6thdefendants.
In brief the plaintiff's case was that he along with the 6.thdefendant and two others employed in the manufactory of theSri Lanka Ayurvedic Drugs Corporation as pharmacists or inallied capacities were interviewed by the 1st to 3rd defendantsfor the purpose of selection, to be sent abroad upon ascholarship granted by the World Health Organisation fortraining in the production of pharmaceuticals, as was alsointerviewed the 5th defendant whose employment was not insuch manufactory but in the Corporation's herbarium atWatupitiya; that he the .plaintiff was placed first in order ofmerit" af such- interview as evidenced by the. document X2 acommunication sent by the 1 st defendant to the 2nd defendantthe Administrative Manager of the'W.H.O./U.N.D.P. project forthe development of traditional medicine/which communicationalso requested that early steps be taken to send the plaintiff
CARatnayake v. Wijesinghe and Others (Goonewardene. J.)'.409
upon such scholarship: that in consequence of the contents ofX2 he the-plaintiff made preparations to proceed abroad' butreceived no further communication; that upon oral inquirymade by him' from the 4th defendant the Secretary of.theMinistry of Indigenous Medicine he learnt .that the 5th and :6thdefendants had been selected instead for this scholarship withno reasonable prospect of him being sent: tn-jt writtenrepresentations made by him produced no nesuits:1 and1 thattherefore’a cause of action had accrued to. him to obtain'adeclaration that .he had every right to receive such scholarshipand to proceed abroad upon it. .
• The plaintiff's application for interim relief wasv,s up ported exparte before an Additional District Judge on 26th November1986 and the latter issued'the two-enjoining orders asked.foragainst- the 5th and 6th- defendants and the. 1st to • 4thdefendants respectively, arid directed, that notice-of the interiminjunction sought against the 1st to 4th defendants be issuedon them. The Additiohal 'District Judge-also.directed that .thecase be called on 7th January :1 987;-a. -’.1 "•-'.r i.
On 4th December . T986- – the 1st.-defendant the.. presentpetitioner filed-a petition and.affidavit in the District Court -andsought a discharge o.f.the'.'enjoining order. He alleged Jhatdisciplinary proceedings against the- plaintiff 'hackcommenced-'and as such’he could not bessent out oh this'scholarship; JJponan examination of these-papers, in particularthe’prayer-of suchpetition, it is to be observed that such application: was limitedtathe discharge of the enjoining order directed against the 1stto 4th defendants and did not touch the enjdining'or.der issued■against the 5th■and– 6th • defendants.: This application ..wassupported before tbe District Judge-on 9th December 19,86and he.’directed that 'anr.order nisinbe entered..under'-section3.77(aj'of the Gi.'vih Procedure'Code calling-upon the pi a in tiff-'toshow cause-on 18th Decerhbex-1i986 why this enjoining'.o,rdershould-not be set aside. As the proceedings of this day show(document- P8) the District Judge had .ndteddhe fact that atthatstage it was only.-thedlst defendant who was taking objection tothe enjoining order -and it-had been.'-s-ubmitted to'him that theAyurvedic Drugs Corporation itself-had not been made a'.party
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Sri Lanka Law Reports
11989/ 1 SnL R.
and that therefore the enjoining order had no validity, that itwas a matter within the absolute discretion of the Corporationas to who should be sent out on this scholarship and that theplaintiff had no legal rights in this regard. As the proceedingsshow, .the District Judge was of the view that these werereasonable grounds that induced him to make his order..
' On 1 8.th March 1 987 the plaintiff filed his objections to suchorder nisi being made absolute and-sought a dismissal of the-1st defendant's- application to have the enjoining orderdischarged. On 18lh May 1987 this matter was inquired intoand the District Judge made his order on 24th August T987. Itis this order which is sought to be assailed in this appeal, on-the footing that an enjoining order ceased to have operationupon the grant or refusal of the interim injunction asked for. theDistrict Judge dealt with the matter before him by grantingsuch interim injunction.
