PRIYANI E. SOYSA v. RIENZIE ARSECULARATNE

019-SLLR-SLLR-1999-V-2-PRIYANI-E.-SOYSA-v.-RIENZIE-ARSECULARATNE.pdf


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PRIYANI E. SOYSA
v.RIENZIE ARSECULARATNE
SUPREME COURTAMERASINGHE, J., .
WIJETUNGA, J. ANDBANDARANAYAKE, J.
S.C. SPL LA APPLICATION NO. 141/98
A. APPEAL NO. 173/94 (F)
C. COLOMBO NO. 13035/MRMARCH 25, 1999.
Appeal – Non-compliance with Supreme Court Rules, 1990 – Rules 2, 6 and8 (6) – Discretion of the Court to excuse non-compliance – Criteria relevant tothe exercise of discretion.
The Court of Appeal affirmed the judgment of the District Court against thepetitioner who had been sued for damages on the ground of medical negligencesubject, however, to a difference of opinion between the two Judges in appealas regards the quantum of damages. On 28. 07. 1998 the petitioner made anapplication to the Supreme Court for special leave to appeal. The petitionertendered with the application the requisite notice for service on the plaintiff-respondent. The notice set out the respondent's address as appearing in thecaption to the proceedings in the Court of Appeal. He annexed to his applicationcopies of, inter alia, judgments of the District Court and of the Court of Appeal;but no copies of the brief in the Court of Appeal or the original Court necessaryto verify the allegations of fact in the petition as required by Rule 2 read withRule 6 were annexed. Nor did the petitioner obtain the leave of Court in termsof the proviso to Rule 2 to tender those documents later. But on 16. 9. 1998the petitioner filed a motion iin the Supreme Court tendering three copies of theCourt of Appeal brief and moved that the same be kept by the Registrar in safecustody and be submitted to the Court when the special leave to appeal applicationwould be supported on 28. 09. 1998.
The notice of the application to the respondent was despatched by the Registraron 19. 08. 1998 by registered post in terms of Rule 8 (1); the notice had beendelivered to the address given therein, namely 51/4, Halpe Road, Kandana. Itwas not returned and hence deemed to have been received by the respondent.However, by the time the application was filed, the respondent had changed hisresidence from Kandana to Colombo. Nevertheless, he used to periodically visit
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the Kandana address and collect his mail. The respondent collected his mailinclusive of the notice on 13. 09. 1998 and lodged his caveat under Rule 8 (6)on 23. 09. 1998.
When the application came up for hearing the petitioner raised a preliminaryobjection that the respondent had failed in breach of Rule 8 (6) to file a caveatwithin fourteen days of the receipt of the notice, hence the objection, of therespondent to the grant of special leave to appeal should not be entertained. Therespondent raised a preliminary objection that the petitioner had, in breach of Rule2 read with Rule 6 failed to annex to the petition the documents which werenecessary to verify the allegations of fact in the application which could not beverified with reference to the judgment of the Court of Appeal; hence the specialleave application should be disimissed in limine.
Held:
In the absence of the intimation by the respondent of a change of addressthe petitioner had no option but to treat the address given in the captionof proceedings last had in connection with the matter as the 'presentaddress” of the respondent within the ambit of Rule 4. For the purposeof Rule 8 (6) the date of receipt of the notice is ordinarily the date onwhich the notice is delivered at such address; and the respondent isdeemed to have received such notice on that date.
If the respondent has failed to file the caveat within the time specifiedby Rule 8 (6) but submits an explanation which the Court is prepared toaccept, eg that he was in fact not resident at the address on the dateof receipt of the notice, the Court may in its discretion regard the dateof “actual" receipt of the notice as the relevant date for the purpose ofcompliance with the Rule. On a liberal view of the matter, the respondenthad filed the caveat with in time.
Held further, Amerasinghe, J. dissenting : The only lapse of the petitionerrelied upon by the respondent was that the petitioner had failed to obtainthe Court's permission in terms of the proviso to Rule 2 to tender the copiesof the Court of Appeal briefs and the fact that the petitioner filed threeinstead of four copies. However, Rule 8 (7) enables the respondent alsoto submit the same documents by way of objection whilst Rule 13 (2)empowers the Court to direct the Registrar to call for the same, and havingregard to the purpose of the Rules, non-compliances of this nature wouldnot necessarily deprive a party of the opportunity of being heard on themerits at the threshold stage unless there is some comoelling reason todo so.
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Cases referred to:
Rasheed Ali v. Khan Mohamed Ali (1981) 2 Sri LR 29, 32 (C.A).
Chelliah v. Ponnambalam (1986) Sriskantha's Law Reportsvol. IV61, 64.
Caldera v. John Keells Holdings Ltd. (1986) Colombo AppellateLaw
Reports vol. I 575, 585.
Gangodagedera v. Mercantile Credit Ltd. (1988) 2 Sri LR 253, 257-258(CA).
Leelananda v. Mercantile Credit Ltd. (1988) 2 Sri LR 417, 419 (CA).
Paramanathan v. Kodituwakkuarachchi (1988) 1 Sri LR 315, 337 (CA).
Brown & Co., Ltd. v. Ratnayake (1990) 1 Sri LR 92, 95-96 (CA).
Ibrahim v. Nadaraja, (1991) 1 Sri LR 131 (SC).
Kiriwanthe and Another v. Navaratne and Another (1990)2 Sri LR 393.
Rasheed Ali v. Khan Mohamed Ali (1981) 1 Sri LR 262(SC).
Collins v. Blantern 2 Wils KB 341.
Master v. Miller 4 TR 320, 344.
R. v. Wilks 4 Burr 2527, 2539.
Duport Steels Ltd. v. Sirs (1980) ICR 161, 189.
Alice Kotelawala v. W. H. Perera and Another (1937) 1 CLJ 58; VIICLW 61.
Rasiah v. Sittamparapillai (1920) VII CWR 116.
Mary Nona v. Fransina (1988) 2 Sri LR 250.
Karunawathi v. Kusumaseeli (1990) 1 Sri LR 127.
Fernando v. Sybil Fernando (1997) 3 Sri LR 1.
Read v. Samusudin (1895) 1 NLR 292, 294.
Velupillai v. Chairman UDC (1936) 29 NLR 464, 465.
Dulfa Umma et at v. UDC Matale (1939) 40 NLR 474, 478.
All Ceylon Match Workers' Union v. Jauffer Hassan and Others (1990) 2Sri LR 420.
Jayasuriya v. Sri Lanka State Plantations Corporation (1995) 2 Sri LR 379.
Piyadasa and Others v. Land Reform Commission SC Appeal No. 30/97SC Minutes 8 July, 1998.
APPLICATION for Special Leave to Appeal from the judgment of the Court ofAppeal.
H. L de Silva, PC with R. K. W. Goonesekera, E. D. Wickremanayake,
S. C. Crossette Tambiah, Hugo Anthony and Aravinda Athurupana for thepetitioner.
Romesh de Silva, PC with Palitha Kumarasinghe, Harsha Amarasekera and Hirande Alwis for the respondent.
Cur. adv. vult.
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May 4, 1999.
AMERASINGHE, J.
