RAJAKUMAR AND ANOTHER v. HATTON NATIONAL BANK LTD

001-SLLR-SLLR-2007-V-2-RAJAKUMAR-AND-ANOTHER-v.-HATTON-NATIONAL-BANK-LTD.pdf



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Rajakumar and Another v Hatton National Bank Ltd.
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RAJAKUMAR AND ANOTHERvHATTON NATIONAL BANK LTD.COURT OF APPEALEKANAYAKE, J.
SISIRAOE ABREW, J.
CA 2012/2003
DC MT. LAVINIA 123/2001/DCM.DECEMBER 12, 2006
Debt Recovery (Special Provisions) Act No. 2 of 1990 as amended by Act No.9 of 1994 – Constitution Articles 24(2), 24(3) – Articles 149, 141 – Plaintiffsright to initiate proceedings either In Sinhala or Tamil language – Defendantsright to participate in Sinhala or Tamil language. Civil Procedure Code 49(1),Section 754(2) Alternate remedy – Judgment or order – Revision – exceptionalcircumstances – Non compliance with Rule – Court of Appeal (AppellateProcedure) Rule * 1990 – Laches.
The plaintiff-respondent instituted action in the District Court of Mt. Laviniaunder and in terms of the Debt Recovery (Special Provisions) Act No.2 of 1990as amended in order to recover a certain amount. The District Court grantedleave to appear and show cause upon deposit of a sum of Rs. 2.5 million, theterms sought by the defendant-appellant were refused by Court – Judgmentwas thereafter entered and decree nisi was made absolute. The defendantmoved in Revision.
It was contended by the appellant a Tamil National that the plaintiff bank failedto provide copies of the plaint and the affidavit in the Tamil language or at leastin English language – contravening Article 24(2), Article 24(3). The respondentcontended that, the Revision application is misconceived in law, there is delayand that, Rule 3(1) of the Court of Appeal Rules 1990 – has not been compliedwith.
Held:
(1) A plain reading of Article 24(2) suggests that the plaintiff bank has theright to initiate proceedings either in the Sinhala or Tamil language, andthe defendant has the right to participate in the proceedings in Courteither in Sinhala or Tamil language.
In this case the petitioners have chosen to participate in theproceedings in the Sinhala language, the motion is also in the Sinhalalanguage – Article 24(2) has been complied with.
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There must be evidence before the District Court that the 1stdefendant-petitioner is not conversant with the language used in theDistrict Court. In the papers filed by the defendant-petitioners theyhave not stated that, the 1 $t defendant-petitioner is not conversant inthe Sinhala language. — The position contended under Article 24(3)cannot therefore be accepted.
As regards the position that, the plaintiff bank has not complied withSection 49 (1) of the Civil Procedure Code — there was no evidencebefore the District Court to suggest that the language of the 1stdefendant-petitioner was not the language of the District Court of Mt.Lavinia.
Held further :
The impugned order is not a final order and as such the defendant-petitioner could invoke the jurisdiction of the Court of Appeal undersection 754(2); The defendant had an alternate remedy.
The petitioners are not entitled to invoke the revisionary jurisdiction ofthe Court of Appeal, in that — the petitioners have not establishedexceptional circumstances warranting the intervention of the Court ofAppeal.
The petitioners have not produced a copy of the impugned order – theyhave not complied with Rule 3(1) of the Court of Appeal (AppellateProcedure) Rules 1990 – without examining the order. Court is unableto make a determination as to the correctness of same — this is anecessary document.
Held further :
The present application has been filed eight months after thepronouncement of the 1st order and four months after the 2nd order -there is delay.
Per Sisira de Abrew, J.
"Revision being a discretionary remedy is not available to those who sleep
over their rights, I further hold that it is not the function of the Court of Appeal.
in the exercise of its revisionary jurisdiction to relieve parties of the
consequences of their own folly, negligence and laches'.
APPLICATION in revision from an order of the District Court of Mt. Lavinia.
Cases referred to:
In Re the insolvency of Hayman Thornhill 2 NLR 105.
