SIVAPATHALINGAM v. SIVASUBRAMANIAM

043-SLLR-SLLR-1990-V-1-SIVAPATHALINGAM-v.-SIVASUBRAMANIAM.pdf


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SIVAPATHALINGAM
v.SIVASUBRAMANIAM
SUPREME COURT.
FERNANDO, J„ DHEERARATNE, J. AND GOCNEWARDENE, A. J.
S. C. APPEAL No. 31/89 – S. C. SPECIAL L. A. No. 75/89 – C. A. APPLICATIONNo. 376/89
JANUARY 23, 24 AND 25, 1990.
Injunction under Article 143 ot the Constitution – Wrongful dispossession under injunction- Suspension of injunction – Inherent power of Court to correct its errors resulting in wrongsto a suitor.
On Ihe application of the petitioner-appellant Sivapathalingam. the Court of Appeal on26.5.88 issued an injunction under Article 143 of the Constitution valid until the petitioneris able to file an action in the D. C. Jaffna or for six months in the first instance whicheveris earlier, restraining the respondents from preventing the petitioner from entering the landdescribed in the Schedule. On 29.6.1989 the Court of Appeal stayed the operation of theinjunction granted by it upon an ex parte application by the respondent. The respondentclaimed he was in lawful possession of the land on an indenture of lease but the petitione;had him ejected upon obtaining the injunction and on entering into possession demolishedthe parapet wall and gate on the East which had been in existence prior to August, 1988.Upon the suspension of the injunction; the petitioner-appellant filed papers complainingagainst the suspension without notice to him. On 25 July, 1989 the Court of Appeal heardargument and on 5th September, 1989 dissolved and discharged the injunction. It was theinjunction issued by the Court of Appeal that brought about the dispossession of therespondent and placing in possession of the appellant.
Held :
A Superior Court has jurisdiction in the exercise of its inherent power to direct a Courtinferior to it to remedy an injury done by its act.
Therefore when the injunction issued by the Court of Appeal on 26.5.1989 wasdissolved it was competent for the Court to direct that the appellant who had obtained
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possession of the property on the strength of the injunction by displacing the respondent,be in turn displaced and possession handed back to the respondent.
This power, an aspect of the Court’s inherent power, could have been exercised on theday on which judgment was delivered on 5th September, 1989 or as was done in this caseon 27th October, 1989.
A Court whose act has caused injury to a suitor has an inherent power to makerestitution. This power is exercisable by a Court of original jurisdiction as well as by aSuperior Court.
Cases referred to :
Mohamado v. Ibrahim 2 NLR 36.
Buddhadasa v. Nadarajah 56 NLR 537.
Sundaralingam v. Attorney-General and Others 75 NLR 316.
Asiriwathan v. Mudalihamy 35 NLR 26.
Roger and Others v. The Comptoir D'Escompte de Paris (1871) LR 3 PC 465.
Sirinivasa Them v. Sudassi Them 63 NLR 31, 34.
Salim v. Santhiya 69 NLR 490.
Wickremanayake v. Simon Appu 76 NLR 166.
Perera v. The Commissioner of National Housing 77 NLR 361
Silva v. Amerasinghe 78 NLR 537
Mowjood v. Pussedeniya 11987} 2 Sri LR 287, 298
Moosajees Ltd. v. Fernando 68 NLR 414, 419
BatuwattaPiyaratane TissaTherov.LiyanageNorisJayasingheSC39/73-SupremeCourt Minutes of 6.2.1976
Petman v. Inspector of Police, Dodangoda 74 NLR 115
Ehambaram and Another v. Rajasuriya 34 CLW 65
Ganeshanathan v. Vivienne Goonawardene [1984] 2 Sri LR 319
Dorasami Ayyar v. Annasamy Ayyar and Others (1899) ILR 23 Madras 306
APPEAL from judgment of the Court of Appeal.
H. L. de Silva, P. C. with S. Mahenthiran for appellant.
Eric Amerasinghe , P. C. with Tilak W. Goonewardene and A. Vinayagamoorthy forrespondent.
Cur. adv. vult.
February 21,1990.
