DHARMARATNE AND ANOTHER v. PALM PARADISE CABANAS LTD AND OTHERS

005-SLLR-SLLR-2003-V-3-DHARMARATNE-AND-ANOTHER-v.-PALM-PARADISE-CABANAS-LTD-AND-OTHERS.pdf


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DHARMARATNE AND ANOTHERv
PALM PARADISE CABANAS LTDAND OTHERSCOURT OF APPEALAMARATUNGA, J.
BALAPATABENDI, J.
CALA 1113/2003
D.C. COLOMBO 5385/SPL
SEPTEMBER 25, 2002
Civil Procedure Code – S. 753 – Amended by 79 of 1988 – Companies Act 17of 1982 -S. 113- Revisionary jurisdiction of the Court of Appeal – ConstitutionArticle, 138 – Exceptional Circumstances ? – Should they be pleaded.
The District Court, dismissed an application filed by the petitioners under S.113Companies Act.
Held :
Legal submissions in the Petition do not indicate reasons why the Courtof Appeal should exercise revisionary powers.
PerAmaratunga, J.
"Existence of exceptional circumstances is the process by which thecourt selects the cases in respect of which the extraordinary method ofrectification should be adopted. If such a selection process is not thererevisionary jurisdiction of this court will become a gateway of every liti-gant to make a second appeal in the garb of a Revision Application orto make an appeal in situations where the legislature has not given aright of appeal."
The practice of Court is to insist in the exercise of exceptional circum-stances for the exercise of revisionary powers has taken deep root inour law and has got hardened into a rule which should not be lightly dis-turbed.
The petitioner has not pleaded or established exceptional circum-stances warranting the exercise of revisionary powers.
The amendment to Section 753 Civil Procedure Code by 79 of 1988brought the proceedings of Tribunals/lnstitutions within the purview ofthe revisionary jurisdiction of the Court of Appeal. The enlarged power
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Dharmaratne and Another v Palm Paradise Cabanas Ltd
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has been conferred to deal with proceedings which cannot be broughtbefore it by way of an appeal.
APPLICATION for Leave to Appeal from the Orders of the District Court ofColombo.
Cases referred to :
Mariam BeeBee v Seyed Mohamed – 68 NLR 36
Ranasinghe v Henry – 1 NLR 303
Atukorale v Samynathan – 41 NLR 165
Abdul Caderv Sitty Nisa- 52 NLR 536
Soysa v Silva – (2000) – 2 Sri LR 235
Potma v I.P Dodanwela – 74 NLR 115'
Appuhamy v Weeratunga – 23 NLR 467
Somawathie v Medawala – 1983 2 Sri LR 15
Sirimavo Bandaranayake v Times of Ceylon – (1995) 1 Sri LR 22
Perera v Silva – 1908 – Appeal Court Reports. Vol IV, 79
Ameen v Rashid – 6 CLW 8
Atukorale v Saminathan – 41 NLR 165
Caderamanpulle v Ceylon Paper Sacks Ltd., (2001) 3 Sri LR 172
Fernando v Ceylon Brewery (1998) 3 Sri LR 61
Perera v Agidahamy – 48 NLR 87
Ceylon Brewery Ltd., v Fernando – (2001) 1 Sri LR 270, (SC)
Thameena v Koch – 72 NLR 192
S.L.B.C. v De Silva- (1981) 2 Sri LR 228
Nadaraja v Thilaganathan – (1986) III CALR 307
Palitha Kumarasinghe for Petitioners
Ms. S. Perera for 1 st Respondent
N. R. Sivendran for 2nd Respondent
Ms Eva Wanasundera D.S.G., for the 3rd Respondent
cur.adv.vult
June 17, 2003
GAMINI AMARATUNGA, J.This is a revision application filed by the petitioners against theorder of the learned District Judge dismissing an application filed bythe petitioners under section 113 of the Companies Act No 17 of1982. By their petition, the petitioners have prayed inter alia for a
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declaration that the 1st petitioner was entitled to 13400 shares andthe 2nd petitioner was entitled to 8600 shares in the 1st defendantcompany and for a direction to the 3rd defendant-respondent toinclude their names in the Register of Members of the 1st defen-dant company and to delete the name of the 2nd defendant fromthe said register. The petitioners have sought an Order Nisi in thefirst instance to be followed by an order absolute. The court hasissued an order nisi in the first instance. The 1st and 2nd respon-dents have raised a preliminary objection in the District Court thatit was not open to the petitioners to make their application by wayof summary procedure and the petitioners should have made theirapplication by petition and affidavit as enacted in section 441 of theCompanies Act. The learned District Judge, having upheld thatobjection has made order dismissing the petitioners application on11.7.2001. The petitioners have filed this revision application on
against the said order.
