053-SLLR-SLLR-2005-V-3-MUTHAPPAN-CHETTIAR-vs.-KARUNANAYAKE-AND-ANOTHER.pdf
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Muthappan Chettiar Vs Karunanayake and Others
(Shirani Bandaranayake, J.)
327
MUTHAPPAN CHETTIARVSKARUNANAYAKE AND ANOTHERSUPREME COURT.
BANDARANAYAKE.J.
FERNANDO.J.
AMARATUNGA.J.
SC 69/2003.
FEBRUARY 17, 2005.
MARCH 4, 2005.
MAY 10,2005.
Supreme Court Rules 1990 – Rules 2, 6, 8 (6), 30, 30 (1), 30(6), 30(7),34, 35(c)- Filing of written submissions within six weeks from date special leave isgranted – Is It mandatory? – Could the party be heard?
HELD:
Per Shirani Bandaranayake, J.
" Objection raised on a non compliance of a mandatory Rule, in my viewcannot be taken as a mere technical objection and where there has been nocompliance at all of such mandatory Rules at the time the matter was taken upfor hearing serious consideration should be given for such non compliance asthat kind of behaviour could lead to serious erosion of well established Courtprocedures maintained throughout several decades".
Rules 30 (1) and 30 (6) specify that it is mandatory that within 6weeks of the grant of special leave to appeal the appellant has to filehis written submissions, although the appeal shall not be dismissedfor the non compliance of Rule 30 (c) and the effect of such noncompliance would be the non entitlement to be heard, such noncompliance would attract Rule 34 which states that, an appellantwho fails,to exercise due diligence in taking all necessary steps forthe purpose for prosecuting the appeal, the Court could declare theappeal to stand dismissed for non prosecution.
A party in default could move Court stating valid and acceptablereasons and seek the leave of Court of further time to furnish writtensubmissions.
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Sri Lanka Law Reports
(2005) 3 Sri L R.
Non compliance of Rules 30(1) – 30 (6) combined with the noncompliance would certainly amount to failure to show due diligence.
Cases referred to
Priyani Soysa vs. Rienzie Arasakularatne – 1999 1 Sri LR 179
Union Approach (Pvt.) Ltd vs. Director General of Customs – 2000 1 SriLR 27
Balasingham and another vs. Puranthiran (minor) by the next friend -2000 1 Sri LR 163
Coomasaru vs. Leechman Ltd – SC 217/72 – 307, 72-SCM 26.6. 1976
Samarawickrema vs. Attorney General – 1983 – 2 Sri LR 162
Mylvaganam vs. Reckit and Colman – SC 154/87 – SCM 8.7. 1987
All Ceylon Metal Workers Union vs. Jaufer Hassan and Another -19902 Sri LR 420
Read vs. Samsudeen – 1895 1 NLR 292
Aspinall vs. Sutton – 1894 2QB 349
Secretary of State for Defence vs. Warn – 1968 3 NLR 609
Romesh de Silva PC with V. C. Choksy for defendant – appellant – appellantGamini Marapana PC with Keerthi Sri Gunawardena for plaintiff – respondents- respondents
June 6, 2005.
SHIRANI BANDARANAYAKE, J.This is an appeal filed by the defendant- appellant- appellant (hereinafterreferred to as the appellant) from the judgment of the Court of Appealdated 13.05.2003. By that judgment the Court of Appeal affirmed thedecision of the learned District judge dated 18.09.1995 given in favour ofthe plaintiffs – respondents respondents (hereinafter referred to as therespondents) and dismissed the appellant’s appeal. The respondents hadinstituted action in the District Court of Galle against the appellant for adeclaration of title to the premises in suit, for his ejectment and for recoveryof damages. The appellant came before this Court and special leave toappeal was granted on 24.09.2003.