Ameenv Rasheek 6 CLW 8.
Rustomv Hapangama 1978-79-80 1 Sri LR 352 (SC)
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RasheedAliv MohamedAH 1981 2 Sri LR 29 (CA)
RasheedAliv MohamedAli 1981 1 Sri LR 262 (SC)
Thilagaratnam v E.A.P Edfrisinghe 1982 1Sri LR 56.
Hotel Galaxy Ltd. v Mercantile Hotel Management Ltd. 1987 1 Sri LR 5.
Caderaman Puife v Ceylon Paper Sacks Ltd. 2001 3 Sri LR 112.
Dharmaratne v Palm Paradise Cabanas Ud. 2003 3 Sri LR 24.
Lokutthuttripitiyage Nandawathie v Madapathage D. Gunawathie CA769/2000 DC Mt. Lavinia 33/92/P CAM 27.9.2001.
Mary Nona v Francina 1988 2 Sri LR 250.
Navaratnasingham v Arumugam 1980 2 Sri LR 01.
Samarasekera v Mudiyanse 1990 1 Sri LR 137.
Shanmugadevi v Kutathilake 20031 Sri LR 215.
Don Lewis v Dissanayake 70 MLR 8.
H.A.M. Cassimv G.A. Battlcaloa 69 NLR 403.
Colombo Apothecaries Ltd. v Commissioner of Labour 1998 3 Sri LR320.
Wijesinghe v Tharmaratnam 4 Sri Kantha 47.
Lakshman Jaya Kumar for defendant-petitioner-pet'rtioner.
Pafitha Kumarasinghe PC with /. Idroos for plaintiff-respondent-respondent.
Cur.adv.vult.
March 16. 2007
SISIRA DE ABREW, J.
Plaintiff-respondent-respondent (hereinafter referred to as theplaintiff bank) instituted action in the District Court of Mt. Laviniaunder and in terms of Debt Recovery (Special Provisions) Act No.2 of 1990 as amended by Act No. 9 of 1994 against the defendant-petitioners-petitioners (hereinafter referred to as the defendant-petitioners) in order to recover Rs. 7.5 million. The District Courtissued a decree nisi against the defendant-petitioners. Thedefendant-petitioners made an application for leave to appear andshow cause against the said decree nisi. The learned DistrictJudge, by his order dated 20.3.2003, granted leave upon deposit ofa sum of Rs. 2.5 million before 16.7.2003. The defendantpetitioners, by motion dated 15.7.2003, sought permission of theDistrict Court, inter alia, (a) to deposit three deeds pertaining tothree lands belonging to the 2nd defendant-petitioner; (b) thereafter
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to sell the lands; (c) and to deposit the proceeds of the sale of thethree lands as security instead of the security ordered by the DistrictCourt. The teamed District Judge, by his order dated 16.7.2003,refused the application in the motion. The learned District Judge madefurther order and entered judgment for the plaintiff bank as prayed foras the defendant-petitioners have failed to comply with the orderdated 20.3.2003. The decree nisi was also made absolute on thisdate. The defendant-petitioners, by this revision application, seeks torevise the orders dated 20.3.2003 and 16.7.2003.
Learned Counsel for the defendant-petitioners contendedbefore us that the plaintiff bank failed to provide copies of the plaintand the affidavit in the Tamil language or at least in Englishlanguage to the 1st defendant-petitioner who is a Tamil nationaland as such the plaintiff bank had not complied with Articles 24(2)and 24(3) of the Constitution of the Democratic Socialist Republicof Sri Lanka (the Constitution). Article 24(2) of the Constitutionreads as follows:
"Any party or applicant or any person legally entitled to representsuch party or applicant may initiate proceedings, and submit toCourt pleadings and other documents, and participate in theproceedings in Court, in either Sinhala or Tamil.n
A plain reading of the Article 24(2) of the Constitution suggests thatthe plaintiff bank has the right to initiate proceedings either in Sinhalaor Tamil language and the defendant has the right to participate in theproceedings in Court either in Sinhala or Tamil language. In this casethe petitioners have chosen to participate in the proceedings in theDistrict Court of Mount Lavinia in the Sinhala language. This is evincedby the language used in the motion dated 15.07.2003 filed on behalf ofthe defendant-petitioners. The language used in the said motion is theSinhala language. Thus the above contention of the learned Counselfor the defendant petitioners cannot be accepted. On being questionedon the propriety of his contention, Learned Counsel for the defendant-petitioners, in the course of the hearing of this application, moved towithdraw this contention.
