Articles on Legal Subjects

Seminar Papers

 

 

A COMMENTARY ON THE REPORTED CASE LAW ON INJUNCTIONS: 

INDEX OF CASES REPORTED IN THE NEW LAW REPORTS AND THE SRI LANKA LAW REPORTS

-Kalinga Indatissa PC
  1. Mahamado Vs. Ibrahim, 02 NLR 36
  2. Silva Vs. Appuhamy, 04 NLR 178
  3. Sithambaram Vs. Palaniappa, 05 NLR 353
  4. Silva Vs. Silva, 06 NLR 225
  5. Pieris Et Al Vs. Pabillis Et Al, 10 NLR 30
  6. Alubhay Vs. Mohideen Et Al., 18 NLR 486
  7. Marrikkar Vs. Marrikkar Et Al., 18 NLR 481
  8. Pitche Tamby Et Al Vs. Casim Marikkar Et Al., 18 NLR 111
  9. Muththusamy Vs. Sathasiwam Aiyar, 19 NLR 415
  10. Sego Madar Vs. Makeen, 27 NLR 227
  11. Thamotharampillai Vs. Arumogam, 28 NLR 406
  12. Rambukpota Vs. Jayakoddy, 29 NLR 383
  13. Zahira Umma Vs. Abdul Raliman, 29 NLR 411
  14. Jinadasa Vs. Weerasinghe, 30 NLR 283
  15. Jinadasa Vs. Weerasinghe, 31 NLR 283
  16. Muthaliph Vs. Mansoor Et Al., 39 NLR 316
  17. Pounds Et Al Vs. Ganagama, 40 NLR 73
  18. Gnanamutu Vs. Chairman, Urban Council (Bandarawella), 43 NLR 366
  19. R.Murugesu Vs. The Northern Divisional Agricultural Producers’ Cooperative Union, Ltd, 54 NLR 517
  20. Buddhadasa Vs. Nadaraja 56 NLR 573 2
  21. Ladamuttu Pillai Vs. Attorney General, 59 NLR 313
  22. S.Deeresuriya Vs. B. Vander Poorten, 63 NLR 226
  23. Arnolis Silva Vs. Tambiah, 63 NLR 228
  24. D.S.Dissanayake Vs. Agricultural And Industrial Credit Corporation, 64 NLR 283
  25. Richard Perera Vs. Albert Perera, 67 NLR 445
  26. In Re Cader, 68 NLR 293
  27. Pragnarama Thero Vs. Minister Of Education, 71 NLR 506
  28. Mallika Ratwatte Et Al., Vs. The Minister Of Lands, 72 NLR60
  29. Ceylon Hotels Corporation Vs. Jayatunge, 74 NLR 442
  30. Suntharalingam Vs. Attorney General & Two Others, 75 NLR 126
  31. Suntharalingam Vs. Attorney General & Two Others, 75 NLR 318
  32. Hewawasam Gamage Vs. The Minister Of Agriculture And Lands, 76 NLR 25
  33. Thambipillai Vs. Thambumuttu, 77 NLR 97
  34. Felix Dias Bandaranayake Vs. The State Film Corporation and Another 1981 2 SLLR 287
  35. Hotel Galaxy (Pvt) Ltd. And Others Vs. Mercantile Hotels Management Ltd. 1987 1 SLLR 5
  36. Collettes Ltd. Vs. Commissioner of Labour and Others 1989 2 SLLR 6
  37. Amerasekere Vs. Mitsui and Company Ltd., and Others 1993 1 SLLR 22
  38. Rajan and Two Others Vs. Sellasamy 1994 2 SLLR 377
  39. Hyderabad Industries Ltd. Vs. Idac Trading (Pvt) Ltd., and Two Others 1995 2 SLLR 304
  40. Sooriya Enterprises (International) Limited Vs. Michael White & Company Limited 1997 1 SLLR 13
  41. Walker Sons & Co. Ltd. Vs. Wijayasena 1997 1 SLLR 293
  42. Yasodha Holdings (Private) Ltd. Vs. People’s Bank 1998 3 SLLR 382
  43. Haji Omar Vs. Wickremasinghe and another 1999 1 SLR 82
  44. Peoples Bank Vs. Hewawasam 2000 2 SLR 29
  45. Ajith Vs. Ceylon Paper Sacks Ltd 2000 3 SLR 64
  46. Krishnamoorthy Vs. Ganeshan 2004 1 SLLR 374
  47. Ceylon Cold Stores Ltd. Vs. Whittall Boustead Ltd. 1980 2 SLR 120
  48. Dias Vs. .Kodithuwakku 1999 3 SLR 354
  49. Fernando Vs. Dias and Others 1980 2 SLR 48
  50. Hentley Garments Ltd. Vs. J. S. A. Fernando 1980 2 SLR 145
  51. Krishnapillai Vs. .Shanmugarajah and Others 1980 2 SLR 23
  52. Kumarihamy and Others Vs. Wimaladasa 1999 3 SLR 175
  53. Phoenix Advertising (Pvt) Ltd. Vs. H. A. Abhayagunawardena, Deputy Secretary To The treasury 1994 3 SLR 361
  54. Ratnapala Vs. Metro Housing Constructions (Pvt) Ltd 2005 3 SLR 217
  55. Seylan Bank Ltd Vs. Piyasena and Another 2005 2 SLLR 131
  56. Pathirana Vs. Gerti And Others 2006 3 SLLR 197
  57. Shell Gas Lanka Ltd. Vs. Samyang Lanka (Pvt) Ltd. 2005 3 SLLR 14
  58. Gunasekera Vs. Archibishop Of Colombo And Others 2005 2 SLLR 253 4

I have identified all the reported case law in Sri Lanka relating to injunctions. I have reproduced the head notes of all the cases and below each case. I have made comments on the applicability of these cases as at present in view of the changes that the Law has gone through over the years.

  1. Mahamado Vs. Ibrahim, 02 NLR 36

Injunction – Power of Supreme Court to grant it – money paid under sanction of court – Garnishee order under Section 230 of the Civil Procedure Code – Courts Ordinance section 22.

A held an assignment from B of a mortgage bond granted by I to B to secure payment by B of a certain sum of money. M a creditor of B, obtained in an action brought by him a money decree against him to show cause why he should not pay M the sum which he owed M’s debtor, B, on the bond. I, who had notice of the assignment in favour of A, showed no cause, and order was made that he should pay into court the said sum if he failed to do so, and M thereupon obtained a writ against I, and had the property mortgaged by him to B seized and advertised for sale. A then moved the Court to have the writ recalled. The motion was disallowed, and A appealed. Pending the appeal he applied to the Supreme Court for an injunction to restrain the sale of the property seized under M’s writ.

Held, that he was not entitled to it, as no irremediable injury was likely to result from the act sought to be restrained. A, in the circumstances, still having his right to recover from I the amount due to him on the assignment. There is no inherent power in the Supreme Court to issue injunctions. Its jurisdiction to do so is restricted to the cases referred to in section 22 of the Courts Ordinance; and the special circumstances in which such jurisdiction is to be exercised are (1) that irremediable mischief would ensure from the act sought to be restrained; (2) that an action would lie for an injunction in some court of original jurisdiction; and (3) that the plaintiff prevented by some substantial cause from applying to that Court. It is a well established principle that the law will not compel a person to pay a sum of money a second time which he has paid already under the sanction of a Court competent jurisdiction, but a person seeking to benefit by this principal must have done all that was incumbent on him to resist the payment.

COMMENT – The provisions of Section 22 of the Courts Ordinance are similar to the provisions of Article 143 of the 1978 Constitution. Both these sections deal with the power of the Superior Courts to grant injunctions in cases of urgency. This case can still be considered as a judgment identifying the basic requirements of 5 applications of such nature. However, this judgment cannot be applied on an adhoc basis in view of the developments of the Law.

  1. Silva Vs. Appuhamy, 04 NLR 178

Injunction – Ordinance No1 Of 1889 section 89 and Civil Procedure Code, section 662 – Irregularity in issue of injunction – Disobedience – Contempt of Court.

Per Lawrie J – An injunction granted by a competent court must be obeyed by the party whom it affects until it is discharged, and disobedience thereto is punishable as for a contempt of court. Notwithstanding that it was irregularly issued.

COMMENT – This Judgment is still in force and is applicable as one of the earliest cases where this issue had been discussed.

  1. Sithambaram Vs. Palaniappa, 05 NLR 353

Delay to come to Court.

  1. Silva v Silva 6 NLR 225

Sufficient reason for issue of

  1. Pieris Et Al Vs. Pabillis Et Al, 10 NLR 30

Injunction improperly obtained – Damage – Principal of assessment. Where a plaintiff affected by such an injunction on sufficient grounds, he is liable in damages to the party affected by such injunction. In awarding such damages the real damage suffered ought to be ascertained. The plaintiff should not be punished for any breach of duty, and no extraordinary presumption should be made against him. The principle laid down by Romer J. in Mansell v British Linen Co Bank [(L.R., 1892), 3 ch. 159.

COMMENT – This is a useful case that can be made use of even today with reference to section 667 of the Civil Procedure Code.

  1. Alubhay Vs. Mohideen Et Al., 18 NLR 486

Injunction – Courts Ordinance, 1889, section 87(3) – Claim to compensation under the Riot Damages Ordinance No 23 of 1915. 6 Before granting an injunction under section 87, subsection (3), of the Courts Ordinance, 1889, the Court should find on sufficient material not only that the defendant threatened or was about to dispose of the property, but he had the intention to defraud the plaintiff thereby.

De Sampayo J – A specific debt due to the defendant from a third party may possibly come within that description of property, but I find it difficult to regard a claim for compensation payable under the Riot Damages Ordinance, No 23 of 1915, as propert6y in the nature of a debt.

COMMENT – This is a useful case concerning matters where the plaintiff has invoked the provisions for injunctive relief on the basis that the defendant is attempting to alienate property. This case refers to the burden on the plaintiff in such an instance.

  1. Marikkar v Marikkar 18 NLR 481

Mohammedan law – Marriage of boy of seventeen years of age – Father and grandfather dead – Application by paternal uncle for injunction to prevent marriage – Courts Ordinance, 1889, section 87 – Is consent of parents or guardian necessary to contract marriage? Capacity to marry – Age of majority.

COMMENT- This case cannot be considered as authoritative for any aspect of Law of injunctions.

  1. Pitche Thamby v Cassim Marikkar 18 NLR 111

Controversies between rival religious sects as to points of doctrine or ceremonial Power of Court to interfere – Action against trustees of a mosque to restrain them by injunction from allowing a pagoda procession in mosque premises.

  1. Muththusamy v Sathasivam Aiyar 19 NLR 415

See Civil Procedure Code.

  1. Sego Madar v Makeen 27 NLR 227

Building on another’s land – Order to remove encroachment – Damages. 7 Defendant broke down an old house and built a new one, and in doing so for an injunction to compel the defendant to remove building and restore a strip of land.

