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sc-appeal-48/2015
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https://www.supremecourt.lk/images/documents/sc_appeal_48_2015.pdf
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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal under and in terms of Article 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka SC Appeal No. 48/2015
SC HCCA LA Application No. 397/2014
WP/HCCA/Col Appeal No. 326/2009(F)
DC Colombo Case No. 30646/MR Asia Prepress (Pvt) Limited,
No. 54/1, Ward Place,
Colombo 7.
PLAINTIFF vs.
Minnette De Silva (Pvt) Limited,
No. 131, W.A.D. Ramanayake Mawatha,
Colombo 2.
DEFENDANT And Between Minnette De Silva (Pvt) Limited,
No. 131, W.A.D. Ramanayake Mawatha,
Colombo 2.
DEFENDANT – APPELLANT vs.
Asia Prepress (Pvt) Limited,
No. 54/1, Ward Place,
Colombo 7.
1 PLAINTIFF – RESPONDENT And now Between Asia Prepress (Pvt) Limited,
No. 54/1, Ward Place,
Colombo 7.
PLAINTIFF – RESPONDENT – APPELLANT vs.
Minnette De Silva (Pvt) Limited,
No. 131, W.A.D. Ramanayake Mawatha,
Colombo 2.
DEFENDANT – APPELLANT – RESPONDENT Before:
L.T.B. Dehideniya, J Mahinda Samayawardhena, J Arjuna Obeyesekere, J Counsel:
Shammil J. Perera, PC with Duthika Perera for the Plaintiff – Respondent
– Appellant Aravinda Athurupane with Shereen Shamara Firdouse for the Defendant
– Appellant – Respondent Argued on:
31st March 2022
Written Submissions: May 2022
Tendered on behalf of the Plaintiff – Respondent – Appellant on 17th Tendered on behalf of the Defendant – Appellant – Respondent on 27th May 2022.
Decided on:
16th December 2022
2 Obeyesekere, J The Plaintiff – Respondent – Appellant [the Appellant] claims that it entered into a contract with the Defendant – Appellant – Respondent [the Respondent], Minnette De Silva (Pvt) Limited, a company incorporated under the provisions of the Companies Act,
to provide typesetting, scanning and pagination services in relation to the publication of a book titled, “Minnette De Silva – The life and work of an Asian woman architect”. The Appellant states further that even though it had provided the said services as agreed, the Respondent has not made payment in full as promised, and the Respondent is therefore in breach of contract.
Institution of proceedings before the District Court Accordingly, the Appellant instituted action against the Respondent in the District Court of Colombo on 25th January 2002 seeking to recover the outstanding sum of Rs.
1,061,974.74 together with legal interest thereon, from the date of the action and until the date of the decree. The plaint contained a narration of the work carried out by the Appellant, and the correspondence exchanged between the parties, with the cause of action based on the breach of contract on the part of the Respondent. The Appellant had also pleaded an alternative cause of action based on unjust enrichment on the part of the Respondent.
The Respondent filed its answer denying the existence of a contract between it and the Appellant. Whilst admitting that several payments had been made by it to the Appellant in respect of the work carried out by the Appellant, the Respondent took up the position that the said work had been carried out for a third party, namely Minnette De Silva, and that the payments were not made on its behalf but on behalf of Minnette De Silva, and in order to assist the Appellant who admittedly had carried out some work in relation to the publication of the said book.
The trial before the District Court commenced with the parties agreeing on the admissions and the raising of issues by the parties. While most of the issues before the District Court were based on the narration of facts contained in the plaint and the answer, there were two issues which were central to a proper adjudication of the dispute. The first was Issue
3 No.5, raised by the Appellant that the contract with the Respondent was formed with the acceptance of its offer by Minnette De Silva on behalf of the Respondent by the document marked P11. The second was Issue No. 15 raised by the Respondent, as to whether there was a contract between the Appellant and the Respondent.
While the Appellant led the evidence of its Managing Director, Vijitha Kannangara and its Accountant, Rochelle Kannangara and marked in evidence thirty nine documents, the Respondent did not lead the evidence of any witnesses, but marked three documents during cross examination. The learned Trial Judge answered Issue Nos. 5 and 15 in the affirmative and delivered judgment on 24th July 2009 in favour of the Appellant.
Judgment of the High Court Aggrieved by the judgment of the District Court, the Respondent preferred an appeal to the Provincial High Court of the Western Province holden in Colombo. By its judgment delivered on 8th July 2014, the High Court set aside the judgment of the District Court and allowed the appeal of the Respondent. I have examined the said judgment and find that the learned Judges of the High Court allowed the appeal for the following reasons:
(a) At the time the offer of the Appellant was accepted by Minnette De Silva by P11,
she was not a Director of the Respondent and therefore had no authority to act for and on behalf of the Respondent;
(b) The Respondent therefore cannot be held liable for the acts of Minnette De Silva carried out prior to her appointment as a director of the Respondent;
(c) While the basis on which the Respondent paid the money to the Appellant is not clear, the mere payment of money due from Minnette De Silva does not create a contractual relationship between the Appellant and the Respondent;
(d) The Respondent is therefore not liable to pay the money due on the contract between the Appellant and Minnette De Silva.
4 Questions of Law Dissatisfied by the said judgment of the High Court, the Appellant sought and obtained leave to appeal from this Court on the following questions of law:
(1) Have their Lordships of the Provincial High Court of Civil Appeal not paid due consideration to the careful analyses offered by the learned Judge of the District Court in her judgment holding that though the agreement was entered into on 2nd September 1997 and Ms. Minnette De Silva only assumed duties as a Director of the Respondent Company on 29th September 1997, the continuous payments,
correspondence, endorsements and acknowledgements made upon official letterheads of the Respondent company by its Chairman effectively established that the obligations of the Agreement were inherited, acknowledged and performed by the Respondent Company since, and thereby erred in law?
(2) Have their Lordships of the Provincial High Court of Civil Appeal erred in law and fact in failing to take into consideration the ground of unjust enrichment pleaded in the plaint by the Appellant, in holding that the Respondent was not liable to pay the money pleaded by the Appellant?
(3) Have their Lordships of the Provincial High Court of Civil Appeal failed to take into consideration and thereby erred in law the unshakeable conviction of the learned District Judge of the District Court, as evinced by the observation made in his judgment, which expresses wonder at the illogicality of the position taken by the Respondent in the event that they have unjustly enriched themselves at the expense of the Appellant Company, were continuing to do so, without even compensating the Appellant for the indubitable services provided by them?
(4) Have their Lordships of the Provincial High Court of Civil Appeal not analysed the findings of the Learned District Judge at all, nor set out the errors of fact and/or law in the judgment of the learned District Judge and have in fact substituted their own judgment as an original Court judgment and thereby erred in law?
5 The following question of law was raised on behalf of the Respondent:
(5)
Is the judgment of the High Court of Civil Appeal in any event correct in view of the fact that even though the Appellant had pleaded and raised an issue of unjust enrichment, it had failed to place material before the trial Court to prove unjust enrichment?
The above questions of law can be distilled into two principal issues. The first is whether the Respondent had entered into a contract with the Appellant in relation to the publication of the autobiography of Minnette De Silva titled, “Minnette De Silva - The life and work of an Asian Woman Architect”, and if so, whether the Respondent is liable for the payment of a sum of Rs. 1,061,974.74 arising out of the breach of the said contract.
The second issue, which would arise only if the first issue is answered in the negative, is whether the Respondent has been unjustly enriched.
The arguments on behalf of the Appellant and the Respondent Based on the issues raised by the parties and the evidence placed before the District Court, the learned President’s Counsel for the Appellant presented three arguments before us. The first was that the offer made by the Appellant was accepted by Minnette De Silva on behalf of the Respondent – vide P11 – thus creating a contract between the Appellant and the Respondent. The second was that in any event, the Respondent is estopped from denying that it had entered into a contract with the Appellant. The third was that although the work carried out by the Appellant towards the publication of the said book [P13] had been acknowledged in the book itself, the Respondent, having the copyright to the book and being the beneficiary of the sale proceeds of the book has unjustly enriched itself by not making the payment due to the Appellant for the said work carried out in the publication of the book.
There was perhaps one more argument that could have been taken had it been raised before the Trial Judge, in the alternative of course, that being that Minnette De Silva was an agent of the Respondent and even if she did not have the authority to commit the
6 Respondent when she accepted the offer by P11, the subsequent events disclose that the Respondent has ratified her actions and thereby is bound by the contract entered on its behalf by its agent.
The position of the learned Counsel for the Respondent was essentially a reiteration of the stance taken before the trial court that the Respondent was not privy to the contract that was sought to be enforced. In other words, the submission on behalf of the Respondent is that the Respondent Company did not engage the services of the Appellant but that it was done by Minnette De Silva in her personal capacity. It was submitted further that the correspondence between the Appellant and the Respondent does not demonstrate a meeting of minds between the parties that is essential to establish that the parties intended to create legal relations and in turn for the Appellant to succeed in this appeal.
The legal position In Noorbhai v Karuppan Chetty [27 NLR 325] it was held by the Privy Council that “the very elementary proposition of law is that a contract is concluded when in the mind of each contracting party there is a consensus ad idem, ...”
Weeramantry in “Law of Contracts” [1967, Volume I, paragraph 84] has pointed out that the constituent elements of a contract can be reduced to the following basic essentials:
(a) Agreement between parties;
(b) Actual or presumed intention to create a legal obligation;
(c) Due observance of prescribed forms or modes of agreement, if any;
(d) Legality and possibility of the object of the agreement;
(e) Capacity of parties to contract.
7 Weeramantry goes on to state as follows:
“An agreement is a manifestation of mutual assent by two or more persons to one another. In simpler terms, therefore, an agreement would mean a state of mental harmony regarding a given matter between two persons, as gathered from their own words or deeds. Contract generally connotes among other things an actual or notional meeting of minds, for in general without such a meeting of minds a contract does not come into being. Agreement on the other hand, primarily denotes such meeting. [paragraph 86]
The view is commonly held that in addition to the other requisites for the formation of a valid contract there should also be present, on the part of the parties, an intention to enter into legal relations. It follows from this view that this requirement must be superadded to the fact of agreement if the agreement is to be productive of legal results. [paragraph 158]
Whether two minds are in actual or real agreement not even the parties themselves can say for no man can fathom the thoughts of another; and in the realm of actual intention no man can speak for anyone but himself. The law consequently views the question of intention objectively. Unable to plumb the depths of intention, it proceeds upon the external manifestations of such intention, whether by words or by deeds. From these external manifestations the law ascertains the presumed or notional intentions of parties. [paragraph 86]
Agreement, which is so important to the formation of contract, depends in its turn on the intention of the contracting parties. The inner or true intention of a person is,
however, not generally capable of ascertainment with any degree of assurance by another, if indeed it is capable of ascertainment at all. The law therefore always adopts an objective test in determining the intention of the parties to a contract,
and is guided by their manifestations of intention whether by words or by acts. From such words or acts it draws its inferences regarding intention on the basis of a reasonable person’s assessment of them in the context in which they were uttered or performed. [paragraph 104]
8 It would therefore be more correct to say that in all cases where the law requires an actual intention to enter into legal relations, what is required is either an intention which actually exists or one which, having regard to all surrounding circumstances,
it will by a fiction deem to exist in the minds of the parties.” [paragraph 158]
The events surrounding the current dispute between the parties have unfolded over several years, as borne out by the pleadings, the evidence led before the District Court and the documents presented by both parties. I shall therefore consider the core issue in this appeal in the context of the said events, which I have separated into three phases.
