004-SLLR-SLLR-2006-V-3-LEBBE-vs.-UMMA-AND-OTHERS.pdf
CA
Lebbe Vs.Umma and Others
27
LEBBEvs.
UMMA AND OTHERSCOURT OF APPEAL.
SOMAWANSA, J. (P/CA).
WIMALACHANDRA, J.
CALA 39/2005.
DC AKKARAIPATTU 73/L.
DECEMBER 02.2005.
Interim injunction – Refusal – Pleadings in Tamil – Not filling English translationof relevant documents in the Court of Appeal – Negligence of the Attomey-at-Law ? – Is it fatal ?
The plaintiff-petitioner sought leave to appeal from an order of the DistrictCourt of Akkaraipattu refusing the interim injunction sought. The plaintiff-petitioner annexed several documents to the petition, however most of thedocuments were in the Tamil language and English translations have notbeen provided. In the English translation of the plaint there is no scheduledescribing the subject matter.
HELD:
The plaintiff-petitioner’s substantive relief was declaration of title. Inthe absence of the description of the land to which the plaintiff seeks adeclaration of title. Court is unable to understand the order canvassedby the plaintiff-petitioner.
Per Wimalachandra, J.
“The omission to tender to Court, the necessary documents translated intothe English language is in my opinion fatal, as the Court cannot understandthe contents of the documents relied upon by the District Judge to make hisorder. If certified copies translated into the language of the Court could nothave been obtained in time it is the bounden duty of the petitioner to mentionthat fact in his petition and obtain leave of Court to tender them subsequently
It is not the function of the Court to translate documents
28
Sri Lanka Law Reports
(2006) 2 Sri LR.
It is due to the negligence of the Attomey-at-Law that the translations ofdocuments he relied on for his case were not produced. It is a settledprinciple of law that the negligence of the Attomey-at-Law is thenegligence of the client, and the client must suffer for it
APPLICATION for leave to appeal from an order of the District Court ofAkkaraipattu.
Cases referred to:
Francisco Vs SwadesN Industrial Works – 52 NLR 179 at 180
H. G Hussan for petitioners.
A. Mohamed Farook for 1st defendant-respondent.
M. Ismail Adamlebbe for 2nd and 4th defendant-respondents.
Cur. adv. vult.
April 24th, 2006.
WIMALACHANDRA, J.
This is an application for leave to appeal filed by the plaintiff-petitioner(plaintiff) from the order of the learned District Judge of Akkaraipattu dated
By the order the District Judge refused to grant the interiminjunction prayed for by the plaintiff
The plaintiff instituted the action bearing No. 83/L for a declaration thatthe plaintiff is the owner of the land described in the Schedule to the plaintby virtue of deed No. 133 dated 23.09.2003 attested by A. H. Sameen N.P. The plaintiff also sought an interim injunction and a permanent injunctionrestraining the defendants and their agents, servants and all those actingunder them from entering the land described in the schedule to the plaint.
The plaint and application for an enjoining order at the first instancewere supported before the District Judge. The learned Judge havingentertained the plaintiffs action, entered and issued an enjoining order asprayed for in the prayer to the plaint restraining the defendants and theiragents from entering the land described in the schedule to the plaint. TheCourt also issued notice of the application for the interim injunction andsummons on the defendant. The defendants appeared in Court on thesummons returnable date and was granted time to file their answer andobjections. On the due date the defendants filed answer, and also a petitionand affidavit objecting to the application for the interim injunction andmoving to have the enjoining order vacated.
CA
Lebbe Vs.
Umma and Others (Wimalachandra, J.)
29
The matter of the application for an interim injunction came up forinquiry on 17.01.2005. After hearing the parties, the learned Judgefixed the matter for order on 31.01.2005. On that day the Courtpronounced the order refusing the plaintiff’s application for an interiminjunction. It is against this order the plaintiff has made this applicationfor leave to appeal.
The plaint is in the Tamil language and the plaintiff has tendered anEnglish translation of the plaint. However, in the English translation ofthe plaint there is no schedule describing the land which is the subjectmatter of this action. The plaintiff’s main relief is for a declaration oftitle to the property described in the schedule to the plaint and theinterim injunction is to restrain the defendants and their agents fromentering the said land. In the absence of the description of the land towhich the plaintiff seeks a declaration of title, this Court is unable tounderstand the order canvassed by the plaintiff. Furthermore the plaintiffclaims title to the said land by virtue of deed No. 133 dated 23.09.2003.In these circumstances this Court is unable to ascertain whether theland described in the aforesaid deed in the same as the land supposedto have been described in the schedule to the plaint. Besides theEnglish translation is an uncertified and unsigned photocopy. ThisCourt cannot place much reliance on such a document.
The plaintiff has annexed several documents to the petition filed inthis Court. However, most of those documents are in the Tamil languageand English translations have not been provided, The documentsproduced marked as annextures Nos 6, 7, 9,10,11 are in the Tamillanguage and no English translations have been produced. The plaintiffis claiming title to the property in dispute by the aforesaid deed No.133 dated 23.09.2003 attested by Notary Public A. H. Sameen. Theplaintiff has not provided an English translation of this document, andthis document is vital to the plaintiff’s case as his case is based onthis deed by which he claims the title to the property in dispute. It ismy considered opinion that the order canvassed by the petition cannotbe reviewed in the absence of the English translations of the aforesaiddocuments. The plaintiff has not even taken any effort or interest toincorporate the schedule of the land as claimed by him into his petitionor affidavit.
30
Sri Lanka Law Reports
(2006) 2 Sri L R.
The omission to tender to the Court the necessary documentstranslated into the Engish language is in my opinion fatal, as the Courtis unable to understand the contents of the documents relied on bythe learned Judge to make his order. If certified copies translated intothe language of the Court could not have been obtained in time it is thebounden duty of the petitioner to mention that fact in his petition andobtain the leave of Court to tender them subsequently. The petitioner(plaintiff) has failed to abide by this provision.
It is not the function of the Court to translate documents. If theCourt attempts to translate documents discrepancies could occur. Inthe case of Francisco Vs. Swedeshi Industrial Works 180 Basnayake,
J. made the following observations in this regard :—
“It is wrong for the Judge how ever well versed hemay be in the language in which the documents is writtento undertake its translaton and adopt a version whichneither party has placed before him (1 NLR 248). Thedanger of such a course has been pointed out morethan once by the Privy Council”
It appears to me that it was due to the negligence of the Attorney-at-Law that the translations of the documents he relied on for his casewere not provided. It is a settled principle of law that the negligence ofthe Attorney-at-Law is the negligence of the client and the client mustsuffer for it. Relief will not be granted for default in diligently prosecutingthe leave to appeal application where the Attorney-at-Law is in defaultfor not providing the translations of the vital documents he relied on forhis case. This is more important when the learned Judge has madeuse of those documents in making the order which is now canvassedbefore this Court.
In these circumstances I do not consider it necessary for the purposeof this case to decide the merits of this application. For the foregoingreasons the plaintiffs application for leave to appeal is dismissed butin all the circumstances, without costs
ANDREW SOMAWANSA, J.(P/CA) — / agree.
Application dismissed.