KARUNASEKERA v. REV. CHANDANANDA

011-SLLR-SLLR-2004-V-2-KARUNASEKERA-v.-REV.-CHANDANANDA.pdf


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KARUNASEKERAv
REV. CHANDANANDACOURT OF APPEALAMERATUNGA, J. ANDBALAPATABENDI, J.
A. NO. 526/99
C. KURUNEGALA 320/LOCTOBER 31, 2002NOVEMBER 8, 2002
Court of Appeal (Appellate Procedure) Rules of 1990, Rule 3(1)a, 3(1) (9),Constitution, Articles 138, 140 and 141 – Supreme Court Rules of 1978, Rule46 – Failure to comply with mandatory provisions – Is the sanction which fol-lows the failure to comply automatic? – Writ pending appeal – Substantial loss- Substantial questions of law – Judicature Act, section 23 – Amendment Act,No, 16 of 1989 – Civil Procedure Code, sections 757, 758, 761, 762, 763 and763(2) Amendment Act, No. 53 of 1980.
Pending appeal the plaintiff-respondent Viharadhipathi of the EthkandaViharaya made an application for the execution of the decree, which wasallowed.
The defendant moved in revision.
The plaintiff-respondent raised a preliminary objection in limine to the main-tainability of the application on the failure to produce copies of documentsmaterial to the application.
Held:
i) In the statement of objections of the plaintiff judgment creditor respon-dent, the petitioner’s failure to file the necessary documents has beenspecifically raised but even thereafter the petitioner has not taken steps
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to file those documents. Thus there is a clear failure to comply with themandatory provisions of Rule 3(1) (b), Court of Appeal Rules, 1990.
ii) All material relevant to review the trial judge’s finding on the absence ofproof relating to substantial loss, had been placed by the petitioner; how-ever, as regards the existence or the non-existence of a substantialquestion of law, the judgment and the material evidence led, had notbeen produced. It is fatal.
Hi) Sanction which follows the failure to comply with a mandatory rule is notautomatic; the imposition of the sanction is a matter to be judiciouslydecided.
Per Qamini Amaratunga, J.
This court will take into account the question of law set out in the petition ofappeal but this court cannot rest its decision solely on what is stated in the peti-tion of appeal. Any one drafting a petition of appeal is free to set down there-in any number of questions of law, but whether such questions of law in factexist is a finding a judge has to make before exercising the discretion given tohim under section 23 of the Judicature Act.”
APPLICATION In revision from an order of the District Court of Kurunegala.Cases referred to:
Navaratnasingham v Arumugam – (1980) 1 SRI LR 1
David Appuhamyv Yassassi Thera – (1987) 1 SRI LR 254(CA)
Kiriwante and anotherv Navaratne and another (1990) 2 SRI LR393(SC)
Cooray v lllukkumbure – (1996) 2 SRI LR 263 (SC)
Harte v Framton – (1947) 2 All ER 604
Mack v Sanmugam – Sri Kantha Law Reports – Vol. Ill – 89 at 95.
Saleem v Balakumar- (1981) 2 SRI LR 74
Kandasamy v Gnanasekeram – CALA 78/81 – CAM 17.7.81
Charlotte Perera v Thambiah – (1983) 2 Sri LR 352
Sideek v Fuard (1997) 1 SRI LR 42
Hunsaira v Samaranayaka – (1998) 1 SRI LR 141
Amarange v Seelawathie Weerakoon – (1990) 2 SRI LR 232
Brooke Bond (Ceylon) Ltd., v Gunasekera – (1990) 1 SRI LR 71
Manohara R. de Silva for petitioner
P.A.D. Samarasekera, P.C., with Kirthi Sri Gunawardena for plaintiff.
Cur.adv.vult
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January 20, 2003
GAMINIAMARATUNGA, J.This is an application for revision against the order of the oilearned Additional District Judge of Kurunegala allowing the appli-cation of the plaintiff-respondent to execute decree pending appeal.
