SHARIF AND OTHERS VS. WICKRAMASURIYA AND OTHERS

SHARIF AND OTHERS VS. WICKRAMASURIYA AND OTHERS

COURT OF APPEAL
ERIC BASNAYAKE, J .
CHITRASIRI, J.
CA 972/2007
PR. LT. PUTTALAM 16097/P
SEPTEMBER 10,2008
JUNE 1, 5,2009
OCTOBER 8,2009
NOVEMBER 18, 2009

Restitutio-in Integrum -Primary Courts Procedure Act - Section 66 - Section 66 (1) (a) (i). Jurisdiction of the Court of appeal to entertain Revision/Restitutio-in-Integrum applications from Primary Court orders? Constitution Article 138 - 13th Amendment Article 154P(3) - High Court of the Provinces (Special Provisions) Act 19 of 1990 - Section 9 as amended by Act 54 of 2006.

The petitioner sought an order by way of restitutio in integrum and or revision to set aside an order made by the Primary Court Judge under Section 66 of the Act.

It was contended by the respondent that the Court of Appeal has no jurisdiction to hear revision applications filed against the orders or judgments of Magistrate Courts and that after the 13th amendment to the Constitution and Act 19 of 1990 the aggrieved parties should move the respective High Courts of the Provinces in Revision.

Held

(1) In terms of Article 138 Court of Appeal shall have and exercise sole and exclusive cognizance by way of appeal, revision. However Article 154 (3) has given the High Court Appellate and revisionary jurisdiction in respect of orders by Magistrateslprimary Courts. Hence the Court of Appeal ceased to enjoy sole and exclusive jurisdiction. Article 154 P did not take away the powers exercised by the Court of Appeal under Article 138.

Per Eric Basnayake, J.

"High Court is vested with original jurisdiction and is placed lower to the Court of Appeal in the order of Courts on superiority".

(2) Jurisdiction enjoyed by the Court of Appeal through Article 138 remains intact. Both Courts enjoy concurrent jurisdiction on matters referred to in Article 154 P (3)

(3) High Court of the Provinces (Sp. Prov) Act 19 of 1990 had made provision for the Court of Appeal either to transfer such appeal or application to High Court or to hear and determine such applications.

Per Eric Baaeyake, J.

"I am of the view that it is more expedient for the Court of Appeal to hear and conclude this case rather than to transfer it to High Court  and for the reasons given on the merits I find that the learned Judge has gravely erred in her order.

(4) The fact that the Primary Court had not made an effort to persuade parties to arrive at an amicable settlement fundamentally affects the capacity or deprives the Primary Court of competence to hold an inquiry into the question of possession.

APPLICATION for Revision/Restitutio in Integrum from an order of the Primary Court of Puttalam.

Cases referred to:-

(1) Kanagasabai vs. Mylvaganam 78 NLR 280
(2) Ramalingam vs. Thangarajah 1982 2 Sri LR 693
(3) David Appuhamy vs. Yassassi Thero 1987 1 Sri LR 253
(4) Punchi Nona vs. Padmasena 1994 2 Sri LR 117
(5) Tundor us. Anulawathie 1999 3 Sri LR 235
(6) Ali vs. Abdeen 2001 1 Sri LR 413
(7) In Re the Thirteenth Amendment 1987 2 Sri LR 312 at 323
(8) Abeywardane vs. Ajith de Silva 1998 1 Sri LR 134
(9) Gunaratne vs. Thambinayagam 1993 2 Sri LR 335
(10) Kanaglingam vs. Logeswaran CA (Rev) 686197 C.A.M. 9.6.1999
(11) Ramalingam vs. Paramashwary 2000 2 Sri LR 340

lkram Mohamed PC with Manjula Niyalpola for petitioner.
Rohan Sahabandu with Athula Perer for respondents.

October 21st 2010
ERIC BASNAYAKE J.

The Petitioners-second party (petitioners) are seeking inter alia an order by way of restitution in integrum and/or revision and to set aside the order dated 17.10.2007 of the learned Additional Magistrate of Puttalam. By this order the learned Judge had determined that the respondents (1st and 2nd respondents) were in possession of the land (subject matter) two months prior to the date the information was filed and thus not to disturb their possession.

The petitioners' case

    The extent of the disputed land

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