The Background
Two Judges of the Court of Appeal delivered their separatejudgments affirming the judgment of the District Court on the questionsof the appellant's alleged professional negligence and liability to paydamages. One of the Judges of the Court of Appeal upheld the awardof Rs. 5,000,000 made by the District Court on the 17th of January,1994. The other judge held that the respondent was only entitled toa sum of Rs. 250,000. I am not in the matter before me concernedwith of the correctness or otherwise of the views of the learned Judgesof the Court of Appeal on the questions of liability or quantum. Whenthe learned Judges of the Court of Appeal delivered their judgmentson the 24th of June, 1998, learned counsel for the respondent statedthat his client would accept the sum of Rs. 250,000 but reserved hisright to claim the sum of Rs. 5,000,000 in the event of his case beingreviewed by the Supreme Court. The two Judges of the Court ofAppeal made order for judgment in the sum of Rs. 250,000.
Being aggrieved by the judgments of the learned Judges of theCourt of Appeal, the respondent in the Court of Appeal, sought, andwas granted, permission to formulate the questions of law for anappeal to the Supreme Court. The questions were tendered to theCourt of Appeal with a Motion, but on the date fixed for support, thetwo Judges who had delivered the judgments sought to be set asidein appeal, were not available. The learned Judge before whom thematter came up referred the matter to a Bench comprising thePresident of the Court of Appeal and another Judge of that Courtfor consideration on a day that happened to be the last date permittedby the Rules for obtaining leave from the Court of Appeal. On thatday, learned counsel for the plaintiff-respondent stated that he wasopposing the application for leave to appeal. Learned counsel for thedefendant-appellant informed Court that, as one of the two Judgesof the Court of Appeal who had delivered judgment had since beenelevated to the Supreme Court and the other was out of the country,
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he was withdrawing his application to the Court of Appeal for leaveto appeal and that he would, instead, make an application to theSupreme Court for Special Leave to Appeal. In the circumstances,the Court of Appeal made no order on the matter of an appeal tothe Supreme Court.
On the 28th of July, 1998, a petition of appeal was filed in theSupreme Court, stating that the petitioner was aggrieved with thefinding of professional negligence by the Court of Appeal. The groundsfor that averment were set out in paragraph 12 (a) – (h) – (1) -(25) of the petition of appeal.
The application came up before this Court on various dates withouta consideration of the issues before us. However, on the 12th ofFebruary, 1999, learned counsel for the respondent stated that hewished to take a preliminary objection on the basis of which, hesubmitted, the petition of appeal should be rejected in limine. Learnedcounsel for the petitioner submitted that the respondent had failed tocomply with the provisions of rule 8 (6) of the Supreme Court Rulesand that therefore he could not be heard. In any event, learned counselfor the petitioner further submitted, the objections of the respondentshould be made available to him so that he might have an opportunityof considering them and responding to them.
On the 19th of February, 1999, learned counsel for the respondent,on the directions of the Court, lodged (1) a document setting out thepreliminary objection of the respondent; and (2) an affidavit and otherdocuments in answer to the petitioner's objection that the respondenthad failed to comply with Rule 8 (6) of the Rules of the SupremeCourt.
On the 25th of March, 1999, the Court had the benefit of a veryfull argument on the matters that had been raised by learned counsel.
The objection of the petitioner
Mr. H. L. De Silva, PC., submitted that in terms of Rule 8 of theSupreme Court Rules, 1990 (published in the Gazette of Sri Lanka,
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No. 665/32 of June 07, 1991) upon an application for special leaveto appeal being lodged in the Registry of the Supreme Court, theRegistrar shall forthwith give notice, by registered post, of such ap-plication to each of the respondents : Rule 8 (1). Such notice shallbe despatched within five working days after the application has beenlodged, and shall specify, the date of the hearing of the application;and state “that the respondent, if he intends to oppose the grant ofspecial leave to appeal shall lodge, within fourteen days of the receiptof such notice a Caveat indicating such intention:" Rule 8 (2). Rule8 (6) states : "The respondent shall, within fourteen days of the receiptof such notice, enter an appearance in the Registry of the SupremeCourt, and if he intends to oppose the grant of special leave to appealshall lodge a Caveat indicating such intention." (The emphasis is mine).
The petition of appeal applying, inter alia, for special leave toappeal, was lodged in the Registry of the Supreme Court on the 28thof July, 1998. The notice to the respondent was despatched on the19th of August, 1998, by Registered Post; and the notice had beendelivered to the place to which the notice was addressed, namely51/4, Halpe Road, Kandana, on the 21st of August, 1998. The noticewas not returned, and it must, Mr. H. L. de Silva said, be “deemed"to have been received by the respondent. The respondent's Caveatwas lodged on the 23rd of September, 1998. Learned counsel forthe petitioner submitted that the respondent ought, in terms of Rule8 (6), to have, within fourteen days of the receipt of the notice, enteredan appearance in the Registry of the Supreme Court, and if heintended to oppose the grant of special leave he was required to lodgea Caveat indicating such intention : That was a mandatory requirement.It was obligatory in consequence of Rule 8 (6).,
In the circumstances, Mr. H. L. De Silva, PC learned counsel forthe petitioner, submitted, the objections of the respondent to the grantof special leave to appeal ought not to be entertained by this Court.
Mr. Romesh De Silva, PC learned counsel for the respondent,submitted that the objection of the respondent to the grant of specialleave ought to be heard by the Court, for the respondent had in factcomplied with the requirements of Rule 8. That rule, he said, requires
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that a respondent who intends to oppose the grant of special leaveto appeal shall lodge a Caveat indicating such intention within fourteendays of the receipt of such notice. The respondent received noticeon the 13th of September, 1998, and filed his Caveat on the 23rdof September, 1998, and therefore, within the period of fourteen dayswithin which he was required to lodge his Caveat.
The fact of "receipt" referred to in Rule 8 (6) in my view oughtto be ascertained by reference to the circumstances of each case.
I find myself in agreement with Mr. H. L. De Silva's submissionthat the proved delivery of a Registered document at the address ofa party should ordinarily result in such party being deemed to havereceived such document. However, such an assumption is, in my viewpermissible only if the address was the address of that person. Theaddress to which the notice was sent in this case was the formeraddress of respondent. At the time of the filing of the action in theDistrict Court of Colombo and at the time of the institution of theappeal in the Court of Appeal, the address of the respondent was51/4, Halpe Road, Kandana. By the time of the filing of the petitionof appeal in the Supreme Court, however, the respondent had changedhis residence to 87, St. Joseph's Street, Grandpass, Colombo 14.The respondent, together with his affidavit, filed ten documentssupporting his assertion that it was a well-known fact that his addresswas 87, St. Joseph's Street, Grandpass, Colombo 14. However, eventoday the caption has not been amended to reflect the fact that therespondent's address is not 51/4, Halpe Road, Kandana, but 87,St. Joseph's Street, Grandpass, Colombo 14. Rule 4 requires that inevery application for special leave to appeal to the Supreme Courtthere shall be set out in full “the names and present addresses"of all the respondents. (The emphasis is mine). An application forspecial leave to appeal to the Supreme Court marks the commence-ment of an entirely new stage in a proceeding when the mechanicalrepetition of vital information, such as the address of the respondent,relating to an earlier stage of the proceeding will not suffice. It was,in my view, incumbent on the petitioner to have furnished the addressof the respondent as at the date of the filing of the application for
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special leave. It is not without significance that the earlier Rules of1978 in Rule 20 merely required “the full address" of respondents.
In the matter before me, although the address furnished was notthe present address of the respondent, it was an address at whichhe happened to collect mail, albeit not immediately on a daily basis.
