BALASINGHAM AND ANOTHER V PURANTHIRAN (A MINOR) BY HIS NEXT FRIEND SIVAPAC

016-SLLR-SLLR-2000-V-1-BALASINGHAM-AND-ANOTHER-V-PURANTHIRAN-A-MINOR-BY-HIS-NEXT-FRIEND-SIVAPAC.pdf


BALASINGHAM AND ANOTHER
v.
PURANTHIRAN (A MINOR) BY HIS NEXT FRIEND SIVAPACKIAM
SUPREME COURTPERERA. J.,
WIJETUNGA, J. ANDISMAIL J.
SC APPEAL 41/98
CA (REV) APPLICATION NO.545/97
WITH CA LA NO 12/97
D.C. JAFFNA L/16/A2
20th SEPTEMBER. 1999
Appeal – Supreme Court Rules. 1990 – Failure to file written submissionsof appellant – Rule 30 of the Supreme Court Rules – Inordinate delay infiling written submissions without reasonable excuse – Order declaring theappeal to stand dismissed for non-prosecution – Rule 34 of the SupremeCourt Rules.
Theappellants failed to file their written submissions in terms of Rule 30of the Supreme Court Rules 1990, within 6 weeks of the date on whichspecial leave to appeal was granted. The written submissions were filedapproximately one year from that dale. The respondent in his counter-submissions took an objection on the ground of such default and movedthat the appeal be declared dismissed for non-proseuction. in terms ofRule 34. The appellants also failed to give, an acceptable excuse for thedefault on their part.
Held :
On the facts of the case, the preliminary objections raised on behalf of therespondent that the appeal be declared dismissed for non-compliance,must be sustained.
Cases referred to :
Coomasaru u. Leechman Ltd SC Applications Nos. 217/72 and 307111 SC minutes 26,h May 1976
Samarawickrama u. Attorney-General Sriskantha's Law ReportsVol 1 P 47
Mendis v. Abeysinghe (1989) 2 Sri LR 262
Kiriwanlhe and another u. Nauaratne and another (1990) 2 Sri LR393 at 0. 404
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Sri Lanka Imw Reports
120001 l Sri LR.
APPEAL from the judgement of the Court of Appeal.
P. Nagendrcin, P.C. with P. Silvaloganthcin for appellants.
S.Mahemhran for substituted – respondent.
Cur. aria uu/t
February 16, 2000PERERA, J.
This is an appeal by the 2nd Defendant-Petitioner againstthe Order of the Court of Appeal in Revision Application No CA545/97 with CA LA 12/97.
The original action was filed by the next friend of a minorseeking ejectment of the defendants and recovery of peacefulpossession of the premises in suit.
The Plaintiff in that action claimed the following reliefsagainst the Defendants :
that the defendants, their agents, servants, dependantsand others claiming from the defendants be ejected fromthe land and premises described in the schedule to theplaint:
that the plaintiff be kept in peaceful possession thereof:
that an injunction be issued restraining the defendantsfrom keeping open the doors of the shop forcibly opened bythem: and
for damages and costs.
Along with the plaint, the Plaintiffs in this action filed apetition and an affidavit and prayed for an interim injunctionrestraining the Defendants from keeping open the doors of thepremises described in the schedule to the petition and for costsand such other relief as to the Court may deem necessary.
The District Court upon this application of the Plaintiffissued an enjoining order on 26. 5. 1997.
sc
Balasingham and Another <>. PuranUiiran (A minor)
by his next friend Sivapackiam (Perera. J.)
165
Thereafter, on 26. 5. 1997 the Defendants filed answerand objections together with an affidavit and prayed for:
dissolution of the enjoining order purported to be issued
in the case;
rejection of the application for interim injunction; and
dismissal of the plaintiffs action.
The learned District Judge having heard Counsel for thePetitioners and Counsel for the Defendants reserved his orderon this application of the Defendants, and delivered the orderon 6. 6. 1997 dismissing the Defendant’s application andmade a further order extending the enjoining order for afurther period of 14 days. The Defendant-Petitioners then filedpapers in revision in the Court of Appeal (CA 545/97) andsought leave to appeal (CA LA 126/97) against this order ofthe learned District Judge dated 6. 6. 1997 dismissing theDefendant’s application.
The Court of Appeal having heard Counsel on behalf of theDefendant-Petitioners and the Plaintiff-Respondents madethe following order “that at the end of the period of the existingenjoining order already granted by the learned District Judgebefore he extends such enjoining order, if that be the case, thathe makes further inquiry to ascertain whether in fact theenjoining order should be extended or not, and then make anappropriate order." The Court of Appeal also directed that theinquiry into the issue of an injunction be concluded early, ifnecessaiy. even by advancing the date already fixed aftergiving notice to parties and re-fixed the application for leave toappeal.
The Defendants then sought Special Leave to Appeal to theSupreme Court against this order and on the 7"' day of May.1998 this Court granted Special Leave to Appeal against thejudgement of the Court of Appeal and further directed theDistrict J udge that no further extensions of the enjoining orderbe granted until the final determination of this appeal. Ofconsent, hearing of this appeal was fixed for the 20lh of August.
