DHARAMARATNE vs. KUMARI

035-SLLR-SLLR-2005-V-1-DHARAMARATNE-vs.-KUMARI.pdf


Dharmaratne vs ■
Kumari
265
CA
DHARMARATNEvs
KtlMARICOURT OF APPEALWIMALA’CHANDRA, J.
CA LA 393/2003D. C. KANDY 5934/DMAY 14, ANDJULY 7, 2004
Civil Procedure Code, sections 755(1), 755(3), 755(1) (d) and 759(2) – Appealby the defendant – In the notice of appeal plaintiff designated as plaintiff appel-lant – Is it fatal? – Materially prejudiced? – District Judge's powers.
The defendant filed notice of appeal followed by a petition of appeal. Theplaintiff objected to the notice of appeal on the ground that the plaintiff hadbeen named as the defendant-appellant when he should have been desig-nated as the plaintiff-respondent and hence it was invalid as it was not inconformity with section 755(1) (d). The trial judge rejected the objection.
On leave being sought –
HELD
The District Judge has no power to reject a notice of appeal even thoughhe may call upon the appellant to rectify any defect in the notice ofappeal. The District Judge’s function is merely to forward the notice ofappeal and the petition of appeal to the Court of Appeal.
It is open to the Court of Appeal to grant relief under section 759(2) if inthe opinion of court the plaintiff respondent has not been materiallyprejudiced by the mistake.
Per Wimalachandra, J.,
"I am of the view that the court should discourage appeals against incidentaldecisions of this nature when it could conveniently and more expeditiously bedealt with in a final appeal."
APPLICATION for leave to appeal from an order of the District Court of Kandy.
266
Sri Lanka Law Repons
(2005) 1 Sri L. R.
Cases referred to :
Nanayakkara vs Wamakulasuriya – (1993) 2 Sri LR 289
Sameen vs Abeywickrama 64 NLR 553
Vithana vs Weerasinghe – (1981) – 1 Sri LR 52
Naraluwa Hewage Edmond vs Dharmadasa Wanigaratne and two othersCA 774/90 – D.C. Galle 8406/P – CAM 23.02.01
Anushka Wettasinghe vs Nimal Weerakkody and others – (1981) 2 Sri LR423
Balasubramaniam vs Valliappar Chettiar – 39 NLR 553
Geeshan Rodrigo for plaintiff petitioner.
Manohara R. de Silva for defendant respondents.
Cur. adv. vult
October 05, 2004.
WIMALACHANDRA, J.The plaintiff-petitioner (hereinafter referred to as the plaintiff) institutedaction for divorce on the ground of malicious desertion in the District Courtof Kandy against the defendant-respondent (hereinafter referred to as thedefendant). After the trial, the court delivered the judgement in favour of theplaintiff. Thereafter the defendant filed a notice of appeal followed by apetition of appeal. The plaintiff objected to the notice of appeal on theground that the plaintiff had been named as the defendant-appellant, whenhe should have been designated as the plaintiff-respondent and hence itwas invalid as it was not in confirmity with the mandatory provisions ofsection 755 (1) (d) of the Civil Procedure Code. The learned District Judgerejected the plaintiffs objections and made order on 08.10.2003 acceptingthe notice of appeal. It is against this order, the plaintiff has filed thisapplication for leave to appeal.
The question that arises for determination in this application is whetherthe order made by the learned District Judge is wrong in accepting thenotice of appeal in which the plaintiff was described as the plaintiff-appellant.
The learned Judge has observed that in the petition of appeal, whichfollowed the notice of appeal, the parties were correctly described.
Dharmaratne vs
Kumari (Wimalachandra, J.)
267
CA
Moreover, it is to be noted that the notice of appeal and the petition ofappeal had been'addressed to the Court of Appeal and hot to the DistrictJudge. The District Judge’s function is merely to forward the notice ofappeal and the petition of appeal. The effect of the notice of appeal is toinform the respondent that the jurisdiction of the lower Court will besuspended once the petition of appeal is filed and also to temporarilydeprive the respondent of the fruits of his victory. The District Judge has nopower to reject a notice of appeal even though he may call upon the appellantto rectify any defect in the notice of appeal.
In the case of Nanayakkara Vs. Wamakulasuriya(1) it was held that;
“The power of the Court to grant relief under section 759(2) ofthe Code is wide and discretionary and is subject to suchterms as the Court may deem just. Relief may be grantedeven if no excuse for non-compliance is forthcoming.However, relief cannot be granted if the Court is of opinionthat the respondent has been materially prejudiced in whichevent the appeal has to be dismissed.”
Kulatunga, J. at page 294 has also made the following observation ;
“Even though the District Court appears to have no power toreject a notice of appeal for failure to hypothecate security, itmay perhaps call upon the appellant to rectify the defect wherethe non-compliance is observed at the stage when notice ofappeal is given”.
