CACaderamanpulle and Others vs Caderamanpulle and Others 397
CADERAMANPULLE AND OTHERSVSCADERAMANPULLE AND OTHERSCOURT OF APPEALAMARATUNGA, J ANDBALAPATABENDIJ.,
A. NO. 512/2002
C. COLOMBO 34200fTFEBRUARY 14, 2003.
Court of Appeal (Appellate Procedure) Rules 1990, Rule 3(1 )(a), 3(1 )b – CivilProcedure Code, sections 753, 754(2), 757, 758 and 766 – Amendment Act,No. 38 of 1998- Constitution, Articles 105(3)’, 138, 140, 141 and 143- SupremeCourt Rules of 1978] Rules 46 and 60 – Application for leave to appeal – Rule3(1) of Court of Appeal (Appellate Procedure) Rules of 1990 – Not compliedwith – Failure to annex certified copies – Rule 3(1) – Is it applicable to leave toappeal applications ? – Failure – Has the court power to dismiss the application ?
A preliminary objection was taken that the petitioner has failed to file certifiedcopes of documents (Rule 3(1)) and therefore the leave to appeal applicationshould be rejected.
Held:Rule 3 of the Court of Appeal (Appellate Procedure) Rules 1990 is notapplicable to leave to appeal applications.
Per Amaratunga, J.,
“The reason for the absence of any reference to leave to appealapplications in Rule 46(old) and Rule 3(1) (new) is the existence ofspecific provisions in the Civil Procedure Code, prescribing the mannerin which leave to appeal applications are to be made."
The scope of Rule 3(15) is restricted to the category of applicationssimilar to those set out in Rule 3(1) (a) and (b) and accordingly Rule3(15) is applicable to other applications namely, those applications wherethe respondent has to file a statement of objections. There is no provisionfor the filing of objections to leave to appeal applications under section
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(2005) 1 Sri L. R.
754(2) and under section 757 of the Civil Procedure Code.
There is no requirement under section 757 and section 758 of the Codeto annex any document to an application for leave to appeal except theaffidavit of the petitioner. The Civil Procedure Code (Amendment) Act,No. 38 of 1988 made provision in section 757(4) for the Court of Appealto grant interim relief pending the decision whether leave to appeal shouldbe granted or not. However, subsequent to the amendment of section757(4) the Court of Appeal Rules have not been amended in order tomake the filing of other documents along with a leave to appeal applicationmandatory in situations before granting interim relief.
Court has no power to dismiss a leave to appeal application in limine onthe petitioner’s failure to produce certified copies of documents.
APPLICATION for leave to appeal from an order of the District Court of Colombo
on the preliminary objections raised.
Cases referred to :
Perera vs Perera – (2001) 3 Sri LR 30 (not followed)
Caderamanpulle vs Ceylon Paper Sacks Ltd., – (2001) 3 Sri LR 1 (notfollowed)
Imamdeen vs The People's Bank – CALA 150/97 – CAM 30.06.2000 (notfollowed)
Wiiesinghe vs Metalix Engineering Co. Ltd., – CALA 173/79 – CAM07.03.2001 (not followed)
Daintee vs B. K. William – CALA 338/2000 – CAM 04.10.2001 (not followed)
Navaratnasingham vs Arumugam – (1980) 2 Sri LR 1
Rasheed Ali vs Mohamed Ali – (1981) 2 Sri LR 29
David Appuhamy vs Yassassi Thero – (1987) 1 Sri LR 253
Koralage vs Marikkar – (1988) 2 Sri LR 299
Karunawathie vs Kusumaseelee – (1990) 1 Sri LR 127
Samarasekera vs Mudiyanse – (1990) 1 Sri LR 137
A. G. vs Chandrasena – (1991) 1 Sri LR 85
Keangnam Enterprises vs Abeysinghe – (1994) 2 Sri LR 271
Carolis vs Sugunawathie – 4 Sri Skantha LR 78
Mary Nona vs Francina – (1988) 2 Sri LR 250
Chelliah vs Ponnambalam – 4 Sri Skantha LR 61
Kiriwanthe v. Navaratne – (1990) 1 Sri, L R 1
Brown and Co. v. Ratnayake – (1994) 3 Sri LR 91
John Keells Holdings vs Caldera – (1986) 1 CALR 575
Paramanathan vs Kodithuwakkuaratchi – (1988) 1 Sri LR 315 (CA)
Paramanathan vs Kodithuwakkuarachchi – (1994) 2 Sri LR 284 (SC)
CACaderamanpulle and Others vs Caderamanpulle and Others 399
22. S. S. Magrthild (Owners) vs McIntyre Brothers & Co. – (1920) 3 KB 321
Nihal Fernando with Rajendra Jayasinghe for petitioner.