The petitioners in paragraph 21 of their petition have stated thatthe aforesaid order is a final judgment and that they intended toexercise their right of appeal against the said order. They havethereafter filed an appeal against that order. When this revisionapplication came up before this Court the 2nd respondent hasraised a preliminary objection in limine to the effect that the peti-tioners have not pleaded and the petition does not disclose anyexceptional circumstances warranting the exercise of the revision-ary powers of this Court. It appears that the petitioners have reliedon the averments set out in paragraphs 19 and 20 of the petition toshow exceptional circumstances warranting the exercise of therevisionary powers of this Court. However those two paragraphscontain legal submissions made to show that the order of thelearned District Judge was erroneous. Those legal submissions donot indicate reasons why this court should exercise revisionarypowers when a right of appeal against the same order was avail-able (and in fact subsequently availed of). All questions of lawraised in paragraphs 19 and 20 of the petition are matters whichcan be decided in the appeal.
There is no question that the revisionary powers of this Courtare very wide and may by exercised for the correction of all errorsof fact and law committed by all inferior courts and sometimes com-
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mitted by this court itself. Its object is the due administration of jus-tice and the avoidance of miscarriages of justice. Revisionary pow-ers will be exercised when it appears to court that unless the poweris exercised, injustice will result. Mariam Beebee v SeyedMohamed 0). Relief by way of revision may be granted even in acase where there is no right of appeal and also in the absence of aseparate application for revision. Flanasinghe v HenryS2) Where aparty has a right of appeal and an appeal preferred in the exercise soof that right is pending, revisionary powers will be exercised if itappears that the result of the appeal will be rendered nugatory ifrelief by way of revision is not granted. Atukorale v Samynathan.i3)Relief by way of revision may be granted even where an appealhas been rejected on technical grounds. Abdul Cader v SittyNisaW, Soysav'Silvai5) In an appropriate case relief by way of revi-sion is available even in a case where the appeal has been dis-missed after consideration if it later appears to court that a materi-al fact has escaped the attention of court. Potman v I.P.Dodangodai6) . Revisionary powers will be exercised even on the 60application of a person who is not a party to the proceedings.Appuhamy v WeeratungaP), Meeriam Beebee v Seyed Mohamed(supra). Even where the law says that a judgment of a court is finaland conclusive, the court may interfere with such judgment by wayof revision. Somawathie v MadawalaP). Any uncertainty as to thescope of the Courts revisionary jurisdiction 'must unhesitatingly beresolved in favour of a wider, than a narrower, jurisdiction’. SirimavoBandaranayake v Times of Ceylon,Piper Fernando J.
Article 138 of the Constitution which provides for the revisionaryjurisdiction of the Court of Appeal does not state that it can be exer- 70cised only in exceptional circumstances. Section 753 of the CivilProcedure Code (as amended by Act No 79 of 1988) which sets outthe revisionary powers of the Court of Appeal in civil cases providesthat the Court may make any order "as the interests of justice mayrequire". This section too does not state that revisionary powerscan be exercised only in exceptional circumstances.
In the early case of Perera v Silva 0°) Hutchinson C.J. has stat-ed that "I do not feel in the least able to say in what cases the Courtought and in what court ought not, to exercise that power of revi-
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sion under s.753. But I do not think that the power ought to be exer-cised, or that the legislature could have intended that it should beexercised, so as to give the right of appeal, practically in everycase, large or small, simple or difficult, (emphasis added) In Ameenv Ras/?/d<11) Abraharms C.J. has said "It has been represented tous on the part of the petitioner that even if we find the order to beappealable, we shall have a discretion to act in revision. It has beensaid in this Court, often enough,that revision of an appealable orderis an exceptional proceeding .and in the petition no reason is givenwhy this method of rectification has been sought rather than ordi-nary method of appeal. I can see no reason why the petitionershould expect us to exercise our revisionary powers in his favourwhen he might have appealed…" Similarly Soertsz J. in AtukoralevSaminathan<12) at 166 stated that the right of the Court to reviseany order made by an original court will be exercised in a case inwhich an appeal is already pending only in exceptional circum-stances. Recently in Caderamanapulle v Ceylon Paper Sacks<13>this Court has held "when the decided cases cited before us arecarefully examined, it becomes evident in almost all the casescited, the powers of revision have been exercised only in a limitedcategory of situations. The existence of exceptional circumstancesis a precondition for the exercise of the powers of revision and theabsence of exceptional circumstances in any given situation resultsin refusal of remedies." (per Nanayakkara, J.)
In Fernando v Ceylon Brewery LtdSu) U.de Z Gunawardana Jhas stated that the existence of exceptional circumstances is not anindispensable pre-condition for the exercise of revisionary powersvested in the Court of Appeal. He has expressed this view aftercomparing section 753 of the Civil Procedure Code as it originallystood with the amendment made to section 753 by amending ActNo 79 of 1988. As section 753 stood before the amendment, thecourt in revision could make any order which it might have madehad the case been brought before it in due course of appeal insteadof by way of revision, commenting on the nature of the order theCourt is empowered to make in revision Nagalingam A.J. in Pererav Agidahamy (15> has stated that if the court could not have passeda particular order in an appeal, then such order could not be madeeven if the matter be brought before it by way of revision.
