102-NLR-NLR-V-72-A.-R.-G.-FERNANDO-Petitioner-and-W.S.C-FERNANDO-Respondent.pdf
ALLES, J.—Fernando v. Fernanda549
1969 Present:Alles, J., and Pandita-Gunawardene, J.
A. R. G. FERNANDO, Petitioner, and W. S. C. FERNANDO,
Respondent
•S. C. 102'1068—Application in Bevision in D. C. Colombo, 765-5fD
Jlerision when right oj appeal lies— Requirement of exceptional circumstances—Matrimonial action—Order Jot maintenance oj children pendente litc—Whetherapplication in revision lies for enhanced maintenance—Civil Procedure Code,ss. 610, 624—Courts Ordinance, s. 73.
Where a right of appeal lies, an application in revision will not be entertainedunless there are exceptional circumstances which require tho intervention ofthe Court by way of revision.
Where, in a matrimonial action, tho wife, without exercising her right ofappeal, moved tho Supreme Court, by way of revision, to enhance the sumawarded by tho District Court as * maintenance-pendente- lile “foF tfio~ fivechildren of tho marriage—
Held, that the facts of the case did not warrant tho exercise of theextraordinary powers of revision.
Application to revise an order of the District Court, Colombo.
Walter J ayaicardena, Q.C., with S. G. Wijeyasekera, for the petitioner.
//. W. Jayeuardene, Q'.C., with L. C. Seneviralne, for the respondent.
Cur. adv. vuli.
!May IS, 1969. Axles, J.—
Counsel for the defendant-respondent has taken a preliminary objectionto this application on the ground time the petitioner should have appealedfrom the order of the Judge. Section 73 of the Courts Ordinance readwith Sections 61 and 624 of the Civil Procedure Code make it abundantlyclear that it was open to the petitioner to exercise her right of appealfrom the order directing the respondent to pay alimony pendente lileand maintenance for the five minor children of the marriage. Counselrelied on the decisions of this Court in Gooneuxtrdene v. Orr Carlina v.j/ary Nona Silva 3 and Alima Natchiar v. Marikar 3 in support of hissubmission that no application in revision should be entertained by thisCourt where a right of appeal lies. Counsel for the petitioner did notseriously contest the position that a right of appeal did lie from the order•of the learned Judge but sought to argue that the facts of this case
(1907) 2 A. C.R. 172.
* (1945) 47 N. L. R. Si.
1
* U94S) 47 N. L. R. 16.
650
ALICES, J.-—Fernando v. Fernando
warranted the exercise of the revisionary powers of this Court. He onlyconfined his present application to one of enhanced maintenance inrespect of the minor children.
The powers of the Supreme Court to act by way of revision have beensuccinctly stated by Soertsz, J. in Atukorale v. Samynathan1. Saidthe learned Judge :
“ The powers by way of revision conferred on the Supreme Courtare very wide indeed, and clearly this Court has the right to reviseany order made bj’’ an original Court whether an appeal lias been takenagainst that order or not. Doubtless that right will be exercised ina case in which an appeal is already pending onty- in exceptionalcircumstances. Por instance this jurisdiction will be exercised inorder to ensure that the decision given on appeal is not renderednugatory. ”
In Atukorale v. Samynathan an appeal had been filed by the defendant-23etitioner against the order of the Judge allowing an application forexecution of writ. Pending the hearing of the appeal, the defendantmoved the Supreme Court by way of revision to stay execution on theground that if the writ was executed in the manner execution was prayed.for any order favourable to him in the ultimate appeal would be ofdoubtful value to him. There was therefore an exceptional circumstancewhich required the intervention of the Court by way o'f revision while the-appeal was pending in order to ensure that the decision given in appealwould not be rendered ineffective.
Similar considerations exist in the other decisions of this Court towhich our attention has been drawn by Counsel. In JRanasinha v.Henry 2 an appeal was filed when there was no right of appeal but therevisionary powers of the Supremo Court were exercised because the orderwas wrong ex facie. In In the Matter of the Insolvency of Hay manThornhill 3 the Court was satisfied that the proceedings were conductedin a most perfunctory wiannerand that, there werea number of irregularities.Thc“.ducadministrationof justice ” therefore required the exercise of the,-Court’s revisionary powers.
In Sabapathy v. Dunlop* the revisionary powers of the Supreme Courtwere exercised where there was no appeal and where the Court belowwrongly passed a decree on a consent order without satisfying itself ofthe legality-of the agreement which was challenged on groundsof fraud,fear, mistake, surprise, cl cetera.
In Abdul Coder v. Sitlinisa 5 there was a mistake in the sum tenderedfor typewritten copies of the brief and accepted as correct by the Secretaryof the Court and the respondents. On objection being taken that the-
1 {1030) 11 X. L. It. 165 at ICO.3 {1305) Z X. L. It. 105.