The plaintiff-respondent, who is Viharadhipathi of the EthkandaRaja Maha Viharaya situated in Kurunegala, filed action in theDistrict Court of Kurunegala seeking a declaration that the landwhere the ’Devalaya’ called the Gale Bandara Devalaya is situatedand the material objects kept in the said Devalaya belong to theEthkanda Raja Maha Viharaya and an order for the ejectment ofthe petitioner (who claimed that she is the present incumbent of the iooffice of the ‘Kapurala’ of the said Devalaya) from the saidDevalaya. After trial, at which both parties have adduced and pro-duced evidence in support of their respective claims to thisDevalaya, the learned District Judge has entered judgment infavour of the plaintiff-respondent. The present petitioner, who wasthe defendant has not filed a copy of the judgment of the DistrictCourt along with this revision application or at any time thereafter.
In the absence of the copy of the judgment this court has to be con-tent with the petitioner’s own assertion, contained in paragraph 7 ofher petition, that “the learned District Judge delivered his judgment 20holding that the Gale Bandara Devale land and the Devalebelonged to the Ethkanda Raja Maha Vihara and entered judgmentfor the substituted plaintiff-respondent”. The present petitioner haspreferred an appeal against this judgment which is now pending inthis court bearing number C.A. 860/97.
Pending appeal the present-respondent who is the plaintiffViharadhipathi of the Ethkanda Viharaya made an application to theDistrict Court, Kurunegala, for the execution of the decree pendingappeal. After Inquiry, having considered the evidence and materialthat was before him the learned Additional District Judge made 30order dated 31.5.1999 allowing execution of the decree pendingappeal. This revision application is against that order.
The learned President’s Counsel for the respondent raised apreliminary objection in limine to the maintainability of this applica-' tion. He submitted that the petitioner’s failure to produce copies of
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documents material to this application is fatal in view of the manda-tory provisions of Rule 3(1 )(b) (read with Rule 3(1 )(a)) of the Courtof Appeal (Appellate Procedure) Rules of 1990.
Rule 3 (1)(b) is as follows: “Every application by way of revisionor restitutio in integrum under Article 138 of the Constitution shallbe made in like manner together with copies of the relevant pro-ceedings (including pleadings and documents produced) in theCourt of First Instance, Tribunal or other institution to which suchapplication relates ”
The words ’in like manner’ refers to Rule 3(1 )(a) of the Court ofAppeal (Appellate Procedure) Rules of 1990. For the purposes ofthis judgment it is not necessary to quote rule 3(1 )(a) here.
Rule 46 of the Supreme Court Rules of 1978, published inGazette 9/10 of 8.11.78 is the precursor of the present rule 3. Rule46 is as follows:
“Every application made to the Court of Appeal for theexercise of powers vested in the Court of Appeal byArticle 140 and 141 of the Constitution shall be by way ofpetition and affidavit in support of the averments set outin the petition and shall be accompanied by originals ofdocuments material to the case or duly certified copiesthereof, in the form of exhibits. Application by way of revi-sion or restitutio in integrum under Article 138 of theConstitution shall be made in like manner and shall beaccompanied by two sets of copies of the proceedings inthe Court of First Instance, tribunal or other institution.”
In a series of cases, commencing from the case ofNavaratnasingham v ArumugarrP) this court and the SupremeCourt has held that in an application made to the Court of Appealunder Article 140 of the Constitution (writ jurisdiction) and Article138 (revisionary jurisdiction), a petitioner’s failure to annex “pro-ceedings", (which within the meaning of Rule 46 means andincludes “so much of the record as would be necessary to under-stand the order sought to be revised and to place it in its propercontext…. and often this expression would include pleadings, state-ments, evidence and the judgment) is fatal and the application isliable be rejected for non compliance with the Rule. I have taken
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those words set out above in brackets from the judgment ofSoza, J. in Navaratnasingham v Arumugam (Supra). In the case ofDavid Appuhamy v Yasassi Therd2 Wijeturiga, J. having consid-ered the view of Soza J. said “I am in respectful agreement with theview of Soza, J(page 255).