S. B. GOONAWARDENE, A. J.This is an appeal, with special leave granted by this Court, against anorder of the Court of Appeal made on the 27th October, 1989, subsequentto proceedings had after an invocation of the jurisdiction conferred uponit by Article 143 of the Constitution, the material part of which readsthus
“143. The Court of Appeal shall have the power to grant and issueinjunctions to prevent any irremediable mischief which may ensue
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before a party making an application for such injunction could preventthe same by bringing an action in any Court of FirstInstance
The present appellant it was who as petitioner invoked such jurisdictionwith papers filed by him on 18th May, 1989, which contained avermentsto the following effect :* that one S. Parameshwaran was the originalowner of the land called Puliyadi Uppukulam Thalaimadam situated inJaffna in extent 7 Ims. V. C. and 8.7/10 kls. and depicted as Lot 2 in surveyplan No. 170 of 12.12.61 prepared by S. Ehamparam, Licensed Surveyor(Document marked A): that the said Parameshwaran by deed of gift No.12603 of 19.6.1978 donated this property to his daughters Bavani,Ramani and Shamini and his son Kiritharan (Document marked B withtranslation Bl) : that subsequent to such deed of gift the saidParameshwaran and his daughter Bavani by an indenture of lease No.2917 dated 20.9.81 (Document marked Cjpurported to lease to the 1strespondent (that is the respondent in this appeal who will hereinafter bereferred to as ‘the respondent') and to one S. Naguleswaran subject tothe covenants and conditions therein contained a divided extent of 2 Ims.V. C. on the North of the land shown as Lot 2 in the said Plan marked A;that the said Parameshwaran and Bavani however were not able to placethe respondent and the said Naguleswaran in possession of the said landinasmuch as the extent purported to be leased was an undivided extentout of a larger land and as the 2nd respondent in the appellant'sapplication to the Court of Appeal and another person obstructed andprevented the respondent and the said Naguleswaran from entering theland; that since the respondent and the said Naguleswaran were notplaced in possession of any portion of the said land they failed andrefused to pay the monthly lease rent payable under the indenture oflease marked C and thereafter Parameshwaran and Bavani terminatedthe lease in terms of clause 12 contained in such indenture of lease;that by Plan No. 835A dated 21.8.88 made by T. Mahenthiran, LicensedSurveyor (Document marked D) Lot 2 in the Plan marked A wassubdivided and an extent of 2 Ims. V. C. was carved out from the northernside of Lot 2 in Plan No. 1967 (this apparently is an erroneous referenceto Plan No. 835A marked D); that the said Bavani and Ramani with theirrespective husbands and the said Shamini by deed No. 3105 of 16.3.1989(Document marked E) sold and transferred to three persons, P.
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Parameshwaran, P. Yogeswaran and P. Rajeswaran an extent of 3/4thIm. V. C. on the southern side of Lot 2 in the said Plan 835A marked B;that another portion in extent one half lacham V. C. was sold by the samevendors on deed No. 3125 dated 2.4.1989 (Document marked F) to theappellant with title to the balance 3/4 Im. remaining in the hands of suchvendors and that the respondent acting jointly and in concert with the 2ndrespondent the occupier of Lot 1 in the said Plan No. 170 marked Aforcibly and wrongfully erected a wall along the Eastern boundary of Lot2 in the said plan 835A marked D and installed a gate thereon and withthe assistance of security guards was wrongfully preventing the appellantand the purchasers of the remaining portion of the land and the other co-owners from entering the said Lot 2 in plan No. 835A marked D.
Upon the basis that such conduct was wrongful and unlawful andamounted to a violation of the appellant’s rights as an owner of a portionof the said land, that a cause of action had therefore accrued to him toobtain a declaration of his rights, the appellant sought from the Court ofAppeal an injunction in the following terms
“ That Your Lordship’s Court be pleased to grant and issue aninjunction in terms of Article 143 of the Constitution, valid until thepetitioner is able to bring an action in the District Court of Jaffna, or forsix months in the first instance, whichever is earlier, restraining therespondents from preventing the petitioner from entering the said landdescribed in the schedule hereto and from ejecting the petitionertherefrom and from constructing any buildings thereon or damagingthe premises”.
The jurisdiction of the Court of Appeal given to it by Article 143 of theConstitution was invoked on the basis.that for about two years the DistrictCourt of Jaffna, being the Court of competent jurisdiction had not beenfunctioning, thus preventing the appellant from filing an action andobtaining his relief by way of an injunction from that Court.