Held that in the circumstances if the plaintiff could be compensated by the way of damages, the injunction should not be granted.

COMMENT – The law has undergone a major change in the later years. This case was decided at a time that the English Courts were of the view that wherever damages were available, no injunction should issue. This principle was followed by our courts too. The law has changed now. Even where damages are available an injunction would issue in certain circumstances. To this extent the above case cannot be considered as binding authority.

  1. Thamotharampillai v Arumugam 28 NLR 406

Injunction – Action by one trustee against another – Hindu Temporalities – Courts Ordinance, section 87(1). In an action brought by the co-trustee of a Hindu temple against another for the removal of obstruction caused by a building to the free passage of religious worshippers,-

Held that the plaintiff was entitled to ask for an order for the removal of the building.

COMMENT – This case is important in considering common law rights and the issue of injunctions in such situations.

  1. Rambukpota v Jayakody 29 NLR 383

Prayer in plaint – Affidavit – Civil Procedure Code section 662. Where the plaint in action includes a prayer for an interim injunction, the application for an injunction must be supported by an affidavit.

COMMENT- This is one of the earliest cases where it was held that an affidavit is necessary in an application for injunctive relief. Now there is no issue on this aspect since specific provisions are contained in sections 54 of the Judicature act and section 664 of the Civil Procedure Code. 8

  1. Zahira Umma v Abdul Raliman 29 NLR 411

Servitude of light and air -Construction of building.

  1. Jinadasa v Weerasinghe 30 NLR 283

Interim order – Application to discharge injunction – Interlocutory order –Civil Procedure Code, sections 377 and 666 Where an application is made to discharge an interim injunction issued at the instance of the plaintiff, the defendant should follow the procedure indicated in sections 377 and 666.of the Civil Procedure Code.

COMMENT – This was a recognized judgment until the amendment to section 664 introduced in 1988. Under the earlier law it was possible to move to discharge an interim injunction issued earlier by filing a petition supported by an affidavit. This is no longer possible and the remedy for a party who is affected is to proceed with an application to the Supreme Court as held in the recent case of …………………………………… .

  1. Jinadasa v Weerasinghe 31 NLR 33

Application for interim order – Good grounds – Limitation of order – When injunctions should issue. An interim injunction should not be granted ex parte, unless it is supported on strong grounds and all necessary facts are disclosed. Where such an application is granted, it should as a rule be limited to a certain date to allow notice to be given to the other side. Injunctions cannot be obtained for actionable wrongs, for which damages are the proper remedy.

COMMENT- This is one of the earliest case where the grounds for the issue of an injunction were discussed. These principles still have legal validity with slight changes. However, the relevant portion of the judgment which refers to exparte orders will not be applicable today since the law states that no exparte injunctions could be issued. The relevant portion dealing with damages being an adequate remedy will also apply with necessary modifications that the law has experienced over the years. 9

  1. Muthaliph v Mansoor 39 NLR 316

Co-owners – Right to remove building.

  1. Pounds et al v Ganegama 40 NLR 73

Partnership action – Interim injunction to remove defendant and to place plaintiff in procession – Power of Courts – Court Ordinance, No 1 of 1889, section 87. A court has no power under section 87 of the Courts Ordinance to remove a defendant who is in possession of the subject matter of the action and to place the plaintiff in possession pending the result of the action.

COMMENT – This position continues. Even today a court cannot issue an injunction to dispossess another.

  1. Gnanamuththu v Chairman, Urban Council Bandarawela 43 NLR 366

Issue of order for interim injunction – Order restraining interference with petitioner’s water supply – Attempt by second respondent to forestall the order of the Supreme Court – Contempt of Court – Courts Ordinance, sections 20 and 47 – Civil Procedure Code section 663. On November 10th 1941, the petitioner gave notice to the second respondent the Urban Council of Bandarawela, of an action which he intended to institute in the District Court of Badulla to obtain a perpetual injunction restrain the council from interfering with the water supply to petitioner’s premises at Bandarawela. On November 11 the petitioner applied to the Supreme Court for an interim injunction against the council, restraining the council from interfering with, or disconnecting the petitioner’s water supply, pending the action. The order for an interim injunction was accordingly issued. On December 22 1941, the petitioner made an application to court by way of motion, asking the court to take cognizance of the contempt of court committed by the first respondent in disobeying the order of the court and to direct the respondents to restore the water supply of the petitioner.

Held, that the Supreme Court had the power, under section 20 of the courts Ordinance to issue a mandatory injunction and to order the respondents to restore the water supply of the petitioner. Held, that the Supreme Court had the power under section 20 of the Courts Ordinance, to issue a mandatory injunction and to order the respondents to restore the water supply to the condition in which it stood on November 10 1941. Held, further, that the 1st respondent, in taking steps to make it appear that the petitioner’s water supply had been discontinued before notice of the interim injunction reached him had attempted to forestall the order of the Supreme Court and was guilty if Contempt of Court.

COMMENT – This case is important regarding the power of courts to issue mandatory injunctions and the power of the appellate courts to issue injunctions in a case of urgency. It also deals with contempt of an injunction.

  1. Murugesu v The Northern Divisional Agricultural Producers’ Co-operative Union, Ltd 54 NLR 517

Injunction – Circumstances when application for interim injunction and main action may be heard together. An action in connection with which an interim injunction is sought may be heard and disposed of by Court without a preliminary hearing in respect of the interim application if the material upon which the case rests is all relevant to the hearing of the application for the interim injunction.

COMMENT – This case cannot be held to be an authoritative judgment. Over the years the question whether a court can consider the merits of the whole case at the stage of granting an injunction has been considered in many cases. It is extremely undesirable if the court takes a long time to grant an injunction and awards it at the end of the case. The whole purpose of the provisions dealing with injunctions and the maintaining of the status quo until a final decision is made will be defeated if this takes place.

  1. Buddhadasa v Nadaraja 56 NLR 573

Injunction –Power of the Supreme Court to grant injunctions – Conditions Precedent – Liability of a servant of the crown – Courts Ordinance (cap6)section 20 – Income Tax Ordinance (cap188), section 79(2)(a). In an application for an injunction to restrain the respondent, in supposed performance of his functions as Deputy Fiscal, from wrongfully seizing and selling the movable property of the petitioner in alleged pursuance of the provisions of section 79(2)(a) of the Income Tax Ordinance

Held, that the power of the Supreme Court to grant injunction sunder section 20 of the Courts Ordinance “is a strictly limited one to be exercised only on special grounds and 11 in special circumstances.” An injunction will not therefore be granted if the petitioner was in a position to apply to the District Court for an in junction at about the time that he filed his application in the Supreme Court or even if between the date of his filing his petition in the Supreme Court and the date of hearing of arguments, the petitioner could have instituted action in the District Court. Held further, that a servant of the crown purporting to act in his official capacity on behalf of the crown can be restrained from so acting by an injunction issued against him as an individual.

COMMENT – This case deals with the power of courts to grant injunctions in cases of urgency. The essence of this judgment is that such injunctions have to be granted only in extreme cases where the party seeking same is prevented from proceeding to an original court for relief in view of certain circumstances or statutory restrictions. This is a sound judgment to follow by the Court of Appeal in the exercise of it’s jurisdiction under Article 143 of the Constitution.

  1. Ladamuttu Pillai v Attorney General 59 NLR 313

Land Commissioner – Liability to be sued in his official capacity – His status as a corporation – Injunction may be issued against him – Courts Ordinance ,section 86. An injunction under section 86 of the Courts Ordinance can be issued against the Land Commissioner restraining him from taking steps to acquire a land unlawfully.

COMMENT – This Judgment has no applicability now in view of section 24 of the Interpretation Ordinance which states that no injunction can be issued to restrain the State or its officers. This judgment is authoritative on another aspect of Civil Procedure. It deals with the concept of “nominii officii”.

  1. Dheerasooriya v Vanderpooten 63 NLR 226

Partition Act – Proceedings there under – Power of Court to issue an injunction in respect of movable property- Power of Court to appoint receiver – Courts Ordinance (cap6),section 86 – Civil Procedure Code ,section 671 et seq see partition Actions (3)B.

  1. Arnolis Silva v Tambiah 63 NLR 228

Injunction – Ex parte application -Power of Supreme Court to grant it without notice to opposite party – Interference by police with private rights of property – Town and Country Planning Ordinance, No 13 of 1946 sections 6(2)(b),46 – Housing and Town 12 Improvement Ordinance (cap 199), section 12 – Courts Ordinance, section 20 – Civil Procedure Code, sections 664.

Under section 20 of the Courts Ordinance the Supreme Court has power in a fit case to grant an injunction after only ex parte hearing and without prior notice to the opposite party. The superintendent of Police, Matara and other police officers acting under his orders were preventing the petitioner from erecting on his own land temporary stalls and structures for the conduct of the fair known as the “Dondra Fair”. The petitioner applied for an injunction under section 20 of the Courts Ordinance. He alleged that the interference by the police purported to be in reliance upon Orders made under the Town and Country Planning Ordinance No 13 of 1946. Prima facie the interference complained or appeared to be an extraordinary nature and likely to cause “irremediable mischief” if not restrained by immediate injunction.

Held, that in circumstances did not render it essential that the respondent be given an opportunity of being heard prior to the issue of an injunction. Neither the Town and Country Planning Ordinance nor the Housing and Town Improvement Ordinance empowers a police officer to enter upon private property, or to use force, in order to prevent the erection of structures in contravention of the statutory provisions. Semble: There is no provision of law which justifies the use of police power to obstruct the exercise of private rights of private property which do not involve the commission of crime or a likely breach of peace.

COMMENT – This judgment is valid even today as regards the circumstances under which the Court of Appeal could grant injunctions.

 

  1. Dissanayake v Agricultural And Industrial Credit Corporation 64 NLR 283

Injunction – Power of Court to issue an interim injunction – Scope – Agricultural and Industrial Credit Corporation Ordinance, Section 80 – Civil Procedure Code, section 667. In an application for an interim injunction the proper question to decide is “whether there is a serious matter to be tried at the hearing.” If it appears from the pleading already filed that such a matter does not exist the further question is whether the circumstances are such that a decree which May ultimately be entered in favour of the party seeking the injunction would be nugatory or ineffective if the injunction is not issued. Where property mortgaged under the Agricultural and Industrial Credit Corporation is sold by the Corporation in pursuance of statutory powers conferred on it and the 13 mortgagor institutes action for a declaration that the sale was void on the ground of material irregularity, the mortgagor may apply for an interim injunction restraining the Corporation from confirming the sale.

COMMENT – This is a very important case in the field of injunctions. It sets out the circumstances under which a court may issue an injunction. Before the three sequential questions are considered the court has to consider whether the applicant has an enforceable right.

