037-SLLR-SLLR-2002-V-2-ABEYGUNASEKERA-v.-WIJESEKERA-AND-OTHERS.pdf
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Abeygunaskera v. Wijesekera and Others
269
ABEYGUNASEKERA
v.WIJESEKERA AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 1098/98 (F)
DC NO. 10486/PFEBRUARY 15, 2002MARCH 27, 2002
Partition Law – S. 48 (4) Inquiry – Dismissal – Appeal lodged – Is the OrderFinal or Interlocutory? – Could the objection as to the maintainability of the appealbe taken up by way of a motion? – Is there any legal provision which can bereferred to a rule? – Will prejudice be caused to the appellant as an applicationto exercise revisionary jurisdiction? – Cannot be made without the completerecord – Civil Procedure Code S. 755 (3), 839 – Inherent powers cannot beinvoked to disregard express statutory function – Constitution – Article 141.
The 19th defendant-appellant appealed against the order made under s. 48 (4)of the Partition Law. The plaintiff-respondent, raised a preliminary objection byway of a motion that no appeal lies against an order made under s. 48 (4).
The 19th defendant-petitioner challenged the procedure adopted stating that theapplication is premature, without any legal or lawful provision which cannot bereferred to any rule.
Held:
The process adopted cannot be referred to any procedure laid downeither in the CPC or in the SC rules.
However, one has to concede the fact that the said procedure adoptedis not prohibited in any way.
Court has the power and jurisdiction to entertain the motion by which thepreliminary objection was raised and s. 839, CPC make provision forconferring power and jurisdiction to Court to make orders as may benecessary for the ends of justice or to prevent abuse of the process ofCourt.
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The 19th defendant-appellant has no right of direct appeal against theimpugned order, therefore, it will not cause any prejudice to him.
Per Somawansa, J.
"I am inclined to take the view that inherent power of Court could be invokedonly where provisions have not been made, but where provision has beenmade and are provided in s. 754 (2) CPC inherent power of this Court cannotbe invoked; inherent powers cannot be invoked to disregard express statutoryprovisions."
Per Somawansa, J.
“As the law now stands such a course – in seeking to invoke revisionaryjurisdiction even if Court were to uphold the objections is not permissible inview of Rule 3 (1)b or other relevant Rules of Court of Appeal (AppellateProcedure) Rules 1990 published in Government Gazette ExtraordinaryNo. 645/4 of 15. 01. 1991; where the procedure for revision applications islaid down.
Objection taken in limine to the maintainability of an appeal, from the District
Court of Matara.
Cases referred to:
Ranjit v. Kusumawathie and Others – (1998) 3 Sri LR 232.
Seneviratne v. Abeykoon – (1986) 2 Sri LR 6.
Goonesekera v. Adirian – 14 NLR 79.
Karunaratne v. Mohideen – 43 NLR 102 at 105.
Leechman Co., Ltd. v. Rangalla Consolidated Ltd., – (1981) 2 SLR 373.
Gunarathne v. Thambinayagam – (1993) 2 Sri LR 355.
Rohan Sahabandu with Sitari Jayasundera for the 19th defendant-appellant.
N. R. M. Daluwatte, PC with Mrs. K. Siriwardena for the respondents.
Cur. adv. vult.
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Abeygunaskera v. Wijesekara and Others (Somawansa, J.)271
May 10, 2002SOMAWANSA, J.
In this partition action the 19th defendant-appellant filed his statement 1of claim on 05. 07. 1984. However, when the trial was taken up on18. 03. 1988 and on 22. 04. 1988 the 19th defendant-appellant wasabsent and unrepresented. Thereafter, he filed two sets of petitionsand affidavits, one dated 09. 05. 1988 which was filed before thejudgment was pronounced and the other dated 04. 07. 1988 filedafter the judgment was pronounced. It appears that by both sets ofpetitions and affidavits he was seeking to purge his default, in notappearing on the trial date and it was essentially an applicationunder section 48 (4) of the Partition Act. The 19th defendant-appellant's ioapplication was inquired into on 02. 12. 1998 and on the sameday the learned District Judge made order rejecting the said application.The 19th defendant-appellant has lodged this appeal from thesaid order.