Learned Counsel for the defendant-petitioners next based hiscontention on Article 24(3) of the Constitution. He made the samesubmission of not handing over a copy in Tamil language or Englishlanguage and further submitted that since the 1 st defendant-petitioner
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is not conversant with the language used in the District Court of MountLavinia the plaintiff bank should have given a copy of the plaint and theaffidavit in the Tamil language or the English language. I now turn tothis question. Article 24(3) of the Constitution reads as follows:
"Any judge, juror, party or applicant or any person legallyentitled to represent such party or applicant, who is notconversant with the language used in a Court, shall be entitledto interpretation and to translation into Sinhala or Tamil,provided by the State, to enable him to understand andparticipate in the proceedings before such Court, and shallalso be entitled to obtain in such language, any such part ofthe record or a translation thereof, as the case may be, as hemay be entitled to obtain according to law."
If the contention of learned Counsel for the defendant-petitioners is correct, then there must be evidence before theDistrict Court that the 1st defendant-petitioner is not conversantwith the language used in the District Court of Mount Lavinia which,according to the proceedings, is the Sinhala language. In thepetition and affidavit filed by the defendant-petitioners, they havenot stated that the 1 st defendant-petitioner is not conversant withthe Sinhala language. Therefore the above contention of learnedCounsel should fail.
Learned Counsel for the defendant-petitioners next contendedthat the plaintiff bank had not complied with section 49(1) of theCivil Procedure Code (CPC) and raised the same question that the1 st defendant-petitioner was not provided with the copy of the plaintand affidavit in the Tamil language or English language. Section49(1) of the CPC reads as follows:
"The plaintiff shall endorse on the plaint, or annex thereto, amemorandum of the documents, if any, which he has producedalong with it; and if the plaint is admitted, shall present as manycopies on unstamped paper of the plaint as there are defendants,translated into the language of each defendant whose language isnot the language of the Court; unless the court, by reason of thelength of the plaint or the number of the defendants or for any othersufficient reason, permits him to present a like number of concisestatements of the nature of the claim made, or of the relief orremedy required in the action, in which case he shall present suchstatements."
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The words "translated into the language of each defendantwhose language is not the language of Court" must beemphasized. Was there evidence before the learned District Judgeto suggest that the language of the 1 st defendant-petitioner was notthe language of the District Court of Mount Lavinia? The abovequestion has to be answered in the negative because thedefendant-petitioners have failed to aver this position viz; that hislanguage is not the language of the District Court, in the petitionand affidavit filed both in the District Court and this Court. For thesereasons the above contention of learned Counsel for thedefendant-petitioners should fail.
Learned President's Counsel for the plaintiff’s bank on the otherhand, contended that the defendant^petitioners cannot now seek torevise the order dated 20.3.2003 as they have, in the motion dated
filed In the District Court of Mount Lavinia, sought todeposit proceeds of sale of lands belonging to the 2nd defendant-petitioner in compliance with the order dated 20.3.2003 wherein thelearned District Judge granted leave to appear upon deposit of Rs.2.5 million. I now advert to this contention. The defendant-petitioners, by the said motion dated 15.7.2003, among otherthings, sought permission of the Court, instead of the securityordered by the Court, to deposit deeds of certain lands belongingto the 2nd defendant-petitioner and to deposit proceeds of sale ofthese lands in the event of the Court granting permission to sell thelands. They have stated in the said motion that they were seekingto do so in compliance with the order dated 20.3.2003. On aconsideration of the totality of the contents of the said motion, itseems to me that the defendant-petitioners have accepted thecorrectness of the order dated 20.3.2003. For these reasons. I holdthe view that the petitioners are not entitled to challenge thecorrectness of the order dated 20.3.2003 by way of revision andthat learned President's Counsel is entitled to succeed in hisargument.