  1. Richard Perera v Albert Perera 67 NLR 445

Injunction – Prima facie case against applicant’s claim for substantive relief – Effect on claim for interim injunction – Courts Ordinance section 86 (b) – Director of Company – Contract of loan with the Company – Inference of vacation of office – Companies Ordinance, Schedule I Table A Article 72(g). Where in an application for an interim injunction, in terms of section 86(b) – of Courts Ordinance the materials placed before the court at the inquiry reveals information which justifies the prima-facie view that the plaintiff is not entitled to the substantive relief claimed in the plaint, it would be wrong for the court to ignore such information and issue the injunction. Plaintiff sued for a declaration that he was the life managing director of the 5th defendant Company, of which the first three defendants were ordinary Directors and the 4th defendant Company functioned as the agents and Secretaries of the Company. He sued also for an interim injunction restraining the defendants from removing him from the office of Managing Director and from interfering with his duties and functions in that capacity. The defendants arrived that the plaintiff had obtained loans from the company and thereby vacated his office of managing Director by virtue of the provisions of Article 72(g) of Table “A” of schedule I of the Companies Ordinance. At the inquiry the plaintiff admitted that he borrowed money from the Company, but the District judge thinking that proviso to Article 72operated to prevent vacation of office by the plaintiff, made an order allowing the interim injunction. At the hearing of the appeal filed by the defendants it was agreed that the power of the District court to issue the interim injunction flowed only from paragraph (b) of section 86 of the Courts Ordinance.

Held, that although the trial judge should not decide the substantive question in considering an application for an injunction, some consideration of the substantive question at this early stage is not relevant. In the present case the form of the plaint and then admission of the plaintiff had in fact borrowed money from the Company 14 operated against the plaintiff. Reference to the main provisions of article 72(g) of the table “a” of the Companies Ordinance should have sufficed to lead the court to the prima-facie opinion that the plaintiff had probably vacated office by reason of the contracts of loan. Accordingly, the plaintiff was not entitled to an interim injunction.

COMMENT – This too is an important judgment which sets out the matters for consideration by a court hearing an application for an injunction. The main area which has an impact even today is that portion of the Judgment which states that the case of the plaintiff has to be looked at by the Court.

  1. In Re Cader 68 NLR 293

Contempt of Court – Scope of sections 47 and 57 of the Courts Ordinance – Injunctions granted by District Court – Disobedience of such injunction – Power of Supreme Court to punish the offender – Civil Procedure Code sections 137,294,295,358,650,663,713,717,718,792. Where an injunction granted by a District Court was disobeyed.

Held that the Supreme Court power to punish the offender for contempt of Court.

COMMENT – This case deals with the circumstances under which the court can take action against a party for contempt of an injunction.

  1. Pragnarama Thero v Minister of Education 68 NLR 506

“Interlocutory injunction” – Considerations applicable – Irreparable damage – Rule of “balance of convenience”. An interlocutory injunction will not be granted if there is no likelihood of irreparable damage being caused to the petitioner. Moreover the burden of proof that the inconvenience that the petitioner will suffer by the refusal of the injunction is greater that which the respondent will suffer, if the application is granted, lies on the petitioner.

COMMENT – This is a judgment which continues to have an effect on the aspect of the circumstances under which an injunction may be granted by the court. It also deals with the burden of proof on an applicant.

  1. Ratwatte v Minister of Lands 72 NLR 60

Compulsory acquisition of land – Interim injunction to restrain it – Requisite conditions – Suspicion of malice – Duty of Court then to scrutinize the acquisition – Land Acquisition Act sections 4(1),5,38)proviso)-Courts Ordinance section 20. See land acquisition Act (1)

  1. Ceylon Hotels Corporation v Jayatunge 74 NLR 442

Injunction – Order granting an interim injunction – Right of appeal there from – Courts Ordinance Section 86, section 73 – Civil Procedure code, section 666- Rest house – keeper appointed by Tourist Bureau- Appointments subsequently held by him under Tourist Board and, on probation under Ceylon Hotels Corporation – Termination of his services by the Corporation – Whether he can claim an interim injunction Tourist Board Act No 10 of 1966 section 56 – Motor Transport Act No 48 of 1957 sections 9(3)(a),9(3)(b)(i),9(3)(b)(ii). A party who is dissatisfied with an order granting an interim injunction is entitled to appeal there from to the Supreme Court under section 73 of the Courts Ordinance. The plaintiff who was appointed by the Tourist Bureau as a Rest House – Keeper in 1957 was subsequently employed by the Tourist Board on 1st May 1996 when the Tourist Board Act No 10 of 1966 came in to force on that day. On acceptance of employment under the board the provisions of section 9(3) (a) of the Motor Transport Act applied to him and he ceased to be a public servant. He then worked for the defendant (the Ceylon Hotels Corporation) temporarily on the conditions offered to him. When he was found unfit and discontinued he filed the present action and obtained an interim injunction from the District Court restraining the defendant from ejecting the plaintiff from the Kitulgala Rest House. The plaint prima facie did not disclose a right to the occupation of the Rest House. The plaintiff’s causes of action appeared to be based on the contract of service.

Held, that the plaintiff was not entitled to an interim injunction. Such an injunction is granted on equitable grounds and the conduct and dealings of the parties before the application to Court should be taken into consideration.

COMMENT – This is a case that is commonly cited in courts regarding the duty of the applicant to have an unquestionable conduct. It is important that the applicant comes to court with clean hands.

  1. Suntharalingam v Attorney General 75 NLR 126

Injunction Proceedings against establishment of Constituent Assembly – Supreme Court cannot order discontinuance proceedings. In an application to obtain an injunction to prevent and prohibit the Minister for Constitutional Affairs “from taking any steps to repeal the Ceylon Constitution and Independence) Orders in Council 1946 and 1947 and to substitute therefore a constitution entitled a “Constitution of Sri Lanka.”

Held, that a court cannot consider the validity or otherwise of a new constitution, unless and until a new constitution is established or purported to the established.

  1. Suntharalingam v Attorney General 75 NLR 318

Injunction – Proper forum for seeking it – Scope of Courts Ordinance (cao6) section 20. In an application for an injunction against the competent authority appointed for the purpose of Regulation 14 of the Emergency (Miscellaneous Provisions and Powers) Regulation No 5 of 1971, the petitioner’s complaint was that the competent authority had wrongly refused to pass for publication certain correspondence which the petitioner had with the Minister of Constitutional Affairs concerning the proposed new Constitution for Sri Lanka. The petitioner claimed an injunction under section 20 of the Courts Ordinance restraining the Competent Authority from further preventing the publication by the petitioner of the correspondence. Although his application was pending in the Supreme Court for two months, the petitioner did not during this interval take any step towards the institution of an action in the District Court.

Held, that an injunction could not be granted if only for the reason that the proper forum in which an injunction must be sought is an original court and not the Supreme Court and, unless there is good and substantial reason why a petitioner cannot go to the proper forum for relief. The excuse given by the petitioner that the effect of an injunction granted by the District Court might have been stayed or delayed by an appeal to the Supreme Court, was of no avail; when the legislature in section 20 of the Courts Ordinance recognized the District Court to be the proper forum in which to seek an injunction the legislature was aware that an order of that Court may be subject to appeal.

COMMENT – This case deals extensively with the jurisdiction of the Appellate Courts to grant injunctions.

  1. Gamage v Minister of Agriculture and Lands 76 NLR 25

Land acquisition – Application for interim injunction – Courts Ordinance, section 86 see Land Acquisition Act.

  1. Thambipillai v Thambumuttu 77 NLR 97

Injunctions – Perpetual injunction issued by a District Court – disobedience to it – Not punishable by the District Court as contempt of court – Patent want of jurisdiction of a court – Not curable by consent of parties – Civil Procedure Code (cap 101),sections 662,663,792 et seq – Courts Ordinance (cap6) sections 57,62 to 67,71,87. In an action for trespass instituted in a District Court the plaintiffs-respondents obtained a “permanent” injunction restraining the defendants- appellants from entering a land belonging to the plaintiffs. About a year later the plaintiffs complained on 5th August 1970 that the defendants had acted in disobedience of the permanent injunction issued by the court and moved under chapter 65 of the Civil Procedure Code that contempt proceedings be taken by the court against the defendants. At the commencement of the inquiry, Counsel for the defendants stated that he agreed with submission of counsel for the plaintiffs that disobedience to a permanent injunction is punishable a contempt of Court under chapter 65 of the Code. The Court thereupon, after inquiry, convicted the defendants of the offence of contempt of the District Court.

Held, that, assuming, without so holding, that disobedience to a perpetual injunction is an act or omission done or committed in the course of an act or proceeding in a court, there is no provision in law that makes such disobedience punishable ”as a contempt “ within the meaning of section 57 of the Courts Ordinance. Therefore, the District Court had no “jurisdiction “to take contempt proceedings against the defendants. Section 662 of the Civil Procedure Code is applicable only to interim and interlocutory injunctions. Held further, (i) That the fact that the defendants agreed in the District Court that contempt proceedings could in law be taken against them could not stop them from contending in appeal that the District Court had no jurisdiction. The lack of jurisdiction in the District Court was, here, a patent lack of jurisdiction and as such could not be cured by acquiescence.  (ii) That where the lack of jurisdiction of a District Court is patent, the provisions of section 71of the Courts Ordinance is not applicable.

COMMENT – This case deals with the power of the District Court to deal with a defendant who is alleged to have committed contempt of a permanent injunction. The decision in this case which states that the District Court has no power in such an instance to charge the violators for contempt still is the law.

  1. Ceylon Cold Stores Ltd. v Whittall Boustead Ltd. 1980 2 SLR 120

Interim injunction – Section 54(1) (b), Judicature Act – Considerations applicable – Serious matter to be tried at the hearing – Whether prima facie case of violation of rights tending to render judgment ineffectual – Balance of convenience. The respondent company acquired a large number of shares in the petitioner company (upon transfers, as well as allotments on bonus and rights issues) while being its Managing Agents and Secretaries. Regulations under the Imports and Exports (Control) Act imposed restrictions on the issue of licences to non-citizens the petitioner’s Articles of Association entitled its Board to decline to register transfers to non-citizens. The petitioner alleged that the respondent could not be deemed to be a “citizen”, and had obtained the aforesaid transfers and allotments by misrepresentation, and instituted action for their cancellation. Similar actions were filed against three associate companies of the respondent. The petitioner unsuccessfully also sought interim injunctions restraining the respondent and its associates from exercising their voting rights; the applications for leave to appeal were refused by the Court of Appeal. Thereafter another shareholder requisitioned an Extraordinary General Meeting of the petitioner for the removal of two of its directors. The petitioner again sought an interim injunction to restrain the respondent and its associates from exercising their voting rights at the requisitioned meeting. The District Court order having refused such interim injunctions, the petitioner applied for leave to appeal and revision.

