IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of Section 5(A) of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 as amended by Act No. 54 of 2006 read with Section 755 of the Civil Procedure Code.

Sampath Leasing and Facturing Case no: SC/CHC/APPEAL/25/2015 Limited, Commercial High Court Case No:

CHC/272/2009/MR No 24A, Ward Place, Colombo 07.

Previous Address No 110, Sir James Peiris Mawatha, Colombo 02.

PLAINTIFF vs.

1. Mohomed Thawbeer Mohomed Haneez, No. 142, Himbiliyagahamadiththa, Uwa.

2. Arpin Mohomed Hameen No. 96, Mihindupura, Meepilimana, Nuwara-Eliya

3. Wahampurage Rukman Samaranayake, “Happy Inn”, No. 35, Unim View Road, Nuwara-Eliya DEFENDANTS AND BETWEEN An application under section 86(2)

of the Civil Procedure Code

1. Mohomed Thawbeer Mohomed Haneez, No. 142, Himbiliyagahamadiththa, Uwa

1^st DEFENDANT-PETITIONER Vs Sampath Leasing and Facturing Limited, No. 24A, Ward Place, Colombo 07.

Previous Address No. 110, Sir James Peiris Mawatha, Colombo 02.

PLAINTIFF-RESPONDENT AND

2. Arpin Mohomed Hameen No. 96, Mihindupura, Meepilimana, Nuwara-Eliya

3. Wahampurage Rukman Samaranayake, “Happy Inn”, No. 35, Unim View Road, Nuwara-Eliya DEFENDANT-

RESPONDENTS AND NOW BETWEEN

1. Mohomed Thawbeer Mohomed Haneez, No. 142, Himbiliyagahamadiththa, Uwa

1^ST DEFENDANT-PETITIONER-

APPELLANT Vs Sampath Leasing and Facturing Limited, No. 24A, Ward Place, Colombo 07.

Previous Address No. 110, Sir James Peiris Mawatha, Colombo 02.

PLAINTIFF-RESPONDENT-

RESPONDENT AND

1. Arpin Mohomed Hameen No. 96, Mihindupura, Meepilimana, Nuwara-Eliya

2. Wahampurage Rukman Samaranayake, “Happy Inn”, No. 35, Unim View Road, Nuwara-Eliya DEFENDANT-RESPONDENT-

RESPONDENTS BEFORE : S. THURAIRAJA, PC, J A.H.M.D. NAWAZ, J AND K. P. FERNANDO, J COUNSEL : M. D. J. Bandara for the 1^st Defendant-Petitioner-Appellant Kaushalya Nawaratne with Prabuddha Hettiarachchi for the Plaintiff-Respondent-Respondent WRITTEN SUBMISSIONS : 1^st Defendant-Petitioner-Appellant on 1^st September 2023 ARGUED ON : 6^th July 2023 DECIDED ON : 22^nd September 2023 S. THURAIRAJA, PC, J.

The 1^st Defendant-Petitioner-Appellant, namely Mohomed Thawbeer Mohomed Haneez, (hereinafter sometimes referred to as the “Appellant”) preferred this appeal against the order of the Commercial High Court dated 10^th March 2015.

The Appellant had filed his Petition of appeal on 8^th May 2015 and submitted as follows:

“7) Being aggrieved by the said Order of the Honourable High Court Judge of Commercial High Court of Colombo dated 10-03-2015 the 01^st Defendant-Petitioner-Appellant humbly makes this appeal against the said Order to Your Lordship’s Court on the following among other grounds that may be urged by his counsel at the hearing of this appeal.

a. The said order is contrary to Law and against the weight of facts and circumstances in this case.

b. The Honourable High Court Judge has failed to consider the real Issues placed by the Appellant c. The Honourable High Court Judge has failed to consider the fact that the Respondent has failed to prove that the summons have been properly served only Appellant by the Fiscal.

d. The Learned High Court Judge has failed to consider the legal entitlement of the Respondent and his order is totally contrary to the doctrine of undue enrichment.

(Reproduced as it is) [sic]

This Court observes that there is no specific pleading of Questions of Law hence the Court inquired for the Counsel to submit his questions of law. After submissions, the Counsel submitted that he will be continuing his argument on paragraph 7(c) of the Petition and moves to accept the same as questions of law and grounds of application. The Counsel stated that he is not relying on (a), (b) and (d) of paragraph 7 as they are wide and uncertain. Accordingly, the Court will be considering the following question of law:

“c. The Honourable High Court Judge has failed to consider the fact that the Respondent has failed to prove that the summons have b