Learned President's Counsel next contended that thedefendant-petitioners could not invoke the revisionary jurisdiction ofthis Court against the order dated 20.3.2003 as the defendant-petitioners could have appealed against the said order with leaveof this Court first had and obtained. He drew our attention to
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section 754(2) of the CPC which reads as follows:
"Any person who shall be dissatisfied with any order made byany original Court in the course of any civil action, proceeding,or matter to which he is or seeks to be a party, may prefer anappeal to the Court of Appeal against such order for thecorrection of any error in fact or in law, with the leave of theCourt of Appeal first had and obtained.wIt is common ground that the order made on 20.3.2003 is not afinal order and as such the defendant-petitioners, in-my view, couldinvoke the jurisdiction of this Court under section 754(2) of theCPC. I, therefore, conclude that defendant-petitioners had analternative remedy against the said order dated 20.3.2003.
Learned President's Counsel next brought to our notice that theorder dated 16.7.2003 is a final order and as such the defendant-petitioner could have preferred an appeal against the said order interms of section 754(1) of the CPC which reads as follows:
"Any person who shall be dissatisfied with any judgmentpronounced, by any original Court in any civil action, proceeding ormatter to which he is a party may prefer an appeal to the Court ofAppeal against such judgment for any error in fact or in law."
Judgment' has been interpreted in section 754(5) of the CPC asfollows: "Judgment" means any judgment or order having theeffect of a final judgment made by any civil court.
The learned District Judge, by his order dated 16.7.2003, madethe decree nisi absolute. Thus, it is crystal clea^ that this order is afinal order.
Upon a consideration of section 754(1) of the CPC and the orderdated 16.7.2003,1 hold that the defendant-petitioners had a right ofappeal against the said order. For the above reasons, I concludethat the defendant-petitioners had alternative remedies against theorders dated 20.3.2003 and 16.7.2003. Now the question thatremains for consideration is whether the defendant-petitionerscould invoke the revisionary jurisdiction of this Court when there isan alternative remedy. In this connection, I would like to considercertain judicial decisions .
In the case of In He the insolvency of Hayman Thornhill 0),discussing the scope and object of the exercise of revisionary
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powers by the Supreme Court Bonser C.J. stated as follows:
"The Supreme Court has the power of revising the proceedingsof all inferior courts. This power …. The object at which theSupreme Court aims in exercising its powers of revision is the dueadministration of justice; and whether any particular person hascomplained against an order; proposed to be revised, or isprejudiced by it, is not to be taken into account in the exercise ofsuch power.11
In Ameen v Rasheedft Abrahams, CJ. observed: "It has beenrepresented to us on the part of the petitioner that even if we findthe order to be appealable, we still have discretion to act inrevision. It has been said in this Court often enough that revision ofan appealable order is an exceptional proceeding, and in thepetition no reason is given why this method of rectification hasbeen sought rather than the ordinary method of appeal. I can seeno reason why the petitioner should expect us to exercise ourrevisional powers in his favour when he might have appealed, andI would allow the preliminary objection and dismiss the applicationwith costs.11
The above judgment of Abrahams, CJ. was cited with approvalby His Lordship Justice Ismail in Rustom v HapangamaW andstated thus: "The trend of authority clearly indicates that where therevisionary powers of the Court of Appeal are invoked the practicehas been that these powers will be exercised if there is analternative remedy available only if the existence of specialcircumstances are urged necessitating the indulgence of this Courtto exercise these powers in revision.If the existence of specialcircumstances does not exist then this Court will not exercise itspowers in revision."