Held: That the petitioner was seeking to get, with special reference to the Extraordinary General Meeting, what it failed to get initially. It was bound by the earlier order of the Court of Appeal and was therefore not entitled to be heard again on what was substantially the same matter. Held further, that “a party seeking an interim injunction under section 54(1)(b) of the Judicature Act No. 2 of 1978 must satisfy the Court that there is a serious question to be tried at the hearing. He must make out a prima facie case that during the pendency 19 of the action the opposing party is doing or committing …. an act or nuisance in violation of his rights …. in the subject-matter and also tending to render the ultimate judgment ineffectual. As this is an equitable remedy and purely discretionary, if a prima facie case has been found to have been made out, Court must go on and consider where the balance of convenience lies”. Interim injunctions were refused because:- (i) the registration of the impugned shares and the exercise of the voting rights attached thereto had not been shown to affect the petitioner in its trade or business nor its rights in the action; (ii) a prima facie case that the exercise of the impugned voting rights at the Extraordinary General Meeting would violate the rights of the petitioner in the subject-matter of the action had not been made out; nor that it would tend to render the judgment ineffectual.

  1. Fernando v. Dias and Others 1980 2 SLR 48

Injunction-Interim injunction issued under section 54 of Judicature Act-Application to the Court of Appeal for the exercise of its powers in revision in respect of such orderRequirement that such application be made to original Court in first instance-Civil – procedure- Code, section 666. The plaintiff had instituted an action in the District Court for a declaration that the 1st defendant had ceased to be the manager of a tile factory and for an injunction seeking to restrain the 1st defendant from having any hand in the business and from removing machinery and parts from the factory. The application for an interim injunction was allowed by the District Judge who issued the injunction as prayed for. The said defendant thereupon, without moving the District Court to vacate its ex parte order, filed this application invoking the revisionary powers of the Court of Appeal.

Held : It is not open to the petitioner to invoke the jurisdiction of the Appellate Court in the exercise of its revisionary powers without firs. having recourse to the original Court which issued the injunction to have it set aside in terms of section 666 of the Civil Procedure Code. It was not a sufficient excuse to plead that delay will be involved in filing papers and waiting for the District Court to fix a date of hearing and eventually dispose of the application. 20

  1. Hentley Garments Ltd v J. S. A. Fernando 1980 2 SLR 145

Contract – Agreement in restraint of trade – Considerations for issue of interim injunction. The petitioner company carrying on the business of manufacturing and exporting of garments, instituted action in the District Court against the respondent who was at one time employed by the petitioner company as a shift supervisor, for breach of a written contract of employment resulting from his resignation. The petitioner company sought an interim injunction against the respondent restraining him from engaging himself in employment in any garment manufacturing or exporting business in terms of the contract. After inquiry the learned District Judge refused to issue an interim injunction and vacated the enjoining order initially issued. The petitioner company appealed from that order.

Held: “All contracts in restraint of trade are prima facie void, and each case must be examined having regard to its special circumstances to consider whether or not the restraint is justified. The only ground of justification is that the restraint is reasonable having regard to interests of both contracting parties as well as to the interests of the public”. There was a serious question to be tried at the trial and this was not a case where material available to the District Judge at the time the order was made showed unmistakably that there was no case for an injunction at all; or that there was probably no right of the plaintiff which could have been violated. The facts and circumstances of the case seemed to show that this was a case where the learned District Judge should have dealt with the application for the interim injunction and the substantial dispute at one and the same time. The order was set aside and interim injunction as prayed for was directed to be issued.

  1. Krishnapillai v Shanmugarajah and Others 1980 2 SLR 23

Interim injunction -Exparte application made by plaintiff-Appearance by defendant on day such application supported-Counsel for defendant heard before order madeInjunction issued -Whether order made inter-partes-Requirements of section 54 (3) of Judicature Act, No.2 of 1978, and section 666 of the Civil Procedure code- Waiver of such requirements.

Held : 21 The provisions for notice contained in section 54 (3) of the Judicature Act, No.2 of 1978, and in section 666 of the Civil Procedure Code can be waived by the party for whose benefit it has been provided by the legislature. In the present case the defendantpetitioner appeared in Court and was being supported, and accordingly the order made by Court issuing an interim injunction was interpartes. The order of the District Court holding that no further application could be entertained to have the said interim set aside was therefore correct.

  1. Felix Dias Bandaranayake v The State Film Corporation and Another 1981 2 SLLR 287

Interim injunction- material on which Court should decide? Is oral evidence permissible ?-Regular and summary procedure – burden of proof – defamation suit – section 54 of the Judicature Act No. 2 of 1978 – tests to be applied in granting an interim injunction – ss. 662, 664, 666 C.P.C. In deciding whether or not to grant an interim injunction the following sequential tests should be applied; 1. Has the plaintiff made out a strong prima facie case of infringement or imminent infringement of a legal right to which he has title, that is, that there is a serious question to be tried in relation to his legal rights and that the probabilities are that he will win. 2. In whose favour is the balance of convenience- the main factor being the uncompensatable disadvantage or irreparable damage to either party? 3. As the injunction is an equitable relief granted in the discretion of the Court do the conduct and dealings of the parties justify grant of the injunction. The material on which the Court should act as the affidavits supplied by plaintiff and defendant. Oral evidence can be led only of consent or upon acquiescence. In a defamation suit the plaintiff must in addition establish, (i) That the matter complained of is defamatory, (ii) No defence such as truth or public benefit can be set up, (iii) Nothing has happened to deprive the applicant of his remedy such as the giving of consent. The burden of proof is on the plaintiff. In a defamation suit where the plaintiff seeks an interim injunction he must prove also that no defences such as justification and fair  comment can be set up though at the main trial the burden of proving these defences would be on the defendant. Note : This is one of the most important Judgments on injunctions. Justice Soza in a lengthy judgment has considered all important aspects of the Law of Injunctions in Sri Lanka.

  1. Hotel Galaxy (Pvt) Ltd. And Others v Mercantile Hotels Management Ltd. 1987 1 SLLR 5

Arbitration-Arbitration agreements-Scott v. Avery clause-Arbitration Ordinance ss. 4 and 7 – Discretionary power of court – Waiver – Contract of employment or agency – Specific performance – Possession – Injunction – Enjoining order – Section 666 of C.P.C. – Ex parte order – Vacation of enjoining order – Interim order under s. 67 of the Primary Courts Procedure Act – Suppression of material facts.

Held : 1) Arbitration clauses in contracts are of two main kinds, namely a. bare arbitration agreements where the provision for arbitration is a mere matter for procedure and does not include right of action on the contract itself but here the party against whom an action is brought can invoke the exercise of the discretionary power of the court to stay proceedings until an arbitration is held. b. Agreements making an arbitrator’s award a condition precedent to any right of action which will then be bound not on the original contract but on the arbitral award. Such a provision known as a Scott v. Avery clause bars the institution of a suit without prior recourse to arbitration culminating in an award. In England however the courts are vested with discretionary jurisdiction to override a Scott v. Avery clause in suitable cases and to treat it as a mere arbitration clause. 2) The arbitration clause is not displaced or abrogated by repudiatory breaches of the contract unless the contract itself or arbitration clause itself is invalid or not binding on the parties or the parties have waived it or are estopped from relying upon it. 3) In the instant case clause 10 of the agreement P1 is a Scott v. Avery clause making arbitration a condition precedent and as there was no recourse to prior arbitration the District Court had no jurisdiction to entertain the suit. 23 4) The relationship between the 1st defendant and the plaintiff was that of principal and agent or master and servant. Hence the remedy which the plaintiff can have is damages and not specific performance. 5) Possession can be immediate or direct or it can be mediated that is by an agent or servant or licencee. In all cases of mediate possession two persons are in possession of the same thing at the same time. In the instant case legal possession, construction it may be, has been with 1st defendant and never left it. The 1st defendant possessed the hotel through the plaintiff who was its Managing Agent. 6) The defendant could not in law have been restrained or enjoined. Per Sharvananda, G. J. “As ex-party enjoining orders and orders for interim injunctions may work grave hardship and injustice to parties who have not been heard, grave responsibility rests on a judge to exercise the discretion vested on him, judicially having due regard to the law…’ 7) The operation of an enjoining order can be suspended. 8) A party seeking to canvass an order entered ex-party against him must apply in the first instance to the court which made it. This is a rule of practice which has become deeply ingrained in our legal system. 9) It is settled law that the exercise of the revisionary powers of the appellate court is confined to cases in which exceptional circumstances exist warranting its intervention. 10) The order of the Primary Court Judge was in the nature of a temporary refusal of the interim order and was a material fact which should have been disclosed by the plaint in his application for the interim injunction. A Primary Court Judge has jurisdiction to make an interim order under s. 67 at any time after proceedings are instituted until conclusion of the inquiry and not only at commencement of the inquiry. Note : This is an important Judgment regarding the area of enjoining orders. 24

  1. Collettes Ltd. v Commissioner of Labour and Others 2089 2 SLLR 6

Industrial Law – Workman – Whether Group Managing Director, a workman within the meaning of the Payment of Gratuity Act No.12 of 1983 – Sections 8(1) and 13 – Affidavit – What an affidavit should contain – Full disclosure required in writ and injunction applications. An application for a writ of certiorari was filed by the petitioner to quash an order made by the 3rd respondent, the Assistant Commissioner of Labour awarding gratuity to the 4th respondent in a sum of Rs.87,500/-, and also for a mandate, in the nature of a writ of prohibition against the 1st and 2nd respondents from enforcing the said order. The 4th respondent was first appointed Managing Director, Colombo Paints Company on 1.5.80 and served in that capacity till 28.2.82. Thereafter the 4th respondent was appointed Group Managing Director of Collettes Group of Companies from which position he resigned with effect from 31.5.87. After his resignation, he made an application to the 1st respondent to obtain an order for payment of gratuity. After inquiry by the 2nd respondent, the 3rd respondent made the said award of Rs.87.500/-as gratuity.

Held : 1) that a Managing Director has a dual capacity of being an employee of the company and also at the same time takes part in the management of the company. The fact that as Managing Director or as Group Managing Director he takes part in the management of the affairs of the company does not deprive him of his other capacity as an employee of the said company. Therefore the 4th respondent falls within the definition of a “workman” set out in the Payment of Gratuity Act; 2) that the fact that a person received a special allowance or a compensatory allowance does not deprive him of the right to receive gratuity under the Payment of Gratuity Act. Such payment is not covered by the provisions of section 7 of the Payment of Gratuity Act; 3) that there is no specific requirement in section 8{1) of the Payment of Gratuity Act to call evidence. What seems to be necessary is, for the Commissioner to be satisfied of the relevant matters necessary to decide, on the question whether a person is entitled to gratuity or not; 4) that an affidavit should be confined to the statements of such facts as the declaring is able to state of his own knowledge and observation to testify; 25 5) that it is essential, that when a party invokes the writ jurisdiction or applies for an injunction, all facts must be clearly, fairly and fully pleaded before the court so that the court would be made aware of all the relevant matters. Note : This case has affirmed the principle that a party seeking Injunctive relief should come to court with clean hands.

