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Corpus Juris Sl CORPUS JURIS SL 1. a66 නකරb - ෙක* මhම 2. From the bench 3. Economic Rights under the Intellectual Property law 4. Rei Vindicatio action and Burden of proof zz66 kvqlrZZ - flgs jsuiqula 1979 අංක 44 දරණ ාථක අකරණ න ධාන පනෙ 66 වගය සබධෙය ය සකස් කර ෙදන ෙම කර# ලැ& ඉ()ම අ#ව ෙමම ෙක* ය සකසන ල+. ෙකෙස- ෙවත 66 නකර සබධෙය ෙන/ෙය0 1 ෙප/ප පලව ඇ බවද සඳහ 56මට කැමැෙත. ඒවා ද අධ9නය ෙක/ට වැ: දැ#ම ලබා ගැ;ම ඔබෙ= කා>ය?. 1979 අංක 44 දරණ ාථක අකරණ න ධාන පනත - ාථක අකරණයA කා>ය ප*පා*ය ම 56ම සඳහා සහ ඒ සබධ කBC සඳහා ධන සැලැස්Dම ෙමම පනෙ අරEණ ෙF. ඒ අ#ව ාථක අකරණයA G( සහ අපරාධ අකරණ බලය ෙ පනෙ හා ෙවන ය Hත ;යක ධානවලට යටව තI අකරණ බලය ය JK ෙF. ෙමම පනත යටෙ ාථක අකරණයට මLමට බලය පවරා ඇ න කටJත ෙලG 66 නකරය හැMය හැක. පනෙ 7 වන පෙදය - ඉඩ වලට බලපානාO ද සාමය කඩDෙ ත>ජනය ඇතා O ෙහQ සාමය කඩDමට ඉඩකඩ ඇතා O ෙහQ ආරS( ළබඳ භාග 56මට අකරණ බලය පනෙ 7 වන පWXෙYදෙය ාථක අකරණයට පවර# ලැබ ෙZ. ඒ අ#ව [ක ෙලGම ෙ සබධෙය උන] වන GAතබා ගත JK කBණ වෙ සෑම සාමය කඩDෙ ආරSල සබධෙයම ෙමම පWXෙYදය අදාළ ෙන/වන බව?. ෙමය අදාළ වෙ ඉඩ වලට බලපානාO සාමය කඩDෙ ත>ජනය ඇතා O .... ආරS( සබධෙය පම_. පනෙ 7 වන පෙදය යටෙ වන ආර ල" ාථක අකරණයට ෙය#$ %&ම - ෙ සබධෙය පනෙ 66 වගය වැදග වන අතර එෙස ෙහ?ම ඒ අ#ව ෙය/E වන න a66 නb ෙලG හැMDමට ෙපළc ඇත. ෙ අ#ව ඉඩවලට බලපාන ආරSල අකරණයට ෙය/E 5Wෙ dමෙFද e හfවා ෙg. ඒ අ#ව1 Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 1 CORPUS JURIS SL 1. ආරSල iබඳ ප6 ෂණය පවවන ෙප/ස් IලධාWයාට අදාළ ආරSල Iසා සාමය කඩ Dෙ ත>ජනය එ(ල D ඇ ෙහQ සාමය කඩ Dමට ඉඩ ඇ ටක එය ාථක අකරණයට 66 (lm අ වගය යටෙ ෙත/රKB වා>තාව මn ෙය/E කළ හැක. එටo ආරSල Iසා සාමය කඩ ෙවෙද යන E( අවස්ථාෙFo pරණය කරෙ ෙප/ස් IලධාWයා GI. නE අදාළ ආරSල Iසාෙව සාමය කඩDම G] වෙද1 නැන ඒ Iසාෙව සාමය කඩDෙ ත>ජනය පවෙද යන සබධෙය අවස pරණය ග# ලබෙ ාථක අකරණ IhBKමා GI. ෙමq අකරණ බලය සබධෙය GGර ද ආබෲ IhBKමා G CA (PHC) APN 64/2010 decided on 2011/05/05 නෙFo කර# ලැ& පහත දැ ෙවන I6 ෂණය ඉතා වැදග ෙF. “The above judicial decisions confirm the position that when a police officer files a report under section 66(1 ) ( a) of the Act, the Magistrate is vested with jurisdiction to inquire into the matter. This is only with regard to the assumption of jurisdiction. But above judicial decisions do not take away the power of the Magistrate to reach a conclusion at the end of the inquiry whether or not there was a breach of peace. What