Sri Lanka Law Reports
(3 9891 3 Sri L. R.
BALASOTHY AND ANOTHER
A. G. DE SILVA, J. '
G. P. S. DE SILVA, J, ANDFERNANDO, J.
S. C. (S. L. A.) APPLICATION NO: 203/880. A. (REVISION) APPLICATION NO: 526/88PRIMARY COURT MONERAGALA NO: 591921 FEBRUARY 1989.
Appeal — Application for re-listing a dismissed application on appeal
Once the list for a particular period is prepared or after notices of hearing aredespatched to the parties, applications for postponements, variation and otheradjustments cannot be dealt with by the Registrar.
Apart from applications made in open Court all such applications have tobe made to His Lordship the Chief Justice or the senior Judge of the Benchbefore which a matter is listed or the listing Judge nominated from time totime by His Lordship the Chief Justice.
Counsel who finds himself unable to appear during a particular period byreason of intended absence abroad or illness or other like cause must make
… an application to His Lordship the Chief Justice for postponements: acommunication to the Registrar is insufficient and. if any such
Pereira v. Balasothy and Another (H. A. G. De Silva. J.)
communication is made, at the very least the Registrar must be requested to
submit the matter to His Lordship the Chief Justice for directions.
Such applications should not be made ex parte except possibly incircumstances of great urgency when it is not possible to inform theadverse parties or their Attorneys-at-Law: and even then, it is the obligationof Counsel obtaining an ex parte postponement .to ensure that the adverseparty is notified as soon as possible.
All such applications must be in writing with requisite particulars.
Counsel who is retained, only after a matter is listed is not entitled toassume that such matter will be taken out of the list automatically or as ofright..
APPLICATION to re-list dismissed application.
Fail Mustapha. P.C. with A. A. M. Marleeh for the:Petitioner.
Sanath Jayatilleke with Rohan Sahabandu for the Respondents.
• Cur. adv. vult.
2-.1 st February 1 989
A. G. DE SILVA, J.
Application No. 203 of 1 988 for special leave to appeal to thisCourt was filed on 28.10.88; a stay order was granted.'in•Chambers on 31.10.88 upon an application made on behalf ofthe Petitioner, supported by learned President’s Counsel. Noticeof hearing dated .1.1 2.88 having been duly served on the parties,the special leave application was taken up for hearing on 9.1,89;the Petitioner being absent and unrepresented, the applicationwas refused after hearing Counsel for the Respondents. Thepresent application for relisting was made on'24.1.89. in thecircumstances set out below.
On the directions of His Lordship the Chief Justice, a Noticedated' 31,10.88 was issued by the Registrar, requiring allCounsel to submit a list of the appeals and applications in whichthey appear as well as free dates-for the 1st Term of 1 989; this,was done in an endeavour to improve the listing system, to haveregard to the convenience of Counsel, and to ensure adequate
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notice to Counsel and parties. It was expressly stated therein that"applications for postponements or variations will have to bemade to His Lordship the Chief Justice."
. Learned President's Counsel, in compliance with'that Notice,submitted a list of appeals and his free dates. Special leaveapplication No. 203 of 1988 vyas not included in that list, for thereason, as learned President's Counsel tells us. that he had onlybeen retained to support the application for a stay order; the freedates given did not include any dates in January 1989.presumably because by then he was expecting to be away, fromSri Lanka in January. After receipt of the notice of hearing dated .
12.88. learned President's Counsel was retained to appear insupport of the special leave application; as 9.1.89 did not suithim. he prepared a letter, dated 15.12-88. addressed to theRegistrar.and handed this to junior Counsel; this letter makes noreference, direct or indirect, to the special leave application, andmerely requests the Registrar "in listing the cases in which (he)appears …. to note that (he) would be out of the island from9th to 20th January". However, junior Counsel in his affidavitstates that when he handed this letter to the Registrar, he askedthe Registrar not to list that application during that period, andthat the Registrar .indicated that it would not be listed on 9.1.89;and. further,, that it would be listed in the latter part of January—which appears unlikely as no free dates.had been given forJanuary. The Registrar, in a report to us. states that he has.norecollection of making any such statement; had he done so, wewould have expected either'an endorsement on the letter or aminute in the docket, and in the absence thereof it is difficult toconclude that such a statement was made. However, a.s Counselfor the Respondents stated that he does not challenge thisaffidavit, we must assume that junior Counsel was under themistaken impression that the.special leave application would betaken out of the list of 9.1.89.
