037-SLLR-SLLR-2005-V-3-FELIX-PREMAWARDANE-vs.-BASNAYAKE-AND-OTHERS.pdf
CA
Felix Premawardane vs
Basnayake and Others
205
FELIX PREMAWARDANEVSBASNAYAKE AND OTHERSCOURT OF APPEAL.
SOMAWANSA, J(P/CA).
WIMALACHAIMDRA, J.
CALA 50/2004 (LG).
MAY 3,2005.
Civil Procedure Code, section 16 – Court making order to comply with section16- Not complied with – Injunction refused – Application made again after along period – Court refusing such application – Validity?
Plaintiff-petitioner obtained an enjoining order but was asked to comply withsection 16. As the plaintiff-petitioner had not complied with section 16-interiminjunction was refused.
The defendant-respondent filed answer and the plaintiff – petitioner on
sought permission to comply with the earlier order made to complywith section 16 on 25.10.2001
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The Trial Judge refused the said application on the ground of delay.
HELD:
When Court granted permission for such publication on – 25.10.2001the Court did not specify a particular date by which such publication wasto be made.
Justice demands that such an application should be allowed,specifically so when the application is for to carry out a step for which thecourt had already granted permission.
As the trial had not commenced in the interests of justice, it would bemost appropriate if the court had allowed the plaintiff-petitioner’sapplication to comply with section 16.
APPLICATION for leave to appeal with leave being granted.
Cases referred to :
Ranasinghe vs. Nandasena Abeydeera 1997 Sri LR 41
Suppiaihpillai vs. Ramanathan 39 NLR 30.
Lucky Wickremanayake with Mohamed Adamelly for the petitioner.
Thilan Liyanage with Hessan Manikhewa for 1st, 4th, 5th, 7th, 8th, 10th, 12th,
and 13th respondents.
Cur. adv. vult.
June 3,2005.
ANDREW SOMAWANSA, J. (P/CA).This is an application for leave to appeal against the order of the learnedDistrict Judge of Colombo dated 23.01.2004 marked X6(a) wherein thelearned District Judge refused permission to publish notice of the instantaction by newspaper advertisement and or to comply with the Court’s ownprevious order dated 25.10.2001.
This Court having heard both parties has made order granting leave onthe question whether the learned District Judge should have consideredthe powers vested in court to grant permission to the plaintiff – petitioner to
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Felix Premawardane vs
Basnayake and Others ( Andrew Somawansa, J. (P/CA))
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comply with section 16 of the Civil Procedure Code notwithstanding hisfailure to act on the directions given by Court to publish the notice in termsof section 16 of the Civil Procedure Code. Thereafter both parties haveagreed to resolve the matter by way of written submissions and both partieshave tendered their submissions.
The relevant facts are, on an application of the counsel for the plaintiff -petitioner Court made order as follows:
granting perm ission to the plaintiff – petitioner to notice the othermembers of the Nugegoda Baptist church by way of newspaperadvertisement in terms of section 16 of the Civil Procedure Code.
granting an enjoining order as prayed for and;
to issue notice of injunction and summons on the defendants -appellants.
The defendants -respondents filed objections to the issue of an interiminjunction and the extension of the enjoining order and at the inquiry bothparties agreed to tender written submission. The Learned District Judgeby his order dated 18.10.2002 refused to grant an interim injunction primarilyon the basis that the plaintiff – petitioner has failed to publish notice interms of section 16 of the Civil Procedure Code. The plaintiff – petitionerpreferred an application for leave to appeal to this Court which was numberedCALA 439/02 wherein the substantial question of law that was to be decidedwas whether the plaintiff – petitioner’s failure to publish notice of the actionin the newspapers as permitted by court on 25.10.2001 was fatal to thegrant of interim relief. This matter was inquired into and this Court by itsorder dated 10.12.2003 refused leave to appeal. However Court took theview that the Plaintiff – petitioner is entitled to make an application to theDistrict Court for leave to comply with the order of Court dated 25.10.2001and also that it is for the learned District Judge to consider that applicationafter hearing both parties. The aforesaid order is marked X3.
