RODRIGO

VS.

CELSIA FERNANDO AND ANOTHER

SUPREME COURT
SURASENA, J.
WENGAPULLI, J.
SAMAYAWARDHENA, J.
SC/APPEAL/53/2021
SC/HCCA/LA/106/2019
WP/HCCA/NEGOMB0/10/2014/LA
DC NEGOMBO 7566/L
AUGUST 4, 2021

Injunction-Judicature Act, No. 2 of 1978, section 54-Civil Procedure Code, sections 662-667-Conventional tests

Held :

1. In the granting of injunctions, jurisdiction is conferred upon court by section 54 of the Judicature Act and the procedure is laid down in sections 662-667 of the Civil Procedure Code.

2. The court may grant an injunction for one or more of the purposes set out in section 54(1) subsections (a), (b) and (c) of the Judicature Act. While these three subsections set out the purposes for which injunctions may be granted, limbs (i), (ii) and (iii) appearing at the end of section 54(1) set out what the court can restrain by the issuance of an injunction.

3. Section 662 of the Civil Procedure Code and section 54 of the Judicature Act make a clear distinction between praying for an injunction in the plaint and by way of a petition filed subsequent to the plaint.

4. After the filing of the plaint, the plaintiffs sought an injunction to restrain the defendant from using the disputed roadway, which falls under section 54(1)(b) of the Judicature Act. As per this section, a plaintiff must demonstrate (a) the occurrence of an act or nuisance in violation of the plaintiffs rights in respect of the subject matter of the action, and (b) that the occurrence of the said act or nuisance during the pendency of the case would tend to render the judgment ineffectual.

5. Although section 54 of the Judicature Act gives a wide discretion to the court to issue injunctions whenever it is just to do so, over the years the court has been guided by three main principles: Has the applicant made out a strong prima facie case? Does the balance of convenience lie in favour of the applicant? Do equitable considerations favour the grant of an injunction?

Cases referred to :

1. Alubhay v. Mohideen 18 NLR 486

2. Felix Dias Bandaranayake v. State Film Corporation and another [1981] 2 Sri LR 287 at 292

3. Seelawathie Mallawa v. Millie Keerthiratne [1982] Sri LR 384 at 388 and 389

4. D.S. Dissanayake v. Agricultural and Industrial Credit Corporation and others (1962) 64 NLR 283

5. M.N. Kariyawasam v. N.W. Sujatha Janaki and two others [2013] BLR 77

APPEAL from the Judgment of the High Court of Negombo.

Aravinda Athurupana for the Defendant-Respondent-Appellant.

Sudarshani Coorey for the Plaintiff-Appellant-Respondents.

cur. adv. vult.

November 16, 2021

SURASENA, J.

The Plaintiff-Appellant-Respondents (hereinafter referred to as the "Plaintiffs") filed the plaint dated 17-04-2012 in the District Court of Negombo praying inter alia for a declaration that the Defendant- Respondent-Appellant (hereinafter referred to as the rdefendant") is not entitled to use as a right of way, Lot 5 and Lot 4 depicted in Plan No. 1177 dated 13-04-1982, prepared by R. I. Fernando Licensed Surveyor (hereinafter referred to as the "Plan No. 1177"). The said Lots are more fully described respectively in the 5th and 6th schedules to the plaint. According to Plan No. 1177, the said Lots 5 and 4 jointly make a roadway to give access to Lots 2 and 3 depicted in the same Plan, from St. Joseph's Street.

The 1st Plaintiff occupies Lot 1; the 2nd Plaintiff occupies Lot 2; and the Defendant occupies Lot 3 depicted in the said Plan. The said Plan is a partition Plan (surveyed and partitioned on 13-04-1982) prepared to partition then existed larger land called Beligahawatta amongst the three co-owners (siblings) at that time. The said three co-owners were firstly, Kurukulasuriya Maria Hema Celsia Fernando (the 1st Plaintiff), secondly, Kurukulasuriya Philip Antony Roshan Fernando and thirdly, Kurukulasuriya Micheal Joseph Rohan Fernando. The said three co- owners are the children of Kurukul