KULASINGHECOURT OF APPEALEKANAYAKE.J.
SRI SKANDARAJAH, J.
CA NLT 1535/2003.
DC GAMPAHA 39754/L.39754/LDECEMBER 5, 2005.
Civil Procedure Code, sections 75014, 755, 756, 766 – Leave to appealnotwithstanding lapse of time – What are the mandatory requirements containedin section 766 ? ■ What should the prayer include ?
Sri Lanka Law Reports
(2006) 2 Sri LR
The defendant – petitioner filed papers seeking leave to appeal notwithstandinglapse of time and to hear the appeal after the grant of leave and set aside thejudgment.
The plaintiff-respondent contended that the application is misconceived asmuch as it is an application for leave to appeal and does not fulfill all therequirements provided in the Code.
The defendant-petitioner has totally failed to pray that the appeal maybe admitted notwithstanding lapse of time in addition to the prayerfor relief.
The relief the defendant has prayed for is to grant leave to appealnotwithstanding lapse of time and not to admit the appealnotwithstanding lapse of time. The Code does not provide to grantleave to appeal notwithstanding lapse of time."
APPLICATION under section 765 of the Civil Procedure Code.
Aravinda Athurupana with Tissa Bandara for defendant-petitioner.Sanjeewa Jayawardane with Nishantha Sirimanne for plaintiff-respondent.
Cur. adv. vult.
CHANDRA EKANAYAKE, J.
Thedefendant-petitioner (hereinafter sometimes referred to as thedefendant) by his petition dated 11.09.2003 had sought inter alia leave toappeal notwithstanding lapse of time, to hear the appeal after the grant ofleave and to set aside the judgment dated 25.06.2003 pronounced by thelearned District Judge of Gampaha and to dismiss plaintiff-respondent’s
Kulasinghe (Chandra Ekanayake, J.)
action and for judgment as prayed for in the answer filed by the defendantin the District Court.
The plaintiff-respondent (hereinafter sometimes referred to as the plaintiff)appearing through his Attorney had instituted the action bearing No. 39754/L in the District Court of Gampaha seeking declaration of title to the propertymorefully described in the schedule to the plaint, for ejectment of thedefendant and all those holding under him there from and that he be restoredto quiet and vacant possession and for damages against the defendant asprayed in sub-paragraph (c) of the prayer to the plaint. The defendant hadmoved for a dismissal of the plaintiff’s action and for a declaration in hisfavour that he is the statutory tenant of the premises in suit bearingNo. 29.
When the case came up for trial on 04.01.1999 the plaintiff’s action hadbeen dismissed due to non appearance and it had been later restored tothe trial roll. Thereafter the case had been fixed for trial on 26.07.2001.
As evidenced by the proceedings of the said trial date (26.07.2001)after recording an admission and issues 1-11 raised by both parties furthertrial had been postponed for 19.10.2001. After conclusion of the evidenceled by both parties the learned trial Judge had pronounced the judgmentdated 25.06.2003 granting the reliefs prayed for in the plaint in favour of theplaintiff.
Being aggrieved by the aforesaid judgment the defendant having filed anotice of appeal, though all arrangements were made to file a petition ofappeal within the stipulated time period for filing of the same through hisregistered Attorney-at-law had failed to file same as he was said to havebeen suffering from acute piles and unable to go about at the relevanttimes to make the required arrangements to file same within the periodstipulated in section 755(3) of the Code. In support of the above he hasannexed a medical certificate dated 08.08.2003 (P Y) to his presentpetition. The defendant had further contended that there was no other
Sri Lanka Law Reports
(2006) 2 Sri LR.
reason or cause whatsoever which prevented him from makingarrangements through his instructing Attorney to file a petition of appealother than the aforementioned reasons and he was thus prevented frompresenting the petition of appeal within the time period due to reasonsbeyond his control. In the aforesaid premises the defendant had invokedthe extra ordinary jurisdiction vested in this Court by way of leave to appealnotwithstanding lapse of time. Further it has been averred in the petitionthat along with the instant application seeking leave that he has alreadyfiled another application by way of revision also. As per order of this Courtdated 12.01.2005 the connected revision application preferred by thedefendant bearing No. CA1534/2003 has been withdrawn by the defendant.