The notice in this matter had been sent to the respondent's earlierplace of residence, which was at the time the notice was despatchedoccupied by his mother-in-law and her brother, whom the respondentvisited from time to time. Hence, his mail was received and kept forhim. The respondent in an affidavit satisfactorily explains why he cameto visit his former place of residence only on the 13th of Septemberand not earlier, and then collected mail lying at that address. I haveno hesitation in accepting the averment in the respondent's affidavitdated the 17th of February, 1999, that he “collected all correspondenceaddressed to [him] inclusive of the notice" on the 13th of September.He filed his Caveat on the 23rd of September. The date of receiptof the notice was the 13th of September.
I, therefore, hold that the respondent filed his Caveat within 14days of the receipt thereof, and therefore within the time specifiedby Rule 8 (6) and should, therefore, be heard.
Learned counsel's submissions for the respondent were, therefore,heard.
The Objection of the Respondent
Mr. Romesh De Silva, PC., submitted that in terms of Rule 2 readwith Rule 6 of the Rules of the Supreme Court, the application forspecial leave should be dismissed in limine, for the petitioner had failedto annex documents to the application for special leave to appeal tothe Supreme Court, especially the record of the original Court and/or the Brief in the Court of Appeal, which were necessary to verifythe allegations of fact in the application which could not be verifiedby reference to the judgments of the learned Judges of the Courtof Appeal in respect of which special leave was sought.
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Mr. H. L. De Silva, PC., did not deny that the allegations of factcontained in the application for special leave to appeal could not beverified by reference to the judgments of the Court of Appeal in respectof which special leave to appeal was sought but, he submitted, thatif a petitioner, as the petitioner in this case had done, annexed anaffidavit in support of allegations of fact which could not be verifiedby reference to the judgment of the Court of Appeal, then otherdocuments need not have been annexed, for Rule 6 provides asfollows : "Where any [application for special leave to appeal to theSupreme Court] contains allegations of fact which cannot be verifiedby reference to the judgment or order of the Court of Appeal in respectof which special leave to appeal is sought, the petitioner shall annexin support of such allegations an affidavit or [emphasis added] otherrelevant document (including any relevant portion of the record of theCourt of Appeal or of the original Court or tribunal). Such affidavitmay be sworn to or affirmed by the petitioner, his instructing attorney-at-law, or his recognized agent, or by any other person having personalknowledge of such facts. Every affidavit by a petitioner, his instructingattorney-at-law, or his recognized agent, shall be confined to thestatement of such facts as the declarant is able of his own knowledgeand observation to testify to; provided that statements of suchdeclarant's belief may also be admitted, if reasonable grounds be setforth in such affidavit." Mr. De Silva stressed the word “or" which hesubmitted should be read disjunctively.
The documents submitted with the petition were the following: (1)A copy of the Plaint; (2) A copy of the Answer; (3) a copy of thejudgment of the District Court; (4) A copy of the defendant's petitionof appeal to the Court of Appeal; (5) A copy of the judgment of theHon. Mr. Justice Weerasekera of the Court of Appeal; (6) A copyof the judgment of the Hon. Mr. Justice Wigneswaran of the Courtof Appeal; (7) A copy of the order made on 24 June, 1998 by JusticesWeerasekera and Wigneswaran; (8) A copy of the motion and ques-tions of law submitted to the Court of Appeal; and (9) A copy of theorder made by Mr. Justice Ismail and Mr. Justice Weerasooriya onthe 13th of July, 1998. Those documents, in my view, do not enablethe Supreme Court to verify the questions of fact canvassed in theapplication for special leave to appeal to the Supreme Court. Nor isthe affidavit of the petitioner helpful in that regard. The affidavit merelystates as follows:
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“1. I am the deponent abovenamed and the defendant-appellant-petitioner in the above captioned application to the SupremeCourt.
I have perused the petition for Special Leave to Appeal to theSupreme Court from the two judgments of the Court of Appealdelivered on 24th June, 1998, in CA Appeal No. 173/94 (F).
The said petition was prepared by my counsel on my instructionsand I declare and swear to the truth of the facts containedtherein."
The Court cannot accept the matters stated in the petition to betrue merely because the petitioner believes them to be the truth; theallegations in paragraph 12 of the petition are to be verified byreference to the facts established by the evidence.
Admittedly, in terms of the proviso to Rule 2, if the petitioner wasunable to obtain any documents at the time of tendering her petition,she would have been excused so doing, for the law does not expectpetitioners to do what is not possible. Cf. Rasheed Ali v. Mohammed’>per Soza, J. She might have been "deemed" to have complied withthe rule if the petitioner had set out the circumstances in the petitionand prayed for permission to tender the document together with therequisite number of copies, as soon as she obtained the same, andif the Court was satisfied (a) that the petitioner had exercised duediligence attempting to obtain such documents; and (b) that the failureto tender the same was due to circumstances beyond her control.However, in this case the petitioner did not in her application for specialleave set out circumstances why she was unable to tender the relevantdocuments with such application; nor was the permission of the Courtsought and obtained to file the documents subsequently.
What the petitioner did instead was this : on the 16th of September,1998, through her registered attorneys-at-law, she filed what purportedto be a Motion in the Supreme Court tendering three copies of theBrief (vols. 1 – III) in CA Appeal No. 173/94 (F) and moving "that
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the same be kept by the Registrar of Your Lordships Court in safecustody and
submitted to Their Lordships who will hear the above SpecialLeave to Appeal Application which is to be supported on the28th September, 1998, by Mr. H. L. De Silva, PC., on behalfof the defendant-appellant-petitioner;
thereafter, submitted to Their Lordships who will hear the appealin the event of Special Leave to Appeal being granted."
As pointed out earlier, no explanation for the failure to tender thedocuments in time was ever made and no permission of the Courtwas ever sought or obtained to tender the documents after theapplication for special leave had been made. In fact, the documentis not addressed to His Lordship the Chief Justice and the otherHonourable Judges of the Supreme Court. It is in my view, no morethan a memorandum addressed presumably to the Registry withregard to the safe custody of the documents and a request that suchdocuments be submitted to the Judges when the matter of specialleave was taken up, and if leave was granted, at the hearing. TheCourt may in its discretion in an appropriate case permit the tenderof documents after the making of an application for special leave (rule2 proviso) but this may be done upon an application to Court withnotice to the other party and with an order of Court granting permissionto do so. (Cf. Chelliah v. Ponnambalanf21 per Bandaranayake, J. withWijetunga, J. agreeing). Where a petitioner fails to tender a necessarydocument either with the application or with the leave of Courtsubsequently the application is liable to be rejected. Cf. Rasheed Aliv. Khan Mohamed Ali {supra) followed in Caldera v. John KeellsHoldings Ltd.{3), (1986) per Jameel, J., Siva Selliah, J. agreeing.Moreover, documents annexed to a petition, or tendered later withthe permission of the Court, must according to Rule 2 be four innumber and not three as tendered by the petitioner. Where there hasbeen a non-compliance with rules and there is no acceptable expla-nation for non-compliance and the default has not been cured,in general the application would be rejected. Cf. per Wijetunga, J.citing Maxwell on the Interpretation of Statutes, 11th ed. (1962)
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p. 367 in Gangodagedara v. Mercantile Credit Ltd(A) Leelanada v.Mercantile Credit Ltd.(S) (per Anandacoomaraswamy, J. with Wijetunga,J. agreeing); Paramanathan v. Kodituwakkuarachchi6) (1988) (perBandaranayake J. with S. N. Silva, J. agreeing); Brown & Co., Ltd.v. RatnayakeP (per Anandacoomaraswamy, J.); Cf. also Ibrahim v.NadarajaP* per Amerasinghe, J., (Dheeraratne and Gunawardana, JJ.agreeing).