Since the relief asked for from the Court of Appeal was with respect tothe property described in the schedule to the petition of the petitioner theappellant, it is convenient at this point to make reference to the descriptionof such property as contained in such schedule but before doing that theobservation must be made that the description adopted while being
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materially different from that in the appellant's title deed marked F is farfrom helpful in making a clear and precise identification of the area ofproperty in respect of which this injunction was sought. The schedule,adopting as far as possible the words used, reads roughly thus :
u The land situated atin extent 7 Ims. V. C. and 8.7
kls. depicted as lot 2 in Plan No. 179 dated 12.12.71 made by S.
Ehamparam Licensed SurveyorOut of this a divided
and defined extent of 2 Ims. V. C. on the north which divided and
defined portion is bounded on the east by north by
west byand south byout
of the whole land herein contained within these boundaries an undividedextent of 3/4th Im. V. C. or 131/2 kls. On the southern side
The said extent of 2 Ims. V. C. is now depicted as Lot 2 in plan
No. 835A dated 21.8.88 made by T. Mahendiran Licensed Surveyor".
Upon these papers filed by the petitioner the Court of Appeal havingheard Counsel on 26.5.88 issued an injunction in the terms prayed for asset out above.
I would pause in the narrative of events to say at this point that thereis good ground for saying as was strongly contended before us byCounsel for the respondent that this injunction should not have issued inthe first place. Apart from the fact that the attendant circumstances asshown on the papers filed did not indicate any “irremediable mischief"there was another matter which I see at a glance which the Court ofAppeal perhaps missed which should have made it hesitate to grant suchinjunction.
Upon my understanding of the schedule to the petition which I havealready referred to as not being consistent with the appellant's title deed'F' the injunction issued was with respect to an extent of 3/4 Im, V. C. or13 1/2 kls., whereas the appellant-petitioner's title as claimed by him onsuch document F was with respect to one half lacham V. C. only.
To resume the narrative of events, on 29th June, 1989 the Court ofAppeal had stayed the operation of the injunction granted by it upon anex parte application made by the respondent. The papers for thatpurpose, or more correctly for the purpose of securing a discharge of the
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injunction issued, had been filed on 19th June, 1989. Such paperscontained averments to the following effect: that the respondent uponthe authority of the subsisting indenture of lease in his favour was inlawful possession of the property until he was ejected soon after 26thMay, 1989 by the appellant on the strength of the Interim Injunction issuedby the Court of Appeal; that the appellant entered the entire landdescribed in the schedule to his petition after demolishing the parapet walland gate on the East which had been in existence prior to August 1988the effect of which was that he had been subjected to an executionprocess by which he was physically dispossessed of -3/4 Im. V. C.; thatthe lessors to him were the plaintiffs in the District Court of Jaffna in caseNo. L/1792 wherein he was made a necessary party the plaint in whichdemonstrates that he had been put in possession of what was leased tohim (Document marked Y); that he the respondent himself as plaintiff filedcase No. L/1765 in the District Court of Jaffna in respect of the sameproperty against the same defendant as in the earlier case L/1792 andobtained an enjoining order from Court (Document P4); that both caseswere settled in or about 1987 by the respondent subleasing to thedefendant in these cases a portion of the property leased to him (therespondent) exercising an authority to sublease granted to him by theindenture to issue in his favour marked C; that Plan No. 835A producedby the petitioner-appellant marked D was a fabricated document asevidenced by an affidavit (Document marked P6) affirmed to by SurveyorJ. Mahendiram who purportedly was the one who prepared such plan tothe effect that he never did so and that the true plan prepared by himbearing No. 835 and bearing the date 21 st August, 1988 was as reflectedon a copy thereof produced marked K and that in propounding plan No.835A before the Court as a genuine document upon which the injunctionwas granted a fraud was practised on the Court which had the effect ofvitiating all proceedings.
The respondent in the result asked that the injunction issued by theCourt be dissolved and discharged. Of importance to note here is that therespondent sought the additional relief of a declaration.of his right toresume and remain in possession of the property from which he had beenevicted by the injunction issued by the Court of Appeal till such time as hemight be evicted therefrom on an order of the District Court of Jaffna inthe action proposed to be filed by the petitioner-appellant; and for that
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purpose he asked the Court to cause eviction of all persons who hadtaken possession of the property on or after the 26th May, 1989 includingthe petitioner-appellant, his servants, agents, dependants and all personsclaiming rights under him.
