Jayasundara Mudiyanselage Wimalawathie vs 1. H. G. Wijewardena Gunathilaka & Sons (Private) Limited

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SRI)(SC) 20659

I 1 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA n the matter of an Application for Leave to Appeal under Section 5 C of the High Court of the Provinces (Special Provisions) Act No. 54 of 2006. Rasnekgedara Jayathilaka, Keppetipola, Thembahena. SC APPEAL 120/2013 Plaintiff SC HCCA LA No. 195/2011 SP/HCCA/KAG/388/2007 District Court of Mawanella Case No. 97/M Vs. . H. G. Wijewardena Gunathilaka & Sons (Private) Limited, No.11, D. S. Senanayake Veediya, Kandy. 2. Hikkaduwa Gamage Wijewardena Gunathilake, No.11, D. S. Senanayake Veediya, Kandy. 3. State Mortgage and Investment Bank, Galle Road, Colombo 3. Defendants 1

I 1 IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA n the matter of an Application for Leave to Appeal under Section 5 C of the High Court of the Provinces (Special Provisions) Act No. 54 of 2006. Rasnekgedara Jayathilaka, Keppetipola, Thembahena. SC APPEAL 120/2013 Plaintiff SC HCCA LA No. 195/2011 SP/HCCA/KAG/388/2007 District Court of Mawanella Case No. 97/M Vs. . H. G. Wijewardena Gunathilaka & Sons (Private) Limited, No.11, D. S. Senanayake Veediya, Kandy. 2. Hikkaduwa Gamage Wijewardena Gunathilake, No.11, D. S. Senanayake Veediya, Kandy. 3. State Mortgage and Investment Bank, Galle Road, Colombo 3. Defendants 1

J R AND BETWEEN 1. H. G. Wijewardena Gunathilaka & Sons (Private) Limited, No.11, D. S. Senanayake Veediya, Kandy. 2. Hikkaduwa Gamage Wijewardena Gunathilake, No.11, D. S. Senanayake Veediya, Kandy. Defendants-Appellants Vs. asnekgedara Jayathilaka, Keppetipola, Thembahena. Plaintiff-Respondent Jayasundara Mudiyanselage Wimalawathie, Keppetipola, Thembahena. Substituted-Plaintiff-Respondent AND NOW BETWEEN ayasundara Mudiyanselage Wimalawathie, Keppetipola, Thembahena. Substituted-Plaintiff-Respondent- Petitioner 2

J R AND BETWEEN 1. H. G. Wijewardena Gunathilaka & Sons (Private) Limited, No.11, D. S. Senanayake Veediya, Kandy. 2. Hikkaduwa Gamage Wijewardena Gunathilake, No.11, D. S. Senanayake Veediya, Kandy. Defendants-Appellants Vs. asnekgedara Jayathilaka, Keppetipola, Thembahena. Plaintiff-Respondent Jayasundara Mudiyanselage Wimalawathie, Keppetipola, Thembahena. Substituted-Plaintiff-Respondent AND NOW BETWEEN ayasundara Mudiyanselage Wimalawathie, Keppetipola, Thembahena. Substituted-Plaintiff-Respondent- Petitioner 2

B D V s. 1. H. G. Wijewardena Gunathilaka & Sons (Private) Limited, No.11, D. S. Senanayake Veediya, Kandy. 2. Hikkaduwa Gamage Wijewardena Gunathilake, No.11, D. S. Senanayake Veediya, Kandy. Defendants-Appellants- Respondents efore : S. Thurairaja, PC, J A. H. M. D. Nawaz, J K. Priyantha Fernando, J : Counsel Manohara De Silva, PC with Ms. Nadeeshani Lankatilleka for the Substituted-Plaintiff-Respondent- Appellant. Dr. Sunil F. A. Cooray with Heshan Pietersz for the 1st and 2nd Defendants-Appellants-Respondents. Argued on : 07.09.2023 ecided on : 16.11.2023 3