happens at the end of the case if the Magistrate observes that there was no breach of peace or breach of peace is not threatened? In my view at the end of the case if the Magistrate finds that there was no breach of peace or breach of peace is not threatened the Magistrate is entitled to dismiss the case. If this power is not given to the Magistrate, decision maker on the question whether or not there was a breach of peace would be the police officer and not the judicial officer. Therefore in my view the Magistrate holding an inquiry under section 66 of the Act is entitled to make a judicial pronouncement whether or not there was a breach of peace. If the judicial pronouncement confirms that there was no breach of peace or breach peace is not threatened, the Magistrate/Primary Court Judge should dismiss the case.” එAo ෙප/ස් IලධාWයාට1 අවශ9 න (අm ආරSලට සබධ පා>ශවයට ෙත/රKB වා>තාව ඉ+Wප කර# ලබන +නයට ඉ+W අකරණය t්ෙවනා O +නෙuo අකරණෙu ෙප; G*න ෙලG වන බැfකරයකට යට 56මට බලය ඇ අතර1 (ආm සාමය ආර ෂා 56ම සඳහා ආරSලට සබධ පා>ශවය අඅඩංvවට ගැ;මට ඔwට G] වෙන1 පා>ශවකBව අඅඩංvවට ෙගන ඔS සබධෙය ;ය xයාමක 56මට ෙන/පමාව ාථක අකරණයට ඉ+Wප කළ JKය. ෙ (ආm අවස්ථාෙFo පා>ශවය අකරණයට ඉ+Wප කරන ටo ආරSල සබධෙය වන ෙත/රKB වා>තාවද ඉ+Wප කළ JKය. Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 2 CORPUS JURIS SL 2. ෙදව#ව1 ඉඩමකට බලපා# ලබන ආරSල සබධෙය අදාළ පා>ශවකBව0ටද ආරSලට සබධ අෙන පා>ශවකBව ද අදාළ Ggය සහ තම බලාෙප/ෙර/K වන සහනය ද සමග ද ව වන +SB පyය5 වන ෙත/රKB වා>තාව ාථක අකරණයට ෙය/E කළ හැක. ෙමෙස O ට අකරණෙu xයාiෙවල අ#ව ෙහQ යාප+ංz තැපැ( මn දැDම යව ෙත/රKB වා>තාව ඉ+Wප කර# ලැ& +න Gට +න l4 Kලo වන +නයකo අකරණෙu ෙප; G{මට අෙන පා>ශවයට දැ# ෙදන ලැෙZ. ඉහ l හා e ෙලG සඳහ 56මට ෙය]න dමෙFදයෙග 0මන dමෙFදය5 ෙහQ ෙත/රKB වා>තාව අකරණයට ලද ටo පමණ ඉඩවලට බලපාන ආරS( භාග ෙක/ට pරණය ෙහQ ආඥාව ලබා oෙ අකරණය බලය ාථක අකරණයට ලැෙZ. ෙ අ#ව ඉඩ වලට බලපා# ලබන ආරS( මn සාමය කඩDෙ ත>ජනය ෙහQ සාමය කඩ Dම G] වෙන1 එය ඉ ම_ අකරණයක ම>ශනයට ෙය/E 56ම Iසාෙව සහ පා>ශවය ෛනක බලයට යට 56ම ෙහ-Kෙව යහපාලනය සහ සාමකා~ පැවැම පවවා ෙගන යාමට dමෙFදය සකස් කර ෙZ. ෙමIසා ෙමම න කටJත සමාජෙu සාමය අරා ෂා 56ම ෙව#ෙව පනෙ 7 වන පWXෙYදෙය හfවා o ඇ වැදග dමෙFදය ෙලG හැMය හැක. ෙ සබධෙය පහත I6 ෂණ වැදග ෙF. aසාමය කඩ 56 ද•ව කළ හැ5 වරද ෙව?. G]ය හැ5 සාමය කඩ56 වළ ව# _ස ෙ තැනැත0 අ?ෙu Gය€ අ?වාGක තමා ෙවත පැව6 ඇ Iයම අ?