Law-Report-part-7.pdf

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D I G E S T
Page
CIvIL PROCEDURE CODE – Section 760 A – Death or change of status 171
of party to appeal – Supreme Court Rules, 1990 – Rule 38 – Records
which have become defective by reason of the death or change of sta-
tus of a party to the proceedings in an application before the Supreme
Court or Court of Appeal.
Karunawathie v. Piyasena & Others
CONSTITUTION – Article 12(1) – Right to equality – Articles 13(1) and 192
13(2) – Freedom from arbitrary arrest, detention and punishment –
Article 14(g) – Freedom of speech, assembly, association, occupation,
movement – Article 126 – Fundamental rights jurisdiction – Excise
Ordinance – Section 33, 35, 37, 46g, 47, 48(a), 48 (c), 52(1) a
Udagama and 2 Others v. Chandra Feranando, Inspector General
of Police and 5 others
CONSTITUTION – Infringement of fundamental rights – Article 12[1] – Right to 169
equality – Article 126 – Fundamental rights jurisdiction and its exercise
Geethika And Two Others v. Dissanayaka And Five Others
LANDLORD AND TENANT – Tenant disputes landlord’s title – Refusal to 182
give up possession of the property at the termination of the lease on the
ground that the tenant acquired certain rights to the property.
Wimala Perera v. Kalyani Sriyalatha

Geethika And Two Others V. Dissanayaka And Five Others
SC (Suresh Chandra J.) 169
views by interview panels would encourage parents of
prospective students to government schools to obtain
title deeds by any method and would undermine the whole
purpose of the enforcement of the present circular.
On a consideration of the above matters, I am of the
opinion that the Petitioners are entitled to 35 marks for
the electoral register extracts. 6 marks for the residence
documents P17, 4 marks for the category of documents which
confrm residence and 20 marks in relation to other schools,
making up a total of 65 marks which is above the cut off
mark for this school. This would entitle the 3rd Petitioner to
obtain admission to the School.
The interview panel has failed to evaluate the documents
that were submitted by the petitioners in support of their
application to admit the child to the School and appear to
have acted arbitrarily. The Panel appears to have considered
the concept of residence in a very abstract manner
and has failed to consider the totality of the documents
that were submitted which clearly establish the residence
of the Petitioners. The Panel seems to have acted under
a fxed notion of considering residence only if the stereotyped
documents relating to title, such as transfers, gifts, leases etc
are produced without considering the cumulative effect of the
totality of the documents submitted. Although such panels
do have to interview large numbers, they have to be mindful
of the fact that it is the ambition of every parent to admit their
child to a school of their choice when a child has reached the
school going age and that they should consider such applica-
tions in a reasonable manner specially when such applicants
have satisfed the basis criteria regarding residence.

170 Sri Lanka Law Reports [2011] 1 SRI L.R.
In the above circumstances I hold that the Petitioners
have established the fact of violation of their fundamen-
tal rights in terms of Article 12(1) of the Constitution. The
decision of the Respondents that the 3rd Petitioner is not
entitled to be admitted to D. S. Senanayake College is set aside.
The Respondents are directed to take steps to admit the 3rd
Petitioner to Grade I of D. S. Senanayake College forthwith.
Saleem marSoof J. – agree.
Chandra ekanayake J. – I agree.
Relief granted.

Karunawathie V. Piyasena & Others
SC 171
KARUNAWATHIE v. PIYASENA & OTHERS
SUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, C.J.,
SRIPAVAN, J. AND
IMAM, J.
S.C. APPEAL NO. 09 A/ 2010
S.C. (HC) CA LA NO. 309/2009
SP/HCCA/KAG/283/2007 (F)
D.C. KEGALLE NO. 24119/P
JULY 7TH, 2011
Civil Procedure Code – Section 760 A – Death or change of status of
party to appeal – Supreme Court Rules, 1990 – Rule 38 – Records
which have become defective by reason of the death or change of
status of a party to the proceedings in an application before the
Supreme Court or Court of Appeal.
The Appellant had made an application under Section 48(4) A (V) of the
Partition Law which was taken up for inquiry on 23.07.2000 and the
Final Order had been made on 20.05.2005. The 15th Respondent, who
was also the 16A Respondent for the deceased 16th Respondent, had
died on 30.05.2004 whilst the case was pending before the District
Court and the necessary steps for substitution were not taken at the
time. Against the said Final Order an appeal had been fled in the High
Court and whilst the case was pending before Court, the 2nd Respondent
had died on 06.09.2007. Admittedly no steps had been taken to substi-
tute in place of the deceased 2nd Respondent before the High Court. The
judgment of the High Court had been delivered on 13.10.2009.
Since leave to appeal had been granted by the Supreme Court and the
appeal had been fxed for argument, the question that arose was wheth-
er substitution in place of the deceased Respondents could be effected
before the Supreme Court.
held:
(1) The record of the present appeal had become defective before the
Final Order of the District Court was given and thereafter prior