The first phase The first phase places in perspective and sets the tone for the events that took place thereafter. It starts in late 1993 when Minnette De Silva, the first Sri Lankan woman architect and the first Asian woman to be elected an Associate of the Royal Institute of British Architects, had sought the assistance of the Appellant in the publication of her autobiography. The Appellant states that pursuant to several discussions between itself and Minnette De Silva, by its letter dated 31st December 1993 [P2], it informed Minnette De Silva the detailed production plan relating to the publication of the said autobiography. The Appellant states that the cost estimate submitted by it for the work that was to be performed by the Appellant was accepted by Minnette De Silva. The Appellant states further that Minnette De Silva had thereafter forwarded to the Appellant the original transcripts and photographs for scanning and pagination etc.
It was further stated that although the Appellant did not receive much co-operation from Minnette De Silva in the completion of the above work, it took all reasonable steps to ensure that the publication reached the pre-press stage. This is reflected in the progress charts [P23 – P25] forwarded by the Appellant to Minnette De Silva in November 1996,
and the issuance of the pre-publication brochure [P1] by the Appellant.
However, by letter dated 24th January 1997 [P3] captioned “The life and work of an Asian Woman Architect”, Minnette De Silva had requested Vijitha Kannangara to “Please return
9 all my original material and copies connected with the above book since there has been an unconscionable delay in its production … I have requested Dinali, Susil and/or Ashley to collect the material on my behalf.” [emphasis added]
By letter dated 7th February 1997 [P4], Vijitha Kannangara had agreed to the above request and informed Minnette De Silva that the material could be collected, but as no payment had thus far been made for the work carried out by the Appellant, requested payment % of the costs incurred by the Appellant upto that point, with the balance payment being made within six months of the collection of the material. The relationship that existed during the first phase between the Appellant and Minnette De Silva is reflected in P4 where the Appellant states that, “We have at all times approached this job not as a typical commercial job but with the view of helping a distinguished and unique personality of our Country.”
P4 has been followed by (a) a letter dated 10th February 1997 [P7] by Minnette De Silva authorising Dinali De Saram, referred to by Minnette De Silva in P3, to collect the material on her behalf, and (b) Dinali De Saram collecting the material from the Appellant on behalf of Minnette De Silva on 25th February 1997 [P5 and P6]. Thus, the relationship between the Appellant and Minnette De Silva that is borne out by the first phase relating to the publication of the autobiography that commenced in late 1993 was brought to a closure in February 1997, with the Appellant and Minnette De Silva parting ways.
Before I conclude the discussion on the first phase, there are three important matters that arise from the first phase that I must refer to. The first is that the letter P3 dated 24th January 1997 was written by Minnette De Silva on her personal letterhead. So was P7.
The second is that the Respondent was not involved in the first phase, for it was incorporated only on 12th February, 1997 [V1], with Vijitha Kannangara stating under cross examination that the Respondent was incorporated “for the production of this book”
and that the Respondent was the owner of the project to publish the said book. This position of the Appellant remains unchallenged to this date. The third is that of the three persons authorised by Minnette De Silva in P3 to collect the material on her behalf, the two gentlemen in their capacity as directors of the Respondent played a significant role in the second and third phases.
10 The second phase The second phase commences in July 1997 a few months after the end of the first phase,
and signifies a new beginning, distinct from what existed under the first phase. It is common ground that Minnette De Silva was extremely anxious in getting her autobiography published without any further delay, especially after the death of her sister in December of the previous year, her advancing age, and “two serious illnesses since early
1995, which has added to the difficulties of producing this book” – vide P13.
It appears that Minnette De Silva was keen to approach the Appellant once again with a view to re-engaging its services. She however chose not to do so directly and understandably so, given the fact that they had parted ways not too long ago, in spite of the Appellant having done a substantive amount of work and even printed the brochure at its cost to promote the book. Therefore, Minnette De Silva had used the services of Krishni Jayawardena, who according to Vijitha Kannangara, was “a personal friend of Minnette De Silva and Minnette De Silva had confidence in her, so she felt that she would give good advice and she was in a position to negotiate what she felt was a good deal for Minnette De Silva.” This fact has been acknowledged in the written submissions of the Respondent filed after oral submissions were concluded in this Court.
By letter dated 21st July 1997 [P8] titled, “Minnette De Silva - The life and work of an Asian Woman Architect”, Vijitha Kannangara had informed Krishni Jayawardena as follows:
“We refer to the meeting we had with you on the 17th instant regarding the production of the above. As explained to you this job was discontinued with us as requested by Ms. Minnette De Silva and our position was spelt out in our letter to her dated 7th February 1997.
We understand that you are interested in resuming work on the above as instructed by Ms. Minnette De Silva. Herewith enclosed please find our cost estimates for completing work upto film stage for Vols 1 & 2 as well as for all four volumes. We have also attached a time schedule for completing the work.
11 We thank you for your initiative on this matter and look forward to completing the job we embarked upon some time ago.” [emphasis added]
Annexed to the above letter were a cost estimate in a sum of Rs. 2,605,000 for Volumes I
& II [P8A], a cost estimate in a sum of Rs. 4,600,000 for Volumes I to IV [P8B] and the time schedule for all four Volumes [P8C].
By letter dated 29th July 1997 [P9], Krishni Jayawardena responded to the above letter of
21st July 1997, under the same title, seeking (a) a concession on the estimated cost to complete all four volumes and (b) credit facilities of six months. Very importantly, this letter has been copied to “Ms. Minnette De Silva, Minnette De Silva (Pvt) Ltd”. Thus, by P9, Krishni Jayawardena has brought to the notice of Minnette De Silva and the Respondent, the negotiations she has been having with the Appellant. In the light of the uncontradicted evidence of Vijitha Kannangara that the Respondent had been incorporated for the production of the said book, P9 appears to have served as a notice to the Appellant that the Respondent was very much involved in the publication of the autobiography.
The response to P9 is a letter dated 12th August 1997 [P10], addressed by the Appellant to Krishni Jayawardena. In P10, the Appellant agreed to offer a price concession and to complete the work upto film stage for all four volumes at a cost of Rs. 3,700,000/- with an advance payment of Rs. 1 million. The balance sum of Rs. 2.7 million was to be paid within six months of commencing work. The cost estimate [P12] and the time schedule for the completion of the works [P21] had been annexed to P10. It was the position of the Appellant that P10 served as its offer.
The direct involvement of the Respondent commences at this point, and hence, the correspondence from this point onwards is critical to the determination of the questions of law raised in this appeal.
12 Acceptance of the offer of the Appellant – P11
On 2nd September 1997, Minnette De Silva, writing on a letterhead of the Respondent
[P11] informed the Appellant as follows:
“Reference your letter dated 12th August 1997 to Ms. Krishni Jayawardena we are pleased to confirm acceptance of your time schedule for the completion of the work upto film stage for all four volumes of the book as well as cost of this work amounting to Rs. 3,700,000.
The required advance of Rs. 1,000,000 will be forwarded to you during the month of September.” [emphasis added]
It was not the position of the Respondent that Minnette De Silva could not have accepted an offer addressed to Krishni Jayawardena, or that the terms of the offer are not clear or lacks certainty. Thus, there is no dispute that P11 served as the acceptance of the offer made by P10. The crucial issue that needs to be determined is whether P11 has been written by Minnette De Silva on behalf of the Respondent or in her personal capacity.
Looked at objectively, there are three important matters that strongly favour an interpretation in respect of the former. The first is that correspondence that took place during the first phase was written on the personal letterhead of Minnette De Silva [P3
and P7] or was addressed to her personally [P2, P4 and P5], whereas once the Respondent was incorporated, Minnette De Silva communicated with the Appellant by using a letterhead of the Respondent company carrying her own name [P11], and the Appellant corresponded directly with the Respondent [P15, P16, P18, P19 and P20], even though Minnette De Silva was very much alive. In fact, after P11, Minnette De Silva has been completely left out of the correspondence, with the Appellant and the Respondent communicating directly with each other.
The second is the uncontradicted evidence of Vijitha Kannangara that the Respondent was incorporated for the purpose of publishing the book. The third is that Krishni Jayawardena copied P9 to the Respondent, thus confirming the above evidence of Vijitha
13 Kannangara that it was the Respondent that was responsible for the publication of the book. Furthermore, it was the position of the Appellant that the reference to ‘we’ in P11
was a reference to the Respondent, and that it had no reason to doubt that Minnette De Silva did not have the authority to enter into a contract with itself or bind the Respondent.
The learned Judges of the High Court have not considered any of these matters.
The position of the Respondent was that Minnette De Silva was neither an employee nor a director of the Respondent on the relevant date [2nd September 1997], and therefore had no authority to enter into a contract on behalf of the Respondent or to bind the Respondent. While it is true that Minnette De Silva was not a director at the time she wrote P11 and was only appointed as one, four weeks later, whether she had authority to sign P11 on behalf of the Respondent was a fact which was exclusively within the knowledge of the Respondent and something which the Respondent should have established by evidence. However, as noted earlier, the Respondent did not lead the evidence of any witnesses and therefore in my view, there was no evidence before the Trial Court that Minnette De Silva had no authority to act for and on behalf of the Respondent. I am therefore of the view that the High Court erred when it held (a) that Minnette De Silva had no authority to act for and on behalf of the Respondent, and (b)
that the Respondent cannot be held liable for the acts of Minnette De Silva carried out prior to her appointment as a director of the Respondent.
I shall nevertheless consider the said position of the Respondent in the context of the correspondence that took place after P11, in order to ascertain if at least the conduct of the Respondent supports the findings of the High Court.
Evidence that the Appellant intended to create legal relations P11 has been followed by four important letters that demonstrate the mind of the Appellant in no uncertain terms that as far as it was concerned, there was a meeting of minds with the Respondent and therefore it had a contract with the Respondent and no one else, with regard to the provision of services towards the publication of the said book.
14 The first such letter is dated 22nd September 1997 [P20], sent by the Appellant addressed to Ashley De Vos, a Director of the Respondent and an equally renowned and respected Architect, that it had received from Dinali De Saram the documents mentioned therein relating to Volumes III and IV. By the last sentence of P20, the Appellant requested the Respondent to, “Please make arrangements to forward both the dummy and text pertaining to Volume IV at the very earliest”. This has been followed by the Appellant raising an invoice dated 30th September 1997 [P14] addressed to “Mr. Ashley De Vos,
Minnette De Silva (Pvt) Ltd” in a sum of Rs. 733,832.54 towards the cost of typesetting,
pagination, scanning of photographs and producing four colour separated positive films of Volume I of Minnette De Silva’s book.
