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⚖️ WRIT PETITIONS: LACHES AND DELAYDelay is an important consideration when a court exercises its discretionary writ jur...
02/08/2026

⚖️ WRIT PETITIONS: LACHES AND DELAY

Delay is an important consideration when a court exercises its discretionary writ jurisdiction. However, delay alone does not automatically defeat a writ application.

General rule

A petitioner seeking judicial review must approach the court without unreasonable delay and must disclose all material facts. Relief may be refused where the petitioner is guilty of:

• Undue delay or laches
• Misrepresentation
• Suppression of material facts
• Failure to use an available appeal or revision procedure

In CA/WRT/168/2025, decided on 17 March 2025, the Court held that where the law provides an adequate remedy by way of appeal or revision, a party should ordinarily exhaust that remedy before invoking the Court of Appeal’s discretionary writ jurisdiction.

Important exception

Courts may still grant relief despite delay where the challenged decision is:

✅ Manifestly erroneous
✅ Made without jurisdiction
✅ Ultra vires
✅ A legal nullity
✅ A blatant violation of the law

In Biso Manika v Cyril de Alwis [1982] 1 Sri LR 369, the Court held that it would be reluctant to allow a manifestly erroneous or jurisdictionally defective order to continue merely because the application was delayed.

This principle was followed in R.M.D. Wasantha v Nimal Abeysisri, CA/WRT/0497/2019, decided on 22 September 2025. The Court observed that the rule of laches is not rigid and that relief may be granted where the impugned decision is ultra vires or a nullity.

Similarly, in Ceylon Electricity Board v Hon. W.D. Seneviratne and Others, CA/WRT/0125/2016, decided on 1 October 2025, the Court declined to permit an unlawful administrative practice to continue merely because of delay, particularly where no substantial prejudice had been caused to the respondents.

Key legal position

📌 Delay is relevant, but not always decisive.
📌 The court considers the nature of the illegality.
📌 A jurisdictional error or nullity may outweigh delay.
📌 The petitioner must explain the delay.
📌 The court will also consider prejudice to respondents and third parties.
📌 Available alternative remedies should ordinarily be exhausted first.

The doctrine of laches is applied flexibly. Its purpose is to prevent unfairness, not to protect unlawful administrative action.

This post is provided for general legal education and does not constitute legal advice.

26/07/2026

A Deed Marked “Subject to Proof” May, in Certain Circumstances, Be Treated as Duly Proved

In actions concerning title to immovable property, a deed marked and produced “subject to proof” would ordinarily require formal proof before its contents could be relied upon as evidence.

Section 68 of the Evidence Ordinance generally provides that a document required by law to be attested, including a deed affecting land, shall not be used in evidence unless at least one attesting witness is called to prove its ex*****on, provided that such witness is alive, capable of giving evidence, and subject to the process of court.

However, in SC Appeal No. 55/2020, Weerakulasooriya Boosa Baduge Shamaline Fernando v. Kusalanthi Fernando and Another, decided on 9 November 2023, the Supreme Court considered the combined effect of Sections 68 and 70 of the Evidence Ordinance and Sections 154(1) and 154A of the Civil Procedure Code.

The Court recognised that an admission by a party to an attested document concerning its due ex*****on may dispense with the necessity of calling an attesting witness. In that context, Section 70 operates as a qualification to the general requirement imposed by Section 68.

The Court also considered Section 154A of the Civil Procedure Code, introduced by the Civil Procedure (Amendment) Act No. 17 of 2022. Where the ex*****on, authenticity, or admissibility of a document has been lawfully admitted in accordance with the applicable procedural provisions, separate formal proof may no longer be necessary.

Accordingly, the mere fact that a deed was marked “subject to proof” and that the case was concluded without calling an attesting witness does not invariably render the deed incapable of being relied upon. Where a legally recognised admission exists, and the relevant statutory requirements are satisfied, the deed may be treated as duly proved and relied upon in determining title to the property.

This publication is intended solely for general legal information and does not constitute legal advice.

11/07/2026

⚖️ CONSTRUCTIVE TERMINATION: WHEN A RESIGNATION MAY AMOUNT TO A DISMISSAL

An employer does not always terminate an employee by issuing a formal letter of dismissal. In some situations, the employer’s conduct may make the working environment so intolerable that the employee is left with no reasonable option except to leave.