Mr. H. L. de Silva, PC., referred to the judgment of Fernando,J. (Dheeraratne, J. agreeing) in Kiriwanthe and another v. Navaratneand another. After comprehensively reviewing the decisions on thesubject of the failure to comply with the Rules of the Court, Fernando,
J.at p. 401 said: "I am content to hold that the requirements of Rule46 must be complied with, but that strict or absolute compliance isnot essential; it is sufficient if there is compliance which is"substantial" – this being judged in the light of the object and purposeof the Rule. It is not to be mechanically applied, as in the case nowbefore us; the Court should first have determined whether the defaulthad been satisfactorily explained, or cured subsequently withoutunreasonable delay, and then have exercised a judicial discretioneither to excuse the non-compliance, or to impose a sanction;dismissal was not the only sanction. That discretion should have beenexercised primarily by reference to the purpose of the rules and notas a means of punishing the defaulter." (The emphasis is mine). Later,at p. 404, Fernando, J. said : “The weight of authority thus favoursthe view that while all these Rules must be complied with, the lawdoes not require or permit an automatic dismissal of the applicationor appeal of the party in default. The consequence of non-compliance(by reason of impossibility or for any other reason) is a matter fallingwithin the discretion of the Court, to be exercised after consideringthe nature of the default, as well as the excuse or explanation therefor,in the context of the object of the particular rule." (The emphasisis mine).
In Kiriwanthe the relevant document, after it had been obtained,was (1) tendered with the leave of Court, (2) with an acceptableexplanation, and (3) within a time the Court regarded as not justifyingthe dismissal of the application. In the fnatter before me, however,
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no explanation for non-compliance has been offered. Nor has thedefault been cured in terms of the proviso to Rule 2, for the documentswere not tendered with an explanation for the failure to tender themwith the petition and with a prayer for permission to tender them. Norwas there a favourable decision of the Court obtained with regardto that matter. If the non-compliance is to be excused, what is the"sanction" to be imposed?
It was not the petitioner's case that the documents should be"deemed" to have been tendered in time. Indeed the petitioner'ssubmission was that the briefs containing the evidence were unnec-essary and that her affidavit was a sufficient compliance with Rule2 read with Rule 6. That was an erroneous view, having regard tothe words of Rule 2 read with Rule 6. No discretion can be allowedto a petitioner to decide what are the necessary documents to betendered with an application for special leave to appeal: Rasheed AHv. Khan Mohamed Ali,l'0) followed in Caldera v. John Keells Holdings(supra). The Court has a discretion as to what it may do if rules arenot complied with, as Fernando, J. observed in Kiriwanthe (supra).
Aristotle (Rhetoric, 1.1) said: “It is best, as we may observe, wherethe laws are enacted upon right principles, that everything should, asfar as possible, be determined absolutely by the laws, and as littleas possible left to the discretion of judges." However, necessarilymany things, especially in the domain of procedure are left to thediscretion of judges: but the maxim is also observed in our jurispru-dence, optima est lex quae minimum relinquit arbitrio judicis, optimusjudex qui minimum sibi – that system of law is the best which leavesleast to the discretion of the judge; that judge the best who reliesleast on his or her own opinion: See per Wilmot, CJ. in Collins v.Blantern}"'; per Buller, J. in Master v. Miller,(12). And although wherediscretion is left to a judge, he or she is to a great extent left unfetteredin its exercise, Coke's definition (4 Institutes 41) – discretio estdiscernere per legem quit sit justum – still holds good. Lord Mansfieldin R. v. Wilkes}'3' said: "… discretion, when applied to a Court
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of Justice, means sound discretion guided by law. It must be governedby rule, not by humour; it must not be arbitrary, vague and fanciful,but legal and regular". Lord Scarman in Duport Steels Ltd. v. S/rs,04'said: “When one is considering the law in the hands of judges, lawmeans the body of rules and guidelines within which society requiresits judges to administer justice. Legal systems differ in the width ofdiscretionary power granted to judges; but in developed societies limitsare invariably set beyond which the judges may not go. Justice insuch societies is not left to the unguided, even if experienced, sagesitting under the spreading oak tree." “Justice must be done accordingto law": Per Maartensz, J. (Abrahams, CJ. agreeing) in Alice Kotelawalav. W. H. Perera and another. The law must be followed “punctili-ously": per Bertram, CJ. in Rasiah v. SittamparapillaP6>. The observ-ance of the law minimizes arbitrariness and the appearance ofarbitrariness, and also makes the law certain and predictable. Theseare essential features of a good legal system.
The law regulating the way in which the Court could exercise itsdiscretion in favour of a petitioner who is unable to lodge a requireddocument is set out in the proviso to Rule 2. Ordinarily a petitionermust tender the necessary documents with his petition. He is nev-ertheless "deemed" to have complied with the rules, "If the court issatisfied that the petitioner had exercised due diligence in attemptingto obtain such . . . document . . . and that the failure to tender thesame was due to circumstances beyond his control, but not othenvise. . ." (The emphasis is mine). In order to enable the Court to besatisfied that a petitioner was "unable to obtain any . . . document… as is required by the rule to be tendered with his petition thepetitioner "shall set out the circumstances in his petition, and shallpray for permission to tender the same, together with the requisitenumber of copies, as soon as he obtains the same." (The emphasisis mine).
In the matter before us, there is nothing either in the petition orany other document stating that the petitioner was unable to tenderthe document with the petition; nor is there a statement of cirumstanceswhy the document could not be duly tendered: There was not a word
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of explanation for the inability to tender the documents with the petitionoffered by learned counsel for the petitioner nor has permission beensought to tender them. In the cirumstances, how could the Court satisfyitself that the petitioner had exercised due diligence to obtain thedocument and that her failure to tender the document with the petitionwas due to circumstances beyond her control – the only grounds uponwhich the Court being, satisfied, the late tender of a document couldin law be "deemed" to have been submitted with the petition inaccordance with Rule 2?
The petitioner was obliged by Rule 2 read with Rule 6 to submitmaterial to enable the Court to review the alleged erroneous conclu-sions of the Court of Appeal based on the misinterpretation ormisunderstanding or inadequate consideration of the facts by thelearned Judges of the Court of Appeal. In order to be able to doso, it was necessary to verify the facts established by the evidence.Where the Court is unable to review a judgment in respect of whichan appeal is made because of the absence of relevant material forthat purpose, the discretion of the Court should in my view beexercised by rejecting the application for special leave to appeal: MaryNona v. Fransina{'7) and Karunawathi v. KusumaseelP81. The rejectionof the application is not by way of a punishment but is the necessaryconsequence of the failure of the petitioner to place the Court in aposition, by the submission of relevant documents, to be able to decidewhether, having regard to the evidence, the case is fit for review.Admittedly, some copies of the relevant documents had been sentto the Registrar and were placed before the Court but, for the reasonsexplained, they cannot be documents deemed to have been admittedin compliance with the rules and, therefore they are not documentswhich I can take in judicial cognizance of having regard to theprovisions of Rule 2 read with Rule 6.