At the hearing of the application counsel for the plaintiff-respondent hadraised the following preliminary objections:
The application the defendant has filed before this Court ismisconceived in as much as it is an application for leave to appeal anddoes not fulfill all the requirements provided in the Civil Procedure Code.
The certified copy of the decree of the District Court which mustbe mandatorily annexed has not been complied with and therefore thisCourt cannot consider this application.
The counsel who represented both parties were heard with regard tothe above preliminary objections and written submissions too have beenfiled.
With regard to the first preliminary objection it would be pertinent toconsider the provisions of section 765 of the Civil Procedure Code(as amended). Section 765 thus reads as follows:
“It shall be competent to the Supreme Court to admit and entertain apetition of appeal from a decree of any original court, although the provisionsof section 754 and 755 have not been observed:
Kulaslnghe (Chandra Ekanayake, J.)
Provided that the Supreme Court is satisfied that the petitioner waspreventecT by causes not within his control from complying with thoseprovisions; and
Provided also that it appears to the Supreme Court that the petitionerhas a good ground of appeal, and that nothing has occurred since the datewhen the decree or order which is appealed from was passed to render itinequitable to the judgment-creditor that the decree or order appealedfrom should be disturbed."
In support of the first preliminary objection the respondent's counselhas strenuously submitted that the defendant has not demonstrated tothis Court in any valid or convincing manner either of the aforesaid tworequirements enumerated in the above section 765for the purpose of availinghimself of the discretionary remedy embodied in the aforesaid section.
On a perusal of the present petition it has to be observed that thedefendant has totally failed to pray that the appeal may be admittednotwithstanding the lapse of time in addition to the prayer for relief inrespect to the subject of appeal contrary to the provisions of section 766of the Civil Procedure Code which is to the following effect:
"In every such petition of appeal as is the subject of the last section thejudgment-creditor shall be named respondent, and the petition shall beaccompanied by a certified copy of the decree or order appealed from, andof the judgment on which it is based, as well as by such affidavits of factsand other materials as may constitute prima facie evidence that theconditions precedent to the petition of appeal being entertained, which areprescribed in the last section, are fulfilled. Also, every such petition shallbe presented immediately to the Supreme Court in the appellatejurisdiction, and in addition to the prayer for relief in respect to the subjectof appeal it shall contain a prayer that the appeal may be admittednotwithstanding the lapse of time."
Sri Lanka Law Reports
(2006) 2 Sri LR.
In this case the defendant has totally violated the requirement and failedto pray that the appeal may be admitted notwithstanding the lapse oftime.
Further according to sub-paragraph (b) of the prayer to the presentpetition the defendant has moved for leave to appeal notwithstanding lapseof time and by sub-paragraph (c) what has been moved for is to hear theappeal after the grant of leave and to set aside the judgment. Even thecaption of the present petition is to the following effect:
"In the matter of an application for Leave to Appeal notwithstandinglapse of time."
Therefore it becomes quite clear that the relief the defendant has prayedfor by this petition is to grant leave to appeal notwithstanding lapse of timeand not to admit the appeal notwithstanding lapse of time. The provisionspertaining to the applications for leave to appeal are embodied in section756 of the Civil Procedure Code (as amended) but no provisions have beenprovided by the Code to grant leave to appeal notwithstanding lapse oftime.
For the foregoing reasons I conclude that the present petition is not inconformity with the mandatory requirements contained in section 766 ofthe Civil Procedure Code and therefore same is misconceived and the firstpreliminary objection is a valid one. In the light of the above no necessityarises to consider the second preliminary objection raised. Accordinglythe defendant-petitioner's application is hereby dismissed with costs fixedat Rs. 7500/-.
SRISKANDARAJAH, J. -1 agree.
WICKRAMASINGHE vs. KULASINGHE