In Elphis Lanka Private Ltd. v. Visaka Kulasekera, SC Appeal No. 29/2019, the Supreme Court considered the principles governing constructive termination of employment and the calculation of compensation.

Constructive termination may arise where the employer’s conduct involves:

▪️ Denial of salary, allowances or other material benefits
▪️ Unjustified demotion or removal of professional status
▪️ Serious humiliation, harassment or degrading treatment
▪️ Physical inconvenience or mental distress that prevents the employee from working peacefully and with dignity
▪️ A serious breach of the employment relationship showing that the employer no longer intends to honour its essential obligations

There must be sufficient evidence of serious or repudiatory conduct by the employer. The employee must also establish that the decision to leave employment resulted from that conduct. A difficult, unpleasant or stressful workplace will not automatically amount to constructive termination. Where the circumstances do not reasonably justify the employee’s departure, it may be treated as a resignation, abandonment of employment or vacation of post.

💰 How is compensation calculated?

There is no fixed mathematical formula for calculating compensation for wrongful or constructive termination. A Labour Tribunal must make an award that is just and equitable in the circumstances of the particular case.

Relevant factors may include:

▪️ The nature of the employer’s business and its capacity to pay
▪️ The employee’s age
▪️ The nature of the employment
▪️ Length of service and seniority
▪️ The employee’s last salary
▪️ Future career prospects
▪️ Opportunities to obtain similar or alternative employment
▪️ The employee’s past conduct
▪️ The circumstances surrounding the termination
▪️ The nature of any charge against the employee and the degree of blameworthiness
▪️ The effect on pension and other terminal benefits
▪️ Actual loss of earnings
▪️ Income received from subsequent employment
▪️ Whether reasonable steps were taken to reduce the financial loss

The compensation must have a clear and reasonable basis. It should not be calculated mechanically by multiplying the employee’s salary by the number of years remaining until retirement.

In Ceylon Transport Board v. Wijeratne, the Court stated that compensation should seldom, if ever, exceed a maximum of three years’ salary. This does not create an automatic right to three years’ salary. It operates as a general upper guideline, subject to the evidence and circumstances of each case.

📌 Practical lesson

An employer cannot deliberately reduce an employee’s status, benefits or working conditions, force the employee to leave, and then simply describe the departure as a voluntary resignation.

Employees facing such circumstances should preserve employment contracts, salary records, letters, emails, messages, complaints, medical records and witness information. Constructive termination claims depend heavily on evidence proving the employer’s conduct and its connection to the employee’s departure.

This post is provided for general legal education and does not constitute legal advice.

11/07/2026

⚖️ Sri Lanka Introduces a New Legal Framework for Civil and Commercial Mediation

The Mediation (Civil and Commercial Disputes) Act, No. 13 of 2026, introduces a comprehensive legal framework for resolving civil and commercial disputes through mediation in Sri Lanka.

The Act allows parties to refer disputes to mediation through a contractual mediation clause, a separate written agreement, voluntary consent after a dispute arises, or an order of court.

Important features of the new act include the following:
,
✅ Where parties have agreed to mediate, or mediation proceedings have commenced, court proceedings relating to the same dispute generally cannot be instituted or entertained until a certificate of non-settlement is produced.

✅ The period spent in mediation is excluded when calculating the applicable prescription period.

✅ A court may refer a civil or commercial dispute, or part of a dispute, to mediation where mediation appears appropriate.

✅ Parties must participate directly in the mediation process, although they may be accompanied and assisted by an Attorney-at-Law or another suitable person.

✅ Statements, proposals, opinions and documents prepared mainly for mediation are protected by confidentiality and are generally inadmissible in subsequent court or arbitration proceedings.

✅ Audio and video recording of mediation proceedings is prohibited, whether the mediation is conducted physically or virtually.

✅ A mediated Settlement Agreement is binding and enforceable as a valid contract.

✅ A party may apply to the relevant Provincial High Court within twelve months to have the Settlement Agreement entered as a decree of court.

✅ Once entered as a decree, the settlement may be enforced under the ex*****on procedures of the Civil Procedure Code.

