ORDER

B. Sasi Mahendran, J.

The Plaintiff Petitioner (hereinafter referred to as ‘the Plaintiff’) has invoked the revisionary jurisdiction of this Court by petition dated 05.12.2023 seeking the following reliefs:

a. Issue Notices on the Defendant Respondent

b. Set aside the Judgment dated 30.06.2023 delivered by the District Court of Mount Lavinia in the case bearing No. 1413/17/SPL produced marked “A-8”

c. Grant Costs; and

d. Grant such other and further reliefs as Your Lordship’s Court may seem meet.

According to the petition, the Plaintiff has instituted an action bearing No. 1413/17/SPL by way of plaint dated 04.12.2017 in the District Court of Mount Lavinia against the Defendant-Respondent (hereinafter referred to as ‘the Defendant’) seeking inter alia a judgment to hand over the documents relating to the unencumbered title to the property mentioned in the schedule to the agreement as per paragraph 03(x) of the sales agreement No. 81, dated 06.07.2017 certified by R.A. Lanka R. Dharmasiri, Notary Public entered between the defendant and the plaintiff, an interim injunction and an enjoining order preventing the recession of the said sales agreement.

The Learned Additional District Court Judge has refused to issue an enjoining order but issued interim injunction notices to the parties on 04.12.2017. The Plaintiff states that, thereafter, an interim injunction inquiry was held and the Learned Judge issued an interim injunction against the Defendant on 16.10.2018. In the meantime, the Defendant preferred a leave to appeal application against the said interim injunction order. The Defendant thereafter filed his amended answer on 26.04.2019 and the Plaintiff tendered his replication on 25.06.2019.

The Plaintiff states that the parties filed their issues and admissions for the pre-trail which was originally fixed on 18.11.2020. On the said date, the date was moved to 10.01.2022 on the personal grounds of the Defendant. Again 03.02.2021 and 10.01.2022 were moved to other dates.

When the pre-trail commenced on 31.03.2022, the parties settled with seven admissions and the Plaintiff raised 18 issues while the Defendant raised 16 issues. After the pre-trail was concluded by the Learned Judge, the Court ordered the Plaintiff to tender affidavit evidence for the trial which was fixed for 25.07.2022. However, on that date, the Plaintiff moved for dates stating their Counsel is indisposed due to his bad health. On 02.11.2022, the Plaintiff informed the Court of the demise of its Counsel and that it could not prepare the affidavit evidence as directed by the Court. When the case was called to commence the trial on 22.03.2023, the Plaintiff tendered a fresh proxy and moved to obtain another date for trial. When the Defendant objected to it, the Court gave two dates namely 30.06.2023 and 12.07.2023 subject to pre-payment of costs. On 30.06.2023, the instructing attorney who filed the fresh proxy on behalf of the Plaintiff informed the Court that he has no instructions from his client and that he no longer appears for the Plaintiff. The Learned District Judge therefore delivered his order after considering the objections of the Defendant on 30.06.2023 dismissing the Plaintiff’s action and fixing the case ex-parte on the Defendant’s cross claim.

The main contention of the Plaintiff is that the order of the Learned District Court Judge dated 30.06.2023 marked A8 is illegal.

In this context, the Plaintiff has invoked the revisionary jurisdiction of this Court seeking to set aside the judgment dated 30.06.2023 made by the District Court of Mount Lavinia. This application being a revision application, this Court must ascertain whether any miscarriage of justice is caused by the said Order.

In Vanik Incorporation Ltd. v. Jayasekara, 1997 (2) SLR 365, at page 368, His Lordship Edussuriya, J held that;

“Counsel also drew attention of this Court to the amended section 753 of the Civil Procedure Code, and contended that special circumstances warranting the exercise