කාරයා Sවද1 තම • ය ආපh ලබා ගැම සඳහා ;ය තමා අතට ම ෙන/ගත JKය? ;ය අණ කර?. ඔw පළE ෙක/ට ම ;ෙu Aට ෙසය JKය.b (Breaches of the peace are punishable offences and to prevent potential breaches the law enjoins the person who has been despoiled of his possession even though he be the true owner with all rights of ownership vested in him, if the recovery is instanter in the sense of being still a part of the res gestae of the act of spoliation then it is a mere continuation of the breach of the peace which already exists and the law condones the immediate recovery, but if the dispossession has been completed, as in this case where the spoliator, the plaintiff, had completed his rescue and placed his sheep in his lands, then the effort at recovery is, in my opinion, not done instenter or forthwith but is a new act of spoliation which the law condemns’ Mans v. Loxton Municipality and Another 1948 (1) SA 966 (CPD) “In a country like this any attempt of parties to use force in the maintenance of their rights should be promptly discouraged. Slight brawls readily blossom into riots with grievous hurt and murder as the fruits. It is therefore all the more necessary that Courts should be strict in discountenancing all attempts to use force in the assertion of such civil Haris Palpola, LL,B. Hons,(OUSL) Attorney-at-Law Page 3 CORPUS JURIS SL rights as are in dispute in the present case.” Perera et al. v. Gunatilleke et al. 4 NLR 181 *+තබා ගැ/ෙ0 ක1ණ" - ාථක අකරණ න ධාන පනෙ 7 වන පWXෙYදෙu ඇKළ 66 නකර සබධෙය ාථක අකරණ IhBවරයාෙ= අකරණ බලය පවෙ ඉඩවලට බලපාන ආරSල Iසා සාමය කඩDෙ ත>ජනය එ(ල D ඇ ෙහQ සාමය කඩ Dමට ඉඩ ඇ අවස්ථාවකo පම_. එෙස ෙන/වන ටo ාථක අකරණ IhBවරයාට ඉහත ආකාරව ෙය/E කරන ෙත/රKB වා>තාව සබධෙය න භාග ෙක/ට pරණය ෙහQ ආඥාව ලබා oමට ෙන/හැ5 ෙF. එIසා තම ඉ+Wෙu ඇ +SB පy සහ ෙ(ඛන සහ අI0 කBC මසා බලා සාමය කඩ Dෙ ත>ජනය පවpද නැන, සාමය කඩ Dමට ඉඩ ඇද යන pරණය 56ම ාථක IhBKමාෙ= ධාන කා>ය ෙF. ෙමය ෙශ-ෂෙයම ඉහත e වන අවස්ථාව සබධෙය වැදග වන බව ෙප; ය?. ෙ බව GGර ද ආබෲ IhBKමා G CA (PHC) No: 161/98 - Decided on : 21.06.2010 නෙFo පැහැ+ව ද වා ෙZ. එෙස ෙන/වන අවස්ථාවකo අකරණයට1 අකරණ බලය ෙන/මැ බවට වන [ක ෙරQධය ෙගන ඒෙ හැ5යාව පා>ශවකBවට ඇත. නE එම ෙරQධය E( අවස්ථාෙFoම ෙගන ඒෙ JKකම ද පා>ශවයට පවන අතර පh අවස්ථාවකo අකරණ බලය සබධෙය ෙරQධතාව මK කළ ෙන/හැ5 බව ඉහත pරණ ෙuoම උග ආබෲ IhBKමා G ද වා ෙZ.
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