The principles of laches have not been applied automaticallyor arbitrarily or in a technical manner by Courts of Equitythemselves. The Privy Council in the case of Lindsay PetroleumCompany vs. Hurd, 1974 Law Reports, 5 P.C. 221 at 239, slatedin the clearest terms the manner in which the Courts of Equityhave applied this doctrine :
“ The doctrine of laches in Court of Equity is not anarbitrary or. a technical doctrine. Where it would bepractically unjust to give a remedy, either because the partyhas, by his conduct, done that which might fairly be re-garded as equivalent to a waiver of it, or where by his con-duct and neglect he has. though perhaps not waiving thatremedy, yet put the other party in a situation in which it
WAKASTXNDERA, J.—Ramasamy v. Ceylon State Mortgage Bank 510
would not be reasonable to place him if the remedy wereafterwards to be asserted, in either of these cases, lapse oftime and delay are most material. But in every case, if anargument against relief, which otherwise should be unjust,is founded upon mere delay, that delay of course notamounting to a bar by any Statute of Limitations, thevalidity of that defence must be tried upon principles sub-stantially equitable. Two circumstances, always importantin such cases, are, the length of the delay and the nature ofthe acts done during the interval which might affect eitherparty and cause a balance of justice or injustice in taki ngthe one course or the other, so far as relates to the remedy. ”
It may be noted that where the Courts of Equity were con-cerned, one defeated in equity by reason of this defence, maystill have his remedy in common law. As for the common lawcourts they have invariably taken into consideration such factorsas the availability of an alternative remedy along with acquie-scence and the existence of facts such as the conduct of theparties and any developments which may render it inequitableto grant relief, when applying this doctrine. In India, how-ever, we find, since the inception of the Republican Constitution,laches has become a defence by itself to applications containingan element of delay.
The cases which have been cited to us show that the Courtshave considered the question of delay and laches in a variety ofsituations. In the English case, Rex vs. Stafford Justices, (1940)2 K. B. 33, relied on by Mr. de Silva, it is clear that delay wasnot the sole ground for the refusal of the appl cation. The judg-ment shows that the property concerned had not only been builtupon subsequent to the issue of the impugned certificate, butthe houses so constructed had even been sold to third persons.In the local case of Gunasekera vs. Weerzkoon, 73 N.L.R. at 262,the delay referred to in the judgment was not the sole groundfor the refusal of writ. The Court stated that an alternativeremedy was available to the petitioner. In the case of Gooneti-leke vs. Government Agent, Galle, reported in 47 N.L.R. 550,the petitioner applied for a Writ of Certiorari or Mandamus todeclare void an election to a Village Committee. When thematter came up for hearing, the respondents took up a prelimi-nary objection to the petition that the successful candidate hadnot been made a party to the application. It would appear thatthe petitioner then made an application to add the successful
WANASUNJDERA. J.—Ramasamy v. Ceylon State Mortgage Bank
candidate as a party-respondent. Keuneman, J. said that theapplication came at too late a s.age in the proceedings. The delayin this case is of a different nature from that now under consi-deration. The delay there has no substantive element in it and^eemsr purely procedural in kind. It is like a case where a judgewould resist patting back the case to an earlier point in theproceedings when once the trial has commenced. Further, it isalso a case where the objection was taken by the original partiesto the application.
In Vinnasithamby vs. Joseph, reported in 65 N.L.R. 359, theCourt purported to follow the above case. The facts of this caseare similar to the present one. Here too, the parties noticedobjected to their being added on the ground of delay.Weerasuriya, J. said :
“ If all the preliminary steps had already been taken(such as the filing of objections and affidavits by the res-pondents) and the matter was ready for inqu'ry into thesubstantive application before the Court, I would respect-fully agree that it was too late for ihe petitioner to havemoved that further parties be added.”
With all respect to the learned Judge, it seems that he hadnot tried the validity of the defence on its own merits. The testhe has adopted is one of maturity or ripeness of the case forhearing. It would have been more satisfactory if in these cir-cumstances the question answered by him was formulated interms of delay or laches and not as a narrow procedural matter.
In the case of Wijegoonewardena vs. Kularatne. reported in51 N.L.R. 453, Swan, J. refused to grant a Writ of Quo Warrantowhich was brought five months after an election. There was nodispute in the case that the respondent had sat and voted as amember during this period. The Court held that the successfulcandidate had a right to expect that the issue of the validityof his elect;on should be disposed of as quickly as possible. Incoming to the conclus'on, the learned Judge has not gone into adiscussion of the law on this matter.
The facts of the present case are substantially different fromthese cases. As shown earlier, the ma'n attack is on the deter-mination made bv the State Mortgage Bank. Gn"e the determi-nation of the Bank is put in issue, the Vesting Order is itself,from th^t noint of time, put in jeopardy and the application toadd the Minister at this stage should not therefore cause any
WANASUNDERA, J.—Ramcmamy v. Ceylon Stale Mortgage Bank 517
undue prejudice to him or anyone else. For the purpose of thisorder, I have assumed that there has been no delay in the■original application filed in 1971.
Mr. Ranganathan has also stated that there is no materialbefore Court to indicate that the property concerned has in anyway undergone a change since the date of the determinationwhich might make it inequitable for this Court to make an orderin favour of the petitioner.
It is also a matter of some significance that the 1st and 2ndrespondents, who are the parties most concerned in this matter,now have no objection to the addition of the M'nister. In thesecircumstances the stand taken by the State is a little surprising,particularly when the matter in issue is whether or not therehas been a usurpation of jurisdiction by a statutory body at theexpense of the citizen. The argument that there should be cer-tainty about official acts is a statement that a court readilyunderstands, but such a principle cannot be applied indiscrimi-nately, but should be done carefully and only in appropriatecases. The ac s involved here do not have that pubi c charactergenerally associated with official acts. The present transactionrelates to the redemption of a land for the benefit of an indivi-dual, namely the original mortgagor.
It may also be mentioned that the learned Deputy Solicitor-General has based all his arguments on the assumption that thislong delay should be attributable to the petitioner, and thepetitioner alone. I have referred in the early part of tlrs judg-ment. to the sequence of dates show ng the progress of the appli-cation after it was filed in Court. According to these entries thepetitioner may not be responsible or may not be ent.rely res-ponsible for the present state of affairs.
Finally, it is my view that when we are dealing with a matterconcerning the extent of the powers and juried c ion, wh ch isreoosed in us, to be exercised for the public good, we shouldhesitate to fetter ourselves with arb trary nfes, unless such acourse of action is absolu elv necessary. The principles of lachesmust, in my v'ew, be applied carefully and discr’minat ngly andnot automatically and as a mere mechanical device.
For these reasons, I am of the view that, in the circumstancesset but above, the Minister of Finance should be added as aparty respondent. In coming to this conc1us:on, I have not in anyway considered the merits of this application.
‘Tennekoon, C.J.—I agree.
Thamotheram, J.—I agree.
Application to add party allowed.