JUDGMENT

M.C.B.S. Morais J.

This is an application for Restitutio in Integrum coupled with revision, filed under Article 138 of the constitution of the Democratic Socialist Republic of Sri Lanka against the order of the learned District Court of Kalutara dated 16^th of November 2023.

The Action RE/534 was initiated by Belingahamullage Peiris Irosh Kavinda (hereinafter sometimes will be referred to as the Petitioner) against 1^st – 5^th Respondents (hereinafter sometimes will be referred to as the Respondents) on 8^th November 2018 in respect of the property more fully described in the schedule to the Plaint dated 8^th November 2018 which has a commercial value of Rs.35,000,000. Accordingly, the Petitioner has prayed for the following:

“I. Issue Notice on the 1^st, 3^rd, 4^th and 6^th Defendant-Respondents and the 2^nd and 5^th Respondents if Your Lordships Court pleases;

II. Act in Revision and set aside the Order dated 16^th November 2023; of the Learned District Judge of Kalutara III. Exercise the powers of Restitutio in Intergrum and restore the Plaintiff Petitioner to the status quo he had been as at the 15th November 2023 in respect of the property to the Schedule of the Plaint;

IV. Grant an Interim Order suspending the operation of the Order of the Learned District Judge of Kalutara dated 16^th November 2023; V. Grant an Interim Order against the Defendant Respondents to maintain the status quo as at 15^th November 2023 in respect of the property to the schedule to the Plaint;

VI. Grant an Interim Order reinstating the Interim Injunctions granted by the District Court of Kalutara in terms prayers (එ), (ඒ) and (ඔ) to the Plaint of the Plaintiff- Petitioner;

VII. Act in Revision and make Order directing the District Court of Kalutara to hear the trial in 534/RE from the point of dismissal;

VIII. Grant costs;

IX. G rant such other and further relief as Your Lordships Court deem fit.”

An enjoining order was granted on 21^st of November 2018 at the first instance and an interim injunction was granted subsequently on 16^th of January 2019 in respect of the property described in the plaint, preventing the Respondents from carrying out business in the said property. Due to the absence of the 2^nd and 5^th Respondents in the trial, the matter was fixed ex parte against the 2^nd and 5^th Respondents. The matter was refixed for trial on the 8^th of August 2023 and the Petitioner was required to file his affidavit Evidence-in-Chief one month before the commencement of the trial. However, the Petitioner had filed the affidavit Evidence-in-Chief on 3^rd August 2023, less than a week before the trial. Therefore, when the matter was taken up for trial on the 8^th of August 2023, the learned District Court Judge of Kalutara considered the following; the delay in filing the affidavit, certain defects in the Affidavit, negligence of the Attorney-at-law for the Petitioner. Consequently, the Petitioner was ordered to pay a sum of Rs. 25000 for 1^st, 3^rd, 4^th, and 6^th Respondents. Respecting the said order the Petitioner has made the payment for the 1^st, 3^rd and 4^th Respondents by bank transfer and cash for the 6^th Respondent in open court.

It is the contention of the Petitioner that when the matter was called up for trial on 16^th of November 2023, the particular matter was not called in the trial roll and the file was not avalable in the court. Further, the Petitioner contends that the learned District Court Judge has acted injudiciously by making crude remarks addressing the Registered Attorney-at-law for the Petitioner in the open court. When the matter was taken up later, the Petitioner has submitted a fresh copy of the Affidavit on 30^th of October 2023, by rectifying the defect as the place of signing was not mentioned previously. However, the Respondents have contended to re-fix the matter for cross examination as the Affidavit has only been filed before two weeks. Subsequently, the learned District Court Judge has dismissed the action subject to cost by the order dated 1