In Rasheed Aliv Mohamed AM4) Soza, J. remarked thus: "Thepowers of revision conferred on the Court of Appeal are very wideand the Court has the discretion to exercise them whether anappeal lies or not or whether an appeal had been taken or not.However, this discretionary remedy can be invoked only wherethere are 'exceptional circumstances' warranting the intervention ofthe Court." On appeal to the Supreme Court, His Lordship JusticeWanasundara affirming the view expressed by Soza, J. held asfollows: "The powers of revision vested in the Court of Appeal are
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very wide and the Court can in a fit case exercise that powerwhether or not an appeal lies. Where the law does not give a rightof appeal and makes the order final, the Court of Appeal maynevertheless exercise its powers of revision, but it should do soonly in exceptional circumstances. Ordinarily the Court will notinterfere by way of review, particularly when the law has expresslygiven an aggrieved party an alternate remedy such as the right tofile a separate action except when non-interference will cause adenial of justice or irremediable harm." Vide Rasheed Aii vMohamed Ai/.(5)
In Thilagaratnam v EJK.P. Edirisinghefi) L.H. de Alwis, J.remarked thus: "Though the Appellate Courts' powers to act inrevision were wide and would be exercised whether an appeal hasbeen taken against the order of the original court or not suchpowers would be exercised only in exceptional circumstances." InHotel Galaxy Ltd. v Mercantile Hotel Management Ltd.WSharvananda, CJ. commenting on the requirement of exceptionalcircumstances in the exercise of revisionary powers held: "It issettled law that the exercise of the revisionary powers of theappellate court is confined to cases in which exceptionalcircumstances exist warranting its intervention."
Dr Ranaraja, J. commenting on the requirement of exceptionalcircumstances in a revision application held as follows: "The powerof revision vested in the court is discretionary. The power will beexercised when there is no other remedy available to a party. It isonly in very rare instances where exceptional circumstances arepresent that courts would exercise powers of revision in caseswhere an alternative remedy has not been availed of by theapplicant. Thus the general principal is that revision will not liewhere an appeal or other statutory remedy is available. It is only ifthe aggrieved party can show exceptional circumstances, forseeking relief by way of revision, rather than by way of appeal,when such appeal is available to him as of right, that the court willexercise its revisionary jurisdiction in the interests of dueadministration of justice."
Nanayakkara, J. stressed the need for exceptional circums-tances in the exercise of revisionary powers by the Court of Appealin Caderamanpull'e v Ceylon Paper Sacks Ltd.W and stated thus:
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“The existence of exceptional circumstances is a pre-condition forthe exercise of powers of revision.“ The scope and object of theexercise of revisionary powers by the Court of Appeal is succinctlystated by His Lordship justice Amaratunga in Dharmaratnev PalmParadise Cabanas Ltd.&) "Existence of exceptional circumstancesis the process by which the court selects the cases in respect ofwhich the extraordinary method of rectification should be adopted,if such a selection process is not there revisionary jurisdiction ofthis court will become a gateway of every litigant to make a secondappeal in the garb of a Revision Application or to make an appealin situations where the legislature has not given a right of appeal."
In Lokutthuttripitiyage Nandawathi v Madapathage D.Gunawath^0) His Lordship Justice Udalagama observed thus: "Inan application for revision it is necessary to urge exceptionalcircumstances warranting the interference of this court by way ofrevision. Filing an application by way of revision to set aside anorder made by a District Court 3 1/2 years before the institution ofthe revision application is considered as inordinate delay and theapplication is dismissed on the ground of laches."
Upon a consideration of the above judicial decisions, I hold thatthe revisionary powers of this Court cannot be exercised when analternative remedy is available unless there are exceptionalcircumstances warranting the intervention of this Court.
The question that remains for consideration is whether thedefendant-petitioners, in the present case, have establishedexceptional circumstances warranting the intervention of this Court.
I have carefully gone through the petition of the defendant-petitioners and I have to conclude that they have not establishedexceptional circumstances warranting the intervention of this Court.I have earlier held that the petitioners had alternative remediesagainst the orders dated 20.3.2003 and 16.7.2003. For thesereasons, I hold that the defendant-petitioners are not entitled toinvoke the revisionary jurisdiction of this Court and the petition ofthe defendant petitioners should fail on this ground alone.