– (1S36) 1 X. L. It. 303.* {1035) 37 X. L. R. 113.
* {1051) 52 X. L. It. 536.
ALLES, J.—Fernando v. Fernando
551
appeal had abated, both Gratiaen and Pulle, JJ. held that no prejudicewas caused to the respondents and heard the appeal by way of revision.<Jratiaen, J. stated that “ it would be a travesty, of justice if some meretechnicality were to deprive a party of his right of appeal to the Supreme•Court from a judgment which seriously affects his interests. "
In similar circumstances, the Supreme Court in Sinnathangam v.Meeram.ohaide.en1 acted by way of revision where there was an erroneous•decision of the court even though the appeal against that decision hadbeen correctly held to have abated on the ground of non-compliance withsome technical requirements in respect of the notice of security.
Mr. Jaj'ewardene for the petitioner also relied on Appuhamy v.Weeratunga a a partition case in which a party who was not a party on therecord moved the Supreme Court in revision to exclude a lot to whichhe lay claim and which was erroneously included in the decree of.sale—to support an argument that even such a party is entitled toapply to the Supreme Court by way of revision!
Finally in Peries v. Silva 3 Garvin, J in dealing with a case where thetrial Judge rejected a plaint although it was “ by no means clear that thecorrect procedure was not to appeal ” to the Supreme Court, chose to•deal with the matter in revision in view of a practice that had hithertoprevailed. In all the above cases it will be noted that there were“ exceptional circumstances ” of varying kinds which necessitated this<}ourt exercising its revisionary powers, the paramount considerationbeing the due administration of justice. Reference must also be made toSilva v. Silva*, a matrimonial action in which the Supreme Court, whilean appeal was pending, dealt in revision with an application by thehusband for the custody of the child pendente lite because of a genuinefear that some harm would come to the child if it continued to remainin the custody of the mother until the appeal was heard. Wijeyewardene,J. (as he then was) in that case cited with approval the observations of■Soertsz. J. in Atukorale v. Samynathan (supra).
What are the “ exceptional circumstances ” in the present case whichwould warrant this Court in exercising the extraordinary powers ofrevision ? The application to the District Court was made by the petitionerfor payment of Rs. 1,000 as alimonylife and Rs. 1000 as
maintenance for the children. It has been submitted bj1, learned Counselfor the petitioner that the respondent in his affidavit of 27th January 1908-stated that he was willing to pay Rs. 75 for each of the five childrenin addition to their school fees which was a sum in excess of the amount-of maintenance ordered in respect of the children. It is admitted that•the petitioner ivas in receipt of an income from the Municipality tillthe end of December 1967 and even in January 196S she revived asura of Rs. 2S1 from her employer. It was therefore not unreasonable
* {1934) 12 Times L. R. 2. '
(1943) 44 X. L. R. 404.
1 (195S) 60 N. F. R. 394.5 (1921) 23 N. L. R. 467.
4
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ALLES. J.—Fernando v. Fernando
for the respondent to assume on 27th January 19GS that the petitionerwas not in need of alimonj' and for that reason ho was prepared to pay-more for the children than the amount ultimately decreed becausein his view no alimony was payable to his wife. Indeed it may wellbe that the petitioner being a Doctor and having been in receipt of a-steady income from December 19G5 could secure emplojnnent- withoutdifficulty even after her services were determined by the Municipality.The learned District Judge in his order has granted alimony pendente lifeto her and reduced by about Rs. 200 j>er month the sum which therespondent was willing to pay for the children. In making this order,the Judge may well have considered the status of the parties (bothbeing Doctors) and the reasonable possibility of the petitioner obtainingfurther employment. The learned District Judge had to make hisorder on a consideration of the matters referred to in the affidavits andit is difficult to agree with the submissions of petitioner’s Counsel that hehad misdirected himself in regard to the quantum of maintenance payableto the children. Learned Counsel for the petitioner stressed the fact thatthe real parties affected in this matter were minor children whose, interest,should be paramount, and in regard to whom the Courts of law have aspecial duty and consequently that these are exceptional circumstancesthat should weigh with us. While I agree that the Courts should beparticularly vigilant where the interests of minors are concerned, it wouldbe an unhealthy precedent for this Court to interfere in a case of t-his-kind when the application is in effect one for payment of enhancedmaintenance to the children.
The decision of the learned Judge in this case was arrived at on thematerial placed before him by the parties themselves and it is impossiblefor us to say that this is a case which falls within the exceptionalcircumstances referred to in the decisions of this Court to warrant theexercise of our revisionarv powers. The preliminary objection istherefore upheld and the application refused. There will be no order as,to costs.
Pa kdit a – G uxawau dene, J.—I agree.
Applied t io n re fate if.