Upon the suspension of the injunction the appellant filed a statementof objections dated 21 st July , 1989 complaining of such suspension uponan order made without notice to him.
On the 25th July, 1989 the matter had been considered by the Courtof Appeal subsequent to which judgment was delivered dissolving anddischarging the injunction which the Court had issued. As I understandthe judgment of the Court of Appeal it seems that it came to the conclusionthat the issue of the injunction was based upon the assertion of theappellant that the respondent was not in possession lawfully upon thelease in his favour and that acting upon such assertion as the Court did.resulted, as the papers filed by the respondent showed, in a prematureand not accurate pre judgment that enabled the appellant to takepossession of the property even before there was a proper adjudicationupon the issues between the parties. There was no appeal taken againstthis judgment by either party. Whateverthe reasons were that commendedthemselves to the Court of Appeal discharging the interim injunction therewas I think at least one valid reason justifying that order and that was thereason I referred to earlier as supporting the view that the injunctionshould not perhaps have been issued in the first place.
On the 22nd September, 1989 the Attorney-at-law for the respondentmoved the Court of Appeal by way of motion to have possession of theproperty restored to the respondent and drew attention to the reliefsclaimed in his petition dated 19th June, 1969. In consequence, the Courtof Appeal made order on 27th October, 1989 that the respondent berestored to possession of the land and that the appellant and all personswho came into possession on or after 26th May, 1989 by reason of theinjunction should give up possession. The basis upon which that reliefwas granted was that with the discharge of the injunction the status quoante had to be restored. It is that order which constitutes the subjectmatter of the present appeal.
Learned Counsel for the appellant did not as I understood him submitthat the Court of Appeal had no jurisdiction to suspend the injunction
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issued by it as was done on 29th June, 1989 although he appeared tocriticise the propriety of it having been done behind the back of theappellant as it was without notice to him. Counsel also if I understood himcorrectly did not contend that the Court of Appeal could not in law setaside the injunction as it did on 5th September, 1989. While making thecomment that in principle it seems right to say that a Court issuing aninjunction ( in the instant case a superior Court) must also have theauthority to suspend or revoke it, the question for present purposes is onlyof academic interest in as much as both sides chose to accept thecorrectness of these orders, not having appealed against them.
The content of the present appeal therefore is whether the Court ofAppeal acted within jurisdiction in making its order of 27th October, 1989,to put the respondent back in possession.
It is convenient to first get out of the way the question whether the resultof the issue of the injunction was in fact to dispossess the respondent andput the appellant into possession. It would suffice I think, without referringhere to all the evidence available to support such a view, to point to theminimum material as would demonstrate with reasonable certainty thatthis was so. The clearest evidence that the appellant took possession onthe strength of the injunction is contained in his admission given inparagraph 4 of his statement of objections of 21 st July, 1989 which states
thus "The petitioner-respondent states that he obtained
.an injunction and took possession as he lawfully might of the extent of
land that he purchased". The next question is whether
in thus taking possession he dispossessed the respondent and it wouldin that regard suffice to say that the same statement of objectionsindicates (in paragraph 2 (a)) that the respondent had been in occupationof the premises (though said to be illegally) since March 1989. On thisquestion it could also well be said that the implied finding by the Court ofAppeal that the lease in favour of the respondent was subsisting and itsfurther finding to the effect that the respondent who was in possessionhad been dispossessed of the property with the appellant taking possessionof the same, findings upon which the order of the Court of Appealdischarging the injunction was based, cannot now be challenged sincethere was no appeal taken against the relevant order.
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The position then being that there is no gainsaying the fact that it wasthe injunction issued by the Court of Appeal that brought about thedispossession of the respondent and the placing in possession of theappellant I will now proceed to consider the submissions of Counsel forthe appellant who vigorously challenged the jurisdiction of the Court ofAppeal to reverse that position.
