Sri Lanka Law Reports
 2 Sri LR.
DALUWATTE AND ANOTHER
v.KARIYAWASAM AND OTHERS
COURT OF APPEALUDALAGAMA, J„ ANDNANAYAKKARA, J.
CALA NO. 164/2001DC GALLE NO. 5666/SPLJUNE 20 AND 21. 2001
Leave to appeal application – Application to dismiss action – Not pleaded – Isit fatal?
Perusing the various parts of the petition it is clear that at the commencementof the petition itself the application is for leave to appeal. In the circumstances,by no stretch of imagination could the respondent be deemed to have beenmisled as to the type of application that has been filed.
As regards the absence from the petition of a prayer to dismiss theapplication the objection is premature and in any case such relief wouldbe forthcoming only from the original court and not from an appellate Court.
Romesh de Silva, PC with Nihal Fernando and Shamil Perera for defendant-petitioner.
Wijedasa Rajapakse, PC with G. G. Arulpragasam and Kapila Liyanagama forplaintiff.
APPLICATION for Leave to Appeal.
Cur. adv. vult.
Daluwatte and Another v. Kariyawasam and Others
June 27, 2001UDALAGAMA, J.
When this matter came up before this Court on 20. 06. 2001, 1Mr. Wijedasa Rajapakse, PC, Counsel who appeared for the respondentsubmitted two preliminary objections to the application, (1) that therelief claimed had not been properly pleaded, and (2) although thepetitioner sought to vary the order dated 10.05.2001 that no applicationto dismiss the action in the original court had been pleaded.Subsequently, on 21. 06. 2001 Mr. Mustapha, PC also appearing foranother respondent while supporting the application of Mr. WijedasaRajapakse brought to the notice of Court the fact that the petitionernot having prayed in the prayer of his petition for leave to appeal 1°that this Court was precluded from granting relief not asked for.
Mr. Mustapha also referred us to the provisions in the Constitutionwhereby the word “proceed" was used in fundamental rights applicationsand distinguished same from a leave to appeal application, where inthe origin of the former itself was the Supreme Court and leave toproceed was a preliminary step and that leave to appeal from a lowerCourt must necessarily denote such application and that the word“proceed" in a leave to appeal application is faulty and cannot becorrected as there was no prayer for leave to appeal.20
Perusing the various parts of the petition it is clear that at thecommencement of the petition itself the application is for leaveto appeal against the order of the learned District Judge dated10. 05. 2001. Paragraph 22 of the said petition is also as clear andthereby too, in no uncertain terms the application is one to appealto this Court with leave first obtained.
In the circumstances by no stretch of imagination could therespondent be deemed to have been misled as to the type of applicationthat has been filed in this Court. No prejudice could have been causedto the respondent when the word "proceed" has been inserted in prayer 3o
Sri Lanka Law Reports
 2 Sri L.R.
(A) of the petitioner’s prayer when, in fact it should have been theword “appear, as the intention of the petitioner is clear, I am unableto agree with the learned Counsel that the said omission could notbe corrected or that due to the absence of the said word “appeal"that there is no proper relief claimed from this Court.
As regards the second objection, namely the absence from thepetition of a prayer to dismiss the main application, I am of the viewthat the relevant objection pleaded before this Court is premature andin any case such relief would be forthcoming only from the originalcourt and not from an appellate Court.
In the above circumstances both the preliminary objections areoverruled and the matter is fixed for inquiry into leave.
NANAYAKKARA, J. – I agree.
Preliminary objection overruled. Matter set down for inquiry.
DALUWATTE AND ANOTHER v. KARIYAWASAM AND OTHERS