059-NLR-NLR-V-62-GOONASEKERA-Appellant-and-DE-JOODTH-and-another-Respondent.pdf
Ooonasekera v. JDe Joodth
257
I960Present : Basnayake, C.J., and de Silva, J.
GO ONASEKBRA, Appellant, and IDE JOOETH and another,
Respondents
S. C. 170—D, C. Avissawella, 748S
■Appeal—Application for typewritten copies—Due steps not taken—■Abatement ofappeal—Civil Appellate Rules of 1938, Rule 4——Validity thereof—CourtsOrdinance, s. 49 (J).
Rule 4 (6) of the Civil Appellate Rules, 1938, providing for abatement ofappeals in the circumstances stated therein is not ultra vires of the rule-makingpowers conferred on the Supreme Court by section 49 (1) of the Courts^Ordinance.
258
BASNAYAKE, C.J.—Goonasekera v. De Joodth
A*
PEAL from a judgment of the District Court, Avissaw ella.
O.T. Samarawickreme, for Defendant-Appellant.
H. W. Jayewardene, Q.C., "with S. J. Kadirgamar and Ralph de Silva,for Plaintiffs-Respondents.
June 30, 1960. Basnayake, C.J.—
A preliminary objection is taken to the hearing of this appeal on theground that the application for typewritten copies has not been made inaccordance with the provisions of the Civil Appellate Pules, 1938. Learnedoounsel for the appellant does not contend that there is an applicationfor typewritten copies as required by the Civil Appellate Rules, 1938,and he is unable to satisfy us that there is such an application, but hesubmits that Rule 4 (6) of the Civil Appellate Rules, 1938, is ultra viresof the rule-making powers of this Court, in that the rule is inconsistentwith the provisions of section 766 of the Civil Procedure Code. Therule reads :—
“ 4. (a) Where the appellant fails to make application for typewrittencopies in accordance with the requirements of these rules ; or
(6) fails to pay the additional fees due under rule 2, sub-rule (4),within one month from the date of the order requiring him to do so,or before the expiry of the time allowed by rule 2, sub-rule (7), whicheveris later, the appeal shall be deemed to have abated.”
This rule which was made by the Judges of this Court in 1938 replacedRule 6 of the earlier Civil Appellate Rules which came into force in 1914when for the first time an appellant was required to furnish typewrittenoopies of the record of the case for the use of the appellate Judges. Therepealed rule was as follows :—-
“ Where the appellant fails to make application for typewrittencopies in accordance with the requirements of these rules, the appealshall, subject to the provisions of the Civil Procedure Code, be dis-missed forthwith, unless it appears to the Court to be reasonable thatfurther time should be allowed.”
This rule came up for consideration by this Court on numerous occa-sions, but it is sufficient to refer to the case of Perera v. Sinno1 whereWood Renton, C.J., after explaining how it should be worked,^stated :
“ I have thought it- right, in view of what Mr. E. W. Jayawardenehas kindly said, to make these observations with the double object ofshowing the importance of the Rules in question to the Supreme Courtand to the public interests which it has to secure, and also that theydo not create practical hardship, in so far as individual litigants are-concerned.”
1 Balasingham's Notes of Cases p. 40.
BASNAYAKIC, C.T.—Ooo-nasebera v. De Joodth
259
Rule 5 was always acted, on and its validity was never questioned.The departure in 1938 from the form of that rule must be presumed tobe by design because it was completely recast. Since then, so far asreported decisions go, the validity of the rule appears to have been ques-tioned only in the case of Abdul Coder v. Sittinisa1 where it was held thatit was intro vires. We are in entire agreement with the following remarksof Pulle J. in that case :—
” … it is difficult to maintain that a body empowered to enact
Tules of practice to supplement the Civil Procedure Code is barredfrom laying down what the consequences would be if a step in theprocedure is not complied with.”