Counsel's primary contention was that the Court of Appeal lacked anyjurisdiction whatsoever to displace the appellant and restore possessionof the property to the respondent. Counsel’s alternative submission wasthat even if the Court of Appeal did possess some jurisdiction in thisrespect, whatever jurisdiction it did possess was exhausted with the orderit made on the 5th of September, 1989, discharging the injunction anddismissing the petitioner’s application thus rendering the Court functusofficio and incapable of making any further orders thereafter. Counselwas not prepared to concede that there was an inherent power in theCourt to act as it did, because to concede that, in my thinking, would havebeen to concede the correctness of the impugned order. Counsel'sargument was that Article 143 of the Constitution gave the Court ofAppeal a limited jurisdiction the extent of which must necessarily beconfined to what one understands upon a plain reading of this Article. Inthis connection he referred to a provision in the Courts Ordinance of 1889namely section 22, which he claimed should be treated as a legislativepredecessor of Article 143 and to certain cases decided with respect tosuch provision the principles stated in which he submitted had applicationto Article 143 of the Constitution. The first of such cases was that ofMahamado v. Ibrahim (1) where Bonser, C.J. said that power of grantinginjunctions under section 22 of the Courts Ordinance of 1889 was astrictly limited one, to be exercised only on special grounds and in specialcircumstances where (a) irremediable mischief would ensue from the actsought to be restrained; (b) an action would lie for an injunction in someCourt of original jurisdiction and (c) the plaintiff is prevented by somesubstantial cause from applying to such Court. While commenting thatthis was a limited power Bonser, C. J. rejected a submission that theSupreme Court had an inherent power to grant injunctions. I find myselfunable to agree with Counsel for the appellant that this case is of anyassistance in supporting any of the propositions contended for by him. Itdoes not in my view touch the question whether the Supreme Court hadan inherent power to restore the status quo ante where its act of issuing
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an injunction had wrongfully dispossessed the party in possession andput another in his place, Two other cases Counsel referred to in thisconnection namely Buddhadasa v. Nadarajah (2) and Sundaralingam v.Attorney-General and two Others (3) did not decide this question eitherand as I see, can be of no use here. Indeed it seems to me that thesecases tend to show that the Court of Appeal should have been cautiousin exercising its jurisdiction under Articlel 43 having regard to the fact thatthe injunction issued in the instant case had the effect of giving theappellant substantially a good part if not the greater part of the relief whichhe could have expected to get from the District Court based upon thedecision in a properly constituted action.
The other case Counsel referred to was that of Asiriwathan v.Mudalihamy (4) which deals with application of the provision of section777 of the Civil Procedure Code and is once again in my view unhelpfulhere.
The decision of the Privy Council in the case of Roger & Others v TheComptoir D'Escompte de Paris (5) is I think of considerable help inarriving at a decision in the instant case. By the Order in Council madeon an appeal to the Privy Council it was ordered that judgment of theSupreme Court of Hongkong of the 3rd June, 1867, should be set asideand that a judgment of non suit should be entered in lieu of the judgmentgranted for the plaintiff. Before the decision of the Privy Council howeverthe amount of the judgment had been paid at the plaintiffs' demand by thedefendants-appellants. After the decision of the Privy Council reachedthe Supreme Court of Hongkong a motion was made by the defendantsin the Supreme Court for a rule for repayment of the amount of thejudgment paid by them to the plaintiffs-respondents on their demand tobe made, with interest on the sum so paid. The Chief Justice of theSupreme Court of Hongkong howeverwhile makingorderforthe repaymentof the amount actually paid refused to order interest as asked for,expressing his opinion that no powers vested in the Supreme Court togive interest in this manner. The appellants applied to the Supreme Courtfor leave to appeal against the order refusing to make a rule for paymentof interest and such leave was granted. The appellants howeverafterwards presented a petition to Her Majesty in Council setting out thefacts and praying that Her Majesty in Council refer the appellants- •petitioners to the Judical Committee to hear and determine the matter andto order the payment of interest. The Privy Council thereafter taking the
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view that there was a miscarriage of justice committed by the SupremeCourt of Hongkong in carrying out the Order in Council took up the petitionin the form of a supplementary appeal. Lord Cairns in disposing of theappeal expressed the view of the Privy Council that it was in the powerand it became the duty of the Court at Hongkong to do everything and tomake every order which was fairly and properly consequential upon thereversal of the original judgment by the Privy Council. Whilst stating thatthe question which the Privy Council had to consider was whether thecourt at Hongkong had or had not that power to order payment of interestand if so whether in the particular case it was or was not proper to exercisethat power, Lord Cairns said thus
“ Now their Lordships are of opinion, that one of the first and highestduties of all Courts is to take care that the act of the Court does no injuryto any of the suitors, and when the expression “the act of the Court” isused, it does not mean merely the act of the Primary Court, of anyintermediate Court of Appeal, but the act of the Court as a whole, fromthe lowest Court which entertains jurisdicton over the matter to thehighest Court which finally disposes of the case. It is the duty of theaggregate of these tribunals, if I may use the expression, to take carethat no act of the Court in the course of the whole of the proceedingsdoes an injury to the suitors in the Court".
