SURASENA & OTHERS
COURT OF APPEALHECTOR YAPA.J.
CALA211/96DC KANDY 13007/P17th MARCH. 199829th MAY, 1998
Partition Law 21 of 1977 ■ S.53(l) b – Surveyor prevented from executingcommission – contempt of Court – Civil Procedure Code Cap. LXV – S. 798 -Conviction – Direct appeal or leave to appeal – Court exercising RevisionaryJurisdiction – Contradiction by Omission – Standard of Proof – Criminal.
At the Contempt Inquiry Court was influenced by the evidence ofthe Surveyor that the Appellant pulled the chain and thereby obstructedthe Surveyor and convicted the Appellant for contempt.
There is a difference between the reason given by the Surveyor inhis Report to the District Court and that given at the inquiry incourt for not carrying out the survey. (ii)
(ii)The Court had overlooked the omission on the part of the Surveyorto state in the Surveyor’s Report the fact that the Appellant,physically interfered with the chain and so prevented andobstructed the survey being done.
Per Gunawardena J..
'Traditionally contempts have been classified as being eithercivil or criminal, the former category comprises disobeyingcourt orders and violating undertakings given to Court whilethe latter class of contempt is committed in a various of ways,such as. disrupting court process i.e. contempt in the face of court,publications or other acts such as in the case in hand, with personssuch as the Surveyor, having duties to discharge in a Court ofjustice or persons to whom duties are entrusted by the Court.
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Per Gunawardena J..
“As a general rule when the Surveyor does not act with rigidimpartiality, that excites the suspicion of parties which leads tohigh feelings and high words the reaction of resentment is naturalwhen one is unjustly treated."
Standard of Proof is proof beyond reasonable doubt.
APPLICATION for leave to appeal from an order of the District Courtof Kandy.
Cases referred to :
Fernando vs. Fernando – 2 Balasingham's notes of cases 47.
Sinnathangam vs. Meeramohideen 60 NLR 394.
Adams vs. Hughes – 1819 1 Brod & Bing 24.
R vs. Jermy – 1 752 Say 47.
D. R. P. Goonatilaka with S. A. D. S. Suraweera for 1 lu’ DefendantAppellant.
A. A. de Silva. P. C.. with Kithsiri Jayalth for Plaintiff Respondent.
Cur. adv. vult.
July 25, 2000.
U. DE Z. GUNAWARDENA. J.This is an application for leave to appeal against an orderdated 21.8.1996 made by the learned Additional DistrictJudge, Kandy, convicting the 11th defendant-petitioner ofcontempt of Court under Section 53(l)(b) of the Partition Actin that the 11th defendant-petitioner had, in the view or opinionof the learned Additional District Judge, obstructed the sureyorand had so prevented the latter from executing a commissionissued by the District Court to the said surveyor to prepare apreliminary plan in terms of Section 16(1) of the Partition LawNo. 21 of 1977. The learned District Judge had sentencedthe 11th defendant-petitioner to a fine of Rs. 750/- and indefault of the payment of the said fine to one month’s simpleimprisonment and had also directed the ll'h defendant-petitioner to pay a sum of Rs. 1307.85 cts. as survey fees inrespect of the abortive survey.
Somindra v. Surasena & Others (Gunawardenn. J.)
The main, if not the solitary, point raised by the plaintiff-respondent to this application was that the aforesaid ordercomplained of by the 11th defendant-petitioner could bechallenged only by way of a direct appeal against the same andas such no application for leave to appeal, as in fact, had beenmade, could be entertained. But the learned President’sCounsel who put forward the above submission had failed tosubstantiate it, apart from saying this. To quote from hiswritten submissions. “The short and simple objection takenwas that the petitioner had been found guilty of the criminaloffence of contempt of court for which the petitioner had beendealt with according to law and that if he is aggrieved with thesaid sentence and finding of guilty … he could if so advisedavail himself of the provisions of law available to a personguilty of a criminal offence by a different kind of appeal orremedy.”