The third is when on 30th September 1997, the Appellant once again wrote to “Mr. Ashley De Vos, Minnette De Silva (Pvt) Ltd” [P19] setting out in detail the work that has been done in respect of each Volume and the documentation that was required in order to complete the said volumes. Attached to this letter was the time schedule for the completion of each Volume [P19A]. As admitted by the Respondent, by 29th September
1997, Minnette De Silva was a director of the Respondent. P19 has been followed with the fourth letter, dated 3rd October 1997 [P18], once again addressed to “Mr. Ashley De Vos, Minnette De Silva (Pvt) Ltd” drawing his attention to issues that had arisen with Volume IV.
P18 , as well as P14, P19 and P20 specifically contain the title of the book as the subject matter of the correspondence and refers to the delays caused as a result of the Respondent not furnishing the material on time. These letters demonstrate in no uncertain terms that in the mind of the Appellant, it had been engaged by the Respondent to carry out the film work for the said book.
It was the contention of the Appellant that if the Respondent had not engaged the services of the Appellant, the natural and most obvious response to P18, P19 and P20
should have been for the Respondent to have inquired, either from the Appellant or from Minnette De Silva herself, as to what was going on, or else for the Respondent to have disowned itself from the work that the Appellant was carrying out. There is not a single
15 document or an iota of evidence to show that the Respondent (a) raised an objection when the Appellant started communicating with it right after P11 was written by Minntte De Silva, or (b) raised any issue with Minnette De Silva herself. Surely, a limited liability company would not engage in correspondence over something that it had no connection with. Hence, I am of the view that the response of the Respondent is totally contrary with an entity that now claims it had no contract with the Appellant.
Evidence that the Respondent intended to create legal relations Viewed from the perspective of a reasonable person in the position of the actual parties to the contract, the most critical event that demonstrates that in P11, there existed an actual and very clear meeting of minds between the Appellant and the Respondent, and that P11 manifests the mutual assent and the intention on the part of the Respondent to create legal relations took place on 17th October 1997, when Ashley De Vos, writing on a letterhead of the Respondent and in his capacity as a Director of the Respondent [P17],
informed the Appellant as follows:
“Life and work of an Asian woman architect Even though Volumes 1 & 2 of the book are not complete, we are pleased to keep our part of the bargain.
Our cheque for Rs. One million is attached. Kindly acknowledge receipt.” [emphasis added]
What is the bargain that the Respondent was speaking of? In the absence of any explanation from the Respondent, and applying the objective test of the reasonable person’s assessment, the only conclusion that can be drawn, especially when one considers that (a) the letter was titled ‘The life and work of an Asian woman architect’ and
(b) was consequent to P18, P19 and P20, is that it is a reference to the contract between the Appellant and the Respondent in relation to the work that was being carried out by the Appellant pursuant to the acceptance evidenced by P11. To me, P11 and the events that have so far unfolded from the time P11 was issued is a classic demonstration and
16 confirmation of the meeting of minds between two parties and reflects at its best, the intention of the Respondent to enter into contractual obligations with the Appellant in relation to the publication of the autobiography of Minnette De Silva.
Payment by the Respondent P17 does not stop there, for it goes onto state that, “Our cheque for Rs. One million is attached”. While the fact that this payment has been made by the Respondent has been admitted, the belated position of the Respondent, as taken up in its answer was that the said payment had been made on behalf of Minnette De Silva, who was very much alive at that time. If that be the case, why did the Respondent not say so in P17? While no evidence was given by the Respondent as to the circumstances that led to a payment of Rs. One million being made on behalf of another other than itself, the fact remains that the Respondent was a limited liability company and would not have so readily paid for something unless it arose from an obligation that the Respondent itself had incurred.
Thus, I am unable to agree with the conclusion reached by the High Court that the basis for the payment is not clear.
P17 was followed by a further letter by the Appellant dated 20th November 1997 [P16]
containing a progress update and once again was addressed to “Mr. Ashley De Vos,
Minnette De Silva (Pvt) Ltd”. On 31st March 1998, the Appellant had raised a further invoice [P15] in a sum of Rs. 937,332.32 in favour of “Mr. Ashley De Vos, Minnette De Silva
(Pvt) Ltd” towards the cost of typesetting, pagination, scanning of photographs and producing colour separated positive films of Volume II of Minnette De Silva’s book.
Thus, the second phase, which commenced with negotiations by Krishni Jayawardena on behalf of Minnette De Silva culminated with the acceptance of the offer of the Appellant by the Respondent [P11], the Respondent making a payment of Rs. One million as part payment for the work that was to be carried out by the Appellant [P17], and the Respondent and the Appellant corresponding with each other relating to the progress of the work. Most importantly, after P11, Minnette De Silva had clearly been left out of the picture by the Appellant as well as the Respondent.
17 The third phase Minnette De Silva passed away on 21st November 1998. The events that I have identified as forming the third phase are those that took place after her death.
The book titled, “Minnette De Silva - The life and work of an Asian Woman Architect” [P13]
was published in 1998. Consisting of over 345 pages and containing hundreds of photographs, sketches etc., of historical value, it sets out the life story of a unique personality of this Country and the contribution made by her to the development of architecture in Sri Lanka. Very importantly, the inside cover page of P13 sets out that the copyright to the book is with the Respondent and acknowledges the contribution made by the Appellant in having carried out the film work for the book. Thus, there is no dispute that the Appellant had satisfactorily carried out the work undertaken by it, and given the commercial nature of the relationship, that the Appellant was entitled to be remunerated. To not do so would clearly have amounted to unjust enrichment on the part of the Respondent.
Further payments by the Respondent The Appellant, by letter dated 17th October 2000 [P26], under the title of ‘Minnette De Silva’s Book – The life and work of an Asian woman architect’, and referring to a conversation had the day before, informed “Mr. Ashley De Vos, Director, Minnette De Silva (Pvt) Ltd” the summary of the work carried out by the Appellant, the invoices raised so far in respect of Volumes I – III [i.e., P14, P15 and Invoice No. 3347 dated 29th November
1999] and the estimated invoices in respect of Volumes IIIA and IV, and sought the payment of a sum of Rs. 1,911,976.44, being the balance outstanding having deducted the payment of Rs. One million.
The response to P26 under the same caption as P26 is dated 18th October 2000 [P27], is written on a letterhead of the Respondent, signed by Ashley De Vos, and reads as follows:
18 “You will recall that when you spoke to us on the 16th October 2000, we assured you that we could commit Rs. 400,000 as it was available. We therefore are disappointed that you quote otherwise.
However, as we have received another payment from book sales, we enclose a cheque for Rs. 450,000 as requested by you.
There are a few outstanding issues that need to be addressed and we shall get back to you in the near future.” [emphasis added]
The cheque for Rs. 450,000, drawn on the account of the Respondent, in favour of the Appellant and signed by Ashley De Vos and Susil Siriwardena, both directors of the Respondent, has been attached to P27. There are three important matters that arise from P27. The first is that payment is being made to the Appellant from the sale proceeds of the book. The second is that P27 does not disclaim liability to pay the said sum nor does it state that the said payment is not due from the Respondent. The third is that P27 does not state that payment is being made for the work carried out for Minnette De Silva in her personal capacity.
By letter dated 9th February 2001 [P28], the Appellant had once again written to “Mr.
Ashley De Vos, Director, Minnette De Silva (Pvt) Ltd” seeking the payment of a sum of Rs.
1,461,976.74. It appears from a letter dated 4th July 2001 [P29] sent by the Appellant to
“Mr. Ashley De Vos, Director, Minnette De Silva (Pvt) Ltd” that in response to P28, the Respondent had made a further payment in a sum of Rs. 200,000 on 12th February, 2001
[vide P33] with the value of the payments aggregating to Rs. 1,650,000. Although the cheque by which a further Rs. 200,000 was made has not been tendered, the said payment has been admitted by the Respondent.
P29 has been followed by a letter of demand dated 28th September 2001 [P30] addressed to the Respondent. In response, the Respondent made a further payment of Rs. 200,000
by a cheque drawn on the account of the Respondent, in favour of the Appellant and signed by Ashley De Vos and Susil Siriwardena, directors of the Respondent. The covering letter dated 9th October 2001 [P31] accompanying the said cheque has been signed by
19 Ashley De Vos on a letterhead of the Respondent. Here too, the letter to which the cheque was attached [P31], does not state that the payment is being made for the work carried out for Minnette De Silva or that the said payment is being made to assist the Appellant.
The correspondence between the parties ended after P32 and action had been instituted on 25th January 2002.
There is one other matter that I must state with regard to the payments made by the Respondent in a total sum of Rs. 1,850,000. The High Court has stated that the mere payment of money due from Minnette De Silva does not create a contractual relationship between the Appellant and the Respondent. The High Court has however failed to consider the context in which each of the payments were made and the contractual nexus that existed between the Appellant and the Respondent with regard to the publication of the book, and which nexus gave rise to the said payments. As we have already seen, the evidence clearly establishes that there was a contract between the Appellant and the Respondent and that the payments arose out of the said contract. Of the four payments,
three payments were made after the death of Minnette De Silva. If the present position of the Respondent that it does not have a contract with the Appellant is to be accepted,
then the Respondent ought to have stated so in the correspondence, instead of continuing to make payments, especially when the outstanding sum of money was demanded through the Attorney-at-Law of the Appellant. I am therefore of the view that the High Court erred when it failed to appreciate the context in which the payments had been made.
Conclusion In the above circumstances, I am of the view that by P11, Minnette De Silva accepted the offer of the Appellant on behalf of the Respondent, and that a contract came into existence between the Appellant and the Respondent at that point. There is a clear meeting of minds at this point and it continued, with the intention to create legal relations borne out by P11 manifested by the correspondence that took place thereafter. The conduct and the actions of the Respondent is of a party who has entered into a legally binding relationship and the aforementioned material clearly demonstrates that there existed a contract between the Respondent and the Appellant with regard to the
20 publication of the book ““Minnette De Silva – The life and work of an Asian woman architect”. The Respondent has breached the said contract and is therefore liable for the payment of a sum of Rs. 1,061,974.74 arising out of the said breach.
I would therefore answer the aforementioned first question of law in the affirmative. In view of the above finding, the necessity for me to consider the other questions of law including those based on unjust enrichment and the question of law raised by the Respondent does not arise, suffice to state that the evidence in this regard is sufficient for the Appellant to have succeeded had the cause of action been based solely on a claim of unjust enrichment.
The appeal of the Appellant is allowed. The judgment of the High Court is set aside and the judgment of the District Court is affirmed. The Appellant shall be entitled to the payment of a sum of Rs. 1,061,974.74 together with legal interest thereon from the date of action until the date of the decree and for legal interest on the aggregate sum until payment in full. The Respondent shall pay the Appellant the costs of proceedings before all three Courts, calculated at a sum of Rs. 500,000.
L.T.B. Dehideniya, J I agree.
Mahinda Samayawardhena, J I agree.
JUDGE OF THE SUPREME COURT JUDGE OF THE SUPREME COURT JUDGE OF THE SUPREME COURT
21
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SC
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sc-appeal-19/2002
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https://www.supremecourt.lk/images/documents/sc_chc_apleal_19_2002.pdf
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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Korea-Ceylon Footwear Manufacturing Company Limited of No. 36, D.R. Wijewardena Mawatha,
Colombo 10.
