009-SLLR-SLLR-2005-V-3-ROSHAN-vs.-SOMASIRI.pdf
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Roshan vs Somasiri
45
ROSHAN
VS
SOMASIRI
COURT OF APPEAL.
SOMAWANSA, J. (P/CA) ANDWIMALACHANDRA, J.
CALA 423/2004.
DC ATTANAGALLA 87/L.
MAY 30. 2005.
Civil Procedure Code, section 763(2) – Judicature Act. section 23 – Writ pendingappeal – Substantial question of law – Matters to be considered – Onus on thejudgment debtor.
HELD:
For the appellate court to consider whether there is a substantialquestion of law to be decided in appeal, the relevant material has to bemade available to court.
To consider the question of law urged in appeal the following matters■ need consideration :
How strong was the appellant's case – for this purpose the courthas to examine the evidence given by and on behalf of theappellant at the trial including the evidence given under crossexamination;
The trial judge's answer to the issues framed at the trial;
The trial judge’s reasons for answering the issues in the way hehas done – the judgment.
It is the onus on the part of the defendant-petitioner to have placedbefore the District Judge at the inquiry such evidence, material andpleadings on his behalf from which it could be safely inferred thatsubstantial questions of law do arise for consideration in appeal – andsuch material must be made available to the appellate court too.
APPLICATION for leave to appeal from an order of the District Court ofAttanagalla.
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Sri Lanka Law Reports
(2005) 3 Sri L. R.
Cases referred to:
Don Piyasena vs. Mayawathie Jayasinghe (1986) 1 Sri LR 6
Grindlays Bank Ltd. us. Makinnon Mackenzie and Com. (1990) 1Sri LR 19
A. D. H. Perera us. Gunawardane (1993)2 Sri LR 27
Magilin us. Illukkumbura (1996) 2 Sri LR 263
Mallika us. Hendavitharana and another (1999) 2 Sri LR 266
Saleem vs. Balakumar (1981) 2 SLR 274
Ms. K. G. Karunasekera us. Rev. Kallanchive Chandananda CA 526/99 – D. C. Kurunegala 320/L
David Weeraratne (or petitioner.
Resn Wimalaratne for respondent.
Cur. adv.vult.
December 09,2005.
ANDREW SOMAWANSA, J. (P/CA)
This is an application for leave to appeal from the order of the learnedDistrict Judge of Attanagalle dated 04.11.2004 allowing the plaintiff-respondent’s application for execution of writ pending appeal and if leaveis granted to set aside the aforesaid order dated 04.11.2004. The defehdant-petitioner also prayed for and supported for an interim order staying theoperation of the aforesaid order which was granted and has been extendedfrom time to time.
When this application was taken up for inquiry both counsel agreed totender written submissions on the question of granting leave and bothparties have tendered their written submissions.
The relevant facts are the plaintiff-respondent instituted the instant actionfor a declaration that he is the lawful lessee of shop No. 3 morefullydescribed in the schedule to the plaint, ejectment of the defendant-petitionerand for damages. The defendant-respondent while denying the aforesaidaverments took up the position that he is the tenant of the shop in suitwhich belongs to the Pradeshiya Sabhawa. At the conclusion of the trialthe learned District Judge by his judgment dated 02.10.2003 held with theplaintiff and the defendant-petitioner appealed from the said judgment andthereafter the plaintiff-respondent moved for a writ of execution. At theconclusion of the inquiry into this application the learned District Judge by
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Roshan vs Somasiri (Somawansa, j. (P/CAj)
47
his aforesaid order dated 04.11.2004 allowed the application for executionof writ pending appeal. It is from this order that the defendant-petitioner isseeking leave to appeal.
At the inquiry only the defendant-petitioner gave evidence and the basisfor his claim for substantial loss that would result if he is ejected is that hebeing the sole breadwinner of the family would lose his only source ofincome he has from the business carried on at the premises in suit, andwould also interrupt his children’s education.
Evidence reveals that the business he carried on at the shop in suitwas selling buns, short eats, string hoppers, drinks, tea etc., which hehimself admits could be carried on anywhere. He also states that thoughthere is a judgment against him to eject him he did not look for an alternativeplace. It is interesting to note that other than his admission that he wascarrying on business in the premises in suit he does not claim any interestor title to the same. Furthermore it is also interesting to note that no otherevidence either'oral or documentary has been led before the learned DistrictJudge to establish his ipsi dixit evidence on the question of substantialloss that would be caused to him if he was evicted. On the aforesaidevidence I would say that the learned District Judge has come to a correctfinding that no substantial loss would result to the defendant petitioner inthe event the writ is executed. Though the learned District Judge did notconsider and evaluate the evidence given by the defendant-petitioner indetail nevertheless he has come to a correct finding when he rejected thedefendant-petitioner’s plea of substantial loss on the basis of non-availabilityof evidence, to establish such substantial loss resulting in th event the writof execution is allowed.