The Act does not permit mediation to replace court proceedings in certain matters, including divorce, nullity of marriage, adoption, probate, insolvency, fundamental rights applications and partition actions seeking rights in immovable property. However, related matters may still be mediated for the purpose of submitting agreed terms to court where permitted by law.

This legislation marks an important development in Sri Lanka’s alternative dispute resolution system by promoting faster, confidential and less adversarial settlement of civil and commercial disputes.

This post is provided for general legal education and does not constitute legal advice.

30/06/2026

A recent Supreme Court judgment has clarified an important issue in Sri Lankan banking and civil litigation: can a collecting bank be held liable for unjust enrichment or money had and received merely because a forged cheque was deposited into its customer’s account?

In Seylan Bank Limited v Elk Plain Farms (Private) Limited, decided by the Supreme Court on 23 June 2026, the Court considered an appeal arising from a judgment of the Commercial High Court delivered on 28 February 2012.

The plaintiff company had instituted action against Seylan Bank Limited after a cheque leaf from its cheque book was allegedly fraudulently drawn for Rs. 9,850,000 and deposited into an account maintained at Seylan Bank’s Raddolugama branch. The cheque was drawn on the plaintiff’s account at Bank of Ceylon and was cleared by Bank of Ceylon on 27 June 2005. After clearance, Seylan Bank credited the amount to its customer’s account.

The plaintiff claimed that Seylan Bank had acted negligently, contrary to the ordinary course of banking practice, and was liable for conversion, money had and received, and unjust enrichment.

The Commercial High Court held in favour of the plaintiff and awarded Rs. 9,850,000 with legal interest and costs on the basis of unjust enrichment.

The Supreme Court set aside that judgment.

The Court observed that Seylan Bank acted only as the collecting bank. The cheque was drawn on an account maintained at Bank of Ceylon, which was the paying bank. There was no obvious defect on the face of the cheque when it was deposited. Since the mandate and authority to verify the drawer’s signature rested with the paying bank, there was no proper basis to hold that Seylan Bank should have refused to accept the cheque for collection.

The Court also noted that Bank of Ceylon owed a fiduciary duty to the plaintiff, whereas Seylan Bank merely collected the cheque and forwarded it for clearing in the ordinary course of banking. Once the cheque was cleared by Bank of Ceylon, Seylan Bank credited the proceeds to the account of its own customer.

The Supreme Court further considered the plaintiff’s own conduct. The plaintiff had failed to regularly check its bank statements and discovered the debit only after a long delay. The Court held that the plaintiff’s lack of due care had contributed significantly to the situation.

The Court rejected the finding that Seylan Bank was unjustly enriched merely because part of the deposited sum was automatically set off against its customer’s overdrawn account. Such set-off occurred under normal banking practice and did not amount to actual unjust enrichment.

The Supreme Court therefore held that the Commercial High Court judgment could not stand. The judgment dated 28 February 2012 was set aside, and the plaintiff’s action was dismissed. The defendant bank’s claim in reconvention was also dismissed, as no evidence had been led to support it.

Legal lesson:

A collecting bank is not automatically liable merely because a forged cheque is deposited into its customer’s account. Liability must be founded on proof of negligence, breach of duty, or conduct outside ordinary banking practice.

Where the collecting bank receives a cheque that appears regular on its face, forwards it to the paying bank for clearance, and credits its customer’s account only after clearance, the collecting bank will not lightly be held liable for unjust enrichment or money had and received.

The judgment also reminds customers and companies of the importance of safeguarding cheque books, monitoring bank statements, and acting promptly when irregular transactions occur.

Citation:

Seylan Bank Limited v Elk Plain Farms (Private) Limited, SC/CHC/Appeal No. 34/2012, Supreme Court of Sri Lanka, Judgment dated 23 June 2026.

22/06/2026

What is Litis Contestatio in Civil Litigation?

In civil procedure, litis contestatio refers to the stage where the dispute between the parties becomes legally joined for trial. In simple terms, it is the point at which the pleadings are closed, issues are framed, and the real matters in dispute are identified before Court.

This concept becomes very important where a party dies while the case is pending.