Plaintiff SC APPEAL NO: SC/CHC/19/2002
CHC NO: HC (CIVIL) 174/1996 (l)
Vs.
Coats Tootal Lanka (Private) Limited of P.O. Box 250,
No. 33, Steples Street,
Colombo 02.
Defendant AND NOW BETWEEN Coats Tootal Lanka (Private) Limited of P.O. Box 250,
No. 33, Steples Street,
Colombo 02.
presently called and known as,
Coats Thread Lanka (Private) Limited of Floor 3-6, No. 163, Union Place,
Colombo 02.
Defendant-Appellant 2
SC/CHC/19/2002
Vs.
Korea-Ceylon Footwear Manufacturing Company Limited of No. 36, D.R. Wijewardena Mawatha,
Colombo 10.
presently under winding up by court in the District Court of Colombo Case No.
67/CO and represented by:
1. N.S.C de Silva
2. L.C. Piyasena
3. L.L.S Wickramasighe
4. C.R. Weragala All of No. 32, Park Road, Colombo 05.
The liquidators appointed by the District Court in Case No. 67/CO.
Plaintiff-Respondent Before:
P. Padman Surasena, J.
Mahinda Samayawardhena, J.
Arjuna Obeyesekere, J.
Counsel: Sanjeeva Jayawardena, P.C., with Lakmini Warusevitane for the Defendant-Appellant.
Avindra Rodrigo, P.C., with Akiel Deen for the Plaintiff-
Respondent.
Argued on : 22.03.2022
Written submissions: 3
SC/CHC/19/2002
by the Plaintiff-Respondent on 28.04.2022.
by the Defendant-Appellant on 04.05.2022.
Decided on: 16.12.2022
Mahinda Samayawardhena, J.
The plaintiff company filed this action against the defendant company in the Commercial High Court seeking recovery of a sum of Rs.
20,383,451.56 with interest on the basis that the thread supplied by the defendant on 20.05.1994 and 04.06.1994 (vide paragraph 5(a) of the plaint) were not in good order and condition. According to paragraph 5(c)
of the plaint, the plaintiff had paid a sum of Rs. 62,087.85 to the defendant for this purchase. The defendant filed answer seeking dismissal of the plaintiff’s action and made a claim in reconvention in a sum of Rs. 2.5 million for loss of reputation. After trial, the learned Judge of the Commercial High Court entered judgment for the plaintiff. Hence this appeal by the defendant.
The plaintiff is a manufacturer of shoes. The case for the plaintiff is that it incurred damages as a result of a foreign buyer rejecting a consignment of shoes manufactured by the plaintiff due to the soles of the shoes becoming discoloured by the dispersing of the dye in the thread supplied by the defendant.
The invoices relevant to the thread supplied by the defendant on
20.05.1994 (V3) and 04.06.1994 (V4) and the written conditions of sale
(V5) were marked through the evidence of the main witness for the plaintiff, Mr. Amunugama, the General Manager (Operations) of the plaintiff company (vide of the brief). On the same page he clearly admits in evidence that when the plaintiff makes a purchase, the 4
SC/CHC/19/2002
purchased item is specified in an invoice, and that invoice denotes the conditions of sale.
Q. When you make a purchase what you purchase is specified on an invoice and that invoice denotes the conditions of sale?
A. Yes.
(4th condition read)
…..
(The invoice dated the 4th of June 1994 is marked V3; invoice dated
20th May 1994 is marked V4 and conditions of sale as V5.)
In my view, V3, V4 and V5 constitute the agreement of sale of the disputed lot of thread.
On the front page of V3 and V4 it is printed “TERMS AND CONDITIONS OF SALE ON REVERSE” and the “CONDITIONS OF SALE” on the reverse of V3 and V4 is marked V5.
The 4th condition reads as follows:
Because of the disproportionate value of sewing thread in relation to the value of other items used in the manufacture of wearing apparel,
the purchaser must satisfy himself that any thread ordered is suitable in every respect for the end use intended. All express or implied warranties or conditions statutory or otherwise as to quality or fitness for any purpose are hereby expressly excluded.
The 9th condition reads as follows:
Where due to operation of law, consequential, special or incidental damages cannot be excluded, they are expressly limited in amount to the purchase price of the merchandise purchased.
In view of my final decision, the 9th condition has no relevance. 5
SC/CHC/19/2002
The plaintiff accepted the thread relevant to this case subject to the 4th condition. The learned High Court Judge accepts this in the judgment but states “In my view the defendant could not rely on the exemption clause in V5 because in P7 the defendant has created an impression in the mind of the plaintiff that the thread supplied by the defendant is resistant to chemical attack.” The learned Judge further explains “In the circumstances the express condition in P7 that the polyester thread is resistant to chemical attack overrides the exemption clause found in condition 4 of the document marked V5.”
P7 stipulates the following condition.
Astra is a spun polyester thread specifically designed for very high speed sewing. It has many properties superior to other sewing threads. It is stronger, size for size, than threads currently on the market. Interchangeable with other threads with little machine adjustment. Under 1% shrinkage. Resistant to perspiration and chemical attack. Suited to tropical conditions. Very low hot air shrinkage.
The learned High Court Judge says the above is an express condition. On the face of P7, it is so; but the question is whether it is an express condition of the contract entered into between the plaintiff and the defendant. It is not the position of the learned High Court Judge that it is an implied condition of the contract; nor was such a clear position taken by the plaintiff at the argument. If the said condition is to be treated as an implied condition of the contract as opposed to an express condition, different principles of law (statutory and case law) are applicable and I find no such discussion in the post-argument written submissions either. 6
SC/CHC/19/2002
An exemption clause is a term in a contract which excludes or limits or purports to exclude or limit, a liability which would otherwise arise.
Traditionally, Courts are loath to give a liberal interpretation to such clauses and instead give a literal interpretation. Court should be mindful of sweeping exclusion clauses imposed on weaker parties when assessing the extent of contractual obligations. An ambiguous term in an exemption clause can be restrictively interpreted against the person seeking to rely on it by application of the contra proferentem rule. But if the exemption clause is clearly worded and the contract is a commercial contract as opposed to a consumer contract, Court is prepared to deviate from this traditional view. In Photo Production Ltd v. Securicor Transport Ltd [1980]
AC 826, Lord Diplock stated at 851:
in commercial contracts negotiated between businessmen capable of looking after their own interests and of deciding how risks…can be most economically borne…it is wrong to place a strained construction upon words in an exclusion clause which are clear and fairly susceptible of one meaning.
It is not possible for an exemption clause and an express condition term to co-exist in a contract; one has to supersede the other. J.C. Smith in The Law of Contract (London: Sweet and Maxwell 1989) at states
“A man cannot in one and same contract expressly include a term (whether condition or warranty) and also exclude it.”
What is P7 (which is said to contain an “express condition” relevant to the contract) and how did it find its way into the case record?
There is no dispute that the plaintiff uses a chemical known as toluene in the shoe manufacturing process (toluene is a component in the paste used by the plaintiff to affix the sole of the shoe to the upper part) and the dispersing of the dye from the thread occurred because of the use SC/CHC/19/2002
toluene since the dye is soluble in toluene. Vide the evidence of the plaintiff’s own expert witness, the Director of the Rubber Research Institute. In my view, the finding of the expert witness does not favour the plaintiff although the plaintiff thinks otherwise.
When witness Amunugama was cross-examined on whether the plaintiff company informed the defendant company of their requirement for the thread, his answer was “On the catalogue they say that the thread is suitable for this process and I have seen that.” Then when he was asked whether he produces that catalogue, P7 was produced ( ). If P7 is an express condition of the contract between the plaintiff and the defendant, is that how it should have found its way into the case record?
What happens if that question was not asked by counsel for the defendant? In my view, if P7 was an express condition of the contract,
that document ought to have been listed and produced in the examination of chief. It is in this backdrop that we need to assess whether P7 is an express condition.
It is the position of the defendant that the defendant manufactures thread for the apparel (clothes) industry and not for the shoe manufacturing industry, and the P7 catalogue should be understood in that context. By looking at the language in P7, I cannot reject that argument. The use of the word “shrinkage” in two places of that document supports the defendant’s position. It refers to clothes shrinking in the laundry.
Witness Amunugama admits that the defendant manufactures this thread for clothing or apparel purposes ( ) and that the defendant in P7 does not state that this thread can be used for the manufacture of shoes ( ). However he says they had purchased thread from the defendant from at least 1990 and the defendant knew of the purpose of the purchase. 8
SC/CHC/19/2002
As I stated at the outset, the questionable purchase took place on
20.05.1994 and 04.06.1994; but this witness admits there was a similar complaint (the dispersing of dye from the thread to the sole of the shoe)
in 1992. The written complaint made in that regard dated 08.10.1992
marked V1 reads:
We regret to advise that the black thread supplied by you were used in some shoes exported to Italy, but, unfortunately these threads have been bleeding over a period of time and they have been coming through the rubber foxing, outsole, etc. Therefore, the customer has rejected the entire consignment and they are claiming refund of the value of US$ 31,411.20. We attach herewith a copy of the fax received from our Agents in Italy in this regard. Further these shoes were shown by our Supplies Manager to your Mr. Amarasekera,
Marketing Director and Mr. B. Perera your Sales Manager. If you require further samples we could dispatch same to you.
We would appreciate if you kindly let us know the manner in which you would wish to resolve this claim. Your earliest reply would be appreciated.
Condition No. 4 of the contract (V3/V4) clearly states “the purchaser must satisfy himself that any thread ordered is suitable in every respect for the end use intended.” This in my view is a fair and reasonable condition. The reason as stated by the defendant to the plaintiff in V2 is “We have no control over the processes, or changes of processes, which our customers may employ in the manufacture of their products and cannot therefore take any responsibility for them.” I agree with this explanation. V2 was sent long before the institution of the action. This is not a position the defendant took up for the first time at the argument – vide also paragraph
8(b) and (e) of the answer. 9
SC/CHC/19/2002
It is the position of the defendant that the plaintiff accepted this explanation and their business relationship continued. Witness Amunugama accepts that no action was instituted on the written complaint V1 to recover damages etc. It is significant to note that the witness admits that after this complaint on 08.10.1992 the plaintiff company continued to purchase thread from the Defendant ( )
and, what is more, even after the incident relevant to the instant action in 1994, they continued to do so ( ). This amounts to acquiescence or waiver on the part of the plaintiff; the plaintiff waived his right to complain against the violation of the contract, if at all there was such a condition. In the case of Hartley v. Hymans [1920] 3 KB 475 the buyer expressed his frustration through letters regarding the late delivery of the product and requested better deliveries. The seller continued to make the deliveries after the agreed completion date. The buyer later cancelled the order and refused to take up further deliveries. Court held that the buyer had waived his right to claim that the period for delivery had ended on the date agreed by continuing to write letters.
In view of the above, the contention of the plaintiff that there was no way the plaintiff could have known that the dye used by the defendant would disperse and cause the discoloration of the shoes is unsustainable. The plaintiff knew of the problem beforehand. The written complaint made by the plaintiff to the defendant regarding the instant issue dated
30.12.1994 marked P18 is identical to the complaint in V2 made in 1992.