The decided cases therefore establish two clear propositions oflaw relating to Rule 46 and those propositions are equally applica-ble in respect of the present Rule 3(1 )(a) and 3(1 )(b). Those propo-sitions are as follows:-
Rule 46 is mandatory and the failure of a petitioner, in anapplication filed under Articles 138, 140 and 141 of theConstitution to comply with the mandatory requirements ofthat Rule, is fatal.
What is required to be produced under Rule 46 is “so muchof the record as would be necessary to understand the ordersought to be revised and to place it in its proper context andwould include pleadings, statements and the judgment.”
The petitioner along with her petition has annexed the followingdocuments:
P1- Certified copy containing petition of appeal, plaint, amendedplaint, answer, amended answer and the evidence of theplaintiff;
P2- a certified copy of the issues framed at the trial;
P3a A notice sent by this court to deposit brief fees;
P3b Copy of the receipt for brief fees;
P4- Copy of the petitioner’s objections to the application for theexecution of the decree;
P5- A copy of the proceedings of the inquiry into the applicationfor execution of the decree;
P6- Written submissions of the defendant-judgment-debtor filedafter the said inquiry;
P7- Order of the learned Additional District Judge allowing exe-cution of the decree.
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The petitioner has not filed the following documents along with herpetition.
A copy of the other evidence led at the trial especially the evi-dence given by the petitioner;
A copy of the learned trial Judge’s answers to the issues; 110
A copy of the judgment;
A copy of the plaintiff-respondent’s application for the execu-tion of the decree.
The petitioner, in paragraph 1 of her petition has stated that “shedoes not have certified copies of all documents necessary for thisapplication at present. She has applied for copies of the same andin the circumstances seeks Your Lordships’ permission to submitthe same subsequently”. Paragraph 10 of the petition also containsa similar averment. But at any time thereafter the petitioner has notfiled those documents which according to her own assertion are 120‘documents necessary for this application.’
In the statement of objections of the plaintiff-judgment-creditor-respondent, dated 31.01.2000, the petitioner’s failure to file thenecessary documents has been specifically raised. But eventhereafter the petitioner has not taken steps to file those docu-ments. Thus there is a clear failure to comply with the mandatoryprovisions of rule 3(1 )(b) of the Court of Appeal (AppellateProcedure) Rules of 1990. However the sanction which follows thefailure to comply with a mandatory rule is not automatic. The impo-sition of the sanction is a matter to be judiciously decided.130
A Court’s approach in a situation of this nature has to be posi-tive in order to strike a balance between the competing interestscreated by the mandatory nature of some of the rules and the needto keep the channels of procedure open for justice to flow freelyand smoothly.
In Kiriwanthe and another v Navaratna and another I3), TheirLordships Justices Fernando and Kulatunga have made valuableobservations with regard to the consequences of the failure to com-ply with a mandatory Rule. Fernando, J. said as follows:
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“weight of authority thus favours the view that while all 140these rules must be complied with the law does notrequire or permit an automatic dismissal of an applicationor appeal of the party in default. The consequence ofnon-compliance (by reason of impossibility or for anyother reason) is a matter falling within the discretion ofthe court to be exercised after considering the nature ofthe default, as well as the excuse or explanation therefor,in the context of the object of the particular Rule”, (page404)
Kulatunga, J. in the same case said ‘The court will not condone 150non-compliance with the rule or a failure to show uberrima tidesreferable to such non-compliance. In exercising its discretion thecourt will bear in mind the need to keep the channels of procedureopen for justice to flow freely and smoothly and the need to main-tain the discipline of the law. At the same time the court will not per-mit mere technicalities to stand in the way of the court doing jus-tice.”