  1. Amerasekere v Mitsui and Company Ltd., and Others 1993 1 SLLR 22

Company Law – Right of shareholder not qualified under 210 and 211 to bring derivative action as representative of the Company and injunctive relief – Locus standi. If in the circumstances it is impossible to get the company itself to bring an action to protect its own interests because the directors are unwilling or helpless to intervene, a shareholder can sue in his own name, but in truth on behalf of the company, to enforce rights derived from it. Where there is a prima facie case and a reasonable prospect of success and the plaintiff has actual and legally recognizable rights and the balance of convenience in his favour, an interim injunction should be granted. Per Amerasinghe J: “However I am unable to accept Mr. Amerasinghe’s submission that the plaintiff had no standing at all and his suggestion that the plaintiff’s case was, therefore utterly hopeless. If in the circumstances alleged by the plaintiff, he was unable to induce the fourth defendant company to take effective steps to protect its own interests, and if as he alleges what he complains of cannot be validly effected or ratified – by ordinary resolution, then it appears that he had every right as a representative of the company to obtain an injunction”.

  1. Rajan and Two Others v Sellasamy 1994 2 SLLR 377

Injunction – Requisites for an interim injunction – Judicature Act, section 54 -Rules 15(H) and 15(I) of the Constitution of the Ceylon Workers’ Congress (CWC) – Meeting of the National Council and Executive Council – Legality. The plaintiff M. S. Sellasamy who was the General Secretary of the Ceylon Workers’ Congress (CWC), sued for a declaration that the meetings of the National Council and Executive Council of the CWC held on 02.01.1994 were convened contrary to the 26 Constitution of the CWC and that all decisions taken at these meetings were null and void. He also sought interim and permanent injunctions restraining the 1st defendant who was the Vice-President (Administration) and the 2nd defendant who was the President of the CWC from implementing any of the said decisions. An enjoining order in terms of the prayer was entered on 03.1.1994 and after the parties were heard, an interim injunction. The meeting of the National Council of the CWC was convened for 10 a.m. on 02.1.1994 by notice issued by the 1st defendant dated 22.12.1993 setting out an agenda of two items: (i) Disciplinary action against members of the Central Province Provincial Council who acted in breach of the promise given by the CWC and (ii) The exchange of letters by the President of the CWC and General Secretary regarding representation by the CWC at the annual convention of the U.N.P. held on 18.12.1993. The Executive Council meeting was convened by notice dated 24.12.1993 for 8.30 a.m. on 02.01.1994 also issued by 1st defendant. Items 2 and 3 of the agenda of this meeting were related to the conduct of the members of the CWC who acted against the promise given by the CWC with regard to the matter in the Central Province Provincial Council and to summon the National Council to arrive at a final decision with regard to this matter. The plaintiff admittedly received both notices. He did not protest against the decision to convene the meetings nor did he attend either of the meetings though entitled to do so. The Minutes of the Executive Council record that the Council endorsed the decision of the President to convene a meeting of the National Council for that day and a resolution summoning an immediate meeting of the National Council was unanimously passed. The minutes also record that action should be taken against the plaintiff being the General Secretary and the eight members of the Central Province Provincial Council who acted against the CWC at that Council. At the National Council meeting a resolution was adopted that the plaintiff be suspended from the office of General Secretary with immediate effect and that he be called upon to resign from that office within a period of 14 days. It mandated the President to take appropriate steps for the removal of the plaintiff from the office of General Secretary in the event of his failure or refusal to submit his resignation. A copy of the resolution was sent to the residence of the plaintiff at 8.30 p.m. but the messenger was not permitted to enter the premises nor was the letter accepted. It has to be taken as established that the members of the Executive Council and the National Council received notices of the meetings and 165 out of the 197 members of the National Council did in fact attend the meeting. Rule 15(H) of the CWC Constitution give the National Council power to take disciplinary measures against the members of the Congress and Rule 15(I) stipulated a 2/3 majority for removal of 27 an office bearer. The steps taken were not to expel the plaintiff from membership of the CWC but to remove him from the post of General Secretary.

Held: 1) The provisions of section 54(1) of the Judicature Act postulate – (i) The test of a prima facie case whereunder a serious question to be tried as to the impugned act of the defendant the commission of which is sought to be restrained and the probability that the plaintiff is entitled to permanent relief in restraining the defendant from committing the impugned act. (ii) The whole of the case must be considered. (iii) that the matters looked at thereafter are the balance of convenience and the conduct of the respective parties. 2) The legal right claimed by the plaintiff in respect of which an interim injunction is sought relates to the post of General Secretary of the CWC. 3) The plaintiff has failed to satisfy the test of a prima facie case. He has failed to set out any act of the defendants the commission of which would produce injury to himself. No interim injunction has been sought or obtained in respect of the resolution of the National Council which took effect after the case was filed. On the grounds relied upon by the plaintiff relating to the convening of the two meetings, the plaintiff has failed to establish a prima facie case that he is entitled to a judgment for permanent relief against the defendants. 4) As regards the balance of convenience, the injunction has brought the CWC to a position where it is without a General Secretary who is competent to function but is unable to take further steps to remove the General Secretary. The 1st and 2nd defendants, who have been restrained have no power or authority to expel the plaintiff from the post of General Secretary. It is the National Council which has the plenary power to take disciplinary measures against the plaintiff as General Secretary. The plaintiff has every right to appear before the National Council and place his defence if he is so minded. In the circumstances the test of the balance of convenience favours the defendants and not the plaintiff. 5) Lastly, the conduct of the plaintiff in not attending the meetings although he had due notice of them, and instead seeking immediate relief in the District Court on the basis of an alleged procedural error in convening the meeting militates against the grant of an interim injunction. 28

  1. Phoenix Advertising (Pvt) Ltd. v H. A. Abhayagunawardena, Deputy Secretary To The treasury 1994 3 SLR 361

Injunction – Specific performance of contract of personal services such as contract of agency – Judicature Act, No. 2 of 1978 section 54 (1) – Prima facie proof.

Held: The respondent (applicant for interim injunction) had failed to adduce prima facie proof of being the sole advertising agent of the Development Lottery. An injunction will not lie in law to enforce specific performance of a contract of personal services such as a contract of agency. Per Ranaraja, J: ” … The servant cannot claim specific performance of the contract of employment nor an injunction restraining the employer from dismissing him and from taking consequential steps. The remedy of an employee who has been wrongfully dismissed is an action for damages.”

  1. Hyderabad Industries Ltd. v Idac Trading (Pvt) Ltd., and Two Others 1995 2 SLLR 304

Irrevocable or Confirmed Letter of Credit – Bill of Lading – Goods supplied not in conformity – Enjoining Order – Interim Injunction – Irreparable damage – Damages quantified – Contract of Indemnity – Fraud. The 1st Respondent (Buyer) instituted action against the Petitioner (Supplier), the 2nd Respondent (Shipping Company) and the 3rd Respondent (Bank), stating that it imported 19 container loads of corrugated asbestos roofing sheets from the Petitioner for which purpose the Petitioner opened a irrevocable Letter of Credit with the 3rd Respondent. This letter of Credit was amended, to include a condition that a certificate of the C.I.S.I.R. certifying that the goods conform to S.L.S. 9 of Part II, should be provided. The goods were inspected by the CISIR and they certified that the goods were not in conformity with SLS 9 (ii). The 1st Respondent also issued a Letter of indemnity to the 2nd Respondent endorsed by the 3rd Respondent. It was pleaded that due to the failure of the Petitioner to duly sell and deliver goods to the 1st Respondent it had suffered damages in a sum of Rs. 3.6 million. The 1st Respondent also averred that it would suffer irreparable loss and damage if the 3rd Respondent made payments on the Letters of Credit/indemnity to the Petitioner and the 2nd Respondent. The 1st Respondent obtained an Enjoining Order ex Parte 29 1. preventing the 3rd Respondent (Bank) paying or causing to be paid any money to the Petitioner and/or the 2nd Respondent (Shipping Company) 2. preventing the Petitioner and/or the 2nd Respondent from receiving any money upon the Letter of Credit/indemnity 3. preventing the Petitioner from receiving or claiming any money from the 2nd Respondent and the 2nd Respondent from paying any Money to the Petitioner upon and/or in terms of the Letter of Indemnity. The District Court after inquiry granted an interim injunction.

Held: 1) The Bills of Lading show that the goods were shipped on 19.10.93. The irrevocable Letter of Credit required a certificate of inspection issued by the Indian Export Council stating that the goods conform to SLS 9. (ii) except with regard to width to be produced before it could be honoured. On 10. 11.93 this condition was unilaterally amended by the 1st Respondent requiring a Certificate from CISIR, certifying that the goods conform to SLS 9 part 2 including width. Since the cargo was on Board ship as at that date the Petitioner could not in any way fulfill that condition. Thus it shows that the said condition was included in Bad faith. 2) The 1st Respondent subsequently took delivery of the goods and sold them in the open Market. This was done without any attempt on its part to repudiate the contract and return the goods to the Petitioner. Therefore it is difficult to fathom how then the 1st Respondent could suffer irreparable damage. Per Ranaraja, J. “A fundamental rule of the law on injunction is that where the damages or loss caused to a party seeking injunctive relief is quantified in damages on a prima facie balance of convenience. Courts should refrain from granting injunctive relief.” 3) As in the case of an irrevocable or confirmed Letter of Credit, a Letter of Indemnity obliges the 3rd Respondent Bank to pay the 2nd Respondent – Shipping Company on it irrespective of any dispute between the Petitioner and the 1st Respondent on the contract regarding the goods. It is an irrevocable obligation with which courts will not interfere with except when there is fraud, by one of the parties to the underlying contract and the Bank had Notice of that fraud. 30 4) The system of financing these operations would break down completely if a dispute between the Vendor and the purchaser were to have the effect of “freezing” the sum in respect of which the Letter of Credit was opened. The Courts jurisdiction to grant injunctions is wide, but this is not a case in which in the exercise of the Courts discretion it ought to grant an injunction. Note : This Judgment continues to be valid even as at to date. However, one should note that the essence of the judgment operates on the basis that in certain instances an injunction could issue notwithstanding the availability of damages.

  1. Sooriya Enterprises (International) Limited v Michael White & Company Limited 1997 1 SLLR 13

Interim injunction – Section 54 of the Judicature Act – Application for special leave to appeal – Prayer for interim order, pending inquiry, for restoring the interim injunction granted by the District Judge. The Court of Appeal acting in revision, set aside the interim injunction granted to the plaintiff by the District Judge.

Held: The Court will not pending inquiry into the application for special leave to appeal against the court of appeal judgment, grant an interim order having the effect of restoring the. Interim injunction granted by the District Judge for the reason that (a) the facts did not show that the conduct of the defendant was such as would render the ultimate judgment ineffectual, (b) an injunction is equitable relief.