The evidence of the defendant’s witness, who was the Director
(Manufacturing) in the defendant company, was that the defendant was under no obligation to supply thread to the plaintiff for the manufacture of shoes and “it was for the defendant company to consider whether the thread was suitable for their purpose and this was meant for the apparel industry.” ( ) His position is that “According to the apparel 10
SC/CHC/19/2002
standard it [the dye] does not migrate.” ( ) This is because in domestic washing, laundering, dry-cleaning etc. chemicals like toluene are not used. This was further explained in the re-examination:
Q: You also state that this thread that is sold by your company is manufactured for what purpose?
A: Cloth stitching.
Q: Your attention was drawn to the document P7, produced by the plaintiff on the last date?
A: Yes.
Q: Which states ‘resistant to perspiration and chemical attack’?
A: Yes.
Q: By that term what are the chemicals contemplated?
A: Chemicals contact with the clothes used in domestic ... Industrial washing and dry-cleaning.
Q: What does it mean industrial washing?
A: Laundering.
Q: Soap and other matters containing chemicals?
A: Yes.
Q: It is resistant to that chemical that are referred to in P7?
A: Yes.
Q: You also draw the attention of Court to the document P5 which contains conditions of sale referred to by the defendant-company,
sale of this thread?
A: Yes.
Q: You draw the attention of Court to condition No.4, that the purchaser must satisfy that the thread is suitable in every respect for the end use intended?
A: Yes. 11
SC/CHC/19/2002
Q: You find that on the evidence, that though this thread is meant for cloth stitching purposes that there are various buyers who buy the thread for other purposes?
A: Yes.
Q: Now for manufacture of shoes?
A: Yes.
Q: According to condition No.4, the purchaser must satisfy that the thread is suitable for what is said, for his use?
A: Yes.
Although this witness stated that the thread is used for cloth stitching,
it was suggested to the witness that the thread is sold for shoe manufacturing also to companies such as Bata, DSI, DI and ASIA. This was admitted by the witness; but the important point is there are no complaints from other shoe manufacturers of the dye dispersing from the thread and damaging the shoes ( ). This also goes to show that the problem (dye dispersing) does not lie in the thread supplied per se,
but the way the manufacturing process of the end product takes place,
over which the defendant says it has no control, and rightly so.
The learned High Court Judge has relied upon two decisions to arrive at his decision, i.e. that P7 overrides V3. One is Andrews Brothers
(Bournemouth) Ltd v. Singer & Co Ltd [1934] 1 KB 17 and the other is Curtis v. Chemical Cleaning and Dyeing Co [1951] 1 KB 805.
In Andrews Brothers (Bournemouth) Ltd v. Singer & Co Ltd, a contract “for the sale of new Singer cars” contained a clause (5) by which “all conditions, warranties and liabilities implied by statute, common law, or otherwise are excluded”. The sellers delivered, and the buyers accepted,
a car which was not a new car. In an action for damages for breach of contract in that the car delivered was not a new car, the sellers contended that the condition that the car should correspond with the description “a 12
SC/CHC/19/2002
new Singer car,” which would otherwise be implied by section 13 of the Sale of Goods Act, 1893, was excluded by clause 5 and the buyer’s claim was, therefore, barred. It was held that “the buyers were entitled to damages because the contract was a contract for the sale of “new Singer cars”; the term “new Singer cars” was an express, and not an implied, term of the contract and, therefore, it was not excluded by clause 5.” The facts of Andrews’ case are different from the one before me. If I may repeat, in that case the contract was “for the sale of new Singer cars” and therefore it was an express term of the contract itself, and clause 5 which was an exclusion clause was held to apply only to new vehicles, and therefore did not apply to exclude the condition implied by section 13 of the Sale of Goods Act, 1893. There is no such express term in the contract (V3-V5)
the parties have agreed to in the instant case, nor does the learned High Court Judge say that the condition – that the thread sold is resistant to chemicals – is an implied term of the contract.
In Curtis v. Chemical Cleaning and Dyeing Co, the plaintiff took a white satin dress to the defendants’ shop to be cleaned. She was given a paper headed “Receipt” and was asked by a shop assistant to sign it. The plaintiff inquired why her signature was required and the assistant replied, in effect, that the defendants would not accept liability for certain specific risks, including the risk of damage by or to the beads and sequins with which the dress was trimmed. In fact the “receipt” contained a condition that the cleaners accepted no liability for any damage however arising. When the dress was returned to the plaintiff it was found to be stained, and she was awarded damages by the County Court Judge who held that the defendants had been guilty of negligence and were not protected by their exemption clause by reason of misrepresentation as to its character. The Court held that the defendants could not rely on the exemption clause because their assistant, by an innocent misrepresentation, had created a false impression in the mind of the 13
SC/CHC/19/2002
plaintiff as to the extent of the exemption and thereby induced her to sign the receipt. Here again the facts are different. In the instant case there is no false misrepresentation. When the plaintiff complained about the same issue in 1992 (vide V2), according to the defendant, the defendant explained its position and the plaintiff accepted it; for otherwise they would not have continued with the business relationship. According to the evidence of witness Amunugama, the plaintiff has handled the situation by purchasing light colour thread instead of dark colour thread
( ). In Curtis v. Chemical Cleaning and Dyeing Co, the contract was between a customer and the company whereas here the contract is between two companies, which take calculated business decisions. And,
unlike in Curtis, here the decisions were not required to be taken instantly.
The learned High Court Judge is not correct when he states “the defendant could not rely on the exemption clause in V5 because in P7 the defendant has created an impression in the mind of the plaintiff that the thread supplied by the defendant is resistant to chemical attack” and “the express condition in P7 that the polyester thread is resistant to chemical attack overrides the exemption clause found in condition 4 of the document marked V5.” In the facts and circumstances of this case, I take the view that P7 is not part of the agreement; there is no correlation between P7
and V5. Therefore, the question whether one clause overrides the other does not arise and the exemption clause stands.
In view of this finding, there is no necessity for me look into the question of the damages awarded by the learned High Court Judge to the plaintiff.
It does not arise.
I set aside the judgment of the Commercial High Court and allow the appeal of the defendant. The plaintiff’s action shall stand dismissed. I make no order as to costs. 14
SC/CHC/19/2002
Judge of the Supreme Court Judge of the Supreme Court Judge of the Supreme Court P. Padman Surasena, J.
I agree.
Arjuna Obeyesekere, J.
I agree.
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SC
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sc-appeal-189/2017
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https://www.supremecourt.lk/images/documents/sc_appeal_189_2017.pdf
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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Henri Edama,
New Heaven,
Kahaththewela,
Prise Road,
Bandarawela.
Plaintiff SC APPEAL NO: SC/APPEAL/189/17
SC LA NO: SC/HCCA/LA/347/16
HCCA BADULLA NO: UVA/HCCA/BDL/38/2014(F)
DC BANDARAWELA NO: L/1671
Vs.
A.L.G. Somasiri,
No. 444, Bindunuwewa,
Bandarawela.
Defendant AND BETWEEN A.L.G. Somasiri,
No. 444, Bindunuwewa,
Bandarawela.
Defendant-Appellant 2 SC/APPEAL/189/17
Vs.
Henri Edama,
New Heaven,
Kahaththewela,
Prise Road,
Bandarawela.
Plaintiff-Respondent AND NOW BETWEEN Henri Edama,
New Heaven,
Kahaththewela,
Prise Road,
Bandarawela.
Plaintiff-Respondent-Appellant Vs.
A.L.G. Somasiri,
No. 444, Bindunuwewa,
Bandarawela.
(Deceased)
Defendant-Appellant-Respondent Arabegoda Loku Gamage Bandula Karunarathne Perera,
No. 444, Bindunuwewa,
Bandarawela. 3 SC/APPEAL/189/17
Substituted Defendant-Appellant-
Respondent Before:
Yasantha Kodagoda, P.C., J.
Janak De Silva, J.
Mahinda Samayawardhena, J.
Counsel: Ravindra Anawaratne for the Plaintiff-Respondent-
Appellant.
Sandamal Rajapakshe for the Substituted Defendant-
Appellant-Respondent.
Argued on: 25.10.2022
Written submissions:
by the Defendant-Appellant-Respondent on 18.07.2017.
by the Plaintiff-Respondent-Appellant on 19.03.2018.
Decided on: 16.12.2022
Mahinda Samayawardhena, J.
The plaintiff filed this action in the District Court of Bandarawela seeking a declaration of title to the land described in the first schedule to the plaint, ejectment of the defendant from a portion of that land as described in the second schedule to the plaint, and damages. The defendant filed answer seeking dismissal of the plaintiff’s action, a declaration that he is the owner of the land described in the second schedule to the plaint by prescription and deeds, and compensation in a sum of Rs. 50,000 for malicious prosecution. After trial, the District Court held with the plaintiff. On appeal, the High Court of Civil Appeal of Badulla set aside the judgment of the District Court and dismissed the plaintiff’s action. 4 SC/APPEAL/189/17
This Court granted leave to appeal against the judgment of the High Court on the following questions of law.
Did the High Court err in law in holding that the plaintiff has failed to identify the land in suit?
Did the High Court err in law in holding that the land claimed by the defendant tallies with the land depicted in plan V22 of the defendant?
Did the High Court err in law in holding that the plaintiff has failed to prove title to the land?
The High Court predominantly set aside the judgment of the District Court on the basis that the land in suit has not been identified. This is a perverse finding. There was no such issue at all before the District Court.
On the contrary, the defendant in the schedule to the answer expressly stated that the land in suit is depicted as lot 1 in plan No. 6049.
According to the plaint, the land described in the first schedule to the plaint is depicted as lots 1 and 2 in plan No. 205. The learned High Court Judge states that plan No. 205 was neither produced nor could be found in the case record. This is incorrect. This plan is found in the case record as part of P7. Plan No. 6049 (referred to earlier) was prepared to show the encroachment of the defendant as described in the second schedule to the plaint. Plan No. 6049 and its report were marked as X and X1. The surveyor who prepared this plan also gave evidence. In his report as well as in his evidence, he clearly states that it was prepared by the superimposition of plan No. 205 referred to in the first schedule to the plaint. The surveyor was not cross-examined on the accuracy of the plan or his evidence. His evidence remains uncontroverted. The learned High Court Judge in the judgment says the surveyor has not superimposed lots 1 and 2 on plan No. 6049. It seems that the learned High Court Judge 5 SC/APPEAL/189/17
has not read the brief properly, and the argument before the High Court has been disposed of on written submissions.
The third admission recorded at the trial is that possession of the disputed land described in the second schedule to the plaint was handed over to the defendant in execution of the order made in the section 66
application filed regarding this dispute. It is that portion which is depicted as lot 1 in plan No. 6049.
I cannot possibly understand why the learned High Court Judge decided to dismiss the plaintiff’s action predominantly on non-identification of the land. It appears that the learned High Court Judge has been misled by the misleading written submissions filed before him. The question of identification of the land cannot be raised for the first time on appeal. It is not a pure question of law but a mixed question of fact and law.
