Karunadasa vs. Abeywickrama and others (Somawansa J.(P/CA)
The petitioner also goes on to say that on 06.12.2004 he made anapplication to Court to vary the aforesaid order made on 02.11.2004 markedX since the respondents-respondents have re-iterated their desire to joinwith him subsequent to the aforesaid order. Though it is stated in para-graph 8 of the petition as well as in paragrah 8 of the written submissionsthat a true copy of the application is marked X5.1 am unable to trace suchan appication marked X5. However the proceedings dated 06.12.2004 in-dicates such an application has been made and whether it was in writingor not is not clear. Proceedings indicate that counsel for the petitioner didmake certain oral submissions and counsel for the respondent also madeoral submissions after which the learned Additional District Judge hasmade his order rejecting the application to vary his previous order made on
for good reasons as indicated by him. Furthermore it appearsfrom the order on 06.12.2004 certain documents have been tendered morespecifically affidavits by the respondents-respondents. The learned Addi-tional District Judge has rejected this affidavit. Here again I must say thepetitioner for reasons best known to him has not tendered this documentto this Court for cosideration. As for the failure to tender necessary docu-ments I would give my observations later.
It is contended by counsel for the petitioner that as there is a separatedivorce action pending between the parties in which custody of the re-spondents-respondents is part and parcel thereof and the respondent shouldhave moved Court in the said divorce case rather than causing duplicity oflitigation by making an independent and separate application thereby caus-ing grave and irreparable loss and damage to the petitioner and on thisground leave to proceed should be granted. I am not inclined to agree withthis view for the reason that a divorce action was not a bar to an applica-tion for habeas corpus.
In the case Algin vs. Kamalawathie{']the facts were:
Petitioner obtained a decree for divorce and, during the pendency of theappeal in the divorce action, filed the present application for habeas cor-pus against his wife for the custody of his children. In the divorce action he

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had not sought an order for the custody of the children and the Court madeno order on the application of the wife for their custody, because the de-cree for divorce was entered in the absence of the wife who failed to ap-.pear on the trial date.
It was held:
“That the divorce action was not a bar to the application for habeascorpus’’.
Counsel also submits that the there is non compliance with the provi-sions of Section 375 of the Civil Procedure Code which reads as follows:
“If the application is instituted in the course of, or as inci-dental to, a pending action, whether of regular or summaryprocedure, the petition shall be headed with a reference toits number in the court, and the names of the parties thereto,and shall be filed as part of the record of such action, and allproceedings taken and orders made on such petition shallbe duly entered in the journal required to be kept by section92".
This again is a matter that has no bearing on the petitioners applica-tion for leave to appeal. In any event even if the purported application underreference is made in terms of Section 24(3) of the Judicature Act No. 2 of1978 provisions contained in Section 29 of the said Judicature Act pro-vides for the procedure. The aforesaid two sections reads as follows:
“Section 24(3) : An application for the custody of a minorchild or of the spouse of any marriage alleged to be kept inwrongful or illegal custody by any parent or by the other-spouse or guardian or relative of such minor child or spouseshall be heard or determined by the Family Court; and such. court shall have full power and jurisdiction to hear and deter-mine the same and make such orders both interim and finalas the justice of the case shall require."
“Section 29 : All proceedings in a Family Court shall beinstituted and conducted as expeditiously as possible inaccordance with such as may be applicable thereto and, ifthere be no such law, in accordance with the provisionsrelating to summary procedure in the Civil Procedure Code.”
Karunadasa vs. Abeywickrama and others (Somawansa J.(P/CA)
Thus there is no mandatory requirement to follow the provisions of Sec-tion 375 of the Civil-Procedure Code.
The petitioner also has tendered documents m arked Y1A to Y1F. Thesedocuments too cannot have any impact on the impugned order for on theone hand they were not placed before the learned District Judge when thepetitioner supported his application and in any event most of them arerecent origin and are placed before this Court to show that the learnedDistrict Judge was bias when making the impugned order.
On an examination of the impugned order dated 06.12.2004, I wouldsay the learned District Judge has considered all the material placedbefore him in arriving at his finding. It is to be seen that he has correctlyobserved that much reliance cannot be placed on the affidavit sworn bythe respondents-respondents who are minors. The learned District Judgegoes on to say that in any event the respondents-respondents were ques-tioned in open Court 5 times as to their perference with whom they wouldprefer to live with. He further says that he himself would have observed therespondents-respondents said anything in answer if they did as allegedby the petitioner. The allegation of the petitioner is that thp respondents-respondents did answer. In the circumstances this Court is called upon todecide who is uttering a falsehood. Is it the learned District Judge or is itthe petitioner? With no other material to support either of them and thepetitioner being at a distinct advantage position of providing such evidencehas failed and neglected to do so. In the circumstances I am compelled toaccept the statement of the learned District Judge. It appears that thelearned District Judge has come to correct finding that there is no materialplaced before him to show that there is a change of status quo I have noreason to disagree with him.
Before I conclude there is the matter of non production of relevant docu-ments by the petitioner on which I would like to make certain observa-tions. In the case of M. L. C. Caderamenpulle and another vs. J.M. C.Caderamanpulle (2> Gamini Ameratunga, J. having considered a series ofcases has come to the following conclusion on the applicability of Rules3(1 )(a), 3(1 )(b) and 3(15) of the Rules of Court of Appeal (Appellate Proce-dure) Rules 1990.
