006-SLLR-SLLR-1990-2-CHRISTOPHER-v.-DON-PAUL.pdf
CHRISTOPHER
V.
DON PAUL
COURT OF APPEAL
WIJETUNGA. J. AND WIJEYARATNE, J.,
A. No. 778/89,
M.C. KULIYAPITIYA,
No. 21505,
FEBRUARY 26. 1990.
Revision – Objections of respondent filed out of time – Discretion of Court—Rule 52 ofthe Supreme Court Rides 1978.
Rule 52 of the Supreme Court Rules, 1978 stipulates that where notice is served upon therespondent, he shall file his objections, if any, within two weeks of the service of suchnotice, unless the Court directs otherwise.
The words “unless the court directs otherwise’ in Rule 52 indicate that the Court, in itsdiscretion, can grant the respondent further time for filing his objections. No doubt therespondent should ordinarily move the court for such extension of time and obtain adiscretion. But the Court can in appropriate circumstances grant covering sanction bydirecting that objections tendered beyond the period stipulated by this rule be accepted,which necessarily would depend on the facts and circumstances of each case.
Cases referred to:
Udeshi v. Mather, [1988] 1 Sri L.R. 12
. Nocholas v. Macan Markar Ltd. [1986] 1 Sri L.R. 245.
APPLICATION for Revision of Order made by the Magistrate (Primary Court Judge) ofKuliyapitiya in section 66 proceedings.
Ran Banda Seneviratne for petitioner.
Faiz Musthapa, P.C. for respondent.
Cur.adv.vult.
May 11, 1990.
WIJETUNGA, J.
This is an application for revision of an order made by the Magistrate,Kuliyapitiya, in proceedings under Section 66 of the Primary Courts,Procedure Act. Counsel for the petitioner had supported the applicationin open Court on 16.10.89 and the Court had directed that notice issue onthe respondent, returnable on 3.11.89. It had also granted a Stay Order
in terms of paragraph (A) of the prayer to the petition. Notice had beendespatched on the respondent on 19.10.89 and the case had been calledin open Court on 3.11.89, being the notice returnable date. Although'counsel for the petitioner had been present, the respondent had beenabsent and unrepresented. The Court had thereupon madeorderthatthecase be listed for hearing in due course.
By a motion dated 29.1.90, the Attorney-at-Law for the respondent hadtendered the objections of the respondent together with the documentmarked ‘X‘ which is a certified copy of the Journal Entries of the said casein the Original Court and had moved that the Court be pleased to acceptthe same. That motion further states that Counsel for the petitioner hadagreed that he had no objection to the filing of the said objections. A copyof this motion, together with copies of the respondent's objections and thedocument marked ‘X’ had been sent to the Attorney-at-Law for thepetitioner by registered post.
On 31.1.90 Counsel for the petitioner had written to the Attorney-at-Law for the respondent, with a copy to the Registrar of this Court, statingthat he had received a copy of the objections, but as they are out of timeand as he had not agreed to accept the objections at any time convenientto the Attorney-at-Law for the respondent; he would be objecting to theseVery belated objections'. On 1.2.90 the Attorney-at-Law forthe petitionerhad written to the Registrar of this Court, with copy to the Attorney-at-Lawfor the respondent, stating that the respondent had failed to appear on3.11.89 and had also not filed a motion asking for time to file objectionsand as the objections had been filed on or about 28.1.90, which is out oftime, the objections may be rejected.
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Thereafter, by a motion dated 6.2.90, the Attorney-at-Law for therespondent had set out the reasons forthe delay and had moved that thecourt be pleased to accept the said objections. In that motion it is statedthat the respondent was unable to appear before Court on the noticereturnable date due to the fact that he could not communicate withcounsel in time and that on the same day counsel forthe respondent hadcommunicated with counsel for the petitioner and had informed him thatthe annexures to the petition had not been served and had also soughthis consent for time to file objections. It is further stated that counsel forthe petitioner had handed over the said annexures towards the end ofNovember, 1989 and had agreed to counsel forthe respondent filing his
objections thereafter. Counsel for the respondent had been out of theIsland from 6.12.8S to 25.1.90 and the respondent had tendered theobjections to Court on 29.1.90. He had moved that the matter bementioned before court on 14.2.90 to enable counsel for the respondentto obtain an appropriate order in this regard.
There is no question that the objections have been filed out of time.Rule 52 of the Supreme Court Rules, 1978 states that “where notice isserved upon the respondent, he shall file his objections, if any, within twoweeks of the service of such notice, unless the Court directs otherwise”.As was mentioned eaiiier, the objections had been filed only on 29.1.90,though notice had been despatched on 19.10.89. In the meantime, on3.11.89, the notice returnable date, the Court had directed that the casebe listed for hearing in due course. It is true that the respondent had notobtained the leave of Court by way of a motion asking for further time tofile objections. But, by this motion dated 29.1.90, the Attomey-at-Lawforthe respondent had, whilst tendering the objections together with thedocument marked ‘X’, moved that the court be pleased to accept thesame. In other words, the respondent was seeking the indulgence ofCourt to file these objections though they were out of time and if the Courtwere to accept and admit them, it would in effect be granting therespondent an extension of tithe.
It appears from the letter dated 31.1.90 referred to above that the realcomplaint of counsel for the petitioner too is that there had been a delaybeyond what was in his contemplation when he agreed to accept therespondent’s objections though they were out of time. However, it isrelevant that during this period counsel for the respondent had been outof the Island from 6.12.89 to 25.1.90. This is a circumstance on which therespondent relies to explain the delay.
The words “unless the court directs otherwise” in Rule 52 indicate thatthe court, in its discretion, can grant the respondent further time for filinghis objections. No doubt the respondent should ordinarily move the courtfor such extension of time and obtain a direction. But, in my view, the courtcan in appropriate circumstances grant covering sanction by directingthat objections tendered beyond the period stipulated by this rule beaccepted, which necessarily would depend on the facts and circumstancesof each case.
In Udeshi v . Mather (1) where the petitioner tendered additionalpapers on a motion asking that the Court be pleased to accept the sameand a copy of this motion was sent to the respondent’s Attorney-at-Lawbut he did not object to their acceptance by court and there was nothingto indicate their non-acceptance by court, the Supreme Court has heldthat there has been substantial compliance with Rule 50. That Rule toolays down a time limit but empowers the court to direct otherwise.
In Nicholas v. Macan Markar Ltd. (2) the Supreme Court has held interalia that where the parties fail to comply with the requirements in Rules46 to 58, it is open to the Court, under Rule 59, after hearing the parties,either to direct compliance with the Rules or to dismiss the application.
Taking into account all the circumstances mentioned above and alsothe fact that no prejudice has been caused by this delay to the petitionerwho has been granted a Stay Order until the final determination of thisapplication, I am of the view that this is an appropriate case forthe Courtto exercise its discretion in favour of the respondent, I would, therefore,make order that the objections tendered by the respondent on 29.1.90,together with the document marked ‘X’, be accepted and admitted.
WIJEYARATNE, J. — I agree.
Objections accepted.