The above is an excerpt from the written submissions andit is neither fish, flesh nor good red herring. Perhaps, nosubmission could have been less helpful or more secretive orvague. Nothing could be gained from the above submissionsince it failed to explain why the application for leave to appealwas not the correct proceeding or procedure to be resorted toor invoked in challenging the order in question. The reason asto why an application for leave to appeal need not or rathercould not be made against the aforesaid order made by theDistrict Court convicting a person in contempt proceedingsunder LXV of the Civil Procedure Code, as it had been in thiscase, is to be found in Section 798 of the said said Code whichSection reads thus: “An appeal shall be to the Court of Appealfrom every order, sentence or conviction by any Court in theexercise of its special jurisdiction to take cognizance of, and topunish by way of summary procedure the offence of Contemptof Court…”
When the law has accorded, as pointed out above, theright to appeal, an appeal lies as a matter of right, and no leaveto appeal need be or rather, could be sought – although, it is
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debatable as to whether or not the right of appeal carrieswith it. as a necessary concomitant, the right to seek leave toappeal. It can. to say the least, arguably be said that the rightof appeal, in any event, does not exclude – the right to seekleave to appeal, although, perhaps, it is wholly unnecessary orsuperfluous to seek leave or permission to obtain a thing whichone is entitled to as a matter of legal right. Law is the dictateof reason (lex est dictamen rationis) and it is somewhatirrational to say that one has no right to seek leave to appeal,for no other or better reason than one has a right to appeal. Heto whom the greater is lawful ought not to be debarred from theless as unlawful (non debet cuiplus licet quod minus est nonlicere). A person, for instance, who has a right to enter aparticular place is not to be debarred from entering that placemerely because he has sought leave, needlessly, though it be.to enter it.
In any event, I feel that the Court ought to act in revisionto vacate the conviction that had been entered as against the11th defendant-petitioner, who is innocent of the charge, as thesequel would serve to show, that had been laid against him andought, therefore, to have been acquitted. As the Court can,and, in fact, ought, in the circumstances, to act in revision togrant relief against the order complained of, it is redundantto consider and express an authoritative opinion on the moot- point as to whether the right of appeal excludes, wholly andwithout limitation, the right to seek leave to appeal. Just asmuch as it is the judge who is condemned when a guilty manis acquitted, so it is the judge who is condemned when an.innocent man is convicted. Law, or rather the Courts,ought not to fail in dispensing justice by making a fetish oftechnicalities. In Fernando v. Fernando1" the accused wasgranted relief although the petition of appeal was defectivebecause in the circumstances, of that case. Sampayo J. feltthat imprisonment was not quite the suitable punishment. Inthis case in hand, if I were to refuse to intervene and sowithhold relief for the reason that the 11th defendant-petitioner
Somindra v. Surasena & Others (Gunawardena, J.)
has sought leave to appeal when, in fact, he ought to havedirectly appealed against the order, it would be somethingakin to a mockery of justice, if; in fact, it is not veritably so, forthe conviction will stand although it has no tenable basis.In Sinn althargam v. Meeramohideen121 T. S. Fernando. J. madeit clear that the Court possesses the power to set right anerroneous decision in an appropriate case even though anappeal against such decision had abated on the ground of non-compliance with some of the technical requirements in respectof-notice of security.
The next question is: do the facts disclose the commissionof the offence of contempt in that the 11th defendant-petitionercan be said to have obstructed the surveyor although it is nodoubt important to the due administration of justice that thereshould not be interference with the officers of Court, thesurveyor, in this instance, falling into that category. It isdifficult to say, even on the assumption that the surveyor’sevidence is true, that the offence of contempt is constituted.The surveyor's evidence at the contempt inquiry before thelearned Additional District Judge was that the 11th defendant-petitioner removed or rather shifted the chain (of the surveyor)slightly and that the surveyor therefore could not proceedwith the survey. The tenor of English decisions are to the effectthat trival incidents or conduct is to be ignored in view ofthe attitude of the Courts of recent times to discourageapplications for contempt arising out of such incidents. InAdams v. Hughes131 the Court held there was no contemptalthough it was asserted that the defendant: “Collared”, theserver of process, “shook him violently”. The Court, however,in that case refrained from expressing an opinion that,under no circumstances, could such conduct be deemed to becontempt. There are however old English cases such as R. v.Jermy141 in which it had been held that even verbal abuse ofan officer of Court was tantamount to contempt. The lastmentioned case, I take it, is rendered memorable, not only onaccount of the gravity of the contemptuous conduct of thedefendant but more so – for the unbridled and blunt language
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of his. To reproduce the piquant expressions attributed tohim: “Take the rule back again to those from whom it cameand bid them wipe their backsides with it.”
