v.CEYLON PAPER SACKS LTD(Case No 1)
COURT OF APPEALUDALAGAMA, J.
C. COLOMBO 5386/SPLMAY 11™, 18th , 2001
Writ pending appeal – Allowed – Is the order an Interlocutory Order?Failure to comply with Supreme Court Rules – Certified copies ofdocuments not tendered – Is it fatal? Supreme Court Rules 3(1 )(b) -Revision and Restitutio in integrum.
(1) Application to execute writ pending appeal Is special procedure. It isIncidental to the principle object of the action. The rights of partieshave not been finally disposed of. It is an interlocutory order.
(li) It is manifest that while the compliance of the S. C. Rules is mandatorydiscretion is granted to Court to consider default. In the instant caseno application was forthcoming to consider the party's default.Violation of S. C. Rules is fatal to this application.
APPLICATION for Leave to Appeal from an order of the District Court ofColombo.
Cases referred to :
Attorney-General v. Wilson Silva – CA 18/81
Kiriwanthe and another v. Navaratna and another – 1990 2 SLR 393
Paramanathan v. Kodlthuwakku Aratchl – 1988 – 1 SLR 315
Koralage v. Mohamed – 1988 – 2 SLR 299
C.A.LA. 57/99 – D.C. Matale case No. 223/L
CA.LA. 205/99 – D.C. Kandy case No. 11165/P – CAM 26. 1. 2000
C.A.L.A. 293/2000 -D.C. Colombo 18783/99/L
CA.LA. 88/99 – D.C. Negombo case No. 5603/L
Vivien Perera v. Shanl Perera – C.A.L.A. 335/2000 – D.C. Mt. Lavania729/95/D
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S. Mahenthiran P.C., with Nihal Fernando. Nigel Bartholomeusz andBuddhlka IllangatHaka for Petitioner.
Wljedasa Rajapakse. RC.. with Kaplla Llyanagamage for Respondent.
Cur. adv. vult.
May 22, 2001.
UDALAGAMA, J.The respondent-company filed this action under Chapterxxiv of the Civil Procedure Code in the District Court of Colombobearing number 5386/Spl., seeking a cancellation of certainCaveat alleged to have been filed by the petitioner and fordamages.
The matter been supported on 22. 07. 99 by Counsel forthe respondent-company. Court entered order Nisi and set27. 08. 99 a period of approximately one month to enable thepetitioner to show cause against the said order being madeabsolute. Vide Journal Entry dated 27. 08. 99 it appears thatthe order Nisi had been duly served by the Fiscal on the petitioner.The petitioner not been present and no cause having been shownthe order had been made absolute in accordance with theprovisions of section 333 of the Civil Procedure Code. Althoughthe petitioner denies that process was served on him thereappears to be no reason to reject the report of the Fiscal on theground as alleged by the petitioner to have been a “concoctedreport”. It is apparent from the Journal Entry of 19. 10. 99 thatthe petitioner had moved under section 389 of the CivilProcedure Code to set aside the above order absolute enteredon 27. 08. 99, and further that the court had fixed the matterfor inquiry on 28. 10. 99. The petitioner been absent on thedue date his application to set aside the order of 27. 08. 99 hadbeen rejected. There appears to be no reason for the court tohave acted otherwise.
This order is in appeal.
Pending appeal the respondent had moved to execute writwhich application had been allowed by the learned District
Caderamanpulle v. Ceylon Paper Sacks Ltd.
Judge on 30.04.2001. It is from this order that the petitionerseeks leave to appeal.
When this matter was taken up for argument learnedPresident’s Counsel for the respondent raised two preliminaryobjections to the application of the petitioner. They are namely, (1)that the petitioner had no right of leave to appeal.(2) That dueto the failure on the part of the petitioner to comply with theSupreme Court Rules and forward certified copies of documentshis application be rejected. In respect of the preliminary objectionNo.l, I find that the basis on which the learned President’sCounsel for the respondent states that the petition should bedismissed in limine is that the impugned order is not aninterlocutory order.
Applications to execute writ pending appeal is specialprocedure. It is incidental to the principle object of the action.The rights of parties have not been finally disposed of. Theinterpretation to the word, “order” in section 754(5) of the CivilProcedure Code is self explanatory. In the circumstances thispreliminary objection is rejected.
In respect of objection No. (2) it is conceded that only acertified copy of the impugned order is filed. It is apparent thatthe petitioner had not set out in his petition or in his affidavitany reason for his inability to file the necessary certified copies(if that was the case) or that he would tender them in due course.No attempt to comply with section 759(2) of the Civil ProcedureCode and cure the default had even been pursued.
In the case of Attorney General v. Wilson Silva"1, JusticeGrero dealing with Rule 46 which had a similar requirement towit “the petition shall be accompanied by originals of documentsmaterial to the case or duly certified copies thereto" observedthat the petitioner in that case had not given any reason as to
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why he was not able to submit the originals or certified copiesof the order and the evidence of witnesses and that no attemptwas made to tender them subsequently and proceeded to holdthat there was a violation of the provisions of the Supreme CourtRules which was fatal to the application and upheld thepreliminary objection and dismissed that application.
In Klriwanthe and another v. Nawaratna and another12’.which decision is referred to by the learned President's Counselfor the petitioner as a watershed in judicial thinking, FernandoJ. who considered the matter of compliance of the SupremeCourt Rules (46) held that the weight of authority favours theview that while the Rules must be complied with, and noncompliance does not require or permit an automatic dismissalof the application or appeal of the party in default. His Lordshipfurther held that the reason of impossibility to comply is a matterfalling within the discretion of court to be exercised afterconsidering the nature of the default as well as the excuse orexplanation of such default.
