Sri Lanka Law Reports
(2003] 2 Sri L.R
COURT OF APPEALAMARATUNGA, J.
CALA 489/2002D.C. NEGOMBO 3939/LAUGUST 4, 26, ANDSEPTEMBER 8, 2003
Civil Procedure Code – Writ pending appeal – Substantial ioss – Substantialquestion of law – Case heard by one judge- Judgment given by his succes-sor – He who decide must hear – Is it a substantial question of law ? -A fun-damental question as to throw a doubt about the justice of the decisionrequired – Judicature Act, section 23.
Held: Per Amaratunga, J.
‘The existence of a substantial question of law to be decided in theappeal is not in itself a separate ground to stay execution. It is one of thegrounds recognised by the courts as a sufficient basis to exercise thediscretion available to a judge under section 23 of the Judicature Act tostay execution, if he sees it fit to do so.”
When a substantial question of law is apparent from the decisionappealed against, a judge inquiring into an application for executionpending appeal is not expected to subject the judgment to meticulousscrutiny like an appellate court to find a question of law which counsel intheir ingenuity would raise at the hearing.
The principle of natural justice that those who decide must hear is onethat is applicable whenever the rights of the parties are affected- howev-er the parties have agreed that the learned judge would adopt the evi-dence recorded before his predecessor and pronounce judgment on thatevidence – having agreed to that course of action, it is not possible nowfor the defendant to cry “foul” when the decision has gone against him.
APPLICATION for leave to appeal from the order of the District Court of
Shelton Perera v Lakshman (Amaratunga, J.)
Cases referred to:
Saleem v Balakumar – (1981) 2 Sri LT 74
Macks/ Shanmugam – 3 Sriskantha L.R. 89
Kandasamyv Gnanasekeram (1983) 2 Sri L.R 1 (SC)
Wijerama v Paul – 75 NLR 361
Manuel v Pina – CA 239/89 (F) CAM 21.10.1999
Perera v Gunawardena – (1993) 2 Sri LR at 32
W. Dayaratna with R. Jayawardane for petitioner.
Sunil F.A.Cooray for respondent.
September 11,2003AMARATUNGA, J.
This is an application for leave to appeal against the decision 01of the learned Additional District Judge of Negombo allowing theplaintiff-respondent's application to execute the decree pendingappeal. The plaintiff has filed action against the defendant seekinga declaration of the plaintiff's title to the property described in theschedule to the plaint and an order to eject the defendant from thatproperty. The case of the plaintiff was that the defendant was anoverholding licensee. The case of the defendant was that heentered the property under an informal agreement to sell and thathe paid a part of the purchase price. According to the findings of the 10learned trial Judge the defendant was allowed to occupy thepremises in question in lieu of interest for a loan the plaintiff hasobtained from the defendant. After trial, judgment was entered infavour of the plaintiff and the defendant has preferred an appealagainst the judgment.
In his judgment the learned trial Judge has directed the plain-tiff to deposit sum of Rs 115,000/- in Court to be paid to the defen-dant. The plaintiff has deposited that sum in court. When the plain-tiff made an application to execute the writ pending appeal, thedefendant filed his objections and the learned Judge held an inquiry 20at which both the plaintiff and the defendant gave evidence.
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According to the evidence given by the defendant at theinquiry his family consisted of himself, his wife and two children.However he has stated that his two brothers and their families, anunmarried sister, a sister's daughter and an uncle's son also livedin this house. One brother was a Public Health Inspector. Theuncle's son was doing vegetable business. The sister's daughterwas 20 years of age and had finished her schooling. He has notstated that all those persons were being maintained by him or thatthey did not have other places to live. He has not shown any legal 30obligation on him to provide living accommodation to them. Thusany loss or inconvenience caused to those persons as a result ofexecution of the decree cannot be treated as substantial loss to thedefendant.
He has admitted in cross-examination that he is a successfulbusinessman, has two lorries and operated a transport business. Inhis objections he has stated that he ran five vegetable stalls in theNegombo market. Thus in his own showing he was a man with sub-stantial wealth. He has never stated that he had no sufficient fundsto find alternate accommodation. It is not to be forgotten that there 40was a sum of Rs 115,000/- deposited in Court by the plaintiff for thedefendant to take. If he was so inclined he could have utilized thismoney to find alternative accommodation. He has not stated thathe ever attempted to find such accommodation. On the other handthe plaintiff's uncontradicted evidence was that he lived in a housefor which he paid Rs 7000/- per month as rent. The defendant hasadmitted that his mother had a land and she blocked it out andgave it to her children. The defendant too got a block of land and itis situated about 100 meters away from the house he occupied.