172 Sri Lanka Law Reports [2011] 1 SRI L.R.
to the delivery of the judgment of the High Court. Accordingly,
at the time the leave to appeal application was fled before the
Supreme Court the record in question had become defective. In such
circumstances, the provisions in Section 760 A of the Civil
Procedure Code (as amended) read with Rule 38 of the Supreme
Court Rules, 1990, cannot be applicable to the present appeal.
(2) When a party to a case had died during the pendency of that case,
it would not be possible for the Court to proceed with that matter
without appointing a legal representative of the deceased in his
place. No sooner a death occurs of a party before Court, his coun-
sel loses his position in assisting Court, as along with the said
death and without any substitution he has no way of obtaining
instructions.
(3) Since the 15th Respondent, who was also the 16A Respondent,
died on 30.05.2004 and as no steps were taken for substitution of
parties prior to the judgment of the District Judge, the judgment of
the District Court is a nullity. Thereafter the 2nd Respondent died
prior to the delivery of the judgment of the High Court. Accordingly
both judgments are ineffective and therefore the judgment of the
High Court dated 13.10.2009 and the judgment of the District
Court dated 20.05.2005 are set aside.
Cases referred to:
(1) State of Punjab V. Nathu Ram AIR (1962) SC 89
(2) Swaran Singh Puran Singh and another V. Ramditta Badhwa (dead)
and Others AIR 1969 Punjab & Haryana 216
(3) Kanailal Manna and Others V. Bhabataran Santra and Others AIR
1970 Calcutta 99
(4) Achhar Singh and Others V. Smt. Ananti AIR 1971 Punjab &
Haryana 477
appliCation against the Judgment of the High Court of the
Sabaragamuwa Province.
Buddhika Gamage for Appellant.
D. Jayasinghe for Substituted Plaintiff – Respondent.

Karunawathie V. Piyasena & Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 173
Srinath Perera for 1A, 17th and 18th Respondents
Rohan Sahabandu for 6th Respondent
Cur.adv.vult
December 05th 2011
dr. Shirani a. Bandaranayake, CJ
This is an application fled by the 20th defendant-
appellant-petitioner-appellant (hereinafter referred to as the
appellant) against the Judgment of the High Court of the
Sabaragamuwa Province holden at Kegalle (hereinafter
referred to as the High Court) dated 13.10.2009.
By that judgment the High Court had rejected the appeal
of the appellant. The appellant came before this Court seek-
ing leave to appeal against the said judgment, for which this
Court had granted leave to appeal on 05.02.2010.
The parties thereafter had moved for time to consider a
settlement; this appeal was not fxed for hearing, but was
mentioned on two (02) occasions. On 09.06.2010 when this
matter was considered in open Court, the 6th defendant-
respondent-respondent- respondent (hereinafter referred to
as the 6th respondent) had informed Court that 16a defen-
dant- respondent is deceased and therefore the appellant had
moved for time to take steps for substitution. At the same
time this court had noted that the 2nd defendant-respon-
dent- respondent- respondent (hereinafter referred to as the
2nd respondent) and the 15th defendant-respondent- respon-
dent- respondent (hereinafter referred to as the 15th respon-
dent) are dead and there had been no substitution in their
place.
When this matter came up on 07.07.2011, all learned
Counsel agreed that, in the frst instance it would be

174 Sri Lanka Law Reports [2011] 1 SRI L.R.
necessary to consider substitution as the 15th respondent had
died on 30.05.2004 and necessary steps were not taken in the
District Court and the 2nd respondent had died on 06.09.2007
and no steps were taken in the High Court.
All learned Counsel agreed that the said 15th respondent,
namely, Narangode Lakamalage Kiri Mudiyanse had died on
30.05.2004, whilst the case was pending before the District
Court and that necessary steps for substitution were not
taken at that time. It was also submitted that the appellant
had made an application under Section 48(4) A (v) of the
Partition Law, which was taken for inquiry on 23.07.2000
and the Final Order had been made on 20.05.2005(A).
When the case was pending before the High Court
of Sabaragamuwa Province, the 2nd respondent, namely,
Manchanayaka Arachchige Jinaratna Banda had died on
06.09.2007. It was submitted that no steps were taken
to substitute in place of the said deceased 2nd respondent
before the High Court of the Sabaragamuwa Province. The
Judgment of the High Court had been delivered on 13.10.2009
(D). It is to be noted that the 15th respondent, who had died
on 30.05.2004, whilst this matter was pending before the
District Court was the 16A respondent as well. Learned
Counsel for the appellant submitted that in order to dispose
of this appeal, it has become necessary to effect substitution
in the room of the deceased 2nd and 15th respondents.
After hearing all learned Counsel on the limited question
as to how the substitution could be effected, the order on the
said limited issue, was reserved.
It is not disputed that the 15th respondent, namely,
Narangode Lakamalage Kiri Mudiyanse, who was the
substituted 16A respondent for the deceased 16th respon-

Karunawathie V. Piyasena & Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 175
dent in the District Court had died on 30.05.2004. It is
also not disputed that the Final Order of the District Court
was delivered only on 20.05.2005. It therefore cannot be
disputed that at the time the Final Order was delivered in the
District Court, the 15th respondent who was appearing not
only for himself, but also for the deceased 16th respondent as
the 16a respondent had been dead. As stated earlier, the 2nd
respondent, namely, Manchanayaka Arachchige Jinaratna
Banda, had died on 06.09.2007, prior to the delivery of the
Judgment of the High Court on 13.10.2009.
In such circumstances, since leave to appeal had been
granted by this court and the appeal has been fxed for argu-
ment, the question arises as to whether substitution in the
room of the deceased respondents could take place before the
Supreme Court.
In deciding this question, our attention was drawn to
Section 760 A of the Civil Procedure Code (as amended), in
support of the fact that the substitution in the room of the
deceased respondent could be made in the Supreme Court.
The said Section 760A of the Civil Procedure Code (as
amended) is contained in Chapter LVIII, which deals with
Appeals and Revisions and the said section refers to death or
change of status of party to appeal and is as follows:
“Where at any time after the lodging of an appeal in any
civil action, proceeding or matter, the record becomes
defective by reason of the death or change of status of
a party to the appeal, the Supreme Court under Article
136 of the Constitution, determine who, in the opinion
of the Court is the proper person to be substituted or
entered on the record in place of or in addition to, the

