016-SLLR-SLLR-2006-V-1-RATNAYAKE-vs.-TIKIRI-BANDA-AND-OTHERS.pdf
CA
Ratnayake Vs
Tikiri Banda and Other? (Wimalachandra, J.)
107
RATNAYAKEVSTIKIRI BANDA AND OTHERSCOURT OF APPEALWIMALACHANDRA, J.
CA 1882/2004DC KANDY 13301/P26TH APRIL, 2005
Civil Procedure Code, sections 189, 754(4), 755, 755(3) and 839 – Can the trialjudge reject a petition of appeal on the ground that the order is not anappealable order ?
Held:
It is not for the trial judge to decide that the order or judgement appealedagainst is not an appealable order – that question is for the Court of Appeal.
8 -CM6576
108
Sri Lanka Law Reports
(2DC6) 1 Sri L. R.
If the petition of appeal is in accordance with the provisions of section755(3), it is mandatory for the District Judge in terms of section 755(4) toforward the petition of appeal with the opinion of the judge as to whether ornot there is a right of appeal against the judgment.
The District Judge erred in refusing to accept the petition of appeal whichamounts to the rejection of the appeal.
APPLICATION in revision from the order of the District Court of Kandy.
J. C. Boange for 8th defendant appellant petitioner.
Plaintiff respondent respondent absent and unrepresented.
01st August, 2005,
K. WIMALACHANDRA, J.The 8th defendant-appellant-petitioner (petitioner) has filed this applicationin revision from the order of the District Judge of Kandy dated 06.08.2003.By that order the learned judge rejected the petition of appeal filed by thepetitioner.
Briefly the facts as set out in the petition of appeal are as follows :
The plaintiff-respondent-respondent (plaintiff) instituted the partitionaction to partition a land called Hitinagederawatte aliasGamagederawatte about two pelas in extent. When the case was takenup for trial, the parties intimated to Court that there was no contest asto the pedigree and the evidence of the plaintiff was led and there wasno cross-examination. Thereafter the judgment was delivered allotting84/160 shares to the plaintiff, 20/160 to the 3rd defendant, 20/160 sharesto the 5th, 6th, 7th, 9th to 14th defendants and 36/120 shares to the 8thdefendant. The 8th defendant discovering an error in the calculation ofthe shares and the computation of shares according to the evidenceled, moved to have the errors corrected in terms of sections 189 and839 of the Civil Procedure Code. The Court, after an inquiry into theapplication made by the 8th defendant, corrected the error of 36/120 to36/160, but held that the other error, that is the computation of theshare of the 8th defendant was not an arithmetical error and refused toconsider the correction of the error alleged to have been made in thecomputation of shares. Being aggrieved with the judgment of the court
Ratnayake 1/s
Tikiri Banda and Others (Wimalachandra, J.) •
109
CA
dated 21.11.2003 in refusing to correct the computation of sharesaccording to the evidence led at the trial, the 8th defendant filer' "notice of appeal and a petition of appeal. The plaintiff objected to thesaid appeal. The Court held an inquiry and made order on 06.08.2004rejecting the petition of appeal of the 8th defendant. It is against thisorder the 8th defendant has filed this application in revision.
The 8th defendant’s position is that the learned District Judge had nopower to reject the petition of appeal. The learned counsel for the 8thdefendant in his written submission, submitted that the notice of appealand the petition of appeal were in conformity with the provisions of section755 of the Civil Procedure Code, as the notice of appeal and the petition ofappeal were filed within the prescribed time period in terms of sections754(4) and section 755(3) of the Civil Procedure Code. In the impugnedorder the learned judge has not faulted with the 8th defendant that hernotice of appeal and the petition of appeal are not in continuity with theprovisions of sections 754 and 755 of the Civil Procedure Code, but he hasrejected the petition of appeal on the sole ground that the said order dated06.08.2004 is not an appealable order.
Section 755(4) of the Civil Procedure Code states that upon the petitionof appeal being filed, the Court shall forward the petition of appeal togetherwith all the papers relevant to the judgment appealed against, as speedilyas possible to the Court of Appeal, retaining however an office copy of thejudgment for the purpose of execution if necessary. Hence, if the judge isof the view that the judgment appealed from or the impugned order is notan appealable order, he must, with his opinion as to whether or not there isa right of appeal against the judgment or order, forward the petition ofappeal to the Court of Appeal as speedily as possible in terms of section755(4) of the Civil Procedure Code.
In the circumstances, I am of the view that it is not for the learnedDistrict Judge to decide that the order or judgment appealed against is notan appealable order and that question is for the Court of Appeal to decide.Accordingly, if the petition of appeal is in accordance with the provisions ofsection 755(3), it is mandatory for the District Judge in terms of section755(4) of the Civil Procedure Code to forward the petition of appeal with theopinion of the judge as to whether or not there is a right of appeal againstthe judgment appealed against. Hence I am of the view that the learned
no
Sri Lanka Law Reports
(2006) 1 Sri L R.
District Judge erred in refusing to accept the petition of appeal of the 8thdefendant, which amounts to the rejection of the petition of appeal.
For these reasons I allow the application in revision and set aside theorder of the District Judge dated 06.08.2003 and direct the learned DistrictJudge to forward the petition of appeal to this Court in terms of section755(4) of the Civil Procedure Code. The application is allowed with costsfixed at Rs. 7,500.
Application allowed; District Judge directed to forward the appeal to theCourt of Appeal.