Sri Lanka Law Reports
(2005) 2 Sri L. R.
COURT OF APPEAL,
SOMAWANSA, J (P/CA)
C. A. 304/2004 (REV)
DC MT. LAVINIA 139/LMAY 13,2005
Civil Proceduere Code – Section 40(d), 147, 454(2) – Issues of Law to be triedfirst – when ? Refusal by trial court – No leave to appeal application filed – Isrevision available ? – Court of Appeal (Appellate Procedure Rules 1990) Rule46 Supreme Court Rules.
The defendent-Petitioner sought to revise the order of the trial court refusing tohear and determine issue No. 13 as a preliminary Issue-whether the Plainthas conformed to the provisoes of Section 40D of the Civil Procedure Code.The trial court held that the said issue is not a pure question of law and in orderto answer the said issue the Court has to consider the evidence that would beheld at the trail but went to answer the said issues in the negative
The Defendant moved in Resivion
The Court after deciding that Issue No. 13 is not a pure question of lawerred by answering the issues in the negative
In terms of Section 40(d), the Plaint should contain a statement as towhere and when the casue of actfon arose and is not a fact whichshould be kept to be disclosed at the trial. The Plaint, it is apparentdoes not say as to when the purported action arose.
No other evidence/documents are required to decide whether the plaintis drawn out in compliance with Section 40(d) – this is a fatal defectwhich goes to the root of the case.
The Defendant Petitioner has invoked the revisionary jurisdiction toavert a miscarriage of jutice caused to him by the error committed bythe trial Judge, and in the circumstances, this is a fit and proper instantto exercise the revisionary jurisdiction.
Leslie Silva vs Perera
PER SOMAWANSA, J. (P/CA)
• “the error committed by the trial judge by answering Issue No. 13 in thenegative without giving a hearing and in fact according to the reasons givenby her she could not have answered the said Issue in any event without
considering evidenceis a clear and unforgivable error committed by
the trial Judge”
APPLICATION in Revision from the Order of the District Court of Mt. Lavinia.Cases referred to :
Mutukrishna vs Gomes, 1994 3 Sri LR 1
Atukorale vs Samyanathan – 41 NLR 165
Silva vs Silva – 44 NLR 494
Sinnathangam vs Meera Mohideen -60 SLR 394
Gnanapandithan vs Balanayagam – 1998 1 Sri LR 391 .
Manam Bee Bee vs Syed Mohamed – 68 NLR 36 at 38
Somawathie vs Madawala -1983 2 Spl LR 15 at 30 and 31
May 13, 2005
Lasitha Kanuwanaratchi for Defendent Petitioner
Ranjan Suwandaratne with Malinda Nanayakkara for Substitued -Plaintiff-Re-spondent
ANDREW SOMAWANSA, J.
This is an application for revision and or restitutio in integrum.underArticle 138 of the Constitution seeking to revise and set aside the order ofthe learned Additional District Judge of Mt. Lavinia dated 23^05.2003 re-fusing to hear and determine issue No. 13 as a preliminary issue of lawand to direct the learned Additional District Judge to try the aforesaidissue No. 13 as preliminary issue of law, to answer the same in favour ofthe defendant-petitioner and to dismiss the plaint in limine.
Sri Lanka Law Reports
(2005) 2 Sri L. R.
At the hearing of the application both parties agreed to resolve thematter by way of written submissions and both parties have tendered theirwritten submissions.
Section 40(b) of the Civil Procedure Code reads as follows :
“A plain and concise statement of the circumstances con-stituting each cause of action, and where and when it arose. Suchstatement shall be set forth in duly numbered paragraphs : andwhere two or more causes of action are set out, the statement ofthe circumstances constituting each cause of action must beseparate, and numbered”
When consel for the defendant-petitioner made an application to Courtto try issue No. 13 as a preliminary issue of law in terms of Section 147 ofthe Civil Procedure Code, the plaintiff-respondent objected to the saidapplication and consequently parties had agreed to tender written sub-missions on the question of whether the aforesaid issue No. 13 should betried as a prelimary issue. Both parties had tendered their written submis-sions only on the question whether the said issue No. 13 could be tried asa preliminary issue of law. However as submitted by counsel for the defen-dant-petitioner the learned Additional District Judge has come to a findingthat the said issued No. 13 is not a pure issue of loaw and in order toanswer the said issue the Court has to consider the evidence that wouldbe adduced at the trial. Having come to this conslusion that this particularissue No. 13 cannot be answered without considering the evidence, thelearned Additional District Judge proceeded to answer the aforesaid issueNo. 13 in the negative. I would hold that the aforesaid finding is a grossmisdirectin of law on the part of the learned Additional District Judge.
