Mohamed Mustapha v. Ibrahim Alim.
Present: Poyser S.P-J. and Wijewardene J.
MOHAMED MUSTAPHA v. IBRAHIM ALIM.
Application for leave to appeal in Kathi Court No. 130-^Board ofKathis. Court No. 67 (206).
Muslim. Marriage Registration. Ordinance, No. 27 of 1929, Schedule IN.,part 2, s. 13 (I)—Application for leave to appeal—Right of respondentto be heard.
In an application for leave to appeal to the Supreme Court undersection 13 (1) of Part 2 of Third Schedule to the Muslim Marriage andDivorce Registration, the respondent is entitled to be heard in opposition.
HIS was an application for leave to appeal from an order of theBoard of Kathis.
POYSER S.P.J.—Mohamed Mustapha v. Ibrahim Alim.
A. Rajapakse (with him M. M. I. Kariapper), for petitioner.
N. E. Weerasooria, K.C. (with him 5. A. Marikar), for the respondent.
Cur. adv. vult.
October 12, 1938. Poyser S.P.J.—
This was an application under section 13 (1) of Part'”2 of the ThirdSchedule to Ordinance No. 27 of 1929, for leave to appeal from an ordermade by the Board of Kathis. It came before'Koch- J. on June 21 last,and he referred it to a Bench of two Judges. The question he referredwas whether the respondent could claim to be heard in opposition to theapplication, the petitioner contending that the application should bedisposed of ex parte. Koch J. pointed out that the phraseology ofsection 13 (1) was confusing. There is no doubt that it is. The sectionprovides that a husband or wife who is aggrieved by the decision of theBoard of Kathis may within one month of the communication of suchdecision apply to the Supreme Court for leave to appeal and shall givethe opposite party notice’ of such application. The latter part of thesection provides that the Supreme Court may grant leave to appealand also gives the Supreme Court power to fix the payment of costspayable in the event of the appellant not obtaining leave to appeal or notsucceeding in his appeal. It is not quite clear from this section whetherthe application for leave to appeal should be heard ex parte or not. Thematter, however, is I think put beyond all doubt by the words of section18 of the Ordinance which is as follows: —“ It shall be lawful for theJudge of the Supreme Court or any three of them, of whom the ChiefJustice shall be one, from time to time to make, subject to the approval ofthe Governor in Executive Council, such general rules as them shall seemmeet for regulating the mode of applying for leave to appeal and ofprosecuting appeals from decisions and orders of the Board of Kathisand for regulating any matters relating to the costs of such applicationsfor leave to appeal and of appeals ”. The power given by this sectionto the Supreme Court to frame rules in regard inter alia to the costs ofapplications for leave to appeal and of appeals seems to indicate beyondall doubt that a respondent may, if he so desire, appear for an applicationfor leave to appeal and if such application is refused the Supreme Courthave the power to award costs. Apart from these provisions of theOrdinance, I think the general principle of law audi alteram partemmust be applied. The application for leave to appeal to which therespondent was made a party is a matter which may be prejudicial tohim. He has obtained a decision in his favour and the suspension of theoperation of such decision which the granting of this application wouldeffect would prejudice him.
We have been referred to various sections of the Civil Procedure Codeand rules regulating appeals to the Privy Council and also theOrdinance which regulates appeals from the Courts of Requests. It willbe noticed that under this latter Ordinance a statutory provision is madefor an ex parte application for leave to appeal. In the absence of suchclear statutory, direction, any party on an application affecting him isentitled to be heard.
POYSER S.PJ.—Mohamed Mustapha v. Ibrahim Alim.
We accordingly order that the respondent may be heard at the hearingof this application which will be listed for hearing in due course. Costswill abide the final result of the appeal.
I would add that, as stated before, section 13 (1) of Part 2 of theThird Schedule to the Ordinance is not altogether clear and it wouldappear desirable that the Supreme Court should at an early date framerules in regard to applications for leave to appeal and for appeals.
Wxjeyewardene J.—I agree.
MOHAMED MUSTAPHA v. IBRAHIM ALIM