176 Sri Lanka Law Reports [2011] 1 SRI L.R.
party who had died or undergone a change of status, and
the name of such person shall thereupon be deemed to be
substituted or entered on record as aforesaid.”
The said Section 760A of the Civil Procedure Code
(as amended), clearly shows that the applicability of the said
section is for matters where the record has become defective
by reason of the death or change of status of a party to the
appeal after the lodging of an appeal. Moreover Article 136
of the Constitution had clearly referred to the Rules of the
Supreme Court stating that such Rules would give guidance
to the manner in which the said application for substitution
should be made. Rule 38 of the Supreme Court Rules, 1990
accordingly, deals with applications when the Record had
become defective by reason of the death or change of status
of a party to the proceedings.
When Section 760 A of the Civil Procedure Code (as
amended) is read with Rule 38 of the Supreme Court Rules,
1990 it is abundantly clear that the applications made under
the said provisions are in matters which are either before the
Supreme Court for special leave to appeal, or an application
under Article 126, or a notice of appeal, or the grant of special
leave to appeal or the grant of leave to appeal by the Court of
Appeal.
It is therefore apparent that, Section 760 A of the Civil
Procedure Code (as amended) read with Rule 38 of the
Supreme Court Rules, 1990 deal with Records which
have become defective by reason of the death or change of
status of a party to the proceedings in an application before the
Supreme Court or Court of Appeal. According to the said
provisions, the Record would have become defective at a time

Karunawathie V. Piyasena & Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 177
when the applications had been fled on appeal before the
Supreme Court or the Court of Appeal.
The present application before this Court, however is
different. As has been stated earlier, the record in the
present appeal had frst become defective before the Final
Order of the District Court was given and thereafter prior to
the Judgment of the High Court was delivered. Accordingly it
is evident that at the time leave to appeal application was fled
before this Court, the Record in question had become defective.
In such circumstances, it is quite clear that the provisions in
Section 760 A of the Civil Procedure Code (as amended) read
with Rule 38 of the Supreme Court Rules, 1990 cannot be
applicable to this appeal and it would be necessary to
consider as to the validity of the Final Order and the
Judgment given by the District Court and the High Court,
respectively.
When a party to a case had died during the pendency of
that case, it would not be possible for the court to proceed
with that matter without bringing in the legal representatives
of the deceased in his place. No sooner a death occurs of a
party before Court, his counsel loses his position in assisting
court, as along with the said death and without any substitu-
tion he has no way in obtaining instructions. At that stage,
the question arises, as to how and what are the steps that
has to be taken in order to cure the defect.
This question had been considered by several decisions
in India.
In State of Punjab v Nathu Ram(1), land belonging to two
brothers L and N jointly was acquired for military purposes.
The two brothers had refused to accept the compensation

178 Sri Lanka Law Reports [2011] 1 SRI L.R.
offered to them and the State Government had referred the
matter for inquiry to an arbitrator. The arbitrator had passed
a joint Award granting a higher compensation. The State
Government had appealed against the said Award to the High
Court. During the pendency of that appeal L died and his
legal representatives were not substituted.
It was decided that since the legal representatives were
not brought on record after the death of L, the appeal abated
against him. The question that had arisen at that time was
whether the appeal also abated against N.
The Supreme Court of India had decided that the subject
matter for which the compensation had been awarded was
one and the same land and the assessment of compensation
as L was concerned having become fnal, there could not
be different assessments for compensation for the same
block of land and therefore the appeal against N also cannot
proceed.
It is however to be noted that in Nathu Ram’s case
(Supra), the question that had to be decided by the Supreme
Court was as to whether the appeal had abated against N as
well.
Reference was made to the decision in State of Punjab
v Nathu Ram (Supra) in Swaran Singh Puran Singh and
another v Ramditta Badwa (dead) and others(2). In Swaran
Singh (Supra), the decision in Nathu Ram (Supra) was clearly
analyzed and the Court had laid down the following proposi-
tion on the basis of the decision given in Nathu Ram (Su-
pra):
“1. On the death of a respondent, an appeal abates
only against the deceased, but not against the other
surviving respondents;

