MARY NONAV.FRANSINACOURT OF APPEALRAMANATHAN. J.
C. A. 1184/85 – PRIMARY COURT KEGALLE NO- 508/84MARCH 30.1988
Revision — Rules of the Supreme Court —Rule 46 — is compliance imperative?
Compliance with Rule 46 of the Supreme Court Rules 1978 in an application forrevision is mandatory. A copy of the proceedings containing so much of therecord as would be necessary to understand the order sought to be revised andto place it in its proper context must be filed. Merely filing copies of three journalentries with no bearing on the matters raised in the petition is not a compliancewith Rule 46.
Caaei referred to
Navaratnasingham v, Arumugam (1980) 2 Sri L. R. 1
Mohamad Haniffa RasheedAli v. Khan Mohamed AH and another' S. C. No. 6/81 S. C. Minutes of 20.11.1981.
APPLICATION for revision of order of Primary Court Kegalle.
Eardtay Ratwatte for petitioner
D. S. Wijesinghe with Miss D. Dharmadasa for respondent.
Cur. adv. vult.
May 24.1988RAMANATHAN. J.
This is an application for revision of the order of the learnedMagistrate of Kegalle in proceedings taken under Section 66 ofthe Primary Courts Procedure Act No. 44 of 1979.
When this matter came up for hearing learned counselappearing for the respondent-respondent raised a preliminaryobjection on the ground that there had been a failure to complywith Rule 46 of the Supreme Court Rules 1978 (published in
Gazette Extraordinary No. 9/10 of 18.11.1978), Rule 46 readsthus —
"Every application made to the Court of Appeal for theexercise of powers vested in the Court of Appeal by Articles140 and 141 of the Constitution shall be by way of petitionand affidavit in support of the averments set out in thepetition and shall be accompanied by originals ofdocuments material to the case or duly certified copiesthereof in the form of exhibits. Application by way ofrevision or restitutio in integrum under Article 138 of theConstitution shall be made in like manner and beaccompanied by two sets of copies of proceedings in theCourt of first instance, tribunal or other institution".
The meaning of the expression ‘proceedings' occurring in Rule46 was considered by Soza, J. in Navaratnasingham v.Arumugam (1). In the course of his judgment Soza, J stated: "Inrelation to an application for revision the term "proceedings" asused in Rule 46 means so much of the record as would benecessary to understand the order sought to be revised and toplace it in its proper context. The expression can, and often will,include the pleadings, statements, evidence and judgment".
Thus it would appear that a mandatory duty is cast by Rule 46of the applicant for revision to furnish with his petition andaffidavit, documents material to his case.
The question is whether Rule 46 is mandatory was consideredby the Supreme Court in the case of Mohamad Haniffa RasheedAH v. Khan Mohamad Ati and another (2). The majority of theJudges appeared to be of the view that Rule 46 is mandatory.Wanasundera. J. delivering the majority judgment stated thus:"While I am against mere technicalities standing in the way ofthis Court doing justice, it must be admitted that there are rulesand rules. Sometimes courts are expressly vested with powers tomitigate hardships, but more often we are called upon to decidewhich rules are merely directory and vyhich mandatory carryingcertain adverse consequences for non-compliance. Manyprooedural rules have beeri enacted in the interest of the due
administration of justice, irrespective of whether or not a non-compliance causes prejudice to the opposite party, tt is in thiscontext that Judges have stressed the mandatory nature of somerules and the need to keep the channels of procedure open forjustice to flow freely and smoothly".
In the present application on a perusal of the petition filed bythe respondent reveals that only the three journal entries marked(PI. P2 and P3) were produced with the application. The threejournal entries have no bearing on the matters raised in thepetition. A copy of the order to be revised has not been filed.
In the objections of the respondent-respondent dated 2.12.85he has specifically averred that there has been a failure tocomply with Rule 46 of the Supreme Court Rules. Subsequent to.the filing of the objections, a copy of the order of the learnedMagistrate had been filed without even an accompanyingaffidavit. The "information" referring the dispute to court, theaffidavits and counter affidavits and documents have not beenfiled. In my view, it would not be possible to review the order oflearned Magistrate without these documents.
MARY NONA V. FRANSINA