The learned High Court Judge states that the defendant’s title deeds marked V2, V4 and V5 describe a land feet in length and 40 feet in breadth which is about 11.6 perches, and it is depicted in the plan marked V22. There is no necessity to refer to V22. As I have already made clear, the defendant clearly identifies the disputed land in the plan marked X.
The plaintiff did not present his case in the District Court on the basis that he is the paper title holder of the land described in the second schedule to the plaint. In that context, there was no necessity to give undue prominence to the defendant’s deeds. After all, the High Court did not grant the defendant’s cross-claim. As crystalised in the issues, the defendant’s case was that he prescribed to the disputed portion of the land. Thereafter, by issue No. 13, the defendant in my view in passing says that he purchased the land on deed No. 158. If the defendant rested his case chiefly on paper title, he ought to have raised that issue first and 6 SC/APPEAL/189/17
then, if necessary, an issue on prescriptive title. He does not even raise an issue seeking compensation for improvements to the land in case the substantive issue is decided in favour of the plaintiff. Let me reproduce the defendant’s issues for a better understanding of what I endeavour to say:
10. විත්තිකරුවන්ගේ උත්තතරගේ සිය උපගේඛණගේ විස්තරකර ඇි පරිදි ගෙෙ නඩුවට
සම්බන්ධ ඉඩම් ගකොටස ග ෝ එහි අතුරු ඉඩම් ගකොටසක් ග ෝ පැමිණිලිකරු කිසිෙ දිනක
බුක්ිවිඳ ගනොෙැත්තගත්ත ද?
11. පැමිණිේගේ සවිස්තරව දක්වො ිගබන පැමිණිලිකරුට අයිිවොසිකම් ලැබී ඇතැයි කියනු
ලබන ඔප්පුව ෙත ඔහුට ඇිවූවොයැයි කියනු ලබන එකී අයිිවොසිකම් එකී ඔප්පුවට
පෙණක් සිෙොවී ිගබන්ගන් ද?
12. ගෙෙ නඩුවට සම්බන්ධ ගේපල ගෙෙ නඩුගේ විත්තිකරු විසින් ඔහුගේ ුර්වගොමී
අයිිකරු වූ බුක්ිකොරයන් සෙග වසර 100කට ආදීන ඉතො දීර්ඝ කොලයක් ිස්ගස්
බුක්ිවිඳ ිගබන්ගන්ද?
13. එකී දීර්ඝ කොලීන බුක්ියට අෙතරව විත්තිකරු ගෙෙ නඩුවට සම්බන්ධ ගේපල
1994.02.01 දින ප්රසිේධ ගනොතොරිස් පි. ලංකොධිකොර ෙ තො විසින් ලියො ස ික කළ
අංක 0158 දරණ විකුණුම්කොර ඔප්පුව ෙත මිලදීගැනීෙ කරණ ගකොටගගන අයිිය
ිගේද?
14. විත්ති උත්තතරගේ 7 වන ගේදගේ වඩො විස්තර කර ඇි පරිදි පැමිණිේගේ ‘අ’
උපගේඛණගේ විස්තර කර ඇි ඉඩම් ගකොටස තුල විත්තිකරු ගම් වන විට ලක්ෂ
විසිප කට (රු: 25,000,000/=) වඩො වටිනො නිවසක් සිය ගපෞේගලික වියදමින්
ගගොඩනගොගගන එහි පදිංචිව සිටින්ගන්ද?
15. විත්තිය විසින් ගෙගතක් ඉදිරිපත්ත කරන ලද විසඳිය යුතු ප්රශ්නයන්ට ඔවුන්ගේ වොසියට
පිළිතුරු ලැගබන්ගන්නම් ඔවුන් සිය උත්තතරගේ අයදුගම් අයද ිගබන සියලු ස න
ලබොගැනීෙට සුදුසු වන්ගන්ද?
Deed No. 158 which is referred to in issue No. 13 has been marked as V4. It is noteworthy that in the schedule to this deed the vendor also refers to the order given in favour of the defendant in the section 66
application as a source of title. It is clear that the said deed has been executed after the section 66 application to consolidate the possession SC/APPEAL/189/17
the defendant confirmed in the section 66 application. The reference to the section 66 application itself shows the strength of the vendor’s title to the land which he conveyed to the defendant by V4.
The learned High Court Judge says the schedule to the defendant’s deeds tallies with the plan marked V22. This is also incorrect. This plan has been prepared seven years after the institution of the action. The plan V22 depicts a land .3 perches. The extent of the land referred to in the deeds is 2/5 share of a land feet in length and 40 feet in breadth.
This is equivalent to 4.7 perches, not 11.3 perches.
It is strange that the learned High Court Judge has not mentioned a word about the defendant’s main claim – prescriptive title.
It is also strange that the learned High Court Judge has not mentioned the plaintiff’s title deeds. The plaintiff filed this action on paper title. The District Court accepted those deeds and held that the plaintiff is the paper title holder of the land. If the High Court reverses that finding, it behoves the High Court to give reasons. This was not done; nor was an attempt made to do so.
The learned High Court Judge says the plaint does not disclose the date on which the cause of action accrued to the plaintiff. These matters cannot be taken up for the first time in the appellate Court. If that were the case, even the District Court could not have dismissed the action at first sight. In terms of section 46 of the Civil Procedure Code, the Court can return the plaint for amendment.
Learned counsel for the defendant makes a new case for the defendant,
in that counsel seeks to argue that the title deeds of both parties do not refer to the same land but to two different lands situated in two villages and that the lands have been registered in different folios in the Land Registry. These are not questions of law but questions of fact. They 8 SC/APPEAL/189/17
cannot be agitated for the first time in the Supreme Court. The matters put in issue by the defendant in the trial Court are reflected in the issues I reproduced above.
I unhesitatingly set aside the judgment of the High Court and restore the judgment of the District Court and allow the appeal with costs.
Yasantha Kodagoda, P.C., J.
I agree.
Janak De Silva, J.
I agree.
Judge of the Supreme Court Judge of the Supreme Court Judge of the Supreme Court
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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Ven. Habarakada Soratha Thero,
The Chief Incumbent,
Sri Wardhanarama Purana Viharaya,
Kaluwella, Galle.
Plaintiff SC APPEAL NO: SC/APPEAL/76/2021
SC LA NO: SC/HCCA/LA/313/2019
CA NO: SP/HCCA/GA/0104/2012 (F)
DC GALLE NO: 14252/Land Vs.
1.
Palpola Kankanamge Gunadasa (Deceased)
1A. Maddekandege Lilawathie
1B. Palpola Kankanamge Jayawathie
1C. Palpola Kankanamge Sunila
1D. Palpola Kankanamge Mangalika All of Unnanse Liyadda,
Paragaha Owita, Kirimatimulla,
Godakanda, Galle.
2. Game Kankanamge Daya alias Dayawathie, 2
SC/APPEAL/76/2021
Godakanda, Galle.
Defendants AND BETWEEN Ven. Habarakada Soratha Thero,
The Chief Incumbent,
Sri Wardhanarama Purana Viharaya,
Kaluwella, Galle.
Plaintiff-Appellant Vs.
1A. Maddekandege Lilawathie
1B. Palpola Kankanamge Jayawathie
1C. Palpola Kankanamge Sunila
1D. Palpola Kankanamge Mangalika All of Unnansege Liyadda,
Paragaha Owita, Kirimatimulla,
Godakanda, Galle.
2. Game Kankanamge Daya alias Dayawathie,
Godakanda, Galle.
1A, 1B, 1C, 1D & 2nd Defendant-
Respondents AND NOW BETWEEN
1A. Maddekandege Lilawathie 3
SC/APPEAL/76/2021
1B. Palpola Kankanamge Jayawathie
1C. Palpola Kankanamge Sunila
1D. Palpola Kankanamge Mangalika All of Unnansege Liyadda,
Paragaha Owita, Kirimatimulla,
Godakanda, Galle.
Correctly,
All of Unnansege Liyadda,
Karapitiya, Godakanda, Galle.
1A, 1B, 1C, 1D Defendant-
Respondent-Appellants Vs.
1. Ven. Habarakada Soratha Thero,
The Chief Incumbent,
Sri Wardhanarama Purana Viharaya,
Kaluwella, Galle.
Plaintiff-Appellant-Respondent
2. Game Kankanamge Daya alias Dayawathie,
Godakanda, Galle.
2nd Defendant-Respondents-
Respondent Before:
P. Padman Surasena, J.
Achala Wengappuli, J.
Mahinda Samayawardhena, J. 4
SC/APPEAL/76/2021
Counsel: Ranjan Suwandaratne, P.C., with Anil Rajakaruna for the Substituted Defendant-Respondent-Appellants.
Sarath Vidanapathirana for the Plaintiff-Appellant-
Respondent.
Argued on : 26.11.2021
Written submissions:
by Plaintiff-Appellant-Respondent on 17.11.2021.
by Defendant-Respondent-Appellants on 21.10.2021.
Decided on: 16.12.2022
Mahinda Samayawardhena, J.
The plaintiff (a Buddhist monk) filed this action in the District Court of Galle against the two defendants seeking a declaration that the land described in the second paragraph of the plaint belongs to the Sri Wardhanarama Purana Viharaya of Galle, a declaration that he is the controlling Viharadhipati of this temple, ejectment of the 1st defendant from the land and damages. The plan marked P1 was prepared to depict the land for the purpose of this case. The 1st defendant filed answer seeking prescriptive title to the land. After trial, the District Court dismissed the plaintiff’s action on the basis that the plaintiff had not proved title to the land, and entered judgment for the defendant on the basis that the 1st defendant had acquired prescriptive title to it. On appeal, the High Court of Civil Appeal set aside the judgment of the District Court and entered judgment for the plaintiff except damages. Being aggrieved by the judgment of the High Court of Civil Appeal, the 1st defendant filed this appeal with leave obtained from this Court on the following questions of law: 5
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1. Did the High Court of Civil Appeal err in law by failing to consider that the plaintiff has failed to identify the land described in the second paragraph of the plaint as required by law?
2. Did the High Court of Civil Appeal err in law by failing to consider that the land referred to in deed marked P2 is different from the land referred to in the second paragraph of the plaint?
3. Did the High Court of Civil Appeal err in law by failing to consider that the plaintiff has failed to strictly prove title to the land described in the second paragraph of the plaint?
The 1st question of law in my view cannot be a contentious issue because the learned District Judge in the judgment has rightly accepted that the land described in the second schedule to the plaint is depicted in the plan marked P1. The High Court did not disturb that finding. As I stated earlier,
the District Court dismissed the plaintiff’s action on the basis that the plaintiff did not prove title to the land depicted in P1, which is in the possession of the 1st defendant.
The title deed of the plaintiff is the deed marked P2, which has been executed in 1838 (184 years ago). This was marked without any objection.
The transferee is Navungala Samanera Unnanse who had been the Viharadhipathi of this temple. The land is described as Kirimatimulle Owita alias Paragaha Owita and the extent is given as 20 Kurunis of paddy sowing extent. The land had not been identified by way of a survey plan, which was not uncommon at that time. The boundaries are not given in the deed.