Learned President's Counsel next contended that thedefendant-petitioners had not produced a copy of the order dated
and as such they had not complied with rule 3(1) of theCourt of Appeal (Appellate Procedure) rules 1990.1 now turn to this
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question. It is true that the defendant-petitioners have not produceda copy of the order dated 16.7.2003. In my view, without examiningthis order, this Court is unable to make a determination as to thecorrectness of this order. Therefore this is a necessary document indeciding whether the application to revise order dated 16.7.2003should be allowed or not. In order to appreciate the contention of thelearned President's Counsel it is necessary to consider rule 3(1 )(a)and (b) of the above rules. I set out below Rule 3(1 )(a) and (b).
Rule 3(1 )(a):
"Every application made to the Court of Appeal for the exerciseof the powers vested in the Court of Appeal by Articles 140 and141 of the Constitution shall be by way of petition, together withan affidavit in support of the averments therein, and shall beaccompanied by the originals of documents material to suchapplicationfor duly certified copies thereof) in the form ofexhibits. Where a petitioner is unable to tender any suchdocument, he shall state the reason for such inability and seekthe leave of the Court to furnish such document later. Where apetitioner fails to comply with the provisions of this rule, theCourt may ex mero motu or at the instance of any party dismisssuch application
Rule 3(1 )(b)
“Every application by way of revision or restitutio in integrumunder Article 138 of the Constitution shall be made in likemanner together with copies of the relevant proceedings(including pleadings and documents produced), in the Court ofFirst Instance, tribunal or other institution to which theapplication relates.1'
In Mary Nona v FrancinaW Ramanathan, J. held: "Compliancewith Rule 46 of the Supreme Court Rules 1978 in an application forrevision is mandatory. A copy of the proceedings containing somuch of the record as would be necessary to understand the ordersought to be revised and to place it in its proper context must befiled. Merely filing copies of three journal entries with no bearing onthe matters raised in the petition is not a compliance with Rule 46.“Rule 46 of the Court of Appeal Rules published prior to thepublication of the present Rules is almost identical with Rule 3(1) of
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the present Court of Appeal (Appellate Procedure) Rules.
In Navarathnasingham v Arumugarrt'2) Soza, J. observed thus:"As the petitioner in the instant case had come into Court only witha certified copy of the proceedings of 10th February, 1980, and theorder delivered on 19th February, 1980, and the orders canvassedby him could not be reviewed in the absence of the earlierproceedings, the evidence and original complaint which wereprocured subsequently, the petition should have been rejected fornon-compliance with Rule 46."
The above judgment of Soza, J. was cited with approval byGunawardane, J. in Samarasekare v Mudiyansd13) and he stated:"The rules of procedure have been devised to eliminate delay andfacilitate due administration of justice. The instant case is a goodexample which illustrates that the revisionary powers of this Courtcannot be exercised without the petitioner furnishing to this Courtthe relevant proceedings on which the order sought to be revised isbased on. Rule 46 had been formulated to avert such situations.The observance of Rule 46 is mandatory."
Again in Shanmugadevi v Kulathilakefi*) Bandaranayake, J.discussing the facts of that case where,
"The appellant ("the plaintiff") instituted action against therespondent ("the defendant") and another person for a declarationthat the plaintiff is the tenant of the premises in suit and for aninjunction against the 1st defendant from demolishing the saidpremises. The 1st defendant pleaded that the plaintiff was in illegaloccupation of the premises as the same were burnt during the 1983riots and were currently vested in the REPIA. The District Judge gavejudgment for the 1st defendant. The plaintiff filed a revisionapplication in the Court of Appeal on 12.12.2000; supported it on15.12.2000 and obtained a stay order and notice on the 1stdefendant for 15.01.2001. The plaintiff filed with his application 4documents including the judgment of the District Judge but failed tofile all the material documents or to explain the reason for the failureand seek leave of court to furnish the necessary documents later, asrequired by Rule 3(1 )(b) read with Rule 3(1 )(2) of the Court of Appeal(Appellate Procedure) Rules, 1990. Instead the plaintiff amended herpetition without notice to the 1 st defendant and without leave of court.She filed one additional document with the amended petition and the
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balance documents with her counter objections."