When this matter was taken, up for hearing on 17.02.2005, learnedPresident’s Counsel for the respondents, took up a preliminary objection,in terms of Rule 30 of the Supreme Court Rules of 1990, that the appellant
CAMulhappan Chettiar Vs Karunanayake and Others329
(Shirani A. Bandaranayake. J.)
had not complied with the mandatory requirement of filing writtensubmissions within six weeks from the date on which special leave toappeal was granted and therefore the appellant had failed to comply withthe said Rule. Learned President’s Counsel for the respondents thereforecontended that having regard to the fact that an essential step of theprosecution of the present appeal had not been taken by the appellantsand therefore the appeal should be dismissed for non compliance. Bothparties thereafter agreed to file written submissions on the preliminaryobjection and judgment was reserved on the said preliminary issue.
Learned President’s Counsel for the appellant submitted that there areno provisions in the Supreme Court Rules of 1990, to indicate that anappeal must be dismissed for the non filing of written submissions. Insupport of his contention learned President’s Counsel drew our attentionto Rule 30(1) of the Supreme Court Rules of 1990 and the decisions of thisCourt in Priyani Soysa v Rienzie Arsecularatne<1) and Union Apparel (pvt)Ltd. vs. Director General of Customs Referring to the said decisions,learned President’s Counsel contended that, it is clear law that noncompliance with the Rules, particularly in regard to non filling of writtensubmissions, will not disentitle the appellant to be heard. It was alsosubmitted that the Court can order the appellant to furnish writtensubmissions at any time determined by Court.
Having said that, let me now turn to examine the provisions of therelevant Rules and the ratio decidendi of the aforementioned cases andtheir applicability to the appeal in question.
Rule 30 of the Supreme Court Rules of 1990 deals with the writtensubmissions that has to be filed prior to the date of the hearing. BothRules 30(1) and 30(6) refer to thefiling of the written submissions regardingan appeal. Whilst Rule 30(1) refers .to the need for filing of suchsubmissions, Rule 30(6) clearly specifies the time period given for thefiling of the said written submissions. A careful reading of both Rulesindicates that the provisions stated in them are mandatory. Rules 30(1)and 30 f6) of the Supreme Court Rules, 1990 are in the following terms :
’ Rule 30(1)
No party to an appeal shall be entitled to be heard, unless hehas previously lodged five copies of his written submissions(hereinafter referred to as ‘submissions’) complying with theprovisions of this rule."
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(2005) 3 Sri L. R.
“Rule 30(6)
The appellant shall within six weeks of the grant of specialleave to appeal, or leave to appeal.as the case may be lodgehis submissions at the Registry and shall forthwith give noticethereof to each respondent by serving on him a copy of suchsubmissions.”
■ In terms of these two Rules, it is necessary for the appellant to file fivecopies of his written submissions in the Registry and this has to be carriedout within six weeks of the grant of special leave to appeal or leave toappeal by this Court. Also it is necessary that the appellant must takesteps to give notice to each respondent of the lodging at the Registry ofsuch submissions by serving on them a copy of his written submissions.Therefore the cumulative effect of Rules 30(1) and 30(6) would be that theappellant should file five copies of his written submission within six weeksof the grant of special leave to appeal or leave to appeal as the case maybe, and a copy of such submissions has to be served to the respondents’notifying of the said submissions.
In the event of non-compliance of the said provisions of the Rules, Rule30(1) specifically states that, such party shall not be entitled to be heard.
Learned President’s Counsel for the appellant’s first submission wasthat the Rules do not indicate that an appeal should be dismissed for nonfiling of written submissions. As referred to ealier, Rules 30(1) and 30(6)clearly specify that it is mandatory that within Six weeks of the grant ofspecial leave to appeal, the appellant has to file his written submissions.Although the appeal shall not be dismissed for the non-compliance ofRule 30(1) and the effect of such non compliance would be the nonentitlement to be heard, such non-compliance would attract Rule 34 whichclearly states that, an appellant who fails to show due diligence in takingall necessary steps for the purpose of prosecuting the appeal, the Courtwould declare the appeal to stand dismissed for non prosecution.
