006-SLLR-SLLR-2005-V-1-SINGHAPUTRA-FINANCE-LTD.-vs.-APPUHAMY-AND-OTHERS.pdf
SINGHAPUTRA FINANCE LTD.,vs
APPUHAMY AND OTHERS
COURT OF APPEAL,
WIMALACHANDRAJ.,
A. NO. 449/03,
C. KANDY 26017/MR,
AUGUST 24, 2004
Civil Procedure Code, sections 181 and 653 – Sequestration before judgement- Ex parte order – Vacation of same – Averment in the affidavit that defendantwould alienate the property – Is it sufficient ? – Validity of the affivavit.
The Court issued a writ of sequestration to sequestrate a vehicle belonging tothe 3rd respondent, The 3rd respondent moved to vacate the order made exparte by Court, on the affidavit of the petitioner, The District Court vacated theorder on the basis that a mere averment in the affidavit is not sufficient
Held
The affidavit filed to seek relief incidental to the final relief is not inconformity with section 181. The Court cannot rely on the affidavit filedby the petitioner for the reason that the grounds of belief are not statedin the affidavi to enable Court to come to a conclusion.
SCSinghaputra Finance Ltd.,-55
Vs. Appuhamy And Others
Cases referred to :
David and Co. v. Albert Silva 31NLR 316
Samarakoon v.Ponniah 32 NLR 257
Simon Fernando v. Gunasekera 47 NLR 512
Kuvera De Zoysa with Senake de Saram for plaintiff – petitioner – petitionerReza Muzni for 3rd defendent/respondent
Cur. adv. vult.
September 24, 2004WIMALACHANDRA, J.
The plaintiff-petitioner-petitioner (hereinafter referred to as the petitioner)insituted the action bearing No. MR/26017 in the District of Court of Kandyagainst the defendant-respondent-respondents (hereinafter referred to asthe respondents) to recover a sum of money from the respondents on aHire Purchase Contract entered into between the petitioner and therespondents.
Briefly, the facts relevant to this application are as follows :
The petitioner, whilst the case was pending made an application interms of Section 653 of the Civil Procedure Code by way of petition andaffidavit for a mandate of sequestration before judgment. The Court issueda writ of sequestration to sequestrate the vehicle bearing No. 58-2156belonging to the 3rd respondent upon the petitioner’s application beingsupported before the learned District Judge.
Thereafter the 3rd respondent filed an application to vacate the order ofsequestration made by the Court, ex-parte on the affidavit of the petitioner. 'The Court fixed the matter for inquiry and at the inquity both parties agreedthat the matter could be disposed of by way of written submissions.Accordingly, both parties filed written submissions. Thereupon the Courtmade order on 04.11.2002 releasing the property, the said vehicle, fromseizure and the writ be returned. It is against this order the petitioner hasfiled this application for leave to appeal.
56Sri Lanka Law Reports(2005) 1 Sri L. R.
The affidavit is solely based on belief; reasonable grounds for suchbelief have not been stated.
APPLICATION for leave to appeal from an order of the District Court of Kandy.
Singaputra Finance Ltd. V. Appuhamy and Others57
(Wimalachandra, J.)
The learned District Judge in his order expressed, that a mere averment inthe affidavit of the petitioner that the applicant verily believes that the defendantis about to alienate the vehicle is not sufficient, and the learned Judge cited thecases of David & Co. t/s. Albert Silva<1,> and Samarakoon t/s. Ponniah(,2> insupport of his opinion.
Upon a consideration of the affidavit filed by the petitioner, it appears that hehad merely set out that the 3rd respondent was making arrangements toalienate the vehicle No. 58-2156 and that unless an order for sequestrationwas issued he would be unable to recover the monies due to him. It is to beobserved that the petitioner’s affidavit is solely based on belief, but reasonablegrounds for such belief has not been stated. The petitioner has not not statedin his affidavit the grounds for his belief that the 3rd defendent was makingarrangements to alienate the vehicle No. 58-2156 with the intention of avodingpayments to the petitioner.
Admittedly, the petitioner’s applicatoin is an interlocutory applicationincidental to the final relief sought in this case. Accordingly in terms ofSection 181 of the Civil Procedure Code, with regard to interlocutoryapplications, the affidavit containing statements regarding its belief maybe admitted provided reasonable grounds for such belief is set out in theaffidavit {see-Simon Fernando Vs. Goonasekera(3)
The interlocutory applications referred to in Section 181 of the CivilProcedure Code are those in which relief is sought in the course of aproceeding and incidental to the final relief sought in the case.
Chetaley and Rao in their AIR Commentaries on the Indian Code ofCivil Procedure, 6th edition (1957), volume II, at page 2683 have thisobservation to make on the Indian section on “matters to which affidavitsshall be confined” which is identical to our Section 181;
The ground of belief must be stated with sufficient clearness toenable a Court to judge whether it would be safe to act on thedeponent’s belief. Unless the affidavits are properly verified and arein conformity with the rule, they will be rejected by the Court. Thuswhere in an interlocutory application for injunction to restrain thepublication o.f a libel the affidavit in support of the application statedthat the documents complained of were to the best of his knowledge,information and belief, utterly untrue but no grounds for his beliefwere shown, it was held insufficientan affidavit is defective if
5SSri Lanka Law Reports(2005) 1 Sri L. R.
the depondent does not say which part is based on information andwhich on belief or if he does not state the grounds of his belief.
In the circumstances it is my considered view that the affidavit filed bythe petitioner to seek relief incidental to the final relief is not in conformitywith Section 181 of the Civil Procedure Code. The Court cannot rely onthe affidavit filed by the petitioner for the reason that the grounds of beliefare not stated in the affidavit to enable the Court to come to a conclusionwhether it would be safe to act on the petitioner’s affidavit to grant the reliefsought by the petitioner in its petition. The petitioner’s affidavit is not anaffidavit prepared in accordance with Section 181 of the Civil ProcedureCode.
For these reasons the application for leave to appeal is refused. In allthe circumstance of this case, there will be no order for costs.
Application refused.