Wijedasa Rajapakse, P.C., with Rasika Dissanayake for 3rd petitionerrespondent.
October 28, 2003GAMINIAMARATUNGA, J.
This is an application for leave to appeal. The learned counsel for therespondent raised a preliminary objection in limine to this leave to appealapplication on the basis that the.petitioner has not complied with Rule 3(1)of the Court of Appeal (Appellate Procedure) Rules of 1990, by his failureto annex to his petition, duly certified copies of some of the documentstendered along with his application. The learned counsel cited the decisionof this Court in Perera vs Perera(1> in support of his objection. That decisionrelates to the leave to appeal application filed in this Court bearing No.CALA335/2000, D. C. Mount Lavinia 729/95D.
In that case the objection was taken that the petitioner has failed to filecertified copies of documents ; that he has failed to file certain otherdocuments; that he has failed to aver reasons for the failure to file suchdocuments and that he has failed to seek permission of Court to file dulycertified copies of such documents at a later stage. This Court, in itsjudgment dated 6/4/2001 made the.following observation. “This Court onnumerous occasions held that in applications for leave to appeal compliancewith rule 3(1) of the Supreme Court Rules 1990 pertaining to appellateprocedure is mandatory.” (page 31) Having made the above observation,this Court proceeded to dismiss the application with the following words, “Iam compelled to hold that non-compliance with the Supreme Court Rulesis fatal to the application and proceed to sustain the preliminary objectionraised by the defendant-petitioner-respondent and dismiss this applicationwith costs." (page 33 per Udalagama J).
Again in Caderamanpulle vs. Ceylon Paper Sacks Limited™ this Courthas given a similar decision on 22/5/2001 stating that “ I would reject thesubmission of the learned President’s Counsel contained in his writtensubmissions that objection pertaining to certified copies is a baseless
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objection not warranted by statute or case law” and that I “hold that theviolation of SC Rules is fatal to this application and I would uphold the 2nd
preliminary objection of the respondent and refuse leave to appeal"
(per Udalagama J. at page 7)
I have come across three other decisions of this Court, holding that inleave to appeal applications, failure to comply with the Rules relating tothe filing of copies of documents is fatal. In Imamdeen vs. The People’s-Bank131 this Court has refused to grant leave to appeal as the petitionerhas failed to produce necessary documents. In the judgment the rulesreferred to were the Supreme Coud Rules, but I presume that what theCourt meant was the Court of Appeal (Appellate Procedure) Rules of 1990.In Wijesinghe vs. Metalix Engineering Co. Ltd.'^ this Court, following thedecision in Imamdeen vs. The Peoples Bank (supra) upheld an objectionthat the petitioner has failed to produce certified copies of documentsother than the impugned order. Even in this case reference was to madeSupreme Court Rules. In Daintee vs. B. K. William15' this Court has againupheld the objection that the petitioner’s failure to tender certified copiesof documents was fatal to the leave to appeal application. In all five casescited above, the applicable Rule had not been quoted and examined.
