Rusfom v. Hapangama & Co.
Rusfom v. Hapangama & Co.
COURT OF APPEAL.
VYTHIALINGAM, J. AND VICTOR PERERA, J.
C.A. (S.C.) APPLICATION 412/78NOVEMBER 1, 1978.
Revision—Application by plaintiff to revise order of District Judgegranting defendant in default an opportunity to file answer—Right ofappeal therefrom—When will Court of Appeal exercise its powerstby way of revision—Exceptional circumstances—Tests applicable—CivilProcedure Code, sections 753, 754 (2), 756 (3).
The plaintiff-petitioner filed this application for revision of an order ofthe District Court permitting the defendant air opportunity to file hisanswer and defend the action and holding that an application by the'plaintiff for ex-parte trial should not be allowed. A preliminary objec-tion was raised on behalf of the defendant-respondent that it was notcompetent for the plaintiff-petitioner to invoke the revisionary powersof the Court of Appeal as he had a right of appeal against the saidorder of the learned District Judge.
The powers by way of revision conferred on the Appellate Courtare very wid’e and can be exercised whether an appeal has been takenagainst an order of the original Court or not. However, such powerswould be exercised only in exceptional circumstances where an appeallay and as to what such exceptional circumstances are is dependenton the facts of each case.
The order made by the District Court was one which was appealableunder section 754(2) of the Civil Procedure Code with the leave of theappellate Court first had and obtained. Had this procedure beenfollowed the defendant-respondent would have been heard at thepreliminary stage when the Court considered the question as to whetherleave to appeal should be granted or not and he would in effect bedenied this opportunity when the plaintiff-petitioner invoked the revi-sionary powers of the Appellate Court.
Considering the facts and circumstances of the present case therewere no such exceptional circumstances disclosed as would cause theAppellate Court to exercise its discretion and grant relief by way ofrevision. Unless there was something illegal about the order made bythe trial judge which has deprived the petitioner of some right, thejustice of the cause required that the Appellate Court would not in ithecircumstances of this case grant the petitioner the indulgence of exer-cising its revisionary powers and the preliminary objection must there-fore be upheld.
Cases referred to
Atukorale v. Samynathan, (1939) 18 C.L.Rec.. 200; 41 N-L.R. 165;
14 C.L.W. 109.
Silva v. Silva, (1943) 44 N.L.R. 494; 26 C.L.W. 3-
Lebbaythamby et al v. Attorney-General et al. (1964) 70 C.L.W,
Suranimala v. Grace Perera, (1964) 67 C.L.W. 37.
Abdul Cader v. Sittinisa, (1951) 52 N.L.R. 537.
Sinnathangam v. Meeramohaideen, (1958) 60 N.L.R. 394-
Ranesinhe v. Henry, (1896) 1 N.L.R. 303.
Fernando v. Fernando, (1969) 72 N.L.R. 549.
In re the Insolvency of Hayman Thornhill, (1895) 2 N.L R. 105.
Sabapathy v. Dunlop, (1935) 37 N.L.R. 113.
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
Goonewardena v. Orr, (1907) 2 A.C.R. 172.
Perera v. Silva et al, (1908) 4 A.C.R. 79.
Peter Fernando et al. v. Aisa Umma et al (193S) 13 C.L.W. 25.
Ameen v. Rasheed, (1936) 6 C.L.W. 8.
Alitna Natchiar v. Marik.ar et al, (1945) 47 N-LR. 81.
APPLICATION to revise an order of the District Court, Colombo.
H. W. Jayewardene, Q.C., with D. R. P. Goonatilleke, M. Dharmadasaand Laxman Perera, for the petitioner,
C. Thiagalingam, Q.C., with S. A. Pardthalingan, for the respondent.
Cur. adv. vult.
■December 1, 1978.
