TIMES OF CEYLON LTD v. SIRIMAVO R.D. BANDARANAIKE

023-SLLR-SLLR-1991-V-1-TIMES-OF-CEYLON-LTD-v.-SIRIMAVO-R.D.-BANDARANAIKE.pdf


CA
Times of Ceylon Ltd. v. Sirimavo R.D. Bandaranaike
263
TIMES OF CEYLON LTD.V.
SIRIMAVO R.D. BANDARANAIKECOURT OF APPEAL
WIJETUNGA, J. AND WIJAYARATNE, J
A. APPLICATION NO. 515/84
C. COLOMBO CASE NO. 81692/MJANUARY 22 AND 30, 1990
Delict – Defamation – Liability for defamatory statements in newspaper – Vesting ofbusiness of newspaper in Government – Ex parte judgment
By the vesting order dated 2.8.1977 and published in the Government Gazette No.276/4 of 2.8.1977 the newspaper business of the petitioner was vested in theGovernment and it ceased to be the printer and publisher of the said newspaper.
The respondent sued the newspaper company for defamation and obtained ex partejudgment in her favour for Rs. 750,000/- which has been paid to her.
Held:
The alleged defamatory statements were a liability incurred by the Competent Authority.Further the defendant company had gone into liquidation in 1981 and liquidators alsohad been appointed.
The ex parte judgment had been canvassed in the Supreme Court which affirmed thejudgment but that was on the question whether there had been a valid service ofsummons on the defendant-petitioner.
It would be a gross injustice to allow the ex parte judgment to stand as the vestingorder had completely and effectually divested the defendant – petitioner of the businessundertaking. This is a pure matter of law of which there can be no controversy ordispute. Hence the Court can act in revision and set aside the judgment.
Cases referred to:
Rustom v. Hapangama (1978 – 79) 2 Sri LR 225
Rasheed Ali v. Mohamed All (1981) 2 Sri LR 28
Ranasinghe v. Henry 1 NLR 303
Amadoris v. Nanda 7 NLR 333
Dassanayake v. Eastern Produce and-Estate Co. Ltd. (1986) 1 Sri LR 258
APPLICATION in revision of the ex parte judgment of the District Court of Colombo;
Dr. H.W. Jayewardene. Q.C. with L.C. Seneviratne, P.C., Miss. T. Keenawinna andHarsha Amerasekera for defendant – petitioner.
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H.L. de Silva, P.C. with Xithsiri Gunaratne and M. Ghazalli for plaintiff – respondent.
Cur.adv.vull.
11 December 1990
WIJEYARATNE, J
This is an application for revision filed on 18.4.1984 to set aside theex parte judgment dated 29.10.1979 for Rs. 750,000 in favour of theplaintiff-respondent entered by the learned District Judge of Colombo,arising out of aller ;-d defamatory statements printed in the SundayTimes of 4.12.1S 7 on the basis that the said newspaper wasprinted, published o.nd distributed by the defendant-petitioner.
The defendant-pet Joner states that its business was vested in theGovernment in te ms of section 2 of the Business Undertakings(Acquisition) Act, I o. 35 of 1972. The vesting order dated 2.8.1977was published in r.e Government Gazette No. 276/4 of 2.8.1977.
The case of the . efendant-petitioner was that at the time of thepublication of the alleged defamatory matter on 4.12.1977, thisbusiness had already vested in the Government; so much so thatthis publication p.oduced marked "P I" (i.e., Sunday Times of4.12.1977) had the words “printed and published by the CompetentAuthority, Reputdc of Sri Lanka, successor to the BusinessUndertaking of th Times of Ceylon Ltd.” thereon. Therefore thedefendant-petition: r avers that it had ceased to be the printer,publisher and dis ibutor of Sunday Times at the relevant time,namely 4.12.1977.
The defendant-pe ioner further avers that the alleged defamatorystatements were £ liability incurred by the Competent Authority andthe plaintiff-respondent, her legal advisers and the learned DistrictJudge have gross;: erred in assuming that the defendant-petitionerhas published the npugned article and that no court of justice wouldallow such a judgn ant to stand and thereby perpetuate such a wrongand permit the p.aintiff-respondent to take advantage of such awrong. On these c ounds the defendant-petitioner seeks to set asidethe said judgment oy way of revision.
The plaintiff-respo: jent by objections dated 28.6.1984 has opposedthis application anc pleaded – 1
(1) that the matte :s now res judicata;
CA Times of Ceylon Ltd. v. Sirimavo R.D. Banda ranaike (Wijeyaratne, J.)
265
that the defendant-petitioner had an opportunity to contest theaction and take up this defence relating to vesting in thegovernment, but failed to do so;
that the defendant-petitioner has failed to set aside the ex partejudgment within the prescribed period and is now precluded fromdoing so indirectly;
that the defendant-petitioner has no status to invoke therevisionary powers of this court.
This case has had a long history but it is not necessary to go intoevery detail. I shall set out a few salient points in the history of thisaction.
The learned District Judge had, on papers being filed, set aside theex parte decree (and refused the application for writ made by theplaintiff-respondent) and directed that summons be issued on thedefendant-petitioner.
Thereupon the plaintiff-respondent appealed from this order to thiscourt, which by its order dated 13.8.1982 (annexed marked "H")affirmed the judgment of the District Court and dismissed the appeal.
Then the plaintiff-respondent appealed to the Supreme Court, whichby its judgment dated 8.3.1984 (annexed marked "I" reversed bothjudgments and held that summons had been duly served on thedefendant-petitioner.
Now the defendant-petitioner has filed the present application inrevision to set aside the said judgment and decree.
