CA Anushka Wethasinghe v. Nimal Weerakkody and Others (Soza, J.) 423
v.NIMAL WEERAKKODY AND OTHERS
COURT OF APPEAL
SOZA. J. AND SENEVIRATNE. J.
C. A. APPLICATION NO. LA. 106/81AUGUST 31, 1981
Appeal – leave to appeal — when will the Court grant leave to appeal.
The granting of leave to appeal will depend on the circumstances of each case. But theguidelines are:
The Court will discourage appeals against incidental decisions when an appeal maveffective^ be taken against the order disposing of the matter under consideration at itsfinal stage.
Leave to appeal will not be granted from every incidental order relating to theadmission or rejection of evidence for to do so wou'd be to open the floodgates to inter-minable litigation. But if the incidental order goes to the root of the matter it is bothconveni""' and in the interests of both parties that the correctness of the order be testedat the ini'nest possible stage; then leave to appea1 will be granted.
I3j Arntne1 test is, will a decision of the Appellate Tribunal on the incidental orderobviate the necessity of a second trial ?
(4) The main consideration is to secure finality in proceedings without undue delay orunnecefssary expense.
Cases referred to :
Fernando v. Fernando 11920) 8 CNR 43, 44.
Balasubramaniam v. Valliappar Chettiar 11938) 39 NLR 519, 521.
Girantha v. Maria 11948) 50 NLR 519,521.
Goonewardena v. Oe Saram (1962)64 NLR 145, 151.
(5) Arumugam v. Thampu 11912) 15 NLR 253,255.
H. W. Jayewardene Q. C. with H. L. de Silva and Herman J. C. Perera for Petitioner.
8. J. Fernando for 1st and 2nd respondents.
Mark Fernando for 3rd Respondent.
September 9, 1981.
Cur. adv. volt.
Sri Lanka Law Reports
After hearing argument on 31.8.1981 we granted leave to appealin this case from the order of the learned District Judge of Colom-bo made on 30.7.1981 and directed the Registrar to take the con-sequential steps. We now give our reasons for the order made by uson 31.8.1981. The petitioner before us sued the three defendant-respondents in the District Court of Colombo praying for aninjunction restraining them from screening and exhibiting the filmentitled 'Amme mata sama wanna' and for damages in a sum ofRs. 3 million. The basis of her claim is that she was one of theprincipal actresses in the film and by the juxtaposition of certainscenes and sequences in the film the wrong impression would begiven to the viewers that she was ravished in the nude in a hotelbed-room by the "villain” in the story. She accordingly complainsthat she has suffered pain of mind, loss of reputation and humilia-tion and has been brought into hatred, ridicule and contempt. Onthis basis she seeks an injunction restraining the screening andexhibition of the film by the three defendant-respondents and,while averring that the damages she had suffered are irreparable,she claims damages in a sum of Rs. 3 million.
The 1st defendant is the producer of the film, the 2nd defen-dant directed it and the 3rd defendant the State Film Corporationwas responsible for its release. This action was filed on 14.7.1981.On 15.7.1981 on the application of the plaintiff-petitioner thecourt issued, an interim injunction restraining the three defendantsfrom screening and exhibiting the said film. The 1st and 2nddefendants filed joint proxies and on 17.7.1981 moved by way ofsummary procedure for the dissolution of the interim injunctionnaming the present plaintiff-petitioner as respondent to theirapplication. The court entered order nisi under section 377(a)of the Civil Procedure Code and directed the plaintiff-petitionerto show cause if any against making the order absolute. In addi-tion the court ordered a suspension of the interim injunction thathad been issued.
The matter came up for inquiry on 24.7.1981 and thereafteron 30.7.1981 the court made the order which is the subject ofthe present complaint. The order apparently represents the learnedtrial Judge's interpretation of the provisions of sections 384 to386 of the Civil Procedure Code governing the procedure that thecourt should follow where both parties appear before it inproceedings taken by way of summary procedure. The procedurewhich the court laid down which it said it would follow at theinquiry consists of 7 sequential steps:
CA Anushka Wethasinghe v. Nimal Weerakkody and Others fSoza, J.)425
Firstly, the application of learned counsel for the 1st and2nd respondents to cross-examine the plaintiff-petitioneras to the truth of her two affidavits (which the court saidare very relevant to the inquiry) was allowed.
The plaintiff-petitioner would be entitled to adduce suchdocumentary evidence as may be admissible.
The plaintiff-petitioner would be permitted to adduceoral evidence in support of her objections.
In the interests of justice and to reach a correct decision,at the conclusion of 1, 2 and 3 above learned counsel forthe plaintiff-petitioner would be permitted to cross-examine the plaintiff if he so desired in order to "rebutand refute” the evidence of the 1st and 2nd defendant-petitioners.
The 1st and 2nd defendant-respondents would be permit-ted to adduce additional evidence if the court consideredthat it should be permitted.
Learned counsel for the plaintiff-petitioner would bepermitted to comment upon the 1st and 2nd defendant-respondents' case though there was no right to do so on astrict interpretation of the legal provisions. This would bepermitted in order to achieve a just and correct conclu-sion.
Learned counsel for the 1st and 2nd repondents would bepermitted to comment upon plaintiff-petitioner's case asprovided in section 385 of the Civil Procedure Code.