Thus it is manifest that while the compliance of the S.C.,Rules is mandatory, discretion is granted to court to considerdefault.
However, in the instant case no application was forthcomingto consider the party's default. The petitioner has nowhere inthe affidavit stated that due to reasons beyond his control orfor that matter due to any reason that he was prevented fromobtaining the necessary certified copies in time and that theshortfall would be rectified later. For the court to consider thereasonableness of his plea, the plea itself should be made. Inthe absence of an initial plea same cannot be possiblyconsidered. In Paramanathan v. Kodituwakku Aratchi131,Bandaranayake J. Held “that such deficiency can be made goodlater.”
In Koralage v. Mohamed14’, a revision application wasdismissed on both grounds of merit and non compliance of the
S.C. Rules when there was neither subsequent compliance noran explanation for non compliance.
Caderamanpulle o. Ceylon Paper Sacks Ltd.
However, in the instant case, as stated earlier, no reason•whatever had been forthcoming as to non compliance of the
S.C. Rules. It is evident from the record that no attempt to tendercertified copies even after the party was notified of thepreliminary objection had been made. The contention of thelearned President’s Counsel for the petitioner in his writtensubmissions appears to be that the impugned order wasmade on 30. 04. 2001 and that a number of special holidaysintervened and that the petitioner was unable to secure a largenumber of certified copies. But this fact is not stated by thepetitioner in his petition or in his affidavit. He was well entitledto state these facts and expect the indulgence of court to tenderthe copies on a subsequent date in which event the court couldhave used its discretion and in all probability granted relief.But the initial application itself was not made for the court evento consider it. Further this application need necessarily be madein the petition and affidavit of the petitioner to enable therespondent to be notified of such application. Such statementin the motion accompanying the petition and or for that matterin the written submissions would not suffice. As for thesubmission of the learned President’s Counsel for the petitionerthat no judicial dicta stating that in an application for leave toappeal certified copies of proceedings or pleadings need be filed,I would refer learned Counsel to recent decision of this courtwhich clearly contradicts his stance.
In C.A.L.A. 57/9915' where photo copies of originaldocuments were tendered the application for leave was rejected.
In C.A.L.A. 205/9916' Edussuriya J. held as follows:- “It hasbeen decided often by this Court that compliance of Rule 3( 1)is imperative and further in the event of the petitioner not beenable to obtain the copies within the prescribed 14 days periodthat the petitioner should state in his petition and affidavit thathe was unable to obtain such certified copies and he would doso in due course.”
On the petitioner’s default the preliminary objections wereupheld and the application was dismissed.
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Following the above dicta Jayasinghe J. in C.A.L.A.293/2000,7> dismissed an application for revision on the samepreliminary objection.
In C.A.L.A. 88/9981 on a similar preliminary objection ofnon compliance of S.C. Rules 1 had on 01.08. 2000 upheld theobjection and rejected leave.
In Vivien Perera v. Shanl Perera19’ on a similar objection 1had occasion to once again refuse leave to appeal.
More importantly in the matter of an application for SpecialLeave to the Supreme Court in case No. S. C. Spl. L. A. 34/2001leave to appeal against the above said order of this court bearingNo. 205/99 (Supra) was refused and dismissed confirming thejudgment of Justice Edussuriya referred to above.
The weight of authority thus favours the mandatory natureof the S.C. Rules and that they must be complied with althoughthe consequence of non compliance could fall within thediscretion of court to be exercised considering the nature of thedefault together with any explanation. In the instant case theabsence of any plea as to the impossibility in obtaining thenecessary certified copies the need to exercise discretion wouldnot arise. Although the contention of the learned President'sCounsel for the petitioner seems to be that the certified copiesof the impugned order filed would suffice and if and when leaveis granted the court would be possessed with the documentsfiled in the original court, this submission is untenable as evento grant leave this court must necessarily have before it allrelevant pleadings and other documents filed of record in theoriginal court.
As I observed in Vivian Perera v. Shanl Perera referred toabove the impugned order flows from proceedings had in thelower court. Impliedly those proceedings must be filed incompliance with the S.C., Rules. The petitioner has no choiceas it is this court that decides which documents are necessaryfor consideration.
Caderamanpulle v. Ceylon Paper Sacks Ltd.
The learned President’s Counsel for the petitioner alsocontended that provisions in respect of Rule 3( 1 )(b) did notcall for certified copies and that Rule 3( 1 )(b) refers to revisionand Restitutio in Integrum. However, it must be noted that thereis no time limit for revision and Restitutio in Integrum althoughapplications for leave to appeal necessarily had to be filed within14 days. Hence the reason why the court is given a discretion toconsider in appropriate circumstances the non compliance.However, both rules provide for application' to be made “in alike manner”.
In the circumstance I would reject the submission of thelearned President’s Counsel for the petitioner contained in hiswritten submissions that “objections pertaining to certifiedcopies is a baseless objection not warranted by Statute or caselaw and hold that the violation of S.C. Rules is fatal to thisapplication and I would uphold the second preliminary objectionof the respondent and refuse leave to appeal with costs fixed atRs. 10000/-.
However, in view of the provisions of section 763 of the CivilProcedure Code and considering the circumstances of this caseand the need to meet the ends of justice, execution pendingappeal will be panted to the respondent on security fixed atRupees 35 Million in cash or by way of Bank guarantee. Thesaid security to be deposited in the District Court to be given forthe restitution of any property which may be taken in executionand for due performance of the decree of the Court of Appeal.
NANAYAKKARA, J. – I agree.Leave to appeal refused.
Execution pending appeal granted on security fixed at Rupees35 million.