Sri Lanka Law Reports
 2 Sri L.R.
EBERT SILVA AND ANOTHER
COURT OF APPEAL. '
D. P. S. GUNASEKERA (P/C.A.) J. ANDAMEER ISMAIL, J.
C. MT. LAVINIA 1051/ZL.
Court of Appeal (Appellate Procedure) – Rules 2(1), 3(4) (a), and 14 of the Courtof Appeal Appellate Procedure Rules – Applicability mandatory or not.
(i) Compliance with Rule 3(4) (a) is mandatory. However non compliance does notitself result in an automatic dismissal of the application, in view of Rule 14.
In the instant case although the petitioners had failed to comply with Rule 3(4) (a)by tendering Notices within two weeks after Notice was issued, the Registrar hadfailed, to comply with Rule 14 and list the Application for an Order of Court. Hadthat been done the court would have made an order either directing the petitionerto comply with the Rule on a date to be specified by the Court or to havedismissed the Application after hearing the parties.
APPEAL from the judgment of the District Court of Mt. Lavinia.
Cases referred to:
Gangodagedera v. Mercantile Company Ltd.,  2 Sri. L.R. 253.
Marinona v. Francina  2 Sri. L.R. 250.
Mohamed Haniffa Rashad All v. Khan Mohamed All – S.C. 6/81 – SCM20.11.81.
Keerthiratna v. Udana Jayasekera-  2 Sri. L.R. 346.
Nicholas v. Macan Markar Ltd., and Others S.C. 30/81 – CA 97/80 – 1986BALJ Vol. I Part 6-245.
P.A. D. Samarasekera, P.C. with G. L. Geethananda for 1st defendant-petitioner.
£ D. Wickremanayake, for 2nd defendant-petitioner.
Wijedasa Rajapakse with B. Waduressa and AliShabbry for the respondent.
Cur. adv. vult.
Ebert Silva and Another v. Silva (Gunasekera, J.)
June 13, 1997.
This application in Revision to set aside the Order of the LearnedDistrict Judge of Mount Lavinia dated 22.7.1996 marked X14 wassupported on 31.7.1996 and 1.8.1996 before us by learnedPresident’s Counsel for the petitioner in the presence of learnedCounsel for the respondents who appeared on behalf of therespondent on receipt of notice tendered by the petitioner inaccordance with Rule 2(1) of the Court of Appeal AppellateProcedure Rules. After hearing Counsel for both parties by our Orderdated 02.8.1996 we directed that notice be issued on therespondents and stayed the execution of the Writ issued by thelearned District Judge by his Order dated 22.7.1996 until 23.8.1996.Further we directed that objections if any of the plaintiff-respondentbe filed on or before that day.
When the matter came up on 23.8.1996 learned Counsel forthe plaintiff-respondent without having filed objections as directedraised a preliminary objection that there had been a non complianceof Rule 3(4) (a) of the Court of Appeal (Appellate Procedure) Rules of1990 by the petitioner and moved that the application be dismissed.
Inquiry into the preliminary objection raised by Counsel for therespondents was fixed for 27.9.1996 and the stay Order issued wasextended till 30.9.1996. The inquiry into the preliminary objectionscould not be taken up as scheduled due to reasons beyond thecontrol of Court since there was a reconstitution of the Bencheswithout any notice. Inquiry was thereupon refixed for 1.11.1996 andthe Stay Order was extended till 4.11.1996. On 1.11.1996 since,Hon. Ismail J. went on medical leave inquiry was refixed for
and on that day the application was refixed for inquiry for26.2.1997. Since the matter came up only before Hon. Ismail, J. thesame Bench which originally issued notice was reconstituted for
and on that day Counsel appearing for the partiessubmitted that the matter could be disposed of upon a considerationof written submissions which were to be tendered and accordinglywritten submissions were tendered on behalf of the parties.
Sri Lanka Law Reports
 2 Sri LR.
It was submitted by the Learned Counsel for the plaintiff-respondent that since the Court when directing notice to be issuedon the respondents on 2.8.1996 had not fixed a particular date thatthe petitioners were obliged to tender notices within two weeks from2.8.1996 which lapsed on 16.8.1996. Learned Counsel drew theattention of Court to Rule 3(4) (a) of the Court of Appeal (AppellateProcedure) Rules 1990 which reads as follows:
"(4) where upon such application being supported, the Courtorders the issue of notice-
(a) the Court shall fix the date for tendering by the petitioner ofthe requisite notices together with such number of copies as thereare respondents and stamped addressed envelopes for despatchof such notices by registered post to the respondents, it being theduty of the petitioner to ensure the accuracy of such notices,copies and addresses; if no date is fixed by the Court, thepetitioner shall tender such notices, copies and envelopes withintwo weeks”.
