Sri Lanka Law Reports
 2 Sri L. R.
v.PUSS ADEN IYA, COMMISSIONER OF NATIONAL HOUSINGAND ANOTHER
SAMARAKOON. C.J.. VICTOR PERERA. J. ANDCOLIN-THOME. J.
S.C. APPEAL NO. 2/83S.C. SPL. LA NO. 113/82C.A. APPLICATION NO. 958/8101 MARCH 1983
Appeal — Special leave to appeal to Supreme Court — Failure to lodge writtensubmissions in 14 days — Rules 12 and 35(e) of the Supreme Court Rules.
The petitioner failed to lodge his written submissions within 14 days of the grantof Special Leave to Appeal. This is a non-compliance with a mandatoryrequirement of Rule 35(e) of the Supreme Court Rules of 1978 and the appealwill be dismissed.
OBJECTIONS to appeal being proceeded with after grant of Special Leave toAppeal.
Nimal Senanayake. S.A. with Miss S. M. Senaratne and Tilak Balasuriya forappellant.
H. L. de Silva. S.A. with L. C. Seneviratne for 2nd respondent.
Cur. adv. vult
16 March, 1983VICTOR PERERA, J.
The petitioner had made an application to the Court of Appealfor a Writ of Prohibition and Mandamus. The Court of Appeal byits order dated 4th November 1 982 dismissed the application.The petitioner on the 24th November 1982 lodged a petition inthis Court for the grant of Special Leave to Appeal under Article1 28(2) of the Constitution. After notice on the respondents wasserved and caveats lodged in terms of the Supreme Court Rulesof 1978. the petitioner was heard and order was made on 18thJanuary 1983 granting Special Leave to Appeal.
Gunawardena v. Pussademya. Commissioner of National
Housing and Another (Victor Perera, J.)
The petitioner had failed to lodge his written submissions inCourt within 14 days of the granting of Special Leave to Appealby this Court. The 2nd respondent thereupon, on the 3rdFebruary 1983, after the expiry of the said 14 days, filed amotion that this matter be put up for an order of Court and thiscame up before us on the 1st March 1983, after notice to thepetitioner, for disposal.
The petitioner, however, had after this motion was filed on
by the 2nd repondent. lodged a fresh petition of appeal interms of Rule 1 2(2) on 8.2.83 and tendered written submissionon 11.2.83. The fresh petition of appeal and the writtensubmissions were thus filed after 14 days had expired after leavewas granted. It was contended on behalf of the petitioner thatRule 1 2(2) enabled him to lodge a fresh petition of appeal afterhis earlier petition for Special Leave had been allowed and thattherefore he was entitled to file his written submissions within 14days of the lodging of the fresh petition of appeal. On behalf ofthe 2nd respondent it was contended that Rule 12(2) whichenabled the lodging of a fresh petition of appeal did not absolvethe petitioner from complying with the mandatory provision ofRule 35(e) requiring him to file his written submissions within 14days of the granting of leave as the application for leave was forall purposes now a " petition of appeal ”.
Rule 1 2 reads as follows :—
"12(1) " Where an application for special leave to appeal hasbeen allowed, it shall not be necessary for theappellant to give notice of appeal or to lodge a freshpetition of appeal, but the application for leave toappeal shall in such case be deemed to be the petitionof appeal, but in all other matters he shall comply withthe rules relating to appeals.
(2) Nothing contained in Sub-rule (1) shall be deemed topreclude such appellant from lodging a fresh petitionof appeal, in which case, he shall comply with the provisionsof the Rules relating to appeals. "
Sri Lanka Law Reports
[198312 Sri L. fl-
it is clear from an examination of this Rule that the originalapplication for Special Leave dated 24th November 1983 was tobe regarded as " the petition of appeal " although the petitionerwas permitted to lodge a fresh petition of appeal. In all othermatters the petitioner was obliged to comply with the Rulesrelating to appeals.
Rules relating to applications for Special Leave to Appeal arecontained in Part I — Rules 2 to 18. Therefore this Rule 1 2 doesnot apply to appeals filed in the Supreme Court for whichprovision is made in Part II — Rules 27 to 43. However, in regardto the steps to be taken after" an application for Special Leave toAppeal " which becomes for all purposes " a petition of appeal "filed in the Supreme Court, the Rules in Part II apply.
Rule 35(e) provides as follows
"35(e) The appellant shall, as soon as may be, and in any case,within fourteen days of the grant of special leave toappeal or the filing of an appeal lodge his submissions,and forthwith give notice thereof to each respondentserving on him a copy of such submissions. "
The first limb of Rule 35(e) applies. But the second limb of Rule35(e) cannot apply as the date of the " filing of the appeal " will/elate back to the date of the application for Special Leave toAppeal and not to the date the fresh petition of appeal waslodged in terms of Rule 12. the latter date not being the date ofthe filing of the appeal.
The petitioner in this case had thus failed to lodge his writtensubmissions within 14 days of the grant of Special Leave toAppeal. As this is a non-compliance with a manadatoryrequirement of the Supreme Court Rules of 1978, the appealstands dismissed with costs fixed at Rs. 525/- payable by thepetitioner to the 2nd respondent.
SAMARAKOON, C.J. – I agree.
COLIN-THOME. J. – I agree.
GUNAWARDENA v. PUSSADENIYA, COMMISSIONER OF NATIONAL HOUSING AND ANOTHER