It is submitted by counsel for the defendant-petitioner that the onlymatter the learned Additional District Judge was called upon to decidewas whether issue No. 13 should be tried as a preliminary issue of law.This fact is borne out by the journal entry No. 57 dated 28.01.2003 whichreads as follows :
Issue No. 13
Leslie Silva vs Perera
And also as per proceedings and the order made by the learned Addi-tional District Judge dated 21.01.2003 marked P5 which reads as follows :
Vide also paragraph 05 of the written submissions tendered by theplaintiff-respondent marked P7 and the final paragraph on page 14, it is tobe seen that first paragraph of the written submisisons of the defendent-petitioner marked P6 also corroborates this fact which reads as follows :
Vide also the first paragraph of the order of the learned Additional Dis-trict Judge dated 23.05.2003 which reads as follows :
Sri Lanka La w Repons
(2005) 2 Sri L. R.
Thus the only matter that the Addmitional District Judge had to decidewas whether issue No. 13 should be tried as a preliminary issue of law orwhether it shuld be tried along with the other issued raised by parlies onthe evidence to be placed before her by both parties.
• On an examination of her order dated 23.05.2003. it is to be seen thatthe learned Additional District Judge having come to a conclusion thatissue No. 13 is not a pure question of law and that it involves facts whichhas to be considered after calling evidence had prceeded to answer theaforesaid question in the negative before any evidence was led and with-out a hearing. The last two paragraphs of her order reads as follows :
In Mutukrishna vs. Gomes (n it was held as follows :
“Under Section 147 of the Civil Proceudre Code for a case tobe disposed of on a preliminary issue, it should be a pure ques-tion of law which goes to the root of the case".
Judges of original courts should, as far as practible. gothrough the entire trial and answer all the issues unless they arecertain that a pure question of law without the leading of evidence(apart from formal evidence) can dispose of the case”
In the instant action, it is to be seen that the learned Additional DistrictJudge after deciding that issue No. 13 is not a pure question of law and itinvolves facts which have to be considered after calling evidence has erredin law by answering the said issue in the negative.
Leslie Silva vs. Perera
Thus it is to be seen that no other evidence or documents are requiredto decide whether the plaint is drawn out in compliance with Section 40(d).The plaint itself would speak to this fact. However as to whether the failureof the plaintiff-respondent to comply with this provision contained in Sec-tion 40(b) of the Civil Procedure Code is a fatal defect which goes to theroot of the case has to be decided by the learned Additional District Judge.
For the foregoing reasons my considered view is that the learned Addi-tional District Judge's order dated 23.05.2003 should not be permitted tostand
At this point, I would also consider the objections taken by the plaintiff-respondent to the maintainability of this application. One of the mattersraised by the counsel for the plaintiff-respondent is that the defendant-petitioner should have invoked the provisions of Section 754(2) of the CivilProcedure Code by way of leave to appeal and having failed to do so thedefendant-petitioner is not entitled to invoke the revisionary jurisdiction ofthis Court. For this proposition of law counsel for the defendant-petitionerhas made reference to relevant decisions in paragraph 22 of his writtensubmissions. However l would rather incline to follow the following deci-sions in this respect.
In view of the aforesaid provisioons contained in Section 40(d) of theCivil Procedue Code it is clear that the plaint itself should contain asatement as to where and when the case of action arose and is not a factwhihc should be left to be disclosed at the trail. For if this procedure isadopted it would certainly result in undue hardship and injustice to thedefendant-petitioner in formulating his defence.
In the instant action the plaint does not say as to when the purportedaction arose. The relevant paragraph in the plaint viz. paragraph 4 readsas follows :
Sri Lanka Law Repons
(2005) 2 Sri L. R.
Atukorale vs. Samyanathan(?)
“The powers given to the Supreme Court by way ot revision are wideenought to give it the right to revise any order made by an original courtwhether an appeal has been taken against it or not.
This right will be exercised in a case which an appeal is pending only inexceptional circumstances as for example, to ensure that the decisiongiven on appeal is not rendered nugatory'5
Silva vs Silva
“The Supreme Court has the power'to revise and order made by anoriainal court even where an aDDeal has been taken aaainst that order.