The response of the learned counsel for the petitioner to the preliminaryobjection raised in this case was that Rule 3 of the Court of Appeal (AppellateProcedure) Rules of 1990 is not applicable to leave to appeal applicationsmade by a person dissatisfied with any order made by any original court inthe course of any civil action and that the manner of preferring such leaveto appeal application is governed by section 757 of the Civil ProcedureCode read with section 758 of the Code and therefore the said Court ofAppeal Rule is not applicable to the present application and accordinglythe above cases cited are not authority for the same proposition.
As the starting point to consider the argument of the learned Counsel,
I set out below Rule 3(1 )(a) and (b) of the Court of Appeal (AppellateProcedure) Rules of 1990.
Rule 3(1 )(a)
“Every application made to the Court of Appeal for the exercise of
the powers vested in the Court of Appeal by Articles 140 and 141 of the
Constitution shall be by way of petition, together with an affidavit in
CACaderamanpulle and Others vs Caderamanpulle and Others 401
support of the averments therein, and shall be accompanied by theoriginals of documents material to such application (or duly certifiedcopies thereof) in the form of exhibits. Where a petitioner is unable totender any such document, he shall state the reason for such inabilityand seek the leave of the Court to furnish such document later. Wherea petitioner fails to comply with the provisions of this rule, the Courtmay ex mero motu or at the instance of any party dismiss suchapplication.”
Rule 3(1 )(b)
“Every application by way of revision or restitutio in integrum underArticle 138 of the Constitution shall be made in like manner together “with copies of the relevant proceedings (including pleadings anddocuments produced), in the Court of First instance, tribunal or otherinstitution to which the application relates."
A striking feature of both Rules quoted above is the absence of anyreference to leave to appeal applications at all. It appears therefore thatnotwithstanding the decisions referred to above, this is a fit matter to beconsidered again. Before I proceed to examine the submission of thelearned counsel, it is necessary to refer to Rule 3(15) of the Court ofAppeal (Appellate Procedure) Rules of 1990, which reads as follows.
“These rules shall apply, mutatis mutandis, to applications made tothe Court of Appeal under any provision of law other than Article 138,140 and 141 of the Constitution, subject to any direction as may begiven by the Court in any particular case.”
This Rule is similar to Rule 60 of the Supreme Court Rules of 1978.1propose to consider the following questions.
Whether rule 3(1 )(a) and (b) of the Court of Appeal (AppellateProcedure) Rules apply to leave to appeal applications made interms of section 757( 1) of the Civil Procedure Code ?
If the answer to the above question is in the negative, whether suchleave to appeal applications attract the provisions of the said Ruie3(1) (a) and (b) by virtue of the application of the said Rule 3(15).
402Sri Lanka Law Reports(2005) 1 Sri L. R.
I shall now consider the question No. 1 set out above. The precursor tothe present rule 3(1 )(a) and (b) of the Court of Appeal (Appellate Procedure)Rules of 1990 was Rule 46 of the Supreme Court Rules, published in theGovernment Gazette (Extraordinary) No. 9/10 of 8/11/1978 which readsas follows.
Rule 46: "Every application made to the Court of Appeal for the exerciseof the powers vested in the Court of Appeal by Articles 140 and 141 of theConstitution shall be by way of petition and affidavit in support of theaverments set out in the petition and shall be accompanied by originals ofdocuments materiai to the case or duly certified copies thereof, in theform of exhibits. Applications by way of revision or restitution in integrumunder Article 138 of the Constitution shall be made in like manner and beaccompanied by two sets of copies of proceedings in the Court of FirstInstance, tribunal or other institution.”