*
. I find it difficult to disagree with the submission of learnedQueen's Counsel for the petitioner that in doing so he lost sightof the scope of the matter for inquiry before him. which waslimited to-the question'whether the order nisi entered upon thepapers filed by the petitioner-should be discharged or on theother hand' made absolute.. In the case of Hotel Galaxy v.Mercantile Hotels Management Ltd. the Supreme Courtaccepted that, a District Court had jurisdiction to vacate anenjoining:order granted by it ex,parte.-Atukorale. J. (at page 30)said-.". . it was- legally competent for the learned DistrictJudge towacate the.enjoining order which was.made by him exparte".,ILd.omo.t fail to appreciate that what perhaps the DistrictJudge was trying to do vyasao eliminate what he thought was aduplication of hearings.into the same question.- but one-mustnevertheless, not • lose sight to wha-t..> upon the., proceduread6'pted ;by. him. was- the scope;:of- the matter, for ipq'uiry:Although it is undoubtedly righp-to-say that ah.’orderr.gr.anting orrefusing-, an interim injunction would .supplant the- enjoiningorder/if as.has been held it;wasJegally competentfor the Courtto dischar'ge-Jhe enjoining-order granted by it ex parte, in myview.-it'was also.;eompetentfor the 1st defendant to make suchappijcatidj? for such.discharge and expect'.it to: be considered
CARatnayake v. Wijesirighe and Others (Goonewardene. J.)■ .411
without at the same time running the risk of finding himselfburdened with a more serious (at least in point of duration)interim injunction. Two things must be s.aid. Firstly.'if theDistrict Judge felt that the enjoining order should not bedischarged, he could have so. ordered without going on todecide at that stage whether or not the’interim injunction askedfor should or should not be granted and that would .haveresulted, in the maintenance of the then status quo. Secondly,flowing from, the views .of Atukorale. J. in the case-cited above,proceedings upon an -application to discharge an enjoiningorder are distinct from proceedings in opposition to the grant. of an interim injunction, so that a decision upon the former in aparticular way need not necessarily arid in every case involves adecision on the. latter. An observation must be made as to theadvantage the 1-st defendant would have had at any inquiryspecifically held after notice to him and inter partes, to decidewhether an interim injunction- should .issue of not. .Such,advantage would arise out of the burden cast upon the plaintiffto establish the existence of material justifying its- issue, a■ burden to be discharged in the presence of the 1st defendantwho would have been in .a position to challenge and controvertwhat was urged.. That advantage the 1st defendant .lost uponthe course the District Judge adopted, and' lost in'my viewwithout him being in a position to reasonably anticipate.the-riskof such loss. Upon this one ground.al.onejheh..that the DistrictJudge stepped outside the. scope of the matter for'inquirybefore him. his order allowing the injunction to issue cannot Ithink be'a I lowed to stand.:
There is however,'.as I.see it. -an objection of a much morefundamental and serious nature to permitting such injunction. to remain.'
The jurisdiction granted to a District Co.urt '.to issueinjunctions is by section 54 of the Judicature Act. Subsections(b) and (c) of ..section 54(1) deal with the issue o.f injunctions■'during the pendency of the action" and is of no concern here.What the plaintiff here invoked was the jurisdiction granted bysection 54(-1) (a) and the part material to. this case reads thus:
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Sri Lanka Law Reports
11989J 1 SnL R
“54. (1) Where in any action instituted in a . DistrictCourt . … it appears (a) from the plaint that the plaintiffdemands and is entitled to a judgment against thedefendant, restraining the commission or continuance ofan act o/ nuisance, the' commission or continuance ofwhich would produce injury to the plaintiff . . . the Court■ may . . . grant an injunction restraining any suchdefendant
The words, of subsection (a)-of section 54 (1) are practically averbatim reproduction of the words of section 86 (a) of theCourts Ordinance, a -legislative predecessor of the JudicatureAct'and against the background of that provision in Jlnadasa v.yVeerasinghe (2) Dalton J. (at p. 34) said:—
~."Certain issues suggested by defendant (at the hearinginto an application for the discharge of an interim. injunction issued ex parte) were objected to by plaintiff. Inso far as.they raise the question whether plaintiff had anysubstantial ground for his claim they.were rightly allowed.In such a matter the Court must be satisfied that there is aserious question to be tried at the hearing and that on the' facts before it'there is a-probability that plaintiff is entitledto relief (Preston v. Luck at p. 506)". (3)
The-very words of the . section supports this view. It mustappear to the Court from the plaint that the plaintiff is entitledto-a judgment against the defendant.'