“No discretion can be allowed to either party to decide what andwhat are the necessary documents that should be tendered withthe petition or even later, where an objection is taken on the ground i60of non-compliance.”
“A total non compliance will render the application liable to dis-missal. Such dismissal is not a punishment but a consequence ofnon-compliance with the mandatory requirements of the rule”,(page 416)
In accordance with the above quoted observations it is neces-sary to see how material are those documents which the petitionerhas failed to produce for a just and correct decision in this applica-tion.
In making his order the learned District Judge has addressed his 170mind to both matters to be considered in deciding an applicationunder section 763 of the Civil Procedure Code. Those two mattersare whether substantial loss would be caused to the judgmentdebtor if execution pending appeal is allowed and whether there isa substantial question of law to be decided in the appeal.
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The petitioner has produced a complete copy of the proceedingsof the Inquiry in to the application for execution pending appeal. Inparagraph 9 of the petition the petitioner has stated that at theinquiry her son Premalal gave evidence as she was bed ridden.PremalaPs evidence was the only evidence led on behalf of thepetitioner to prove substantial loss. According to his evidence he isan employee of the Kurunegala Peopolized Transport Servicedrawing a monthly salary of Rs. 4000/-. He has said that whilstbeing so employed, he performed services and poojas as Kapuralaof the Gale Bandara Devalaya. According to his evidence hederived a monthly income of about Rs. 1500/- (after deductingexpenses) or sometimes less than that as the Kapurala. At the timethis witness gave evidence he was 40 years of age but at any timeprior to that he has not sought to intervene in the main case or inthe application for execution either as Kapurala or as a co-kapuralaperforming services with his mother. He is not the judgment debtor.The learned Additional District Judge in his Order has rightlyobserved that he has not said how much money he gave to hismother out of the monthly income of Rs. 1500/- he received fromthe Devala. He has not at least said that he used this money tomaintain his mother, the present petitioner. In fact he has statedthat he needs the income, he derives from this Devale to maintainhis family! Thus there was no any evidence before court that sub-stantial loss would be caused to the judgment debtor if the execu-tion of the decree pending appeal is allowed. Accordingly the Judgehas rightly held that no substantial loss would be caused to the peti-tioner by allowing execution pending appeal.
The learned Judge has also held that no substantial loss wouldbe caused even to the petitioner’s son by allowing execution pend-ing appeal. As I have stated above since the petitioner’s son wasnot a party to the case he is a 3rd party. In delivering the judgmentof the Supreme Court in Cooray v lllukkumbura <4) Wijetunga, J.has quoted the words of Asquith LJ, in Harte v FramtorP) to the fol-lowing effect. ‘The true viewis that thejudge should
take into account hardships to all who may be affected by the grantor refusal of an order of possession – relatives dependents,lodgers, guests and the strangers within the gates but weigh suchhardship with due regard to the status of the persons affected and
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their proximity to the tenant or landlord and the extent to which con-sequently, hardship to them would be hardship to him.” (page 267).
In Coorayv lllukkumbura {Supra) Wijetunga, J. has quoted theabove words in dealing with the question whether hardshipscaused to 3rd parties such as the employees of a business carriedout by the judgment debtor in the premises from which he is soughtto be ejected is a relevant consideration in deciding the hardship 220that would be caused if execution pending appeal is permitted. HisLordship in that case held that in relation to business premises,hardships that may be caused to the employees of the judgmentdebtor is also a factor relevant in deciding the hardships resultingto the judgment debtor in the event of allowing execution pendingappeal.