Rule 46 of the Supreme Court Rules thus referred to three types ofapplications, namely applications for the exercise of the powers vested inthe Court of Appeal by Articles 138, 140 and 141 of the Constitution.Article 140 of the Constitution deals with the power of the Court of Appealto issue writs of certiorari, prohibition, procedendo, mandamus and quowarranto. Article 141 deals with the power of the Court of Appeal to issuewrits of habeas corpus. Article 138 sets out the jurisdiction and the powersof the Court of Appeal in the exercise of its appellate and revisionaryjurisdiction. The appellate jurisdiction of the Court of Appeal is exercisedwhen a party who has a right of appeal conferred on him by law presentsa petition of appeal to the Court of Appeal in accordance with the procedurelaid down for filing the appeal. Revision is a discretionary remedy. No onecan invoke the revisionary jurisdiction of the Court of Appeal as a matter ofright. Any party to an action or a proceeding in any Court of First Instance,tribunal or other institution, whose rights are affected by an error of fact orlaw committed by such Court of First Instance, tribunal or other institutionmay make an application to the Court of Appeal for the correction of errorsof fact or law committed in such action or in such proceedings. Even aperson who is not a party to an action may make a revision application ifhis rights are prejudiced by an order made in any action or a proceeding.
Although, the Constitution (Article 138) and other enactments such asthe Civil Procedure Code (section 753) and the Code of Criminal ProcedureAct (section 364) set out the jurisdiction and the powers of the Court ofAppeal in revision, there is no enactment which sets out the procedure for
QACaderamanpulle and Others vs Caderamanpulle and Others 403
making a revision application. The Supreme Court Rules of 1978 (Rule 46)and the Court of Appeal (Appellate.Rrocedure) Rules, Rule 3(1 )(a) and (b),set out the procedure to be followed in filing a revision application. On theother hand statutes which confer rights of appeal set out the procedure forfiling the appeal and the manner in which the petition of appeal should beprepared. It is therefore significant to note that in Rule 46 and Rule 3(1)there is reference only to ‘applications by way of revision under Article 138of the Constitution.’ In both Rules, there is no reference to applications orpetitions made to the Court of Appeal to invoke its appellate jurisdiction.
Beginning with the case of Navaratnasingham vs. Arumugaml6> there.isa long line of cases decided by the Supreme Court and the Court of Appealholding that, Rule 46 of the Supreme Court Rules of 1978 is mandatory,non-compliance with the Rule is fatal but the Courts have the power inappropriate cases to grant relief notwithstanding the failure of a party tocomply with the mandatory Rule 46.
Since the contention of the learned counsel for the respondent is thatRule 3(1) is applicable to leave to appeal applications, I examined thosereported cases, where Rule 46 was applied, to see whether there arecases in which Courts have held that Rule 46 was applicable to applicationsfor leave to appeal. I set out below those cases and the nature of theapplication considered in each case. The following are the cases whichdealt with revision applications,
Navaratnasingham vs. Arumugam (supra)
Rasheed AH vs. Mohamed Aii(T>
3.. David Appuhamy vs. Yasassi Therom
Koralage vs. Marikkah91
Karunawathie vs. Kusumaseelee,10>
Samarasekara vs. Mudiyansee1"1
A. G. vs. Chandrasena<12i
Keangnam Enterprises vs. Abeysinghe!13)
Carolis vs. Sugunawathie1141
Mary Nona vs. Francina051
Chelliah vs. Ponnambalam(16>
In the following cases Rule 46 was applied in applications for writs.
Kiriwanthe vs Navaratna('T>
Brown and Compnay vs Ratnayake<1B>
404Sri Lanka Law Repons(2005) 1 Sri L. R.
All thirteen cases cited above were not applications for leave to appealand as such they are not authority for the proposition that Rule 46 wasapplicable to applications for leave to appeal.
In John Keels Holdings vs Calderar,9> the plaintiff-respondent obtainedex parte an interim injunction against the defendant-appellant. On theinjunction being served on the defendant-appellant he filed answer andmoved the District Court to vacate the injunction. His application wasrefused. The defendant then filed an application for leave to appeal (CALA11/86) and an application for revision (CA Application No. 101/86) againstthe order of the District Court. In both applications the defendant has notfiled a copy of his answer filed in the District Court. When both applicationswere consolidated and heard together, the learned Queen's Counsel whoappeared for the plaintiff-respondent raised an objection in limine that theapplication in revision should be rejected as the defendant-appellant hasfailed to file a copy of the answer filed in the District Court.
