039-SLLR-SLLR-2004-V-1-BANK-OF-CEYLON-v.-KALEEL-AND-OTHERS.pdf
284
Sri Lanka Law Reports
(2004) 1 Sri L.R
BANK OF CEYLONvKALEEL AND OTHERSCOURT OF APPEALAMARATUNGA, J. ANDWIMALACHANDRA, J.
A. NO. 500/2000
C. COLOMBO 304/DRFEBRUARY 17 ANDMARCH 13, 2003 .
Debt Recovery (Special Provisions) Act, No. 2 of 1990 – Leave to appear anddefend granted – Who should begin? – Burden of proof – Civil ProcedureCode, sections 150 and 754(2) – Leave to appeal not exercised – Can anapplication in revision be maintained? – Exceptional circumstances -Alternateremedy.
The defendant-respondents filed an application for unconditional leave toappear and defend the action. The trial court allowed the application subject tothe condition that, the defendants deposit Rs. 1 million.
The trial court further held that the plaintiff-petitioner should begin the case.
The petitioner moved in revision.
HELD:
The court will not interfere by way of revision when the law hasgiven the plaintiff-petitioner an alternative remedy (s. 754(2)) andwhen the plaintiff has not shown the existence of exceptional cir-cumstances warranting the exercise of revisionary jurisdiction.
Per Wimalachandra, J.
“In any event to exercise revisionary jurisdiction the order challengedmust have occasioned a failure of justice and be manifestly erroneouswhich go beyond an error or defect or irregularity that an ordinary per-son would instantly react to it – the order complained of is of such anature which would have shocked the conscience of court.”
The defendants have denied all averments in the plaint. The plain-tiff has the right to begin unless where the defendant admits thefacts alleged by the plaintiff. The question as to the party whoshould begin is linked to the question on whom the burden of prooflies in a suit. The plaintiff has the right to begin and prove the case.
CA
Bank of Ceylon v Kaleel and others
. (Wimalachandra, J.)
285
APPLICATION in revision from an Order of the District Court of ColomboCases referred to:
Rustomv Hapangam & Co., (1978-79) 2 Sri LR 225
Parapragasam & another v S.A. Emmanuel C.A. 931/88 – D.C. Jaffna174772 – C.A.M. 24.7.91
Aghose v Premchand – 7 CLR 274
Nihal Jayamanne, P.C. with Ajith Munasinghe for plaintiff-petitioner
S.A. Parathalingam, P.C. with DinaI Phillips and Shiran Cooray for defendant-respondents
Cur.adv.vult
June 30, 2004WIMALACHANDRA, J.
This is an application in revision from the order dated 0124.04.2004 made by the learned Additional District Judge ofColombo. By that order the learned Judge directed the plaintiff-peti-tioner to begin the case and lead evidence.
Briefly, the facts relevant to this application are as follows:
The plaintiff-petitioner (hereinafter referred to as the plaintiff)instituted the action bearing No. 304/DR in the District Court ofColombo against the 1st to 6th defendan.ts-respondents (here-inafter referred to as the defendants) under the Debt Recovery(Special Provisions) Act, No. 2 of 1990. In this action the plaintiff 10bank claims a sum of Rs. 25,611,112/19 with interest at the rate of18% per annum from 1.7.1999 from the defendants jointly and sev-erally on the basis that they were the guarantors to a bank facilitygranted to a Company known as Jewelarts Ltd. The AdditionalDistrict Judge entered order nisi and the defendants filed an appli-cation for unconditional leave to appear and defend action.Thereafter the learned Judge after an inquiry granted the defen-dants leave to appear and defend the action subject to the condi-tion that the defendants deposit Rs. One Million.
When the case came up for inquiry, the plaintiff made an appli- 20cation that the respondents should begin the case. The defendants
286
Sri Lanka Law Reports
[2004] 1 Sri L.R
objected to this application. The learned Judge heard both partiesand made order on 24.4.2000 that the petitioner should begin thecase. It is against this order the present application in revision hasbeen made.