The objection, in my view, is based on the breach of a rule, which,having regard to its purpose, is of a substantial nature and not a meretechnicality. Having regard to the words of the proviso to rule 2, Iam permitted by law to deem the document to have been tenderedwith the petition, and therefore hold that there was compliance withthe rule in the circumstances set out in the proviso "but not otherwise".Accordingly, other considerations, such as the fact that the question
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to be decided is of public or general importance, are not relevant tothe threshold question whether there is a properly constituted petitionwhich may be entertained. In terms of Article 128 (2), the Court wouldbe bound to grant leave to appeal if it is satisfied that the questionto be decided is of public or general importance. But that is a matterto be determined at the stage when, after a petition has beenaccepted, the application made in it for leave to appeal comes upfor consideration. To consider the question of public or generalimportance at the stage when it has to be decided whether there isa properly constituted petition before this court slides two stages intoeach other, driving us to lose sight of the issue before the Court atthis time. In my view, to avoid an inaccurate decision from a confusionof matters for decision, I ought to proceed step by step and nottelescope the various stages of the proceedings in the case. In anyevent, the rules do not say that where a matter is of general or publicimportance the rules need not be observed nor that the Court may,notwithstanding the provisions of Rule 2, have recourse to necessarydocuments that have not been filed with a petition that was. under-standably, not the petitioner's case.
There remains the question of “justice" and the need to avoidtechnicalities. In Fernando v. Sybil Fernandof'9) I had, at some length,endeavoured to explain the importance of complying with procedurallaws and in doing so considered the observations of Bonser, CJ. inRead v. Samsudiri*51 and of Abrahams, CJ. in the cases of Velupillaiv. Chairman UDC2') and Dulfa Umma et al. v. UDC Matald22'. I confirmmy earlier observations, for there was nothing learned counsel saidin the matter before me to the contrary. However, in order to dispelany lingering apprehension in that regard, I do wish to reiterate theassurance that judges do not blindly devote themselves toprocedures or ruthlessly sacrifice litigants to technicalities; althoughlitigants on the road to justice may act recklessly, or negligently orinadvertently and do themselves harm.
Having regard to the allusive reference to civil procedure as anindispensable vehicle for the attainment of justice, perhaps we oughtto remind ourselves that procedural law has a protective characterand represents the orderly, regular and public functioning of the legal
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machinery and the operation of the process of the law. Procedurallaw is important, for, among other reasons, it has the salutary effectof safeguarding the rights, privileges and legitimate interests of bothplaintiffs and defendants, appellants or petitioners and respondentseven-handedly : The protective character of rules of procedure, helpsensure that one person's justice is not another's injustice. Notions ofabstract justice are alluring, but, in my view they tend to obscure theway to an accurate decision according to law.
For the reasons stated in my judgment, I hold that the preliminaryobjection of the respondent is entitled to succeed and I, therefore,reject the application for special leave to appeal with costs.
WIJETUNGA, J.
I have had the advantage of reading in draft the judgment of mybrother Amerasinghe, J. in respect of preliminary objections takenby the defendant-appellant-petitioner ('petitioner') and the plaintiff-respondent-respondent ('respondent') respectively. I regret very muchthat I am unable to agree with him that the preliminary objection ofthe respondent is entitled to succeed and that the application forspecial leave to appeal should therefore be rejected.
I shall first deal with the objection of the petitioner. Learned counselfor the petitioner submitted that in terms of Rule 8 (6), the respondentshould have entered an appearance at the registry of this Court within14 days of the receipt of notice and if he intended to oppose thegrant of special leave to appeal, he should have lodged a Caveatindicating such intention. As the notice had been delivered at theaddress mentioned therein on 21.8.98, and as the respondent's Caveathad been lodged only on 23.9.98, it was submitted that there wasnon-compliance with Rule 8. (6), which is mandatory; and that theobjections of the respondent to the grant of special leave to appealshould not therefore be entertained by this Court.
Learned counsel for the respondent, on the other hand, submittedthat the respondent had in fact complied with the requirements of Rule8, as he had received the notice only on 13.9.98 and had filed hisCaveat on 23.9.98, within the specified period of 14 days.
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I agree with learned counsel for the petitioner that on proof ofdelivery of a registered document at the address of a party, such partyis 'deemed' to have received such document. However, if there ismaterial which shows that a respondent was in fact not resident atthat address on the date of receipt of such document and submitsan explanation to Court which it is prepared to accept, then the Courtmay exercise its discretion and regard such date of 'actual' receiptof notice as the relevant date for the purpose of compliance withthe Rule.
It is correct that Rule 4 of the present Rules requires the presentaddresses of the respondents to be set out in full, whereas Rule 20of the former Rules of 1978 required the addresses of the respondentsto be set out in full. I do not think, however, that the present Rulemeant to impose an undue burden on a petitioner to ascertain suchpresent address. It is inconceivable that a party has to speculateon what the present address of an adverse party is or that he hasto 'go on a voyage of discovery' to ascertain such present address.To my mind, the present address contemplated by Rule 4 is anaddress of which due notice had been given by a respondent to thepetitioner, upon changing his former address. If it were otherwise, thepetitioner would be placed in peril, as a notice which is directed toan address other than the address in the caption could be challengedby a respondent, on the ground that his present address is the sameas the address in the caption.
In the matter before us, the respondent had ample notice of thefact that the petitioner intended to make an application to this Courtfor special leave to appeal – vide the proceedings before the Courtof Appeal on 13.7.98 (A9). In those circumstances, it was at the leastprudent for the respondent to have notified any change of addressto the petitioner. But, I think the matter goes even further. Rule 8(3) requires a petitioner to forthwith notify the Registrar of any changein the particulars relating, inter alia, to the names and addresses ofparties, for the purpose of issuing notice. To enable the petitioner tocomply with this requirement, he should in turn have due notice ofany change of address on the part of the respondents.
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While I agree with my brother that "an application for special leaveto appeal to the Supreme Court marks the commencement of anentirely new stage in a proceeding when the mechanical repetitionof vital information, such as the address of the respondent, relatingto an earlier stage of the proceeding will not suffice", I am equallyof the view that, in the absence of due intimation by the respondentof a change of address, the petitioner has no option but to treat theaddress given in the caption in the proceedings last had in connectionwith the matter (viz. in the Court of Appeal in the instant case) asthe present address of the respondent.
Though the respondent has filed ten documents together with hisaffidavit, in answer to the preliminary objection, seeking to supporthis assertion that his present address was "well-known", it does notfollow that it was even known to the petitioner. The respondent'schange of address may have been "well-known" in the circles to whichhe belongs, but one cannot presume it to be so where the adverseparty is concerned.
Rule 8 (5) indicates the duty cast on a petitioner in this regard.It provides that "the petitioner shall, not less than two weeks andnot more than three weeks after the application has been lodged,attend at the Registry in order to verify that such notice has not beenreturned undelivered. If such notice has been returned undelivered,the petitioner shall furnish the correct address for the service of noticeon such respondent. The Registrar shall thereupon despatch a freshnotice by registered post . . .“. The notice in this case had admittedlynot been returned undelivered. I see no further duty imposed on thepetitioner by the rules.
Therefore, I do not think that the petitioner can be faulted for nothaving despatched the notices to an address which is now statedto be the "present address" of the respondent.
On the other hand, the respondent had, on his own admission,not totally severed connections with his earlier place of resisdence,
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which at the relevant time was occupied by his mother-in-law andher brother, whom he visited from time to time. He collected his mailon such occasions. But, that arrangement has been proved to be quiteinadequate.
By his affidavit dated 17.2.99, the respondent has sought to setout the circumstances in which he came to lodge his Caveat on
He states that he "collected all correspondence addressedto [him], inclusive of the notice" on 13.9.98. Solely on the basis ofthe averments in the respondent's affidavit aforementioned, I amprepared to accept his position that the notice was in fact receivedby him only on 13.9.98. I would, however, reiterate that for the purposeof Rule 8 (6), the date of receipt of such notice is ordinarily the dateon which the notice is delivered at the address of the respondentand he is deemed to have received such notice on that date. But,in all the circumstances of this case, I would agree with the liberalview taken by my brother. Amerasinghe, J. in regard to the Caveatbeing filed "within time".