VYTHIALINGAM, J.The plaintiff-petitioner filed this action in the District Court ofColombo against the defendant-respondent for ejectment anddamages at Rs. 12,000 per mensem on the ground that it was inwrongful and unlawful occupation of the premises in suit whichhad been rented to it at a monthly rental of Rs. 6,000 as it hadfailed and neglected to quit and deliver possession after the 30thSeptember, 1977, in terms of the notice to quit dated 8th August,1977. He alleges that the summons in the case requiring thethe defendant to enter an appearance within fifteen day of theservice of summons was served on 9th November, 1977. Sincethe defendant had failed to enter an appearance within fifteendays of the service of summons as required by section 399(1)of the Administration of Justice (Amendment) Law, No. 25 of1975, plaintiff’s attorney-at-law moved the Court by motiondated 6.12.1977 to fix the case for ex parte trial in terms of section416(1) of the said Law. The case was to be called on 17.1.1978for the consideration of this motion.
In the meantime the defendant’s attorney-at-law by his motiondated 22.12,1977 moved to call this; case for the purpose of filingproxy and answer of the defendant and the Court made orderto mention this matter on 17.1.1978. On that date the defendant’sattorney-at-law filed proxy and moved for further time to filepapers on behalf of the defendant. The Court allowed theapplication and directed that the case be called on 21.2.1978.On that date the defendant filed a petition supported by theaffidavit of the Managing Director of the defendant company.The defendant claimed that the summons in the case was by amistake swerved on an unknown person who had delivered thesame at the defendant’s office during the middle of 1977. Ifthese facts are true then the defendant was not in default asit had entered an appearance within the stipulated time whenits Attorney-at-law filed his motion on 22.12.1977.
Ruslom v. Hapangama & Co. (Vythialingam, J.)
Further time was requested for the filing of its answer andin view of the objections of the attorney-at-law for the plaintiffthe matter was fixed, for inquiry on 28.2.1978. After inquiry theDistrict Judge by his order dated 5.5.1978 held that the plaintiffsapplication for ex parte trial should not be allowed and thatthe defendant should be allowed an opportunity to file his answer.The plaintiff petitioner filed the application on 29.5.1978 for therevision of the District Judge’s order in terms of section 753of the Civil Procedure Code (Cap. 101) as amended by Law,No. 20 of 1977 which came into force on 15.12.1977, Law No. 25 of1975 having been repealed by Law No. 19 of 1977. Mr. Thiaga-lingam who appeared for the defendant-respondent raised a preli-minary objection to this application namely, that since the plain-tiff petitioner had a right of appeal against the order of theDistrict Judge it was not competent for him to invoke therevisionary powers of this Court.
Under the Civil Procedure Code asj amended by Law No. 20of 1977 when an action is filed summons must be served on thedefendant by one of the modes prescribed in the Code. Thesummons requires the defendant to file in Court his answer ifany. Section 84 sets out that if the defendant, inter alia failsto file his answer on or before the day fixed for filing of theanswer, the Court, on being satisfied that the defendant has beenduly served with summons shall proceed to hear the case exparte. Then section 86(1) provides that if at any time prior to theentering of judgment against him for default the defendantwith notice to the plaintiff, satisfies the Court that he had reason-able grounds for such default the Court shall set aside any ordermade arising out of such default and permit the defendant toproceed with his defence a§ from the stage of the default.
In the instant case the District Judge has made order permitt-ing the defendant to proceed with his defence. It is an orderwhich is appealable in terms of section 754 (2) with the leaveof this Court, first had and obtained. The first question whicharises for decision is as to whether the plaintiff can circumventthe provision in regard to obtaining leave from this Court if hehad appealed against the order made, by invoking the powersin revision of this Court. Mr. Jayewardene for the plaintiff peti-tioner submitted that for this purpose there is not much differ-ence between the procedure to be followed in regard to bothmatters. He pointed out that even in the case of an applicationfor revision the petitioner has to obtain notice to is^ue from thisCourt and for this purpose the Court does consider the question asto whether it is a fit and proper case in which notice should issue,
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But there is a very important difference in the procedurefollowed in the two cases. In the case of a revision applicationit is no doubt true that the application is supported in open Courtand the Court after considering the matter issues notice of theapplication. But there is no provision for hearing the respon-dents, in regard to whether notice should issue or not. Under theA.J.L. No- 44 of 1973 in the case of applications for leave toappeal also there was no provision to hear the other side at thestage when Court considers the question whether leave should beallowed or not—sections 326 to 328.