' .The approach of the Indian Courts to interim injunctions, oras'they'are.c.alled-there, temporary-injunctions is shown in the.following passage from the work "Commentaries on the L’aw-ofInjunctions" by G.-P. Gupta 3rd Edition 1984 (at page 17)which reflects the effect of .the statutory provisions andauthoritiesThere:—■.
’."On the assumption thatf the party asking interference-ofthe Court tb protect, his legal right needs the protection ofthe Court-until his'legal right is established, the-Courtsgrant, injunction. Therefore'the party, approaching the
CA
Ratnayake y. Wijesinghe and Others (Goonewardene. J.)
413
Court for protection must'show a fair prima facie case toestablish the title he asserts”.
As exegetical perhaps of the expression 'fair prima facie case'the author (at p. 16) states:— •
(
• "To get an interim injunction the applicant must satisfy theCourt.that there is a serious question.to be tried and-thathe has a fair chance of winning of the suit". –' –
' Dr. Jayawardene,'Counsel for the'petitioner at’the hearingbefore us. referred us to the case of, Felix Dias •Bandarahayakev. State Film Corporation where’ Soza' J. (at- p.> 302)expressed his views thus:— • •'
In Sri Lanka we start-off with a-.primarfacie ease. That is.the applicant for an interim injunction must show thatthere is a serious matter in relation to his legal rights, tobe tried at the hearing.and that he nas-a good chance jofwinning. It is not necessary that the plaintiff should becertain.to win. It is sufficient if the-probabilities are he will.
; win.. Wher-e howeverjhe plaintiff has established .a.strongc prima 'facie’case'that he has. title to the' le'gal right claimed,b.y him’ but only an arguable case that the 'defendant hasi.nfringed'Tt oris about to. infringe– it-; The injunctiorrsbould■■ not.be qtane&(Hubbard:v: Vesper) (-5:); If the' probabifity is '
■that ho right o.f the' plaintiff will be violated or that he will■suffer hO such wrong as The law' recognises then- theinjunction will not issue — 'See for instance the .case ofRichard Perera'v: Albert1 Pdrera — (®')'ahd Garbage V The,
'M'inister'of Agriculture ahd'LandsP) ‘- '" ’
Dr. Jayawardene also -referred us to the case of AmericanCyanamidiC.oV:v: ‘Ethicon Std.-^) with respect' to which Soza J.in'the case jusi cife.d'(at p. '301 — 3,0 2) said: 'n
"The-burden is' on'th.e plaintiff to-show. that-there is aserious question’ to be tried- in relation’ to. his legal rights•- —See Jinadasa v. Weerasirighe ^-)(and Dissahayake v.
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Sri Lanka Law Reports
119891 7 Sri L. R.
Agricultural and Industrial Credit Corporation O). Therequirement that there should be a serious question to betried in relation to the legal rights which the plaintiffclaims, with the probability of his winning has always beenunderstood to mean that the plaintiff must show theexistence of a pr.ima facie case —see for instanceBanerjee: Law of Specific Relief (1 978 6th Edition) p. 585.also Nathan: Law of Defamation in South Africa (1 933) pp183. 184. Preston v. Luck (3) jmadasa v. Weerasinghe '(supra). This is the law of Sri Lanka and it is the law ofIndia and South Africa. It was the. law of England too for. upwards of a century until Lord Diplock in 1975 threw itoverboard in his speech in the House of Lords case ofAmerican Cyanamid Co. v. Ethican Ltd, (8). Lord Diplock■regarded the requirement of a serious question to be tried;:.as meaning that the plaintiff's case must not be frivolous1 or vexatious". .
Lord Diplock (.at p 510.) did say:
"The use of such expressions as 'a probability', 'a prima. facie case', or 'a strong prima facie case' in-the context of■the: exercise of • a discretionary • power to grant aninterlocutory injunction leads.to confusion as to the object.spught.to.be achieved by this form of temporary relief. The..Court no doubt'must be satisfied that the claim is notfrivolous or- vexatious; in other words, that there is a. serious questio.o;to be tried".
