071-NLR-NLR-V-49-PABLIS-APPUHAMY-Pettitionerm-and-DIAS-et-al.-Respondents.pdf
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Pablis Appuhamy v. Dias.
1948Present: Dias and Basnayake JJ.
PABLIS APPUHAMY, Petitioner, and DLAS et al., Respondents.
S. C. 376—Application in revision in D. G. Colombo, 4,135.
S. C. 373—Application in revision in D. C. Colombo, 4,136.
Courts Ordinance—Application in revision to Supreme Court—-Difference of opinionbetween Judges hearing application—Re hearing—Composition of Bench—Powers of revision of Supreme Court—By whom exercisable—Section 38.
Where two Judges of the Supreme Court hearing any matter cannot agree,the matter must be listed before a bench of three Judges and not before anotherbench of two Judges.
Per Basnayake J.—Obiter : The powers of revision of the Supreme Courtcan be exercised by a single Judge even where the proceedings sought to berevised are those of a District Court.
DIAS J.—Pablis Appithamy v. Dias.
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Applications to revise an order of the District Judge,Colombo.
Dodwell Goonewardene, for seventh defendant-petitioner.
S. R. Wijayaiilake, for the respondent.
Cur. adv. vult.
February 24, 1948. Dias J.—
These two applications were consolidated by consent of parties, asthey refer to precisely the same point.
They are both applications by the seventh defendant-petitioner prayingthat this Court should exercise its revisional powers.
The cases were listed before a Bench consisting of Soertsz S.P.J.and Nagalirtgam J. The following order is journalled in the respectiveminute papers :—
" To be listed before another Bench as their Lordships cannot agreein regard to the order that should be made in this case
When the case came before us, Mr. Dodwell Goonewardene, for thepetitioner, took the preliminary objection that when two Judges of theSupreme Court are not agreed, the matter should be listed before aBench of three Judges in terms of section 38 of the Courts Ordinance.Mr. Wijayatilake for the respondents has no objection to the matterbeing listed before a Bench of three Judges.
Section 38 of the Courts Ordinance (as amended by section 5 ofOrdinance No. 40 of 1938) provides as follows :—
“ All appeals in civil cases …. from judgments and ordersof the several District Courts of the Island shall be heard before twoat least of the Judges of the said Court …. In the event ofany difference of opinion between such two Judges, the decision of thesaid Court shall be suspended until three Judges shall be present,and the decision of such two Judges when unanimous, or of the majorityof such three Judges in case of any difference of opinion, shall in allcases be deemed and taken to be the judgment of the Supreme CourtNothing in this section shall preclude any Judge of theSupreme Court sitting alone in appeal from reserving any appeal forthe decision of two or three Judges thereof. ”
Section 755 of the Civil Procedure Code (which was added to the Code byOrdinance No. 23 of 1901) enacts a section very similar to the provisionsof section 38 of the Courts Ordinance.
It will be observed that the order of Soertsz S.P.J. and Nagalingam J.is not that the matter should be listed before another Bench of twoJudges, but that the cases should be relisted “ before another Bench ”.
In the Courts Ordinance one of the jurisdictions of the Supreme Courtis its “ Appellate Jurisdiction ”—section 19 (b), and it is clear from thelanguage of the sub-section that the “ appellate jurisdiction ” includes;
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BASNAYAKE J.—Pablia Apjmhnmy v. Dins.
its “ revisional jurisdiction ”, because the sub-section expressly says so.Therefore when section 38 of the Courts. Ordinance provides that all“ appeals ” from a District Court should be listed before two Judges,it includes applications in “ revision ” from a District Court as well.
Therefore when Soertsz S.P.J. and Nagalingam J. were unable toagree and directed that the matter should be “ listed before anotherBench ” it was implied that the procedure provided by section 3S whentwo Judges disagree should be followed. The matter must, therefore,be listed before a Bench of three Judges for final disposal. I make noorder as to costs.
Basnayaxe J.—
When the application No. 376—D. C. Colombo 4.137 P for the revisionof the order of the District Judge came up for hearing before JusticesSoertsz and Nagalingam they were unable to agree as to the order thatshould be made and directed that it should be listed before anotherbench. The Registrar of this Court has construed that direct ion to moanthat the matter should be listed before two other Judges and accordinglylisted it before my brother Dias and myself.