  1. Walker Sons & Co. Ltd. v Wijayasena 1997 1 SLLR 293

Interim Injunction – Suppression of material facts – Finding without considering the contents of documents – Is it liable to be set aside. It is now settled that a person who makes an ex parte application is under an obligation to make the fullest possible disclosure of all the material facts and that if he does not make the fullest possible disclosure, then he cannot obtain any advantage which may have already have been obtained by him. The plaintiff-respondent had wrongfully suppressed the material fact that he himself acted in breach of his undertaking. If the letters D3 and D6 were placed before court 31 it would have been apparent that the plaintiff-respondents lack of finances was either an additional or even the sole reason for not paying the second installment. These two letters put a different complexion on the case of the plaintiff-respondent as presented by him, at the stage of the application for an enjoining order and contain material facts which would have reasonably affected the mind of the Judge. The finding that the plaintiff-respondent could not pay the agreed sum to the Bank because the defendant-petitioner failed to obtain the Notice of disclaimer has been arrived at without an adequate consideration of D3 and D6. The District Court had erred in finding that the plaintiff-respondent has disclosed all the facts at the stage of the enjoining order. “A party cannot plead that the misrepresentation was due to inadvertence or misinformation or that the Applicants was not aware of the importance of certain facts which he omitted to place before court.” Note : This Judgment discusses the rule of Uberrima fides and the concept of misrepresentation and its consequences.

  1. Yasodha Holdings (Private) Ltd. v People’s Bank 1998 3 SLLR 382

Civil Procedure – Action for accounting – Interim Injunction and Enjoining Order. The appellant instituted an action in the High Court against the People’s Bank for an accounting and sought, inter alia , an interim injunction and enjoining order restraining the Bank from – a. transferring the appellant’s facility in the Bank to the non-performing category; and b. reporting the plaintiff to the Sri Lanka Credit Information Bureau until final determination of the action instituted in the High Court. The High Court refused this relief and the appellant appealed to the Supreme Court.

Held: The claim that the appellant does not owe the Bank anything is not borne by the evidence on record. A prima facie case had not been made out in the sense that there is a bona fide contention between the parties on the question of indebtedness. The balance of convenience lies in allowing the normal banking laws and procedures to operate. The equities are in favour of the Bank. The submission that the Bank would not stand to lose anything is untenable having regard to the fact that the loan portfolio, liquidity and profitability have been and will continue to be affected if it cannot take 32 such measures as it is entitled in law to take to protect its interests. Moreover the appellant has failed to show that irreparable harm would be sustained unless the injunction was granted. If the Bank, acting in accordance with the law, takes certain steps that might eventually harm the appellant’s business, the harm sought to be prevented does not relate to acts that are unlawful or wrongful. The harm, if any, that might be caused would be that which the appellant has brought upon itself by failing to liquidate its debts. Per Amerasinghe, J. “The power which the court possesses of granting injunctions should be very cautiously exercised and only on clear and satisfactory grounds. An application for an injunction is an appeal to an extraordinary power of the court and the applicant is bound to make out a case showing a clear necessity for its exercise.” NOTE- This case is an important Judgment on the grounds upon which an injunction may be issued.

  1. Haji Omar v Wickremasinghe and another 1999 1 SLR 82

An action for invalidation of a sale of property by the Seylan Bank – Interim injunction – Basis and scope of interim relief – an interim injunction to prevent the issue of the certificate of sale was refused by the trial court – whereupon the plaintiff filed a petition seeking an order on the purchaser and the Bank inter alia, restraining them from demolishing or alienating the property – The court issued an interim injunction to that effect.

Held: The basis of injunctive relief should be the plaint and the prayers contained therein; it is not designed to prevent other activities of the parties to an action.

  1. Dias v Kodithuwakku 1999 3 SLR 354

Judicature Act, No. 2 of 1978 – S. 54 – 54 (1) b (1) c – Injunctive reliefs – Applicability to matrimonial actions – Entitlement of wife to matrimonial home until dissolution of marriage. The District Court granted an interim injunction preventing the defendant-petitioner (husband) from alienating ‘the matrimonial house’. On leave being sought

Held: 1) The granting of injunctions in matrimonial actions is a civil law remedy, which legally has no basis to be excluded in matrimonial actions. 2) The wife is entitled to be provided with a matrimonial house until the dissolution of the marriage by a Court of Law. Per Thilakawardena, J. ”There is an obligation on the husband to maintain the wife and the obligation includes the provision of a home and if he deserts her, she is entitled to take steps to protect her position.”

  1. Kumarihamy and Others v Wimaladasa 1999 3 SLR 175

Contempt of Court – Interim injunction – Acting in violation – Burden of proof – Acquisition of land in respect of which an injunction is issued – Its effect The plaintiff-appellants instituted action against the defendant-respondents complaining that defendants were attempting to open up a cart-track over the plaintiffs’ paddy-field and obtained an interim injunction restraining the defendant respondents from proceeding with the proposed roadway. The plaintiffs later complained that the defendants along with the administrative officer of the Village Council had acted in violation of the interim injunction and moved Court to deal with the defendants for contempt of Court. The District Court found the defendants not guilty. On appeal –

Held: 1) Injunction granted by a competent Court must be obeyed by the party until it is discharged notwithstanding the fact that it was irregularly issued. 2) The question for determination is whether the plaintiff-appellant has adduced enough evidence to support the position that the defendants in fad has acted in violation of the interim injunction. It must be borne in mind that the burden of proof in a charge of contempt is very high. 3) The interim injunction was issued on the basis that the plaintiffs were the owners of the land in respect of which the interim injunction was issued. However, by the date of the alleged contempt, the said land had been acquired by the State, thus, the interim injunction though formally still in 34 force as it had not been dissolved ceased to be meaningful and therefore the plaintiff cannot urge the Court to punish the accused for contempt of Court.

  1. Peoples Bank v Hewawasam 2000 2 SLR 29

Declaration that Mortgage Bond is null and void – Interim Injunction restraining Bank from selling/ alienating land in Mortgage Bond – Resolution passed by Bank – Null and void? – Peoples Bank Act, No. 29 of 1961 amended by Act, No. 32 of 1986 – S 2913- Can the borrower invalidate the Resolution – Injunction – Prima facie case – Notaries Ordinance S.31(18) – S.33 – Wrong date of Execution – S.2 Prevention of Frauds Ordinance. The Plaintiff Respondent sought a declaration that the Mortgage Bond 2885 is null and void and/or has been fraudulently executed by the Defendant Petitioner (Bank) and that the Resolution passed by the Bank to parate execute’ the property is null and void. The Plaintiff Respondent contended that he did not sign the Mortgage Bond, and it was never executed on 26. 01. 93. The Defendant Petitioner’s contention is that the Respondent has sought to take advantage of a mistake made by the Notary in setting out the date on the original Mortgage Bond to be 26. 01. 1993, whereas the correct date of execution which is set out in the duplicate is 26. 01. 1994. The District Court issued an interim injunction restraining the Bank from selling/alienating the land in question.

Held : 1) In view of the admissions, the Plaintiff Respondent is estopped from denying the fact that the property described in Deed 10384 (Title Deed) was tendered as security. The Plaintiff Respondent has not come to court with clean hands. 2) The Defendant Petitioner has produced the Duplicate of the Bond from the Land Registry which gives the correct date of the execution as 26.01.1994. The mere fact that the Notary has inserted a false/wrong date of its execution does not render a Deed void – Provided that the Deed has been executed according to S.2 Prevention of Frauds Ordinance. 35 3) The provisions in S. 29(D) are of similar import as “shall not be called in question in any Court”. The Resolution passed by the Bank cannot be invalidated or challenged in an action in the District Court. The sale of the mortgaged property by public auction upon the said Resolution cannot be restrained by an interim injunction. 4) The Plaintiff Respondent has failed to establish a “prima facie case.” The Plaintiff Respondent has taken advantage of a mere mistake of the date of the execution set out in the original Bond to fabricate a case to the extent of even challenging the Mortgage Bond itself.

  1. Ajith v Ceylon Paper Sacks Ltd 2000 3 SLR 64

Interim Injunction – Civil Procedure Code S.79 of 1988 (Amendment), S.664(1), S.666 – Could the District Court grant an injunction exparte – Injunction granted inter parte – Could the opposite party re agitate the issue again.

Held: 1) An injunction can issue only after notice to the opposite party and a full inquiry had after the opposite party files objections with affidavits, if they so desire. If however the opposite party fails to come into court after notice is served, then the Court is free to make an appropriate order based on the material placed before it by the Applicant for the Injunction. Per Edussuriya j., “Where the Injunction is issued after full inquiry after the opposite party has filed objections, such party cannot then once again avail itself of S.666 to have the Injunction set aside.” Quarere “Where the opposite party failed to come into Court after service of the Petition with the affidavits and notice of application can he come under S.666 without purging his default.” 2) The failure to serve notice of the application for injunction is fatal and therefore all proceedings thereafter are irregular. Per Edussuriya j., “there has been some confusion after the procedural law relating to injunction was amended. If a party is entitled to have a “second bite of the cherry” it will cause unnecessary expenses to the parties as well 36 as overcrowding of the District Courts with such second applications to re-agitate the same matter, which has been dealt with once, this certainly could not have been the intention of the legislature.” Note : The power which the Court possesses of granting injunctions should be very cautiously exercised and only on clear and satisfactory grounds. An application for an injunction is an appeal to an extraordinary power of the Court and the applicant is bound to make out a case showing a clear necessity for its exercise.

  1. Krishnamoorthy v Ganeshan 2004 1 SLLR 374

Civil Procedure Code, sections 34 (2) and 217 (f) – Judicature Act, No. 2 of 1978, section 54(1) -Enjoining order – Interim injunction sought – Court issued notice of interim injunction without a hearing The plaintiff-petitioner sought an enjoining order and an interim injunction and a permanent injunction against the defendant. The petitioner moved court by way of a motion to call the case in open court to support this application. The court without hearing the plaintiff issued notice of interim injunction on the basis that the plaintiff has not sought any main relief.

Held: 1) When a litigant seeks a hearing from court, he is entitled to be heard before an order is made in his suit. 2) Failure of court to give a hearing to the plaintiff deprived the plaintiff an opportunity to make submissions in support of the enjoining order and this has resulted in grave prejudice to the plaintiff.

  1. Ratnapala v Metro Housing Constructions (Pvt) Ltd 2005 3 SLR 217

Civil procedure code, sections 664 (1), 664(2) and 756 (4)- Enjoining Order sought – Interim injunction refused – Validity? – Application for leave to appeal – Interim order obtained exparte? – Validity? Should the same registered Attorney-at-Law file the leave to appeal application? Misstatement of the true facts – Does it warrant dissolution of an interim order without going into its merits? – Damages quantified – No injunction! Interim order should be granted? – Court of Appeal Rules 1990, Rule 2(1) – interim orders? 37 The plaintiff-petitioner sought an enjoining order with notice to the defendant respondent. Court after an inter partes inquiry dismissed the plaintiff’s application for an interim injunction. On leave being sought it was contended by the defendant-respondent that1) The petition for leave to appeal was signed by a different Attorney-at-Law and not by the registered Attorney-at-Law who filed proxy in the lower court, thus the application is bad in law. 2) The interim order granted ex-parte by the Court of Appeal is bad in law as no plausible explanation was given as to why it was supported exparte. 3) As the plaintiff has quantified damages no injunction/interim order should be granted.