. Lord Djplock however, it see}ms to me, interpreted differentlythe decision in Hubbard v. Vesper (supra) .as the followingpassage (at p. 509-51 0) shows
J'An attempt had. ;been made to reconcile .these apparentlydiffering approach.es to the exercise of the discretion byholding, that the'need to show a probability or a strongprima facie, case applied-only to the establishment by the■ ), plaintiff o.f hisTight, and that the .lesser burden of showing..an .arguable case to' be tried ■ applied, to the alleged
CARatnayake v. Wijesinghe and Others (Goonewardene. J.j415
violation of that right by the defendant- (DenmerProduction Ltd. v. Bart (1™ per Ungvoed Thomas J..Harman Pictures NV v. Osborne H1) per Goff J) The. suggested distinction between what the plaintiff must• establish.as respects his-right and what he must show asrespects its violation did not long survive. It was rejectedby the Court of Appeal in Hubbard v. Vesper (5) a case inwhich the plaintiff's, entitlement to copyright wasundisputed but an injunction was. refused despite, theapparent weakness of the suggested defence".
Lord Diplock did not accept as good law.the proposition that-seeks to distinguish the requirement of a strong prima faciecase as to title to.the legal right claimed from an arguable case• as to its infringement.
Reading the speech of Lord Diplock as a whole, if I may sayso with respect it seems to me that he did not say that the useof expressions such as "a probability","a prima facie case”, or ■"a. strong prima facie case”, were wrong in any real sense.Rather'what he strived for was to deprecate the use of suchexpressions in the; context of the exercise of a discretionarypower to grant an interim injunction, as,such use would lead toconfusion as to the object sought to be achieved!; Instead, heput it differently and said that the Court must be satisfied thatthe claim is not frivolous or vexatious or in other words thatthere is a serious question to be tried. Upon its face thisstatement looks to me logical enough. If the-claim be seen to befrivolous or vexatious there cannot be a serious question to betried. The same approach is seen in Gupta's."Commentaries onthe Law:of Injunctions" (ibid) where the author (at p. 1 6) says"Before issuing -a temporary injunction' against a party theCourt must .be satisfied that the claim of the applicant is notfrivolous or vexatious but is well founded" This statementoccurring iri-th'is work lies virtually-alongside what I cited earlier •from it. that the party applying for an injunction must show astrong prima facie case.
Th.e true, question as formulated by Lord Diplock, as I see it. isthat contained within the following words .(at, p.51 0}'used by
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(I989J 1 Sn L. R.
him "So unless the material available to the Court at thehearing of the application for an interlocutory injunction fails todisclose that the plaintiff has any real prospect of succeedingin his claim for a permanent injunction at the trial, the Courtshould go on to consider whether the balance of conveniencelies in favour of granting or-refusing the interlocutory relief thatis sought":
My view that this is the true question suggested in that casefinds support I think in the words of Geoffrey Lane L..J. in Smithv. Inner London Education Authority C*2) which read. "In anyevent if one does pose the American Cyanamid question,namely: do the plaintiffs have a real prospect of succeeding inthe eventual trial?, the answer is No."
A real prospect of .success in the eventual trial is the test thenformulated in that case and this is the view of Soza J. himself(expressed at P. 302) in the case of Felix Dias Bandaranayake v.State Film Corporation (supra) in the words . . that he has agood chance of winning"..
… I would therefore.adopt.this as the true test (without seeking■ to draw distinctions between the requirement in this regard asto the-standards applicable to the plaintiffs claim of title to theright claimed, and to the defendant's infringement of suchrights) and at the same time venture to express the view thatthis test is not in.any analytical sense disparate from the testbased upon the existence of a prima facie case, especiallywhen one has regard to the'fact that there appears to be nodifference in the. approach here between an interim injunctiongranted ex parte without hearing the defendant's side of thematter and one granted inter partes in the presence of thedefendant.'…■
The same question as posed by Geoffrey Lane L. J. in Smith v.~lnne'r London .Education Authority, (supra) posed in the instantcase must; I think, result.in the same answer. I have to agreewith Counsel for the petitioner that the plaint does not disclose.even -a cause of action upon the material-averred, quite apart■ from any question of the plaintiff having made out a'case with
CARatnayake v. Wijesinghe and Others (Goonewardene. J.)