“I therefore hold that Rule 3(1 )(a) and (b) of the Court ofAppeal (Appellate Procedure) Rules of 1990 are notapplicable to leave to appeal applicaitons filed in terms of
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section 757(1) of the Civil Procedure Code. In consequenceI uphold the submission of the learned counsel for the peti-tioner that Rule 3(1) (a) and (b) of the Court of Appeal(Appellate Procedure) Rules are not applicable to leave toappeal applications.”
The preliminary objection raised in that application as narrated in thejudgement is as follows:
‘This is an application for leave to appeal. The learned coun-sel for the respondent raised a preliminary objection in limineto this leave to appeal application on the basis that the pe-titioner has not complied with Rule 3(1) of the Court of Ap-peal (Appellate Procedure) Rules of 1990 by his failure toannex to his petition, duly certified copies of some of thedocuments tendered along with his application.”
Thereafter he has considered several judgements dealing with this ques-tion and has finally come to the conclusion that –
“As the rules presently stand the Court has no power todismiss a leave to appeal application on the basis that nec-essary documents have not been filed. If the Court is ofopinion that a party seeking interim relief should have fileddocuments necessary for the Court to peruse before grant-ing interim relief, the Court may either refuse to grant in-terim relief or may in its discretion direct the petitioner tofurnish copies of the necessary documents. But the courthas no power to dismiss a leave to appeal application inlimine on the petitioner’s failure to produce copies of docu-ments”.
It appears that Ameratunga, J. has taken the view that a leave to appealapplciation can be decided on the averments contained in the petition andaffidavit is unacceptable.
As this order has been made in another division of this Court I wouldsay with due respet to Amaratunga, J. that I totally disagree with him thatthere is no requirement to annex any documents to an application forleave to appeal other thatn the affidavit of the petitioner and the Court hasno power to dismiss a leave to appeal application on the basis that nec-essary documents have not been filed.
Karunadasa vs. Abeywickrama and Others (Somawansa J.(P/CA)
While I would agree with him that Rule 3(1 )(a) and (b) of the Court ofAppeal (Appellate Procedure) will not and cannot apply to an applicationfor leave to appeal and further in terms of Sections 757 and 758 of the CivilProcedure Code no documents need be filed along with the petition andaffidavit and the requirement being that the petition should be supportedby an affidavit. However if the petitioner is to succeed in tys appicationjwould hold that the necessary documents to establish the relief claimedby the petitioner should and must be provided or annexed to the petition.ltmust always be remembered that the system of civil law that prevails inour country is confrontational and therefore the jurisdiction of the Judge iscircumscribed and limited to the dispute presented to him for adjudicationby the contesting parties. Thus the burden is on the party seeking relief toestablish his or her case. I am yet to come across any authority where theburden is cast on the Court to call for necessary documents. If Court wereto adopt this procedure of calling for documents in support of an applica-tion for interim relief or for the grant of leave, it would be a procedurehitherto unknown to our legal system and in effect would be travesty ofjustice.
As Amaratunga, J says in that judgment this can be a lacuna in the lawbut that lacuna does not confer any additional privileges or for that matterany privilege on the petitioner to solely depent for leave to appeal or in-terim relief on the averments in his petition and affidavit not even annexingthe impugned order.l am at a loss as to how the Court could decide on thequestion of law for which purpose leave is granted can the Court decidethis aspect of the matter purely on the averments contained in the petitionand affidavit? I think not I would proceed to say that if this procedure isadopted anyone could aver anything in the petition and the affidavit whichhas no bearing to the action in the original Court and obtain leave whichwould bring in a chain of reactions including stay of proceedings in theoriginal Court. The situation becomes worse if the respondent is absentand unreprented. The Court is called upon to assist the petitioner by re-quiring him to produce the relevant documents so that the Court couldgrant him the relief prayed for by him. If documents so tendered are notsufficient the Court is obliged to call for more documents. In such a situa-tion where does justice stand.
If notice issued on the respondent is not served on the respondent orprevented from being served on the respondent is the Court meeting our
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justice by assiting the petitioner requesting him to produce documents tosupport his case?
In the case of Pathmawathie vs Jayasekera(3) it was held:
“It must always be remembered by Judges that the systemof civil law that prevails in our country is confrontational andtherefore the jurisdiction of the Judge is circumscribed andlimited to the dispute presented to him for adjudication bythe contesting parties.
Our civil law does not in any way permit the adjudicator orjudge the freedom of the wild ass to go on a voyage of dis-covery and make a finding as he pleases may be on whathe thinks is right or wrong, moral or immoral or what shouldbe the correct situation. The adjudicator or Judge is dutybound to determine the dispute presented to him and hisjurisdiction is circumscribed by that dispute and no more”.
I would say these are matters that need to be considered before onesays that interim relief or leave to appeal could be supported by a petitionand affidavit when the documents mentioned in the petition and affidavitare not available to Court for perusal and examination. For the foregoingreasons, with due respect I have no hesitation to differ from the view ex-pressed by Ameratunga, J in the aforesaid case. I was compelled to ex-press the aforesaid observation for one of the reasons for disallowing theapplication of the petitioner in the instant application is non production ofthe relevant documents.
For the aforesaid reasons, leave to appeal is rejected and the applica-tion is dismissed. In all the circumstances of the case, I make no order asto costs.
WIMALACHANDRA, J. — I agree.Application dismissed.