Jameel J. having referred to the case of Rasheed AH ms Mohamed Ali(supra) stressed the mandatory nature of Rule 46 and held that thedefendant’s answer filed in the District Court was a material document inconsidering whether the Court should grant interim relief. The Courtdismissed the revision application for non compliance with Rule 46 butallowed the leave to appeal application and granted leave to appeal. Thereis no specific discussion in the judgment whether Rule 46 was applicableto leave to appeal applications but it is implicit from the order made byCourt that Rule 46 was not applicable to leave to appeal applications.
In the case of Paramanathan vs. Kodituwakkuarachchi1201 the facts weresimilar. The defendant-petitioner filed an application in revision (C.A.Application 383/87) and an application for leave to appeal (CAI_A 48/87)against the order of the District Court allowing execution of the writ pendingappeal. Both applications were consolidated and heard together. The Orderof the learned District Judge allowing execution pending appeal was notannexed to both applications. The position of the petitioner was that theorder made by the learned judge on 24/3/87 was not available in the recordwhen he obtained a certified copy of the proceedings on 25/3/87. Therevision application had been filed on 25/3/87 and the leave to appealapplication was filed on 31/3/87. When the respondent filed his statementof objections a copy of the impugned order was filed with it. The Court ofAppeal refused the revision application on the basis that the petitioner hasfailed to comply with Rule 46.
CACaderamanpulle and Others vs Caderamanpulle and Others 405
The learned counsel for the petitioner relying on the decision in JohnKeels Holdings vs. Caldera (supra) submitted that there was no rule requiringthe filing of the document in a leave to appeal application and to enforcesuch a course of conduct there must be (a) a Rule, and (b) it should bemandatory and not merely directory. He submitted that there was no suchrule governing leave to appeal applications and as such the leave to appealapplication was not liable to be rejected. Rejection could take place onlywhen there was failure to comply with a mandatory Rule, but section757(1) of the Civil Procedure Code contained no such Rule. [(1988) 1 SLR315 at 328],
Tissa Bandaranayake, J. in the course of his judgment said as follows.
“The Rule making power is exercised by the Supreme Court. VideArticle 136 of the Constitution. There is no Rule with regard to leave toappeal applications that the proceedings and documents must besupplied when leave is sought, "(page 328). emphasis added) Havingmade the above observation he went on to say “There is no necessityfor any Rule to govern the situation as the procedural provisions alreadyprovide for it, understood as they should be with common sense andreason! These steps are mandatory in nature. The Court has no discretionto waive them. Failure to comply with those steps necessarily deprivethe applicant of seeking .further relief.” (page 332 emphasis added)Bandaranayake J. then held that even the leave to appeal applicationtoo failed in limine.
This is the solitary case where it has been held that Rule 46 wasapplicable to leave to appeal applications. It is to be noted here withutmost respect, that Bandaranayake J. has not specified the “proceduralprovisions" which specify that a petitioner who makes a leave to appealapplication should annex documents to his petition.
In appeal this decision was set aside by the Supreme Court. VideParamanathan vs Kodituwakkuarachchi<21>. The Supreme Court has notdealt with the question whether Rule 46 was applicable to leave to appealapplications. On the facts the Supreme Court was satisfied that when thepetitioner obtained a certified copy of the proceedings from the DistrictCourt on 25/3/87, reasons for the order made by the judge on 24/3/87were not available in the record and that there was no evidence as to whenthe reasons were filed of record. In those circumstances the Supreme
406Sri Lanka Law Reports(2005) 1 Sri L. R.