HELD: 1) A leave to appeal application is a step in the proceedings of the original court but according to section 756(4) it originates in the Court of Appeal. Hence the proxy in an application for leave to appeal can be filed either by the registered Attorney who filed in the lower Court or by another Attorney. 2) When the inquiry is held inter partes there is no necessity to support for an enjoining order. The court is free to make an order based on the material placed before it with regard to the application for an interim injunction. 3) The plaintiff petitioner supported for an interim stay order in the Court of Appeal fifteen days after the delivery of the impugned order without notice to the defendants. The plaintiff-petitioner had sufficient time to give notice to the defendant before supporting for an interim stay order. The Rules make it compulsory to give notice to the party concerned before such an application is supported unless the petitioner comes with a plausible explanation that the matter is of urgency that it is not possible to give such notice. 4) A misstatement of the true facts by the plaintiff which put an entirely different complexion on the case as presented by him when the interim 38 stay order was applied Exparte would amount to a misrepresentation or suppression of material facts warranting its dissolution without going into its merits. The description of the building in the premises of the plaintiff as a residential house when it was not amounts to a misrepresentation of the true facts which give a different picture to his case as presented by him. 5) If the damage caused to the plaintiff has been quantified then no injunction or interim order will usually be granted.

  1. Seylan Bank Ltd v Piyasena and Another 2005 2 SLLR 131

Civil Procedure Code – Interim Injunction – Ingredients – Cause of Action – quiatimet actions – person in possession – No title – is he entitled to injunctive relief? Recovery of Loans by Bank (Sp. Pro) Act, and 4 of 1990 – Cause of Action

The plaintiff-respondent mortgaged a certain land to the 1st Defendant Petitioner Bank, and as he had defaulted the repayment of the loan, the Bank sought to recover same by invoking the Provisions of Act No. 4 of 1990. The plaintiff respondent had stated that the corpus belonged to the 2nd defendant Land Reform Commission and that the Land Reform Commission is taking steps to transfer the property to him, and that the Bank has no authority to parate-execute the property. The Court granted the injunction sought by the Plaintiff restraining the Defendant Petitioner Bank form parte execution of the property. On leave being sought by the Defendant Bank; 1) It appears that the boundaries of the land mortgaged are different from that of the land which is the corpus. Even if the plaintiff has no title to the property, the facts placed before Court show that at the time of filing action he was in possession of the land. a. It may be possible to file action against a person who has threatened to disturb the possession of the Plaintiff and to use the evidence which he has at hand to establish his possession against the person who only threatens and does not so far disturb his possession. 2) An interim injunction will be granted quia-timet to restrain an apprehended or threatened injury, if in addition to the other requirements necessary to qualify for an interim injunction, it is established that firstly 39 the injury is certain or very imminent and secondly that the likely mischief will be a very substantial nature. 3) The land belongs to the Land Reform Commission and the Land Reform Commission was taking steps to transfer it to the plaintiff. The plaintiff had established that there is a strong possibility that the apprehended mischief will in fact arise, the Defendant-Bank has already taken steps to auction the land in question. 4) If the wrong land is auctioned the inconvenience which the Plaintiff will suffer by the refusal of the injunction is greater than that which the 1st Defendant will suffer if it is granted. The balance of convenience favours the plaintiff. 5) The relief claimed by the Plaintiff is founded on the violation of his right to possession of the land described in the plaint by the 1stDefendant Petitioner. A person in possession is entitled to possess it without fear of unjustifiable interference from outsiders. Application for Leave to Appeal from an order of the District Court of Embilipitiya.

  1. Gunasekera Vs. Archibishop Of Colombo And Others 2005 2 SLLR 253

Civil Procedure Code – Section 666 – Interim Injunction granted – Exparte – Vacation of same under Section 666 – Is there a time limit? The Plaintiff obtained an interim injunction against the 1stDefendant Respondent exparte on 24.6.2003. Thereafter on 15.9.2003 the 1st Defendant Respondent filed papers and sought an order to vacate same under Section 666 – Court after Inquiry vacated the interim injunction. The Plaintiff Petitioner thereafter sought leave to appeal from the said Order. It was contended that the 1st Defendant had filed papers to dissolve the interim injunction after 3 months from granting the injunction and the Defendant cannot resort to Section 666.

HELD; 1) Section 666 does not speak of a time period within which a party aggrieved could avail of Section 666. An order for an interim injunction may be set aside by the same court on an application made thereto, by any party dissatisfied with such order. 40 2) An injunction issued ex-parte must be canvassed in the Court which made that order. 3) It was correct for the Defendant Petitioner to move under Section 666 of the Civil Procedure Code.

  1. Shell Gas Lanka Ltd. v Samyang Lanka (Pvt) Ltd. 2005 3 SLLR 14

Interim injunction – Acting in breach of a covenant – No likelihood of any defence – Is it contrary to law to grant an injunction if it would give the plaintiff substantial relief claimed by him?

HELD; 1) It is permissible to grant interim relief which gave substantially the whole that there was no defence. 2) Here there is a strong prima facie case, in favour of the plaintiff and the balance of convenience too favours the plaintiff and further there is no possible defence available to the defendant and the defendant is acting in breach of a covenant; it is not contrary to law to grant an interim injunction, even if the granting of the interim injunction would give the plaintiff substantial relief claimed by him.

  1. LEBBE VS. UMMA AND OTHERS – 2006 3 SLR 27

Interim injunction – Refusal – Pleadings in Tamil – Not filling English translation of relevant documents in the Court of Appeal -Negligence of the Attorney-at- Law? – Is it fatal? The plaintiff-petitioner sought leave to appeal from an order of the District Court of Akkaraipattu refusing the interim injunction sought. The plaintiff- petitioner annexed several documents to the petition, however most of the documents were in. the Tamil language and English translations have not been provided. In the English translation of the plaint there is no schedule. describing the subject matter.

HELD: (1) The plaintiff-petitioner’s substantive relief was declaration of title. In the absence of the description of the land to which the plaintiff seeks a 41 declaration of title, Court is unable to understand the order canvassed by the plaintiff-petitioner. Per Wimalachandra, J. “The omission to tender to Court, the necessary documents translated into the English language is in my opinion fatal, as the Court cannot understand the contents of the documents relied upon by the District Judge to make his order. If certified copies translated into the language of the Court could not have been obtained in time it is the bounden duty of the petitioner to mention that fact in his petition and obtain leave of Court to tender them subsequently (2) It is not the function of the Court to translate documents (3) It is due to the negligence of the Attorney-at-Law that the translations documents he relied on for his case were not produced. It is a settled principle of law that the negligence of the Attorney-at-Law is the negligence of the client, and the client must suffer for it.

  1. Pathirana v Gerti And Others 2006 3 SLLR 197

Civil Procedure Code – Sections 622, 627, 839 judgment entered – Appeal – District Court functus – Appeal pending – The respondents obtained interim injunction – Legality – Judicature Act – Section 54 (3) – Court functus?

HELD; 1) The District Judge has no power to adopt the procedure laid down in Section 622-627 after the entering of the judgment especially when an appeal is taken against the judgment and the appeal is pending. 2) To obtain an interim injunction the case must be pending and judgment has not still been entered – Section 54 (3) Judicature Act. No interim injunction could be granted after the final judgment. Per Ranjith Silva J. “In a fit case the District Judge can make orders to remedy injustice invoking its inherent powers under Section 839, as Section 839, is not only intended to repair errors committed by the Court itself but also 42 extended to repair injuries done to a party by another party to the action. But it does not mean that the District Judge can invoke the powers given to him under Section 54 of the Judicature Act subsequent to the entering of the judgment in a case.”

  1. INSTITUTE OF CHARTERED ACCOUNTANTS OF SRI LANKA V INSTITUTE OF CHARTERED PUBLIC ACCOUNTANTS AND OTHERS – 2007 SLR 91

Institute of Chartered Accountants Act incorporated under Act No.23 of 1959 – section 10, section 22(as amended )- institute of Chartered Public Accountants established under Companies Act No. 17 of 1982 – section 19(2) – Right to use the term “Chartered” – Is State approval required for the use of “Chartered” by any person – is “Chartered a restrictive word under the Companies Act – Interim injunction – Prima facie case.

Held: (1) The institute of Chartered Accountants Act No. 23 of 1959 (ICA Act) established the Institute of Chartered Accountants of Sri Lanka, S22(1) and provides that no person, not being a member of the institute shall take and use the title “Chartered Accountants”. Chartered Accountant is a title recognized by Parliament as a professional qualification in the profession of practicing accountancy. (2) In terms of the ICA Act the plaintiff is the only body that has been established by an Act of Parliament relating to the practice of accountancy in Sri Lanka as “Chartered Accountants”, whereas the 1st defendant company is an Institute established under the Companies Act. Per Wimalachandra, J: “It can be seen that the use of the title “Chartered Accountant” is not one which can be used arbitrarily and capriciously to the liking of a business or a company exploiting the same for personal gain. The name “Institute of Chartered Public Accountants” is a calculated attempt to show the public that the 1st defendant is an Organization that has the state patronage to confer the “Chartered Public Accountants” similar in status to the plaintiff.”

  1. MANOHARAN V PAYOE AND OTHERS – 2007 2 SLR 270

Civil Procedure Code, Section 664, Section 665, Section 753, Section 754(2) – Interim injunction granted – Vacation of same under Section 666 – Revisionary jurisdiction invoked – Alternative remedy not availed of – Does Revision lie? – Exceptional circumstances – Prima facie case not made out – Is it necessary to examine the other ingredients?- If injunction is granted after inter partes inquiry – Can an application under Section 666 be sought? – Land acquired by State? 43

Held: (1) The State has already acquired the subject matter. In such circumstances, it cannot be said that, the plaintiff has made out a prima facie case. As the plaintiff has not made out a prima facie case the existence of other requirements to grant the interim injunction need not be examined. (2) The trend of authority amply indicates that when revisionary power “is invoked same will be exercised only if exceptional circumstances are urged which necessitate the indulgence of Court to exercise revisionary powers. The existence of exceptional circumstances is the process by which the Court selects the cases in respect of which this extraordinary method of rectification should be adopted. (3) The order granting the injunction has occasioned miscarriage of justice, and this Court is compelled to Invoke the powers of revision. Held further: (4) As regards the 2nd order refusing the application made under Section 666, the trial Judge has erred in stating that when an injunction is granted interpartes an aggrieved party cannot seek relief under Section 666

  1. PAN ASIA BANK LTD. V. KANDY MULTI PURPOSE COOPERATIVE SOCIETY AND OTHERS – 2012 1 SLR 78

Bank guarantee – Injunction to restrain from honouring a Bank guarantee?- Permissible – Exceptions ? – Effect of a guarantee depend on the terms of the contract ? – Fraud ? The 3rd defendant – petitioner sought to set aside the order issuing an interim injunction restraining the People’s Bank 4th Respondent from honouring a Bank guarantee.