B D V s. 1. H. G. Wijewardena Gunathilaka & Sons (Private) Limited, No.11, D. S. Senanayake Veediya, Kandy. 2. Hikkaduwa Gamage Wijewardena Gunathilake, No.11, D. S. Senanayake Veediya, Kandy. Defendants-Appellants- Respondents efore : S. Thurairaja, PC, J A. H. M. D. Nawaz, J K. Priyantha Fernando, J : Counsel Manohara De Silva, PC with Ms. Nadeeshani Lankatilleka for the Substituted-Plaintiff-Respondent- Appellant. Dr. Sunil F. A. Cooray with Heshan Pietersz for the 1st and 2nd Defendants-Appellants-Respondents. Argued on : 07.09.2023 ecided on : 16.11.2023 3

1 K. PRIYANTHA FERNANDO, J . The Plaintiff-Respondent-Petitioner (hereinafter referred to as the appellant) in this case, was aggrieved by the judgment of the Provincial High Court of Sabaragamuwa holden at Kegalle No. SP/HCCA/KAG/388/2007 dated 27.04.2011 and preferred an appeal to this Court against the 1st and the 2nd Defendants- Appellants-Respondents (hereinafter referred to as the 1st and the 2nd respondents) praying that the judgment of the learned Judges of the Provincial High Court be set aside, that the judgment of the learned Judge of the District Court be affirmed and for further costs and relief. Facts in brief 2. The appellant in this case has been the owner of the land in question. The appellant has mortgaged the said land to the State Mortgage Bank by Mortgage Bond No. 3025. On 31.10.1986, the appellant has entered into a hand written agreement [P-1] with the 1st and the 2nd respondents, upon which the 1st respondent agreed to pay a sum of Rs. 160,000 to the appellant, and in exchange, the appellant has agreed to transfer the said land to the 1st respondent. According to the agreement, of the agreed sum of Rs. 160, 000, a sum of Rs. 110,000 was to be paid to the State Mortgage Bank (hereinafter referred to as the bank). This sum was owed by the appellant to the bank. The remaining sum of Rs. 50,000 was to be paid to the appellant. 3. The appellant states that, the 1st and /or the 2nd respondents have paid the sum of Rs. 110,000 to the bank. However, no further sum has been paid to the bank or the appellant. Further, the respondents have also cut down several trees on the said land causing a damage amounting to Rs. 300,000 to the

1 K. PRIYANTHA FERNANDO, J . The Plaintiff-Respondent-Petitioner (hereinafter referred to as the appellant) in this case, was aggrieved by the judgment of the Provincial High Court of Sabaragamuwa holden at Kegalle No. SP/HCCA/KAG/388/2007 dated 27.04.2011 and preferred an appeal to this Court against the 1st and the 2nd Defendants- Appellants-Respondents (hereinafter referred to as the 1st and the 2nd respondents) praying that the judgment of the learned Judges of the Provincial High Court be set aside, that the judgment of the learned Judge of the District Court be affirmed and for further costs and relief. Facts in brief 2. The appellant in this case has been the owner of the land in question. The appellant has mortgaged the said land to the State Mortgage Bank by Mortgage Bond No. 3025. On 31.10.1986, the appellant has entered into a hand written agreement [P-1] with the 1st and the 2nd respondents, upon which the 1st respondent agreed to pay a sum of Rs. 160,000 to the appellant, and in exchange, the appellant has agreed to transfer the said land to the 1st respondent. According to the agreement, of the agreed sum of Rs. 160, 000, a sum of Rs. 110,000 was to be paid to the State Mortgage Bank (hereinafter referred to as the bank). This sum was owed by the appellant to the bank. The remaining sum of Rs. 50,000 was to be paid to the appellant. 3. The appellant states that, the 1st and /or the 2nd respondents have paid the sum of Rs. 110,000 to the bank. However, no further sum has been paid to the bank or the appellant. Further, the respondents have also cut down several trees on the said land causing a damage amounting to Rs. 300,000 to the

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