T. S. FERNANDO, J.—Meeruppe Sumanatissa Terunnanee
v. Warakapitiya Sangananda Terunnanse
1964 Present; T. S. Fernando, J., and Sri Skanda Rajah, J.MEERUPPE SUMANATISSA TERUNNANSE, Petitioner, andWARAKAPITIYA SANGANANDA TERUNNANSE, Respondent
S. C. 283/1963—Application for Conditional Leave to Appeal to HerMajesty in Council under the Appeals (Privy Council) Ordinance
Privy Council—Application for cotiditionel leave to appeal—Failure of petitionerto file affidavit—Effect—Affidavit—Form of jurat—Appeals (Privy Council)Ordinance, Schedule, Rules 1 (a), 2, 3—Civil Procedure Code, 88. 376, 439.
In an application for conditional leave to appeal to the Privy Council interms of Rule 2 of the Schedule to the Appeals (Privy Council) Ordinance,the absence of an affidavit is not fatal to a grant cf leave.
An affidavit filed by a person who is not able to understand writing in theEnglish language is liable to be rejected if the jurat is not in the formrequired by section 439 of the Civil Procedure Code.
Application for conditional leave to appeal to the Privy Council.H. Wanigatunga, for the petitioner.
A. F. Wijemanne, for the respondent.
Cur. adv. wit.
May 7, 1964. T. S. Fernando, J.—
At the conclusion of the argument on this application we grantedleave to appeal subject to the usual conditions, but, in view of the noveltyof the point raised on behalf of the respondent, decided to set downlater the reasons for our order.
The respondent objected to the granting of the petitioner’s applicationfor conditional leave to appeal to Her Majesty in Council, and based hisobjection on the ground that the application was bad in law inasmuchas the affidavit which was attached to the petition did not conform to therequirements of law.
T. 8. FERNANDO, J.—Meeruppe Sumanatissa Temnnanse
v. Warakapitiya Scmgananda Terunnanee
The affidavit had been drafted in the English language. The petitionerdid not dispute that he is a person who is not able to understand writing?n the English language. The respondent pointed to section 439 ofthe Civil Procedure Code which requires that an affidavit, in a situationsuch as this, shall at the time of affirmation be interpreted to the affirmantin his own language (which in the case of the petitioner is the Sinhalalanguage), and that the jurat shall express that it was so interpreted tohim in the presence of the Justice of the Peace and that he appearedto understand the contents thereof. The jurat of the affidavit whichwas attached to the petition presented to court by the petitioner. is inthe undermentioned form :—
** Read over signed and affirmed to at Weligama on this 12thday of June 1963.”
It was not seriously doubted that the affidavit is not in the form requiredby section 439 of the Civil Procedure Code and that it should be rejected.
Did the rejection of the affidavit militate against the granting of theapplication of the petitioner ? Rule 1(a) of the Rules in the Scheduleto the Appeals (Privy Council) Ordinance confers a right of appeal incertain specified circumstances. Rule 2 requires any party desirous ofappealing to make application to the Supreme Court by petition withina stated time. The Rule is silent as to any requirement of affidavitevidence. The petition presented by the petitioner contained statementswhich, if true, entitled him to a grant of leave upon conditions set outin Rule 3. The correctness of the statements in the petition couldhave been ascertained, if necessary, by this Court by merely callingfor and examining the final judgment of this Court and/or the recordof the court of trial.
In the present instance the correctness of the statements in the petitionwas not challenged by the respondent who based his objection solelyon the defect in the affidavit which, according to him, left this Courtwithout proof of the correctness of the statements in the petition-Learned counsel for the respondent referred to Chapter XXIV of theCivil Procedure Code relating to summary procedure. Section 376of the Code requires that a petition upon which an application or actionof summary procedure is instituted shall be supported by affidavitsetc. as may be requisite to furnish prima facie proof of the materialfacts set out in the petition. I am aware that there exists a practice
T. S. FERNANDO, J.—Meeruppe Sumanatissa Terunnanse335
v. Warakapitiya Sangananda Terunnanse- –
of applications to the Supreme Court for leave to appeal to Her MajestyiD Council being supported by affidavit. I wish to say nothing to deterthat practice being continued ; but the question now before us is whetherthe absence of an affidavit is fatal to the granting of the leave. Inorder to support the objection, learned counsel for the respondentargued that an application for leave to appeal to Her Majesty in Councilis an application of summary procedure attracting to it compliancewith the provisions, inter alia, of section 376 of the Civil ProcedureCode. We found ourselves unable to agree with that argument ofCounsel.
The burden of satisfying this Court that the petitioner was entitledto a grant of leave was, no doubt, on the petitioner himself. The presen-tation of an affidavit may be one form of discharging that burden, andan applicant might ordinarily be advised to take that step. It ishowever, quite a different thing to say that the absence of an affidavitis fatal to a grant of leave. In this case it was not alleged by the respon-dent that the appeal proposed is not one from a final judgment of thisCourt where the matter in dispute on the appeal is upward? of Rs. 5,000in value. There was no attempt at any stage to controvert the statementsin the petition and I could find no legal bar in these circumstances to anacceptance of the statements in the petition as being correct.
Learned counsel for the respondent suggested that the petitionerwill not be left without some remedy as Rule 32 of the Rules in theSchedule to the Appeals (Privy Council) Ordinance recognises his rightto petition Her Majesty in Council direct even where he has failed tocomply with those Rules. Such a circumvolant and, if I may add,expensive step would have become necessary only if we had not beensatisfied that the petitioner’s case fell within Rule 1(a). As I havestated already, we were so satisfied and, it is permissible to add, wefound some comfort in the circumstance that thereby we were advancingthe prosecution of a citizen’s legal right rather than denying it.
Sri Skanda Rajah, J.—I agree.
MEERUPPE SUMANATISSA TERUNNANSE, Petitioner, and WARAKAPITIYA SANGANANDA TERUN