KARIYAWASAM VS. SUJATHA JANAKI

KARIYAWASAM VS. SUJATHA JANAKI AND 2 OTHERS

SUPREME COURT
SALEEM MARSOOF PC., J.
CHANDRA EKANAYAKE, J. AND
SATHYA HETTIGE PC., J
S. C. APPEAL NO. 33A/2012
SC/HCCA/LA NO. 516/2011
WP/HCCA/COL NO. 119/2011-LA
D. C. COLOMBO NO. DRE-011/2011
DECEMBER 21ST, 2012
MARCH 7TH, 2013

Mediation Boards Act, No, 72 of 1988-Section 7(1)-Action other than those involving the grant of any provisional remedy-Not to be filed without certificates of non-settlement-Interim Injunctions-Sequential tests-Prima facie case-Balance of Convenience-Equitable Considerations

The complaint of the Plaintiff is that the 1st Defendant without informing her, had placed the 2nd and 3rd Defendants in possession of the subject matter as subtenants. The Plaintiff consequently moved the District Court to grant a declaration to the effect that the 1st Defendant's tenancy had come to an end and the Plaintiff is the rightful owner of the subject matter and that the Defendants be ejected from the said premises and interim injunction as prayed for in the prayer to the plaint be granted.

After inquiry the District Court by its order dated 20.10.2011 issued interim injunction as prayed for in the Plaint. When this order was challenged in the Civil Appellate High Court by way of leave to appeal, the High Court dismissed the application. The Defendant also raised a preliminary objection that this application cannot be maintained without a non - settlement certificate obtained in terms of the provisions of Section 7(1) of the Mediation Boards Act. No. 72 of 1988.

On appeal,

Held:

(1) If the relief prayed for in an action in respect of any dispute includes a prayer for the grant of any provisional remedy under

Part V of the Civil Procedure Code, the Court may entertain and determine such action in so far as it relates to the grant of such provisional remedy. As such the conclusion of the High Court to the effect that since there is an application for interim injunction, the matter could be proceeded with, in the absence of the certificate of non - settlement is correct.

(2) A prima facie case does not mean a case which is proved to the hilt but it must appear from the plaint that the probabilities are such that the Plaintiff is entitled to a judgment in his favour. The Plaintiff must show that a legal right of his is being infringed and that he will probably succeed in establishing his rights.

(3) When considering whether an applicant has established a prima facie case, the Court should not embark upon a detailed and full of the merits of the parties at this stage. It is sufficient if the applicant established that probabilities are that he will win.

(4) Granting of interim injunctions being a discretionary remedy, when granting or refusing the same, discretion has to be exercised reasonably, judiciously and more particularly, on sound legal principles after weighing the conflicting probabilities of both parties.

(5) In considering the balance of convenience, if the Court is of the opinion that the mischief which would likely to be caused to the applicant by refusing the injunction is greater than the loss that is likely to be suffered by the opposite party in granting the injunction, the inevitable conclusion of the Court has to be that the balance of convenience favours the applicant.

(6) The nature of an injunction is to restrain the wrongdoer from obtaining any benefits arising from his own wrongful conduct.

(7) The primary purpose of granting an interim injunction is to maintain and preserve the status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit.

Cases referred to:

1. Martin Burn Ltd., Vs. R. N. Banerjee - (AIR) 1958 SC 79

2. Jinadasa Vs. Weerasinghe-31 NLR 33

3. Preston Vs. Luck- (1834) 24 C.H. 497

4. F.D. Bandaranaike Vs. State Film Corporation - (1981) 2 Sri L.R. 287

5. Gulam Hussain Vs. Cohen-(1

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