When this matter came up before this Court the defendantsraised a preliminary objection, to the validity of this application, thatthe plaintiff has not filed a leave to appeal application from the saidorder of the learned Judge. It is the position of the defendants thatthe plaintiff cannot maintain an application in revision when there is 30an appropriate remedy available to the plaintiff.
There is a right of appeal against the said order with the leaveof this Court in terms of section 754(2) of the Civil Procedure Code.However the plaintiff has not exercised this right. In these circum-stances, revisionary powers of this Court may be exercised only ifthe plaintiff’s application discloses exceptional circumstances war-ranting the exercise of the revisionary jurisdiction of this Court.
The plaintiff has not chosen to apply for leave to appeal from thesaid order as provided by section 754(2) of the Civil ProcedureCode. .Nor has he set out in this petition for revision any exception- 40al circumstances why he failed to file leave to appeal application asprovided by law.
In Rustom v Hapangama & Co.,(1) Vaithialingam, J. after anexhaustive analysis of all the authorities on this question held thatthe power of revision' conferred on the Appellate Court are verywide and can be exercised only on exceptional circumstances or isdefendant on the facts of each case.
In the case of Parapragasam & another v S.A. Emmanuel,(2)Weerasekera, J. made the following observations on this question.
“….It is now settled law that the power of revision vestedso
in the Court of Appeal is a discretionary remedy. Thepractice is not to exercise the power of revision whenany other or alternate remedy is available for the reasonthat it is a discretionary remedy vested in Court and it isexercised when the applicant has no other remedy. Butit is also now settled law that the revisionary powerwould be exercised even though there is an alternate
CA*
Bank of Ceylon v Kaleel and others
(Wimalachandra, J.)
287
remedy only if there is the existence of special circum-stances are shown necessitating the indulgence byCourt to exercise its discretionary remedy of revision.'
In the instant case the plaintiff has not explained his failure toexercise the right of appeal in terms of section 754(2) of the CivilProcedure Code. The revisionary jurisdiction could be exercisedonly if the petition of the plaintiff discloses exceptional circum-stances, which the plaintiff has not done. Moreover the plaintiff hasnot stated on its petition that non-interference by this Court wouldcause a denial of justice or irremediable harm.
In the circumstances this Court will not interfere by way of revi-sion when the law has given the plaintiff an alternate remedy andwhen the plaintiff has not shown the existence of exceptional cir-cumstances warranting the exercise of revisionary jurisdiction.
In any event, for this Court to exercise revisionary jurisdictionthe order challenged must have occasioned a failure of justice andbe manifestly erroneous which go beyond an error or defect orirregularity that an ordinary person would instantly react to it. In oth-erwords the order complained of is of such a nature which wouldhave shocked the conscience of Court.
The plaintiff in its petition admits that the defendants havedenied all averments in the plaint (paragraph 5(a) of the petitionfiled by the plaintiff). The explanation (1) of section 150 of the CivilProcedure Code states that the plaintiff has the right to beginunless where the defendant admits the facts alleged by the plain-tiff. A similar provision is found in Or 18 R.1 of the Indian CivilProcedure Code. Sarkar’s Law of Civil Procedure 8th edition atpage 837 states that;
“Plaintiff had the right to begin unless defendantsadmitted all the ‘material allegations’, in the plaint(Aghore v. Premchand,(3)")
Cross on Evidence 6th edition at page 241 states:
“the plaintiff has the right to begin unless the defendanthas the burden of proof on every issue, and in this con-text ‘burden of proof may be taken to mean evidentialburden”'
60
70
80
90
288
Sri Lanka Law Reports
[2004] 1 Sri L.R
The question as to the party who should begin the case is linkedto the question on whom the burden of proof lies in a suit. In thepresent case the plaintiff admits that the defendants have denied allthe averments in the plaint (vide paragraph 5(a) of the petition filedby the plaintiff). In this situation it seems to me that the plaintiff hasthe right to begin and prove its case.
For these reasons I uphold the preliminary objection raised by 100the defendants and I would accordingly, dismiss this application inrevision with costs.
AMARATUNGA, J. – I agreeApplication dismissed.