Karunawathie V. Piyasena & Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 179
2. in certain circumstances an appeal on its abatement
against the deceased respondent cannot proceed
even against the surviving respondents and in those
cases the Appellate Court is bound to refuse to proceed
further with the appeal and must, therefore dismiss
it;
3. the question whether a Court can deal with such
matters or not will depend on the facts and circum-
stances of each case and no exhaustive statement
can be made about those circumstances;
4. the abatement of an appeal means not only that
the decree between the appellant and the deceased
respondent has become fnal, but also as a necessary
corollary that the Appellate Court cannot in any way
modify that decree directly or indirectly.”
A similar view was taken once again in Kanailal Manna
and Others v Bhabataran Santra and Others(3) where one of
the plaintiffs had died before the appeal was fled against a
joint decree passed in their favour was heard by the lower
Appellate Court. The court without the knowledge of the
death had dismissed the appeal and had passed the decree.
It was held that the decree abates and cannot be considered
in law to be effective in any way and the proper procedure to
be followed by the High Court is to set aside the ineffective
decree and remand the case to the Court where abatement
has taken effect, keeping it open to the parties to move that
court for an opportunity to have the abatement set aside if
the parties could satisfy that they are so entitled in law.
The same issue was again considered in Achhar
Singh and Others v Smt. Ananti(4). While considering the

180 Sri Lanka Law Reports [2011] 1 SRI L.R.
appeal, reference had been made to the decision in State of
Punjab v Nathu Ram (Supra) and Swaran Singh Puran Singh v
Ramditta Badhwa (Supra). Referring to the above, Tewatia, J
had held that, in an appeal fled against an Appellate
decree, which was a nullity in that it was passed in
ignorance of the death of one of the defendants during the
pendency of that appeal and when that appeal had abated
totally, the proper course for the second Appellate Court is
to set aside the decree and to remand the case to the lower
Appellate Court. If there is an entitlement, it could be kept
open for the parties concerned to take steps to get the abate-
ment set aside. Expressing his view, Tewatia, J said that.
“In our opinion, the uniform procedure followed by the
other High Courts as referred to hereinbefore should be
accepted, namely, that the ineffective decree passed by
the Court of Appeal below should be set aside and the
appeal should be remanded to the said Court keeping
it open to the appellants to move the said Court for an
opportunity to have the abatement set aside if the
appellants could satisfy the said Court that they are so
entitled in law.”
In the present appeal, as clearly stated earlier, prior to
the judgment of the District Court dated 20.05.2005, the 15th
respondent who was the 16A respondent as well had died on
30.05.2004. No steps were taken for substitution of parties.
Thereafter, an appeal was taken before the High Court
and its Judgment was delivered on 13.10.2009. However the
2nd respondent had died prior to that on 06.09.2007.
Accordingly it is evident that both those judgments are
ineffective and therefore each judgment would be rejected as
a nullity. For the said reason the judgment of the High Court

Karunawathie V. Piyasena & Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 181
dated 13.10.2009 and the judgment of the District Court of
Kegalle dated 20.05.2005 are both set aside.
This case is sent back to the District Court of Kegalle
for the appellant to take steps according to law, for
substitution. The District Court is directed to hear the matter
expeditiously. Subject to the above, the appeal is dismissed.
I make no order as to costs.
Sripavan, J. – I agree.
imam, J. – I agree.
The judgment of the High Court and the judgment of the
District Court set aside. Case sent back to the District Court for
the Appellant to take steps according to law, for substitution
and the District Court is directed to hear the matter expedi-
tiously subject to the above directions.
Appeal dismissed.

182 Sri Lanka Law Reports [2011] 1 SRI L.R.
WIMALA PERERA v. KALYANI SRIYALATHA
SUPREME COURT
SHIRANEE TILAKAWARDANE, J.,
SRIPAVAN, J. AND
IMAM, J.
S.C. APPEAL NO. 51/2010
S.C.H.C.C.A.L.A. NO. 45/2010
WP/HCCA/COL/76/2002 (F)
D.C. COLOMBO NO. 8884/RE
MARCH 4TH, 2011
Landlord and Tenant – Tenant disputes landlord’s title – Refusal
to give up possession of the property at the termination of the
lease on the ground that the tenant acquired certain rights to the
property.
On or about 1st September 1996, the Plaintiff Appellant had purportedly
granted the Respondent leave and license to occupy the premises in
suit. By letter dated 30th September 1997 the said leave and license
was terminated and the Respondent was directed to hand over vacant
possession of the said premises. The Appellant claimed that the
Respondent failed to hand over the premises on the due date and has
remained in wrongful occupation, causing damages.
The Plaintiff Appellant instituted action in the District Court and after
hearing the parties the learned District Judge dismissed Appellant’s
action with costs. The Appellant appealed against the judgment of the
District Court to the High Court. The High Court by its judgment dated
12.01.2010 dismissed the appeal of the Appellant, and thereafter leave
to appeal was granted by the Supreme Court against the dismissal of
the appeal.
held:
(1) A lessee is not entitled to dispute his landlord’s title by refusing
to give up possession of the property at the termination of his
lease on the ground that he acquired certain rights to the property

Wimala Perera v. Kalyani Sriyalatha
SC (Shiranee Tilakawardene, J.) 183
subsequent to him becoming the lessee and during the period of
tenancy.
Per Shiranee Tilakawardane, J. –
“He must frst give up possession and then litigate about the
ownership he alleges.”
Cases referred to:
(1) R. W. Pathirana v. R. E. de S. Jayasundera 58 NLR 169
(2) Alvar Pillai v. Karuppan – 4 NLR 321
(3) Visvalingam v. D. De S. Gajaweera – 56 NLR 11
(4) W. M. J. Bandara v. J. Piyasena – 77 NLR 102
(5) Muthukuda v. Sumanawathie – 4 NLR 321
(6) Noorbhai v. Karuppan Chetty – (1925) 27 NLR 325
appeal from the Judgment of the Civil Appellate High Court of the
Western Province, Colombo.
Edward Ahangama for the substituted Plaintiff – Appellant – Petitioners
Ravindra Anawarathna with D. L. W. Somadasa for the Defendant –
Respondent – Respondent.
Cur.adv.vult.
July 18th 2011
tilakawardane, J.
Special Leave to Appeal was granted to the Substituted
Plaintiff – Appellant – Petitioner (hereinafter referred to as the
Appellant) on 15th October 2010 on the following question of
law:
1. Did the High Court err in law by entirely failing to
consider the vital admissions made by the Defendant –

