CEYLON PAPER SACKS LTD(Case No 2)
COURT OF APPEALUDALAGAMA. J.
C. COLOMBO 5366/SPLMAY 31th. 2001.
JUNE 7th. 2000.
Civil Procedure Code ■ S. 377(a) (b), 383(1), 753. 754(1) – Leave toAppeal – Dismissed – Does Revision Lie ? – Exceptional circumstances- Delay – Summary procedure – Intention – Constitution Art. 138. 145
Order Nisi in pursuance of S. 377 was issued to take effect in the eventthe Petitioner not showing cause on a day appointed for that purpose. Onthis day, the Petitioner was absent and unrepresented and court made theOrder Nisi absolute.
Thereafter the Petitioner made an application to have his default purgedbut when the inquiry was taken up the Petitioner was absent, the Courtdismissed his application. The second application to purge his defaultwas also dismissed. The Petitioner thereafter appealed against the finalOrder.
When the Respondent made an application for execution of the decreepending appeal, the Petitioner moved by way of Leave to Appeal. Thisapplication was dismissed for non compliance with the Rules of theSupreme Court.*
Thereafter the Petitioner moved in Revision.
(i) It becomes apparent that the Petitioner has claimed the same reliefs,which he has claimed in his leave to appeal application. The Petitioneris trying to achieve in this application what he could not achieve in hisLeave to Appeal application in a devious manner after a lapse of nearlytwo years.
(il) No exceptional circumstances are disclosed why his application forrevisionary relief should be entertained after the lapse of nearly twoyears.
* 2001 -3 SLR 1
Caderamanpulle u. Ceylon Paper Sacks Ltd.
(Hi) His callous disregard and disobedience of the Orders of the Court isclearly evident from the fact that he failed to appear in Court on bothof ocasions.
The existence of exceptional circumstances is a pre condition for theexercise of the powers of Revision.
Unlike in an ordinary regular action S. 377 casts a burden on thedefendant to show sufficient cause against the Order Nisi and if hefails to do so he must face the consequences.
Summary procedure has been designed with a view to expeditiousand quick disposal of action. Therefore a Defendant in a summaryprocedure action is expected to act without delay, if he is to obtainrelief from Court.
APPLICATION in Revision from the order of the learned District Judge.
Cases referred to :
Perera v. Agtdahamy – 48 NLR 87
Marimuttu v. Sivapakyam – 1986 1 CALR 264
Rustum u. Hapangama Co. Ltd – 1978/79 – 2 SLR 225 – 1978/79/80- 1 SLR 353
Thilagaratnam v. Edlrisinghe – 1982 – 1 SLR 56
Iynul Kareeza v. Jayaslnghe – 1986 – 1 CALR 109
Hotel Galaxy (Put) Ltd. v. Mercantile Hotel Management Ltd. -1987 – 1 SLR 5
Vanik Incorporation Ltd. v. Jayasekera – 1997 2 SLR 365
Wijesinghe v. Thamaratnam ■ Sri Skantha Law Reports Vol. 12. p.47.
Rasheed All u. Mohamed Alt – 1981 – 2 SLR 29
Sithambaram Subramaniam v. Ceylon Development EngineeringCo. Ltd.. – SC 227/76 – at 3
Ms. Strimavo Bandaranatke u. Times of Ceylon Ltd., – 1995 1 SLR22
Beebe v. Mohamed (1969) 68 NLR 36 at 38
Sabapathy v. Dunlop – (1935) 37 NLR 113 .
Kanagasabai v. Ktrupamoorthy 62 NLR 54
Nlhal Fernando with Rajendra Jayaslnghe for Petitioner.
Wijedasa Rajapakse P. C., with G. G. Arulpragasam and Kapila
Llyanagamage for Respondent.
Sri Lanka Law Reports
(20011 3 Sri L.R.
June 29, 2001.
NANAYAKKARA, J.The petitioner – respondent instituted action (5386/8 PC)in the District Court of Colombo on the 20Ul July 1999 by wayof summary procedure. In terms of the Provisions of theRegistration of Documents Ordinance, seeking cancellation ofcertain caveats filed by the respondents – petitioners and alsofor the recovery of a sum of Rupees One hundred million asdamages together with continuing damages of Rupees onemillion per annum.
Thereafter the learned District Judge acting in pursuanceof section 377 of the Civil Procedure Code had issued an orderNisi which was conditioned to take effect in the event of thepetitioner not showing cause on a day appointed for thatpurpose.
When on the appointed date the case was called in opencourt, as the petitioner was not present nor represented, courthad in terms of section 383( 1) of the Civil Procedure Code madethe order Nisi absolute.
Subsequently the petitioner had made an application tohave his default purged, and when the inquiry in respect ofthis application was taken up as petitioner had not beenpresent, the court dismissed his application. Thereafterpetitioner had made another attempt to purge his default whichalso proved unsuccessful and the petitioner thereafter had filedan appeal against the final order of the learned District Judgeand that appeal is still pending in this court.
Thereafter the respondent had applied for execution of thedecree pending appeal under section 763 of the Civil ProcedureCode.
The petitioner then made an attempt by way of leave toappeal application No. 136/2000 dated 9th May 2001 to setaside the order of the learned District Judge and to obtain
Caderamanpulle v. Ceylon Paper Sacks Ltd.
interim relief in the form of a stay of execution of writ. Thisapplication of the petitioner was dismissed by this court on22. 05. 2001 for noncompliance with the Rules of the SupremeCourt. Having failed in all his attempts the petitioner thereafterhad filed this revisionary application dated 25. 05. 2001praying for the same reliefs that the petitioner had claimed inhis leave to appeal application.