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By the amendment of 1988 the words 'make any order thereonas the interests of justice may require' were substituted in place ofthe words 'make any order which it might have made had the casebeen brought before it in due course of appeal instead by way ofrevision' in section 753. It appears that the amendment of 1988 hasbeen brought to bring section 753 of the Civil Procedure Code inline with Article 145 of the Constitution which confers power on theCourt of Appeal for the examination of records of the Courts of FirstInstance. That article empowers the court to make any order as theinterests of justice may require.
Commenting on the effect of the amendment made to section753 by Act No 79 of 1988, Gunawardana, J: in Fernando v CeylonBrewery Ltd (supra) has said that "the amended section enable thecourt to be more flexible and less legalistic in its means andapproach in dealing with a matter for section 753 in its amendedform seems to exalt not so much the rigor of the law but unalloyedjustice in the sense of good sense and fairness. So that the basisfor the rationale for insisting on the requirement of special circum-stances as a condition precedent to the exercise of revisionaryjurisdiction had disappeared as a consequence of the amendmentsection 753….”
The decision of Gunawardena J. in Ceylon Brewery case wasset aside by the Supreme Court in Ceylon Brewery Ltd vFernando(16) on the basis that the period of 14 days provided insection 86(2) of the Civil Procedure Code is mandatory (and notmerely directory as decided by Gunawardana, J). The SupremeCourt has not expressed any opinion on the question whetherexceptional circumstances are unnecessary under the amendedsection 753 to invoke the revisionary jurisdiction of the Court ofAppeal.
The requirement of exceptional circumstances for the exerciseof revisionary jurisdiction is not a requirement statutorily laid downanywhere. As Gunawardana J. himself has referred to, AbrahamsCJ. in Ameen v Rashid (supra) has explained the rationale forinsisting on the existence of exceptional circumstances for theexercise of revisionary jurisdiction. According to Abrahams CJ. revi-sion of an appealable order is an exceptional proceeding and a per-son seeking this method of rectification must show why this extra-
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ordinary method is sought rather than the ordinary method ofappeal. As Hutchinson CJ. has stated in Perera v Silva (supra) it isnot possible to contend that the power ought to be exercised or thatthe legislature could have intended that it should be exercised soas to give the right of appeal practically in every case. Thus the 160existence of exceptional circumstances is the process by which theCourt selects the cases in respect of which this extra-ordinarymethod of rectification should be adopted. If such a selectionprocess is not there revisionary jurisdiction of this Court willbecome a gateway for every litigant to make a second appeal in thegarb of a revision application or to make an appeal in situationswhere the legislature has not given right of appeal.
The practice of Court to insist on the existence of exceptionalcircumstances for the exercise of revisionary powers has takendeep root in our law and has got hardened into a rule which should 170not be lightly disturbed. The words used by the legislature do notindicate that it ever intended to interfere with this 'rule of practice'.
There was another reason for the legislature to confer power onthe Court of Appeal to make any order as the interests of justicemay require without limiting the Court's power to make any orderthe Court might have made had the case been brought up before itby way of an appeal. In its original form, revisionary powers undersection 753 could be exercised only in respect of proceedings ofcourts and did not extend to proceedings of Tribunals and otherinstitutions. See Thameena v Koch(17)- SLBC v de Silva <18) and isoNadaraja v ThilaganathandS). The amendment No 79 of 1988brought the proceedings of Tribunals and other institutions withinthe purview of the revisionary jurisdiction of the Court of Appeal. InPerera v Agidahamy (supra) it has been held that if there is no rightof Appeal against a particular decision, revision too was not avail-able as the court's power was limited to the making of an orderwhich it would have made had the matter been brought up by wayof an appeal. Sometimes the legislature does not confer a right ofappeal against a decision of a Tribunal or any other institution. Itappears that the enlarged power has been conferred on the Court 190of appeal to deal with proceedings which cannot be brought beforeit by way of an appeal.
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Therefore I hold that even after the amendment brought to sec-tion 753 by Act No 79 of 1988, the existence of exceptional cir-cumstances is a necessary pre-condition for the exercise of revi-sionary powers. In this case the petitioner has not pleaded orestablished exceptional circumstances warranting the exercise ofrevisionary powers. The petitioner had already filed an appealagainst the. decision of the learned District Judge and all mattersset out in paragraphs 19 and 20 of the petition are matters whichcould be canvassed in the appeal.
Accordingly application for revision is dismissed with costs in asum of Rs.10,000/- payable to the 2nd respondent.
BALAPATABENDI J. – I agreeApplication allowed
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