GAMAGE KUSUMALATHA PERERA VS. PUSHPA DAMAYANTHI RANASINGHE - HON. DEEPALI WIJESUNDERA, J

• Jurisdiction: Sri Lanka
• Court: Court of Appeal (Sri Lanka)
• Citation: 2015SCOA439C1998Y
• Case Number: 2015SCOA439C1998Y
• Date: 27 November 2015
• Type of Document: Unreported judgment

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Gamage Kusumalatha Perera

Vs.

Pushpa Damayanthi Ranasinghe - Hon. Deepali Wijesundera, J

C.A. Application No.439/98-F

DC Homagama Case No. 658/L

1. Gamage Kusumalatha Perera

2. Gamage Swarnalatha Perera

Both of 486, Makumbura Pannipitiya.

Defendants- Appellants
Vs

1. Pushpa Damayanthi Ranasinghe
Of No. 43, Makumbura Road,
Pannipitiya.

2. Anoma Priyanthi Ranasinge
Of "Gemini", Thanthrimulla
Panadura.

3. Jayasiri Padma Kumara Ranasinghe
Of No. 43/3, Makumbura Road,
Pannipitiya.

4. Chandrani Jesmi Ranasinghe
Of No. 76/1, Anderson Road,
Kalubowila, Dehiwala.

Substituted Plaintiffs-Respondents

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BEFORE : Deepali Wijesundera J.
M.M.A. Gaffoor J.

COUNSEL : Nihal Jayamanna PC with Noorani Amarasinghe for the Defendants-Appellants
Anuruddha Dharmaratne with Shiran Smaranayake for for the Plaintiff-Respondents.

ARGUED ON : 06th July, 2015.

DECIDED ON : 27th November, 2015.

Deepali Wijesundera J.

The plaintiff respondents instituted an action against the defendant appellants seeking a declaration of title to the land described in the schedule to the plaint and ejectment of the defendant appellants. After trial the learned District Judge has delivered the judgment on 03/03/1998. Being aggrieved by the said judgment the defendant appellants have filed the instant application.

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The appellant's learned counsel argued that the case in the District Court commenced before one District Judge and concluded by another. When the learned District Judge who delivered the judgment heard the case on 26/06/1997 it was recorded that the parties agree to adopt the evidence so far given and to proceed with further trial. The appellants stated that the defendants were unrepresented by counsel on that day and though it was recorded that both defendants are agreeing to adopt evidence and are signing the record only one defendant has signed the record (JE of 26/06/97). The surveyor's evidence had been recorded that day and he has not been cross examined by the defense. Thereafter the plaintiff has closed his case and the defense was called on the same day. The second defendant has given just one sentence of evidence and has been cross examined by the plaintiff's counsel. The defendant's case was concluded.

The argument of the appellant was that the district Judge should have given a date for the defendants to cross examine the expert witness the surveyor and granted a date for the defendants case which is the usual procedure in any civil case. The appellant stated that the District Judge has not given thought to the maxim "Actus Curie nimenem Gravabit".

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The appellant cited the judgment in Manamperi Somawathie and buwaneswari 1990 1 SLR 223 and stated that when there is a proxy given to an attorney-at-law it remained valid until the party dies or till the action in concluded by judgment therefore all acts in a trial should be done by the Attorney. He also cited the judgments in Seelawathi vs Jayasinghe (1985) 2 SLR 266 and also Jinadasa and another vs Sam Silva and others (1994) 1 SLR 232 which have no relevance to the instant application.

The appellant also stated the trial in the District Court was postponed several time due to various reason for which they were not responsible. (JE 25 to JE 35).

The appellant further argued that the action filed by the respondents in an action for declaration of title and ejectment and that he has to prove his title to the land and if he...