The Privy Council held that the Supreme Court of Hongkong in additionto ordering the payment of principal should have on the principle set outabove ordered the payment of interest and directed the payment of suchinterest. This case is authority as I understand it for the proposition thatthere is an inherent power in the Court not referable to a particularjurisdiction specially given by written law to correct its errors which resultin injury to a suitor. I say so for the reason that, as Lord Cairns said, itbecomes the duty of the aggregate of all tribunals from the Jowest to thehighest to take care that an act of the Court does not do injury to a suitorin the course of the whole of the proceedings, the authority whereverredress is made must needs be referable to an inherent power. TheSupreme Court of Hongkong could have ordered interest as the PrivyCuncil said it could have, after its jurisdiction had been exhausted andwhen the case came back from the Privy Council only upon the basis ofan inherent power to do so residing in it. This case is also an authority forthe proposition that a superior Court has jurisdiction to direct a Courtinferior to it to remedy an injury done by its act in the exercise of inherentpower and in so far as the instant case is concerned I would say that thisCourt therefore would have jurisdiction to direct the Court of Appeal totake steps in restitution had it not done that already.
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The principle set out in this case was followed by Sansoni, J. (with H.
N.G. Fernando J. agreeing) in the case of Sirinivasa Thero v. SudassiThero (6). The Court there stated that where the Court of first instanceacted without jurisdiction in issuing a writ which dispossessed a personof property the person dispossessed was entitled to be restored topossession by that court which has an inherent power and the duty torepair the injury done by this act.
The same thinking was adopted by T. S. Fernando, J. (withSriskandarajah, J. agreeing) in the case of Salim v. Santhiya (7) wherethe proposition was stated in the form that it is a rule that a Court of Justicewill not permit a suitor to suffer by reason of its own wrongful act and thatit is under a duty to use its inherent power to repair theinjury done by suchact.
In the case of Wickremanayake v. SimonAppu(8) H. N.G. Fernando,C. J. (with Deheragoda, J. aggreeing) expressed agreement with thisprinciple in the following words: "Justice therefore requires that theplaintiff, who had been placed in possession in execution of a decreewhich had turned out to be invalid, should no longer be allowed tocontinue in possession of the land”. The facts pertaining to this case werebriefly thus : This court had on 21st November, 1967, set aside thejudgment of the District Judge based upon which the plaintiff had takenpossession of the property in question. This court however did not directthat possession of such property should be restored to the defendantswhen it allowed the appeal. Upon the case going back to the District Courtthe District Judge refused to restore possession to the defendants whohad been dispossessed upon the decree set aside. On an interlocutoryappeal taken against such refusal this court on 19th July, 1972 (over fouryears later) allowed such appeal and entered an order for the delivery ofpossession of the property to the defendants and for the ejectment of theplaintiff.
The cage of Perera v. The Commissioner of National Housing (9) wasone which came up for consideration before three Judges. It wasestablished there that a writ of possession issued by the Court ofRequests was based upon a judgment entered against the defendantwithout service of summons upon her, where that had happened due tothe fraud of the Court's own official namely the Fiscal's officer. T ennekoon,C. J., (with Tittawela, J. and Walpita, J. agreeing) at page 363 said “Itseems to me that the inherent powers of the court are wide enough tohave enabled the Court (The Court of Requests) to order the plaintiff in
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that case to vacate the .premises and to restore possession to the 3rdrespondent (the defendent in that case in the Court ot Requests) so thatthe status quo ante the institution ot the action in the Court of Requestsmight have been restored and the action which had now been reinstatedmight proceed meaningfully. See in this connection the case of SirinivasaThero v. Sudassi Thero (6). Tennekoon, C. J. was of the view that theCourt of Requests' had jurisdiction to enable it to order the plaintiff tovacate the premises and to restore possession to the defendant so thatthe status quo ante the institution of the action in the Court of Requestsmight have been restored. By a parity of reasoning and using someof Tennekoon, C.J.’s words in the instant case it seems to me that theCourt of Appeal when it discharged the injunction had an inherent powerto enable it to order the appellant to vacate the premises and restorepossession thereof to the respondent so that the status quo ante theinstitution of proceedings in the Court of Appeal under Article 143 mightbe restored after which an action could be instituted in the District Courtwhich could thereafter proceed meaningfully.