As I have stated earlier, the petitioner’s son Saratchandra is athird party as far as this case is concerned. However from his evi-dence it was clear that he was performing the services of theKapurala with the approval or permission of his mother. Though the 230Kapurala’s services in a Devale is not a business with the strictsense or the word, it has a monetary value in that it gave him anadditional income of about Rs. 1500/- per mensum which he usedto maintain his family. He has thus quantified his damage at Rs.1500/- per mensum. This is the normal monetary damage resultingto him in the event of execution pending appeal. This is the usualdamage or loss caused to any judgment debtor. But substantialloss does not carry with it a mere monetary connotation. It has arelative meaning. See Mack v Shanmugami6) – per SivaSelliah, J.240
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A Kapurala of a popular and a famous devale, to which devoteesflock to seek the assistance of and relief from the deity worshipedin that devale, is a man held in very high esteem in the localitywhere that devale is situated. The position of Kapurala of such aDevalaya is a social status. The loss of such a status may proper-ly be classified as substantial loss within the meaning of section763 of the Civil Procedure Code. There isn’t a single word in theevidence of Sarathchandra that he or his mother (the petitioner)enjoy such high social status in view of their role as the Kapuralasof the Gale Bandara Devalaya, the subject matter of this applica- 250tion. Sarathchandra’s claim is that he would suffer monetary loss in
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a sum of Rs. 1500/- per mensum if execution pending appeal isallowed. No other loss was urged.
In this case, apart from the quantified monetary loss, there wasno evidence that substantial loss would be caused ta4he petitioneror to her son if application for execution pending appeal is allowed.Therefore I hold that the learned Judge’s finding that no substantialloss would be caused even to the son of the petitioner is a correctfinding both on the facts and the law.
This now brings me to the question of considering the learned 260Judge’s finding that there is no serious question of law to be decid-ed in appeal. In Saleem v BalakumarP) this court has held that theexistence of a substantial question of law to be adjudicated in theappeal is a good ground for staying execution pending appeal.Section 763 of the Civil Procedure Code does not say that the exis-tence of a substantial question of law to be adjudicated in appeal isa ground for refusing an application for execution pending appeal.When this submission was made in the case of Mack vShanmugam (supra) Siva Selliah, J. rejected it with the followingwords.270
‘This submission is unacceptable. In the exercise of hisdiscretion (the trial Judge) he must consider whether inthe given circumstances the appeal is a frivolous onedesigned to stall the decree or one that contains sub-stantial questions of law for determination by the ’Court ofAppeal’ and where substantial questions of law awaitdetermination of the Court of Appeal….such questionsare hot irrelevant."
Having referred to the case of Saleem v Balakumar (supra) SivaSelliah, J. went on to say as follows. ‘The case of Kandasamy v 280Grtanasekerani6) is relevant. There Soza, J. stated ‘therefore stayof execution pending appeal will be granted if there is some doubtof the justice of the decision and if execution will cause damage, tothe appellant which is both irreparable and exhaustive” (page 97).
In the case of Charlotte Perera v Thambiah (9) Samarakoon, CJ.with Justices Wanasundara, Wimalaratna and Ratwatte agreeing(Sharvananda, J. dissenting) has said as follows:
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“It appears to me as the law as it stands is somewhatwider than the provisions of section 761 of (cap 86).
Under that section a court could stay writ for “sufficient 290case” but whatever that cause may be it must be shownto the satisfaction of court that it may result in “substan-tial loss”. Then and only then, can the order be made.
Today the matter is governed by the provisions of section23 of the Judicature Act (as amended by Act, No. 37 of1979) read with section 763 (2) of the Civil ProcedureCode (as amended by Act No. 53 of 1980). Section 23permits the court to stay writ of execution if it sees fit andsection 763(2) permits it to stay writ if the judgmentdebtor satisfies the court that substantial loss may result. 300The two provisions are not linked as in section 761”.(emphasis added)
Wijetunga, J. in delivering the judgment in Cooray vlllukkumbura (supra) having referred to the aforesaid case ofCharlotte Perera v Thambiah has stated that “section 23 permitsthe court to stay writ of execution if it sees fit, while section 763 (2)permits it to stay writ if the judgment debtor satisfies the court thatsubstantial loss may result; and these two provisions are not linked.
The court is thus empowered to act under either of these sections”.
