IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Special Leave to Appeal to the Supreme Court of the Democratic Socialist Republic of Sri Lanka from the judgment dated

24.11.2010 of the Court of Appeal in terms of Article 128 of the Constitution.

Karunasinghe Herathge Lalitha Padmini No.91/1Keedagammulla, Gampaha Plaintiff-Appellant-Petitioner-Appellant SC Appeal 118/2011 SC/SPL/LA/03/2011 CA 688/2000 F DC Gampaha 35792/L Vs

1. Wijesinghe Arachchige Wijedasa No.5 Sri Dharmapala Mawatha, Gampaha

2. Bandaranayake Mudiyanselage Bandara Manawatta.

No.45, Diyawanna Road, Etul Kotte, Kotte Defendant-Respondent-Respondent-Respondents Before : Eva Wanasundera PC J Sisira J De Abrew J Upaly Abeyratne J Counsel : Harsha Soza PC with Upendra Walgampaya for the Plaintiff-Appellant-Petitioner-Appellant Athula Perera with Chathurani De Silva for the Defendant-Respondent-Respondent-Respondents Argued on : 7.12.2015 Written Submissions tendered on : By the Plaintiff-Appellant-Petitioner-Appellant on 17.10.2011 By the Defendant-Respondent-Respondent-Respondents on

23.1.2012 Decided on : 31.3.2016 Sisira J De Abrew J.

This is an appeal to set aside judgment of the Court of Appeal dated

24.11.2010. The Court of Appeal, by the said judgment affirmed the judgment of the learned District Judge who dismissed the plaintiff’s action. Being aggrieved by the said judgment of the Court of Appeal, the Plaintiff-Appellant- Petitioner-Appellant (hereinafter referred to as the Plaintiff-Appellant) has appealed to this court. This court, by its order dated 5.9.2011, granted special leave to appeal on the questions of law set out in paragraphs 22(i),(ii),(iii) and (iv) of the petition of appeal dated 4.1.2011 which are set out below.

1. Has the Court of Appeal failed to appreciate that there has been no proper evaluation of the evidence in this case?

2. Has the Court of Appeal failed to consider that well before 28.12.1992 the 1^st Defendant has unequivocally refused to fulfill his obligations and breached in law the agreement P1?

3. Has the Court of Appeal failed to consider that in law it is the 1^st Defendant who is in mora , and that he cannot take advantage of his own wrongdoing?

4. Has the Court of Appeal erred in law holding that no cause of action had occurred to the Plaintiff as at 28.12.1992?

Facts of this case may be briefly summarized as follows: The 1^st Defendant- Respondent-Respondent-Respondent (hereinafter referred to as the 1^st Defendant) is the owner of the land described in the 1^st schedule to the plaint. It can be described as Lot No.8 of plan No.88/68 dated 3.6.1968 of CL Wickramaratne Licensed Surveyor. Sangapala Archchige Jayasiri Dissanayake was the owner of blocks of land described in the 2^nd and 3^rd schedules to the plaint. For the purpose of convenience they can be described as Lots 7 and 9 of Plan No.88/68 of CL Wickramaratne Licensed Surveyor dated 3.6.1968. The 2^nd Defendant-Respondent-Respondent-Respondent (hereinafter referred to as the 2^nd Defendant) is the holder of Power of Attorney of said Sangapala Archchige Jayasiri Dissanayake (SAJ Dissanayake).

On 22.8.1991, the 1st and the 2nd Defendants entered into an agreement with the Plaintiff-Appellant marked P1 (Deed No.4091) for the sale of Lots 7,8 and 9 of Plan No.88/68 of CL Wickramaratne Licensed Surveyor dated 3.6.1968. The said Lots 7 and 9 were sold and conveyed by the 2^nd Defendant to the Plaintiff-Appellant after fulfilling the terms of the said agreement (agreement to sell). The sale of Lot 8 of the said Plan No.88/68 did not take place as per the agreement to sell. The Plaintiff-Appellant filed the present case against the 1^st Defendant on the ground that the 1^st Defendant failed and neglected to perform his obligations arising on the agreement. He sought a direction from the District Court on the 1^st defendant to transfer the property described in the 1^st schedule (Lot No.8 of the plan No.88/68 of CL Wickramaratne Licensed S