The position under the Civil Procedure Code as amended byLaw No. 20 of 1977 is however quite different. Under section756 (3) an application for leave has to be submitted as speedilyas possible to a Judge in Chambers who may—
forthwith fix a date for hearing of the application and
order notice thereof to be issued on the respondent orrespondents; or
require the application to be supported in open Court
and the Court may then either reject the application orfix a date for the hearing of the application and issuenotice on the respondents.
Thereafter on the date fixed for the hearing, the Court willhear the application for leave to appeal and grant or refuseleave to appeal. The important point to notice here is that theOther side is given a full opportunity to be heard at the preli-minary stage when the Court considers the question as towhether leave to appeal should be granted or not.
When, instead of asking for leave to appeal the petitioner asksthis Court to act by way of revision he is in effect denying therespondent this opportunity. I am of the view that he shouldnot be permitted to do this unless there are very exceptionalcircumstances which require that we should exercise ourdiscretion and grant it as a matter of indulgence. I will refer towhat are exceptional circumstance presently. This principlewould be applicable equally to a case where there is an appealas of right but where the petitioner without filing an appeal orin addition to an appeal invokes the discretionary power of thisCourt to act in revision.
Thus in the case of Atiikorale v. Samynathan (1) Soertsz, J.pointed out at page 201 “ The power by way of revision conferredon the Supreme Court of Ceylon by section 21 (now section 19)and 40 (now section 37) of the Courts Ordinance and by section
Rustom v. Hapangama & Co. (Vythialingam, J.)
753 of the Civil Procedure Code are very wide indeed, andclearly, this Court has the right to revise any order made by anoriginal Court, whether an appeal has been taken against thatorder or not. Doubtless, that right will be exercised in a case inwhich an appeal is already pending only in exceptional circums-tances ”. These observations were approved and followed byWijeyawardena, J. with Moseley, J. agreeing in the case of Silvav. Silva (2).
It is of course not possible to define with precision what matterswould amount to exceptional circumstances and what would not.Nor is it desirable, in a matter which rests so much on thediscretion of the Court to categorise these matters exhaustivelyor to lay down rigid, and never to be departed from, rules fortheir determination. It must depend entirely on the facts andcircumstances of each case and one can only notice the matterswhich courts have held to amount to exceptional circumstancesin order to find out the essential nature of these circumstances.It has been held that where the delay in determining an appealwould render the decision in appeal nugatory the court wouldact in revision even if an appeal was pending or available.
In Samynathan’s case (supra) Soertsz, J. said at page 201“For instance, this jurisdiction will be exercised in order toensure thaf the decision given on appeal is not renderednugatory In that case the defendant had appealed against thejudgment but the District Judge allowed writ of execution toissue pending the appeal. The petitioner appealed against thisorder as well but also filed an application for revision on theground that the delay in the hearing of the appeal would renderthe decision in appeal nugatory if he was successful in theappeal. Soertsz, J. said at page 200, “In the ordinary course,these appeals will not come up for hearing for some time ”. Thepreliminary objection that revision did not lie in these circums-tances was overruled.