That brings me to the preliminary objection raised by therespondent. That objection relates to non-compliance by the petitionerwith Rule 2 read with Rule 6 of the present Rules. Learned counselfor the respondent submitted that the application for special leaveshould be dismissed in limine as the petitioner had failed to annexthe documents which were necessary to verify the allegations of factin the application, which could not be verified by reference to thejudgment of the Court of Appeal.
Learned counsel for the petitioner, on the other hand, submittedthat as the petitioner has annexed an affidavit in support of theallegations of fact which could not be verified by reference to thejudgment of the Court of Appeal, other documents need not beannexed. As Rule 6 provides that the petitioner shall annex in supportof such allegations an affidavit or other relevant document, hesubmitted that the word "or" should be read disjunctively.
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Admittedly, the petitioner has filed an affidavit, the contents of whichhave been reproduced in the judgment of my brother Amerasinghe,J. The other documents submitted with the petition too have beenreferred to in his judgment. He, however, comments that "thosedocuments, in [his] view, do not enable the Supreme Court to verifythe questions of fact canvassed in the application for special leaveto appeal to the Supreme Court. Nor is the affidavit of the petitionerhelpful in that regard". He further observes that "the Court cannotaccept the matters stated in the petition to be true merely becausethe petitioner believes them to be the truth . . .".
While I agree that the truth of the matters stated in the petitioncannot be accepted by the Court merely on the basis of the petitioner'sbelief, I wish to point out that the Rules provide a further safeguardin Rule 8 (7), which is as follows :
"Not less than twenty-one days before the date specified in theaforesaid notice as the date of hearing of the application, anyrespondent may lodge (with notice to the petitioner and otherrespondents) a statement, together with three additional copiesthereof, setting out his objections to the grant of special leave toappeal or controverting the allegations of fact set out in the petition;where such statement contains allegations of fact which cannot beverified by reference to the judgment or order of the Court of Appealin respect of which special leave to appeal is sought, affidavitsand other relevant documents shall be annexed in support, andthe provisions of Rule 6 shall apply mutatis mutandis."
Thus, a respondent who seeks to controvert the allegations of factset out in the petition can do so before the hearing, and even submitother relevant documents in support, where necessary. Read withsection 6, 'other relevant documents' include any relevant portion ofthe record of the Court of Appeal or of the original court.
The Court, at the stage of hearing the application for special leaveto appeal, would therefore be in possession not only of the petitioner's
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version in regard to the facts, but also of such other material as wouldhave been furnished by the respondent.
In regard to the purpose of the affidavit contemplated by Rule 6of the present Rules, it is useful to look at the corresponding Rule6 of the Rules of 1978, pertaining to applications for special leaveto appeal, as such comparison makes the purpose clear.
That Rule states that “an application for special leave to appealcontaining allegations of fact which cannot be verified by referenceto any certificate or duly authenticated statement of the Court fromthe judgment of which the application for leave to appeal is preferredshall be supported by affidavit. Where the applicant prosecutes hisapplication in person, the said affidavit shall be sworn by the applicanthimself and shall state that, to the best of the deponent's knowledge,information and belief, the allegations contained in the application aretrue. Where the applicant is represented by an agent the said affidavitis sworn by such agent, it shall, besides stating that, to the bestof the deponent's knowledge, information and belief, the allegationscontained in the application are true, show how the deponent obtainedhis instructions and the information enabling him to presentthe application".
The purpose of the affidavit required by Rule 6, in my view, isto ensure that the petitioner deposes to the truth of the facts containedin the petition for special leave. That objective could be achieved eitherby repeating every averment in the petition for special leave to appealas an averment in the affidavit, or, as in this case, by making a blanketdeclaration of the truth of the facts set out in the petition.
As rightly observed by Amerasinghe, J. the petitioner has not setout in her application for special leave "circumstances why she wasunable to tender the relevant documents with such application; norwas the permission of the Court sought and obtained to file thedocuments subsequently". Instead, the petitioner has tendered toCourt on 16.9.98 three certified copies of the Brief (volumes I to III)
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in the Court of Appeal for submission to the Judges who would hearthe special leave to appeal application and in the event of specialleave to appeal being granted, to the Judges who would hear theappeal. This procedure is not in compliance with the proviso toRule 2.
The anxiety of the petitioner that the Registrar of this Court wouldkeep these documents in safe custody is, however, understandable,as the Cash Receipts marked Y1 and Y2 show that the said documentscost the petitioner over Rs. 77,000.
The authorities referred to by Amerasinghe, J. for the propositionthat "where there has been a non-compliance with rules and thereis no acceptable explanation for non-compliance and the default hasnot been cured, in general, the application would be rejected" indicatethe attitude of the Court of Appeal at that time to the question ofnon-compliance. Much water has flowed under the bridges since then.
The decision of Amerasinghe, J. in Ibrahim v. Nadarajah (supra),referred to by him, was in respect of a failure to comply with therequirements of Rules 4 and 28 of the Supreme Court Rules, 1978,where he held that "it has always, therefore, been the law that itis necessary for the proper constitution of an appeal that all partieswho may be adversely affected by the result of the appeal shouldbe made parties and, unless they are, the petition of appeal shouldbe rejected". That decision cannot be of much assistance in regardto the matter before us.
The case of Kiriwanthe and another v. Navaratne and another,(supra) dealt comprehensively with the decisions pertaining to failureto comply with the Rules of this Court. My brother has quoted certainpassages from that judgment which indicate that, though the Rulesmust be complied with, the Court does not favour an automaticdismissal of an application or appeal of a party in default, but shouldexercise its discretion, inter alia, in the light of the object and purposeof the particular Rule. Said Fernando, J. in the penultimate paragraph
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of that judgment : "Even if non-compliance had not been explained,the discretion of the Court to make an order of dismissal should havebeen exercised only after considering the gravity of default in relationto the issue arising in the case0.
In the same case, Kulatunga, J. said in a separate judgment, interalia that "in exercising its discretion the Court will bear in mind theneed to keep the channel of procedure open for justice to flow freelyand smoothly and the need to maintain the discipline of the law.At the same time the Court will not permit mere technicalities to standin the way of the Court doing justice."
Kiriwanthe's case, to my mind, is a watershed in judicial thinkingin regard to the question of non-compliance with the Rules of theSupreme Court.
This trend is evident even in certain other decisions of the Court.In All Ceylon Match Workers' Union v. Jauffer Hassan and others™where a preliminary objection was taken that as the petitioner hadnot filed any written submissions, thereby failing to comply with Rule35 (b) of the Supreme Court Rules, 1978, Amerasinghe, J. upheldthat objection and dismissed the appeal with costs. Again, in Jayasuriyav. Sri Lanka State Plantations Corporation™ (decided on 30.5.91),Amerasinghe, J. once again held that the respondent's delay to filethe written submissions in compliance with Rule 35 of the Rules ofthe Supreme Court was inexcusable and that he could not be heard.
But, in Piyadasa and others v. Land Reform Commissioni*25* wherea preliminary objection was taken by learned counsel for the petitionersthat the respondents had filed their written submissions 197 days afterthe date on which they were required by Rule 30 (7) to be filed, andit was contended that the respondents' belated submissions shouldnot be accepted and that the respondents should not be heard; eventhough there was no explanation offered regarding the delay,Amerasinghe, J. overruled the preliminary objection stating that "in myview Rule 30 is meant to assist the Court in its work and not to obstruct
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the discovery of the truth. There were numerous documents that hadto be considered; and, in our view, we needed the assistance oflearned counsel for the petitioner as well as the respondents, includingtheir written submissions, to properly evaluate the information that wehad before us. It was, therefore, decided that the preliminary objectionshould be overruled".