At the hearing it was admitted by both counsel that the plaintiff-respondent had recovered this sum of Rs. 750,000 from thedefendant-petitioner on her giving a bank guarantee. It was alsoadmitted that the defendant-petitioner had gone into liquidation in1981 and that Liquidators had been appointed.
At the hearing Dr H.W. Jayawardena, Q.C., for the defendant-petitioner dwelt at length on the revisionary powers of this court andcited several decisions of this court and the Supreme Court andreferred to Articles 138 and 139 of the Constitution.
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Sri Lanka Law Reports
(1991) 1 Sri L.R.
It is not necessary for me to go into the entire case law relating tothe revisionsry powers of this court, but the recent decisions inRustom vs. Hapangama (1) and Rasheed AH vs. Mohamed AH (2)show that these powers are very wide and can be exercised inappropriate cases even though as appeal has been taken.
The principles to be extracted from these cases are as follows:-
The powers of revision are very wide.
It is a discretionary remedy.
The powers of revision will be exercised in exceptionalcircumstances and it is not feasible to lay down a hard and fastrule relating to these exceptional circumstances.
These powers can be exercised even though no appeal hasbeen taken.
There should not be a delay in applying for relief by way ofrevision.
When an order is palpably wrong the court will exercise itspowers of revision – see the decision in Ranasinghe vsHenry (3)
When an order is based wholly on a misapprehension the powersof revision will be exercised to set aside such an order – seethe decision of Amadoris vs. Nanda (4)
Mr. H.L. de Silva, P.C., for the plaintiff-respondent contended thatthe present application amounts to an attempt to set aside the exparte judgment of the learned District Judge dated 27.1.1979, whichjudgment was affirmed by the Supreme Court by its judgment dated8.3.64. He went on to submit that the defendant-petitioner has firstto purge its default before it could be heard and further submittedthat the defendant-petitioner had an opportunity to raise all theseissues relating to the vesting order at the trial which he had failedto do and that this is an attempt to set aside the finding of factsimplicit in the Supreme Court judgment.
CA Times of Ceylon Ltd. v. Sirimavo R.D. Bandaranaike (Wijeyaratne, J.)
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He argued that one of the issues was whether the defendant -petitioner had printed, published and distributed matter and thismatter has been decided and is now concluded.
He further submitted that the defendant-petitioner has only itself toblame and that it was responsible for its own default.
I have carefully considered the submissions made by counsel of bothsides. The Supreme Court has decided only the question of lawreferred to it for decision, namely, whether there was a valid serviceof summons on defendant-petitioner. The defendant-petitioner is notseeking to canvass that matter now.
I am of the view that in this case there has been a.failure of justice.
By the aforesaid vesting order dated 2.8.1977 and published in theGovernment Gazette No. 276/4 of 2.8.1977 this business was vestedin the Government and the defendant-petitioner ceased to be theprinter and publisher of the said newspaper. A perusal of thenewspaper (P1) clearly shows that the following words were printedthereon :- "Printed and published by the Competent Authority,Republic of Sri Lanka, successor to the Business Undertaking ofTimes of Ceylon Ltd."
Thus it is seen that on the relevant date, namely 4.12.1977, thedefendant-petitioner had nothing to do with the printing and publishingof the Times of Ceylon.
It has been held in the case of Dassanayake vs. Eastern Produceand Estate Co. Ltd. (5) that the effect of a vesting order in favourof the Government divesting the former owner of his rights was sofinal and conclusive that a matter relating to the liability of the formerowner, being an issue of pure law, can be raised for the first timein appeal. Such a matter can be decided without any evidence.
It was the duty of counsel for the plaintiff-respondent to haveexamined these matters before seeking an ex parte judgment. It wasthe duty of the court too to have examined these matters.
In fed Dr H.W. Jayewardene, Q.C., submitted that there is no evidenceled at the ex parte trial to show that the defendant-petitioner printed andpublished this article. I agree with the submission of Dr. H.W. Jayewardenethat there had not been a fair ex parte trial.
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(1991) 1 Sri L.R.
It was the duty of counsel for the plaintiff-respondant to have placedthe true facts before court and also for the court to have gone intothese matters before entering judgment. It can be said that thisjudgment was based on a misapprehension of the liability of thedefendant-petitioner.
In my view it would be a gross injustice to allow this judgment to standas the aforesaid vesting order of 2.8.1977 completely and effectuallydivested the defendant-petitioner of this business undertaking. This isa pure matter of law of which there can be no controversy or dispute.Therefore, being a pure matter of law on which there can be nocontroversy or dispute, there is no difficulty for this court to act inrevision and set aside the aforesaid judgment.
Therefore, acting in revision, I set aside the judgment of learnedDistrict Judge dated 29.1.1979. As this amount of Rs. 750,000 hasbeen paid to the plain tiff-respondent by the defendant-petitioner, it isher duty to repay this sum to the defendant-petitioner.
Learned counsel for the defendant-petitioner stated that this amountof Rs. 750,000 was paid out to the plaintiff-respondent soon after4.8.1984 and urged that legal interest be awarded from the date ofpayment to her till the date of repayment to the defendant-petitioner.No authority or precedent was cited to support this claim for legalinterest.
It is certainly not the fault of the defendant-petitioner that led to thissituation whereby judgment was entered against a party whosebusiness had, prior to the date of liability, vested effectually in theGovernment.
I am of the opinion that legal interest on this amount cannot begranted.
I therefore set aside the judgment of the learned District Judge dated29.1.1979 and dismiss the plaintiff-respondents action.
The plaintiff-respondent will pay back the amount of Rs. 750,000 tothe defendant-petitioner, which will also be entitled to the cosls of thisapplication.
WIJETUNGA, J – I agree.
A iHiration allowed.