Court held that to hold that there was non compliance with Rule 46 wouldbe to ignore the principle 'lex non cogit ad impossibilia'. (The law does notcompel the performance of what is impossible). Further the Supreme Courtheld that at the time of hearing, a copy of the impugned order submittedby the respondent along with his statement of objections was before Courtof Appeal and that this was sufficient for the purpose. The Supreme Courtaccordingly set aside the decision of the Court of Appeal and directed theCourt of Appeal to decide the revision and leave to appeal applications onmerits.
I shall now turn to the 'procedural provisions’ referred to by TissaBandaranayake. J. Section 757 of the Civil Procedure Code sets out theprocedure for filing an application for leave to appeal. Such applicationmust be made :
(а)by duly stamped petition, containing the particulars required bysection 758, signed by the aggrieved party or his attorney-at-law,and
(б)shall be supported by affidavit; and
shall be presented to the Court of Appeal within the period of 14days prescribed in section 757(1).
When a leave to appeal application is presented in the manner set outin section 757(1), the section says that "the Court of Appeal shall receiveit and deal with it as hereinafter provided …" Section 758 of the CivilProcedure Code specifies the particulars to be set out in an application forleave to appeal (as well as in a petition of appeal). Sub paragraph (e) ofsection 758 is as follows. The petition of appeal shall contain :
“a plain and concise statement of the grounds of objection to thejudgment, decree or order appealed against such statement to beset forth in duly numbered paragraphs."
It is significant to note that in sections 757 and 758 of the Civil ProcedureCode, there is no requirement that copies of documents must be annexed.On the other hand section 776 of the Civil Procedure Code which providesfor applications for leave to appeal notwithstanding lapse of time, there isa requirement that the "petition shall be accompanied by a certified copyof the decree or the order appealed from and of the judgment on which it isbased, as well as by such affidavits of facts and other materials as mayconstitute prime facie evidence that the conditions precedent to the petition
CACaderamanpulle and Others vs Caderamanpulle and Others 407
of appeal being entertained which are prescribed in the last section arefulfilled."
When a leave to appeal application is fifed there is no provision to file astatement of objections. When the application comes up before this Courtin the first instance inter partes, the task of the Court of Appeal is toconsider whether the question of law set out in the application for leave toappeal is a matter fit to be considered by the Court of Appeal by way of aninterlocutory appeal. If the Court grants leave to appeal the Registrar shallinform the original Court that leave has been granted and the original Courtshall then forward to the Court of Appeal all the papers and proceedings inthe case, relevant to the matter in issue [section 757(5)]. Thus when leaveis granted the relevant parts of the entire record of the original Court arebefore the Court of Appeal and this obviates the necessity to file copies ofdocuments at the time when the appeal is heard. In considering anapplication for leave to appeal notwithstanding lapse of time the Court’stask is wider. In such a situation the Court has to consider whether thepetitioner has a good ground of appeal. For this purpose the Court has togo beyond the grounds of appeal set out in the petition and satisfy itself. that good grounds of appeal in fact exist. For this purpose the Court mayneed the judgment and even the proceedings including the evidence. Thisis the reason- for specifying the documents to be produced along with anapplication for leave to appeal notwithstanding lapse of time.
As I have already pointed out Rule 3(1 )(a) and (b) of the Court of Appeal(Appellate Procedure) Rules and Rule 46 of the Supreme Court Rules of1978 refer only to applications made to the Court of Appeal for writs andfor applications by way of revision or restitutio in integrum. Both Rules donot refer to applications made to the Court of Appeal to invoke the appellatejurisdiction of the Court of Appeal under Article 138 of the Constitution. Atthe time the Constitution was promulgated in 1978, the Civil ProcedureCode already had provisions prescribing the procedure for making leave toappeal applications and there was therefore no necessity to prescribeRules setting out the manner of filing leave to appeal applications. Ruleswere made by the Supreme Court in the exercise of the powers vested inthe Supreme Court by Article 136 of the Constitution and were publishedas ‘Writs and Examination of Records Rules” (Part IV of the SupremeCourt Rules of 1978) Rule 46 was a Rule to be found in those Rules.