In dealing with the procedure applicable to applications for specialleave to appeal to the Supreme Court, we are here concerned particularlywith the requirements of the Rules at the stage when the Court decideswhether or not such leave should be granted.
In this context, one must not lose sight of the salutary provisionsof Rule 13 (2) of the present Rules which state that "the SupremeCourt may at any time after an application for special leave to appealis lodged in the Registry, or after special leave to appeal is granted,direct the Registrar of the Court of Appeal to transmit to the SupremeCourt the entire record of the proceedings (including the journal entries,pleadings, evidence, submissions, judgments and orders, and thedocuments produced in the Court of Appeal and in the original courtor tribunal) and the Judges briefs, and may give such other directionsas to the Court may seem expedient, and the Registrar shall forthwithcomply with all such directions".
This Court has, on numerous occasions, both before and afterspecial leave to appeal was granted, given directions in terms of thisRule to the Registrar of the Court of Appeal, with a view to makinga just and fair determination of the application before it.
Let us now pause to consider the position in regard to the presentapplication at the stage when it was listed for support: The Court hadbefore it the following documents which were annexed to the petitionfor special leave to appeal:
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A true copy of the plaint marked A1.
Atruecopyoftheanswer marked A2.
AtruecopyoftheDistrict Court judgment marked A3.
Atruecopyofthedefendant's petition of appeal to theCourt
of Appeal marked A4.
A certified copy of the judgment or Justice Weerasekera markedA5.
A certified copy of the judgment of Justice Wigneswaran markedA6.
A certified copy of the order made by Justices Weerasekera andWigneswaran on 24.6.98 marked A7.
A true copy of the motion and substantial questions of law sub-mitted to the Court of Appeal marked A8, and
A certified copy of the order made by Justices Ismail andWeerasuriya on 13.7.98 marked A9.
In addition, on 16.9.98 the petitioner had tendered to this Courtthree certified copies of the entire brief in the Court of Appeal, inthree volumes containing 3,030 pages.
Thus, at the stage when the matter came up for support, the Courthad all the necessary material for the due consideration of the applicationfor special leave to appeal.
The case was mentioned before a Bench of two Judges on 28.9.98,counsel for the petitioner being present. Order was then made thatthe matter be supported on 4.12.98. It could not be supported on
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as one of the Judges of that Bench had written one of thetwo judgments in the Court of Appeal. It was thereafter fixed for supporton 12.2.99 when, on an objection being taken regarding non-compliance, the Court directed counsel tor the respondent to formulatethe objection in writing and make such objection available to thepetitioner within one week from that date.
As an objection had already been taken by the petitioner on 25.9.98that the proxy and Caveat of the respondent had been filed only on
and was therefore out of time, the Court fixed 25.3.99 asthe date for consideration of the objections of the petitioner as wellas of the respondent.
Even assuming, though not agreeing, that the affidavit filed by thepetitioner under Rule 6 was inadequate and that certified copies ofthe record of the Court of Appeal should have been submitted withthe original application, the only lapse then on the part of the petitionerwould be that she did not obtain the permission of the Court to tenderthe same, under the proviso to. Rule 2, and that she tendered only3 copies to Court. Having regard to the purpose of the Rules pertainingto special leave to appeal, it appears that non-compliance of this naturewould not necessarily deprive a party of the opportunity of being heardon the merits at the threshold stage, unless there is some compellingreason to do so. As Fernando, J. said in Kiriwanthe's case (supra),"even if non-compliance had not been explained, the discretion ofCourt to make an order of dismissal should be exercised only afterconsidering the gravity of default in relation to the issues arising inthe case".
In the instant case, by the document A, 8 tendered to the Courtof Appeal on 6.7.98, eight substantial questions of law were submittedto Court for its consideration. The eighth question, in subparagraphs(a) to (z), dealt with alleged "errors of fact which are unsupportedby evidence and/or are inconsistent with the evidence and/or areunreasonable".
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There was a difference of opinion between the two Judges whoheard the appeal in the Court of Appeal in regard to the quantumof damages. While one Judge affirmed the order of the District Courtawarding a sum of Rs. 5 million, the other Judge awarded onlyRs. 250,000 as damages, on the basis of the medical expensesincurred by the respondent in respect of his child, whose death wasthe subject matter of this action.
Furthermore, this is the first case of its kind in our Courts wherea professional of standing was sued for damages on the ground ofmedical negligence.
Viewed in the light of the seriousness of the issues arising in thecase, I think that even if there was a lapse on the part of the petitioner,it should not stand in the way of the application for special leave toappeal being considered by this Court.
Over a century ago, Bonser, CJ. in Read v. Samsudin (supra)quoted with approval the words of Sir George Jessel, Master of theRolls, (whom he referred to as “one of the greatest Judges that everadorned the bench") that "it- is not the duty of a Judge to throwtechnical difficulties in the way of the administration of justice, butwhere he sees that he is prevented from receiving material or availableevidence merely by reason of a technical objection, he ought to removethe technical objection out of the way, upon proper terms as to costsand otherwise".
"Those observations of the late Master of the Rolls", said the ChiefJustice, "ought to be borne in mind by every Judge in this Colony".
Abrahams, CJ. in Dulfa Umma et al v. Urban District Council,Matale, (supra) expressed himself even more emphatically thus:
"It happens, perhaps too frequently in this Court, that thelanguage which the Legislature has chosen to employ in enactingcertain rules of procedure compels.the Court in applying theprinciples of construction to hold that non-compliance with a rule
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is fatal to an action. But, I see no such compulsion on me in thiscase. Civil Procedure should be a vehicle which conveys a litigantsafely, expeditiously and cheaply along the road which leads tojustice, and not a juggernaut car which throws him out and thenruns over him leaving him maimed and broken on the road."
Reminding myself of the oft quoted words of Abrahams, CJ. inVelupillai v. The Chairman, Urban District Council (supra) that "thisis a Court of Justice, it is not an academy of Law", suffice it to saythat in the application of Rules which regulate the procedure beforethe Court, every endeavour should be made to ensure that 'justice'is not sacrificed at the altar of procedure, but is administered generallyin harmony with such Rules.
For the reasons aforesaid, I am of the view that this is anappropriate case for both preliminary objections to be overruled andfor the application for special leave to appeal to be set down forhearing in due course.
I, therefore, make order accordingly. There will be no costs.
SHIRANI A. BANDARANAYAKE, J.
I have had the advantage of reading the judgments, in draft,of Amerasinghe, J. and Wijetunga, J., in respect of the preliminaryobjections taken by the defendant-appellant-petitioner and the plaintiff-respondent-respondent, respectively. I am unable to agree withthe reasoning and conclusion of Amerasinghe, J., but am in entireagreement with the reasoning, findings, conclusion and order ofWijetunga, J.
Preliminary objections overruled; Application for Special Leave setdown for hearing.
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21st May, 1999
We have, on reading the judgment of Amerasinghe, J. on thepreliminary objections, delivered on 4.5.99, observed several para-graphs, (which are reproduced below), which did not form part of hisjudgment in draft, sent to us for our consideration. It was on the basisof his original draft that Wijetunga, J. responded by way of a dissent,with which Bandaranayake, J. agreed. The judgment of Wijetunga,J. as well as the decision of Bandaranayake, J. were delivered byAmerasinghe, J., together with his judgment in the present form.
