Nagarajah and others v Rajadurai and others
NAGARAJAH AND OTHERSvRAJADURAI AND OTHERSCOURT OF APPEAL
C. MALLAKAM 2/MISC
NOVEMBER 13 AND 14, 2003
Validity of a ‘Judgment’ written at a time when a Stay Order is issued by a Superior
Court? – Civil Procedure Code section 186A – Applicability – Is it a illegal
In a transfer application, the Court on 25.5.98, issued an order staying fur-ther proceedings in the trial Court till 24.7.98. The Judgment in the trial Courtwas fixed for 1.6.98. The trial Judge was aware of the stay order issued bythe Court of Appeal, and he forwarded the record along with his Judgmentto the Court of Appeal. After the transfer application was dismissed, and therecord returned to the trial Court, the District Judge who functioned at thattime delivered his order stating that, the Judgment is not a valid judgement,as it was written after the Court of Appeal issued a stay order, and refusedto pronounce the judgment written by his predecessor.
The defendant-petitioner moved in Revision.
Writing the judgment is a very vital step in judicial proceedings. An orderfrom this Court directing the stay of proceedings has the effect of tyingthe hands of the Judge as far as the case is concerned.
The learned Judge has written his “Judgment” in violation of a lawfulorder, validly made by this Court, which he was bound by law to obeyand as such in the eyes of the law, the purported Judgment .was ultravires and illegal. A Judge’s first duty is to obey the law.
APPLICATION to Revise an order of the District Court of Mallakam.
Cases referred to:
Waseela Umma v Sally – 1954 56 NLR 425
Edward v De Silva – (1945) 46 NLR 342
Attorney-General v Sillem – 11 Eng. Reports at 1208
The Queen v Gnanaseeha Thero and others – (1968) 73 NLR 154
R.E. Thambirathnam for petitioners
P. Sivaloganathan for respondent.
Sri Lanka Law Reports
 3 Sri L.R
GAMINI AMARATUNGA, J.This is an application to revise an order dated 10/5/2000 and deliv- 01ered on 21/9/2000 by the learned Additional District Judge ofMallakam.The background facts relevant to this application are as fol-lows:
The plaintiff-respondent (the plaintiff) filed action in the District Courtof Mallakam against the defendant-petitioners (the defendants) pray-ing for a declaration that the Special Meeting of the Mahajana CollegeTellippalai Old Students’ Association convened by the 1 st defendantand held on 2/11/1996 was invalid. The plaintiff also sought injunctiverelief against the Executive Committee elected at the said meeting to 10prevent them from collecting money on behalf of the Association.
At the trial after the plaintiff’s case was closed, further trial was fixedfor 6/5/1998 for the defendant’s evidence. On 6/5/1998, the learnedcounsel for the plaintiff expressed his dissatisfaction over the mannerin which the learned Judge conducted the proceedings of the case andrequested the learned Judge to transfer the case to another Judge.When this request was not acceded to, the learned counsel and theplaintiff walked out of Court. The trial continued with the defendantsleading their evidence.
In the meantime the plaintiff filed an application in this Court bear- 20ing No. 390/98 seeking an order transferring the case. This Court, hav-ing considered the application on 25/5/1998, issued an order stayingfurther proceedings in the District Court case till 24/7/1998.
Meanwhile the case had been called in the District Court on28/5/1998 for the defendants’ written submissions and after the samewere filed, the judgement was fixed for 1/6/1998. This is reflected injournal entry No. 58. There is another journal entry made on the sameday at 11.00 a.m. It states that the Attorney-at-Law for the plaintiffbrought to the notice of Court that the Court of Appeal in applicationNo. 390/98 has issued a stay order staying the proceedings in the 30case. The learned Judge has initialled this entry. The petition does notstate the date on which the District Court received the official commu-nication sent by this Court. However the learned Judge, without pro-nouncing his judgment on 1/6/1998, has forwarded the record to thisCourt, along with his judgment in a sealed envelope.
Nagarajah and others v Rajadurai and others
On 10/5/1998, this Court has dismissed the plaintiff’s transfer appli-cation holding that the Court did not accept that there was no fair trialup to the time the plaintiff and his counsel walked out of Court. Whenthe record was returned to the District Court an application was madeby the defendants that since the learned Judge who heard the caseand wrote the judgment has since retired, the Judge who functioned atthat time (time of the application) should pronounce the judgment writ-ten by his predecessor, but not pronounced in view of the stay orderissued by this Court. This application was objected to by the plaintiff.After both parties filed written submissions on that matter the learnedJudge delivered his order on 21/9/2000. By the said order the learnedJudge held that
since the learned Judge who heard the case has written thejudgment after the Court of Appeal issued a stay order it wasnot a valid judgment;
in view of the judgment in the Court of Appeal, the proceedingsin the case up to 6/5/1998 were proper and impartial.
If both parties consent to continue proceedings from 6/5/1998,proceedings would be continued from the point reached by6/5/1998 but if one party does not consent, the proceedingsshould commence before the present District Judge.
