KUMARA AND ANOTHER

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

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