placed any evidentiary material to form an opinion that there are sufficientgrounds to proceed against the petitioner.
In the circumstances, it is an imperative requirement for the learnedjudge, after considering the material placed before Court and the affidavitfiled, to be satisfied that there are sufficient grounds to issue summons tothe respondents. In the instant case the learned judge had not formed anopinion as to whether there were sufficient grounds for him to issuesummons under section 793 of the Civil Procedure Code against therespondent
The learned judge by his order dated 19.01.2004 held that whether thepetition and affidavit tendered by the plaintiff disclose an offence of contemptof court will be decided only after the inquiry. In his order (at page 3) hehas stated thus:
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Next I proceed to consider the third question upon which the leave toappeal was granted. The learned counsel for the respondent submittedthat the petitioners had followed a wrong procedure by filing an applicationfor leave to appeal from the impugned order in as much as the correctprocedure was to have a direct appeal against the impugned order.
Section 798 of the Civil Procedure Code provides that an appeal lies tothe Court of Appeal from every order, sentence or conviction made by aCourt in the exercise of its special jurisdiction to take cognizance of, andto punish the offence of contempt of Court. In the course of submissionsboth counsel cited the case of Shah Vs. Hatton National Bank The factsof this case are similar to the facts of the case before Court. In the saidcase, the District Court enjoined the Ceylon Bank Employees Union (C.B. E. U. O its members, servants, agent and all those holding under andthrough it from in any manner engaging in any strike.
The plaintiff-respondents had filed petition and affidavit and moved thatsummons be issued under section 793 of the Civil Procedure Code on thePetitioner, who is the General Secretary of the CBEU for disobeying theenjoining order.
The plaintiff – respondent contended that only a direct appeal lies againstthe said order. The Court held that,
a reading of section 797(1), 797(2) and section 797(3) impliesthat the word “order” in section 798 refers to an order of acquittal.
Words “every order" do not contemplate an order of the typecanvassed by the application for leave to appeal or an interimorder made in the course of an inquiry with the charge of contemptafter the accused has pleaded to the charge.
At 61, Edurisuriya, J. (P/CA) said ;
“The question which arises for answer first, is whether anorder such as the one which is appealed from, namely, anorder made overruling the preliminary objection prior to thePetitioner pleading to the charge of contempt is one which iscontemplated in Section 798”
Media Image Ltd Vs.
Dissanayake (Wimaiachandra, J.
In interpreting the words “An appeal shall lie to the SupremeCourt from every order, sentence, or conviction made by anyCourt’ in section 798 Dias J with Gratien , J. agreeing inThuraisingham Vs. Karthikesu at t6,574 states :the true intentionunderlying section 798 is that while a right of appeal exists inevery case against an order, sentence or conviction in acontempt proceedings, the general rules of procedure containedin chapter XXX of the Criminal Procedure Code, so far as theyare applicable must be followed in order to bring the casebefore the Supreme Court.” So that clearly, the words “everyorder" do not contemplate an order of the type canvassedby the application for leave to appeal or an interim ordermade in the course of an inquiry with the charge ofcontempt after the accused has pleaded to the charge.”
“Thus, it is my view that there is a lacuna in the law withregard to the mode of appeal in respect of such interim orders,in the circumantances recourse must necessarily be had tothe provisions relating to interlocutory appeals laid down inSection 754(2)”.
In the present application before this Court the impugned order was anorder rejecting the preliminary objection. Applying the principle laid downin the case of Shah vs. Hatton National Bank Ltd.(supra), the impugnedorder rejecting the preliminary objection is not a “Final order” but aninterlocutory order which is an order canvassed by way of an applicationfor leave to appeal.
It was held in the case of Thuraisingham Vs. Karthikesu(6) that “order”referred to in section 798 of the Civil Procedure Code would include adischarge or acquittal.
In these circumstances, I am inclined to agree with the submissionsmade by the learned counsel for the petitioners that if a final appeal isavailable against every interlocutory order in contempt proceedings thecase will never conclude, because against every interim order such asadmitting evidence or rejecting evidence, or any order made in respect ofprocedural objection, if the aggrieved party made a final appeal to theCourt of Appeal, the original Court is bound to send the case record to the
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Court of Appeal for the determination of the final appeal.
In these circumstances, it is my considered view that the petitionershave correctly made this application for leave to appeal against the impugnedorder which was an interlocutory order.
In the circumstances the questions upon which the leave to appeal wasgranted are answered as follows:
The impugned order was an interlocutory order and no final appealshall lie against such an order.
In consequence, I hold that the order of the learned Additional districtjudge dated 19.02.2004, directing to issue summons under and in termsof section 793 in form 132 be set aside. The appeal is allowed with costsfixed at Rs.5,250.
Appeal allowed.