It was contended further that the petitioner had failed to comply withthe said Rule even at the time when it was taken up as a preliminaryobjection when the case was mentioned on 23.8.1996 the date fixedby the Court for the tendering of objections by the plaintiffrespondent. Thus it was sought to be argued by Learned Counsel forthe respondent that compliance with Rule 3(4) (a) was mandatoryand that as the petitioner had failed to comply with the said Rule thatthe application should be dismissed.
Learned counsel for the respondent relied on the judgments of theSupreme Court in Gangodagedera v. Mercantile Company Ltd?Marinona v. Francina<2), Mohamed Haniffa Rashid AH v. KhanMohamed AiP Keerthiratna v. Udana Jayasekera(4) amongst severalother cases which have held that compliance with the Rules wasmandatory and that non compliance was fatal.
Whilst we are in agreement with the said decisions and are of theview that compliance with the Rules is mandatory we take the viewthat non compliance does not by itself result in an automatic
Ebert Silva and Another v. Silva (Gunasekera, J.)
dismissal of the application. In view of the provisions of Rules 14which reads as follows:
“where the parties fail to comply with the requirements set out in
the preceding rules, the Registrar shall without any delay, list such
application for an Order of Court”.
In the instant case although the petitioners had failed to comply withRule 3(4) (a) by tendering notices within two weeks after notice wasissued on 2.8.1996 the Registrar had failed to comply with Rule 14and list the application for an Order of Court and had that been donethe Court would have made an Order either directing the petitioner tocomply with the Rule on a date to be specified by the Court or tohave dismissed the application after hearing the parties.
In the case of Nicholas v. Macan Markar Ltd. and Others™Wimalaratne J. with Soza J. agreeing held that where parties failed tocomply with requirements in Rules 46 to 58 of the Supreme CourtRules that it was the duty of the Registrar to list such application foran Order of Court without any delay under Rule 59 and it was thenopen to the Court after hearing the parties either to direct compliancewith the Rules or to dismiss it. It was further held that dismissal wasnot the only consequence of the breach because the object ofensuring that no second Order could be made on a secondapplication regarding the identical matters could be achieved withoutresorting to the drastic step of dismissal.
In the instant case the petitioners had filed this application inrevision on 25.7.1996 and had given notice of the application to therespondents in terms of Rule 2(1) of the Court of Appeal (AppellateProcedure) Rules 1990 since there was a prayer for interim relief tostay the Order of the Learned District Judge dated 22.7.1996 marked‘X14' and in fact when the application was supported the respondentwas represented by Counsel and the Order dated 2.8.1996 wasmade after hearing counsel for the respondent as well. This being sowe are of the view that no prejudice has been caused to therespondent as a result on the petitioners failing to comply with Rules3(4) (a) to tender notice as required. For the reasons stated weoverrule the preliminary objection raised on behalf of therespondents.
Sri Lanka Law Reports
 2 Sri LR.
The second matter that arises for consideration is whether theLearned District Judge was right in issuing the Writ pending appealin this case or whether the petitioners are entitled to have the Orderof the Learned District Judge dated 22.7.1996 marked ‘X’ set asideas having been wrongly made.
On this question the Court having heard the submissions ofCounsel for the parties and after a consideration of the documentstendered by its Order dated 2.8.1996 directed that notice be issuedon the respondent and made Order that objections for the plaintiffrespondent be filed on or before 23.8.1996. It also made orderstaying the execution of the Writ issued by the Learned District Judgetill that date. In its Order it was specifically stated that “this Order is atemporary Order pending the consideration of the objections of theplaintiff respondent upon which a final Order would be made”. Theplaintiff respondent having filed a statement of objections on23.8.1996 after the matter came up in open Court when a preliminaryobjection was raised that the application be dismissed for noncompliance of rule 3(4) (a) has since taken possession of thepremises in dispute by execution of the writ due to the Stay Order notbeen extended on account of a lapse. The defendant-petitioners intheir written submissions have prayed that the Order of the LearnedDistrict Judge marked 'X14' be set aside and the petitioners berestored to possession. We have anxiously given our mind to thisquestion and are mindful that the plaintiff respondent has takenundue advantage of a lapse in not extending the Stay Order. Sincethe matter regarding the interim relief is now over we are of the viewthat the final appeal should be disposed of very early so that appealwould finally conclude the matter in dispute.
Accordingly, we make Order to the Registrar to accelerate thehearing of the final appeal No. CA 446/94 and for this purpose heshould call upon the parties to deposit the brief fees if it has notalready been done, to prepare the briefs and list the appeal forhearing early next term before the Bench hearing D.C. Finalappeals (1) on a date convenient to Counsel. In view of the aboveOrder this application is dismissed. There will be no costs.
AMEER ISMAIL, J. – I agree.
EBERT SILVA AND ANOTHER v. SILVA