184 Sri Lanka Law Reports [2011] 1 SRI L.R.
Respondent – Respondent (hereinafter referred to as the
Respondent) in her statement to the Grandpass Police
(marked as P3 and annexed to the annexed Record)?
2. Did the High Court err in law by determining that the
Respondent had proved on a balance of the probabilities
that she was a tenant of Matilda Gomez to the premises
bearing Assessment No: 147, Devos Lane, Grandpass
Road Colombo 14, from May 1995 and that such premises
had been transferred to her by the said Matilda Gomes in
1998 by the deed marked VI?
3. Has the High Court erred by deciding on the title to
the premises in suit in light of the fact that this is an
action for ejectment of an over-holding licensee, where the
title of the Appellant to the premises in suit is irrelevant
and the title to the respondent to the premises is not a
defence to the action.
4. Has the High Court erred in law by holding that Section
116 of the Evidence Ordinance does not apply to this case
merely because the Respondent has completely denied
being a licensee of the Appellant and further denied that
the Appellant has Prescriptive Title to the premises in
suit?
5. Is the judgment of the High Court not fairly based on the
totality of the evidence led in this action, particularly the
documents P1 and P3?
6. Is the judgment of the High Court not reasonably
supportable on the evidence led in this action?
The facts of the case in brief reveal that on or about
1st September 1996 the Appellant had purportedly granted
the Respondent leave and license to occupy the abovemen-

Wimala Perera v. Kalyani Sriyalatha
SC (Shiranee Tilakawardene, J.) 185
tioned premises in suit. By letter dated 30th September 1997
(marked as), the said leave and license was terminated and
the Respondent was required to hand over vacant posses-
sion of the said premises on the 30th November 1997. The
Appellant claimed that the Respondent failed to tender the
premises on the aforementioned date and has remained in
wrongful occupation thereafter, causing damages in the sum
of Rs. 30,000/- and continuing to cause damages at the rate
of Rs. 5,000/- per month.
The appellant instituted action by Plaint dated 16th
February 1998 in the District Court of Colombo, and after
hearing both parties the Learned District Court Judge
dismissed the Appellant’s action with costs. Being aggrieved
by the said judgment, the Appellant appealed there from
to the High Court of the Western Province exercising Civil
Appellate jurisdiction of Colombo. The said High Court of the
Western Province by its judgment dated 12th January 2010
dismissed the appeal of the Appellant. Leave to appeal was
granted by this court on the questions of law set out above.
The Appellant claimed that the High Court has erred in
law by deciding on the title to the premises in suit, referring to
multiple decisions which support a fnding that hold-over by
the Respondent tenant is against the law. In R. W. Pathirana
vs. R. E. De S. Jayasundara (1), Gratiaen, J. stated that
. . .In a rei vindicatio action proper the owner of
immovable property is entitled, on proof of his title, to a
decree in his favour for the recovery of the property and for
the ejectment of the person in wrongful occupation. “The
Plaintiffs ownership of the thing is of the very essence of
the action” (Maasdorp’s Institutes (7th Edition) Vol. 2, 96.)
It is, indeed, settled law in Sri Lanka that a lessee is not
entitled to dispute his landlord’s title by refusing to give up

186 Sri Lanka Law Reports [2011] 1 SRI L.R.
possession of the property at the termination of his lease on
the ground that he acquired certain rights to the property
subsequent to him becoming the lessee and during the
period of tenancy. In the case of Alvar Pallai vs. Karuppan(2),
it was noted that “K having been let into possession of the
whole of a certain land by A, it would seem that, by the
law of Ceylon, it is not open to K, even though he were
the owner of a moiety of it, to refuse to give up possession
of the whole to A, on the expiry of his lease. This and other
decisions as the decisions of V. Visvalingam vs. D. De S.
Gajaweera(3) and W. M. J. Bandara vs. J. Piyasena(4),
state that the correct protocol is to “give up possession
and then litigate about the ownership of his alleged half.”
(Vide Alvar (supra)).
However, a principal fact underlying all of the above-
mentioned cases cited by the Appellant to establish his point
is that, in each instance, there existed a clear, unequivocal
agreement, recognisable as valid under law between the
landlord and the tenant or licensee. This Court does not fnd
the relationship between the Appellant and Respondent in
the instant case to be either unequivocal or so clear.
The Appellant avers that it was on the basis of an agree-
ment marked as P1 (hereinafter referred to as Document
P1) that leave and license was granted to the Respondent
to possess the premises as a licensee of the Appellant. At
the time the initial plaint dated 16.02.1998 was fled in the
District Court, the Appellant came to court seeking posses-
sion of the Premises, purportedly as the clear owner and title
holder of these premises. However, in the replication fled on
24.09.1998, she changed her position claiming instead that
she was merely entitled to claim prescriptive rights to the
said premises. This is in direct contradiction to the position