Thus it is clear from the decisions in Saleem v Balakumar 310(supra) Mack v Shanmugam(supra) Kandasamy v Gnanasekeram(supra) Charlotte Perera v Thambiah (supra) Cooray vlllukkumbura (supra) and Sideek v Fuard (1°) that the principle“execution pending appeal may be stayed if there is a substantialquestion of law to be decided in appeal is well established in thelaw of Sri Lanka even in situations where there is no proof beforecourt to show substantial loss to the judgment debtor if executionpending appeal is allowed. A Judge’s discretion to stay executionon this ground is referable section 23 of the Judicature Act, No. 2of 1978 as amended by Act, No. 37 of 1979.320
Section 23 of the Judicature Act was repealed and replaced bya new provision by Judicature (Amendment) Act, No. 16 of 1989.
The new section does not contain any reference to a DistrictJudge’s power to stay execution pending appeal when he sees it fitto do so. According to section 1 of the amending Act, the amend-
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merit comes into operation on a date appointed by the Minister byOrder published in the Gazette. So far no such Gazette Notificationhas been issued to bring Act, No. 16 of 1989 into operation.Therefore section 23 as it appeared originally in the Judicature Act,No. 2 of 1978 (as amended by Act, No. 37 of 1979) is still in forceand G.P.S. de Silva CJ., in Husaira v Samaranayake (11) held thata District Judges discretion to stay execution when he sees ‘it fit todo so’ still exists. Therefore independently of the provisions of sec-tion 763 of the Civil Procedure Code, the District Court has powerunder section 23 of the Judicature Act to stay- execution pendingappeal if the court is of the view that there is a substantial questionof law to be decided in appeal.
In this case the learned District Judge has held that the materi-al placed before him did not disclose a substantial question of lawto be decided in the appeal. In these proceedings this court iscalled upon to review the correctness of this finding. This courtneeds to have before it at least the same material available to thelearned District Judge when he made his order. Document P5 pro-duced by the petitioner is a complete copy of the Inquiry held inrespect of the judgment creditor’s application for execution of thedecree pending appeal. The-proceedings indicate that at the con-clusion of the Inquiry copies of the amended plaint, amendedanswer, issues, judgment and the petition of appeal had been ten-dered to court on behalf of the present petitioner. Thus it is clearthat when the learned District Judge held that there was no sub-stantial question of law to be decided in the appeal, he had beforehim the judgment and the petition of appeal. But alas! the judgmentis not avialable to us. The petitioner has not produced a copy of thejudgment.
The learned Counsel for the petitioner has in his written sub-missions stated that the learned District Judge's task is not toascertain the intricacies of the questions of law formulated but tosee whether the petition of appeal ex-facie contains substantialquestions of law. The tenor of his argument is that it is not neces-sary to produce a judgment before this court. I regret my inability toagree with this Submission.
The lodging of an appeal from a judgment of the District Courtby an aggrieved party does not ipso facto have the effect of stay-
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ing the execution of judgtment. Amarange v SeelawathieWeerakood^2). A court should not lightly interfere with a decreeholder’s right to reap the fruits of his victory as expeditiously aspossible. Brooke Bond (Ceylon) Ltd. v Gunasekera^). The law ofthis country, under section 761-763 of the Civil Procedure Codeand section 23 of the Judicature Act, is that execution pendingappeal is the rule and stay of execution is the exception. There are 370two situations where the exception can defeat the rule. The situa-tion applicable to the present discussion is where the court is of theview that there is a substantial question of law to be decided in theappeal. How and on what material the court has to decide whetherthere is a substantial question of law? The contention of the learnedcounsel for the petiioner is that the questions of law set out in thepetition of appeal ex fade indicate the existence of substantialquestions of law to be decided in appeal and therefore the DistrictJudge is not expected to go beyond the petition of appeal.