When this matter was taken up for inquiry on the 31th May2001, the respondent’s counsel raised some preliminaryobjections in regard to the maintainability of this action andprayed that the application be dismissed in limine. Counselalso submitted that the petitioner should not be permitted tocanvass the same issues which he canvassed in his leave toappeal application by invoking the revisionary jurisdiction, asthe petitioner had also preferred an appeal against the judgmentof the District Court and the said appeal is still pending in thiscourt. The petitioner should not be permitted to canvass themerits and demerits by way of revision at this stage when afinal appeal is pending in this court. Arguing further, learnedcounsel submitted the petitioner by this revisionary applicationis seeking to set aside same orders made by the learned DistrictJudge nearly two years ago and the inordinate delay has notbeen explained by the petitioner. Counsel has made referenceto the following cases in support of his argument.
Perera v. Agidahamy111,
Marimuttu v. Slvapakyan121,
Rustom v. Hapangama and Co. Ltd.,131Thilangaratnam u. Edirtsinghe141, 1Iynul Kareeza v. Jayasinghe151,
Hotel Galaxy (Put) Ltd. v. Mercantile Hotel ManagementLtd.'61.
Vanik Incorporation Ltd. v. Jayasekera171.
Wljeslnghe v. Thamaratnam181
Sri Lanka Law Reports
12001} 3 Sri L.R.
Learned counsel for the petitioner in reply to therespondent’s preliminary objections argued that the Court ofAppeal has power to reverse or vary any order of a lower courtwhether an appeal lies or not, whether an appeal has beenpreferred or not. He also submitted that the powers of revisionconferred on this court under Article 138 and 145 of theConstitution and section 753 of the Civil Procedure Code arevery wide, and revisionary powers of the court are not limited tocases-in which appeal has been taken, but also extends tosituation where appeal has not been taken, but also extends tosituations where appeals are pending against the final ordersmade by lower courts. In support of counsel's argument theattention of this court has been drawn to the following cases.-
Rasheed All v. Mohammed Alt19’. SithambaramSubramaiam v. Ceylon Development EngineeringCompany Limited1101, S. C. Application at 3. Mrs. SirimavoBandaranaike v. Times of Ceylon Limited11",
Beebee v. Mohamed1121,
Sabapathy v. Dunlop1131,
At this stage it is important to consider submissions andrelevant authorities cited before us by counsel on both side.Learned counsel for both the petitioner and the respondenthave drawn our attention to a number of authorities in whichthis extraordinary powers of revision have been exercised bythis court in support of their arguments. When the decidedcases cited before us are carefully examined, it becomes evidentin almost all the cases cited, that powers of revision have beenexercised only in a limited category of situations. The existenceof exceptional circumstances is a precondition for the exerciseof the powers of revision and the absence of exceptionalcircumstances in any given situation results in refusal ofremedies. It is evident that revisionary powers being adiscretionary remedy, the court has exercised that rightwhere there are exceptional circumstances warranting theintervention of court, as far as the facts of the instant case are
Caderamanpulle v. Ceylon Paper Sacks Ltd.
concerned, the petitioner has not shown such exceptionalcircumstances to warrant the intervention of this court. Whenthe petitioner in this case was served with order Nisi, and wasasked to show cause why order Nisi should not be madeabsolute, he not only defaulted to appear in court on theappointed date, but also defaulted to appear subsequently atthe inquiry held to purge his default, consequent to his ownapplication.
When the reliefs claimed by the petitioner in this applicationare considered, it becomes apparent that the petitioner hasclaimed the same reliefs which he has claimed in his leave toappeal application. In other words, petitioner in trying to achievein this application what he could not achieve in his leave toappeal application, in a devious manner, after a lapse of nearlytwo years from the original order delivered by the learnedDistrict Judge. This inordinate delay has not been explainedaway by the petitioner to the satisfaction of this court. Moreoverthe petitioner has not disclosed exceptional circumstances whyhis application for revisionary relied should be entertained bythis court after a lapse of nearly two years from the originalDistrict Court order.
The petitioner has also not sufficiently explained away hisabsence from court, but merely states that he became aware ofthe order Nisi later without disclosing his source of information.His callous disregard and disobedience of the orders of thecourt is clearly evident from the fact that he failed to appear incourt on both occasions.
Learned Counsel for the petitioner's argument that theaffidavit of the Process Server is false and should not be reliedupon cannot be accepted as it is prima facie evidence of thefact that summons was duly served and there is a presumptionof due service of summons. Accordingly an obligation is cast onthe petitioner to prove the non service of summons, whichobligation he has failed to perform.
The petitioner himself admits that he was not able to bepresent in time when his application to purge his default
Sri Lanka Law Reports
12001) 3 Sri L.R.
was taken up for inquiry on the 28th October 1999. If thepetitioner was unable to be present on time, he must face theconsequences of his default. In this regard case of Kanagasabalv. Kirupamoorthy(Supra), will be relevant, wherein it was heldin an application of a summary procedure, the petitioner whofails to appear in person as required by the interlocutory orderserved on him under section 377 (b) of the Civil ProcedureCode, must suffer the consequences of his non appearance.Although this case deals with an interlocutory order made undersection 377(b) of the Civil Procedure Code, the principle andthe reasoning given in this case will be equally applicable tosection 377 (a) of the Code. Unlike in an ordinary regular actionsection 377 of the Civil Procedure Code casts a burden on thedefendant to show sufficient cause against the order Nisi and ifhe fails to do so he must face the consequences. Summaryprocedure has been designed with a view to expeditious andquick disposal of action. Therefore a defendant in a summaryprocedure action is expected to act without delay, if he to obtainrelief from court.
For the above reasons notice is refused.
UDALAGAMA, J. I agree.