Wimala Perera v. Kalyani Sriyalatha
SC (Shiranee Tilakawardene, J.) 187
taken by her in her initial Plaint in which she represented
that she was the owner of the premises.
It is signifcant that it was at about this time that she
claims to have entered into the purported agreement P1 dated
01.09.1996, claiming her rights as the owner of the said
premises, though it is clear from the replication that she
was indeed not the title holder of the premises. Given the
inconsistency regarding Appellant’s capacity during the
execution of Document P1, it is incumbent upon this
Court to determine whether Document P1 can, in fact, be
considered to have created a valid and binding agreement
under the law and made it possible for the Appellant to avail
his rights as a bona fde landlord. It is interesting to note that
the Appellant did not testify to court, despite the fact that
doing so could have provided the best evidence for determin-
ing the validity of Document P1.
According to Sri Lankan law several elements must be
satisfed to create a valid agreement between two or more
parties. The prerequisite of a contract, as enumerated by
C. G. Weeramanthy in The Law of Contracts, Volume I
(at page 84) are:
(a) An agreement between the parties;
(b) Actual or presumed intention of the parties to create a
legal obligation;
(c) due observance of prescribed forms or modes of
agreement;
(d) legality and possibility of the object of the agreement;
and
(e) capacity of the parties to contract.

188 Sri Lanka Law Reports [2011] 1 SRI L.R.
It is an elementary rule that every contract requires an
offer and acceptance. Therefore an offer or promise which is
not accepted, is not actionable [vide Justice Weerasooriya
in Muthukuda v. Sumanawathie,(5) at, 208, 209]. It has
been stated that it is an elementary proposition of law
that a contract is concluded when in the mind of each
contracting party there is a consensus ad idem, Noorbhai
v. Karuppan Chetty(6) (per Lord Wrenbury). Cumulatively
therefore an intention to create a legal relationship and
a consensus ad idem or meeting of the minds needs to
be in existence in order to establish a contract between the
parties.
The Respondent denies that she entered into Document
P1 or for that matter, any other agreement of leave and
license in regard to the premises in dispute, stating that
the son of Appellant had taken her signature on a blank
paper and then later falsely flled up its content. She further
alleges that she was deceived into signing the paper by the
son of the Appellant, Mr. Premadasa Perera, being told that one
Matilda Gomez had been arrested and that the Respondent’s
signature was needed for the purpose of releasing Matilda
Gomez on bail. The Respondent further testifed that she
had done this at the time Matilda Gomez was in fact, the
owner of the premises and she had given the Respondent
leave and licence to occupy the premises initially and had
subsequently sold the said premises to the Respondent
in terms of a Deed of Transfer numbered 40, dated 1st May
1998 Attested by Mr. Dhananjaya Tilakaratne Notary Public
and marked as V1 (hereinafter referred to as the “Deed of
Transfer”).
It is undisputed that Document P1 was in fact, drafted
by Mr. Perera, the son of the Plaintiff, as he corroborated

Wimala Perera v. Kalyani Sriyalatha
SC (Shiranee Tilakawardene, J.) 189
as much in his Testimony (see page 71 of the record). How-
ever, in his testimony Mr. Perera made out that Document
P1 was drafted pursuant to information given by the Respon-
dent, a fact she denies (see page 09 of the Record), and as
mentioned above, alleges that the Appellant took her
signature on a blank paper. This Court fnds this assertion
by Mr. Perera to be inconsistent with the substance of Docu-
ment P1. Mr. Perera claims that he wrote the letter according
to the instructions of the Respondent. He gave the reason that
he did so as the Respondent could not read or write – a fact
completely denied by her, Indeed the testimony and allegation
by Mr. Perera that the Respondent was illiterate was under-
mined by his own assertion that she had placed her signature
and address on Document P1 and this assailed the credibility
of Mr. Perera’s evidence.
Even if one was for a moment to consider that she was
illiterate, as Mr. Perera does not disclose in any part of
his oral evidence that he had ever read and explained the
contents of such letter to the Respondent the evidence
discloses clearly that he in any event never communicated its
contents to her.
Apart from the above inconsistencies in Mr. Perera’s
submissions, his testimony lacks a general creditworthiness
when considering the implausibility of his assertions even
with respect to circumstances peripheral to the main issue.
One can only wonder why Mr. Perera and his mother would,
when leaving occupation of the premises in suit leave behind
a Gas cooker, a gas cylinder, chairs and several other items
which, even if not taken alone, would in the aggregate be
considered of signifcant value. Mr. Perera’s submission of
this (see Page 60 of the Brief) is put simply, improbable.