The defendants seek revision of that order. Both parties have filedwritten submissions and have consented to accept an order made afterconsidering the written submissions. The question to be decided in thisapplication is the validity of the 'judgment' written at a time when the'stay order issued by this Court was in force. The validity of an act doneby a Court at a time when a stay order issued by a superior court wasin operation had been considered in the case of Waseela Umma vSa//y1). In that case a party to a partition action moved the SupremeCourt by way of revision to obtain a direction to the trial Judge to per-mit that party to prove her claim to the corpus. The judgment in the par-tition action was fixed for 12th June. On 29th May the Supreme Courtordered notice on the respondents and directed to call for the record.On 30th May the Registrar, by letter called for the record from theDistrict Judge. The learned District Judge delivered judgment on 12thJune and forwarded the record.
It appears from the judgement that the Supreme Court was pre-pared to accept the position that although the Registrar’s letter had
Sri Lanka Law Reports
(2003) 3 Sri L.R
been received in the Registry of the District Court, it would have beenlying there without the fact that such a letter had been received beingbrought to the Judge’s notice until he delivered his judgment.
It was contended by the learned Counsel for the respondent thatthe Judge had jurisdiction to continue the proceedings though theSupreme Court may have called for the record. Nagalingam S.P.J.,finding that there was no authority on the point, cited with approvalwhat Soertsz A.C.J., said in Edward v De SilvaW on the question ofjurisdiction of an inferior court to continue proceedings after a petitionof appeal addressed to the Supreme Court had been filed. SoertszA.C.J.’s words quoted by Nagalingam S.P.J. are as follows:
“Now the ordinary rule is that once an appeal is taken from thejudgment and the decree of an inferior court, the jurisdiction ofthat Court in respect of that case is suspended, except of course,in regard to matters to be done and directions to be given for theperfecting of the appeal and its transmission to the Court ofAppeal. As Lord Westbury, Lord Chancellor (1864) observed inAttorney-Generalv Silleni3> at 1208, ‘the effect of a right of appealis the limitation of the jurisdiction of one Court and the extensionof the jurisdiction of another’. It follows as a corollary that on thatright being exercised, the case should be maintained in statusquo till the appellate court has dealt with it and given its decision.”
Having quoted those words, Nagalingam S.P.J. having said that hedid not see any difference in principle between appeals and applica-tions for revision, said further that,
“when this Court by its order of 29th May 1953, directed notice toissue and directed the Registrar to call for the record, this Courthad acquired seisin over the case and acquired jurisdiction overit, immediately effecting thereby a limitation of the jurisdiction ofthe District Judge to continue subsequent proceedings.” P. 247.The learned District Judge’s judgment was held to be ultra viresand was set aside.
In the instant case, the defendants’ written submissions were filedon 28/5/1998 and the judgment was fixed for 1/6/1998. On the sameday at 11.00 a.m. the Judge was informed of the stay order issued bythis Court. The only inescapable inference to be drawn from the abovefacts is that the learned Judge has written his judgment knowing very
Nagarajah and others v Rajadurai and others
well that this Court has issued a stay order. Can one contend that thestay order cannot affect the Judge’s freedom to write his judgmenteither in chambers or at home? I do not think so.Writing the judgmentis a very vital step in judicial proceedings. An order from this Courtdirecting the stay of proceedings has the effect of tying the hands ofthe Judge as far as that particular case is concerned. Therefore it is myconsidered conclusion that the learned Judge has written his "judg-ment” in violation of lawful order, validly made by this Court, which hewas bound by law to obey and as such in the eyes of the law, the pur-ported judgment was ultra vires and illegal. '120
The purported judgment is like a confession recorded by aMagistrate at a time when he had no power under the law to record it.
In The Queen v Gnanaseeha Thero and others <4>, the Supreme Court.has decided that such a confession has no legal value.
The learned Counsel for the defendant-petitioners has relied onsection 186A of the Civil Procedure Code to contend that the judgmentwritten by the learned Judge is valid. Section 186A reads as follows.
“Where a Judge pronounces a judgment written by his predeces-sor but not pronounced as1 provided in section 185, such judg-ment shall, if such predecessor was a judicial officer within the 130meaning of Article 114(6) of the Constitution, at the time suchjudgment was written, not be deemed to be invalid by reason onlyof the fact that such predecessor had no jurisdiction to write suchjudgment.”’
The section may cater to a situation where the Judge had no terri-torial jurisdiction at the time he wrote, the judgment as a result of atransfer given to him. It is my view that section 186A cannot be invokedto salvage an illegal judgment written in blatant violation of a stay orderissued by this Court. A Judge’s first duty is to obey the law.
For the reasons set out above, I uphold the learned Judge’s order 140that the judgment written by his predecessor was not valid as it hadbeen written when the stay order was in force. I accordingly dismissthis revision application with costs in a sum of Rs. 5000/-.
BALAPATABENDI, J. – I agree.