IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application for Special Leave to Appeal. D. N. Wijetunga, No. 80/1A, Layards Road, Colombo 05.

Now residing at No. 04, Ramakrishna Place, Colombo 06.

Plain S.C. Appeal No. 89/2018 Vs.

S.C. (Spl) L.A. No. 77/2016 C.A. No. 702/89 (F) T. C. Amarasekera, D. C. Mount Lavinia Case No. 345/Z No. 06, 2^nd Lane, C. A. M. Housing Scheme, Baddegana Road (South), Pitakotte.

Defendant AND BETWEEN D. N. Wijetunga, No. 80/1A, Layards Road, Colombo 05.

Now residing at No. 04, Ramakrishna Place, Colombo 06.

Plaintiff – Appellant Vs.

T. C. Amarasekera, No. 06, 2^nd Lane, C. A. M. Housing Scheme, Baddegana Road (South), Pitakotte.

Defendant – Respondent AND NOW BETWEEN D. N. Wijetunga, No. 80/1A, Layards Road, Colombo 05.

Now residing at No. 04, Ramakrishna Place, Colombo 06.

Plaintiff – Appellant – Petitioner Vs.

T. C. Amarasekera, No. 06, 2^nd Lane, C. A. M. Housing Scheme, Baddegana Road (South), Pitakotte.

(Deceased)

Indrajith Hiran Christopher Amarasekara No. 06, 2^nd Lane, C. A. M. Housing Scheme, Baddegana Road (South), Pitakotte.

Substituted Defendant – Respondent –

Respondent Before: Hon. E. A. G. R. Amarasekara, J.

Hon. Kumudini Wickremasinghe, J.

Hon. Janak De Silva, J.

Counsels: Faisz Musthapha, P.C., with Faisze Marker for the Plaintiff – Appellant –

Petitioner.

R. C. Gooneratne for the Substituted Defendant – Respondent –

Respondent.

Written Submissions:

01.03.2017, 02.07.2018 and 28.08.2023 by Plaintiff –

Appellant – Petitioner.

01.03.2017, 03.08.2018 and 21.06.2023 by the Substituted Defendant – Respondent – Respondent.

Argued on: 01.06.2023 Decided on: 02.04.2025 Janak De Silva, J.

The Plaintiff-Appellant-Appellant (Appellant) instituted this action against the Defendant- Respondent-Respondent (Respondent) seeking a judgment for ejecting the Respondent, his servants and agents and all those holding under him from the premises more fully described in the schedule to the plaint (premises).

According to the Appellant, he had permitted the Respondent to reside at the premises from 06.11.1974. The parties had thereafter entered into an agreement by deed No. 431 dated 14.02.1975 attested by S. Gnanapandithen N.P. whereby the Respondent undertook to purchase the premises for a total consideration of Rs. 45,000/= within three (3) months from the date of execution of the said deed.

The Appellant had at the request of the Respondent granted the Respondent extensions of time to purchase the said premises. Finally, the Respondent was given time until 31.07.1977 to purchase the premises. Since the Respondent failed to do so, he became liable to hand over vacant possession. As he failed to do so, this action was instituted to evict him from the premises and to claim damages.

The Respondent denied the claim of the Appellant and contended that he was, at all times material to this action, willing to purchase the premises. However, the Appellant had failed and neglected to execute the deed of transfer for the premises in favour of the Respondent. Accordingly, the Respondent made a cross claim for specific performance of the agreement between him and the Appellant.

Upon the conclusion of the trial, the learned Additional District Judge delivered judgment dismissing the action of the Appellant and granting the Respondent specific performance as prayed for in the answer.

The learned trial judge concluded that the time of performance was extended until 31.07.1977 and that the Appellant had failed to perform his part of the bargain by going to the bank to sign the relevant documentation after the Respondent had arranged a bank loan to make the balance payment. Accordingly, it was held that the Respondent was at all times material to this action willing and ready to perform his part of the bargain whereas the Appellant had failed to do so. Therefore, the learned trial judge dismissed the action and granted specific performance.

The Appellant appealed to the Court of Appeal which concurred with