023-SLLR-SLLR-2010-V-2-SOMAPALA-v.-WANASUNDARA.pdf
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Somapcda v. Wanasundara
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SOMAPALA V. WANASUNDARA
SUPREME COURTAMARATUNGA, J.
MARSOOF, J., ANDEKANAYAKE, J.
S.C. APPEAL NO. 87/2008SC (HCCA) LA 78/2008SP (HCCALA) LA 01/2007DC RATNAPURA 2129/L
Civil Procedure Code – Section 328 – Court shall investigatedispute if bone-flde claimant be dispossessed in effecting theexecution of a decree.
The Supreme Court framed the following questions of law in addition tothe issues suggested by the parties.
In view of the amendment of section 328 of the Civil ProcedureCode by omitting the words "that it was not comprised in thedecree” and in view of the omission of the said words in the currentsection 328 of the Civil Procedure Code can a person claiming to beejected from a land other than the land that was the subject matterof the decree come to court in terms of section 328 claiming that hewas ejected from such land.
In view of the fact that this leave to appeal application has beenmade in respect of an order made in a proceeding which isincidental to the main 328 application and since the main 328application has now been terminated in the District Court can thepetitioner maintain this appeal.
Held
(1) The Supreme Court in an appeal will not consider and pronounceits decision on a question of law unless such decision has practicalsignificance to a pending case or a concluded case and will notdecide a question of law merely as an academic exercise whensuch decision has no relevance to a legal proceeding pending inany other Court as a live legal proceeding not deemed to have
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been finally cqncluded until the decision of the Supreme Court inappeal is delivered.
Per Amaratunga, J., –
“In view of the appellant’s failure to pursue his legal remedies tohave the order of the District Court of Ratnapura dated 01.08.2008set aside, there is no legal proceeding now in existence and assuch the appellant has no right to maintain this appeal as a mereacademic exercise devoid of any practical result to flow from thedecision of this appeal”.
APPEAL from a judgment of the Civil Appellate High Court of the
Sabaragamuwa Province.
Wijeyadasa Rajapakshe P. C. with Rasika Dissanayake for the Petitioner –
Respondent – Appellant.
Gamini Marapana P.C. with R.Y.D. Jayasekera for the Substituted
Plaintiff – Respondent – Petitioner – Respondent.
Cur.adv.vult
November 04th 2010GAMINI AMARATUNGA J.
This is an appeal, with leave to appeal granted by thisCourt, against the Judgment of the Civil Appellate High Courtof the Sabaragamuwa Province dated 19.6.2008 in a leaveto appeal application filed in that Court by the SubstitutedPlaintiff Respondent (hereinafter referred to as SubstitutedPlaintiff). Before I set out the questions of law on which leaveto appeal was granted by this Court, it is relevant and neces-sary to set out in brief the factual background relevant to thepresent appeal and the matters this Court would eventuallytake into account in dealing with this appeal.
The original plaintiff (who died during the pendency ofthe action) in the District Court, Ratnapura case No. 2129/L
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sought a declaration of title in his favour to an undivided 1/3of the land described in the schedule to his amended plaintdated 24.2.1983 and an order to eject the defendants, theirservants and agents from the said land. The land referred toin the said amended plaint was 7A-2R-30P in extent, depictedas lots 1, 2, 3 and 4 in Plan No. 388 dated 16th October 1978made by D.W. Ranatunga Licensed Surveyor.
The plaintiff action was finally decided by the SupremeCourt by its judgment dated 28.03.2003 declaring that thesubstituted plaintiff is entitled to an undivided 1/3 shareof the land described in the schedule to the amended plaintdated 24.02.1983 which is in extent A7-R2-P30, depicted inPlan No. 388 of Surveyor D. W. Ranatunga.
Thereafter on the application made by the substitutedplaintiff, the District Court issued writ to eject the defen-dants from the land in suit. The Fiscal in executing the writobtained the services of a licensed surveyor to demarcateon the ground the boundaries of lots 1, 2, 3 and 4 depictedin plan No. 388 of Surveyor Ranatunga. After the Surveyormarked the boundaries of the land referred to in the writ the1st and the 3rd defendants vacated the land and possession ofthe land was then handed over to the authorized representa-tive of the substituted plaintiff.
At the time of handing over possession of the land, thepetitioner-appellant, who is a son of 1st and 2nd defendants(but not a party to D. C. case No. 2129/L) complained tothe Fiscal that the Surveyor in marking the boundaries ofthe land in suit had included a part of the land belonging tohim in the land to be delivered to the substituted plaintiff interms of the writ. The fiscal had then informed him that he(Somapala, the appellant) could persue his legal remedy toobtain relief. This is recorded in the Fiscal’s Report.