Anyone drafting a petition of appeal is free to set down therein ssoany number of questions of law. But whether such questions of lawin fact exist is a finding a judge has to make before exercising thediscretion given to him under section 23 of the Judicature Act. Thisis a part of his judicial functions and he cannot and is not expectedto leave this aspect of his function in the hands of the person whodrafted the petition of appeal and mechanically say that there aresubstantial questions of law to be decided in the appeal. He shouldat least examine whether the existence of such questions are borneout by the findings of the trial Judge in his judgment.
In a revision application when this court is invited to set aside 390the learned District Judge’s finding that there is no substantialquestion of law to be decided in the appeal, this court must havebefore it sufficient material necessary to test the correctness of thelearned Judge’s finding. This court will certainly take into accountthe questions of law set out in the petition of appeal but this courtcannot rest its decision solely on what is stated in the petition ofappeal. We have to bear in mind that there is no requirement undersections 757 and 758 for an attorney-at-law to certify (as is requiredby section 322(1) of the Code of Criminal Procedure Code Act, No.
15 of 1979) that the matter of law to be argued in appeal is a fit 400question to be adjudicated by the Court of Appeal.
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In deciding whether there is a substanital question of law thecourt must have before it at least the judgment which is in appeal.
In my opinion in considering whether there is a substantial questionof law to be decided in the appeal a court must consider the fol-lowing matters.
How strong was the appellant’s case (placed before the trialcourt as against his opponents’ case) at the trial. For this pur-pose the court has to examine the evidence given by and onbehalf of the appellant at the trial, including the evidence given 410under cross examination.
The trial Judge’s answers to the issues framed at the trial.
The trial Judge’s reasons for answering the issues in the wayhe has done. This is the judgment.
After examining the material I have set out above, if the court isof the view that prima facie it appears that there is a substantialquestion of law to be considered in the appeal, then the court’s taskis over and it has to make a finding in favour of the party whoasserts that there is a substantial question of law to be decided inthe appeal. Here I agree with the submission of the learned coun- 420sel for the petitioner that the court is not expected to go into theintricacies of the question of law to be decided in the appeal: it issufficient if the court is satisfied that it prima facie appears thatthere is a substantial question of law to be decided in the appeal.
When Their Lordships in Saleem v Balakumar (supra) laid downthe proposition that the existence of a substantial question of law tobe decided in appeal as a ground for staying the executing of thewrit pending appeal had before them the clear question of law to bedecided in the appeal. My observations set out above apply tocases where the substantial question of law to be decided is not so 430glaringly visible.
Having made all those observations and keeping in mind theguidelines set out by Their Lordships Fernando, J. and Kulatunga.J.in Kiriwanthe v Navaranta (supra), I now turn my attention to thepreliminary objection raised by the learned President’s Counselthat the petitioner has failed to comply with the mandatory provi-
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sions of Rule 3(1 )(a) and (b) of the Court of Appeal (AppellateProcedure) Rules of 1990 and for that reason this application isliable to be dismissed in limine.
As I have pointed out above, all material relevant to reivew the 440learned Judge’s finding on the absence of proof relating to sub-stantial loss, had been placed by the petitioner before this court andtherefore the preliminary objection relating to that ground of reviewis hereby overruled.
With regard to the existence or the non-existence of a substan-tial question of law to be decided in the appeal, I have above indi-cated the need for this court to have before it the material namelythe petitioner’s evidence led at the trial, the- learned Trial Judge’sanswers to the issues and his reasons for his findings. The peti-tioner has failed to produce the above stated material to this court 450which are material to this application.
The petitioner has failed to explain to this court as to why shefailed to comply with the mandatory provisions of the said Rule3(1 )(a) and (b). Her failure is in-excusable. I therefore uphold thepreliminary objection in relation to this court’s task of reviewing thelearned Judge’s finding relating to substantial question of law anddismiss her application, not as a punishment to her, but as a con-sequence of her failure to comply with the mandatory requirementof the said Rule.
The respondent is entitled to costs in a sum of Rs. 10,500/- as 460costs of this application.
BALAPATABENDI, J. – I agree.
Application dismissed.