The applicability of Rule 34, when the appellants had failed to file theirwritten submisions, was considered by this Court in Balasingham andanother vs. Puranthiran (A Minor) by his next friend Sivapackiam . In thatcase, the appellants had failed to file their written submissions in terms ofRule 30 of the Supreme Court Rules, 1990 within six weeks from the dateon which special leave to appeal was granted. The written submissions
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Muthappan Chettiar Vs Karunanayake and Others
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were filed approximately one year from that date. The respondent in hissubmissions took an objection on the ground of such default and movedthat the appeal be declared dismissed for non-prosecution, in terms ofRule 34. It is to be noted that the appellants in that case had also failed togive an acceptable excuse for the default on their part. Considering thematerial placed before this Court, it was decided that the preliminaryobjection raised on behalf of the respondent that the appeal be declareddismissed for non-compliance must be sustained. In Balasingham’s casereference was made to Coomasaru vs. Leechmart Ltdw where the formerSupreme Court dismissed an appeal for failure to file written submissionsin terms of Rules of the Appeal Procedure Rules in the absence of anyexcuse for such failure.
Samarawickrama vs. Attorney- General<s> is also a decision that isworthy of note in this regard. In that case, a preliminary objection wastaken by the Senior State Counsel that the appellant had not compliedwith the provisions of Rule 35(c) of the Supreme Court Rules of 1978. Rule35(c) requires the appellant, within 14 days of the grant of special leave toappeal, to lodge his written submissions and forthwith give notice thereofto each respondent by serving on him a copy of the submission. LearnedCounsel for the appellant had taken up the position that a copy of thewritten submission was handed over to the office of the Hon. AttorneyGeneral. However, the Senior State Counsel had informed Court that therewas no record of such receipt and the learned Counsel for the appellantconceded that he had no proof of such service. The Court noted that apartfrom the aforementioned submission that no other excuse for the non-compliance with the Rule 35(c) of the Supreme Court Rules, 1978 wasgiven by the appellant. The Supreme Court took the view that the relevantprovisions have been consistently held by the Court as.being imperative’and the preliminary objections were so upheld. A similar approach wastaken Ih'Mylvagnam vs. Reckitt and Colman ' and the appeal was dismissedfor failure to comply with Rule 35 of the Supreme Court Rules of 1978.This Court had also considered the necessity to comply with Rule 35 ofthe Supreme Court Rules of 1978, in All Ceylon Match Workers Union vs.Jaufer Hassan and others(7> where Amerasinghe, J. held that, when theappellant had not filed any written submissions there is a failure on thepart of the appellant to comply with Rule 35.
In view of the aforementioned decisions of this Court, it is apparent thatobjections taken in terms of Rule 30 of the Supreme Court Rules of 1990
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have not only been upheld, but Rule 30 also have been considered interms of Rule 34 of such Rules.
Having considered the first submission of the learned President’s Counselfor the appellant let me now turn to examine his second submission.
Learned President’s Counsel drew our attention to the decision in PriyaniSoysa vs. Rienzie Arsecularatne (supra) and Union Apparel (Pvt.) Ltd. vs.Director General of Customs (supra). His contention was that in these twodecisions this Court had held that the non-compliance with the said Rulesis not fatal and does not necessitate a dismissal of the case. However, itis to be noted that both the aforementioned cases could be distinguishedfrom the instant case for several reasons, which are discussed in thefollowing paragraphs.
In Priyani Soysa’s case, the question arose with regard to the non-compliance with Rules 2,6 and 8(6) of the Supreme Court Rules of 1990.This Court in its majority view had decided that there was compliance withthe aforementioned Rules for the reason that,
if the respondent had failed to file the caveat within the timespecified by Rule 3(6), but submits an explanation, whichthe Court is prepared to accept, eg. that he was in fact notresident at the address on the date of receipt of the notice,the Court may in its discretion regard the date of ‘Actual’receipt of the notice as the relevant date for the purpose ofcompliance with the Rule. On a liberal view of the matter,the respondent had filed the caveat within time;
the only lapse of the petitioner relied upon by the respondentwas that the petitioner had failed to obtain the Court'spermission in terms of the proviso to Rule 2 to tender thecopies of the Court of Appeal briefs and the fact that thepetitioner filed three instead of four copies. However, Rule8(7) enables the respondent also to submit the samedocuments by way of objection whilst Rule 13(2) empowersthe Court to direct the Registrar to call for the same, andhaving regard to. the purpose of the Rules, non-compliancesof this nature would not necessarily deprive a party of theopportunity of being heard on the merits at the thresholdstage unless there is some compelling reason to do so.