In such a case the court will exercise its jurisdiction only in exceptionalcircumstances and in order to ensure that the decree given in appeal isnot rendered nugatory"
Sinnathangam vs. Meeramohaideen(4)
“The Supreme Court possesses the power to set aside, in revision, anerroneous decision of the District Court in an appropriate case even thoughand appeal agaisnt such decision has been correctly held to have abatedon the ground on non compliance with come of the technical requirementsin respect of the notice of security.
In this respect I would say it is settled law and our Courts time andagain has held that the revisionary jurisdiction of this Court is wide enoughto be exercised to avert any miscarriage of justice irrespective of availabil-ity of alternative remedy or inordinate delay.
In the case of Ganapandithan Vs. Balanayagaman application was madeto the Court of Appeal to set aside the judgment in a partition action after2 1/2 years was disallowed mainly on the ground of undeu delay whichremained unexplained. In appeal to the Supreme Court the appeal wasallowed as the judgment of the learned District Judge was manifestly wrongand the order of the Court of Appeal also was set aside as it had focussedonly on the question of delay and not on the merits. Per G. P. S. de Silva.CJ at pages 397/398
Leslie Silva i/s Perera
“On a consideration of the proceedings in this case. I hold that therehas been miscarriage of justice. The object of the power of revision asstated by Sansoni, CJ in Marian beebee vs. Seyed Mohamed(6) at 389 “is
the due administration of justice” In the words Soza J, in Somawatie
vs.-Madawala and others at 30 and 31. “The court will not hesitate to useits revisionary powers to give relief where as miscarriage of justice has
occuredIndeed the facts of this case cry aloud for the intervention of
this court to prevent what otherwise would be a miscarriage of justice.“The words underlined above are equally applicable to the present case. Iam accordingly of the view that the Court of Appeal was in serious errorwhen it declined to exercise its revisionary powers having regard to thevery special and exceptional circumstances of this partition case.”
Also per sansoni, CJ in the case of Marian Beebee Vs. Seyed Mohamed(Supra)
“The power of revision is an extraordinary power which is quite indepen-dent of and distinct from the appellate jurisdiction of this Court. Its objectis the due administration of justice and the correction of errors, sometinescommitted by this Court itself, in order to avoid miscarriages of justice. Itis exercised in come case by a Judge of his own motion, when an ag-grieved person who may not be a party to the action brings to his noticethe fact that, unless the power is exercised, injutice will result. The Parti-tion Act has not, conceive, made any change in the respect, and thepower can still be exercised in respect of any order or decreed of a lowerCourt.”
The defendant-petitioner in the instant action has invoked the revision-ary jurisdiction of this Court to avert a miscarriage of justice caused to himby the error committed by the learned Additional District Judge by an-swering issue No. 13 raised by the defendant-petitioner in the negativewithout giving a hearing and in fact according to the reasons given by hershe could not have answered the aforesaid issue in any event without
Sri Lanka Law Reports
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considering evidence. I would say this is a clear and unforgivable errorcommitted by the trial Judge. In the circumstances my considered view isthat this is a fit and proper instant to exercise the revisionary jurisdiction ofthis Court.
Objection has been taken by counsel for the plaintiff-respondent to themaintainability of ihis application in view of not complying with the provi-sions contained in Rule 3(1 )(b) of the Court of Appeal (Appellate Proce-dure Reul 1990 or Rule 46 of the Supreme Court Rules of AppellateProcedure). I would say that I am quite satisfied that all the relevant docu-ments have been made avialabe to tins Court and the documents referredto in paragraph 25 of the written submissions of the plaintiff-respondentare irrelevant to htis application. Hence there is no merit in this objection.
Another objection taken by the plaintiff-respondent is that when there isan objection in relation to the Rules of Procedure as set out in the CivilProcedure Code they must be taken up prior to the farming of issues withnotice to the respondent. This requirement appears to have been com-plied with by the defendant-petitiner in paragraph 12 of his answer.
For the foregoing reasons. I would allow this application for revision andset aside the order of the learned Additional District Judge 23.05.2003 anddirect the learned Additional District Judge to try the aforesaid issueNo. 13 as a preliminary issue. The plaintiff-respondent will pay to thedefendant-petitioner Rs. 5,000 as costs of this application.
President of the Court of Appeal