Sri Lanka Law Reports
(2006) 2 Sri LR.
INAYA AND ANOTHERVS.
COURT OF APPEAL.
SOMAWANSA J. (P/CA).
DC KALUTARA 4709A.
OCTOBER 12, 2005.
Civil Procedure Code, section 754(5) – Leave to appeal application – No prayerfor leave to appeal – No prayer to set aside any order – Maintainability – Fatal ?
In the absence of a prayer seeking leave to appeal from a specific order madeby the original court and without praying to set aside that order one cannotseek a declaration and a direction to be give to the trial Judge. The applicationcannot be maintained.
APPLICATION for leave to appeal from an order of the District Court of Kalutara,on a preliminary objection taken.
Ifthikar Hasan with A. J. M. Thahir for petitioner.
S.N. Wijithsinghe for respondent.
Cur. adv. vult.
ANDREW SOMAWANSA, J (P/CA).
This is an application praying for a declaration that the order of the learnedDistrict Judge dated 19.08.2004 marked P 13 is an interlocutory order interms of the provisions in section 754 (5) of the Civil Procedure Code andthat the 2nd defendant-respondent is not entitled in law to appeal from thesaid order in terms of section 754(1) of the Civil Procedure Code by tenderinga notice of appeal, for a direction to the learned District Judge of Kalutara toreject the said notice of appeal tendered by the 2nd defendant-respondentand also for a direction to the learned District Judge to execute the writ ofpossession issued by him to the Fiscal dated 26.08.2004 marked P 15.
When this application was taken up for inquiry both counsel agreed totender written submissions and accordingly both parties have tenderedtheir written submissions.
Inaya and Another vs. Fathima(Andrew Somawansa, J. (P/CA))
Counsel for the 2nd defendant-respondent has taken up a preliminaryobjection to the maintainability of this application inasmuch as there is noprayer for leave to appeal from any order or a prayer for setting aside anyorder. I would say there is force in the aforesaid preliminary objection for inthe prayer to the petition tendered to this Court by the plaintiffs-petitionersthere is no prayer seeking permission of this Court to appeal from anyorder but seeks only a declaration and for certain directions to the learnedDistrict Judge.
It is also to be seen that in the caption to the petition as well as in theaffidavit it is stated that the instant application is for leave to appeal froman order of the District Court of Kalutara dated 3rd September 2004 interms of the provisions of section 754(2) of the Civil Procedure Code.However there is no such prayer seeking leave to appeal from the orderdated 3rd September 2004 or from any other order made by the DistrictCourt of Kalutara. It must also be stated that no such order dated 3rdSeptember 2004 has been tendered to this Court nor does the journalentry no. 65 dated 03.09.2004 indicate that any order has been made onthat day which reads as follows :
It appears that in the absence of a prayer seeking leave to appeal from aspecific order made by the original Court and without praying to set asidethat order one cannot seek a declaration and for directions to be given to thetrial Judge as the petitioner is seeking to do in the instant application.
For the foregoing reasons, l would uphold the preliminary objectiontaken by the 2nd defendant-respondent to the maintainability of thisapplication and have no hesitation in rejecting the application. Applicationis dismissed with costs fixed at Rs. 20,000/-.
WIMALACHANDRA, J. – / agree.
INAYA AND ANOTHER vs. FATHIMA