Bandaranayake, J. remarked: "The requirements of Rules3(1 ){2) and 3 (1)(b) are imperative. In the circumstances of thecase the Court of Appeal had no discretion to excuse the failure ofthe plaintiff to comply with the Rules/
I have earlier held that the order dated 16.7.2003 is a necessarydocument in order to examine the correctness of the same.Applying the principles of the above judicial decisions, I hold thatthe observance of Rule 3(1) of the Court of Appeal (AppellateProcedure) Rules is mandatory in applications for revision. Thus,the petition of the defendant-petitioners to revise the order dated
should fail on this ground alone.
Learned President's Counsel next contended that thedefendant-petitioners are guilty of delay and laches for the reasonthat the present application has been filed eight months after thepronouncement of the 1st order (dated 16.7.2003) and four monthsafter 2nd order (dated 20.3.2003). 1 now advert to this contention.The present application has been filed on 21.11.2003. Thereforethe delay complained of by learned President's Counsel is correct.The defendant-petitioners have not explained the delay in comingto this Court. This a case where the defendant-petitioners weregranted leave to appear upon the condition that they should depositRs. 2.5 million before 16.7.2003 and the learned District Judgemade the decree nisi absolute on 16.7.2003. Thus, the defendant-petitioners should be vigilant over these developments. Thedefendant- petitioners, in my view, have slept over their rights andas such they are guilty of delay and laches.
In Don Lewis v Dissanayake^5) His Lordship JusticeTennakoon, with whom Manicavasagar, J. agreed, discussing thedelay in moving Court in a revision application, held: "that it was notthe function of the Supreme Court, in the exercise of the jurisdictionnow invoked, to relieve parties of the consequences of their ownfolly, negligence and laches. The maxim vigilantibus, nondormientibus, jura subvention provided a sufficient answer to thepetitioner's application."
In H.A.M. Cassim v G.A. Batticaloai16) Sansoni, CJ. held: "Anapplication in revision must be made promptly if it is to beentertained by the Supreme Court."
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In CAapplication No. 1184/68 (decided on 16.10.89), an applicationto revise an order of the District Judge was refused on the ground ofdelay. His Lordship Justice S.N. Silva (as he then was) observed asfollows: "We have to note that order in respect of which the applicationis made was delivered by the learned District Judge on 7.10.1987. Thepetitioner filed this application on 13.3.1989, one year and five monthsafter the impugned order. The petitioner has not explained the delay infiling this application. A person invoking the revisionary jurisdiction ofthis court has to show due diligence and institute proceedings withoutdelay. The petitioner sought the intervention in the District Court and assuch, was aware of the order that was made by the learned AdditionalDistrict Judge. In the circumstances we are of the view that thepetitioner has unduly delayed in filing this application and as such isprecluded from securing relief by way of revision."
"Filing an application by way of revision to set aside an order madeby a District Court 31/2 years before the institution of the revisionapplication was considered as inordinate delay and the application wasdismissed on the ground of laches". Vide Justice Udalagama in
Lokutthuttripitiyage Nandawathiv Madapathage D. Gunawathi (supra).
The power of revision vested in the Court of Appeal is discretionary.Vide Colombo Apothecaries Ltd. v Commissioner of LabouiC'7),Rasheed Ali v Mohamad All (supra), and Wijesinghe vTharmarathnani18>. On a consideration of the above judicial decisions,
I hold that revision being a discretionary remedy is not available tothose who sleep over their rights. I further hold that it is not the functionof the Court of Appeal, in the exercise of its revisionary jurisdiction, torelieve parties of the consequences of their own folly, negligence andlaches.
I have earlier held that the defendant-petitioners are guilty of delayand laches, I therefore hold that the defendant-petitioners are notentitled to invoke the revisionary jurisdiction of this Court and thepetition of the defendant-petitioners should be dismissed on thisground alone.
For the reasons set out in my judgment, I dismiss the petition of thedefendant-petitioners with costs fixed at Rs. 40,000/-.
EKANAYAKE, J. – I agree.
Application dismissed.