In the present application before us the petitioner seeks leaveto appeal against this order.
Learned counsel for the 3rd respondent, that is the State FilmCorporation stated that he is not objecting to leave to appeal beinggranted but he reserves his right to be heard at the appeal itself.The 1st and 2nd defendant-respondents appearing by their counselobjected to the application on the following grounds: 1
1.The court will not grant leave to appeal from the ordersof the original court on incidental matters which do notgo to the root of the case. Such matters should be heldover to be taken up in appeal if necessary when the trialcourt makes its final order.
Sri Lanka Law Reports
: 1981j 2 S.t .R.
One test the court will apply is, will a second trial beobviated ?
Under article 138 of our Constitution an order of Courtshould not be set aside on the ground of error, defect orirregularity which has not prejudiced the substantialrights of the parties or occasioned a failure of justice.
He submitted that the steps proposed to be taken by the lear-ned trial Judge do not run counter to the provisions laid down inthe Civil Procedure Code in regard to summary procedure. If thereare any defects in the procedure proposed by the Court these arenot far-reaching and do not go to the root of the case and could becanvassed after the conclusion of the trial.
The attitude of the Court will no doubt depend on the cir-cumstances of each case. Yet from the decided cases to which wewere referred the following guidelines could be deduced:
The court will discourage appeals against incidental deci-sions when an appeal may effectively be taken against theorder disposing of the matter under consideration at itsfinal stage (Fernando v. FernandoBalasubramaniam v.Val/iappar Chettiar,2 Girantha v. Maria3 and Goone-warden a v. De Saram4 ).
Leave to appeal will not be granted from every incidentalorder relating to the admission or rejection of evidence,for to do so would be to open the floodgates to inter-minable litigation (Balasubramaniam v. Valliappar Chetti-ar (supra) at p. 560). But if the incidental order goes tothe root of the matter and it is both convenient and inthe interests of both parties that the correctness of theorder be tested at the earliest possible stage then leave toappeal will be granted (Arumugam v. Thampu,b Giranthav. Maria (supra) atp. 521).
Another test is, Will a decision of the Appellate tribunalon the incidental order obviate the necessity of a secondtrial Arumugam v. Thampu (supra) at p. 255, Girantha v.Maria (supra) at p. 521 and Goonewardena v. De Saram(supra) at p. 152). 1
1.(1920)8 C.W.R. 43,44.
11938) 39 N.L R. 553, 560.
(1948) 50 N.L.R.519.521.
(1962) 64 N.L.R. 145, 151.
CAAnush ka Wethasinghe v. Nirna! Weerakkcdy and Others (Soza, J.) 427
The main consideration is to secure finality in the procee-dings without undue delay or unnecessary expense(Girantha v. Maria (supra) at p. 521).
I would like to add that the cases under reference were deci-ded before the amendments effected by the Civil Procedure Code(Amendment) Law No. 20 of 1977. In fact in sections 754(2) and756(2) to (7) brought in by the amendments the Legislature hasrecognised the desirability of controlling appeals from incidentalorders and provided that leave to appeal be first obtained. But theprinciple emerging from the earlier decisions are still applicablewhen the court considers the question of granting leave to appealfrom an incidental order.
In the instant case the complaint is that the learned DistrictJudge has spelt out a procedure which is completely differentfrom that set out in sections 384 to 386 of the Civil ProcedureCode which govern proceedings by way of summary procedureunder chapter 24 of the Civil Procedure Code. For example, thefirst step which the learned District Judge proposes is that theplaintiff-petitioner should be tendered for cross-examination. Thequestion arises whether the rights of the plaintiff petitioner givenby s. 384 of the Civil Procedure Code to read the affidavits conferalso a right on the defendant-respondents to test the averments inthem by cross-examination. These are far-reaching questions ofprocedure raised in the instant case meriting immediate considera-tion by this Court.
If the plaintiff is committed to a procedure which is found tobe wrong, her quest for relief by way of an interim injunction soas to minimise the damages she alleges she is suffering in this casemay well be stymied and this may seriously affect the remedy shemay ultimately be granted. Indeed it is in the best interests ofboth parties that the dispute concerning procedure be resolved asearly as possible.
The petitioner, it has been pointed out, has not complained ofprejudice or failure of justice such as is envisaged in article 138 ofthe Constitution. But it is not necessary for a party to so aver. It isfor the court to decide whether the substantial rights of the partyare affected or whether a failure of justice has been occasioned bythe error, irregularity or defect complained of. But this is a consi-deration that will apply at the hearing of the appeal. In the instantcase if an entirely wrong procedure is proposed to be adopted thencertainly a party is entitled to complain and have the case set onthe right course so far as procedure goes. The matter raised if deci-ded now will obviate the necessity of a second trial which it islikely will be ordered if it is found that the entire proceedings
Sri Lanka Law Reports
stand tainted by serious procedural defects such as are beingcomplained of in this case. In our view this is a fit case for thegranting of leave to appeal. Accordingly we granted leave toappeal. Section 756(7) of the Civil Procedure Code will now be inoperation. Let the Registrar carry out our direction to perfectthis appeal and list it in due course. Costs of the proceedingsbefore us will abide the result of the appeal.
Leave to appeal granted.
ANUSHKA WETHASINGHE v. NIMAL WEERAKKODY AND OTHERS