KUMARA AND ANOTHER VS. KANTHI AND OTHERS
2021 SLR 1 398
KUMARA AND ANOTHER
VS.
KANTHI AND OTHERS
SUPREME COURT
SURASENA, J.
WICKRAMASINGHE, J.
SAMAYAWARDHENA, J.
SC/APPEAL/138/2016
SC/HCCA/LA/176/2015
SP/HCCA/GA/47/2009/F
DC GALLE 15250/L
APRIL 27, 2021
Declaration of title and
ejectment-Admitted facts-Evidence Ordinance, section 58-Ex parte
trial-Adversarial system of justice-Applicability of decided authorities
The plaintiffs filed this action in the District Court seeking a declaration of
title to the land described in the schedule to the plaint, ejectment of the
defendants there from, and damages. The defendants filed joint answer seeking
dismissal of the plaintiffs' action, a declaration that they are the owners of
the land, and damages. At the trial, admissions and issues were recorded and
further trial was postponed. Thereafter the defendants did not participate at
the trial and the trial proceeded ex parte At the ex parte trial, the evidence
of the 1st plaintiff was led and several documents were marked. The District
Judge did not ask a single question from the witness nor was any clarification
sought from counsel for the plaintiffs. Upon conclusion of the trial, the
plaintiffs' action was dismissed on the basis that the plaintiffs had failed to
identify the corpus. On appeal, the High Court affirmed the judgment of the
District Court. The plaintiffs appealed to the Supreme Court.
Held :
1. The defendants admitted the corpus in their answer and sought a declaration of title to the corpus in their favour. Both parties raised issues on the premise that the corpus was admitted. In terms of section 58 of the Evidence Ordinance, admitted facts need not be proved unless the court requires such admitted facts to be proved otherwise than by such admissions. The court did not make any such direction. Hence the District Court erred when it dismissed the
plaintiffs action on failure
to identify the corpus by merely looking at the schedule to the plaint where
there was an omission of the plan number.
2. The system of justice practised in Sri Lanka is adversarial as opposed to
inquisitorial and, therefore, the judge shall decide the case as it is
presented before him by the two contesting parties and not in the way the
judge prefers it to have been presented before him.
3. Litigation is not wordplay, nor is it a game to be won by the cleverer or
more astute. It is a serious contest authorised by the law and fought in a
court of justice for the purpose of enforcing a right.
4. Unless the matter goes to the root of the case, cases need not be
dismissed on flimsy technical grounds.
5. A principle laid down in a case shall be understood in the context of the
peculiar facts and circumstances of that particular case. Such principles
have no universal application unless the facts and circumstances are on all
fours.
Cases referred to :
1. Saravanamuthu v. Packiyam
[2012] 1 Sri LR 298
2. Silva v. Selohamy (1923) 25 NLR 113
3. Latheef v. Mansoor [2010] 2 Sri LR 333
4. Quinn v. Leathern [1901] AC 495
5. Allen v. Flood [1898] AC 1
APPEAL from the Judgment of the High Court of Civil Appeal of Galle.
Dr. Sunil Coorey with Sudarshani Coorey for
the Plaintiff-Appellant-Appellants.
Defendant-Respondent-Respondents absent and unrepresented.
cur. adv. vult.
June 10, 2021
SAMAYAWARDHENA, J.
The three Plaintiffs filed this action in the District Court of Galle seeking a
declaration of title to the land described in the schedule to the plaint,
ejectment of the two Defendants there from, and damages. The
Defendants filed a joint answer
seeking dismissal of the Plaintiffs' action, a declaration that they are the
owners of the land, and damages.
At the trial, admissions were recorded and issues were raised and the case was
re-fixed for further trial. The Defendants were not ready on the date of further
trial and further trial was postponed. On the next date, the Defendants were
absent and their Attorney-at-La