026-SLLR-SLLR-2004-V-2-DHARMASENA-v.-NAVARATNE.pdf
CA
Amarasinghe v Jayathilake, Director-General of Customs
and others (Srioavan. J.)
173
DHARMASENAv
NAVARATNECOURT OF APPEALAMARATUNGA, J. ANDWIMALACHANDRA. J.
CALA NO. 261/2003D.C. MAHO 5385 /LMAY 26, ANDJUNE 10,2004
Contempt proceedings – Violation of terms of enjoining order – Withdrawal ofcharge with leave to bring fresh charge – Refused – Does leave to appeal lie?- Civil Procedure Code, sections 754(2) 792 , 798 – Code of CriminalProcedure Act- Civil or Criminal proceedings?
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Held:
Although contempt is not a crime, contempt proceedings bear a criminalcharacter. '
Contempt proceedings cannot come within the phrase “civil action, pro-ceeding or matter appearing in section 754(2) of the Civil ProcedureCode.”
The procedure for filing an appeal is the procedure set out in the Codeof Criminal Procedure.
APPLICATION for leave to appeal from an order made by the learned DistrictJudge of Maho in contempt proceedings.
Cases referred to:
Dayaratne and Pieris v Dr. Fernando – (1988) 2 Sri LR 314
Fernando v Fernando – 71 NLR 344
Thuraisingham v Karthikesu – 50 NLR 570
Jacob Joseph for petitioners.
Upali de Almeida with Ann de Almedia for respondent.
Cur.adv.vult
September 2, 2004GAMINI AMARATUNGA, J.
This is an application for leave to appeal against an order made 01by the learned District Judge of Maho on 30.6.2003 in contemptproceedings initiated against the defendant-respondent. In a landaction filed by the plaintiff-petitioners against the defendant, theyhave obtained an enjoining order restraining the defendant fromconstructing a building in the land relevant to the case.
The plaintiffs alleged that even after the enjoining order wasserved on her the defendant continued her construction work,thereby violating the terms of the. enjoining order. Therefore theymoved court to commence contempt proceedings against the 10defendant. Upon receipt of the summons relating to contempt pro-ceedings the defendant appeared in court on 5.5.2003 and plead-ed not guilty to the contempt charge. The inquiry was then post-poned to 30.6.2003.
CA
Dharmasena v. Navaratne(Amaratunaa J.)
175
On 30.6.2003, the 1st plaintiff was present in court and he wasrepresented by a senior counsel. An objection was taken on behalfof the defendant that summons have not been served in accor-dance with the provisions of the Civil Procedure Code relating tothe service of summons in contempt proceeding. The learned coun-sel for the plaintiffs conceded that there was no proper service ofsummons and moved to withdraw the charge with liberty to movecourt again to commence fresh contempt proceedings.
The learned Judge allowed the application to withdraw thecharge of contempt, but having observed that summons have beenproperly served, refused to grant leave to bring a fresh charge ofcontempt. The plaintiffs-petitioners now seek leave to appealagainst that part of the order of the learned Judge refusing leave tobring a fresh charge of contempt. Is it legally possible for the peti-tioners to come by way of leave to appeal against the order of thelearned Judge?
Section 754(2) of the Civil Procedure Code states that any per-son who shall be dissatisfied with any order made by any originalcourt in the course of any civil action, proceeding or matter to whichhe is a party may prefer an appeal to the Court of Appeal againstsuch order with the leave of the Court of Appeal first had andobtained. Can contempt proceedings come under the phrase ‘civilaction, proceeding or matter’ appearing in section 754(2)?
Jurisdiction to take cognizance of and to punish for contempt ofcourt is a special jurisdiction, (section 792 of the Civil ProcedureCode) Although contempt is not a crime contempt proceedingsbear a criminal character. Dayaratne and Pern's v Dr. Fernando 0).The charge must be read out to the accused and his plea shall berecorded. This is imperative. Fernando v Fernando (2). If theaccused is found guilty on his own plea or after inquiry a convictionshall be entered in the manner set out in section 797 of the Code.In order to find the accused guilty of the charge must be satisfac-torily proved, that is beyond reasonable doubt. {Supra)
What has been stated above very clearly indicate that con-tempt proceedings cannot come within the phrase ‘civil action, pro-ceeding or matter’ appearing in section 754(2) of the Code.Therefore it necessarily follows that section 754(2) of Code cannotbe invoked in respect of an order made in contempt proceedings.
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Section 798 of the Code puts the matter beyond doubt. That sec-tion enacts that an appeal shall lie to the Court of Appeal from everyorder, sentence of conviction made by any court in the exercise ofits special jurisdiction to punish for the offence of contempt of court.
This section gives the right of appeal, but according to the samesection the procedure for filing the appeal is the procedure set outin the Code of Criminal Procedure Act, No. 15 of 1979 – that ischapter XXVIII of that Code. The word ‘order’ in section 798 of the 60Civil Procedure Code would include a discharge or an acquittal.Thuraisingham v Karthikesu (3) On a parity of reasoning even theDistrict Judge’s refusal to allow the plaintiffs petitioners of this caseto submit a fresh charge of contempt would fall within the word‘order’ appearing in section 798 of the Code. Accordingly theappeal against the order of the learned Judge refusing leave to theplaintiffs to bring a fresh charge of contempt has to be filed in accor-dance with the provisions of the Code of Criminal Procedure Actrelating to the procedure for filing appeals. Thus the order inrespect of which leave to appeal is sought does not fall within the 70ambit of section 754(2) of the Code. This application is miscon-ceived in law. Accordingly, this application is dismissed withoutcosts.
WIMALACHANDRA, J.I agree.
Application dismissed.