TRUSTEES OF TAIYABBHAI CHILDREN ‘ S TRUST v. ATTORNEY-GENERAL

035-SLLR-SLLR-1997-2-TRUSTEES-OF-TAIYABBHAI-CHILDREN-‘-S-TRUST-v.-ATTORNEY-GENERAL.pdf


CA
Ghani v. Nadaraja (Edussuriya, J.)
341
TRUSTEES OF TAIYABBHAI CHILDREN’S TRUST
v.
ATTORNEY-GENERAL
COURT OF APPEAL.
WEERASEKERA, J„
WIGNESWARAN, J.
APRIL 02, 1997.
Emergency (Cultivation of Food Crops) Regulation No. 1 of 1973 – Re-aquisitionof land – Public Security Ordinance, section 5 – Compensation for loss of incomeand recovery of rates paid – De-requisitioning of land.
The plaintiff-appellant alleged that the premises, which was a bare land wererequisitioned under Emergency (Cultivation of Food Crops) Regulation No. 1 of1973, promulgated under section 5 of the Public Security Ordinance with effectfrom 24.6.74 and de-requisitioned on 26.6.78 and instituted action for therecovery of a certain sum as compenstion for the loss of income and for therecovery of a sum paid as rates.
The District Court upheld the objection of the defendant-respondent and rejectedthe plaint on the ground that the court has no jurisdiction to entertain the plaint.
342
Sri Lanka Law Reports
[199712 Sri LR.
Held:
Emergency (Cultivation of Food Crops) Regulation No. 1 of 1973 in Rule 3made provision for the payment of compensation on an application made to theCompetent Authority. This regulation was promulgated under section 5 of thePublic Security Ordinance by sections 7, 8, and 11, which lays down that anyprovisions of law which may be inconsistent with its provisions shall have noeffect during its pendency and further states that no such rule, order or directionmade or given thereunder shall be called in question in any court.
Where a liability not existing under the common law is created by statutewhich at the same time prescribes a special and a particular remedy for enforcingit, that remedy provided by the statute must be followed and the common lawmode of computation and payment of compensation must be deemed to havebeen effectively substituted and repealed. Therefore Regulation No. 1 of 1973had ousted the jurisdiction of the court.
Per Weeramantry, J.
"It is now settled law that if on the footing of the averments in a plaint the claimmade therein is clearly prescribed, the claim is liable to be dismissed withoutevidence being gone into or considerations of the averments in the answer."
APPEAL from the Judgment of the District Court of Colombo.
Cases referred to:
Soysa v. Soysa -17 NLR 118.
Read v. Samsudeen -1 NLR 292.
Ratnam v. Deen – 70 NLR 21.
Rohan Sahabandu for the plaintiff-appellant.
Adrian Perera, SSC for defendant-respondent.
Cur. adv. vult.
May 27,1997.
WEERASEKERA, J.
The plaintiff-appellant instituted this action for the recovery ofRs. 36,000/- as compensation for the loss of income for the period24th June, 1974 to 26th June 1978 and for the recovery of a sum ofRs. 723.49 as compensation for rates paid for the aforesaid period tothe Colombo Municipal Council.
CA
Trustees of Taiyabbhai Children's Trust v. Attorney-General(Weerasekera, J.)
343
The plaintiff-appellants alleged that premises No. 150, LukmanjeeSquare, Colombo 14 which was a bare land and of which theplaintiff-appellants were Trustees was requisitioned under Emergency(Cultivation of Food Crops) Regulation No. 1 of 1973 promulgatedunder section 5 of the Public Security Ordinance Chapter 40 of theLegislative Enactments with effect from June 1974 and de-requisitioned on 26th June 1978. It is for this period that the plaintiff-appellants claimed the aforesaid compensation.
The defence was two fold –
Should the plaint be rejected in terms of section 46(2) (i) of theCivil Procedure Code since the Court has no jurisdiction toentertain the plaint?
Is the action time barred?
The learned Additional District Judge of Colombo by his judgmentof 10th December, 1984 rejected the plaint on ground (1). He did notconsider ground (2) in consequence. This appeal is from that order.
I have considered the written submissions of both Counsel in theDistrict Court and their submissions before me and the reasoning ofthe learned Additional District Judge and given them my bestconsideration.
Section 46(2) (i) of the Civil Procedure Code reads thus:
“When the action appears from the statement in the plaint to be
barred by any positive rule of law the plaint shall be rejected".
It is now settled law that if on the footing of the averments in aplaint the claim made therein is clearly prescribed, the claim is liableto be dismissed without evidence being gone into or consideration ofthe averments in the answer.
(Vide Soysa v. Soysam, also Bonser C.J. in Read v. Samsudeen<2)and Ratnam v. Deen{3)).
344
Sri Lanka Law Reports
[1997] 2 Sri L.R.
The question that now has to be determined is whetherEmergency (Cultivation of Food Crops) Regulation No. 1 of 1973under which regulation the subject matter of the action wasrequisitioned and under which damages are claimed ousted thejurisdiction of Court. These Regulations have in rule 3 thereof madeprovision for the payment of compensation on application made tothe Competent Authority. The Emergency (Cultivation of Food Crops)Regulation No. 1 of 1973 which was promulgated under section 5 ofthe Public Security Ordinance, by sections 7, 8 and 11 therein havenot only made any provision of law which may be inconsistent with itsprovisions to have no effect during its pendency but also that no suchrule, order or direction made or given thereunder shall be called inquestion in any Court.
In those circumstances where a liability not existing under theCommon Law is created by statute which at the same timeprescribes a special and a particular remedy for enforcing it, thatremedy provided by the statute must be followed and the CommonLaw mode of computation and payment of compensation must bedeemed to have been effectively substituted and repealed and in thisinstance by Rule 3 of the Emergency (Cultivation of Food Crops)Regulation No. 1 of 1973.
I am satisfied that the learned Additional District Judge ofColombo had addressed his mind to the issue correctly and in a wellconsidered judgment with which I concur, held that the Emergency(Cultivation of Food Crops) Regulation No. 1 of 1973 had ousted thejurisdiction of the Court and proceeded to reject the plaint.
The judgment of the learned Additional District Judge dated 10thDecember, 1984 is affirmed.
The appeal is dismissed with taxed costs payable by the plaintiff-appellants to the defendant-respondent.
WIGNESWARAN, J. -1 agree.
Appeal dismissed.