In the case of Silva v. Silva (supra), in divorce proceedingsthe plaintiff was awarded custody of the child of the marriagependente life. The defendant filed an appeal against the orderand also filed papers in revision. A preliminary objection wastaken on the ground that the court had no jurisdiction to exerciseits revisionary powers in this case especially in view of theappeal taken against the order. Wijewardena, J. said at page496, “ It must take some time for the appeal to be heard. Evenafter the appeal is perfected and sent to this court it has toremain on the list of pending appeals for at least, fourteen daysbefore it is heard and, normally it should be taken ‘ in the order
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(1978-79) 2 S.L.R.
of its position on the roll’. No doubt provision is made for aparty to ‘ accelerate the hearing of an appeal ’, but an applicationfor such a purpose can be made only after it has been numberedand entered on the roll. It is, therefore, most unlikely that theappeal will be heard before the trial in the District Court. It willserve no useful purpose to hear the appeal after the trial as theappeal itself is from an interim order, I think, therefore, thatthis is a matter in which our revisionary powers should beexercised. ”
Then again in the case of Lebbaybhaniby et al v. Attorney-General et al. (3) at the end of the plaintiff’s case the trial judgeallowed an application of the defendant for the issue of acommission to record the evidence of three persons in the UnitedKingdom. The plaintiff appealed against the order and asked fora stay of the issue of the commission. This was refused and theplaintiffs made an application for revision of the order. Inallowing the application. T. S. Fernando, J. said at page 54 “ Itis correct to say, however, that if the commission issues and iseither executed or is in the process of being executed before theappeal is decided, the appeal to this court, if successful will berendered nugatory and the expenditure unnecessary. Moreover,in the present case the bars of gold are still in the possession ofthe proper officers of the Crown and it was not shown to thelearned District Judge how the interests of the Crown in thelitigation will suffer by a stay of the execution of the commissionuntil the appeal has been decided by the Supreme Court ”.
Similarly where the circumstances call for a speedier remedythan would be available by way of appeal the court would bejustified in acting by way of a revision even if an appeal wasavailable or had been filed. Thus in the case of Suranimala v.Grace Perera (4) which is a decision of a bench of three Judges,in an action brought for the payment of money in terms of acontract for the building of a house, the court ordered theplaintiff despite his objection to hand over the house to thedefendant pending the trial. In allowing the application forrevision, and in dealing with the objection that revision did notlie as an appeal was available and had not been taken T. S.Fernando, J. said at page 39 “ In certain circumstances revisioncan prove a speedier remedy than an appeal which todayappears to take considerable time before it can be disposed ofby this Court. We are of the view that this order was one thatcalled for a speedy quashing”.
Even Where an appeal was taken but was abated on technicalgrounds the Supreme Court has granted relief by way ofrevision, as not to do so would be a denial of justice. Thus in
Rustom v. Hapangama & Co. (Vythialingam, J.)
the case of Abdul Cader v. Sittinisa (5), the appellant hadtendered Rs. 20 for the typewritten copies instead of Rs. 25 andthe Court Secretary and the respondents accepted this withoutobjection. On objection being taken at the hearing of the■revision application that the appeal had abated in consequence ofthe failure to tender the proper sum the court held that as therespondents had not been in any manner prejudiced the appellantshould as a matter of indulgence be heard by way of revision.■Gratiaen, J. observed at page 545 “It is very much to behoped that the Civil Appellant Rules will be amended at anearly date so as to authorise Judges to grant relief to appellantswhere as in this case, a technical breach of the rules has causedno prejudice to the other side. To my mind it would be a travestyof justice if some mere technicality were to deprive a party ofhis right of appeal to the Supreme Court from a judgment whichseriously affects his interests. Until the present rule is relaxed,
I see no reason why the revisionary powers of this court shouldnot be exercised in appropriate cases”.
So also in the case of Sirvnathangam v. Meeramohaideen (6)where an appeal was held to have abated on the ground thatsome technical requirement in regard to notice of tenderingsecurity had not been complied with, T. S. Fernando, J. observedat page 395 “We do not entertain any doubt that this Courtpossesses the power to set right an erroneous decision of theDistrict Court in an appropriate case even though an appealagainst such decision has been correctly held to have been abated.