The general rule is expressed in the maxim actio personalis moritur cm persona, meaning a purely personal action dies with the person. However, Sri Lankan case law has recognised that this rule does not apply mechanically to every case. The Court must consider the nature of the action, the relief claimed, and whether the case had already reached the stage of litis contestatio.

In Muheeth v Nadarajapillai, the Court explained that in an action in rem, the action becomes litigious when summons is served. In an action in personam, it becomes litigious when litis contestatio is reached, which usually coincides with the joinder of issue or close of pleadings.

In Vangadasalam v Karuppiah, it was held that a personal action dies with the plaintiff unless the stage of litis contestatio has been reached.

In John Fernando v Satarasinghe, the Court accepted that where the plaintiff dies after litis contestatio, the action may continue in favour of the heirs as part of the plaintiff’s property.

The principle was further clarified in Mahawewa v Mahawewa, where the Supreme Court held that the maxim actio personalis moritur cm persona cannot be applied uniformly to every personal action. Each case must be decided according to its facts and circumstances.

How does this apply in a case?

Assume a plaintiff files a civil action for recovery of possession, ejectment, damages, or declaration of rights. If the plaintiff dies before the pleadings are closed and before issues are framed, the defendant may argue that the action has abated, especially if the action is personal in nature.

However, if the plaintiff dies after issues have been framed and the case has already reached litis contestatio, the action does not automatically die. The legal representatives, heirs, successors, or proper substituted parties may apply to continue the proceedings, provided that the cause of action survives in law.

This is especially relevant in land disputes, possessory actions, trust-related disputes, recovery of possession matters, and cases where rights have already become the subject of a legally joined dispute before Court.

At which stage is this issue raised?

This issue usually arises:

after the death of a plaintiff or defendant during pending proceedings;
when an application is made for substitution;
when the opposing party objects to substitution;
during trial or appeal, if the trial Court wrongly holds that the action has abated;
when the Court must decide whether the cause of action survives.

The relevant procedural basis is found in the Civil Procedure Code provisions on substitution, especially where the Court must decide whether the right to sue survives after death.

In Seylan Bank Ltd v Clement Charles Epasinghe, the Supreme Court emphasised that where additional issues are framed by Court at the judgment stage, parties must be allowed to make submissions or lead evidence where necessary.

Therefore, litis contestatio is not a mere technical phrase. It can decide whether a pending civil case survives, whether heirs can continue the action, and whether a judgment based on wrongly framed issues can stand.

28/05/2026

Belated Filing of Proxy Does Not Automatically Defeat a Supreme Court Leave to Appeal Application

A recent Supreme Court order has clarified an important procedural issue in Sri Lankan civil litigation: should a leave to appeal application be dismissed merely because the proxy was not filed together with the petition, where the Attorney-at-Law in fact had authority to act for the party?

In Peoples Bank v Chamila Dilanthi Ranasinghe, decided by the Supreme Court on 12 May 2026, the Court considered a preliminary objection raised against a leave to appeal application filed by Peoples Bank.

The application challenged a judgment of the Civil Appellate High Court dated 31 May 2024. The petition for leave to appeal was filed on 12 July 2024, which was the final day available for filing under the Supreme Court Rules. However, the proxy authorising the Attorney-at-Law to act for the bank was not filed together with the petition. It was filed later, on 15 July 2024.

The plaintiff objected, arguing that because no proxy had been filed with the petition, the Attorneys-at-Law had no authority to represent the bank at the time of filing. Therefore, it was argued that the application was invalid and time-barred.

The Supreme Court rejected that objection.

The Court held that the matter should not be decided by a purely technical approach. Peoples Bank was a licensed bank with a legal department, and the petition had named Attorneys-at-Law appearing on its behalf. The Court considered that the circumstances clearly showed that the Attorneys-at-Law had authority to act for the bank when the petition was filed.

The proxy was filed on the next available working day after the petition was lodged. The Court also noted that no step had been taken in the case before the proxy was filed, and no prejudice had been caused to any party.

The Supreme Court relied on earlier authority, including S.P. Gunatilake v S.P. Sunil Ekanayake (2010) 2 SLR 191 and Auriya Vinothini Yogaraja v Riyal Mohommed Rizwan SC/Appeal/33/2020 decided on 02-12-2024 , which recognised that even a total failure to file proxy may be cured later, if the Attorney-at-Law in fact had authority from the client.