Held: (1) A Bank which gives a performance guarantee must honour that guarantee according to its terms. The Bank must pay according to the guarantee on demand if so stipulated without proof or condition ·· unless there is fraud of which the Bank has notice there is an obligation to honour the guarantee as regards the terms of the guarantee. Per Eric Basnayake, J. “The Judges who are asked to issue an injunction restraining payment by a Bank under a guarantee should ask whether there are any challenges to the validity of the guarantee itself. If there is not ….. prima facie no injunction should be granted and the Bank should be left free to honour its contractual obligations.

  1. PIYASENA VS. ILANKAI THAMIL ARASU KADCHI AND OTHERS – 2012 1 SLR 215

Expulsion of a Member from a recognized political party – Constitution – Article 99 (13) (a) – Validity of expulsion – Injunctive and discretionary relief- Duty of full disclosure of all material facts – Provincial Councils Act 2 of 1988.

Held: (1) The jurisdiction of the Supreme Court conferred by Article 99 (13) (a) of the Constitution is sui generis, original and exclusive, and does not confer any discretion to the Supreme Court to dismiss in limine an application filed there under merely on the ground of suppression or misrepresentation of material facts, as in cases involving injunctive relief or applications for prerogative writs. The proviso to Article 99 (13) (a) is neither injunctive nor discretionary, and does not necessitate any inquiry into the conduct of the person invoking the said jurisdiction. The objective of Article 99 (13) (a) of the Constitution is to provide the expelled Member a meaningful and effective remedy against arbitrary removal. Per Saleem Marsoof, P. C. J.- “I am therefore of the opinion that even in a case where there is cogent evidence to establish that an expelled Member of Parliament did not come to Court with dean hands, if this Court finds that the purported expulsion is invalid, “his seat shall not be vacant” and he will continue to hold office, and this Court does not have the discretion to make a contrary determination on the sole ground of suppression or misrepresentation of material facts, or dismiss the application in limine. I am of the opinion that it is therefore not necessary to make any findings in regard to the question whether the Petitioner has suppressed or misrepresented any material facts in his Petition or in the course of hearing, and accordingly, the preliminary objection raised by the 3rd Respondent has to be overruled. (2) The Petitioner cannot in these proceedings take up an Inconsistent stand and assert that he is not a de jure member of ITAK and is therefore not bound by the provisions of its Constitution and the disciplinary procedure laid down in that Constitution. The application of the Petitioner has to be considered on the basis that the Petitioner is a member of the ITAK. (3) It is the Central Committee of the ITAK that has disciplinary authority over the Petitioner, and it is that Committee, which has in fact initiated disciplinary process by appointing Disciplinary Committee. It is not possible for only four members of the Committee to arrive at findings, and the purported report of the Committee marked “R6”, which does not bear all the signatures of its members, is incomplete and cannot be acted upon. 45 (4) The decision to expel the Petitioner from the membership of ITAK on a purported decision of the Disciplinary Committee by the letter dated 28th November, 2010 is ex-facie illegal in as much as it has not been made by the appropriate disciplinary authority in terms of the ITAK Constitution.

  1. KARIYAWASAM VS. SUJATHA JANAKI AND 2 OTHERS – 2013 1 SLR 176

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.

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. 46 (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.

UNREPORTED

  1. Balasuriyage Senaratne v Two others C. A No.1637/ 2002

When going through the order dated 20th June 2002 of the learned District Judge, it seems that he had issued the interim injunction mainly on the basis that the construction of the house covers a substantial portion of the road frontage. But according to Plan No.224 the house under construction does not ‘border’ the main Galle-Imaduwa road and instead fronts only an interior road. Position of these interior roads may vary at the final blocking out of the land. But so far as the road frontage of the main Galle – Imaduwa road is concerned it is not at all affected and therefore there cannot be any difficulty in allotting shares from road – frontage at the final blocking out of the land. Though there are two intervenients in the partition action, as they have intervened long after the issuance of the enjoining order, their absence before this court is not necessarily fatal to the maintainability of this application. In Elpinona V. Punchisingho 52 NLR 115 it was held that a co-owner has the right to build on the common property without the consent of his coowners, provided that he acts reasonably and to an extent which is proportionate to his share and does not infringe the co-proprietary rights of his co-owners; moreover, he cannot, except by mutual consent, apply the common and to new purposes in such a manner as to alter the intrinsic character of the property. In the instant case the petitioner is entitled to a larger share of the property than the respondent. As there is already a dwelling on the land the petitioner is not attempting to convert the land into new purposes by the construction of a house. The extent of the land is about 1Acre and 24.40 Perches and the petitioner who has a larger share than the respondent commenced the construction of the disputed house far away from the main Galle-Imaduwa main road. In any case he has acted reasonably and to an extent which is proportionate to his share. 47 For the foregoing reasoning I would set aside the order of the learned District judge dated 20th June 2002. 1st Defendant – Petitioner is entitled to costs fixed at Rs. 10,000

  1. People’s Bank v Telepix (Pvt) Ltd C.A.L.A.NO.136/2006

There is not an iota of evidence as to a prima facia case filed by the plaintiff. Simultaneously, it is apparent that the defendant was in the process of exercising its rights ensured by the statute. Therefore, the learned District Judge should not have issued the interim injunction in this instance even if the value of the property is very high. In this instance, the circumstances of the case show that: 1. the balance 2. of convenience of the parties; 3. equitable consideration; 4. whether the damages could be quantified; etc. which are being regarded as the other criteria that should be looked into when issuing interim injunctions, are also in favour of the defendant. If the defendant is prevented from exercising its legal rights without any valid reason being assigned, it will not be equitable at all. Moreover, if the bank is not entitled to recover the dues in accordance with the terms of an agreement, at the time those monies are due, that will cause losses to the bank. At the same time the plaintiff will benefit by not paying the same and also securing the mortgage property by preventing the bank recovering the moneys by auctioning the mortgage property. Furthermore, if the lenders, especially the banks registered with the Central bank, are to be prevented from exercising their legal rights, it will affect the day to day business of the banks and will ultimately affect the society at large. This principle will not apply for the citizens who seek redress of the irlegal rights ensured by law. However, courts should always look at the issues considering both these aspects. Especially when the cases are filed frivolously, Judges should act in a way to discourage such attitude of the litigants. For the aforesaid reasons, I set aside the order of the learned District Judge dated 12.01.2005 but pronounced on 23.03.2006. The defendant is entitled to the incurred costs in this Court as well as in the District Cout.

  1. Kalutara Bodhi Trust V. Kalutara Multi Purpose Co-operative Society Ltd. 48 S.C Appeal No.19/2011

It is to be borne in mind that while the Courts Ordinance created the jurisdiction for the Courts to grant injunctions, Section 662 – 667 of the Code of Civil Procedure defined the procedure that should be adopted in such instances. In Felix Dias Bandaranayake (Supra), the Court of Appeal had carefully considered the sequential tests that should be applied in deciding whether or not to grant an interim injunction. The said tests were as follows: 1. Has the plaintiff made out a strong prima facie case of infringement or imminent infringement of a legal right to which he has title, that is, that there is a serious question to be tried in relation to his legal rights and that the probabilities are that he will win? 2. In whose favour is the balance of convenience – the main factor being the uncompensatable disadvantage or irreparable damage to either party? 3. As the injunction is an equitable relief granted in the discretion of the Court do the conduct and dealings of the parties justify grant of the injunction. The material on which the Court should act as the affidavits supplied by plaintiff and defendant. Oral evidence can be led only of consent or upon acquiescence. Having a prima facie case and reasonable prospects of success in the matter at issue, along with the balance of convenience in his favour, has been regarded as the necessary grounds for the grant of an interim injunction. The establishment of a prima facie case alone would not be sufficient for the grant of an interim injunction. Court would have to pay serious attention to the questions of irreparable damage as well as the balance of convenience. Prior to the grant of an interim injunction, although a party would have satisfied the necessary ingredients for such an injunction, it would be necessary for the Court to consider whether the aspects of comparative equities have been satisfied. In doing so, the Court should consider and satisfy itself whether by the grant of the interim injunction the status quo would be preserved or altered. Simultaneously, it would be necessary to consider that if the interim injunction is not granted whether that would cause irreparable or serious injury to the party aggrieved. It is also necessary for the Court to consider on which side the balance of convenience lies and the type of loss the party aggrieved would suffer if the said injunction is not granted. In considering the issue, the High Court was of the view that the main requirements for the grant of an interim injunction, viz., having a prima facie case, the balance of convenience and the conduct of parties, had been well 49 considered by the District Court and the necessary requirements had been established by the respondent. On an examination of the submissions made by the parties before the Supreme Court, the Orders of the District Court and the High Court, it is apparent that all aspects pertaining to the grant of an interim injunction had been carefully considered.

  1. Daya Abeyawicsrama v Dias – SC. Appeal No. 80/2011

The burden is on the Respondents to prove that the Substituted Appellant or her predecessor deliberately and intentionally abandoned the right of way. However, such deliberation or intention to abandon has not been proved. In order for the right to be abandoned, the abandonment should be continuous, rather than from time to time. It is submitted in evidence by the Substituted Appellant that the said right of way was used from time to time, as access whenever there was an occasion (alms givings) on the property owned by the Substituted Appellant, to bring in firewood and also for repairs and construction on the building in the property. It is thus proven that the Respondents have proved neither deliberation and intention nor continuous abandonment. According to Roman-Dutch Law, non-user or abandonment of the right should be for a third of a hundred years, i.e. 33 and 1/3rd years. The deceased Plaintiff (the husband of the Substituted Appellant) in this case purchased the said land by way of deed ‘P1’ dated 26th January 1976. He initiated action in the District Court on or around 2nd May 2000. Therefore, the requirement of one third of a century is not met and thus would follow that according to the Roman Dutch Law, this does not constitute to an abandonment of the right. A further question arises as to whether either party is obstructing the right of way. Particularly whether the Substituted Appellant is obstructing the right of way enjoyed by the Respondents by constructing a gate on the boundary of the wall owned by the Substituted Appellant, which provides access to the right of way. Two main questions arise in the case of an obstruction to a private right of way. Firstly, whether the interference is substantial and, secondly, reasonable user of the way by the owner of the right’. Therefore, an obstruction of a private right of way is not actionable unless it is substantial. 50 For these reasons, in the instant case, it is the position of this Court that unless the Substituted Appellant, by way of a gate on her own boundary, has obstructed the free right to use the road way by the Respondents, there is no bar on the construction of such gate. However, it is stressed that there can be, at no time, an obstruction to the free use of the right of way by the Respondents. Thus, the judgment of the Civil Appellate High Court dated 17th January 2011 is hereby set aside. The judgment of the District Court of Mount Lavinia dated 13th December 2007 is affirmed and a permanent injunction restraining the Respondents from constructing temporary and permanent structures within the said road way is granted.

Close Menu