417
respect to which it could be. thought he Has a Veal pTospect ofwinning. It must be kept in mind that the Corporation itself wasnot made .a party'to the action and apparently the-cause o<action averred is claimed to^ia.rrse against, the,” list, to !3;rddefendants /merely because, they were members, of theSelection Board. I find it impossible to .go along with ..thecontention of Counsel for the respondent that._ t,here was.anyact or wrong committed by these~three,defendants, or indeed, any of the other defendants, that '.could be-said; ,to haveconstituted an infringement of any right,.that'sthie, pi a i.nt if f- h ad,: rithis connection one other matter-must1 betaken/mote-of. The• 5th and 6th defendants are necessarily person's who. would-have been affected "by the relief.- clai'med upon the plaiiifrii'f.granted. Howeverrfhe relief claimed against .them directly' wasilimited to an enjoining ord’er.^That- enjoining'order had. been'sought .to be operative till the determination o'f –ihe question-whether the‘: ' injunction ‘ asked for 'against * the-' 1 st •' to ,4thdefendants (whether interirrfo'r permanent is not made clearin'the prayer to the plaint)'Was made, The fernis of section 664 ofthe Civil Procedure Code are‘cleaf1 that an enjoinirig order must';have reference to, an, interim injunction'* sought‘ against a.particular defendant.’ or defendants, "and • therefore if '-a'n- enjoining-.order vyas sought against the 5th and 6th defendantsit could,have been, granted ,to be operative only till thegrant Orrefusal.. of an interim, injunction a'gainsrthem._ To .put it iri■anothervyayi there can be no ehjbinin'g'order issued against-a’person .against whom no' interim' mjuhctiondas 'been-soUghti. The enjojnin.g Ordeh asked for 'and'dliowed'by. the Additional
District Judge against the" 5th and 6th defendants instead has
reference, not to an interim' injunction against them, but :tb one:against the '1st to 4th defendants-. Ah enjoining order Of'thatnature i.s not-one which, it was competent for' the' AdditionalDistrict Judge to grant in law and in d.oing'so I think he was-patently in error. _• . ,v C. ': • 1'* ' – '. ■ ■ ■'.'
-The plaintiff .rested his entire case,-as did'his GpU'hSeVapthe-hearing bbfox-e) us;j on7 the docurhent-'X'2i': What was thisdocument? It'yvas a communication'by the-1st,defendant to the2nd defendant bj?thpf -whom were, ; on:''the; plaintiff's‘-oyvn
showing/ on fbe tSeiecTi6'h’,B0ard'.' The 1st defendant is;i-the -. Chairman of the Ayurvedic ‘Drugs1 Corporationiarid the 2nd'
defendant is described as the’Administrative Manager of thei
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W.H.O./U.N.D.P. project for the development of traditionalmedicine. Dr. Jayawardene contended that the 2nd defendanthimself was no more than an employee of the Ayurvedic DrugsCorporation and that this seems to be so appears to findsupport- in the document C' filed with the petitioner's papershere which is a communication under the hand of the W.H.O.representative in Sri Lanka. It refers to the applications forthese scholarships (described there as fellowships) made tohim (by the 5th and 6th defendants) and if not to him. throughhim to some,other. What.does document X2 state? It states that■the plaintiff having been. selected into first position, his namewas being put forward for this scholarship by the-Corporation.That- this is no more than a recommendation is clear upon itsterms and it is significant that in a request contained in it totake steps to . send out. a person upon the scholarship early,such request is not specifically to send out the plaintiff. Further,document. 'CLappears to show as I have just pointed out thatthe applications, for these scholarships (fellowships) had to bemade, by the applicants . themselves to .the .U.N.D.P.representative or through him tp another, and therefore clearlythe recommendation of the 1st respondent as shown upon X2has tojae. considered a recommendation and no more.
As I indicated earlier the. plaintiff's papers in the DistrictCourt no.wher.e show that any communication of any kind wasmade to.him upon which he,could claim to have justifiably builtup a legitimate expectation of,being awarded this scholarshipand the ..fact-that his Case was not presented anywhere uponsuch footing to my mind suggests that there was no materialavailable, upon which he! could have made an attempt to make.out- any case.onithat basis. ….