What is the significance of the omission to have any reference in Rule46 to applications for leave to appeal made to the Court of Appeal ? The
-JOSSri Lanka Lavj Repons(2005) 1 Sri L. R.
maxim ‘Inclusio unius exclusio ulterius’ which means inclusion of oneexcludes the other is an auxiliary rule of construction adopted for thepurpose of ascertaining the intention of the law giver or the rule maker, “itis to be applied only when in the natural association of ideas the contrastbetween what is provided and what is left out leads to an inference that thelatter was intended to be excluded." Bindra Interpretation of Statues. 8thEd. p. 154. As I have already stated the reason for the absence of anyreference to leave to appeal applications in Rule 46 and Rule 3(1) is theexistence of specific provisions in the Civil Procedure Code prescribingthe manner in which leave to appeal applications are to be made. If thereis any doubt about this, the application of the auxiliary rule of constructionexpressed in the maxim ‘Inclusio unius exclusio alterius’ puts the matterbeyond doubt and the conclusion is that Rule 3(1) of the Court of Appeal(Appellate Procedure) Rules of 1990 is, and Rule 46 of the Supreme Courtrules of 1978 was, not applicable to applications for leave to appeal.
In view of the above finding, I now turn to the 2nd question I have set out,namely whether leave to appeal applications attract the provisions of thesaid Rule 3(1 )(a) and (b) by virtue of the application of Rule 3(15) of thesaid Rules ? For convenience of reference, I set out again the said Rule3(15) which reads as follows.
“These rules shall apply, mutatis mutandis, to applications made tothe Court of Appeal under any provision of law other than Articles 138,140 and 141 of the Constitution, subject to any direction as may begiven by the court in any particular case.”
Is there any special feature in applications made under Articles 138,140 and 141 of the Constitution to bring them within one category in viewof such special feature ? The answer is in the affirmative. If a respondent toany of those applications wishes to oppose the application, he is requiredto file his statement of objections. It is imperative. Rule 3(4)(b), Rule 3(5),(6) and (7) specifically refer to statements of objections to be filed in respectof applications set out in Rule 3(1 )(a) and (b). This special feature, i.e. thenecessity to file a statement of objections if the respondent wishes toresists the application, brings all those applications within one category.Are there other applications made to the Court of Appeal which do not fallwithin the category of applications to which a statement of objections hasto be filed ? There are such applications. The obvious example is the leave
CACaderamanpulle and Others vs Caderamanpulle and Others 409
to appeal application made in terms of section 754(2) and under section757 of the Civil Procedure Code. There is no provision for the filing ofobjections to a leave to appeal application. In such applications, the Courtholds an inquiry when both parties appear before Court and decides whetherthe Court should grant leave to appeal or not. The question therefore is,whether Rule 3(15) applies to all applications made to the Court of Appealor whether the said Rule is applicable only to those applications.which fallwithin the category of applications where the filing of a statement ofobjections is necessary and imperative ?
The rule of construction ‘ejusdem generis' means that where generalwords follow particular and specific words of the same nature, the generalwords must be confined to things of the same kind as those specified. Inorder to apply this rule it is necessary that the specific words must form adistinct category. The 'test is whether the specified things which precedethe general words can be placed under some common category.” S. S.Magnhild (owners) vs. Me. Intyre Brothers and Co.<21>. Applying this rule ofconstruction, I hold that the scope of Rule 3(i 5) is restricted to the categoryof applications similar to those set out in Rule 31 (a) and (b) and accordinglythe said Rule 3(15) is applicable to other applications belonging to thesame category namely those applications where the respondent has tofile a statement of objections in order to resist 3(1 )(a) the application. Thefollowing are some examples of such applications.
Applications under Article 143 of the Constitution.
Applications under section 46 of the Judicature Act, No. 2 of 1978for the transfer of cases.