According to the plaintiff, this land had been given on lease/mortgage by succeeding Viharadhipathies to the 2nd defendant’s father (Babunhamy),
mother (Karoline) and the 2nd defendant. These deeds P8-P14 were marked without any objection and they have been executed successively in 1937,
1951, 1961, 1971, 1977, 1978 and 1999. In these deeds, P2 is not referred to but boundaries are given, which tally with the boundaries in plan P1. 6
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The learned District Judge in the judgment states that the nexus between these deeds and the title deed of the plaintiff marked P1 is not established.
The 2nd defendant in her evidence states that, after the death of her father,
the 1st defendant was employed to look after the land, to pluck coconuts,
but he thereafter continued to possess the temple land. It is significant to note that not a single question has been asked from the 2nd defendant by the 1st defendant during the cross-examination controverting or challenging this position.
The 1st defendant did not give evidence. Instead, her daughter gave evidence. She denied that her father came to this land as a licensee of either the 2nd defendant or the Viharadhipathi of the temple.
The name of the land described in the deeds P8-P14 is Kirimatimulle Paragahaowita. The land described in the second paragraph of the plaint is Kirimatimulle Paragahaowita alias Unnansege Liyadda. The daughter of the
1st defendant in her evidence admits that this land is known by villagers in the area as Unnansege Liyadda. But she says this land was at one time owned by a village headman and because of that the land is known as Unnansege Liyadda. On the facts and circumstances of this case, in my view, this is a false position. There is no evidence to say that this land was at one time owned by a village headman and that he was called Unnanse by the villagers; villagers call Buddhist priests Unnanse or Unwahanse. It is the position of the plaintiff that since this land belongs to the temple, it is called Unnansege Liyadda, which is acceptable.
The land has been sufficiently identified and the title to the land has been sufficiently proved. In a rei vindicatio action the plaintiff need not prove identification of the land and the title to the land beyond reasonable doubt but on a balance of probability. This needs to be properly understood. This duty has satisfactorily been discharged by the plaintiff in this case. 7
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Banda v. Soyza [1998] 1 Sri LR 255 is a rei vindicatio action filed by a trustee of a temple seeking a declaration of title, the ejectment of the defendant and damages. The facts are similar although not identical. The Court of Appeal set aside the judgment of the District Court and the plaintiff’s action was dismissed on the ground that the plaintiff had failed to establish title to the subject matter of the action or even to identify the land in suit. But the Supreme Court set aside the judgment of the Court of Appeal and restored the judgment of the District Court on the basis that there was “sufficient evidence led on behalf of the plaintiff to prove the title and the identity of the lots in dispute.” Chief Justice G.P.S. de Silva, at , laid down the criterion to be adopted in a rei vindicatio action in respect of the onus of proof in the following manner:
In a case such as this, the true question that a court has to consider on the question of title is, who has the superior title? The answer has to be reached upon a consideration of the totality of the evidence led in the case.
The evidence of the daughter of the 1st defendant is that her father had come to a no-man’s-land and acquired the land by prescriptive possession. This position has been accepted by the learned District Judge. As Chief Justice G.P.S. de Silva held in Sarajudeen v. Abbas [1994] 2 Sri LR 365 “A facile story of walking into abandoned premises after the Japanese air raid constitutes material far too slender to found a claim based on prescriptive title.”
In any event, in terms of section 34 of the Buddhist Temporalities Ordinance, no prescription operates against temple properties.
In the case of any claim for the recovery of any property, movable or immovable, belonging or alleged to belong to any temple, or for the 8
SC/APPEAL/76/2021
assertion of title to any such property, the claim shall not be held to be barred or prejudiced by any provision of the Prescription Ordinance:
Provided that this section shall not affect rights acquired prior to the commencement of this Ordinance.
Vide the judgment of Chief Justice Samarakoon in Waharaka alias Moratota Sobhita Thero v. Amunugama Ratnapala Thero [1981] 1 Sri LR 201.
I answer the questions of law upon which leave to appeal was granted in the negative, affirm the judgment of the High Court of Civil Appeal and dismiss the appeal but without costs.
The District Judge will enter judgment as prayed for only in paragraphs (i),
(iii) and (iv) of the prayer to the amended plaint dated 19.03.2004.
P. Padman Surasena, J.
I agree.
Achala Wengappuli, J.
I agree.
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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Rev. Mahanuwara Ratnasara Thero,
Sri Sidhartha Ramaya,
509, Nawala Road,
Rajagiriya.
Plaintiff (Deceased)
Arumugam Rasalingam,
No. 32, St. Anthony’s Mawatha,
Colombo 13.
Substituted Plaintiff SC APPEAL NO: SC/APPEAL/17/2016
SC LA NO: SC/HCCA/LA/349/2014
HCCA COLOMBO NO: WP/HCCA/COL/05/2009(F)
DC COLOMBO NO: 20221/L Vs.
Sri Lanka Land Reclamation and Development Corporation,
No. 3, Sri Jayawardenapura Mawatha,
Welikada, Rajagiriya.
Defendant AND BETWEEN 2
SC/APPEAL/17/2016
Arumugam Rasalingam,
No. 32, St. Anthony’s Mawatha,
Colombo 13.
Substituted Plaintiff-Appellant Vs.
Sri Lanka Land Reclamation and Development Corporation,
No. 3, Sri Jayawardenapura Mawatha,
Welikada,
Rajagiriya.
Defendant-Respondent AND NOW BETWEEN Arumugam Rasalingam,
No. 32, St. Anthony’s Mawatha,
Colombo 13.
Substituted Plaintiff-Appellant-Appellant Vs.
Sri Lanka Land Reclamation and Development Corporation,
No. 3, Sri Jayawardenapura Mawatha,
Welikada,
Rajagiriya.
Defendant-Respondent-Respondent 3
SC/APPEAL/17/2016
Before:
P. Padman Surasena, J.
Kumuduni Wickremasinghe, J.
Mahinda Samayawardhena, J.
Counsel: Kuvera de Zoysa, P.C., with Piume Kulatilake for the Substituted Plaintiff-Appellant-Appellant.
Kapila Liyanagamage for the Defendant-Respondent-
Respondent.
Argued on: 27.07.2022
Written submissions:
by the Plaintiff-Appellant-Appellant on 29.09.2022.
by the Defendant-Respondent-Respondent on 30.08.2022.
Decided on: 16.12.2022
Mahinda Samayawardhena, J.
The plaintiff filed this action against the defendant in the District Court of Colombo on 04.03.2004 seeking a declaration of title to the land described in the second schedule to the plaint, ejectment of the defendant therefrom,
and damages. The defendant by answer dated 09.07.2004 sought dismissal of the plaintiff’s action.
Before issues were raised, the plaintiff passed away on 12.04.2006 and the registered Attorney of the plaintiff made an application under section
404 of the Civil Procedure Code by way of petition and affidavit dated
27.09.2006 seeking to substitute one Arumugam Rasalingam as the substituted plaintiff, on the basis that the deceased plaintiff during the pendency of the action had transferred his rights in relation to the land in suit by deed No. 4906 dated 16.09.2005. With this application, a copy SC/APPEAL/17/2016
the Death Certificate and deed No. 4906 were tendered marked X1 and X2
respectively.
The defendant filed objections to this application by petition and affidavit dated 28.02.2007 and the matter was fixed for inquiry, which was disposed of by way of written submissions. The defendant resisted this application on two grounds: (a) the signature of the deceased plaintiff appearing on the deed is different from his signature appearing on other documents; (b) if the deed was executed on 16.09.2005, the application could have been made when the deceased plaintiff was alive. It was quite clear that the defendant objected to the application for substitution made under section 404 on the basis that the deed is a forgery and not on any other ground. The District Court having considered the objections and the written submissions tendered by both parties, made order dated
27.06.2007 allowing the application for substitution. The amended caption was accordingly tendered. There was no appeal against the order.
Learned counsel for the defendant does not say even now that the order dated 27.06.2007 is erroneous.
On 13.02.2008, admissions and issues were recorded before the District Court. On 07.07.2008, the substituted plaintiff gave evidence-in-chief.
Thereafter, on 15.09.2008, during the course of cross-examination of the substituted plaintiff, learned counsel for the defendant raised the following two issues: (a) Did the original plaintiff transfer his rights in the land by deed marked X2 (also marked V3) pending determination of the action?
(b) If the answer to that question is in the affirmative, can the plaintiff maintain this action?
The District Court by order dated 09.01.2009 citing Ponnamma v.
Weerasuriya (1908) 11 NLR 217, Silva v. Jayawardena (1942) 43 NLR 551
and Eugin Fernando v. Charles Perera and Others [1988] 2 Sri LR 288,
answered these two issues against the substituted plaintiff and dismissed 5
SC/APPEAL/17/2016
the action on the basis that in a rei vindicatio action such as this it is necessary for the title to be present with the plaintiff not only at the beginning of the action but until the conclusion of the case.
Of these judgments relied upon by the learned District Judge, let me say the following: the first judgment does not express such a view; the second judgment does; the third judgment takes the contrary view.
On appeal, the High Court of Civil Appeal affirmed the order of the District Court and dismissed the appeal. Hence this appeal by the substituted plaintiff.
This Court granted leave to appeal against the judgment of the High Court of Civil Appeal on the following questions of law:
a) Was the order of the learned District Judge dismissing the District Court action, based on an erroneous construction of the law?
b) Did the Hon. High Court Judges and the learned District Judge err in holding that the action of the substituted plaintiff-appellant-petitioner in the District Court cannot be proceeded with since the original plaintiff had parted with his title in the land?
c) Did the Hon. High Court Judges and the learned District Judge fail to consider that the title in the land had passed from the original plaintiff not to a person who was not a party in the case, but to the substituted plaintiff-appellant-petitioner?
d) Did the Hon. High Court Judges err when they held that the plaintiff has lost his title pending the conclusion of the action, without considering that the title had in fact passed to the substituted plaintiff-appellant-petitioner who had been substituted as the plaintiff in the action by the District Court? 6
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e) Did the Hon. High Court Judges and the learned District Judge err when they held that the plaintiff must retain title throughout the course of the action?
f) Did the Hon. High Court Judges and the learned District Judge fail to appreciate that the respondent did not challenge the order of the learned District Judge dated 27.06.2007 allowing the substituted plaintiff-appellant-petitioner to be substituted as the substituted plaintiff?
The preliminary question to be considered is, once an order is made by the Court on a certain matter after giving a hearing to both parties, can the same matter be reagitated by one of the parties, either directly or indirectly, at a subsequent stage of the proceedings before the same Court without preferring an appeal against the previous order? In my judgment,
this cannot be done on first principles. As much as a plaintiff cannot present his claim in Court piecemeal (vide section 34 of the Civil Procedure Code), a defendant also cannot take up his defence piecemeal. The defendant shall take up at once all matters which existed at the time of pronouncement of the order and which he had an opportunity of bringing before the Court, for otherwise there will be no end to litigation. Cf. Banda v. Karohamy (1948) 50 NLR 369. As Sansoni C.J. remarked in Cassim v.