In the case of Don Piyasena vs. Mayawathi Jayasuriya(l)
“The provisions of section 23 of the Judicature Act and section 763(2) ofthe Civil Procedure Code make it clear that unless there is proof ofsubstantial loss that may otherwise result, execution of decree will not bestayed merely on the ground that an appeal has been filed.”
Also in the case of Grindlays Bank Ltd., vs. Mackinnon Mackenzie &Co.®
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Sri Lanka Law Reports
(2005) 3 Sri L R.
“If the judgment debtor desires stay of execution pending appeal, heshould establish substantial loss. The usual course is to stay proceedingspending an appeal when execution would cause irreparable injury. Mereinconvenience and annoyance is not enough. The damage must besubstantial and the defendant must prove it.-’
In Perera vs. Gunawardena(3>
“As the defendant-respondent had failed to satisfy the court thatsubstantial loss may result unless execution was stayed, the plaintiff wasentitled to execution pending appeal. While some consideration of thedegree of hardship to the judgment-creditor may perhaps be relevantespecially in borderline cases, there is certainly no burden on him toestablish comparatively greater hardship as a condition of the grant ofexecution. The burden is on the judgment-debtor to satisfy the court thatthe loss would be substantial.
The owner of the business is not entitled to the maximum tenure thelaw allows. Such a proposition would effectively deny execution pendingappeal and introduce a new test under the guise of interpretation.
Mere assertions of the judgment debtor’s opinion that serious loss wouldresult, unsupported by averments of fact in regard to the nature of thebusiness, its turnover and profits (or losses), the difficulties and expenseswhich relocation would occasion and similar matters, are insufficient. Thematerial upon which such assertions were based should have been madeavailable to enable the court to assess the loss, and to determine, inrelation, to the judgment debtor, whether such loss was substantial, andalso to determine the quantum of security. While generally goodwill doesattach to a business, there is no presumption that every business has agoodwill and certainly not as to the extent of the goodwill.”
In this respect counsel for the defendant-petitioner has cited twodecisions of Magelin vs. Ilukkumbursf-4> where the facts and circumstancesare materially different to that of the instant application. In that case thebusiness being a pharmacy business with a large clientele and in fact theparty to be ejected had taken constructive steps in trying to relocate thebusiness. However in the instant action the defendant-petitioner had madeno attempt whatsoever to find an alternative place and on his own admissionruns a tea boutique which could be carried on anywhere.
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Roshan vs Somasiri (Somawansa, j. (P/CA))
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He has also cited the case of Mallika vs. Hendavitharana andAnother6 where again facts and circumstances are distinguishable. Forin that case the party to be ejected was carrying on a specially localizedbusiness of leather trade and it was disclosed that shifting would actuallycause severe hardship.
Counsel for the defendant-petitioner also contends that in the petitionof appeal filed by the defendant-petitioner out of the 16 grounds of appealstated therein there are at least 5 questions of law to be decided. Thuscounsel citing the decision in Saleem vs. Balakumar page 274 submitsthat on the substantial question of law raised in the petition of appealalone the writ should have been stayed. However, other than filing a copyof the petition of appeal there is no other material to show that this was anissue that was canvassed at the inquiry. In any event, even for this Courtto consider this aspect of the matter viz: existence of substantial questionsof law to be decided in appeal let alone whether the defendant-petitionercould succeed or not the relevant material has to be made available to thisCourt. However, except for the petition of appeal marked 0(1) neither theevidence led at the trial, the judgment, nor the written submissions tenderedby the defendant-petitioner have been annexed or tendered to this Court.
The points of law urged are not figments of one’s imagination butquestions which arose for consideration by the lower Court. In this respectI would refer to the decision of Mrs. K. G. Karunasekera vs. Rev.Kallanchive Chandananda0) wherein the Court observed that toconsider the questions of law urged in appeal following matters needconsideration
How strong was the appellant's case (placed before the originalCourt as against his opponent’s case) at the trial. For this purposethe Court has to examine the evidence given by and on behalf ofthe appellant at the trial including the evidence given under cross-examination.
The trial Judge’s answers to the issues framed at the trial.
the trial Judge’s reasons for answering the issues in the way hehas done-the judgment.
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Sri Lanka Law Reports
(2005) 3 Sri L R.
Thus it is the onus on the part of the petitioner to have placed before thelearned District Judge at the inquiry such evidence, material and pleadingson his behalf from which it could be safely inferred that substantial questionsof law do arise for consideration in appeal and also must make available tothis Court too if this Court is called upon to consider whether there arequestions of law remaining to be urged and considered at the appeal stage.
In the circumstances, 1 am not in a position to determine whether thereare any substantial questions of law to be decided in the appeal or whetherthe defendant petitioner would be in a position to succeed in the appeal onthe said questions*of law.
For the foregoing reasons, I see no basis to interfere with the ordermade by the learned District Judge. Accordingly leave to appeal is refusedwith costs fixed at Rs. 10,000.
WIMALACHANDRA, J.—I agree.
Application dismissed.