190 Sri Lanka Law Reports [2011] 1 SRI L.R.
The Appellant alleged that the aforementioned Matilda
Gomez, the true titleholder to the property, was not in a proper
state of mind at the time that she entered into the Deed of
Transfer (VI). However, once Matilda Gomez was sworn in
and gave evidence in court, the Appellant did not pursue the
matter any further and abandoned claims of ownership. In
fact, it is to be noted at this juncture that the Appellant did
not even testify in this case at all. No valid reason was given
as to why she did not testify in Court, a surprising action
considering the obvious burden upon her to establish the
facts necessary for her position to prevail as well as the fact
that she is in the position to best provide such evidence.
The credibility of evidence given in respect of the
Appellant in relation to Document P1 is further assailed by
Ms. Gomez, who has proved by a deed of gift numbered 7132,
dated 26th July 1964 Attested by Mr. Alexander Seneviratne
Notary Public and marked as V2 (hereinafter referred to as
the “Deed of Gift”) as well as the subsequent Deed of Transfer,
that she had rights over the premises in suit as its owner
in 1995 when she leased it to the Respondents mother. The
Deed of Gift gives details of the premises being gifted to
Matilda Gomez by her parents, Hettiaratchige Milfred Perera
and Pattiyage Joseph Gomez.
Ms Gomez gave evidence to the District Court asserting
that she gave the premises in suit on lease to the Respon-
dent’s mother for a monthly sum of Rs. 75/- (Vide page 116
of the Record). She also stated that she had thereafter sold
the premises to the Respondent for a sum of Rs. 100,000/-
which was paid in installments. This evidence corroborates
the testimony of the Respondent that she entered into a lease
agreement with Ms. Gomez on the said premises in suit in
1995 (Vide page 86 of the Record) and had subsequently
purchased the same and assails the evidence of Mr. Perera.

Wimala Perera v. Kalyani Sriyalatha
SC (Shiranee Tilakawardene, J.) 191
When the totality of the evidence is considered, this
Court necessarily concludes that the evidence given by
the Appellant is inconsistent and lacking in credibility. In
light of this conclusion, this Court fnds that Document P1
cannot be considered to have created a legally valid leave
and license agreement in law between the Appellant and the
Respondent.
This Court therefore holds that there was no error in the
Judgment of the Civil Appellate High Court of the Western
Province Holden in Colombo dated 12th January 2010 and
answers all the questions of law set out above in favour of the
Respondent.
In these circumstances this Court dismisses this Appeal
with a sum of Rs. 5000/- as costs to be paid by the Appellant
to the Respondent.
Sripavan, J. – I agree.
imam, J. – I agree.
Appeal dismissed.

192 Sri Lanka Law Reports [2011] 1 SRI L.R.
UDAGAMA AND 2 OTHERS v. CHANDRA FERANANDO,
INSPECTOR GENERAL OF POLICE AND 5 OTHERS
SUPREME COURT
TILAKAWARDENA, J.,
AMARATUNGA, J. AND
MARSOOF, J.
S.C. APPLICATION NO. FR 455/2005
JULY 21ST, 2011
Constitution – Article 12(1) – Right to equality – Articles 13(1) and
13(2) – Freedom from arbitrary arrest, detention and punishment –
Article 14(g) – Freedom of speech, assembly, association, occupation,
movement – Article 126 – Fundamental rights jurisdiction – Excise
Ordinance – Section 33, 35, 37, 46g, 47, 48(a), 48 (c), 52(1) a
The 1st and 2nd Petitioners were the partners of Don Patrick Wine Shop
situated in Pussellawa, that had a license issued under the Excise
Ordinance to sell foreign liquor and locally made malt liquor, but not to
be consumed on the premises.
On 10.10.2005 the 3rd Petitioner was a salesman of the Wine Shop. The
3rd and 4th Respondents were the Police Offcers who arrested the 3rd
Petitioner for allegedly selling arrack to a customer to be consumed in
the premises. The 3rd Petitioner was taken to the Police Station where
he was kept in Police custody for several hours before being released
on Police bail. The 3rd Petitioner’s position is that in any event, the sale
of liquor for consumption in the premises is not an offence under the
Excise Ordinance.
The Petitioners have contended that by the raid and the arrest of the 3rd
Petitioner, the Respondent Police offcers have violated the fundamental
rights guaranteed to the 1st and 2nd Petitioners by Articles 12(1)
and 14(g) of the Constitution and the 3rd Respondent’s fundamental
rights guaranteed by Articles 12(1), 13(1), 13(2) and 14(1) g of the Con-
stitution.

Udagama and 2 Others v. Chandra Feranando, Inspector General of Police
SC and 5 others (Gamini Amaratunga J.) 193
In terms of the Excise Notifcation No. 509, all Police offcers have lawful
power to perform the acts and duties set out in Sections 33, 35, 37 and
48 (a) of the Excise Ordinance.
held:
(1) As a result of the combined effect of clause 1(11) of the Excise
Notifcation 509 read with Sections 35 and 46 (g) of the Excise
Ordinance, Police Offcers have the power to detect the offence
of selling an excisable article in contravention of the conditions
of a license issued under the Excise Ordinance and to arrest the
offender without a warrant.
(2) Although the Police have the power to detect and apprehend a
person who had committed an offence under Section 46(g), in view
of the provisions of Section 52(1) (a) of the Excise Ordinance, the
Police have no authority to initiate proceedings before a Magistrate
against an offender. Such offences, commonly called technical
offences, have to be referred to an excise offcer.
(3) When the Minister, by clause 1(11) of the Excise Notifcation,
has appointed all offcers of the Police Force to perform acts and
duties mentioned in Section 35 of the Excise Ordinance, offcers
of all ranks of the Police force have the power to arrest without
a warrant any person found committing an offence, in any place
other than a dwelling house, punishable under Section 46 or 47 of
the Excise Ordinance.
appliCation under Article 126 of the Constitution
Ronald Perera with D. Johnthasan for Petitioners
Harshika de Silva, State Counsel for the Respondents
Cur.adv.vult
July 21th 2011
Gamini amaratunGa J.
The 1st and 2nd petitioners are partners of Don Patrick
Wine Shop situated in Pussellawa. The 3rd petitioner is one
of their salesmen. The said wine stores has a licence issued