The present inquiry relates to a preliminary objection taken up bythe plaintiffs-respondents that the said order of the learned DistrictJudge is not a judgment or a final order, but is an interlocutory orderfrom which an appeal could be lodged only with the leave of the Courtof Appeal first had and obtained. This objection is well-founded andin view of the Supreme Court decision in Ranjit v. Kusumawathie and 20Others,m this argument of counsel for the plaintiffs-respondents shouldsucceed.
The Counsel for the 19th defendant-appellant neither in his oralsubmissions nor in his written submissions did contest the correctnessof the position taken up in the preliminary objection raised by theplaintiffs-respondents. But, what he did argue was that a preliminaryobjection of this nature cannot be taken up by way of a motion asit is done in this case and that the application of the plaintiffs-respondents is premature, without any legal or lawful provision whichcannot be referred to any rule.30
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One has to concede that the procedure adopted by the plaintiffs-respondents in this case cannot be referred to any procedure laiddown either in the Civil Procedure Code or in the Supreme Courtrules. At the same time, however, one has to concede the factthat the said procedure adopted by the plaintiffs-respondents is notprohibited in any way. In the case of Seneviratne v. Abeykoori{2)Tambiah, J. cited with approval a passage from the Code of CivilProcedure by Sarker, vol. 01, p. 842, where it is stated :
"Where a contingency happens which has not been anticipatedby the framers of the Civil Procedure Code, and therefore no 4°express provision has been made in that behalf, the Court hasinherent power to adopt such procedure, if necessary to invent aprocedure, as may do substantial justice and shorten needlesslitigation."
Again Middleton, J. in Goonesekera v. Adiriari131 states :
“I am not prepared to accede to the proposition that the Courthas not any inherent authority to prevent any abuse of its processin cases where the legislature has not distinctly provided for suchcontingencies. At the same time I think, it must be established thatan abuse has clearly occurred, which calls for such intervention." so
Howard, CJ. in Karunaratne v. Mohideeri4) at 105 observed:
"It is the power and duty of the Court in cases where no specificrule exists, to act according to equity, justice and good conscience,though in the exercise of such power it must be careful to seethat its decision is based on sound general principles and is notin conflict with them or the intentions of the legislature."
In Leechman Co., Ltd. v. Rangalla Consolidated Ltd., Courtconsidered the provisions contained in section 839 of the Civil ProcedureCode and observed:
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Abeygunaskera v. Wijesekera and Others (Somawansa, J.)273
"Section 839 of the Civil Procedure Code merely saves the 60inherent powers of the Court to make such orders as may benecessary for the ends of justice or to prevent the abuse of processof the Court. Where no provison exists it is the duty of the Judgeand it lies within his inherent power to make such order as thejustice of the case requires."
Section 839 of the Civil Procedure Code reads thus :
"Nothing in this Ordinance shall be deemed to limit or otherwiseaffect the inherent power of the Court to make such orders asmay be necessary for the ends of justice or to prevent abuse ofthe process of the Court."70
It appears that these authorities clearly indicate that this Court hasthe power and jurisdiction to entertain the motion by which the preliminaryobjection was raised and section 839 of the Civil Procedure Codemake provision for conferring power and jurisidction to Court to makeorders as may be necessary for the ends of justice or to prevent abuseof the process of Court.
The question then arise as to whether if the preliminary objectionraised by way of a motion, in that the 19th defendant-appellant hasno right of direct appeal is considered at this stage will it cause anyprejudice to the 19th defendant-appellant. I think the answer should 80be in the negative. For in any event, the 19th defendant-appellantcannot succeed in this appeal as he has failed to follow the correctprocedure as provided by law and is now seeking to circumvent hisown mistake by way of a technical objection.
It becomes relevant to consider at this point the provisionscontained in section 755 (5) of the Civil Procedure Code which readsthus :
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"(5) On receipt of the petition of appeal, the Registrar of theCourt of Appeal shall forthwith number the petition and shall entersuch number in the Register of Appeals and notify the parties 90concerned by registered post.
Provided that, when the Judge of the original Court hasexpressed an opinion that there is no right of appeal against, theRegistrar shall submit the petition of appeal to the President ofthe Court of Appeal or any other Judge nominated by the Presidentof the Court of Appeal who shall require the petition to be supportedin open court by the petitioner or any Attorney on his behalf ona day to be fixed by such Judge, and the Court having heard thepetitioner or his attorney, may, reject such petition or fix a datefor the hearing of the petition, and order notice thereafter to be iooissued on the respondent or respondents.
