097-NLR-NLR-V-43-MUTTUKRISHNA-v.-HULUGALLE.pdf
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HOWARD C.J.—Muttvkrishna v. Hulugallc.
1942Present: Howard C.J. and Soertsz J.
MUTTUKRISHNA v. HULUGALLE.
50—D. C. (Inty.) Colombo, Misc. No. 2.
Revision—Powers of Supreme Court—Order of the District Court—Refusal toorder officers of a Company to submit for examination—Application bypetitioner under Companies Ordinance—Courts Ordinance, s. 37.
It is not competent to the Supreme Court to revise an order madeby the District Court in an application by the petitioner under section133 of the Companies Ordinance, whereby the Court declined to inquireinto the refusal of certain officers and agents of a Company to submitthemselves for examination and to impose penalties on them for such■ refusal.
^ PPEAL from an order of the District Judge .of Colombo.
L. M. D. de Silva, K.C. (with him C. V. Ranawake and ,WalterJayawardene), for the appellant.
V. Perera, K.C. (with him N. M. de Silva), for the first respondent.
B. Wickremanayake (with him N. M. de Silva and H. Wanigetunga),for the second respondent.
Cur. adv. vult.
March 23, 1942. Howard C.J.—
In this case, the applicant-petitioner asks the Court to review by way ofrevision an order of the Additional District Judge of Colombo made onMarch 25, 1941, whereby he refused an application by the petitioner undersection 133 of the Companies Ordinance, 1938, for an inquiry into therefusal of certain officers and agents of Ceylon Exports, Limited,to submit themselves for examination and to impose penalties on themas provided thereunder. Mr. Perera has argued that the Court has nopower to hear an application of this nature by way of revision. It isconceded by Mr. de Silva on behalf of the petitioner that the order of the
' 41 N. L. R. 442
422HOWARD C.J.—Muttukrishna v. Hulugalle.
learned Judge is not subject to preview by way of appeal. He conteftds,however, that the Court’s powers of revision are wide enough to embracereview of the decision by this procedure. Thpse powers, so he maintains,
•. are vested in the Court by virtue of sections 37 and 62 of the CourtsOrdinance. He has also stressed the fact that the decision of the learnedJudge was with regard to a matter of such importance that it was in thepublic interest that its correctness should be reviewed by this Court.Mr. Perera, on the other hand, maintains that no injustice or prejudicehas been occasioned by the decision nor can the substantial rights of anyperson be affected by any decision of this Court. Hence any decisionwould be purely academic. He has invited our attention to the finalparagraph of section 36 of the Courts Ordinance, which is as follows : —
“ But no judgment, sentence or order pronounced by any Courtshall on appeal or revision be reversed, altered or amended on accountof any error, defect or irregularity which shall not have prejudiced thesubstantial rights of either party. ”
As the rights of neither party have been prejudiced, Mr. Pereramaintains that this Court has no power to alter the order of the learnedJudge. After due consideration, I have come to the conclusion thatMr. Perera’s contention is correct. It cannot be said that the substantialrights of either party to the proceedings before the learned Judge havebeen prejudiced by his decision. Hence it is not competent for this Courtunder the provisions of section 37 of the Courts Ordinance to hear thiscase in revision.
There remains for consideration the question as to whether an ordermade by a District Judge under section 133 of the Companies Ordinance,1938. can be the subject of an application to this Court by way of revision.In The King v. Noordeen', it was stated by Wood-Renton J. asfollows : —
“ Under section 357 (1) of the Criminal Procedure Code, the SupremeCourt is empowered, in any case, the record of the proceedings of whichhas been called for by itself or which otherwise comes to its knowledge,to exercise its revisionary powers at its discretion. It appears to methat the language of that section invests the Supreme Court with fullpowers of revision in all criminal cases. ”
Hence, the Supreme Court is empowered to act in revision in all criminalcases, whether or not an appeal lies. Does the same principle applywith regard to civil cases? In Atuk.ora.le v. Samynathan", Soertsz J.stated as follows : —-
“The power of revision conferred on the Supreme Court of Ceylon,by sections 29 and 37 of the Courts Ordinance and by section 753of the Civil Procedure Code are very wide indeed and clearly this Courthas the right to revise any order made by an original Court, whetheran appeal has been taken against that order or not. ”
Is this passage an authority for the proposition that the Supreme Courthas the power to interfere by way of revision with a decision of an originalCourt, irrespective of the appealability of such decision ? At first glance,
1 is X. L. If. lid.- 14 c. l. tr. 109.
Mot ha v. Fernando.
423
a contrary view seems to have been taken in Jayasinghe v. Alwis wherethe petitioner moved the Court in revision to vacate an order made by aDistrict Judge, granting an application for consent to marry thepetitioner’s minor daughter. It was held that in the circumstances theremedy by way of revision does not lie This case was apparentlydecided on the authority of Fernando v. Fernando *, where it was held thata consent given by a District Judge to the marriage of a minor undersection 23 (2) of the Marriage Ordinance, 1907, is not a “'judgment,decree or order ”, within the meaning of section 75 of the Courts Ordinance,1889, and no appeal lies from such a consent. Section 39 of the CourtsOrdinance gives jurisdiction to the Supreme Court in the matter of appeal,while section 75 provides in what cases parties may come to the SupremeCourt by way of appeal. Sections 40 and 73 ol the present CourtsOrdinance correspond with sections 39 and 75 of the Courts Ordinance,1889. Fernando v. Fernando (supra) is, therefore, an authority for theproposition that an appeal from a consent order under the MarriageOrdinance does not lie. The Court in Jayasinghe v. Alwis (supra) havefor similar reasons held that proceedings by way of revision will not lie.This latter decision is, therefore, based on the ground that a consentorder under the Marriage Ordinance is not an “ order ” within the •meaning of that term in section 753 of the Civil Procedure Code. Hence,proceedings in revision will not lie. In these circumstances, the decisioncan be reconciled with the dictum I have cited of Soertsz J., in Atukorale v.Samynathan (supra), and the judgment of Wood-Renton J., in The King v.Naordeen (supra). However, in view of the opinion at which I havealready arrived, it is not necessary to decide the question as to whether therefusal of the Court to punish a person under section 133 (5) of the Com-panies. Ordinance, 1938, is an “order” within the meaning of that term insection 753 of the Civil Procedure Code.
For the reasons I have given, the application is dismissed with costs.
Sqertsz J.—I agree.
Application refused.-