007-SLLR-SLLR-2008-V-2-KARUNARATNE-AND-ANOTHER-v.-LINGAM-AND-OTHERS.pdf
Karunaratne and another v
CALingam and others (Abdul Salam. J.)87
KARUNARATNE AND ANOTHERv
LINGAM AND OTHERSCOURT OF APPEALABDUL SALAM, J.
CA 830/2003 (F)
DC WELIMADA 115/LFEBRUARY 10, 2004
Civil Procedure Code – Case laid by — Subsequently case restored to the trialroll – Appeal? Is it a final order? Restoring to Trial roll – Duties on Court?
Held:
The impugned order cannot be identified with a single characteristic of afinal order.
In the event of a case being laid by ,the duty of restoring it to the trial roll iscast on the District Judge and not on the parties.
APPEAL from an order of the District Court of Welimada.
Cases referred to:
Samsudeen v Eagle Insurance Co. Ltd. 64 NLR 372.
Siriwardena v Air Ceylon Ltd. 1984 1SLR 286
Sanath Jayatilleke for defendant-appellants.
Hemasiri Withanachchi for plaintiff-respondent.
November 12, 2007
ABDUL SALAM, J.
The plaintiff-respondents instituted action in the District Courtof Welimada against the 1st and 2nd defendant-appellantspraying inter alia for a declaration of ownership to the subjectmatter and for the ejectment of the defendant-appellants.
When the case was taken up for hearing on 29.1.1987 learnedCounsel for the plaintiffs-respondents moved to have the case
88Sri Lanka Law Reports12008) 2 Sri L.R
laid by as the 1st and 2nd plaintiff-respondents were away inJaffna and the 2nd defendant-appellants was unable to travelfrom Jaffna due to ill health. Accordingly, the learned DistrictJudge made order to lay-by the case.
The plaintiff-respondents on 3-1-2003 applied to Court tohave the case restored to the trial roll and to have the same fixedfor further trial. The defendant-appellant appeared upon noticeand opposed the application on the ground that litigation hascome to an end after the order made to lay-by the case. Thedefendants-appellants further took up the position that in anyevent they have acquired a prescriptive title to the subject matterin question during the period in which the case had been laid-by.The learned District Judge by his order dated 28.8.2003 allowedthe application of the plaintiffs-respondents and restored thecase to the trial roll. The present appeal has been preferredagainst the said order dated 28.8.2003.
In arriving at this conclusion the learned District Judge hadfollowed the guideline laid down in Samsudeen v Eagle StarInsurance Co. Ltd.O) In that case it was laid down that in theevents of a case being laid-by, the duty of restoring it to the trialroll is cast on the District Judge and not on the parties.
The question that arises for consideration is whether theimpugned order satisfies the requirements of a final order torender it appealable. In the case of Siriwardena v Air CeylonLtdA2) the principles laid down to ascertain the nature of an orderas to its finality have been correctly applied by the learnedDistrict Judge.
Upon a careful consideration of the impugned order it is quiteobvious that it cannot be identified with a single characteristic ofa final order as has been explained in a series of judgments.
For the above reasons even if it is to be assumed that theorder concerned is appealable, yet there is no reason toconclude that the order of the learned District Judge to restore' the case to the trial roll is illegal or contrary to law.
In any event, since the order dated 28.8.2003 is necessarilyan interim order, in my opinion the defendents-appellants have
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no right of appeal. For the above reasons I affirm the order of thelearned District Judge dated 28.8.2003 and dismiss the appealwith costs.
Appeal dismissed.