Provided further, that, when a petition is rejected under thissection the Court shall record the reasons for such rejection."
In the instant case there is no such opinion expressed by the Judgeof the original Court that there is no right of appeal. As there is noopinion expressed one could only speculate as to why he did notexpress an opinion, when it is very clear that the order appealedagainst is an order made in respect of an application under section48 (4) which is an interlocutory order from which there is no directappeal. May be the learned District Judge due to inadvertence, nonegligence, unawareness or for any other reason failed to expressan opinion. However, the lapse on the part of the learned District Judgedoes not prevent any other party to the action from bringing this factto the notice of the Appellate Court as was done in the instant appeal.
In any event, it is only the Appellate Court which has the jurisdictionto look into this matter.
The plaintiffs-respondents by way of a motion raised this preliminaryobjection that since the order appealed against is an interlocutory
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order, to prefer an appeal against such an order the 19th defendant-appellant should do so with the leave of the Court of Appeal firsthad and obtained. The motion was filed on 15. 01. 2002 with noticeto the 19th defendant-appellant, was supported on 25. 01. 2002 wasinquired into and argued on 15.02.2002. Therefore, the 19th defendant-appellant cannot complain that he was not given an opportunity tosupport his petition of appeal or that he was not given a hearing.
Another matter that was contended by the counsel for the 19thdefendant-appellant is that if at the stage of hearing of this appealeven if Court were to uphold the objections of the plaintiffs-respondentsand the appeal fails still the 19th defendant-appellant could make anapplication to Court to exercise its revisionary jurisdiction. However,at this stage since the record is not available to the 19th defendant-appellant he is not in a position to make such an application andtherefore would cause prejudice to the 19th defendant-appellant. I mustconcede that there are a number of decisions where the Court ofAppeal exercised its revisionary jurisdiction in granting relief wherethere was no right of direct appeal. Be that as it may, I am inclinedto take the view that inherent power of Court could be invoked onlywhere provisions have not been made. But, where provision has beenmade and are provided in section 754 (2) of the Civil Procedure Code,inherent power of this Court cannot be invoked. I must also say thatinherent powers cannot be invoked to disregard express statutoryprovisions. In Gunarathna v. Thambinayagarrf® it was held that "theright of appeal is a statutory right and must be expressly created andgranted by statute". In any event, as the law now stands such a courseis not permissible in view of Rule 3 (1) (b) and the other releventrules of Court of Appeal (Appellate Procedure) Rules 1990 publishedin Government Gazette Extraordinary No. 645/4 of 15. 01.1991 wherethe procedure for Revision Application is laid down.
The Court of Appeal (Appellate Procedure) Rules 1990, Rules3 (1) (a), (b) and 3 (2) reads thus:
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”3. (1) (a) Every application made to the Court of Appeal forthe exercise of the powers vested in the Court of Appeal by Articles140 and 141 of the Constitution shall be by way of petition, togetherwith an affidavit in support of the averments therein, and shall beaccompanied by the originals of documents material to suchapplication (or duly certified copies thereof) in the form of exhibits.Where a petitioner is unable to tender any such document, he shallstate the reason for such inability and seek the leave of the Courtto furnish such document later. Where a petitioner fails to complywith the provisions of this rule the Court may, ex mero motu or ieoat the instance of any party, dismiss such application.
(b) Every application by way of revision or restitutio in integrumunder Article 138 of the Constitution shall be made in like mannertogether with copies of the relevant proceedings (including pleadingsand documents produced), in the Court of first instance, tribunalor other institution to which such application relates.
(2) The petition and affidavit, except in the case of an applicationfor the exercise of the powers conferred by Article 141 of theConstitution shall contain an averment that the jurisdiction of theCourt of Appeal has not previously been invoked in respect of the 170same matter. If such jurisdiction has previously been invoked thepetition shall contain an averment disclosing relevant particularsof the previous application. Where any such averment as aforesaidis found to be false or incorrect the application may be dismissed."
It must also be noted that the 19th defendant-appellant cannot beheard to say that he has no other remedy. He could still follow thecorrect procedure.
For the foregoing reasons, I am inclined to hold with the plaintiffs-respondents and reject the objections raised by the 19th defendant-appellant. The appeal of the 19th defendant-appellant is rejected with isocosts.
DISSANAYAKE, J. – I agree.
Preliminary objection upheld – Appeal rejected.