It only remains for us to examine whether there is a substantialquestion of law involved here and whether this is an appropriatecase for us to exercise the powers of revision vested in thisCourt, by section 753 of the Civil Procedure Code. ” Havingconsidered the judgment of the lower Court he concluded atpage 397 and 398 “ The decision of the trial judge has followedsolely from the erroneous decision reached by him on a questionof law, and this case is in my opinion, an appropriate one in whichto restore to the petitioner his legal right to immunity frombeing sued upon a note declared by statute to be unenforceable ”
So that where an order is palpably wrong and it affects therights of a party also, this Court would exercise its powers ofrevision to set right the wrong irrespective of whether an appealwas taken or was available. See in this connexion also Ranesinhev Henry (7). Other cases where exceptional circumstances werepresent are referred to by Alles, J. in the case of Fernando v-Fernando (8). He said “In the matter of the Insolvency ofHayman Thornhill (9) the Court was satisfied that the proceed-ings were conducted in a most perfunctory manner and that there
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were a number of irregularities. The ‘ due administration of jus-tice’ therefore required the exercise of the Court’s revisionarypowers. In Sabapathy v. Dunlop (10) the revisionary powers ofthe Supreme Court were exercised where there was no appealand where the Court below wrongly passed a decree on a consentorder without satisfying itself of the legality of the agreementwhich was challenged on grounds of fraud, fear, mistake, sur-prise et cetera. ” at page 550. In that case there was anapplication for enhancement of the maintenance orderedpendente lite for the children in the divorce proceedings. Alles,
J.said at page 552 “ While I agree that the courts should beparticularly vigilant where the interests of minors are concerned,it would be an unhealthy precedent for this Court to interferein a case of this kind when the application is in effect one forpayment of enhanced maintenance to the children It was heldthat there were no exceptional circumstances in the case.
These are not intended to be an exhaustive enumeration of thecircumstances in which this Court will interfere by way ofrevision but only as being merely illustrative of the principleapplicable. Mr. Thiagalingam referred us to several cases in whichthe Supreme Court declined to use its powers of revision. Butin all those cases the principle that the Court would interfereby way of revision in appropriate case even though an appealwas available was not denied but the court did not consider itfit to interfere in the facts and circumstances of those particularcases.
In the case of Goonawardena v. Orr (11) the petitioner fileda petition of appeal which was dismissed as being out of time.He could have asked for leave to appeal notwithstanding thelapse of time but he did not do so- Instead he filed papers inrevision. Hutchinson, C.J. in refusing the application said “Isee an expression of opinion bjr Acting Justices Perera andGrenier in 2 Bal p. 66 which I think I ought to follow. The effectof it is that the practice is not to exercise the power of revisionunder section 753 where the remedy of appeal is open ; and herethe party aggrieved might have obtained leave to appealnotwithstanding the lapse of time that has expired. The powersgiven by section 753 ought not to be exercised in such a case ”,No prejudice was caused to the petitioner in that case as the trialjudge had rejected a claim in reconvention stating that it shouldbe tried in a separate action.
In the case of Perera v. Silva et al. (12) the applicant hadanother remedy and in rejecting the application for revisionHutchinson, C.J. said “ But I do not think that the power ought
Rustom v. Hapangama & Co. (Vyihialingam, J.)
to be exercised, or that the legislature could have intended thatit should be exercised, so as to give the right of appeal, practicallyin every case, large or small, simple or difficult. ”
In the case of Peter Fernando et al. v. Aisa Umma et al. (13)Poyser, S. P. J. refused to exercise the discretion because thepoint was taken up for the first time only in the application andhe stated, “I am consequently asked to exercise revisionarypowers on the ground that the petitioner’s legal advisers v/eremistaken as to the procedure to raise a point of law at the trial.I do not consider that these are grounds for granting this applica-tion ; it would in my opinion be establishing a very bad precedent,if I were to hold otherwise ”. In the case Ameen v. Rasheed(14) where also the court refused to exercise its discretion.Abrahams, C.J- said at page 9 “It has been represented to uson the part of the petitioner that even if we find the order tobe appealable, we still have a discretion to act in revision. Ithas been said in this Court often enough that revision of anappealable 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. ”
Finally in the case of Alima Natchiar v. Marikar et al. (15)Keuneman, S. P. J. said in a short judgment of six lines “ Inthe circumstances we should be slow to exercise our discretionto allow an application in revision in view of the fact that noappeal has been taken in this case”. This Court has the powerto act in revision even though the procedure by appeal isavailable, in appropriate cases- The question which has nowto be decided is whether the instant case is an appropriate casein which we should exercise our discretionary powers ofrevision. In his petition and affidavit the petitioner has not setout the reasons for his seeking this method of rectification ofthe order rather than the ordinary method of appeal. Nor hashe set out any exceptional circumstances as to why we shouldgrant him the indulgence of exercising our revisionary powerswhen he could have appealed against the order with leave.
