Rodrigo i'S. The Finance Co. Ltd. and another
RODRIGOVS.THE FINANCE CO. LTD AND ANOTHERCOURT OF APPEALSOMAWANSA, J(P/CA) ANDWIMALACHANDRA, J.
D.C. NEGOMBO 2626/SPl
Civ/ Procedure Code, Sections 37 and 384 – Registration of Documents Ordi-nance – Sections 32 and 33 – Caveat – Cancellation of Inquiry – Application toadd new parties – materia! documents not tendered to Court of Appeal? -Applicability of Rule 3(1 )(a) – Court of Appeal (Appellate Procedure) Rules1990-Failure to explain why documents were not tendered – fatal?
The Registrar of Lands registered a caveat at the instance of the Petitioner inrespect of the land in question. The Court acting under Section 384 of the Codefixed the matter for Inquiry. The Petitioner thereafter sought to add 2 partieswhich application was rejected by the District Judge on leave being sought.
Sri Lanka Law Reports
(2005) 2 Sri L R.
The copies of the Petition and affidavit filed by the Petitioner by which hesought to add new parties and sought other reliefs, such as cancella-tion of the deed are necessary documents.
The omission to tender same is fatal.
The Petitioner has to comply with Rule 3(1 )a of the Court of Appeal(Appellate Procedure) Rules 1990.
The failure to explain the reasons as to why the documents were nottendered or to cure the default in terms of the said Rule is fatal to anapplication.
Whether a document is a material document or not would be decidedby the Appellate Court and it is not for the parties to decide.
If certified copies of the Petition and Affidavit could not have been ob-tained in time, it was the duty of the Petitioner to mention this fact toCourt and obtain Courts permission.
APPLICATION for leave to Appeal from an Order of the District Court of Negombo.
Cases Referred to :
S. M . P. Mohideen vs. Sigiri Weaving Mills Ltd., Cala 243/01, D. C.Colombo, Case No. 35768/MS, CAM 23.08.01
Seylan Bank vs. Lanka Milk Foods (CWE) Ltd., – CA 697/96 – D. C.Colombo 12820/M – CAM 22.09.90
Petitioner in person.
Romesh de Silva P. C., with Hiran de Alwis for the 1st Respondent.
Anil Silva with Nandana Perera for 3rd Respondent.
cur adv vult
July 7, 2005.
CARodrigo vs. The Finance Co. Ltd. and another287
WIMALACHANDRA, J.This is an application for leave to appeal from the order of the DistrictJudge of Negombo dated 16.12.2004.
Upon a caveat being received under section 32 of the Registration ofDocuments Ordinance from the respondent-petitioner(petitioner) affectingthe land described in the caveat, which admittedly, belongs to the 1stpetitioner-respondent (1st respondent), the Registrar registered the caveatin the manner provided by the said Ordinance.
Thereafter the 1st respondent filed an application in the District Court ofNegombo under section 33 of the said Ordinance for an order for thecancellation of the said caveat and for damages. The District Courtcommenced the inquiry under chapter XXIV of the Civil Procedure Code,which is the summary procedure, and issued and Order Nisi under section377 of the Code to take effect in the event of the petitioner not showingcause on the appointed day for that purpose. The petitioner filed objectionsin terms of section 384 of the Code. The Court fixed the matter for inquiry.The petitioner then filed an application in the Court of Appeal complainingthat when the matter was taken for inquiry the learned Judge withoutproceeding with the inquiry, had directed the parties to file writtensubmissions. The Court of Appeal made order on 04.06.2004 directing theDistrict Judge to hold the inquiry in terms of section 384 of the CivilProcedure Code and any other provisions of law applicable to the inquiry.The learned District Judge,upon the receipt of the aforesaid direction fromthe Court of Appeal, fixed the matter for inquiry in terms of section 384 ofthe Code.
The proceedings of the District Court dated 25.11.2004 marked “RP10”shows that the petitioner filed an application in the District Court to addnew parties and for an order to set aside the deed in question and otherancillary reliefs. However, the petitioner has not annexed the petition andaffidavit by which he sought to add parties and set aside the deed, inaddition to other reliefs prayed for, from the District Court. The order dated
made by the learned District Judge is with regard to thatapplication. In that order the learned Judge has stated thus:
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It is against this order the petitioner has filed this application for leave toappeal.