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On this day, this matter was not taken up for hearingand the Court listed this matter for hearing on the 10"’ ofDecember. 1998. On the 10th of December. 1998, the hearingof this appeal was once again postponed for the 12,h of May.
On the 12"1 of May, 1999, this appeal was once againlisted for hearing on the 20,h of September. 1999.
When this matter was taken up for hearing on the 20"’ ofSeptember, 1999, Mr. Mahenthiran, Counsel for the Plaintiff-Respondent raised a preliminary objection to the hearing ofthe appeal. It was Mr. Mahanthiran's contention that Rule 30of the Supreme Court Rules mandated the appellant to tenderwritten submissions within 6 weeks of the date on whichSpecial Leave to Appeal was granted. However, the appellanthas failed to comply with this Rule. Counsel submitted thatthe appellant has filed his written submissions only on the 4"’of May, 1999 which was almost one year after the date onwhich Special Leave was granted.
It was Counsel’s contention that this matter had beenlisted for hearing on two previous occasions, namely. 20,h ofAugust, 1998 and 10th of December, 1998 and it was onlythereafter that written submissions were filed by the Appel-lant. Counsel further submitted that having regard to the factthat an essential step in the prosecution of the present appealhad not been taken by the Appellants, this appeal stooddismissed for non-prosecution in terms of Rule 34 of theSupreme Court Rules 1990.
Counsel also invited the attention of the Court to the factthat the District Court and the Court of Appeal had undoubt-edly appreciated the necessity to retain the status quo andupheld the continuation of the enjoining order.
We have heard Counsel for the Appellants and Counsel forthe Plaintiff-Respondent who made both oral and writtensubmissions on this preliminary objection. The main submis-sion of Counsel for the Plaintiff-Respondent Mr. Mahenthiranwas that the present appeal must stand dismissed in terms ofRule 34 of the Supreme Court Rules as written submissions ofthe Appellants though filed on the 4th of May. 1999 were notfiled in terms of the said Rule.
sc
Balasingham and Another u. Puranthiran (A minor)
by his nexifriend Sivapackiam (Percra. J.)
167
Rule 34 of the Supreme Court Rules 1990 reads as follows :
“Where an appellant or a petitioner who has obtainedleave to appeal, fails to show due diligence in taking allnecessary steps for the purpose of prosecuting theappeal or application, the Court may, on an applica-tion on their behalf by a respondent, or of its ownmotion, on such notice to the parties as it shall thinkreasonable in the circumstances, declare the appeal orthe application to stand dismissed, for non-prosecu-tion, and costs of the appeal or application and anysecurity entered into by the appellant shall be dealtwith in such manner as the Court may think fit.”
In Coomasaru vs Leechman Ltd..1", the former SupremeCourt dismissed an appeal for failure to file written submis-sions in terms of certain Rules of the Appeal Procedure Rulesin the absence of any excuse for such failure. InSamarawiclcrema vs Attorney General121, this Court dismissedan appeal for failure to serve a copy of the written submissionson the Respondent as required by Rule 35(e). In that case, theCourt observed that no valid excuse for such non-compliancehad been shown. However, in Mendis vs Abeysinghe13'. it washeld that the failure to comply with Rule 35(e) can be excusedat the discretion of the Court.
Under the present Rules, the specific Rule which isapplicable to this case is Rule 30. and in particular Rule 30(1)which provides thus :
“No Party to an appeal shall be entitled to be heardunless he has previously lodged 5 copies of his writtensubmissions …. complying with the provisions of thisRule."
It is further provided in Rule 30(6) that the Appellantsshall within 6 weeks of the grant of Special Leave to Appeal orLeave to Appeal, as the case may be, lodge their submissionsin the Registry and shall forthwith give notice thereof to eachRespondent by serving on him a copy of such submissions.
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It is. therefore, clear that in respect of all appeals to theSupreme Court, the appellant is required to tender writtensubmissions within 6 weeks of the grant of Special Leave orLeave to Appeal.
In Kiriwanthe and another us Nauaratne and anotherw. thequestion of failure to comply with the Rules of the SupremeCourt was considered and this Court in that case observedthus :
“The weight of authority thus favours the view thatwhile all these rules must be complied with, the lawdoes not require or permit an automatic dismissal ofthe application or appeal of the party in default.
The consequence of non-compliance (by reason ofimpossibility or for any other reason) is a matterfalling within the discretion of the Court, to be exer-cised after considering the nature of the default, aswell as the excuse or explanation therefor, in thecontext of the objection of the particular ruling.”
The Court further observed that "even if non-compliancehad not been explained, the discretion of the Court to make anorder of dismissal should have been exercised only afterconsidering the gravity of default in relation to the issue arisingin the case.” (Vide ps. 405 & 406)
1 am, therefore, of the view that the tendering of writtensubmissions is a mandatory requirement in respect of appealsin terms of Rule 30 of the Supreme Court Rules and it w'ouldbe open for this Court where an appellant or a petitioner whohas obtained leave to appeal fails to show due diligence intaking all steps for the purpose of prosecuting the appeal,declare the appeal to stand dismissed for non-prosecutionunder the provisions of Rule 34.