The case of Silva v. Amerasinghe (10) was again one which came upbefore three Judges. Vythialingam, J. (with Malcolm Perera, J. andIsmail, J. agreeing) dealt with a situation where a writ had been issuedwrongly on the strength of a decree entered, based upon a settlementeffected before a Conciliation Board. It was held that the writ had beenwrongly issued and the question then was whether the court had thepower to restore the judgment debtor to possession pending a freshinquiry into an application to execute as a decree of court the agreementreached before the Conciliation Board. In holding that the judgmentdebtor should be so restored Vythialingam, J. cited with approval thejudgment in Sirinivasa Thero v. Sudassi Thero (supra) andWickramanayake v. Simon Appu (supra).
Coming to more recent times Sharvananda, C. J. in the case ofMowjood v. Pussadeniya (11) said thus
“In as much as the court acted without jurisdiction in issuing the writ,the appellant who was dispossesssed of the premises in suit inconsequence of the execution of the writ is entitled to be restored topossession (Sirinivasa Thero v. Sudassi Thero). Hence I direct theDistrict Court to restore the appellant to vacant possession of thepremises".
It is interesting to note that the Superior Courts have sometimes taken theview that they have an inherent power even to correct errors in their
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judgments. If these courts have that jurisdiction I find it difficult to say thatthey have no jurisdiction to set things right where their acts have causedinjury to suitors.
In the case of Moosajees Ltd. v. Fernando (12) H. N. G. Fernando, S.P. J. at page 419 stated thus
‘This court has also exercised an inherent power to correct error ina judgment which has occurred per incuriam. I doubt whether thispower is exercisable only by the Judge who had'pronounced thejudgment; for if so, there would be no means of correcting even amanifest clerical error discovered in a judgment after the death orretirement of the judge who pronounced it”.
The case of Batuwatta Piyaratane TissaThero v. Liyanage NorisJayasinghe (13) was decided in appeal by Pathirana, J. and Ratwatte,J . on the 6th of February, 1976 with the appeal being allowed. On 6thApril, 1976, the respondent filed a motion inviting the court to rectify anerror that had arisen in the judgment. Upon that application Pathirana, J.held thus
“It is not always that this court is confronted with a situation like inthe present case where there is a manifest error committed by thiscourt which had been brought to its notice in respect of a judgment of
this CourtWeeramantry,
J. in Petman v. Inspector of Police, Dodangoda (14) has observedthat
“This court would no doubt be extremely hesitant and cautiousbefore it makes any order in revision which is contrary to an order whichthis court itself has made upon appeal, but there would appear to beprecedent for orders of this court where the original order is basedupon a manifest error”.
He took the view that where there is a manifest and obvious errorof fact based on an important item of evidence not having been broughtto the notice of court at the hearing of the appeal relief would be grantedin such a case. In Ehambaram and Another v. Rajasuriya (15)Nagalingam, A. J. although in the particular case he refused tointerfere by way of revision, made the following observations: It is truethat this court has, acting in revision, modified or even vacatedjudgments pronounced by it on appeal when appraised of thecircumstances that the court had erred in regard to an obvious
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question of fact or of law; and one may go so far as to say that thoseare cases where, an error being pointed out the court without wantingto hear arguments would ex mero motu proceed to set the error right".
On the basis that there was a manifest or obvious error of fact in itsjudgment, acting in revision the court quashed its earlier judgment of 6thFebruary, 1978, and dismissed the appeal.
However a somewhat narrower view appears to have been taken bythis court in the case of Ganeshanadan v. Vivienne Goonewardene (16)where the majority held that this court has no jurisdiction to act in revisionof cases decided by itself. Nevertheless the court went on to hold that asa superior court of record it has inherent powers “to make corrections tomeet the ends of justice” and that those powers have been used “tocorrect errors which were demonstrably and manifestly wrong and whereit was necessary in the interests of Justice to put matters right" (at p.329).