CAMuthappan Chettiar Vs Karunanayake and Others333
(Shirani A. Bandaranayake, J.)
The decision in Union Apparels (Pvt.) Ltd. vs. Director General ofCustoms and others (Supra) also could be clearly distinguished from theinstant case. In that case, the question arose as to whether the petitionerhad filed his written submissions in compliance with the Rule 34 of SupremeCourt Rule of 1990. The petitioner company had filed its application on03.06.1999. Hearing was fixed for 20.08.1999 and the written submissionswere filed by the petitioner on 19.08.1999. The respondents’ objectionwas that the petitioner thereby had failed to comply with Rule 45(7), whichrequires the written submissions to be filed at least ‘ One week before thedate fixed for hearing’. The 2nd respondent took' up the position that theapplication must stand dismissed in terms of the Supreme Court Rules of1990 as the written submissions of the petitioner were not filed in terms ofthe Rules. This Court having regard to the purpose of Rule 45(7) incomparison with Rule 30 and considering the purpose of Rule 34 andespecially the circumstancs of the case decided that it cannot be saidthat the petitioner had failed to show due diligence in taking all necessarysteps for the purpose of prosecuting the application. Accordingly the Courtheld that the preliminary objection must be overruled.
It is to be borne in mind that in Union Apparels (Pvt). Ltd. (Supra),although there was a delay in filing the written submissions, it was howeverfiled one day before the date of the hearing. Therefore it is to be noted that,when that matter was taken up for hearing, the written submissions wereavailable.
The purpose of the Rules of the Supreme Court is to ensure that thenecessary submissions and authorities are available to Court when theappeal or the application is taken up for argument. It is also necessary tobe borne in mind that the right to be heard by a party is one of the mostelementary, but significantly important rights of any party before Court.Nevertheless, when a party is before this Court in connection with anappeal or an application, this right has to be exercised in terms of theSupreme Court Rules, as the failure to comply with the rules cannot besimply ignored. I am in complete agreement with the view expressed overa century ago by Bonser, C. J. in Read vs. Samsudin where his Lordshipquoted the words of Sir George Jessel, Master of the Rolls with approvalthat, it is not the duty of a judge to throw technical objection, difficulties inthe way of the administration of Justice, but where he sees that he isprevented from receiving material or available evidence merely by reasonof a technical objection he ought to remove the technical objection out ofthe way upon proper terms as to costs and otherwise."
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However, objection raised on a non-compliance of a mandatory Rule, inmy view cannot be taken as a mere technical objection and where therehas been no compliance at all of such mandatory Rules at the time thematter was taken up for hearing, serious consideration should be given forsuch non-compliance as that kind of behaviour by parties could lead toserious erosion of well established Court procedures, maintained throughoutseveral decades.
In the instant case, it is quite clear that the appellant had not takensteps to comply with Rule 30 of the Supreme Court Rules of 1990. Thecase record reveals that this Court granted special leave to appeal in thismatter on 24.09.2003. On that day, the Court had made order that writtensubmissions be filed according to Rules. Supreme Court Rules of 1990clearly states that the appellant should, within six weeks of the grant ofspecial leave to appeal, lodge his submissions at the Registry and shouldgive notice to each respondent by serving on him a copy of such submission(Rule 30(6). Rule 30(7) of the Rules of the Supreme Court, 1990 refers tothe time given to the respondant in submitting his written submissions incase of an appeal and states that,
" the respondent shall within six weeks of the receipt of noticeof the lodging of the appellants submissions, lodge hissubmissions at the Registry, and shall forthwith give noticethereof to the appellant and to every other respondent, by servingon each of them a copy of such submissions."
It further provides that,
“Where the appellant has failed to lodge his submissions asrequired by sub-rule (6), the respondent shall lodge hissubmissions within twelve weeks of the grant of special leave toappeal, or leave to appeal as the case may be giving notice inlike manner.”
