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 2 Sn LR
CEYLINCO TRAVELS LTD.
COURT OF APPEAL.
ABEYWARDENA. J. AND GOONEWARDENA. J.
C.A. APPLICATION No. 93/96.
D C. COLOMBO 33189/S.
JANUARY 28 AND FEBRUARY 2. 1987.
Appeal- Written submissions – Practice – Leave to appeal.
Where leave to appeal was sought from an order of Court permitting writtensubmissions to be filed and refusing costs in connection with the trial of certainpreliminary issues –
A very salutory practice has now developed of enabling written submissions to befiled or on appropriate occasions permitting the Court itself to call for them insubstitution for or as supplementary to oral submissions.
The grant of leave to appeal will depend on the circumstances of each case but thefollowing guidelines can be reduced from the decided cases:
The Court will discourage appeals against incidental decisions when an appealmay effectively be taken against an order disposing of the matter underconsideration at its final stage.
Leave to appeal will not be granted from every incidental order relating to theadmission or rejection of evidence for to do so would be to open the flood gatesto interminable litigation. But if the incidental order goes to the root of the matterand it is both convenient and in the interests of both parties that the correctnessof the order be tested at the earliest possible stage then leave to appeal will begranted.
Another test is, will a decision of the Appellate Tribunal on the incidental orderobviate the necessity of a second trial?
The main consideration is to secure finality in the proceedings without unduedelay or unnecessary expense.
The order being canvassed does not fall within any of the above grounds.
Ceylinco Travels v Gnndlays Bank
Cases referred to:
Wettasinghe v Nimal Weerakody and Others-C. A. Application No. LA 106/81CA Minutes of 8 9 91;  2 SLR 423
Fernando v. Fernando-(1920) 8 CWR 43. 44
Balasubramaniam v. Valliappar Chettiar-(1938) 39 NLR 553. 560
Girantha v. Maria-(1948) 50NLR519. 521
Gunewardena v. De Saram-(1962) 64 NLR 145. 151.
Arumugam v. Thampu-(1912j 15 NLR 253. 255
APPLICATION for leave to appeal from Order of the District Judge of Colombo
Nimal Senanayake. P.C. with Miss A. D. Thelespha for plaintiff-petitionerRomesh de Silva with Palitha Kumarasmghe for defendant-respondent.
Cur. adv. vult.
February 27, 1987.
The plaintiff-petitioner instituted this action against thedefendant-respondent seeking to recover by way of summaryprocedure on liquid claims in accordance with the provisions set out inChapter 53 of the Civil Procedure Code, a sum of Rs. 152,917 withinterest, alleged to be due on a bill of exchange.
Summons in form No. 19 in the First Schedule to the Code havingbeen duly served, the defendant-respondent within the time stated insuch summons sought leave of Court to appear and defend the action.
It would appear that on the 20th of January 1986, when suchapplication was taken up for inquiry, counsel for thedefendant-respondent contended that for certain reasons urged, thecase of the plaintiff-petitioner could not proceed and sought anopportunity to tender written submissions to support such contention.Despite objection to this course taken by opposing counsel whoclaimed that such a contention could not be properly gone intowithout the defendant-respondent first having obtained leave toappear and defend the action, the Court granted an opportunity forsuch written submissions to be tendered. However when the casewas called on 12.2.1986 for that purpose, although suchsubmissions were in fact tendered, by agreement thedefendant-respondent was afforded an opportunity to file answer(Vide J. E. dated 12.2.1986 in document PI). On 5.3.1986 answer
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was filed as had been ordered and on 26.6.1 986 the trial was takenup. Twelve issues suggested were adopted by Court and on themotion of counsel for the defendant-respondent, despite objection bycounsel for plaintiff-petitioner, issues Nos. 7 and 8 were taken up bythe Court for determination as preliminary issues of law in terms ofsection 147 of the Civil Procedure Code. Counsel for thedefendant-respondent thereupon sought permission to tender hissubmissions with respect to his contention upon these issues, inwriting. This too was objected to by counsel for the plaintiff, but theDistrict Judge in permitting such written submissions gave a date fortendering the same on the basis that that was the usual practice inthat Court. An application for costs made by plaintiff's counsel wasrefused. It is these orders permitting written submissions and refusingcosts that constitute the matters complained of by the plaintiff in thisapplication and in respect of which leave to appeal is sought. Noarguments were adduced by plaintiff's counsel at the hearing beforeus as to the District Judge's decision to try those numbered 7 and 8,as preliminary issues. The observation must also be made thatalthough some arguments were directed towards attacking certainearlier steps taken in the case by the Court, having regard to thecompass of the present application it is altogether unnecessary todwell upon them.