The Rules of the Supreme Court set out above require thePetitioner:
sc
Baiasingham and Another v. Puranthiran (A minor)
by his nextfriend Sivapackiam (Perera, J.)
169
to file his written submissions within 6 weeks of thegrant of leave to proceed;-andthe petitioner is directed to give the Respondentnotice of it by serving a copy on the Respondent toenable him to file his submissions in reply before thehearing commences.
Having regard to the cases decided by this Court relatingto this matter, it would be safe to act on the basis that whileall these Rules (30 & 34) must be complied with, the law doesnot require or permit an automatic dismissal of the appeal ofthe party in default. The consequence of non-compliance is amatter falling within the discretion of the Court to be exercisedafter considering the nature of the default and the excuse orexplanation tendered by the defaulting party; and even wherethe non-compliance has not been explained, only after consid-ering the gravity of default in relation to the issue arising in thecase.
In the aforesaid circumstances, 1 propose to consider thereason given by the appellants to justify the non-compliancewith Rule 30. Admittedly, the appellants had failed to filewritten submissions within 6 weeks stipulated in Rule 30(6).Counsel for the appellants in his endeavour to explain theinability on the part of the appellants to comply with this Rulesubmitted that when Special Leave to Appeal was granted bythis Court on the 7th of May, 1998, this Court made inter aliathe following order :
“Of consent, hearing on 20th August 1998. Counselagreed to use Court of Appeal briefs. Mr. Mahenthiranrequests that he be allowed to file additional materialfrom the District Court records with translations andwith a copy to the petitioner.”
It was Counsel’s submission that having regard to thispassage in the order, the appellants had formed the impres-sion, (mistaken though it may be) that this Court had acted interms of Rule 16(1) and “had dispensed with compliance withthe provisions of the rules in regard to the sl eps preparatory
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to the hearing of such appeal" and that such dispensationincluded the requirement set out in Rule 30(6). Counselstrenuously urged that although the Rules of the SupremeCourt must be complied with, the law does not require orpermit an automatic dismissal of the appeal of the party indefault.
I am in entire agreement with the submission of Counselthat the weight of authority favours the view that while all rulesmust be complied with, the law does not require or permit anautomatic dismissal of the appeal of the defaulting party.
However, in this case there are certain matters which thisCourt must necessarily take cognizance of :
, Firstly, the appellants were granted Special Leave toAppeal by this Court on the 7U’ of May, 1998 and this matterwas fixed for hearing on the 20th of August 1998.
Secondly, on that date fixed for the hearing, this matterwas postponed for the 10Ul of December, 1998. This appealwas not taken up for augument on that date as well and it wasre-fixed for hearing on 12. 5. 1999.
It would, therefore, be clear that the appellants had failedto comply with Rule 30 for a period of approximately one yearfrom the date on which Special Leave to Appeal was granted.
While this matter stood fixed for hearing on the 12°' ofMay, 1999 the appellants proceeded to file their writtensubmissions on the 4th of May, 1999.
The Respondent filed counter-submissions on the 1 1th ofMay 1999, and Counsel for the Respondent in his writtensubmissions filed shortly thereafter had taken the objectionthat the appellants had failed to comply with the provisions ofRule 30 in that the written submissions of the Appellants havebeen tendered approximately one year of the date on whichSpecial Leave to Appeal was granted and that too after thisappeal had been listed for argument on two occasions. TheRespondent has in the aforesaid circumstances moved thatthis appeal be declared dismissed for non-prosecution.
sc
Balasingham and Another u. Puranthiran (A minor)
by his next friend Sivapackiam (Perera, J.)
171
I have very carefully considered the explanation given bythe Respondent for non-compliance with Rule 30. But I regretto state that it is most unreasonable for the Appellants to havepresumed that the Court on the date Special Leave to Appealwas granted, had acted in terms of Rule 16(1) and “haddispensed with compliance with the provisions of the rules inregard to the steps preparatory to the hearing of such Appeal”and that this dispensation included the requirement set out inRule 30(6). The excuse furnished by the Appellants in this casefor failing to comply with Rule 30 of the Supreme Court Rulesis both unacceptable and unconvincing and is conduct thatcannot be condoned by this Court.
In my view, failure to comply with Rule 30 is indeed afailure to show due diligence. It is to my mind quite clear fromthe facts that I have set out in this judgement that theAppellants had ample opportunity of becoming aware of thefailure to file written submissions. The Appellants have alsofailed to give an acceptable excuse for this default on their part.
For the reasons aforesaid,. I am of the view that thepreliminary objection raised by Counsel for the Respondent,must be sustained. This appeal is accordingly dismissed.There will be no costs. The learned District Judge is, however,directed to conclude the inquiry into the issue of an injunctionin this case as expeditiously as possible.
WIJETUNGA, J. – I agree.
ISMAIL, J.- 1 agree.
Appeal dismissed.