Sri Lanka Law Reports
(19901 1 Sri LR.
BROWN AND CO. LTD. AND OTHERS
v.RATNAYAKE AND OTHERS
COURT OF APPEAL
S. ANANDA COOMARASWAMY, J.
C.A. APPLICATION 566/85.
OCTOBER 10 AND 11, 1989.
Writ of Certiorari – Industrial dispute – Award of arbitrator – Rules 46 and 50 of the SupremeCourt Rules of 1978 – Effect of non-compliance with Rule 46.
The Petitioner when confronted with the objection that Rule 46 had not been complied withstated that documents material lo the case have been filed and they would stand on fallby their own exhibits. Subsequently the petitioner sought to refer to the proceedings andcertain documents which they tendered to the record without a court order.
Rule 46 is applicable to writ application also. An application (for writ) under Article 140and 141 of the Constitution has lo be accompanied by a duly certified copy of the
Brown and Co. Ltd. v. Ratnayake
proceedings of the Court of first instance, tribunal or other institution if this copy is materialto the case but not otherwise.
The petitioner adduced no reason for non-compliance with Rule 46.
Compliance with Rule 46 is mandatory.
Cases referred to :
Ceylon Insurance Co. Ltd. v. Dharmasena and Others – C.A. No. 1685/79Minutes of 30.9.81.
S.C. Fernando v. N.A. Navaratne and others – C.A. No. 1401/79 C.A. Minutesof 14.10.84.
State Grphite Corporation v. Fernando – (1981)2 Sri L.R. 401,415.
Navaratnasingham v. Arumugam – (1980)2 Sri L.R. 1
RasheedAli v. MohamedAli ■ (1981)2 Sri L.R. 29
APPLICATION for Writ of Certiorari to quash award of arbitrator.
S.J. Kadiragamar, Q.C. with H.L. de Silva, P.C., Desmond Fernando and N.T.S. Kularatnefor Petitioners.
Faiz Musthapa, P.C., with Miss. G. Arulpragasam and M. Withanachchifor Respondents.
October 25. 1989.
ANANOA COOMARASWAMY, J.
This is an application for a Mandate in the nature of a writ of Certiorari toquash the Award made by the 1st Respondent dated 31.1.1985.
A preliminary objection had been taken by the 3rd Respondent thatRule 46 of the Supreme Court Rules 1978 published in GovernmentGazette No. 09/10 of 08.11.1978 had not been complied with by thepetitioners in that the certified copy of the proceedings had not been f iled.
By paragraph 15 of the petition the petitioners state that the Award isbad in Law and/or discloses errors of law on the face of the record in thatthe conclusions drawn from the primary evidence are perverse.
The facts relevant to this application are briefly as follows
The Award was made on 13.1.1985 and Gazetted on 15.03.1985. Thisapplication to this Court was made on 16.5.1985. The pleadings showthat the Petitioner relied only on the exhibits annexed to the petition and
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[1990j I Sri L.R.
not on the proceedings. (Vide paragraph 15 and 17 of the Petition). Thisis also evidenced by the fact that no reason is pleaded in the petition asto why the proceedings are not annexed nor does the petition state thatthe proceedings will be tendered later.
The application was supported on 31.5.1985 and notice issued.Objections were filed on 19.8.1985 and the 3rd Respondent specificallypleaded non-compliance with Rule 46 of the Supreme Court Rules. 1978.The matter was fixed for argument on 20.1.1986.
Despite objections being taken, the Petitioner did not tender theproceedings but fixed a motion dated 13.1.1986 moving that the recordof the proceedings be called for.
The matter was not taken up on several dates although fixed forargument.
When the matter came up before this Court on 4.7.1988, objectionswere taken that Rule 46 had not been complied with. Counsel for thePetitioner stated, “documents material to the case have been filed andthey would stand or fail by their own exhibits". In view of this statement,by my judgment dated 27.9.1988 I left this issue open. This would showthat from 31.5.1985 to 4.7.1988 no other documents or proceedings havebeen filed.
The learned Counsel for petitioner is now seeking not only to refer tothe proceedings but also to other documents as well. It is now claimed thatcertain proceedings and documents have been tendered. There is norecord whatsoever of such proceedings or documents being eithertendered to Court or served on the 3rd Respondent. The petitioner isunable to state as to when these documents were tendered. In any event,proceedings or documents could have been tendered only upon a motionand with permission of Court after notice to the 3rd Respondent in termsof Rule 50 of the Rules of the Supreme Court. This has not been done.Further the material said to have been tendered are uncorrected, uncertifiedcopies.
In the instant case the Petitioner having stated that it was relying onlyon the original exhibits, and prevented the application being dismissed,cannot resile from that position. By seeking to rely on documents and
Brown and Co. Ltd. v. Ralnayake (Ananda Coomaraswamy, J.)
proceedings which have not been duly tendered, the Petitioner impliedlyadmits that the petition as presently constituted cannot be maintained.
The Petitioner however contended that the requirements in Rule 46 foran application for relief to be accompanied by two sets of copies ofproceedings in the Court of First Instance, tribunal or other institution,related only to an application by way of revision or restitutio-in-integrumunder Article 138 of the Constitution and not to an application underArticle 140 where a writ of certiorari was sought as in this case.
According to Rule 46 of the Rules of the Supreme Court, everyapplication to the Court of Appeal under Articles 138,140 and 141 of theConstitution shall be accompanied by originals of documents material tothe case or duly certified copies thereof, in the form of exhibits. Two setsof copies of proceedings in the Court of First Instance, tribunal or otherinstitution had to be annexed to an application under Article 138 of theConstitution. It is therefore clear that an application under Articles 140and 141 of the Constitution shall be accompanied by a duly certified copyof the proceedings in the Court of First Instance, tribunal or otherinstitution if only this copy is material to the case and not otherwise, butin the case of an application under Article 138 of the Constitution theapplication shall be accompanied by two sets of copies of proceedings inthe Court of First Instance, tribunal or other institution and that too “somuch of the record as would be necessary to understand the order soughtto be revised and to place it in its proper context.
In the case of Ceylon Insurance Co, Ltd., v. Dharmadasa and Others
, the case of S. C. Fernando v. N. A. Navararne and others (2) and thecase of State Graphite Corporation v. Fernando (3) Rule 46 of the Rulesof the Supreme Court has been construed as being applicable to writ ap-plications.
In the case of Navaratnasingam v. Arumugam (4) Rasheed AH v.Mohamed Ali (5) affirmed by the Supreme Court, Rule 46 has alwaysbeen construed as mandatory and non-compliance is fatal.
The Petitioner has not adduced any reason as to why there has beennon-compliance with Rule 46 which would fall within the limited exceptionsjudicially recognised.
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For the foregoing reasons the preliminary objection is upheld and thePetitioner's application for a Mandate in the nature of a Writ of Certioraridated 16.05.1985 is dismissed with costs.
BROWN AND CO. LTD AND OTHERS v. RATNAYAKE AND OTHERS