We find it necessary to have this material on record, in order thatthe judgment of Wijetunga, J. may be read in its proper context.
The Registrar is, therefore, directed to have the same annexedto the judgment of Wijetunga, J. as an. addendum.
He is further directed to submit a copy to Hon. Amerasinghe, J.for his information.
A. S. WIJETUNGA, J.
SHIRANI A. BANDARANAYAKE, J.
The paragraphs are as follows :
"Nor has the default been cured in terms of the proviso toRule 2, for the documents were not tendered with an explanationfor the failure to tender them with the petition and with a prayerfor permission to tender them. Nor was there a favourabledecision of the Court obtained with regard to that matter. If thenon-compliance is to be excused, what is the !sanction' tobe imposed?
It was not the petitioner's case that the documents shouldbe "deemed" to have been tendered in time, (at page 8).
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“Aristotle (Rhetoric 1.1) said: “it is best, as we may observe,where the laws are enacted upon right principles, that everythingshould, as far as possible, be determined absolutely by the laws,and as little as possible left to the discretion of Judges." However,necessarily many things, especially in the domain of procedureare left to the discretion of Judges; but the maxim is alsoobserved in our jurisprudence, optima est lex quae minimumrelinquit arbitrio judicis, optimus judex qui minimum sibi – thatsystem of law is the best which leaves least to the discretionof the Judge; that Judge the best who relies least on his orher own opinion: . See per Wilmot, CJ. in Collins v. Blantern,2 Wils. K.B. 341; per Buller, J. in Master v. Miller, 4 TR 320at 344. And although where discretion is left to a Judge, heor she is to a great extent left unfettered in its exercise. Coke'sdefinition (4 Institutes 41) – discretio est discernere per legemquid sit justum – still holds good. Lord Mansfield in R v. Wilkes,4 Burr. 2527 at 2539 said' . . .discretion, when applied to aCourt of Justice, means sound discretion guided by law. It mustbe governed by rule, not by humour; it must not be arbitrary,vague and fanciful, but legal and regular." Lord Scarman inDuport Steels Ltd. v. Sirs, 1980 ICR 161 at 189 said : “Whenone is considering the law in the hands of Judges, law meansthe body of rules and guidelines within which society requiresits Judges to administer justice. Legal systems differ in the widthof discretionary power granted to judges; but in developedsocieties limits are invariably set beyond which the Judges maynot go. Justice in such societies is not left to the unguided,even if experienced, sage sitting under the spreading oak tree."Justice must be done according to law" : Per Maartensz, J.(Abrahams CJ. agreeing) in Alice Kotelawala v. W. H. Pereraand another, (1937) 1 CLJ 58; VIII CLW 61. The law mustbe followed "punctiliously1 : per Bertram, CJ. in Rasiah v.Sittamparapillai, (1920) VIII CWR 116. The observance of thelaw minimizes arbitrariness and the appearance of arbitrariness,and also makes the law certain and predictable. These areessential features of a good legal system.
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Ordinarily a petitioner must tender the necessary documentswith his petition. He is nevertheless “deemed0 to have compliedwith the rules, “if the Court is satisfied that the petitioner hadexercised due diligence in attempting to obtain such . . .document . . . and that the failure to tender the same was dueto circumstances beyond his control, but not otherwise . . ."(at page 9). (The emphasis is mine).
In order to enable the Court to be satisfied that a petitionerwas "unable to obtain any . . . document … as is requiredby the rule to be tendered with his petition “the petitioner shallset out the circumstances in his petition, and shall pray forpermission to tender the same, together with the requisitenumber of copies, as soon as he obtains the same.” (Theemphasis is mine).
In the matter before us, there is nothing either in the petitionor any other document stating that the petitioner was unableto tender the document with the petition; nor is there a statementof circumstances why the, document could not be duly tendered:There was not a word of explanation for the inability to tenderthe documents with the petition offered by learned counsel forthe petitioner nor has permission been sought to tender them.In the circumstances, how could the Court satisfy itself that thepetitioner had exercised due diligence to obtain the documentand that her failure to tender the document with the petitionwas due to circumstances beyond her control – the onlygrounds upon which the Court being 'satisfied', the late tenderof a document could in law be "deemed" to have been submittedwith the petition in accordance with Rule 2?
Admittedly, some copies of the relevant documents had beensent to the Registrar and were placed before the Court but,for the reasons explained, they cannot be documents deemedto have been admitted in compliance with the rules and,therefore they are not documents which I can take in judicial
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Priyani E. Soysa v. Rienzie Arsecularatne
211
cognizance of having regard to the provisions of Rule 2 readwith Rule 6.
The objection, in my view, is based on the breach of a rule,which, having regard to its purpose, is of a substantial natureand not a mere technicality. Having regard to the words of theproviso to Rule 2, I am permitted by law to deem the documentto have been tendered with the petition, and therefore hold thatthere was compliance with the rule in the circumstances setout in the proviso "but not otherwise". Accordingly, otherconsiderations, such as the fact that the question to (atpage 10) be decided is of public or general importance, arenot relevant to the threshold question whether there is a properlyconstituted petition which may be entertained. In terms of Article128 (2), the Court would be bound to grant leave to appealif it is satisfied that the question to be decided is of public orgeneral importance. But, that is a matter to be determined atthe stage when, after a petition has been accepted, the ap-plication made in it for leave to appeal comes up for consid-eration. To consider the question of public or general importanceat the stage when it has to be decided whether there is aproperly constituted petition before this Court slides two stagesinto each other, driving us to lose sight of the issues beforethe Court at this time. In my view, to avoid an inaccuratedecision resulting from a confusion of matters for decision, Iought to proceed step by step and not telescope the variousstages of the proceedings in the case. In any event, the rulesdo not say that where a matter is of general or public importancethe rules need not be observed nor that the Court may, not-,withstanding the provisions of Rule 2, have recourse to nec-essary documents that have not been filed with a petition thatwas, understandably, not the petitioner's case.
There remains the question of "justice" and the need to avoidtechnicalities, in Fernando v. Sybil Fernando, (1997) 3 SLR 1,
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Sri Lanka Law Reports
[1999] 2 Sri LR.
I had, at some length, endeavoured to explain the importanceof complyng with procedural laws and in doing so consideredthe observations of Bonser, CJ. in Read v. Samsudin, (1895)
1 NLR 292 at 294; and of Abrahams, CJ. in the cases ofVelupillai v. Chairman UDC (1936) 39 NLR 464 at 465; andDulfa Umma et al. v. DDC Matale. (1939) 40 NLR 474 at 478.
I confirm my earlier observations, for there was nothing learnedcounsel said in the matter before me to the contrary. However,in order to dispel any lingering apprehension in that regard, Ido wish to reiterate the assurance that Judges do not blindlydevote themselves to procedures or ruthlessly sacrifice litigantsto technicalities; although litigants on the road to justice mayact recklessly, or neligently or inadvertently and do themselvesharm.
Having regard to the allusive reference to civil procedure asan indispensable vehicle for the attainment of justice, perhapswe ought to remind ourselves that procedural law has a pro-tective character and represents the orderly, regular and publicfunctioning of the legal machinery and the operation of the dueprocess of the law. Procedural law is important, for, among otherreasons, it has the salutary effect of safeguarding the rights,privileges and legitimate interests of both plaintiffs and defend-ants, appellants or petitioners and respondents even-handedly:The protective character of rules of procedure helps to ensurethat one person's justice is not another's injustice. Notionsof abstract justice are alluring, but, in my view they tend toobscure the way to an accurate decision according to law." (atpage 11).