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Therefore the petitioner-appellant filed an application inthe District Court of Ratnapura under and in terms of section328 of the Civil Procedure Code alleging that in executing thewrit relating to the substituted plaintiffs land, he was dispos-sessed and evicted from the land he held and possessed onis own right. After filing the said application, the appellantmoved for a commission to survey the land claimed by theappellant and the land described in the plaint of the substi-tuted plaintiffs case. The learned District Judge allowed theapplication for the commission and decided to proceed withthe inquiry into the 328 application filed by the appellant.
The substituted plaintiff then filed a leave to appealapplication in the Civil Appellate High Court of theSabaragamuva Province against the order of the learnedDistrict Judge to issue a commission and to proceed with theinquiry into the 328 application of the appellant. The CivilAppellate High Court issued an interim order suspending theexecution of the Commission and holding the inquiry into the328 application. Thereafter having granted leave to appealand after hearing arguments, the Civil Appellate High Courtallowed the substituted plaintiffs appeal and set aside theorder of the learned District Judge issuing the commissionand fixing the 328 application for inquiry.
The order of the Civil Appellate High Court dated19.6.2008 allowing the substituted plaintiffs appeal indicatesthat the said court came to the conclusion that the appellanthad failed to establish that he was dispossessed of orejected from any land in executing the writ and thatdispossession of or ejectment from any land other than theland referred to in the writ did not fall within the purviewof section 328 of the Civil Procedure Code and that the
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appellant’s proper remedy is to file a separate action tovindicate his rights.
Om 31st July 2008, the appellant filed a leave to appealapplication in this Court seeking leave to appeal against theOrder of the Civil Appellate High Court allowing the appeal ofthe substituted plaintiff.
On 01.08.2008 (the day after the filing of the leave toappeal application in the Supreme Court) the 328 applica-tion was called in the District Court of Ratnapura with no-tice to the parties to announce the order made by the CivilAppellate High Court on 19.06.2008. The certified copy ofthe journal entry of the District Court Record on 01.08.2008(Document W2 filed by the substituted plaintiff) indicatesthat on 01.08.2008. the District Judge terminated theproceedings in the 328 inquiry on the basis that in termsof the order in appeal (of the Civil Appellate High Court) aninquiry under and in terms of section 328 is not relevant.There is nothing in the journal entry of 01.08.2008 to indicatethat at the time the District Court made order terminating theproceedings in the 328 inquiry, the Court was informed thatan application for leave to appeal against the order of the CivilAppellate High Court has already been filed in the SupremeCourt on the previous day i.e. 31.7.2008.
There is another journal entry dated 12.8.2008 whichstates that an Attomey-at-law filed the appellant Somapala’spetition and affidavit and moved to have the case calledon 14.8.2008 for support. There is nothing before this Courtto indicate the purpose or the contents of the petition referredto in this journal entry.
According to the journal entry 14.08.2008 when thecase was called on that day the Court was informed by the
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Attorney-at-law for the appellant that an application hadbeen made to the Supreme Court against the decision of theProvincial High Court. In the said journal entry there is norecord of any order made by the District Court on that date.
The appellant thereafter filed in this Court an amendedpetition dated 21.8.2008. In paragraph 20 of the amendedpetition it is stated that “on 1st August 2008 the learnedDistrict Judge made order terminating the proceedings onthe basis of the said judgment of the Civil Appellate HighCourt. The petitioner states that consequent upon the same,the petitioner lodged an application to the District Courtunder section 839 of the Civil Procedure Code but the samewas not supported in view of this application pending beforeYour Lordships’ Court.”
From the above quoted averment in the amended leave toappeal application it is clear that the petition of the appellantreferred to in the journal entiy of 12.08.2008 was notsupported in the District Court and as such the District Courthas not made any order thereon.
The amended leave to appeal application contained aprayer “that the order made on 01.08.2008 by the learnedDistrict Judge be set aside.”
The leave to appeal application was supported in thisCourt on 16.07.2008 and the journal entry of that dateindicates that what was supported on that date was theoriginal leave to appeal application dated 30.07.2008 and notthe amended leave to appeal application filed subsequentlywhich included a prayer to set aside the Order of the DistrictCourt dated 1.8.2007. This Court has granted leave to appealon the following questions of law set out in the leave to appealapplication dated 30.7.2008.
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Whether the Honorable Judges of the Civil Appellate HighCourt have erred in law by failing to take into consider-ation that a commission can be issued in any action orproceeding in which the court deems a local investigationto be a requisite or proper for the purpose of elucidatingany matter in dispute?
Whether the Honourable Judges of the Civil AppellateHigh Court have erred in law when arriving at a conclusionthat in an instance where a person is ejected at the timeof executing a decree no need arises for a survey plan?
Whether the Honourable Judge of the Civil Appellate HighCourt have misinterpreted the provisions of section 328of the Civil Procedure Code?