The authorities undoubtedly make clear that a court whose act hascaused injury to a suitor has an inherent power to make restitution. Thatpower I am of the view is exercisable by a court of original jurisdiction asthe cases show and in the case of a superior court such as the Court ofAppeal there can be no doubt whatever that that power is exercisable inthat way. Therefore when the injunction issued by the Court of Appeal onthe 26th of May, 1989, was dissolved on 5th September, 1989, it wascompetent for the court to direct that the appellant who had obtainedpossession of the property on the strength of the injunction by displacingthe respondent, be in turn displaced and possession handed back to therespondent and there can be no doubt that that power, an aspect of thecourt’s inherent power, could have been exercised on the day on whichjudgment was delivered on the 5th September, 1989, or as was done inthis case on the 27th October, 1989, which was subsequently. It is theduty of the courts and it is in their interests to ensure that public confidencein them and in the orders and judgment made by them is maintained andremains undamaged. If an order of the Court, which ultimately hasstanding behind it the coercive power of the State, causes damagewithout justification, it becomes the duty of the Court itself to undo thatdamage if for no other reason, at least in the interest of the credibility ofthe courts as an institution. I would therefore affirm that the Court ofAppeal acted within jurisdiction in making the order it did on 27th October,1989, to restore the respondent to possession of the property as being anorder made within jurisdiction and also a correct order following upon itsearlier order of 5th September, 1989, discharging the injunction issuedby it.
sc
Sivapathalingam v. Sivsubramaniam (Gunawardena, J.)
393
Another question requires to be referred to and in that connection it isapposite to mention the principle set down in the case of Doraisami Ayyarv. Annasamy Ayyar and Others (17). It was held there that the principleof the doctrine of restitution is that on the reversal of a judgment the lawraises an obligation on the part of the party to the record who received thebenefit of the erroneous judgment to make restitution to the other partyfor what he has lost and that it is the duty of the Court to enforce thatobligation unless it could be shown that restitution would clearly becontrary to the real justice of the case. Subramaniam Ayyar, J, said inthis connection : “On the contrary he is out of possession only becausethe court has wrongfully put him out and whosoever is in, is there onlybecause the Court has wrongfully made room for him to get in". Counselfor the respondent used this passage in support of his contention that theappellant and all others who entered the premises consequent upon theinjunction issued by the Court which made room for them to get in, mustbe made to get out, I am of the view that the order of the Court of Appealsecures this result which I myself think must necessarily follow thedischarge of the injunction. The Court of Appeal has stated that thepetitioner (the present appellant) must give up possession of the propertywhich he has obtained by reason of the injunction and that therefore heand all other persons who have taken possession of it on or after the 26thMay, 1989, by reason of the injunction must be removed and that therespondents must be restored to possession and remain in possessionuntil the District Court of Jaffna adjudicate upon the matter in an actionproposed to be filed by the Appellant. While affirming that order I woulddirect that the Court or Appeal take steps to give effect to it and to restorethe respondent to possession of all that he was dispossessed of by theinjunction issued by the Court of Appeal.
One further matter requires attention. As I have already pointedout the petitioner produced with his papers a copy of a plan bearingNo. 835A purportedly prepared by T. Mahendiran Licensed Surveyormarked “D”. The surveyor in his affidavit marked P6 has stated that he hadnot prepared a plan bearing No. 835A dated 21 st August, 1988, and thatwhat had been produced by the appellant marked "D” was a fabricateddocument. Upon an examination of the papers filed however l observethat the vendors to the appellant by deed No. 3125 of 2.4.1989(Document F) had purported to transfer certain interests in this properlyby reference to the impugned Plan No. 835 A of 21.8.88 which is
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specifically referred fo in the schedule to that deed. They are also said tohave transferred to three persons upon deed No.3105 dated 16.3.1989(Document E) an undivided extent of 3/4 Im. on the southern side o; Lot2 in the impugned plan No. 835A, but inasmuch as the full document Ahas not been briefed it is not possible to verify whether there is areference to that plan in the schedule to that deed. One ot suchvendors had also by deed No. 4312 of 15.2.89 (document P7 andtranslation P7 T) purported to convey another portion of this property byreference to plan No. 835 made by T. Mahendiran, Licensed Surveyorwhich the latter in his affidavit refers to as the authentic plan made byhim a copy of which he has produced marked P6. It would appeartherefore that these seemingly incompatible documents suggest anattempt to mislead the Court and to practice a fraud on it.
The appeal is dismissed with costs.
FERNANDO, J. – ! agree.
DHEERARATNE, J. – I agree.
Appeal dismissed.