The Court held that the belated filing of proxy merely corrected a procedural defect. It did not make the leave to appeal application time-barred.

The preliminary objection was therefore dismissed, and the matter was fixed for consideration of leave to appeal.

Legal lesson:

A procedural defect relating to proxy will not always invalidate civil proceedings. If the Attorney-at-Law had actual authority to act, and no prejudice has been caused to the other party, the defect may be cured by subsequently filing the proxy.

Procedural rules are important, but they should serve justice. They should not be used to defeat a party’s right to be heard on a purely technical objection.

Citation:
Peoples Bank v Chamila Dilanthi Ranasinghe, SC HCCA LA No. 247/2024, Supreme Court of Sri Lanka, Judgment dated 12 May 2026.

12/05/2026

Attorney-at-Law’s Affidavit Can Support an Application to Set Aside an Ex Parte Judgment

A recent Supreme Court judgment has clarified an important procedural issue in Sri Lankan civil litigation: can an affidavit sworn by a registered Attorney-at-Law support an application to set aside an ex parte judgment, where the facts explaining the default are within that attorney’s personal knowledge?

In Hapan Pedige Abetunga v Central Finance Company PLC, decided by the Supreme Court on 29 April 2026, the Court considered an appeal arising from an ex parte judgment entered in the District Court of Trincomalee.

The plaintiff had obtained an ex parte judgment against Central Finance Company PLC. The defendant company later filed a petition under section 86(2) of the Civil Procedure Code, seeking to set aside the ex parte judgment and decree. The petition was supported by an affidavit sworn not by a director or officer of the company, but by the company’s registered Attorney-at-Law, Mr. R.N. Varathan.

The plaintiff objected, arguing that the affidavit should have been sworn by the defendant company itself or by one of its officers. The District Court accepted that objection and dismissed the application without holding an inquiry.

The Supreme Court disagreed.

The Court held that section 86(3) of the Civil Procedure Code only requires that the application be made by petition supported by affidavit. It does not say that the affidavit must necessarily be sworn by the defendant company, a director, secretary, or company officer.

The Court further relied on section 181 of the Civil Procedure Code, which requires affidavits to be confined to facts within the personal knowledge and observation of the deponent. In this case, the facts explaining the default were personally known to the Attorney-at-Law. He was the person who had been prevented from reaching court on time due to a police cordon and search operation.

Therefore, the most appropriate person to swear the affidavit was the registered Attorney-at-Law himself, not a company officer who had no personal knowledge of what happened that morning.

The Supreme Court also observed that requiring a company officer to swear to facts outside his personal knowledge would produce hearsay evidence, which section 181 seeks to prevent.

The judgment confirms a practical and important rule: the validity of an affidavit depends not merely on the status of the deponent, but on whether that person has personal knowledge of the relevant facts.

The Court held that the affidavit of Mr. Varathan was valid and sufficient for the purposes of section 86(3). The District Judge had erred in dismissing the application on a technical objection without proceeding to an inquiry. The Supreme Court affirmed the judgment of the High Court of Civil Appeal and directed the District Court to conduct the inquiry under section 86(2).

This decision is important for litigants, companies, and practitioners. It shows that procedural rules must be applied to serve justice, not to defeat it through technical objections. Where the facts explaining default are within the knowledge of the registered Attorney-at-Law, that attorney’s affidavit may properly support an application to set aside an ex parte judgment.

Legal lesson:
In applications to purge default or set aside ex parte judgments, the supporting affidavit should come from the person who has direct personal knowledge of the facts. In some cases, that person may be the registered Attorney-at-Law, not the party or a company officer.

Citation:
Hapan Pedige Abetunga v Central Finance Company PLC, SC Appeal No. 67/2014, Supreme Court of Sri Lanka, decided 29 April 2026.

12/05/2026

Power of Attorney in Litigation: Why Proper Revocation Matters under Sri Lankan Civil Procedure

A recent Civil Appellate High Court judgment from Kandy provides an important reminder on the legal effect of a registered Power of Attorney in civil litigation.

