TAMBIA-H, J.—Chandrasena v. de Silva
Present: Tamblah, J.
M.D. OHANDRASENA and 2 others, Petitioners, and S. P. DE SILVA
(Director of Education), Respondent
S. C. 540-541—Applications for Writs of Mandamus and QuoWarranto in terms of section 42 of Courts Ordinance
Mandamus—Certiorari—Intervention of ‘parties—Permissibility—Courts Ordinance,s. 42.
In an application for a writ in the nature of mandamus or certioraripersons other than those who are parties to the application are not entitled totake part in the proceedings as intervenients.
Applications for writs of mandamus and certiorari.
D. S. Siriwardene, with G. D. C. Weerasinghe and M. T. M. Sivardeen,for the intervenient-petitioner.
U.V. Perera, Q.C., with E. B. Wikramanayake, Q.C., G. T. Samara-wicJcreme and W. T. P. Goonetilleke, for the petitioner.
Tennekoon, Senior Crown Counsel, with B. C. F. Jayaratne, CrownCounsel, for the respondent.
Cur. adv. vult.
March 7, 1961. Tambiah, J.—
When these applications were taken up for hearing, Mr. C. D. S.Siriwardene stated that he was appearing for an intervenient who wishedto be heard in these applications. He also stated that he desired to placecertain facts before the Court. In support of the intervention he con-tended that, in matters of this kind, the English common law would apply,and cited the following dictum of Lord Radcliffe in Nakkuda AH v.Jayaratne (Controller of Textiles)1 .* £i Moreover there can be no alternativeto the view that when s. 42 (of the Courts Ordinance) gives power to issuethese mandates * according to law ’ it is the relevant rules of Englishcommon law that must be resorted to in order to ascertain in whatcircumstances and under what conditions the Court may be moved forthe issue of a prerogative writ. These rules then must themselves guidethe practice of the Supreme Court in Ceylon.”
Mr. H. V. Perera, Q.C., who appeared for the petitioner, contended thatthe dictum did not go to the extent of stating that the procedure applicableunder the English common law should apply to Writs in the nature ofMandamus or Certiorari in Ceylon. It seems to me that the Englishcommon law has been adopted by our courts to determine the principlesthat should guide the court in either granting or refusing these writs. It
1 (1950) 51 N. L. R. at pp. 460-461.
TAMBIAH, J.—Chandrasetia v. de Silva *
has never been the practice of this Court to allow persons other thanthose who are parties to the application for writs to intervene in theproceedings. Learned Counsel for the intervenient was unable to citeany judicial decision which has recognised the principle that under theEnglish common law an intervenient may appear in such applications.
He also referred me to Rule 7, Order 59, of the rules made by theCourts in England, permitting the Court to allow an intervenient to takepart in proceedings initiated by way of a writ of Mandamus. These rulesclearly have no application in Ceylon. Although the Courts Ordinance1empowered the Supreme Court to make rules governing its own pro-cedure, no rules have yet been framed to enable an intervenient to takepart in proceedings for the issue of the writs of Mandamus or Certio-rari to which he is not a party.
Further, I am reluctant to allow this intervention for the addi-tional reason that the recognition of such a principle would openthe floodgates, as it were, to a torrent of similar applications, and thusimpede the functioning of the Courts.
Hence, the application to intervene in these proceedings and fileaffidavits is refused. However, this order will not prevent Mr. Siri-wardene being heard as amicus curiae, on any question of law that mayarise, on which his assistance may be required.
1 Gap. 6.
M. D. CHANDRASENA and 2 others, Petitioners, and S. F. DE SILVA (Director of Edu