194 Sri Lanka Law Reports [2011] 1 SRI L.R.
under the Excise Ordinance for the sale of foreign liquor
including locally made malt liquor not to be consumed on the
premises.
According to their petition, on 10.10.2005 the 3rd and 4th
respondents who were at that time police offcers attached to
the Pussellawa Police station arrested the 3rd petitioner for
allegedly selling arrack to a customer (a decoy said to have
been sent by the 3rd and 4th respondents) to be consumed on
the premises. The 3rd petitioner was taken under arrest to the
police station where he was detained for several hours before
releasing him on police bail.
The 3rd petitioner’s position is that there was no such sale
as alleged by the police. The petitioners’ position is that in
any event, the sale of liquor for consumption in the premises
is not an offence for which the police offcers are empowered
by law to arrest any offender or to take any action under the
Excise Ordinance. The petitioners have therefore contended
that by the said raid and the arrest of the 3rd petitioner the
respondent police offcers have violated the fundamental
rights guaranteed to the 1st and 2nd petitioners by Article
12(1) and 14(g) of the Constitution and the 3rd petitioner’s
fundamental rights guaranteed by Articles 12(1), 13(1), 13(2)
and 14(1) (g) of the Constitution.
This Court has granted leave to proceed for the alleged
violation of the petitioners fundamental rights guaranteed by
Articles 12(1), 13(1), 13(2) and 14(1) (g) of the Constitution. In
this application the task of this Court is not to decide whether
the detection of the alleged offence was a result of a genuine
raid or whether it is a fabrication of the police. The question
to be decided by this Court is whether the police offcers
have lawful power or authority under the provisions of the
Excise Ordinance to detect and arrest a person for the alleged

Udagama and 2 Others v. Chandra Feranando, Inspector General of Police
SC and 5 others (Gamini Amaratunga J.) 195
violation of a condition of the license by selling liquor to be
consumed in the premises. In order to decide this question
it is necessary to examine the provisions of the Excise
Ordinance and Excise Notifcations issued thereunder.
The position of the petitioners is that police offcers
do not have power or authority to detect violations of the
conditions of the licence issued under the Excise Ordinance.
In view of the position taken by the petitioner, what this Court
has to decide is whether police offcers have powers to de-
tect violations of the conditions of a licence issued under the
Excise Ordinance.
Section 8(b) of the Excise Ordinance (Cap 52 C. L.E.
1956 Revision) provides that the Minister may by Notifcation
“appoint offcers or persons to perform the acts and duties
mentioned in sections 33, 35 and 48(a).”
In pursuance of the power vested in the Minister by
the aforesaid section 8(b), Excise Notifcation No. 509 dated
9.2.1963 had been issued by the Minister and published in
the Government Gazette of 22.02.1963. By clause 1(ii) of the
said Notifcation, the Minister had appointed “all offcers of
the Police Force to perform the acts and duties mentioned in
sections 33, 35 and 48(a) of the Excise Ordinance through-
out the Island.” By clause 8(i) of the same Notifcation, the
Minister had ordered that the powers and duties of an
Inspector of the Excise Department under section 37 of the
Excise Ordinance shall be exercised by “all offcers of the
Police Force throughout the Island.”
Thus the aforementioned Excise Notifcation No. 509
appoints all offcers of the Police Force to perform all acts and
duties mentioned in sections 33, 35 and 48(a) of the Excise
Ordinance throughout the Island and orders that the powers

196 Sri Lanka Law Reports [2011] 1 SRI L.R.
and duties of an Inspector of the Excise Department under
section 37 of the Excise Ordinance shall be exercised by all
offcers of the Police Force throughout the Island.
In terms of the Excise Notifcation No. 509 referred to
above all police offcers have lawful power to perform the
acts and duties mentioned in sections 33, 35, 37 and 48(a)
of the Excise Ordinance. In order to decide the question to be
decided in this application, it is necessary to examine the
legal position arising from the operation of the aforesaid
provisions of the Excise Ordinance in combination.
Section 48(a) of the Excise Ordinance deals with the
offence of the failure of the licence holder or any person
acting on his behalf to produce the licence when a demand
for its production has been made by a person who is duly
empowered to make such demand. In this case there is no
allegation that the salesman present at the time of the raid
failed to produce the licence on demand made by the police.
Accordingly section 48(1) has no relevance to this applica-
tion.
Section 33 of the Excise Ordinance empowers the Excise
Commissioner or a Government Agent or any excise offcer
not below such rank as the Minister may prescribe, or any
police offcer duly empowered in that behalf to enter and
inspect places of manufacture, bottling and sale of any
excisable article. In view of the Excise Notifcation No. 509
the police offcers are entitled to inspect a place where an
excisable article is sold. This is a general power of inspection.
In the present case according to the respondent, their raid
had been carried out not as general inspection but for the
specifc purpose of detecting a violation of a condition of the
licence. Accordingly section 33 is not relevant to the present
application.