In the meantime the defendants – respondents had filed their answerson 10.12.2003 and consequently to the aforesaid order made by this Courtmarked X3, the plaintiff – petitioner preferred a motion to the District Court
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seeking permission of Court to comply with the Court’s order dated
permitting the publication of notice of the action in thenewspapers. The said application was supported on 23.01.2004. Thedefendants-respondents objected to the aforesaid application of the plaintiff- petitioner and at the inquiry counsel appearing for the respective partiesmade oral submission. At the conclusion of the inquiry the learned DistrictJudge made order refusing the application of the plaintiff – petitioner. It isfrom the aforesaid order that the plaintiff – petitioner has preferred thisleave to appeal application. Leave to appeal was granted by this Court on
on the questions of law formulated by this Court as aforesaid.
It is to be observed that the order of the learned District Judge wasbased on the ground that:
The plaintiff – petitioner made an application and had been givenpermission to take steps to comply with section 16 of the Civil ProcedureCode on 25.10.2001 and that up to 23.01.2004 the plaintiff – petitioner hasfailed to take steps in terms of section 16 of the Civil Procedure Code.Accordingly the learned District Judge following the decision in Ranasinghevs. Nandanie Abeydeera^ wherein this Court held that it is imperative toissue notice as contemplated by section 16 of the Civil Procedure Codehad rejected the aforesaid application. The said judgment delivered byanother division of this Court followed the decision in Suppaiahpillai vs.Ramanathan(2) wherein the head note reads:
Where plaintiffs, representing a number of persons, sued thedefendants for the return of money held by the latter for thebenefit of the plaintiffs and those whom they represented –
Held, “That the plaintiffs had a common interest in bringing theaction within the meaning of section 16 of the Civil ProcedureCode.
Where the Court in giving permission to the plaintiffs to sue onbehalf of the others directed them to give the required noticeunder the section in two publications, –
Held, that failure to comply with the order was a fatal irregularity.”
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My considered view is that none of the aforesaid decisions would applyto the facts of this case for unlike in those two cases the plaintiff – petitionerin paragraph 4 of his plaint specifically averred that:
‘The defendants are made parties hereto in reference to theacts hereinafter morefully described, committed by them inthe capacity of Committee Members and as representing themembership of the Nugegoda Baptist Church, it beingimpractical and inexpedient to cite the entire membership ofthe said Church as party defendants hereto".
These facts were brought to the notice of Court and an application wasmade and the Court granted permission to notice the other members ofthe Nugegoda Baptist Church by way of newspaper advertisement in termsof section 16 of the Civil Procedure Code. It is to be noted that when Courtgranted permission for such publication the Court did not specify a particulardate by which such publication was to be made. On the material placedbefore us it appears that trial had not commenced at the time the plaintiffspetitioner moved Court to obtain permission to comply with section 16 ofthe Civil Procedure Code in terms of permission granted by Court on
25.10.2001.
On an examination of the facts and circumstances of this case, I amunable to agree with the order of the learned District Judge in refusing theapplication made by the plaintiff – petitioner to comply with the provisionscontained in section 16 of the Civil Procedure Code before the trialcommenced. If the trial commenced without such notice then certainlythe failure on the part of the plaintiff – petitioner to comply with the provisionsof Section 16 would be a fatal irregularity. However as in the instant casewhere an application is made to Court seeking permission as per theorder made by this Court to comply with the provisions contained insection 16 of the Civil Procedure Code justice demands that such anapplication should be allowed, specifically so when the application is forto carry out a step for which the Court had already granted permission.
In the interests of justice, it would be most appropriate if the learnedDistrict Judge had allowed the plaintiff – petitioner to comply with section16 of the Civil Procedure Code as the trial had not commenced and no
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prejudice would be caused to any party in allowing this application to complywith the provisions contained in section 16 of the Civil Procedure Code.
For the foregoing reasons and in the interests of justice, I would answerthe questions of law formulated by Court in the affirmative. Accordingly Iwould set aside the order of the learned District judge dated 23.01.2002and direct the learned District Judge to grant the plaintiff – petitonerpermission to comply with the requirement in section 16 of the CivilProcedure Code and thereafter proceed to hear and determine the action.The defendants – respondents will pay a sum of Rs. 5000 as costs of thisapplication to the plaintiff – petitioner.
WIMALACHANDRA, J. -I agree.
Appeal allowed.
Trial judge directed to grant permission to the plaintiff petitioner to complywith section 16; thereafter to hear and determine the action.