011-SLLR-SLLR-1987-1-HYDER-ALI-v.-RAJADURAI-AND-OTHERS.pdf
HYDER ALI
v.
RAJADURAI AND OTHERS
SUPREME COURT.
WANASUNDERA. A.C.J., ATUKORALE, J. AND SENEVIRATNE, J.
S.C. APPEAL No. 37/86 , S.C. LA 53/86, C.A LA 75/85.
D.C. MT. LAVINIA 1944/RE.
AUGUST 29, 1986.
Appeal-Application for leave to appeal, sections 756 (1) to (7) of Civil ProcedureCode-Failure to state reasons for granting leave to appeal, sections 104 and 109 ofCivil Procedure Code.
An order by the Court of Appeal without stating its reasons, granting leave to appeal toit from an order made by District Court refusing to dismiss an action for failure toproduce a document (sections 104 and 109 C.P.C.) is not an order made in error.
APPLICATION for special leave to appeal from order of the Court of Appeal
K.Shanmugalingam with K. Thevarajah for plaintiffs-appellants.
Dr. H. W. Jayewardene, Q.C. with M. S. M.Nazeem, P.C. and N. Sanoon for therespondent.
Cur. adv. vult.
November 21, 1986.
SENEVIRATNE. J.
The plaintiffs-respondents-petitioners instituted this action inthe District Court of Mt. Lavinia for ejectment of thedefendent-petitioner-respondent from premises No. 30, RidgewayPlace, Colombo, in terms of section 22(2) {bb) (ii) of the Rent Act No.7 of 1972, as amended by Act No. 55 of 1980. The defendant filedanswer stating that the plaintiff cannot have and maintain this actionunder the said provisions of the Rent Act. Thereafter, the case wasfixed for trial, and both parties filed their list of witnesses anddocuments.
After the case was fixed for trial, the defendant made an applicationunder section 104 of the Civil Procedure Code for an order of Courtdirecting the plaintiffs to produce for inspection a listed document towit-the Birth Certificate of the 2nd plaintiff. The plaintiffs in answer tothis application stated that they have applied for a copy of the BirthCertificate listed as a document, and had still not received it.Thereafter the defendant made an application under section 109 ofthe Civil Procedure Code to have the said action dismissed becausethe plaintiffs had not complied with the order of the Court to producethe document for inspection.
SCHyderAh v. Rajadurat (Seneviratne. J1139
The above matter was fixed for inquiry and after arguments wereheard and written submissions filed, the learned Distnct Judgedelivered his Order on 10.7.85, and held that the action cannot bedismissed because the Birth Certificate was not with the plaintiffs, andfurther ordered that the Birth Certificate should be tendered to thedefendant as soon as it was received. Thereafter, on the same day,
the defendant filed papers in the Court of Appeal for leave toappeal to the Court of Appeal from the said Order of 10.7.85. On
the Application for leave to appeal was supported in theCourt of Appeal, and the Court of Appeal granted leave making thefollowing order:
"Court is of the view that there is a final matter which should beargued. Leave to appeal is granted. List for argument in due course.Registrar to take steps under section 756(7) of the Civil ProcedureCode."
The plaintiffs-respondents-petitioners then made this Application tothis Court for special leave to appeal from the order of the Court ofAppeal dated 21.3.86. Several grounds have been urged in theApplication for special leave to appeal, inter alia
No reasons have been given by the Court of Appeal forgranting leave to appeal, aiLbough the plaintiffs opposed theApplication for leave k L.opeai
The defendant has sought to appeal against the DistrictJudge's Order though "erroneously in favour" of the defendant inorder to delay the action.
The Court of Appeal has erred and misdirected itself ingranting the leave to appeal. As such the plaintiffs-respondents-petitioners pray:
that special leave to appeal from the order of the Court ofAppeal dated 21.3.86 be granted.
that the order of the Court of Appeal of 21.3 86 be setaside.
make order that the record be sent back to the DistrictCourt of Mount Lavinia and to fix the case *or trial and toproceed with the trial.
On 16.7.86 this court has granted special leave to appeal and theappeal has now come before this court for hearing.
The ground specially urged in this appeal was that the Court ofAppeal did not give any reasons for granting leave to appeal. As suchthis court has to consider section 756 of the Civil Procedure Code,*which provides for an Application for leave to appeal. Sections756(1 )-(7) which deals with "procedure in respect of appeal andapplication for leave to appeal" (marginal note section 756(1)), do notprovide that the Court of Appeal when it grants an application for leaveto appeal must give its reasons. On the contrary there is a proviso tosection 756(5)(6) "provided that when an application is rejectedunder this sub-section the court shall record the reasons for suchrejection". This proviso shows, that this section 756 has purposelynot provided for giving the reasons when a leave to appeal applicationis allowed. In any case on a consideration of the order of the Court ofAppeal dated 21.3.86 granting leave to appeal there is a reason givenfor that order to wit-"Court is of the view that there is a final matterwhich should be argued”. This statement seems to suggest that in theview of the Court of Appeal what was involved is a matter of somesubstance, for if the lower court had decided the matter the otherway. it would have had the effect of finally disposing of the matter.
Learned Queen's Counsel for the respondent has opposed thisappeal urging that section 756 has only provided that reasons begiven if the leave to appeal application is refused; leave to appealhaving been granted by the Court of Appeal, there is now an appealpending in the Court of Appeal; only that court can dispose of thepending appeal, and if this court hears this appeal, this court will bedeciding an appeal which is already pending in the Court of Appeal.Learned President's Counsel submitted that as regards the groundurged by the petitioners that the application for leave to appeal to theCourt of Appeal had been made by the defendant-respondent to delay' the tenancy action, the plaintiffs-petitioners can move the Court ofAppeal for acceleration of the hearing of the appeal, and that thedefendant-respondent will not oppose such an application.
While we do not propose at this stage to make any pronouncementtouching on the merits of the issue before the Court of Appeal, we areunable to say that the Court of Appeal erred when it granted leave tothe defendant-respondent. I therefore dismiss this appeal with costs.
WANASUNDERA, J.-l agree.
ATUKORALE, J.-l agree.
Application dismissed.