The defendant has not stated how his children's education sowould be affected if he was ejected from the premises. He has stat-ed that he operated his transport business from this house but hehas not explained why he could not operate it from any other place.Having considered the material available the learned Judge hasheld that he has not set out how substantial loss would be causedto him if he was ejected from the premises. I agree with this finding.There was a total failure to prove substantial loss. In fact at thehearing before me the learned counsel did not press his case onthe ground of substantial loss. He placed greater reliance on the
QAShelton Perera v Lakshman (Amaratunga, J.)219
existence of a substantial question of law to be decided in theappeal. Now I shall deal with that aspect.
The existence of a substantial question of law to be decided inthe appeal is not in itself a separate ground to stay execution. It isone of the grounds recognized by our Courts as a sufficient basisto exercise the discretion available to a Judge under section 23 ofthe Judicature Act to stay execution if he sees it fit to do so. Theexistence of such a question must be manifest from the proceed-ings of the main case and the judgment. Thus in Saleem vBalakumaW the question whether the agreement upon which theplaintiff relied on should have been executed in accordance withsection 2 of the Prevention of Frauds Ordinance was quite visible.Similarly in Mack v Shanmugard2) the question of law namelywhether the defendant's tenancy rights of the premises in questiongot automatically extinguished upon the death of the landlord orwhether the tenancy rights survived to the tenant after the death ofthe landlord were so apparent and Siva Selliah, J. referred to thosequestions as ‘bristling questions of law’. When such questions areapparent a Judge is justified in exercising his discretion under sec-tion 23 of the Judicature Act. When a substantial question of law isnot apparent from the decision appealed against, a Judge inquiringinto an application for execution pending appeal is not expected tosubject the judgment to meticulous scrutiny like an appellate courtto find a question of law which counsel in their ingenuity wouldraise at the hearing of.the appeal. In almost every appeal it is pos-sible to raise some question of law for the consideration of theappellate court but all such questions cannot be branded as sub-stantial questions of law. To use the words of Soza, J. inKandasamy v Gnanasekarartid) it has to be a question which cre-ates a 'doubt about the justice of the decision'.
In this case one question of law urged on behalf of the defen-dant was that the case has been heard by one Judge and the judg-ment has been given by his successor. In support of the questionof law arising in this situation the learned counsel for the petitionerhas cited the case of Wijerama v Paul where it has been heldthat the principle of natural justice that those who decide must hearis one that is applicable whenever the rights of parties are affected.However in this case this question of law has been urged without
Sri Lanka Law Reports
(2003) 2 Sri L.R
paying due attention to the proceedings of 8/12/1999 (in the maincase.) On that day both parties have agreed that the learned Judgecould adopt the evidence recorded before his predecessor and pro-nounce judgment on that evidence. Having agreed to that course ofaction, it is not possible now for the defendant to cry out ‘foul’ whenthe decision has gone against him.
The other question of law urged was that since leave andlicense was granted to occupy the house to set off the interestpayable for a loan obtained by the plaintiff from the defendant, nocause of action was available until the plaintiff paid the debt.Certainly this is a question of law a counsel could raise at the hear-ing of the appeal. He cited the case of Manuel v P/'naJ5) But thecontrary argument was pointed out by the counsel for the plaintiff.If leave and license was granted to occupy the house to set off theinterest for the debt, once leave was withdrawn the defendant hadto vacate the house and then sue the plaintiff to recover the debtand the interest. The case cited has no relevance as there is nowritten promise in this case to bring it within the decision in Manuelv Pina. When the contrary argument is considered it appears thatthe question raised is not a substantial question of law but only oneof the arguments a counsel may raise in the appeal. Thus the ques-tion of law suggested by the learned counsel is not such a funda-mental question as to throw a doubt about the justice of the deci-sion. The learned Judge's statement, highlighted in the written sub-missions, that she could not examine the judgment for questions oflaw is another way of saying that she could not embark upon a voy-age of discovery to find a question of law.
On the examination of the material available to the learnedJudge, I am of the view that the defendant has failed to satisfy theJudge that there is a substantial question of law to be decided inthe appeal. In Perera v Gunawardana (6) at 32 Fernando, J. hassuggested the approach in which a Court should adopt in situationswhere the judgment debtor has failed to prove substantial loss orprejudice. His Lordship has stated that “Since the respondent hasfailed to establish the loss and prejudice that would be caused ifexecution was allowed, it can hardly be said that refusal to exercisediscretion under section 23 was in any way illegal or improper. Noprejudice is caused, for, as held in Charlotte Perera's case, there is
Ekanayake v Ekanayake (Amaratunga, J.)
adequate provision to restore an evicted judgment-debtor to occu-pation if he succeeds in his appeal." Those remarks apply withgreater force to the defendant who has no title to the property inquestion and who is not a tenant.
In this case there was no proof of substantial loss and there uowas no apparent substantial question of law to be decided in theappeal. The learned District Judge was not expected to strain herimagination to find a question of law in order to exercise her dis-cretion in favour of the defendant judgment-debtor. I thereforerefuse leave to appeal and dismiss this application with costs in asum of Rs. 7500/.
SHELTON PERERA v. LAKSHMAN