Applications for bail in cases where original jurisdiction to grantbail is vested in the Court of Appeal. Eg. Offensive Weapons Act.
Applications by a party to invoke the powers of the Court of Appealunder Article 105(3) of the Constitution to punish for contempt ofcourt.
The above are few examples but the list is not exhaustive. For thereasons set out above I hold that even under Rule 3(15) of the Court ofAppeal (Appellate Procedure) Rules of 1990, leave to appeal applicationscannot be made subject to Rule 3(1 )(a) and (b) of the said Court of AppealRules.
410Sri Lanka Lav,' Repons(2005) ! Sri L. R.
For those reasons set out above, I am not persuaded to follow thedecisions I have referred to at the beginning of this judgment, namely thedecision in Perera vs. Perera (supra) Caderamanpulle vs. Ceylon PaperSacks Ltd. (supra); Imamdeen vs. The People's Bank (supra); Wijesinghevs. MetalixEngineering Co. Ltd.(supra) andDaintee vs B. K. WiUiam(supra).
I therefore hold that Rule 3(1 )(a) and (b) of the Court of Appeal (AppellateProcedure) Rules of 1990 are not applicable to leave to appeal applicationsfiled in terms of section 757(1) of the Civil Procedure Code. InconsequenceI uphold the submission of the learned counsel for the petitioner that Rule3(1) (a) and (b) of the Court of Appeal (Appellate Procedure) Rules are notapplicable to leave to appeal applications and overrule the preliminaryobjection raised by the learned President’s Counsel for the respondentsthat the petitioners’ failure to produce material documents is fatal to thisapplication.
Before I conclude this order, I wish to add the following observations. Atthe time the Court of Appeal (Appellate Procedure) Rules of 1990 werepromulgated, the Court of Appeal did not have the power of grant interimrelief by way of a stay order in a leave to appeal application before itgranted leave to appeal. The proceedings in the original Court were stayedonly after leave to appeal was granted by the Court of Appeal. It wastherefore the practice to file a revision application along with the leave toappeal application when the petitioner wished to obtain relief by way of astay order until the Court granted leave to appeal. Such revision applicationhad to be made in accordance with Rule 3(1) (b) of the Court of AppealRules. With the revision application the Court had before it all necessarydocuments.
The Civil Procedure Code (Amendment) Act, No. 38 of 1998 madeprovision in section 757(4) for the Court of Appeal to grant interim reliefpending the decision whether leave to appeal should be granted or not. Inview of this amendment now the Court of Appeal has the power to grantinterim relief on a prayer made for that purpose and included in the leave toappeal application. [Section 757(2)]. In order to decide whether interimrelief should be granted or not it is very often necessary to peruse theimpugned order, written or oral submissions made to the original Court,and sometimes, copies of proceedings. But as the matter now stands,there is no requirement under sections 757 and 758 of the Civil ProcedureCode to annex any documents to an application for leave to appeal except
CAKanthilatha and Another vs Wimalaratne and Others411
the affidavit of the petitioner. Subsequent to the amendment of section757(4) in 1998, Court of Appeal Rules have not been amended in order tomake the filing of other documents along with a leave to appeal applicationmandatory in situations where interim relief is sought by the same leave toappeal application. This is a lacuna in the law. As the rules presentlystand the Court has no power to dismiss a leave to appeal application onthe basis that necessary documents have not been filed. If the Court is ofopinion that a party seeking interim relief should have filed documentsnecessary for the Court to peruse before granting interim relief, the Court• may either refuse to grant interim relief or may in its discretion direct thepetitioner to furnish copies of the necessary documents. But the courthas no power to dismiss a leave to appeal application in limine on thepetitioner’s failure to produce copies of documents. This application is tobe fixed for inquiry to decide whether leave to appeal should be granated.
BALAPATABENDI, J. -1 agree,
Preliminary objection overruled; matter set down for inquiry.
CADERAMANPULLE AND OTHERS vs. CADERAMANPULLE AND OTHERS