Whether the Honourable Judges of the Civil AppellateHigh Court have erred in law by arriving at a conclu-sion that the petitioner has not been dispossessed whenthe plain or the sketch submitted by the Commissionerclearly shows the fact that the respondent has beenplaced in possession in land in extent more than 9 acresinstead of 7 acres 2 roods amd 30 perches?
In addition to the above questions of law this Court hasgrainted leave to appeail on the following additional questionsof law.
In view of the amendment to section 328 of the CivilProcedure Code by omitting the words “that it was notcomprised in the decree” and in view of the omission ofthe said words in the current section 328 of the CivilProcedure Code can a person claiming to be ejected froma land other than the land that was the subject matter ofthe decree come to court in terms of section 328 claimingthat he was ejected from such land.
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In view of the fact that this leave to appeal application hasbeen made in respect of an order made in a proceedingwhich is incidental to the main 328 application and sincethe main 328 application has now been terminated in theDistrict Court can the petitioner maintain this appeal.
Both parties have filed written submissions on theaforesaid questions of law and at the hearing both learnedPresident’s Counsel made oral submissions.
The last question to be considered in this appeal is withregard to the maintainability of this appeal. As already stated,in view of the decision of the Provincial Appellate High Courtthat the appellant’s remedy is not under section 328 of theCivil Procedure Code the District Court of Ratnapura on01.08.2008 terminated the proceedings in the applicationfiled by the appellant in terms of section 328 of the CivilProcedure Code. The appellant has not taken steps by wayof an appeal or revision to get the order dated 01.08.2008set aside and to have his application restored as a pendingcase. Thus for all intents and purposes, there is no pendingapplication to which the decision of this appeal would beof any practical importance. Even if this Court allows theappellant’s appeal and restores the Order made by the DistrictCourt on 8.3.2007 (which was the subject matter of the leave toappeal application filed in the Provincial Appellate High Court)yet there is no application in the District Court which can beproceeded with as a result of the decision of this appeal.
This Court, in an appeal will not consider and pronounceits decision on a question of law unless such decision has apractical significance to a pending case or a concluded case,(which in law is subject the decision of this Court in appeal)This Court will not decide a question of law merely as anacademic exercise when such decision has no relevance to
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a legal proceeding pending in any other court as a live legalproceeding not deemed to have been finally concluded untilthe decision of this Court in appeal is delivered.
In the course of the argument this Court pointed outto the learned President’s Counsel for the appellant that inview of the termination of the proceedings relating to the 328application filed by the appellant in the .District Court ofRatnapura, this appeal has become a mere academic exercisewithout any practical effect.
The learned President’s Counsel agreed, that as thematters now stand there is no application pending in theDistrict Court of Ratnapura. However the learned President’sCounsel submitted that if the appeal is decided in favour ofthe appellant, then he moves this Court to make an order (inorder to prevent great prejudice that would otherwise resultin to the detriment of the appellant) setting aside the order ofthe District Court of Ratnapura on 01.08.2008 terminatingthe proceedings in relation to the application filed by himin that Court under and in terms of section 328 of the CivilProcedure Code.
This Court is not in a position to consider the submissionmade by the learned President’s Counsel for the appellantrelating to the consequential order to set aside the order ofthe District Court of Ratnapura dated 01.08.2008 for severalreasons. Firstly, it is not an order the appellant has soughtfrom this Court. Even if the appellant has sought such an or-der from this Court, it is an order this Court cannot make inthis appeal as the matter before this Court is the correctnessof the decision of the Civil Appellate High Court and notthe order made by the District Court of Ratnapura on01.08.2008.
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In the amended petition filed in this Court on 21.08.2008,there was a prayer, among other reliefs, to set aside the orderof the District Court of Ratnapura on 01.08.2008. Howeverthis amended petition was not supported before this Court,perhaps for the reason that the appellant was aware thatit was not a relief he could seek from this Court in theseproceedings. Secondly the appellant has not moved theappropriate Court by way of appeal or revision to have theorder of the District Court of Ratnapura dated 01.08.2008set aside. He has not given any reason for his failure toexercise his right to have the Order of the District Court setaside. Without pursuing his legal remedies he cannot nowurge that if that order is not set aside by this Court greatprejudice would be caused to him. He himself is responsiblefor the consequences flowing from his own failure to asserthis rights available to him under the law to have the orderdated 1.8.2008 set aside.
In view of the appellant’s failure to pursue his legalremedies to have the Order of the District Court of Ratnapuradated 01.08.2008 set aside, there is no legal proceedingnow in existence and as such the appellant has no right tomaintain this appeal as a mere academic exercise devoid ofany practical result to flow from the decision of this appeal.
In view of this finding I answer question No. (VI) in thenegative and in consequence the necessity to decide andpronounce upon questions No. (I) to (V) on which leave toappeal has been granted does not arise. Accordingly theappeal is dismissed without costs.
MARSOOF J. – I agree.
EKANAYAKE J. – I agree.appeal dismissed.