Assuming that the defendant-appellant pulled or slightlyshifted an instrument, that is, the chain of the surveyor, it issuch trivial conduct which would not have actually preventedthe survey – if, in fact, the surveyor had been keen to proceedwith it. It looks as if the surveyor had been too quick to takeoffence and that he had obviously left the land in a huff. Thetenor of English decisions seem to favour the view that if theconduct of the defendant was not such as to effectually preventthe accomplishment of the task that the officer of the Courtwas entrusted with, then, such conduct would not amount tocontempt. For instance, in the matter service of process, trivialconduct, which does not actually prevent the service, had beenheld not to constitute contempt. Allegations, against thesureyor of partiality towards the plaintiff-respondent hadbeen made even at the contempt inquiry. These allegationsseem to have, to say the least, a substratum of truth. Bickeringsor disorder at the surveys can be avoided, to an appreciableextent, if the surveyor conducts himself such a manner as toinspire the confidence of parties in himself. As a general rulewhen the surveyor does not act with rigid impartiality, thatexcites the suspicion of parties which leads to high feelingsand high words. The reaction of resentment is anturalwhen one is unjustly treated. Apart from slightly shifting thesurveyor’s chain, assuming that the 11th defendant-appellanthad, in fact, done what he is alleged to have done, the 11thdefendant-appellant had done nothing else than to shift thechain a little. For instance, the 11th defendant-appellant hadnot threatened the surveyor; nor had he abused him althoughneither, of those things, in itself, would for certain haveamounted to contempt unless it effectively prevented thesurveyor from performing his duty or accomplishing his task.
It is not improbable that the surveyor abandoned thesurvey as he had a disinclination to survey the land or show
Somindra v. Surasena & Others (Gunawardena. J.)
Making such landatory observations with a view
to protect the plaintiff-respondent was quite un-calied forin the context. Why should the surveyor choose out theplaintiff-respondent for special praise or attention as if theplaintiff-respondent was the only party who behaved well orconducted himself decorously. This somewhat strengthensthe impression that the surveyor was averse from surveyingNorth-Eastern boundary of the land, in regard to the positionor situation of which there was a difference of opinion, exceptas shown by the plaintiff-respondent. That, possibly, explainswhy the survey was not carried to completion. The evidenceshows that there had been a difference of opinion betweenthe parties as regards the location of the North – Easternboundary. The plaintiff-respondent and some others hadtaken one view as regards the location of the said boundarywhilst several others, including the 1 llh defendant-appellant,had taken a different view as to where the North-Easternboundary should be fixed or located. In fact, in his report,submitted to court, with regard to this very matter, whichreport is undated, so far as I can see (although the date ofsurvey is 12.03.1995), the surveyor had not said anythingabout the 11th defendant-appellant pulling or shifting hischain or any other instrument of his. The learned AdditionalDistrict Judge had been greatly influenced by this piece ofevidence viz. that 11th defendant-appellant pulled the chainand thereby obstructed the surveyor although the learnedDistrict Judge had not given any thought to the omission onthe part of the surveyor to state that fact in his report whichwas submitted to the Court prior to the date of the inquiry intothe matter of contempt. In fact, the learned Counsel who
the North – Eastern boundary of the same as pointed out bythe 11th defendant-appellant as well, on account of hispartiality for the plaintiff-respondent. Perhaps, the surveyor’spartiality or bias in favour of the plaintiff-respondent hasshown itself unwittingly in his report submitted to Court
wherein the surveyor had stated thus:
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appeared for the 11th defendant-appellant in the District Courtand in appeal had been oblivious to that fact which, in fact, isa contradiction by omission which, to say the least, makes onelook askance at the evidence of the surveyor (given at theinquiry) that the 11th defendant-petitioner pulled or shifted thesurveyor’s chain and so prevented or obstructed him fromcarrying out the survey. It is worthy of remark that eveyomission does not amount to a contradiction. Omissnion, inorder to be a contradiction should not be of an inconsequentialor un-important nature. In an Orissa case referred to atpage 701 (Law of Evidence by A. N. Saha) the accused wasindicted for having committed rape on a lady, the accusedhaving entered her bed-room. The lady said in her evidencethat the accused touched her and she woke up. Further, shesaid, in evidence, that she asked him why he entered the room,when her parents were away and that she told the accused thatshe would raise an alarm. Whereupon, the lady said, in herevidence in Court, that the accused put a towel in to hermouth, gagged her and stripped off the saree that she waswearing and raped her. There was no mention in her statementof her being gagged. That was an important omission for it wasthe gagging that prevented her from raising an alarm and theomission to state that fact viz. gagging being vital was treatedas a contradiction by omission. And, according to the evidenceof the surveyor, given in the District Court, substantially, thesole reason as to why he couldn’t survey the land was the factthat the 11th defendant-petitioner pulled or shifted the chainof the surveyor. To quote from the surveyor’s evidence:
In fact, the learned District Judge, in her order convictingthe accused, had reproduced the above piece of evidence andidentified the shifting or the meddling with the chain as the
Somindra u. Surasena & Others (Gunawardena, J.)