Learned. President's Counsel frankly admitted that-there had. been a lapse on -his part in failing to notify the Registrar, either inhis letter dated-1 5.1 2.88 or otherwise, that he was appearing inthe;special leave application; he conceded that his request for anadjustment'ought to have been made to His' Lordship the Chief
Pereira v. Balasothy and Another (hi. A. G. De Silva. JJ.'225
Justice, and that too with notice to -Counsel.. for theRespondents. He urged.-. / nevertheless. ' that.,an order forrelisting be made as junior 'Counsel' was under a mistakenimpression, as aforesaid; but for such error, the Petitionerwould riot-have been absent and unrepresented on -9,1 .-89/-
. •• – ' •
It is necessary that the current practice'and .-procedure i nregard to the postponement b'f,m-attefs-:which are on the list ofpending matters, and the alteration of that list, be re.-stated-soas to avoid.any possible uncertainty or misunderstanding, and■ also to. ensure strict compliance iri' future:' Once the list.for aparticular period is prepared or after notices of hearing aredespatched to the-parties, applications for postponements,variation's and other adjustments cannot be dea't. with .by the -.• Registrar;' presently,' he has-.'not been – authorised -.by;. HisLordship the Chief Justice to. dea.l with such matters. Un:d:er the. current procedure, (apart from- applications madevin openCourt) all such appli.catioris have to' be-made to'-His' Lordship,the, Chief Justice, the1 senior-judge .of the Bench before whicha matter, is l-isted. or the listing; Judge nominated from'time totime by His. Lordship the Chief Justice.-The.-Registrar hadtherefore no authority to take special leave application No.203/88 out of the list of 9.1.89. Secondly. Counsel Who findshimself unable to appear duri'ng a particular period, by reason.of intended absence abroad, illness or other like cause., mustmake an – application to His Lordship: the Chief Justice forpostponements:a communication to the Registrar, is
insufficient, and if any such'communication i's made, at thevery least, the Registrar must be requested to-submit thematter to His Lordship the Chief Justice for directions. In theabsence of such directions, it must mot be assumed that amatter will be taken out of the list. Thirdly, such applicationsshould not be. made ex parte, except possibly in circumstancesof.great urgency when if is'not possible to inform'the adverseparties or their Attorney.s-at-Law. And even then, it is theobligation of Counsel obtainingan ex parte postponement-toensure that the adverse party is notified as soon as. possible,so as to minimise inconvenience and expense. Finally, all suchapplications-must be made in writing, with – the requisiteparticulars, so.as to avoid controversies as in this instance.'It
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needs to be added that Counsel who is retained only-after amatter is listed is not entitled to assume that such matter willbe taken out of the list automatically or as of right.
The expeditious disposal- of matters pending before thisCourt requires the co-operation of Counsel, so as to minimisedelay, inconvenience and expense, to the Court, the partiesand their colleagues, and we have no doubt that this we willreceive in full measure.
In these circumstances, we would normally have refused thisrelisting application with costs. However, as junior Counselwas labouring und.er a mistaken impression that'the Registrarcould, and would, take the matter out of the list of 9.1.89. andas there might have been some uncertainty as to the properprocedure, we are. with some reluctance, allowing thisapplication, in the confident expectation that it will be the lastof its kind. We set aside the order made on 9.1.89. dismissingthe special leave application, and direct that that applicationbe relisted f.or-hearing, before any Bench. The Petitioner willpay a sum of Rs. 525/-, as costs, to the Respondents.
G. P. s. de silva. J. — I agree
M.D. H. FERNANDO. J. — I agreeApplication, for re-listing allowed