The question for decision is whether this matter should go before abench of three Judges or be heard by a bench composed of two. Theappellant’s counsel contends that it should go before three Judges, whilethe counsel for the respondents is indifferent as to the composition ofthe bench.— –
Although section 37 of the Courts Ordinance w’hich prescribes thepowers of this Court in appeal or revision speaks of “ the hearing onrevision ” there is no requirement of the Civil Procedure Code or theCriminal Procedure Code that Counsel or parties should be heard whenthis Court is exercising its powers of revision. In fact section 358 ofthe Criminal Procedure Code expressly declares that no party has anyright to be heard either personally or by pleader before the SupremeCourt when exercising its powers of revision. Section 753 of the CivilProcedure Code contains no such express provision but its languageis such as is not capable of being construed as conferring on a partyto a matter in which this Court is exercising its powers of revision thesame rights as are conferred on a party to an appeal by Chapter LXIof that Code. Nor, in my opinion, can section 19 of the Courts Ordinancewhich, when dealing with the appellate jurisdiction as opposed to theoriginal jurisdiction of the Supreme Court, speaks of its pow ers in appealand revision in the same breath, be regarded as authority for the appli-cation of the provisions governing appeals to the exercise of the pow'ersof revision. But that does not prevent this Court, where it deemsnecessary, from hearing any person concerned in any matter in whichit is exercising its powers of revision. This Court, in fact, at presentgrants a hearing ad cor am as a rule in all matters dealt with by it by wayof revision. The question then arises how should the bench be composedwhen such a hearing is granted.
Section 38 of the Courts Ordinance prescribes how a bench hearingappeals should be composed but says nothing about the composition
BASK A YAK K J.—Pablia Appuhamy v. Dias.
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of a bench hearing a matter in revision. In the absence of expressprovision in that behalf one has to turn to section 21 of the CourtsOrdinance which declares :—
“ Subject to the limitations in that behalf in this or any otherOrdinance for the time being in force prescribed, the several juris-dictions and all powers and functions by any such Ordinance conferredupon the Supreme Court may be exercised in different matters at thesame time by the several Judges of the said Court sitting apart
This provision is authority for a single Judge of this Court to exerciseits powe -s of revision regardless of whether the Court whose proceedingsare revised is a District Court or any other Court. The fact that bothsection 37 of the Courts Ordinance and section 753 of the Civil ProcedureCode empower this Court in the exercise of its revisionary jurisdictionto malse any order which it might have made had the case been broughtbefore it in due course of appeal instead of by way of revision does notin my opinion make it necessary' in law that the hearing of a matter onrevision from a District Court should be by two Judges. Nor can anargument based on the view that it is anomalous that a single Judgeshould in revision decide a matter which in appeal from a District Courttwo Judges alone can decide, prevail against the clear words of theStatute. This is not the only instance in which the Courts Ordinancehas conferred powers so extensive on a single Judge. Section 42 em-powers any Judge of the Supreme Court to inspect and examine therecords of any Court, and to grant and issue according to law, mandatesin the nature of writs of mandamus, quo warranto, certiorari, proce-dendo and prohibition against any District Judge, Commissioner,Magistrate or other person or tribunal.
Sections 45, 68 and 69 contain further instances of such powers. Ithas been and is, so far as I am aware, the practice to list all matters inwhich this Court is called upon to revise the judgment or order of aDistrict Judge before two Judges. It seems so well established thatI have come across only one reported case in which a single Judge hasexercised revisionary pow'ers in a case from a District Court—Iiaiuisinghcv. Henry1. I do not know its origin nor do I know when it began, buta practice however longstanding does not become law nor can it beallowed to prevail over the true meaning of the Statute except perhapsin an instance such as the one dealt with in Boyagoia v. Mendis2.
In the present case though the practice is at variance with what theStatute has prescribed it is not repugnant to the Statute, for there canbe no legal objection to two Judges exercising powers which a singleJudge may. As the scheme of the Statute does not provide for twoJudges hearing a matter on revision there w'ill naturally be no provisionas to what should be dons if the Judges do not agree. In my viewneither section 38 of the Go’irts Ordinance nor section 775 of the CivilProcedure Code applies ; but I see nothing in either of the StatutesI have mentioned above, which prevents the course contemplated inthose sections being adopted in the absence of special provision in thatbehalf. I, therefore, agree to the order proposed by my brother.
To be listed before three Judges.
% (1929) 30 N. L. R. 321.
(1896) 1 N. L. R. 303.