041-SLLR-SLLR-2005-V-3-SOPI-NONA-vs.-KARUNADASA-AND-ANOTHER.pdf
CA
Sopi Nona vs
Kamnadasa and Another
237
SOPI NONAVSKARUNADASA AND ANOTHERCOURT OF APPEAL.
EKANAYAKE, J.
SRI SKANDARAJAH, J.
CA 201/2001(REV.).
DC EMBILIPTIYA3091/L.
SEPTEMBER 9, 2005.
Civil Procedure Code, section 839 – Applicability – Relief of ejectment-Restoration of possession not prayed for – Can there be a decree for ejectmentand restoration?- If evicted can he be restored to possession?
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(2005) 3 Sri L. R.
After an interpartes trial the 1st and 2nd plaintiffs were granted the relief ofdeclaration of title in their favour. There was no prayer for ejectment. Howeverwrit was issued by the trial court and the defendent-petitioner-defendent wasevicted. The petitioner moved under section 839 and sought an order to restoreher to possession which was refused by court.
HELD:
By the judgment the reliefs that had been prayed in the prayer to theplaint had been allowed by the trial judge and there had been no relieffor ejectment of the defendants and restoration of possession.
By allowing the writ of possession the trial judge had given relief to theplaintiffs which was not granted by the judgment and the decree.
The trial judge has erred by failing to invoke inherent powers undersection 839 and to make order restoring possession when sufficientgrounds have existed to make such orders as may be necessary for theends of justice.
There had been no issue on ejectment and restoration of possessionby the plantiff.
APPLICATION in revision from an order of the District Judge of Embilipitiya.Cases referred to :
Leechman Company vs. Rangala Consolidated 1981 2Sri LR 373
Seneviratne vs. Francis Abeykoon 1986 2 Sri LR 1Rohan Sahabandu for defendant-petitioner.
Anuruddha Dharmaratne for plaintiff-respondent
Cur. adv. vult.
Sopi Nona vs.
Karunadasa and Another (Ekanayake, J.)
239
CA
November 3, 2005.
CHANDRA EKANAYAKE, J.The 2nd defendant – petitioner by her petition dated 06.02.2001 (filedwith an affidavit) has sought inter alia to set aside the judgment dated10.05.1995 and two orders dated 08.04.1999 and 29.11.2000 and foradismissal of plantiff s action. However it has to be noted that the impugnedjudgment bears the date 10.10.1995.
The 1 st and 2nd plaintiff – respondent (hereinafter some times referredto as “plaintiffs” by their statement of objections dated 14.09.2001 whilstdenying the averments in the petition had prayed for a dismissal of theapplication of the petitioner mainly on the ground that neither any groundsnor exceptional circumstances which would permit the petitioner to invokethe extraordinary jurisdiction of revision exist.
By the plaint dated 22.09.1987 the 1st and 2nd plaintiffs had averredthat as set out in paragraphs 2 and 3 thereof that they had acquired title tothe subject matter by deeds and by way of prescription and the defendantscame into occupation of the house thereon with leave and license of theplaintiffs. As per paragraph 5 of the plaint it was further averred that fromearly part of 1987 the 1 st and 2nd defendants by virtue of a deed said tohave been in their favour in respect of the property morefully described inschedules to the plaint, disputed the ownership of the plaintiffs and therebycontinued to be in unlawful occupation of the same.
The 1st and 2nd defendants by their joint answer dated 28.09.1988whilst denying the averments in the plaint inclusive of the accrual of thecause of action by way of further answer pleaded that they came intopossession of the same noton leave and license of the plaintiffs but on theleave and license of one temple, namely Keththarama Temple and movedfor a dismissal of the plaintiffs action. Although it is seen from thecertified copy of the District Court record that another answer dated
2- CM 7223
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(2005) 3 Sri L. R.
08.07.1989 is filed of record, in the absence of any journal entries to showthat same was accepted, what has to be inferred is that the case hadproceeded to trial on the original answer. After an inter parte trial the learnedjudge had pronounced the judgment dated 10.10.1995 granting only therelief of declaration of title inplaintiffs favour to the property morefullydescribed in schedule A to the plaint.
It is common ground that appeal bearing C. A. No. 1109/95 had beenpreferred against the said judgment and same was rejected. Even as perparagraph 13 of the petition the said appeal had been rejected on 15.05.1997for non – payment of brief fees. Thereafter on return of the originalrecord the writ had been issued by the District Court by its order dated
(vide journal entry dated 08.04.1999) As per journal entry dated
the Fiscal had tendered the report after due execution of writof possession.
Thereafter the present petitioner by a petition dated 22.04.1999 hadmoved the District Court to restore her to possession of the subject matterand recovery of damages in a sum of Rs. 2 lakhs. The above applicationhad been made under section 839 of the Civil Procedure Code. The Plaintiff- Respondents by their statement of objections dated 27.10.1999 movedfor a dismissal of the above petition on the ground that the decree wasexecuted in accordance with the judgment and the decree entered in thecase and further they averred that they had a right for recovery of possessionof the property described in schedule B to the plaint. After inquiry thelearned Trial Judge had refused the petitioner’s application by his orderdated 29.11.2000. This is the second order the 2nd Defendant has movedto set aside now as per sub paragraph (c) of the prayer to the presentpetition. By the impugned order dated 29.11.2000 the learned judge hasdismissed the Petitioner’s application onthe ground that his predecessorin office who had delivered the judgment dated 10.10.1995 had clearlystated that the land described in schedule B in the plaint is a portion of theland described in schedule A to the plaint and that the Plaintiffs were
CA
Sopi Nona i/s.
