PALANIAPPA CHETTY et al. v. MERCANTILE BANK et al

031-NLR-NLR-V-43-PALANIAPPA-CHETTY-et-al.-v.-MERCANTILE-BANK-et-al.pdf


HOWARD C.J.—Palaniappa Chetty v. Mercantile Bank.
127
1941Present: Howard C.J. and Hearne J.
PALANIAPPA CHETTY et al. v. MERCANTILE BANK et al,
In revision D. C., Colombo, 49,541.
Abatement of appeal—Application for typewritten copies—Failure to complywith rules—Order of abatement—Ministerial act—No appeal—SupremeCourt’s powers of revision.
The power vested in the District Court under the Civil AppellateRules to declare that an appeal has abated is exercised in a ministerialand not a judicial capacity and no appeal lies from such an order.
In such a case the Supreme Court is free to exercise its revisionarypowers.
T
HIS was an application to revise an order made by the DistrictJudge- of Colombo.
V. Perera. K.C. (with him S. Nadesan and Walter Jayawardene),for plaintiffs-petitioners.
N. E. Weerasooria, K.C. (with him N. Nadarajah), for 6th to 16thdefendants-respondents.
Cur. adv. vult.
December 11, 1941. Howard C.J.—
Mr. Weerasooria on behalf of the respondents has taken a preliminaryobjection to the hearing of this application by the Court on the groundthat the order of the District Court of which complaint is made is anappealable one and therefore the Supreme Court cannot be asked to useits* revisionary powers. The principle with regard to the employment ofthose powers has been considered in numerous cases and the principlehas been established that the proceedings in revision is an extraordinaryremedy which the Courts will not generally employ to deal with decisionswhich could be brought before it by way of appeal. It is not, however,necessary to consider whether the discretionary power of the Court tohave recourse to its powers of revision should be employed if the order ofthe District Court was not appealable. The order made by the Court
128HOWARD C.J.—Palaniappa Chetty v. Mercantile Bank.
arose out of an application made on September 12, 1941, by thepetitioners under rule 2 of the Civil Appellate Rules, 1938, for type-written copies of the record. On November 27, 1941, the respondentsapplied to the District Court by motion for an order declaring that theappeal had abated for the reason that the form of the application for type-written copies made by the petitioners was not in conformity with rule2 (1) of the Rules referred to. The District Judge on November 28, 1941,made the order allowing this application. The powers vested in aDistrict Judge or a Commissioner of Requests under the Civil AppellateRules, 1938, do allow of the exercise of any discretion. They areministerial and not judicial. The order of which complaint is now madepurports to be made in the exercise of sqme judicial discretion, but sucha judicial discretion is not vested in the Court by any provision of thelaw. If the District Judge was purporting to make the declarationunder section 4 (a) of the Rules, this provision cannot, in view of thewords “ the appeal shall be deemed to have abated ”, that occurs therein,be said to permit the exercise of any discretion. Sections 19 and 36 of theCourts Ordinance (Chapter 6) formulate the Appellate Jurisdiction ofthe Supreme Court. Read in conjunction with the definition of “ Court ”in section 2, this jurisdiction extends to the hearing of appeals fromDistrict Courts acting judicially. No appeal is provided when a Judge isacting in a ministerial or administrative capacity. In such matters,however, the Court is empowered to act by virtue of its revisionarypowers.
In these circumstances I am of opinion that the preliminary objectionmust be overruled and this application will be listed for hearing togetherwith the appeal..
Hearns J.—I agree.
Preliminary objection overruled.