058-SLLR-SLLR-2003-V-2-JEGANATHAN-v.-SAFYATH.pdf
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[2003] 2 Sri L.R
JEGANATHAN
v
SAFYATH
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
A.LA., NO. 257/99
C. MT. LAVINIA NO. 420/99 (SPL)
MAY 11, AND
JULY 9, 2001
Oaths and Affirmation Ordinance – Affidavit – Commencement with an oath -Conclusion with an affirmation – Validity – Doubt whether contents were readover – Certified copies not filed – Non compliance – Is it fatal?
Held:
i) Commencement of the affidavit with an Oath by the plaintiff and its con-clusion with an affirmation in the jurat clause is contradictory and irrec-oncilable, violating the express provisions of the Oaths and AffirmationOrdinance.
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Jeganathan v Safyath
(Nanavakkara, J.)
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ii) Failure of the petitioner to file certified copies of the order, along withcertified copies of other relevant documents contravenes the mandato-ry provisions of the Rules of the Supreme Court.
APPLICATION for leave to appeal from the order of the District Court of Mt.Lavinia.
Case referred to:
1. Clifford Ratwatte v Sumathipala – (2001) 2 SLR 55
Manohara de Silva for petitionerReeza Muzni for 2nd defendant
Cur.adv.vult
16 November, 2001NANAYAKKARA, J.
The plaintiff-petitioner (plaintiff) instituted proceedings against 01the defendants-respondents (defendants) seeking relief, inter alia,that the deed annexed to the plaint be declared null and void, thatthe defendants be restrained by way of enjoining order, interiminjunction and permanent injunction from dispossessing the plaintiffand all those holding under her from the premises in suit and fromalienating the said premises to a third party.
Thereafter on an application made by the plaintiff, the courtgranted an enjoining order in favour of the plaintiff, consequent towhich the defendants lodged their objections.10
The learned District Judge, who made an inquiry into theobjections lodged by the defendants on the basis of the written sub-missions tendered by parties made an order on 25.10.99 refusingthe interim injunction pleaded by the plaintiff, subject to the grant ofan interim injunction restraining the defendants from dispossessingthe plaintiff except by way of due process of law from the portion ofthe land where she resides.
It is against that order that the plaintiff has presented thisapplication by way of leave to appeal seeking the relief prayed for.
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When this matter was taken up for inquiry in respect of leave,on 11th May 2001, on behalf of the 2nd defendant two preliminaryobjections, which have a bearing on the question of maintainabilityof this application were raised by Counsel for the 2nd defendant.The two preliminary objections raised were as follows:-
that the affidavit filed by the plaintiff is fatally flawed,resulting in no proper application before court.
that there is no certified copy of the impugned orderdated 25.10.99'
Thereafter, the respective counsel were permitted by Court totender written submissions on the matter. In compliance with thisorder, it appears only the 2nd defendant has tendered his writtensubmissions, and there is no evidence of written submissions beingfiled by the plaintiff.
The learned Counsel for the 2nd defendant adverting to theaffidavit filed by the plaintiff in this case has contended, that thecommencement of the affidavit with an oath by the plaintiff and itsconclusion, with an affirmation in the jurat clause is contradictoryand irreconcilable, violating the express provisions of the Oathsand Affirmation Ordnance.
The learned Counsel has also referred to the alteration madein jurat clause and the location where the plaintiff has sworn toaverments in the affidavit and the Commissioner of Oath hasplaced his signature, and submitted that the affidavit filed in thiscase cannot be considered a proper affidavit in the eyes of the lawas the plaintiff has sworn to the averments contained in the affidavitand placed her signature at a location different from the locationwhere the Commissioner of Oath is purported to have administeredthe oath to the plaintiff and placed his signature, and thus deprivingof its legal validity and sanctity.
Counsel referring to the documents filed in this case hasurged, that the failure on the part of the plaintiff to file a certifiedcopy of an impugned order dated 25.10.99 along with certifiedcopies of other relevant documents contravenes the mandatoryprovisions of the rules of the Supreme Court relating to the pre-sentation of an application by way of leave to appeal.
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Jeganathan v Safyath
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In order to determine the validity of the two preliminary objec-tions that have been taken by the 2nd defendant in his submis-sions, one has to carefully scrutinize the impugned affidavit, orderand other related documents filed in this case.
In regard to the affidavit, it should be observed, as the defen-dant’s Counsel has rightly pointed out that the plaintiff has com-menced her affidavit by taking an oath but has concluded it by mak-ing an affirmation in the jurat clause. In a case of this nature wherethe plaintiff has commenced her affidavit after making an oath doesnot end the jurat in a manner consistent with the oath she hastaken, at the commencement it cannot be said that she has swornto the contents of the affidavit in the true sense of the expressionas expected by law. The reasoning adopted by his Lordship JusticeEdussuriya with Justice Udalagama agreeing with the case ofClifford Ratwatte v T. Sumathipala1 will be relevant and pertinent inresolving the matter in issue in this case.
There is no certainty in this case, as in the case of CliffordRatwatte v T. Sumathipala (supra) whether the affidavit containingmatters to which the plaintiff has deposed to by making an oath asa Christian and concluded by making an affirmation in the juratclause was in fact read over and. explained to the plaintiff beforeshe placed her signature. If it was in fact read over and explainedto the plaintiff, this discrepancy between the swearing and the affir-mation would have been detected by the Commissioner of Oath.Therefore a doubt arises, as to whether in fact the contents of theaffidavit were read over and explained to the plaintiff, by theCommissioner of Oath before the plaintiff placed her signature.Therefore it can be reasonably deduced from the circumstances ofthis case that the affidavit was not explained and read over to theplaintiff, by the Commissioner of Oath as he is expected under thelaw. In view of the foregoing reasons, I am of the view that the firstpreliminary objection raised should sustain.
In regard to the failure of the plaintiff to file certified copies ofthe documents it should be observed that it has been held over andover again by this court as well as the Supreme Court, non-compli-ance with the Court of Appeal (Appellate Procedure) Rules 1990 isfatal to the application. The importance, and the mandatory natureof the observance of the rules of the Court of Appeal in presenting
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an application has been repeatedly emphasised, and discussed ina long line, of decided authorities, by the Court of Appeal and theSupreme Court, and the difficulty of complying, if any, with the rulesshould be adequately explained by the party who seeks relief fromthis Court.
As far as the present case is concerned, although the peti-tioner while annexing the photo copies of the documents hasundertaken to furnish certified copis of the same, which she hasfailed to comply with. Although the petitioner has taken an inordi-nately long period of time to tender the certified copies, she hasfailed to do so. The failure on her part to ensure compliance withthe rules, disentitles her to the relief prayed for. Therefore it is myconsidered view that the petitioner has not invoked the jurisdictionof this court in a proper manner. The preliminary objection raised bythe defendant in regard to the non compliance of the rules shouldalso prevail.
For the reasons stated above, I uphold the two preliminaryobjections raised by Counsel for the 2nd defendant, and refuseleave. The 2nd defendant is entitled to a cost in a sum of Rs. 5000/.
UDALAGAMA, J. – I agree.Application dismissed.
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