Kamnadasa and Another (Ekanayake, J.)
241
granted declaration to title to the property in schedule A and therefore theapplication was not a'bona fide application.
Section 839 of the Civil Procedure Code thus reads as follows :
“Nothing in this Ordinance shall be deemed to limit orotherwise affect the inherent power of the court to makesuch orders as may be necessary for the ends of justiceor to prevent abuse of the process of the court.’’
In this context now the necessity has arisen to consider the decision inLeechman Company vs Rangalla Consolidated(V where it was held that:
“This section merely saves the inherent powers of the Court to makesuch orders as may be necessary for the ends of justice or to preventabuse of the process of the Court. Where no provision exists it is the dutyof the judge and it lies within his inherent powers to make such order asthe justice of the case requires."
In the instant case by the judgment dated 10.10.1995 the reliefs thathad been prayed for in sub paragraph (1) of the prayer to the plant hadbeen allowed by the learned Trial Judge and there had been no relief forejectment of the defendants and restoration of possession of the propertydescribed in schedule B to the plaint. In the course of the judgment thelearned Trial judge has very clearly arrived upon the specific finding thatthe Plaintiffs are entitled to a declaration of title to the property describedin schedule A to the plaint and that the Defendants are in possession ofthe property described in schedule B. The learned judge has quite correctlyanalyzed the evidence and having duly considered the principle of law thatwhen a Plaintiff is seeking a declaration of title it is he who should provethe title to the subject matter has answered the issues in favour of theplaintiffs. Therefore I see no basis to interfere with the impugned judgment.
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(2005) 3 Sri L. R.
What has to be considered now is whether the learned Trial Judge wascorrect in issuing writ of possession when the judgment was silent aboutsame and specially in this case when the Plaintiff had totally failed tomove for ejectment and restoration of possession by the prayer to theplaint.
In the case of Seneviratne vs Francis Abeykoon(2> this question wasconsidered by the Supreme Court viz – “whether in the absence of a decreerestoring possession of the premises to the defendant – tenant the Courtstill had the power to make and order that possession be restored to thedefendant which the Fiscal could execute.
In that case the plaintiff landlord after his appeal from a judgmentdismissing his action for eviction of his tenant the defendant was abated,forcibly took possession of the premises let alleging abandonment andconsequential deterioration of the premises. The defendant – tenant deniedabandonment and applied to the Trial Court to restore him to possession.'The Court granted the application. Thereafter the Plaintiff moved the Courtof Appeal by way of revision to have the aforesaid order of the DistrictJudge set aside. The Court of Appeal dismissing the application upheldthe learned Trial Judge’s order and thereafter the Plaintiff in that caseappealed to the Supreme Court from the order of the Court of Appeal.Supreme Court also dismissed the appeal while upholding the decision ofthe Court of Appeal. PerThambiah.J at 5 :
“An extra – ordinary situation had arisen and to deal with it there was noexpress provision in the Civil Procedure Code. It is to meet such a casethat section 839 was enacted. It empowered a Court to make such ordersas may be necessary for the ends of justice or to prevent abuse of theprocess of Court.’’
In view of the above principles of law I conclude that in the present casethe learned Trial Judge had erred in having allowed the writ of possessionwhen the relief of ejectment and restoration or possession was not granted
It is quite evident from the above issue that the effect of the same waswhether the Plaintiffs were entitled to the reliefs prayed in the plaint if theabove issues (viz; issues 1-6) are answered in the affirmative. It is clearfrom the above that there had been no issue on ejectment and restorationof possession by the plaintiff. The learned judge has correctly answeredall the issues admitted to trial giving good reasons.
CASopi Nona vs.-243
Karunadasa and Another (Ekanayake, J.)
by the judgment nor was such relief even prayed by the prayer to theplaint. So obviously there cannot be a decree for ejectment and restorationof possession. It is to be noted that the decree which is filed of record andsigned by the judge as per journal entry of 22.10.1997 is in conformity withthejudgment.
Therefore, I conclude that by allowing the writ of possession by theorder dated 08.04.1999 the learned Trial judge had given a relief to thePlantiffs which was not granted by the judgment and the decree andtherefore same is hereby set aside.
Further on a perusal of the impugned 2nd order dated 29.11.2000I conclude that the learned judge had erred by failing to invoke inherentpowers under section 839 of the Civil Procedure Code and to make orderrestoring possession to the second defendant when sufficient groundshad existed to make such orders as may be necessary for the ends ofjustice. Therefore the above order dated 29.11.2000 too is hereby setaside.
It has to be further stressed here that ejectment and restoration ofpossession had neither been prayed for in the prayer to the plaint as arelief nor had there been any issue raised by the Plaintiff to that effect.Issue No. 7 raised on behalf of the Plaintiffs had been to the followingeffect:
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For the foregoing reasons while affirming the judgment of the learnedTrial Judge dated 10.10.1995, the orders dated 08.04.1999 and 29.11.2000are hereby set aside and this court makes order that the 2nd defendantpetitioner be restored to possession forthwith.
In all the circumstances of the case no order is made with regard tocosts of this application.
SRISKANDARAJAH. J. -I agree.
Application allowed.
2nd defendant-petitioner to be restored to possession.