Government Agent, Batticaloa (1966) 69 NLR 403 at 404 “there must be finality in litigation, even if incorrect orders have to go unreversed.” In such circumstances, the defendant cannot later add another string to his bow and say that the plaintiff’s vindicatory action must fail because of the execution of the deed (produced with the application under section 404
for substitution) pending the determination of the action. If the defendant wanted to take up that position, it should have been the first objection against substitution (rather than the deed being a forgery), which, if convincing, could have resulted in the dismissal of the action. The defendant did not do so. Hence the defendant could not have reagitated 7
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the matter halfway through the trial. The order of the District Court dated
09.01.2009 is a nullity as it was made corum non judice.
The next question is whether the Roman Dutch Law principle articulated by legendary Dutch jurist Voet (1647-1713) as quoted by Keuneman J. in Silva v. Jayawardena (1942) 43 NLR 551 (Voet 6:1:4 – Voet’s Title on Vindications and interdicta by Casie Chitty) and reproduced below should be mechanically followed in view of the provisions of the Civil Procedure Code.
But again, if he who brought this action was the dominus at the time of the institution of the suit, but lite pendente has lost the dominium,
reason dictates that the defendant should be absolved…both because the suit has then fallen into that case, from which an action could not have a beginning, and in which it could not continue...and because the interest of the plaintiff in the subject of the suit has ceased to exist,…and in short because that (right of dominium) has been removed and become extinct, which was the only foundation of this real action.
According to this proposition of law, in an action rei vindicatio, if the plaintiff loses title to the land pendente lite, the action fails. This Roman Dutch Law principle is given recognition to in cases such as Eliashamy v.
Punchi Banda (1911) 14 NLR 113, Fernando v. Appuhamy (1921) 23 NLR
476, De Silva v. Goonetileke (1931) 32 NLR 217, Silva v. Jayawardene
(1942) 43 NLR 551, Oman Ekanayake and Others v. Ratranhamy [2012]
BLR 19.
At first glance, this proposition of law gives rise to two concerns. Firstly,
this ignores another well-settled principle in law, i.e. that the rights of the parties shall be decided at the time of the institution of the action. 8
SC/APPEAL/17/2016
Secondly, this ignores the aspect of the continuation of an action after alteration of the status of parties by addition and/or substitution.
Chapter 25 of the Civil Procedure Code containing sections 392-405
provides for the continuation of actions after alteration of a party’s status by death, marriage and bankruptcy etc. Section 404 is a residuary section governing cases not specifically provided for in those sections. Section 404
reads as follows:
In other cases of assignment, creation, or devolution of any interest pending the action, the action may, with the leave of the court, given either with the consent of all parties or after service of notice in writing upon them, and hearing their objections, if any, be continued by or against the person to whom such interest has come, either in addition to or in substitution for the person from whom it has passed, as the case may require.
Section 404 is a standalone section with little qualification and with considerable latitude being afforded to the Court to decide on the matter of addition or substitution on the unique facts and circumstances of each application. Although section 392 enacts that the death of a plaintiff or defendant shall not cause the action to abate “if the right to sue on the cause of action survives”, section 404 presents no such qualification. Vide Dhammananda Thero v. Saddananda Thero (1977) 79(1) NLR 289 at 302.
Except in the dissenting judgment of Grenier J. in Eliashamy’s case
(supra) where there is a passing reference to section 404 of the Civil Procedure Code, the Court has not made even a passing reference to section 404 in any of the other cases referred to above but has solely depended upon the aforesaid passage of Voet. Grenier J. at merely states “I do not think that either section 18 or section 404 is helpful to the plaintiff in the position in which he has placed himself by conveying 9
SC/APPEAL/17/2016
the property in question to third parties, for no declaration of title can be made in this action in favour of the purchasers so long as the plaintiff is on the record.” It may be relevant to note that in the instant action the original plaintiff is not on record; he passed away and, after inquiry, the substituted plaintiff was appointed in his place.
In Eugin Fernando v. Charles Perera and Others [1988] 2 Sri LR 228,
Goonewardene J. did not agree with the above observation of Grenier J.
Whilst stating that it is obiter, Goonewardene J. held that section 404 of the Civil Procedure Code makes express provision for such a course of action and further stated that the same view has been taken in cases such as Murugesu v. Gunaratne (CA/LA/29/79, CA Minutes .07.1979) and Kandasamy v. Meenambikai (CA/LA/17/79, CA Minutes .08.1979).
Pless Pol v. De Soysa (1907) 10 NLR 252 was not a rei vindicatio action.
Nevertheless, the pronouncement of Hutchinson C.J. in that case is instructive. The plaintiff had filed action against the defendant seeking damages on an agreement. After the answer was filed, the plaintiff, by way of a deed sold and assigned all his interest in the agreement and in the action to another; the latter then sold and assigned the same to the appellant. The application by the appellant to be added as a party to the action was refused by the District Court relying on a statement of the Roman Dutch Law to that effect contained in Nathan’s Common Law of South Africa, Vol. II, . On appeal, the respondents citing eminent Roman Dutch Law jurists contended that under the Roman Dutch Law a right of action cannot be assigned after litis contestatio (which, in Ceylon,
according to Hutchinson C.J., means the settlement of issues in the action), and therefore there was no assignment to which section 404 could apply. Rejecting this contention, Hutchinson C.J. stated at pages 253-254:
On these authorities it does not seem to me quite clear that the Roman Dutch Law forbids such an assignment. But if it did, I think it cannot 10
SC/APPEAL/17/2016
have been intended to make the transaction altogether illegal and void as between the parties to it, but that the rule was only a rule of procedure, and that section 404 over-rides it. That section gives the Court power to allow the assignee to be added as a party when the assignment was made at any time pending the action; and the Court ought to do so in a proper case when it appears convenient and possible without prejudice to the other party.
This finding of the Supreme Court was affirmed by the Privy Council in Pless Pol v. Lady De Soysa (1911) 15 NLR 57.
There is no rationale for the proposition of law that in a vindicatory suit,
the action must fail the moment the plaintiff transfers title pending action
(except to say that it is a principle of the Roman Dutch Law as articulated by Voet) when section 404 of the Civil Procedure Code expressly enacts that in the case of assignment, creation or devolution of any interest in the subject matter of a pending action, the Court has the discretion to admit parties as plaintiffs or defendants after affording a hearing to all parties to the action. It is up to the Court to exercise that discretion judicially taking into consideration the facts and circumstances of each individual case. Vide Daniel Silva v. Jayasekere (1945) 46 NLR 316, Paaris and Another v. Bridget Fernando [1992] 1 Sri LR 36, Perera v. Ramaiah
[1997] 1 Sri LR 225, Cinemas Ltd v. Soundarajan [1998] 2 Sri LR 16,
Seneviratne v. Fernando [2001] 3 Sri LR 72.
I am not inclined to accept the argument of learned counsel for the defendant that section 404 deals with the procedural law, which has not changed the substantive law. Insofar as the instant matter is concerned,
the procedural law and the substantive law cannot be separated; they are interwoven. What is the point in making the appellant the substituted plaintiff under section 404 to continue with the action, if the Court is to inform him at the end of a protracted trial that the action is dismissed 11
SC/APPEAL/17/2016
without going into the merits on the Roman Dutch Law principle enunciated by Voet quoted above? The express provision in section 404
of the Civil Procedure Code can appropriately be made use of in making applications for addition or substitution of parties in a vindicatory action as well, when assignment, creation or devolution of any interest in the subject matter is effected pending determination of the action. If the substitution/addition is allowed, the Court is entitled to look into the merits of the claim of the added or substituted party, as appropriate.
Cases must be decided on the merits, not on technicalities (unless the technicality goes to the root of the case). The law is not static but, rather,
dynamic and should cater to the needs and challenges of contemporary society.
Issue No. 17 raised in the District Court shall be answered in the affirmative and issue No. 18 as “Action can be maintained.” I answer the questions of law accepted by this Court in the affirmative.
The order of the District Court dated 09.01.2009 and the judgment of the High Court of Civil Appeal dated 17.06.2014 are set aside and appeal is allowed but without costs.
The trial will continue from the place it was abruptly stopped. In view of this decision, the parties are permitted to raise additional issues, if necessary. The substituted plaintiff inter alia shall prove due execution of the deed V3.
Judge of the Supreme Court 12
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P. Padman Surasena, J.
I agree.
Kumuduni Wickremasinghe, J.
I agree.
Judge of the Supreme Court Judge of the Supreme Court
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in Data Studio
Sri Lanka Court Decisions Dataset
A dataset of court decisions from Sri Lanka's Supreme Court (SC) and Court of Appeal (CA), covering the period 2012-2022.
Dataset Description
This dataset contains 8,592 court decisions:
- Supreme Court (SC): 1,278 decisions
- Court of Appeal (CA): 7,314 decisions
The dataset includes the full text of judgments along with standardized case numbers and links to the original PDF documents.
Source
- Supreme Court decisions: supremecourt.lk
- Court of Appeal decisions: courtofappeal.lk
Dataset Structure
Data Fields
| Field | Type | Description |
|---|---|---|
court |
string | Court identifier: "SC" (Supreme Court) or "CA" (Court of Appeal) |
standard_casenumber |
string | Standardized case number (e.g., "sc-fr-123/2018", "ca-writ-456/2020") |
link |
string | URL to the original judgment PDF |
text |
string | Full text of the court decision |
decision_year |
int | Year the decision was published (2012-2022) |
Case Number Format
Case numbers are standardized to the format: {court}-{type}-{number}/{year}
Supreme Court types:
sc-fr-: Fundamental Rights petitionssc-appeal-: Appealssc-la-: Leave to Appealsc-chc-appeal-: Commercial High Court Appealssc-writ-: Writ applications
Court of Appeal types:
ca-writ-: Writ applicationsca-hcc-: High Court Criminal Appealsca-phc-: Provincial High Court Appealsca-rev-: Revision applicationsca-tax-: Tax appeals
Data Statistics
| Metric | Value |
|---|---|
| Total decisions | 8,592 |
| Supreme Court decisions | 1,278 |
| Court of Appeal decisions | 7,314 |
| Time period | 2012-2022 |
| Average text length (SC) | ~3,646 words |
| Average text length (CA) | ~1,688 words |
Usage
from datasets import load_dataset
dataset = load_dataset("elihoole/sri-lanka-court-decisions")
# Filter by court
sc_cases = dataset.filter(lambda x: x['court'] == 'SC')
ca_cases = dataset.filter(lambda x: x['court'] == 'CA')
# Filter by case type
fr_cases = dataset.filter(lambda x: 'sc-fr-' in (x['standard_casenumber'] or ''))
writ_cases = dataset.filter(lambda x: 'writ' in (x['standard_casenumber'] or ''))
# Filter by decision year
cases_2020 = dataset.filter(lambda x: x['decision_year'] == 2020)
Applications
This dataset can be used for:
- Legal text classification
- Case outcome prediction
- Legal language modeling
- Judicial analytics and empirical legal studies
- Topic modeling of court decisions
- Named entity recognition in legal texts
Citation
If you use this dataset, please cite:
@dataset{sri_lanka_court_decisions,
title={Sri Lanka Court Decisions Dataset},
author={},
year={2024},
url={https://huggingface.co/datasets/elihoole/sri-lanka-court-decisions}
}
License
This dataset is released under CC BY 4.0. Court decisions are public documents.
Acknowledgments
Data collected from the official websites of the Supreme Court and Court of Appeal of Sri Lanka.
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