The only exception to this rule is found in section 755(3) of the CivilProcedure Code which reads as follows :
“Provided that, if such petition is not presented to the originalCourt within 60 days from the date of the judgement or decreeappealed against, the Court shall refuse to receive the appeal.”
Next I shall proceed to consider the main contention of the learnedcounsel for the defendant that the provisions of section 755(1) of the CivilProcedure Code is mandatory and it should be strictly adhered to. The
2 – CM5604
26S
Sri Lanka Law Reports
(2005) 1 Sri L. R.
learned counsel submitted that the non-compliance with the mandatoryprovisions of section 755(1 )(d) of the Civil Procedure Code, where thename of the appellant has been stated as plaintiff-appellant instead of thedefendant-appellant, should necessitate the rejection of the notice of appealand the petition of appeal. However, in the petition of appeal the names ofthe appellant and the respondent are correctly stated.
Now I turn my attention to section 759(2), which states as follows :
“In the case of any mistake, omission or defect on the part ofany appellant in complying with the provisions of the foregoingsections (other than a provision specifying the period withinwhich any act or thing is to be done) the Court of Appeal may,if it should be of opinion that the respondent has not beenmaterially prejudiced, grant relief on such terms as it maydeem just.”
It appears to me that it is open for this Court to grant relief under theprovisions of section 759(2) if in the opinion of this Court the plaintiff-respondent has not been materially prejudiced by the mistake. .
In Sameen Vs. Abeywickrema{2) the Privy Council held that in the caseof a mistake, omission or defect on the part of any appellant in complyingwith the provisions of this section, the Supreme Court if it should be ofopinion that the respondent has not been materially prejudiced, may grantrelief on such terms as it may deem just. Therefore, the only limitationimposed by this section is that the Court has no power to do so, unless itis of opinion that the respondent has not been materially prejudiced.
In the instant case the defendant-appellant has only made the mistakeof naming the plaintiff as the appellant in the notice of appeal. However, inthe petition of appeal, the parties are correctly named as appellant andrespondent.
In the case of Vithana Vs. Weerasinghel3) Wanasundara, J. discussedthe applicability of section 759(2) of the Code to remedy any mistake,omission or defect occurring in the notice of appeal.
It appears to me that if such omission has not caused any prejudice tothe respondent, relief could be granted in terms of section 759(3) of theCode.
QADharmaratne vs269
Kumari (Wimalachandra, J.)
In the case of Vithana Vs. Weerasinghe (supra) at 54, Wanasundara,J. said :
“It can now be said that the time is over when Courts wereready to uphold technical objections to the entertainment ofappeals, unless it is a matter of some real substance. The lawnow contains clear indications for relief to be granted for lapsesand the Courts are no longer prevented from doing justice insuch cases.”
In the case of Naraluwa Hewage Edmond Vs. Dharmadasa Wanigaratneand two others, T. B. Weeras'uriya, J. held that the non-compliance Withthe mandatory provision in section 755(2)(b) of the Civil Procedure Coderelating to the failure to name defendants as respondents in the notice ofappeal could be remedied under section 759(2) if such omission has notcaused prejudice to the defendant and the provisions of section 759(2)were intended to remedy an omission of the nature occurring in the noticeof appeal.
In the instant case, I am of the view that no prejudice has been causedto the plaintiff merely because the plaintiff-respondent’s name had beenerroneously stated as the defendant-appellant, for the reason that in thepetition of appeal which was filed soon after the notice of appeal the partiesto the action were correctly described. Accordingly, the said mistake inthe notice of appeal could be remedied under section 759(2).
The plaintiff-petitioner seeks leave to appeal against the order made bythe learned Judge dated 08.10.2003. The issue involved in this applicationis an incidental order which could easily be dealt with in the final appealwhich has already been made by the defendant, and in such a situationthe plaintiff-petitioner’s application should be rejected as premature.
In the case of Anushka Wettasinghe Vs. Nimal Weerakkody andotherslS) Soza, J. observed that:
“The Court will discourage appeals against incidental decisionswhen an appeal may effectively be taken against the orderdisposing of the matter under consideration at its final stage.”
270Sri Lanka Law Reports(2005) 1 Sri L. R.
Similarly, Keuneman, J. held in Balasubramaniam Vs. ValliapparChettian5) that the Supreme Court is free to consider the points raised inan interlocutory appeal rejected for non-compliance with the requirementsof the Stamps Ordinance in the final appeal.
In the circumstances I am of the view that this Court should dis-courage appeals against incidental decisions of this nature when itcould conveniently and more expediently be dealt with in a finalappeal.
For these reasons, there is no need for this Court to interfere with theorder made by the learned District Judge of Kandy dated 08.10.2003 andaccordingly, I refuse the plaintiff-petitioner’s application for leave to appealwith costs fixed at Rs. 2,500.
Application dismissed.