In CP/HCCA/Kandy/88/2017 (FA), decided on 20 October 2023, the Court considered whether proceedings became defective where a plaintiff had first acted through a Power of Attorney holder, but later the principal herself appointed registered attorneys without properly cancelling or revoking the Power of Attorney.

The Court referred to sections 24 and 25 of the Civil Procedure Code, which allow recognised agents to act for parties in litigation. It also considered section 4 of the Powers of Attorney Ordinance No. 4 of 1902, which deals with cancellation or revocation of a registered Power of Attorney.

The key legal point is clear: once a Power of Attorney has been granted and relied upon in court proceedings, it does not automatically lose force merely because the principal later acts personally or returns to Sri Lanka. Until the Power of Attorney is properly cancelled or revoked according to law, the attorney holder remains legally recognised.

The Court held that subsequent acts done by the principal, including the appointment of registered attorneys, had no legal force until the Power of Attorney was properly cancelled. As a result, the proceedings became defective, and the judgment of the District Court could not stand.

The judgment also addressed prescription, tenancy, and the Rent Act. The defendant’s claim of prescriptive title failed because she could not prove adverse possession with a clear starting point. The Court further observed that a person who enters property as a tenant or licensee cannot secretly convert that possession into adverse possession without a clear overt act against the owner.

This case is significant for lawyers, landowners, overseas Sri Lankans, and litigants who rely on Powers of Attorney. A Power of Attorney is not a casual document. It creates a formal legal agency, and its cancellation must also be done formally. Failure to follow the proper procedure can affect the validity of an entire court proceeding.

Legal lesson:
When a Power of Attorney is used in litigation, always check whether it remains valid, whether it has been properly revoked, and whether the party is acting through the correct legal representative.

Citation:
Shamalee Chandima Hewawasam before marriage Silva Wickramarachchi v Uyanhewage Geetha Sriyani Silva Wickremarachchi after marriage Batuwitage, CP/HCCA/Kandy/88/2017 (FA), High Court of Civil Appeal, Kandy, decided 20 October 2023.

04/05/2026

Boundary Demarcation or Rei Vindicatio? A Key Lesson from Somawathie and Others v Illangakoon

In land disputes, many people believe that if a neighbour crosses into their land, puts up a fence, or occupies part of the land, the correct case is always a boundary demarcation action. Sri Lankan law draws an important distinction.

In Somawathie and Others v Illangakoon, SC 140/2009, the Supreme Court examined the difference between an action for the definition of boundaries and a rei vindicatio action. The plaintiffs claimed to be co-owners of the land and filed an action seeking demarcation of boundaries, ejectment of the defendant, and damages. They alleged that the defendant had forcibly entered a southern portion of their land and prepared the ground for construction.

The Supreme Court held that an action for the definition of boundaries is known in Roman-Dutch law as actio finium regundorum. It lies where the boundaries between adjoining lands have become uncertain, either by chance, by the act of adjoining owners, or by the act of a third party.

The Court made clear that this action presupposes the prior existence of a common boundary which has later been obliterated by subsequent events. Therefore, in a proper boundary action, the plaintiff must plead two essential matters:

An ascertainable common boundary previously existed physically on the ground, and that common boundary was subsequently obliterated

In Somawathie, the plaintiffs had not pleaded that a common boundary previously existed or that it had later been obliterated. Their real complaint was that the defendant had forcibly entered and occupied part of their land. The Supreme Court held that the plaintiffs were trying to vindicate title to the disputed portion through an action disguised as a boundary action.

The Court stated that the proper remedy would have been an action for declaration of title to the disputed portion of land, rather than a mere action for demarcation of boundaries. Since the necessary ingredients of a boundary action were not pleaded, the action was held to be misconceived in law.

📌 Legal lesson

If the dispute is about an uncertain or obliterated boundary, the proper action may be an action for the definition of boundaries, also called actio finium regundorum.

But if the complaint is that someone has entered your land, occupied a portion, built a structure, or fenced off part of your land, the proper action is usually a rei vindicatio action or an action for declaration of title, ejectment, removal of encroachment, damages, and injunction.

A boundary action cannot be used as a shortcut to recover land where the real dispute is title and unlawful possession.

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