Seemingly, at least, there is somewhat of a differencebetween the reason given by the surveyor in his report tothe District Court and that given at the inquiry in Court for notcarrying out the survey which makes one wonder whethersurveyor is fishing for reasons. It is to be observed that thereason given in the surveyor’s report for not completing or forstopping the survey half-way was the exchange of wordsbetween the two rival groups or parties who were present.
The learned District Judge had readily accepted theevidence of the surveyor to the effect that the 11th Defendant-petitioner obstructed him by interfering with his chain. Icannot bring myself to believe that the learned District Judgewould have done that, that is, accept that evidence andconvicted the 1 llh defendant-petitioner thereon, had the learnedDistrict Judge not overlooked the omission, on the part ofthe surveyor, to state in the surveyor's report the fact thatthe 11th defendant-petitioner physically interfered with thechain and so prevented or obstructed the survey from being
major obstruction caused by the 11th defendant-petitionerwhich prevented the completion of the survey of the land. Butas pointed out above, the learned District Judge had failed toconsider whether or not it would have been more natural forthe surveyor to have stated that fact in his report to Court hadthe obstruction assumed the form described by the surveyorin his evidence at the contempt inquiry but not in his report.It is only in his evidence in Court, at the inquiry, that thesurveyor had said that the 11th defendant-petitionerobstructed him by meddling with his chain. There was nomention whatsoever of any physical obstruction as such in thesurveyor’s report submitted to Court previous to the date ofinquiry. In the said report the reason given by the surveyor asto why he couldn’t complete the survey had been stated (by
surveyor) as follows:
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done. It is to be observed, as remarked above, the surveyor inhis report had attributed his failure to survey the land solelyto the exchange of words amongst the parties as regards, thelocation or situation of the north – eastern boundary of thecorpus. Anyone familiar with local conditions will know thatwordy warfare, if I may say so, is almost always a concomitantof a survey of any land and that is no sufficient reason fornot executing a commission issued to a surveyor, or leave ithalf-done.
Traditionally contempts have been classified asbeing either civil or criminal. The former category i. e. civilcontempt comprises disobeying Court orders and violatingundertakings given to Court while the latter class of contemptis committed in a variety of ways, such as, disrupting Courtprocess i. e. contempt in the face of Court, publications orother acts which tend to interfere with particular legalproceedings, interfering, such as in the case in hand, withpersons, such as the surveyor, having duties to discharge ina Court of justice or persons to whom duties are entrusted bythe Court. The surveyor in this case had been mandatedor commissioned to survey the corpus as a preliminary toits partition. What is worth noting in this regard is thatobstruction of such an officer having a commission (fromCourt) to execute would be criminal contempt. Broadlyspeaking, rationale of both civil and criminal contemptis substantially the same, that is, to uphold the effectiveadministration of justice and in all cases whether allegedcontempt is civil or criminal the standard of proof is thecriminal one i. e. proof beyond reasonable doubt. That beingso, I wonder whether, on the surveyor's evidence, the ll,hdefendant-petitioner could have been convicted on the chargeof contempt on the basis that the 11th defendant-petitionerobstructed or prevented him (the surveyor) from surveyingthe land by meddling with his chain because omission to statethat fact in his report, if, in fact, it was true, discredits thesurveyor’s evidence in Court and makes the truth of it. to saythe least, doubtful.
Somindra v. Surasena & Others (Gunawardena. J.)
For the aforesaid reasons, I do hereby set aside theconviction and the fine imposed on the 11th defendant-petitioner. Further, the surveyor is ordered to refund the sumof Rs. 1307.85 cts. if, in fact, he had collected the said sumfrom the 11th defendant-petitioner as his fee, and further, thesurveyor is ordered to re-survey the land or complete thesurvey at his own expense, which only means, that thesurveyor is not entitled to any additional fees for additionalexpenses, if any, for completing the survey which he had left,so to say half-done.
HECTOR YAPA, J. – I agree.
Conviction and fine set aside