Mr. H. W. Jayewardene, who appeared for the petitionersubmitted that chis was an action for rent and ejectment in whichthe petitioner was claiming damages in a sum of Rs. 12,000 permensem. The Rent Restriction Act does not apply and if thetenant fell into arrears a very large sum would accumulate andrecovery would be difficult. He submitted therefore that aspeedier remedy was called for. The agreed rental was onlyl6,000 per mensem. There is nothing in the plaint or affidavit of
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the petitioner to indicate why he is making double this amount,as damages or the basis on which he has assessed it at thatfigure except that the premises are business premises situatedwithin the limits of the Colombo Municipal Council. Primafacie, therefore, he will be entitled to recover only the agreedrental as damages unless of course he can prove that he hassuffered loss and damage in Rs. 12,000 per mensem.
Admittedly the defendant was not in arrears of rent at the timeof the notice to quit. The petitioner has admitted in his plaintthat even after that the defendant has paid the damages forSeptember and October at Rs. 6,000 per mensem which he hasaccepted without prejudice to his claim, for damages at a higherrate and to his rights. The plaint was filed on 31.10.1977. Thereis nothing in the papers filed or the submissions made as towhether the defendant was continuing to pay the damages atRs. 6,000 per mensem after October 1977 or not. So that thisargument that a large sum would have accumulated if thepetitioner is not given speedy relief is not so weighty as torequire us to act by way or revision. Nor do I see any merit inthe fact that a landlord is entitled to recover his property asquickly as possible. After all most landlords are in that sameposition and this is nothing exceptional to the petitioner.
Mr. Jayewardene’s second submission was that this applicationinvolves a consideration of the applicability of the amendmentsintroduced to the Civil Procedure Code by Law No. 20 of 1977to pending actions and that since this question will arise dailyin almost all the Courts in the Island an early clarification ofthe position by this Court is desirable. Undoubtedly this is so.But however desirable this may be I do not think that thisargument can be made use of to make us grant an indulgenceto the petitioner if he is otherwise not entitled to it. Mr. Jaye-wardene also submitted that in whatever way the parties havecome, they are now before Court and affidavits have been filedby both parties and no prejudice would be caused if the matteris argued. But as I have pointed out on account of the procedureadopted by the petitioner the respondent has been deprived theopportunity of objecting to the grant of leave and if he issuccessful the matter cannot be argued at all.
If we refuse the petitioner’s application it would only meanthat instead of obtaining an ex parte decree he would now haveto go through a trial and prove his case. On the other hand ifthe petitioner is successful then the defendant would not onlyhave to vacate the premises but also pay twice the amount of
Nandasena v. Republic of Sri Lanka
the agreed rental as damages. I think that unless there issomething, illegal about the order made by the judge which hasdeprived the petitioner of some right, the justice of the causerequires that we would not, in the facts and circumstances ofthis case, grant him the indulgence of exercising our revisionarypowers. There are no exceptional circumstances which, requireus to do so- The preliminary objection is therefore upheld andthe petitioner’s application for revision is dismissed with costs.
VICTOR PERERA, J.—I agreeApplication dismissed.
Rustom v. Hapangama & Co