According to the aforementioned Rules, the appellant should have filedhis written submissions on or before 05.11.2003. Although the matter wasfixed for argument on 29.01.2004, on a motion filed by the learned President'sCounsel for the respondents dated 10.10.2003, this matter was re-fixedfor hearing on 03.03.2004. On 03.03.2004, on an application made onbehalf of the learned President’s Counsel for the appellant, the hearing
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Muthappan Chettiar Vs Karunanayake and■ Others
(Shirani Bandaranayake, J.)
335
was again re-fixed for 01.07.2004. On 01.07.2004, it was not possible forthe appeal to be taken up for hearing as the Bench comprised of a judgewho had heard this matter in the Court of Appeal and this was re-fixed forhearing on 01.11.2004. On that day it was once again re-fixed for hearingfor 17.02.2005. By that time one year and four months had lapsed fromthe date special leave to appeal was granted. It is not disputed that evenon the day this appeal was finally taken up for hearing, viz. on 17.02.2005,the appellant had neither filed his written submissions nor had he given anexplanation as to why it was not possible to file such written submissionsin accordance with the Rules.
Notwithstanding the aforementioned non-compliance, it appears thateven thereafter, the appellant had not taken any interest to comply withthe rules relating to the filing of written submissions. On 17.02.2005, whenthis matter was taken up for hearing and when the learned President’sCounsel for the respondents took up the preliminary objection, appellantmoved to file written submissions on the question of the preliminary,objection. This Court granted time for both parties to tender such writtensubmissions and reserved the judgment on the question of the preliminaryobjection. The Court directed the respondents to file their writtensubmissions on or before 07.03.2005 and the appellant to file their writtensubmissions on or before 01.04.2005.
The respondent filed their written submissions on 04.03.2005 and theappellant’s written submissions were not filed on 01.04.2005, as directedby this Court. Later the appellant had filed their written submissions on
The written submissions filed belatedly refer to theaforementioned submissions pertaining to Rule 30 and the decision inPriyani Soysa (Supra) and Union Apparels (Pvt.) Ltd. (Supra), but doesnot give any reason as to why there was no compliance with the rulesafter special leave to appeal was granted and also an explanation for thedelay in filing written submissions after hearing the objection on thepreliminary issue, as directed by this Court.
Enactments legislating the procedure in Courts are usually construedas imperative Aspinall vs. Sutton19’ Secretary of State for Defence vs.Warn and this position, as pointed out earlier, has been up held on numerousoccasions by the Supreme Court in this country.
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The appellant could have moved this Court stating valid and acceptablereasons and sought the leave of the Court for further time to furnish writtensubmissions, so that this Court could have exercised its discretion inpermitting the appellant to file his written submissions. However, it is to beborne in mind that the appellant had not sought to exercise the discretionof this Court, but also had not given any valid reason even belatedly for thisCourt to consider using its discretion.
It is therefore absolutely clear that the appellant has not complied withRules 30(1) and 30(6) of the Rules. The contention of the learned President’sCounsel for the appellant is that non-compliance with such Rules will notdisentitle the petitioner being given a hearing. I am in agreement with thelearned President’s Counsel that Rule 30(1) does not refer to an appealbeing dismissed for non compliance with that Rule. However, it is necessaryto consider the circumstances of this case, which makes it necessary forthis Court to take cognizance of them.
As referred to earlier, in Balasingham’s case (Supra) appellants hadfiled their written submissions approximately one year after special leaveto appeal was granted and this Court held not only that there was non-compliance, but also that such non-compliance was the appellant’s failureto show due diligence.
It is quite clear from the aforementioned that there was not only non-compliance of Rules 30(1) and 30(6) of the Supreme Court Rules of 1990,but also that such non-compliance combined with the non -availability of avalid explanation for such non-compliance would certainly amount to failureto show due diligence. In such circumstances, in terms of Rule 34, theappeal stands to be dismissed for non prosecution.
For the aforementioned reasons, I hold that the preliminary objectionraised by learned President's Counsel for the respondents must besustained. This appeal is accordingly dismissed. There will be no costs.
FERNANDO J.— I agree.
AMARATUNGA J.— I agree.
Preliminary objection upheld Appeal dismissed.