043-SLLR-SLLR-2005-V-3-DE-SILVA-vs.-WETTIMUNY.pdf
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De Silva vs. Wettimuny
251
DE SILVAVS.
WETTIMUNY
COURT OF APPEAL.
SOMAWANSA, J.(P/CA).
WIMALACHANDRA, J.
CALA 215/2004.
DC BALAPITIYA PROBATE/24.
JULY 6, 2005.
Court of Appeal (Appellate Procedure Rules 1990 3(a) – 3(2) – Leave to appealapplication – Non compliance with Rule 3(d) -Is it fatal? – Civil ProcedureCode, sections 754(2), 757, 758 and 159 – Applicablility of the Rules to leaveto appeal applications.
A preliminary objection was taken that, the petitioner had not averred in theapplication for leave to appeal that he has not previously invoked the jurisdictionof the Court of Appeal in respect of the subject matter of the application andmoved that the application be dismissed in limine.
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(2005) 3 Sri L. R.
HELD:
The provisions contained in the Court of Appeal (Appellate Proce-dure) Rules 1990 has no application to leave to appeal applications;
The procedure in instituting an application for leave to appeal is gov-erned by the provisions of the Civil Procedure Code and not by theRules as laid down in the Court of Appeal (Appellate Procedure)Rules 1990;
Leave to appeal is a statutory remedy. As such when exercising thestatutory remedy there is no necessity to insert an averment in thepetition that the petitioner had not invoked the jurisdiction of the Courtof Appeal before.
APPLICATION for leave to appeal from an order of the District Court of Balapitiya-
on a preliminary objection
Cases referred to :
J.M. C. CaderamanpHlai vs. A. M.J. M.V. Caderampillai 2005 1 Sri L. R.
Rohan Sahabandu with Gamini Hettiarachchi for respondent -petitioner,
Navin Marapana with T. Palliyaguru for petitioner-respondent.
Cur.adv.vult.
October 7, 2005
ANDREW SOMAWANSA, J.(P/C A)When this application for leave to appeal was taken up for inquiry counselfor the petitioner-respondent took up a preliminary objection, in that in asmuch as the respondent-petitioner has not averred in the petition that hehas not previously invoked the jurisdiction of this Court in respect of thesubject matter of the present application, the respondent-petitioner’sapplication should be dismissed in limine. It is to be seen that the objectionis based on non-compliance of the provisions contained in Rule 3(d) of theCourt of Appeal Appellate Procedure Rules 1990.
Both counsel agreed to tender written submissions on this preliminaryobjection and accordingly both counsel have tendered their writtensubmissions.
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De Silva vs. Wettimuny (Andrew Somawansa, J.(P/CA))
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Having considered their respective submissions, the relevant provisionscontained in the Civil Procedure Code as well as the provisions stated inRule 3(2) as well as other provisions contained in the aforesaid Court ofAppeal (Appellate Procedure) Rules 1990,1 do not think that there is anymerit in the aforesaid objections taken by the petitioner-respondent, forthe simple reason that the provisions contained in the Court of Appeal(Appellate Procedure) Rules 1990 has no application to the instantapplication which is a leave to appeal application.
It is to be seen that the order canvassed in this application is anincidental order falling under the purview of section 754(2) of the CivilProcedure Code. The events which culminated in the learned District Judgemaking the aforesaid order is as follows: On 10.06.2004 when further inquirywas taken up and as the respondent-petitioner was ill his registered Attorney-at-Law had tendered a medical certificate and moved fora postponement.The petitioner-respondent moved for costs in a sum of Rs. 50,000 toequate his expenses. Though the respondent-petitioner’s Attorney-at-lawsuggested to pay Rs. 15,000 as costs for the day the learned trial Judgemade order directing the payment. The order is marked R1.
As to which application the learned District Judge accepted is not clear,viz. whether the payment of Rs. 50,000 or whether it should be restrictedto Rs. 15,000. In any event, the so called medical certificate issued by Dr.T. Wickramasinghe has not been challenged.
Be that as it may, it is a matter that needs our consideration when thisapplication is taken up for argument. For at the moment we are onlyconcerned with the objection taken for the maintainability of this application.
