Merry/ Perera v. Abeysuriya and Others (Samarakoon. C. J.)
v.ABEYSURIYA AND OTHERS
SAMARAKOON C. J.. RATWATTE. J. AND VICTOR PERERA. J.
S.C.L.A. No. 62/82. S.C. APPEAL No. 48/82 S.C.
A. APPLICATION No. 697/82
C. COLOMBO No. 2146/8/507 MARCH 1983.
Contempt — Can jurisdiction of Appeal Court be invoked where the DistrictCourt had jurisdiction?
The Court of Appeal and District Court had parallel jurisdiction to punish forcontempt for disobedience to an injunction. The appellant had the right to makethe application to the Court of Appeal and the Court being clothed by theConstitution to make the order prayed for had a duty to make the order if thefacts were established to its satisfaction. It could not have refused to entertainthe petition.
Cases referred to:
Sheffield Corporation v. Lusford 1929 2KB 180
Perera v. Perera 4 NLR 282APPEAL from order of Court of Appeal
H. L de Silva, S.A. with J. P. de Almeida for appellant.
K. N. Choksy, S.A. with K. Kanag-lswaran. for respondents.
Cur. adv. vult
22 March. 1983SAMARAKOON. C.J.
The Appellant and the Respondents are members of a Clubknown as the Otter Aquatic Club. The Appellant applied for. andobtained from the District Court of Colombo, an interiminjunction restraining the Respondents from acting upon the
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"purported amendment to or repeal" of Clause 12(f) of the Club'sConstitution and from permitting persons disqualified by theoriginal Clause 12(f) "to contest at any election as an officebearer of the said Otter Aquatic Club". The Appellant made anapplication to the Court of Appeal under the provisions of Article105(3) of the Constitution of the Republic of Sri Lanka allegingth'at the Respondents had disobeyed the injunction and prayingthat the Respondents be dealt with for contempt of the DistrictCourt. The Court of Appeal has refused to entertain theapplication. Seneviratne, J. was of the view that though there wasparallel jurisdiction in the Court of Appeal and the District Courtto take cognisance of this matter, the Court of Appeal would onlydo so if the Appellant showed special reason why in the firstinstance the Jurisdiction of the Court of Appeal should beinvoked without resort to the District Court under the provisionsof Section 663 of the Civil Procedure Code. He stated that thejurisdiction of the Court of Appeal should be invoked only whenthere is a contumacious and persistent disregard of the authorityof the District Court. His reasons for this conclusion are asfollows
The resulting overburdening of the Court of Appealwith numerous applications,
Heavy expense and inconvenience to Respondents,and
If encouraged it will end in the Court of Appealperforming the functions of the original Court on thebasis that the Court of Appeal has parallel jurisdiction.
The reasons no doubt merit consideration and the conclusion isnot unreasonable. However Counsel for the Appellant submittedthat the Court of Appeal had no alternative but to entertain theapplication. The history of this power in the Superior Courts todeal with offences of contempt of other Courts is relevant.Section 47 of the Courts Ordinance (Cap.6) gave the SupremeCourt or any Judge thereof power to take cognisance of and try in
Merry! Perera v. Abeysuriya and Others (Samarakoon. C..J.)
a summary manner any offence of contempt committed againstor in disrespect of the authority of itself "or in disrespect of theauthority of any other Court and which such Court has nojurisdiction under Section 57 to take cognisance of and punish
This power was conferred on the High Court by the
provisions of the Administration of Justice Law No. 44 of 1973.Section 41 (2) reads thus —
"(2) Every High Court may take cognizance of and try in asummary manner any offence of contempt committedagainst or in disrespect of its authority or any offence ofcontempt committed within its jurisdiction against or indisrespect of the authority of any other court or otherinstitution established by law which such court orinstitution has not the jurisdiction to take cognizance ofand punish, and on conviction impose a sentence ofimprisonment not exceeding five years or a fine notexceeding five thousand rupees or both suchimprisonment and fine."
These two provisions impose a limit on the power conferred bystating that in respect of the offence of contempt of any otherCourt, the power can be exercised only if that other Court has nojurisdiction to take cognizance of such contempt. TheConstitution of 1978 conferred this power on the Court ofAppeal but placed no limitation as in the Courts Ordinance andthe Administration of Justice Law. Article 105(3) of theConstitution reads as follows
"(3) The Supreme Court of the Republic of Sri Lanka andthe Court of Appeal of the Republic of Sri Lanka shall eachbe a superior court of record and shall have all the powersof such court including the power to punish for contemptof itself, whether committed in the court itself orelsewhere, with imprisonment or fine or both as the courtmay deem fit. The power of the Court of Appeal shallinclude the power to punish for contempt of any othercourt, tribunal or institution referred to in paragraph 1 (c)of this Article, whether committed in the presence of suchcourt or elsewhere:
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Provided that the preceding provisions of this Article shallnot prejudice or affect the rights now or hereafter vestedby any law in such other court, tribunal or institution topunish for contempt of itself."
The proviso is significant. It saves similar jurisdiction of otherCourts. In the result the Court of Appeal and the District Courthad parallel jurisdiction in respect of the offence of contempt asalleged in this case.
Counsel for the Respondents submitted that Article 105(3)
was only an enabling provision and was comparable to the
provisions of Article 140 of the Constitution. He stated that this
latter Article contained an enabling power, but the Courts had a
discretion to refuse the issue of a Writ. He referred to the fact
that Courts refused to issue a Writ when the Petitioner was guiltyof laches or when the equities were not within the Petitioner. Thisis no doubt correct but Article 140 provides that the grant andissue of Writs should be done "according to law". "Law" heremeans written and unwritten laws that were in force immediatelybefore the commencement of the Constitution (Vide Article168(1)). The two instances of refusal by the Courts referred to byCounsel for the Respondents were part of the unwritten law ofthe land. Article 140 is therefore no guide to the interpretation ofthe provisions of Article 105(3). Counsel also submitted that theCourt of Appeal must have a discretion for the reasons given bySeneviratne, J. Perhaps it is good policy, but policy cannot justifythe modification of a provision of law.
Article 105(3) of the Constitution does not confer anydiscretion on the Court of Appeal. The Appellant had the right tomake this application to the Court of Appeal and the Court beingclothed by the Constitution to make the order prayed for had aduty to make the order if the facts were established to itssatisfaction. It could not have refused to entertain the petition.Sheffield Corporation v. Lusford (1). A similar situation arose ata time when the District Court and the Court of Requests hadconcurrent jurisdiction over certain matters. In the case of Pererav. Perera (2) the District Court dismissed an action under theprovisions of Section 247 of the Civil Procedure Code because
MerryI Perera v. Abeysuriya and Others (Samarakoon, C. J.)
the land which was seized, and was the subject matter of theaction was under Rs. 300/- in value. The District Court hadjurisdiction in this matter under the provisions of Section 74 ofthe Courts Ordinance and the Supreme Court held that it couldnot dismiss the action merely because it might have beenbrought in the Court of Requests. All it could do was to deprivethe successful plaintiff of his costs.
There is another aspect to this case..We are dealing with aConstitutional provision and not with ordinary Statute Law. Theformer must command the greater respect. The Court of Appealerred in refusing to grant the application for the issue ofsummons and in dismissing the application. This appeal istherefore allowed with costs.
RATWATTE, J. – I agree.
VICTOR PERERA, J. – I agree.
MERRYL PEERERA v. ABEYSUDIYA AND OTHERS