The reasoning adopted by the District Judge in granting theinjunction was criticised by Counsel for the petitioner, that itwas, ng ;par.t • of the . Court's. Junction to. involve itself with.questions,of this .kind.relating to the selection of candidates'to-be-sent out;on scholarship'? In this connection I th'ink’it wouldbe useful to reproduce.h.ere"a passage from the speech of LordDipl.ock although it- was with .respect to questions' ofgovernment policy and in a-ifferent context, in the case of TheCouncil of Civil Service Unions v. Minister for tfie CivilService 0 3)-
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CARatnayake v. Wijesinghe and Others (Goonewardene. J.)
■ ■"Such decisions will generally involve the application ofgovernment policy. The. reasons for the decision-maker■ taking one course rather than another do not normally•involve questions to which, if disputed, the judicialprocess is adopted to provide the right answer, by which Imean that the kind of evidence that is admissible underjudicial procedures and the way in which it has to beadduced tend to exclude from the attention o,f the Courtcompeting policy considerations which, if the executivediscretion is to be wisely exercised, need to be weighedagainst one another, a balancing exercise which Judgesby their upbringing and experience are ill qualified toperform”.
Much the same kind.of thing can be said with respect to anyendeavour by a Court to decide which one of several aspirantsfor a scholarship should be chosen, especially when it is nopart of the terms of employment of'any particular claimant thathe is assured any such right. • v '■
It can by no means I think: be said either that the plaintiff.hasmade out a prima facie.case (if one wishes to adopt that testhorto adopt the test suggested by Lord Diplock that the plaintiffhas.a real prospect of succeeding in the eventual trial. Indeed Ihave to repeat that the plaint does not disclose any cause ofaction upon which iris-possible’to say this'action has beenproperly founded. I would like-to reproduce here and stress thewords of Gupta in "Commentaries.on the Law of Injunctions"(ibid) at page 1 6 where he says "Before issuing the’ad interiminjunction it is the bounded duty on the part of the Court toapply its mind and find out the nature of relief asked for and thecircumstances under which- the party is asking the .aid of•Court". Hence the injunction issued cannot in all’ thecircumstances be ailowed to remain.-
•t-
To proceed however a step further and assume that the.plaintiff had overcome this hurdle (which he clearly has not) thenext question as Lord Diplock says is whether the balance ofconvenience lies in favour of granting or refusing theinterlocutory relief sought. As to that the formulation adoptedby Soza J. in Felix Dias Bandarariayake. w State FilmCorporation. (Supra) at page 303 is thus: ■■
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(1989/ 1 Sri L. R.
'This is tested out by weighing the injury which thedefendant will suffer if the injunction is granted and heshould ultimately turn out to be the victor against the injurywhich the plaintiff will sustain if the injunction were refusedand he should ultimately turn out to be the victor".
Upon this test, if the interim injunction is allowed to remain butthe defandants ultimately turn out to be the victor, the 5th and.6th defendants will have been prevented from proceeding uponthis scholarship. On the other hand if the injunction weredissolved but .the plaintiff was to turn out the victor, he will getthe declaration he seeks and a permanent injunction against the1 st to 4th defendants the result of which will be to prevent the5th and 6th defendants from proceeding upon this scholarship.The plaintiff himself, in a merely declaratory action of this natureand having regard to the relief sought in the plaint in the lattereventuality will not ,be assured of. proceeding upon thisscholarship nor will- he have a decree which by enforcementcould achieve that objective. In either event the plaintiff will notgo o.ut on the scholarship-.' Therefore upon a balance ofconvenience as well, the injunction should not be allowed torernaim :
. I think this* appeal succeeds and in allowing it I would makegrder dissplving. and discharging the interim injunction grantedby .the District Jpdge by his, order of 24th August 1987 and toavoid any. misunderstanding, or confusion I would make a likeorder with, respect to the enjoining order that preceded it. Sincewhat I have ,said applies in. general with equal force to theenjoining order issued against the 5th and 6th defendants aswell', and, in particular haying regard to what I have said withrespect to them and to .the, unjustifiable hardship that would .result, to them if this is not done, I would in the circumstances ofthis case acting in revision also make a like order discharging the.. enjoining order issued against the 5th and 6th defendants.
The’plaintiff-respondent will pay the petitioner his costs of thisappeal,;: ''. -'.. .'
PALAKIDNAR. j. — I agree
Appeal allowed Interim injunction dischargedEnjoining order against 5 land'6 defendants discharged.
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