Thereafter the learned Judge fixed the matter for inquiry with regard tothe application made by the 1 st petitioner-respondent for the cancellationof the said caveat and for damages.
It is crystal clear that the impugned order dated 16.12.2004 made bythe [earned Judge was on an application made by the petitioner seeking toadd the 3rd and 4th respondents as parties and also to set aside thedeed. Copies of the petition and affidavit filed by the petitioner, by which hesought to add new parties and sought other relief such as cancellation ofthe deed, are necessary documents to understand the impunged ordermade by the learned Judge. The omission to tender necessary documentswith the'petition is fatal to the application'made by the petitioner to thisCourt."The petitioner has failed to comply with the mandatory provisions ofRule 3(1 )a of the Court of Appeal (Appellate Procedure) Rules 1990.
Rule 3(1 )(a) reads as follows:
“Every application made to the Court of Appeal forthe exercise of the powers vested in the Court ofAppeal by Articles 140 or 141 of the Constitution shallbe by way of petition, together with an affidavit insupport of the averments therein, and shall beaccompanied by the originals of documents materialto such application for duly certified copies thereofin the form of exhibits. Where a petitioner is unableto tender any such document, he shall state thereason for such inability and seek the leave to theCourt to furnish such document later. Where apetitioner fails to comply with the provisions of thisrule the Court may, ex mero motu or at the instanceof any party, dismiss such application.”
Rule 3(1 )(a) is identified to the first part of Rule 46 of the Supreme CourtRules 1978 published in the Gazette Extraordinary No. 9/10 of 08.11.1978.The first part of Rule 46 reads as follows:
“Every application made to the Court of Appealfor the exercise of powers vested in the Court ofAppeal by Articles 140 and 141 of the Constitutionshall be by way of petition and affidavit insupport of the averments set ourt in the petition
Rodrigo vs. The Finance Co. Ltd. and another
and shall be accompanied by originals ofdocuments material to the case or duly cetifiedcopies thereof, in the form of exhibits”
It was held in an unreported case of S. M. P. Mohideen Vs. Sigiri WeavingMills Ltd.w that the Rule 3(1 )(a) of the Court of Apeal (Appellate Procedure)Rules, which is analogous to Rule 46 of the Supreme Court Rules of 1978,apply to every application to the Court of Appeal and as stated earlier noncompliance is fatal to the application.
The petitioner has not explained as to why he failed to furnish theaforesaid documents. In the case of Seylan Bank Ltd., Vs. Lanka MilkFoods (C. W. E.) Limited (2) it was held that the failture to explain thereasons as to why the documents were not tendered or to cure the defaultin terms of Rule 3(1 )(a) is fatal to an application.
Whether an application should be rejected for the failure to comply witha rule of the Appellate Court rules depends mainly on whether the relevantdocument is a material document. Whether a document is a materialdocument or not, would be decided by the Appellate Court and it is not forthe parties to decide. In the instant case the application made by thepetitioner by way of petition to add parties and to set aside deeds is amaterial document and in my view without it, this Court is unable tounderstand the order made by the learned Judge. If certified copies of thepetition and affidavit could not have been obtained in time, it was the dutyof the petitioner to mention that fact to Court and obtain Court’s permissionto tender them later. The petitioner has failed to do so. Merely filing somedocuments without the material documents does not amount to compliancewith Rule 3(1 )(a). Hence on this ground alone the petitioner’s applicationfor leave to appeal should be dismissed. It is also to be noted that thepetitioner has failed to annex a copy of the petition filed by the firstrespondent in its application made under section 33 of the Registraton ofDocuments Ordinance, which is a relevant document.
The scope of the inquiry in respect of the application made by the 1strespondent under section 33 of the Registration of Documents Ordinanceis solely concerned with the cancellation of the caveat registered at theinstant of the petitioner. The learned Judge in his order correctly held thatan inquiry should be conducted in respect of the application made by the
Sri Lanka Law Reports
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^ st respondent to set aside the caveat, which was registered under section32 of the Registration of Documents Ordinance, and refused the petitionersapplication to add parties. I cannot see any illegality in the order made bythe learned District Judge.
For these reasons, we see no reason to interfere with the impugnedorder made by the learned District Judge dated 16.12.2004. Accordingly,leave to appeal is refused and the petitioner’s application is dismissedwithout costs.
ANDREW SOMAWANSA, J. (P/CA) — I agree.