The section of the Courts Ordinance under which both the earlier ruleand the present rule were made reads :—
”49. (1) It shall be lawful for the Judges of the Supreme Court orany five of them, of whom the Chief Justice shall be one, from time totime to frame, constitute, and establish such general rules and ordersof court as to them shall seem meet, for regulating all or any of thefollowing matters :—
(а)the form and manner of proceeding to be observed in the Supreme
Court at civil and criminal sessions, and in all courts subor-dinate to it, and the keeping of all books, entries, andaccounts to be kept in all such subordinate courts, and for thepreparation and transmission of any returns or statements tobe prepared and submitted by such courts ;
(б)the pleading, practice, and procedure where not specially provided
for by the Civil Procedure Code, or the Criminal ProcedureCode, upon all actions, suits, prosecutions, and other matters,civil and criminal, to be brought in the Supreme Court andin all courts subordinate to it ;
the proceedings of Piscals and other ministerial officers of the
said courts, and the process of the said courts and the modeof executing the same
the mode of sximmoning, empanelling, and challenging of
assessors and jurors ;
proceedings on arrest in mesne process or in execution ;
(/) the taking of bail ;
the duties of jailers and others charged with the custody of
prisoners in so far as respects the making due returns to therespective Judges of the Supreme Court of all prisoners intheir custody ;
the mode of prosecuting appeals,
and generally to frame, constitute, and establish all such generalrules and orders as may be necessary for giving full and completeeffect to the provisions of this Ordinance, and for regulating any matters
1 (1951) 52 N. L. R. 536.
260
BASIN'A YAKLE, C.J.—Qoonasekera v. De Joodlh
relating to the practice and procedure of the said courts not speciallyprovided for by the Civil Procedure Code, or the Criminal Procedure-Code, or to the duties of the officers thereof, or to the costs of proceedings-therein, and to frame forms for any proceeding in the said courts foxrwhich they think a form should be provided ; and all such rules, orders;,and forms to revoke, annul, alter, amend, or renew, as occasion mayrequire :
Provided always that no such rules, orders, or forms shall be repug-nant to or inconsistent with any of the provisions in this or any otheirOrdinance contained.”
Apart from the wide powers granted by its general words paragraph (hyof the section confers express power to regulate the mode of prosecutingappeals. The powers granted by the section are wide enough to enablerules such as that in Rule 4 to be made. We do not think that the rule-is ultra vires of that section, nor is it repugnant to or inconsistent with,any of the provisions of the Courts Ordinance or any other Ordinance.
The right of an appellate Court to refuse to entertain an appeal or to-strike an appeal off for failure to provide a proper brief is well recognised,in all jurisdictions. In the South African case of Kahn v. Radyn 1 Herbs-tein J. ordered an appeal to be struck out because the appellant had failedto comply with the rule requiring him to supply copies of the whole-record with a complete index of papers indicating at what page eachdocument and the evidence of each witness will be found. He said :“ There is no ‘ index no exhibits and no pleadings.” In the later case oJTM.ashaba v. Engbelbrechi 2 where no notice of appeal app oared in the copies-of the record nor the Magistrate’s reasons nor any notice set down asrequired by rule 97 of the rules of Court the appeal was struck off the roll.In the case of JBekker v. Dawkins Steenmakery3 appearing in the same-volume at p. 32 a civil appeal was struck off the roll where the recordwas neither correct nor complete in that none of the exhibits of a-documentary nature had been copied.
We are of opinion that the rule is intra vires and that it is capable of~being, easily observed by those who are diligent and not remiss abouttheir duties in regard to appeals. It is being observed in the vast majorityof appeals. By way of reinforcing what has been said above I wish to-point out that the provision in one form or another has been unquestioned,for nearly half a century, and carries the imprimatur of all the Judges-constituting this Court at the time it was made.
The appeal is rejected.
dis Sh.va, J.—I agree.
*1949 (4) S. A. L. R. 552.
Appeal rejected-21959 (1) S. A. L. R. 34-
01959 (J) S. A. L. R. 32.