Let us now consider the relevant provisions contained in the CivilProcedure Code that deals with leave to appeal applications. The mannerof making an application seeking leave to appeal is laid down in sections754(2), 757, 758 and 759 of the Civil Procedure Code. The relevantparticulars that should be contained in a petition for leave to appeal isstated in section 758 of the Civil Procedure Code and in terms of section759, if the petition is not drawn up in the manner as set out in section 758the petition could be either rejected or returned to the petitioner for amendingthe same.
The relevant procedural provisions read as follows:
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“757(1) Every application for leave to appeal against an order of courtmade in the course of any civil action, proceeding or matter shall be madeby petition duly stamped, addressed to the Court of Appeal and signed bythe party aggrieved or his registered attorney. Such petition shall besupported by affidavit, and shall contain the particulars required by section758, and shall be presented to the Court of Appeal by the party appellantor his registered attorney within a period of fourteen days from the datewhen the order appealed against was pronounced, exclusive of the day ofthat date itself, and of the day when the application is presented and ofSundays and public holidays, and the Court of Appeal shall receive it anddeal with it as hereinafter provided and if such conditions are not fulfilledthe Court of Appeal shall reject it. The appellant shall along with suchpetition, tender as many copies as may be required for service on therespondents.”
"758(1) The petition of appeal shall be distinctly written upon good andsuitable paper, and shall contain the following particulars:
the name of the court in which the case is pending;
the names of the parties to the action;
the names of the appellant and of the respondent;
the address of the Court of Appeal;
a plain and concise statement of the grounds of objection to thejudgment, decree, or order appealed against, such statement tobe set forth in duly numbered paragraphs:
a demand of the form of relief claimed.
759(1) If the petition of appeal is not drawn up in the manner in the lastpreceding section prescribed, it may be rejected, or be returned to theappellant for the purpose of being amended, within a time to be fixed bythe court; or be amended then and there. When the court rejects underthis section any petition of appeal, it shall record the reasons for suchrejection. And when any petition of appeal is amended under this section,the Judge, or such officer as he shall appoint in that behalf, shall attest theamendment by his signature.
In the case of any mistake, omission or defect on the part of anyappellant in complying with the provisions of the foregoing sections, (otherthan a provision specifying the period within which any act or thing is to be
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done) the Court of Appeal may, if it should be of opinion that the respondenthas not been materially prejudiced, grant relief on such terms as it maydeem just”.
It is to be seen that the particulars that should be contained in a petitionfiled in a leave to appeal application is specified in section 758 and theprovisions contained therein applies to a final appeal too. In thecircumstances it is to be seen that the procedure in instituting an applicationfor leave to appeal is governed by the provisions of the Civil ProcedureCode and not by the Rules as laid down in the Court of Appeal (AppellateProcedure) Rules 1990. Further leave to appeal is a statutory remedy likethe final appeal made available to a party by the Civil Procedure Code. Assuch when exercising this statutory remedy there is no necessity to insertan averment in the petition that the petitioner had not previously invokedthe jurisdiction of this Court. My considered view is that a leave to appealapplication being a statutory remedy does not attract the provisionscontained in the Court of Appeal (Appellate Procedure) Rules 1990.
I might point out that this same issue was considered by Ameratunga,
J.in J.M.C. Caderamenpulle vs. A. M.J. M. V. Caderamenpulle.(1) In thatcase Ameratunga, J. having considered most of the judgments thatconsidered this issue, viz: the applicability of Rules of the Court of Appeal(Appellate Procedure) Rules 1990 to an application for leave to appealcame to a finding that the provisions as prescribed in the aforesaid Rulesare not applicable to leave to appeal applications. I would certainly agreewith him on this point only. However though not relevant to the issue athand , his finding in that case that Court has no power to dismiss a leaveto appeal application on the basis that necessary documents have notbeen filed is unacceptable and should be frowned upon.
For the foregoing reasons I would over-rule the preliminary objectiontaken by the counsel for the petitioner-respondent and fix the matter forinquiry.
WIMALACHANDRA, J. — / agree.
Preliminary objection overruled.
Matter set down for inquiry.