Counsel for the petitioner contended that the District Judge wasremiss in permitting written submissions and that this approachcontributed to the laws delays. I take the opposite view in thinking thatthe course adopted is conducive to the expeditious disposal of agreater number of cases. The time spent in listening to oralsubmissions in open Court in one case can well be devoted to securethe accomplishment of something that must perforce be done in openCourt in some other case. I fail to understand how, if a party is contentto make his submissions in writing instead of orally and in fact choosesto do so, the other side which, as here, was not compelled by theCourt to do likewise can be heard to complain, particularly as it hasevery opportunity then of studying the opponent's written submissionsat leisure and thus has the advantage of being able to reply to themwith full preparedness either orally or in writing.
Section 454 of the Administration of Justice Law No. 25 of 1975gave, I think, legislative effect to a practice which earlier sometimesprevailed of making submissions in writing and despite there being no
CACeylinco Travels v. Grindlays Bank (Goonewardena. J)££
provision to the like effect in the present Civil Procedure Code thepractice still continues in quite many cases In my view it can well besaid that a very salutory practice has now developed in the absence ofdirect statutory provision either way of enabling written submissions tobe filed or on appropriate occasions permitting the Court itself to callfor them in substitution for or as supplementary to oral submissions,and this practice, in my view, far from being disturbed by this Courtshould receive its full encouragement. Adopting the contrary viewwould. I think, be a retrogressive step in the context of and against thebackground of the need of the time to minimise the laws delays andsecure the expeditious disposal of cases. The District Judge veryproperly exercised a discretion which I think he had to entertain writtensubmissions and to enable that to be done, in the exercise of hisfurther discretion postponed the further hearing of the case to enablesuch submissions to be filed, a step which clearly then did not entailmulcting the defendant-respondent in costs.
The application for leave to appeal in the circumstances of the casemust therefore fail.
It is appropriate however for the sake of completeness, and perhapsuseful, to refer to the circumstances under which leave to appeal isgenerally granted. One can do no better than quote from the judgmentof Soza, J. in Wettasinghe v. Nimal Weerakody and Others (1), wherehe said thus:
"The attitude of the Courts will no doubt depend on thecircumstances of each case. Yet from the decided cases to whichwe were referred the following guidelines could be deduced:
The Court will discourage appeals against incidentaldecisions when an appeal may effectively be taken against anorder disposing of the matter under consideration at its finalstage (Fernando v. Fernando (2); Batasubramaniam v.Valliappar Chettiar (3). Girantha v. Maria (4); andGunavJardene v. De Saram (5)).
Leave to appeal will not be granted from every incidentalorder relating to the admission or rejection of evidence for todo so would be to open the flood gates to interminablelitigation (Batasubramaniam v. Valliappar Chettiar (supra) (3)at p. 560). But if the incidental order goes to the root of thematter and it is both convenient and in the interests of both
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parties that the correctness ot the order be tested at theearliest possible stage then leave to appeal will be granted(Arumugam v. Thampu (6) and Girantha v. Maria (supra) (4)at p. 521).
Another test is, will a decision of the Appellate Tribunal on theincidental order obviate the necessity of a second trial?(Arumugam v. Thampu (supra) (6) at p.255; Girantha v.Maria (supra) (4) p.521; Gunawardene v. De Saram (supra)(5) p. 152).
The main consideration is to secure finality in the proceedingswithout undue delay or unnecessary expense (Girantha v.Maria (supra) (4) at p. 521)."
In my view the present application does not fall within any of thegrounds so contemplated. The application for leave to appeal isrefused with costs fixed at Rs. 210.
ABEYWARDENE, J.-l agree.
Leave to appeal refused.