Sri Lanka Law Reports
(2006) 1 Sri LR.

I might also say that the record does not indicate that an applicationhas been made to revise this order dated 17.06.2002 and I might observethat the learned District Judge cannot be faulted for making the aforesaidorder which I think is a correct order, considering the circumstancesexplained by him.
It is also common ground that the judgment in .the instant case wasdelivered on 02.08.2002 in favour of the plaintiffs-respondents and thereafterthe defendants-petitioners filed a notice of appeal. However it is admittedthat the defendants-petitioners did not file a petition of appeal. The reasongiven by the defendants- petitioners for their failure to tender a petition ofappeal is that they did not contact their Attorney-at-Law thereafter on thebelief that the appeal procedure had been completed with the filing of thenotice of appeal. Accordingly no petition of appeal has been filed in thiscase and on 16.08.2002 the appeal had been referred to the Court ofAppeal. In the circumstances applying the provisions of Section 765 of theCivil Procedure Code to the reasons adduced by the defendants-petitionersfor failure to comply with the provisions in Section 755, my consideredview is that the defendants-petitioners have failed to satisfy Court that thedefendants – petitioners were prevented by cause not within their controlfrom complying with the provisions in Section 755.
In the case of Rakira vs. Silindu(1) it was held :
“A mistake or oversight on the part of the proctor of a party to suit is notsuch cause within the meaning of section 765 of the code as would entitlesuch party to the relief of leave to appeal notwithstanding the lapse oftime”.
Again in Julius vs. Hodgson(2) it was held:

Sanjeewa and Another vs
Piyatissa and Another (Andrew Somawansa, J.) P(CA)
“The practice is not to give leave to appeal where the only ground reliedon is that the appellant or his proctor made some miscalculation of time orsome other mistake, or that the failure was due to the proctor’s neglect”.
The circumstances enumerated by the defendants-petitioners are notsufficiently unusual and compelling to satisfy that they were causes notwithin the defendants-petitioner’s control. There was negligence, inactionand want of bona tides on the part of the defendants- petitioners.
For the foregoing reasons, the contention of the submission of thecounsel for the defendants-petitioners that the defendants-petitioners havea very good case in appeal as they were not afforded a reasonableopportunity of being heard at the trial and that they were unable to file thepetition of appeal because of reasons beyond their control is without anymerit and has to be rejected.
In passing I might refer to another matter raised by the defendants-petitioners in that it is submitted by counsel for the defendants- petitionersthat as per clause 9(c) of the Kandyan Law a deed of gift in which the rightto revoke has been expressly renounced by the donor. Such deed of giftcannot be subsequently revoked. However this submission appears to beincorrect in view of the decision in Ratnayake vs. Bandara3 which held:
“ (1) The Kandyan Law Declaration and Amendment Ordinance, No. 59of 1939 is an Ordinance to declare and amend the Kandyan Law. It seeksto amend the Kandyan Law and not to make a mere restatemet of the lawas it was prior to 1939 when the intention to renounce the right to revokewas inferred or deduced from the particular words used. The amendingOrdinance has enacted a uniform rule requiring an express and not merelyinferential renunciation of the right of revocation. The words “expresslyrenounced” in s. 5(1) (d) of the Ordinance recognize a pre-existing right torevoke which every Kandyan donor had in Kandyan Law. What theOrdinance contemplates is an express and deliberate renunciation by thedonor of his right to revoke. From the words “ absolute and irrevocable” itmay be implied that the Donor intended to revoke but such an expressionwould not constitute an express renunciation of the right to revoke.
There is a further requirement that the renunciation must be effected ina particular way, viz. by a declaration containing the words “I renounce theright to revoke” or words of substantially the same meaning.
Sri Lanka Law Reports
(2006) 1 Sri L. R.
The Ordinance by s. 5(1) (d) has now vested in the Donor a statutoryright to revoke and he is required to exercise that right in a particular way.
The words “ absolute and irrevocable” are only an adjectival descriptionof the gift but the essential requirement is a transitive verb of expressrenunciation. Words merely of further assurance are insufficient.
The use of the words “ absolute and irrevocable” and “to hold the premisesfor ever” do not satisfy the requirement of s. 5(1 )(d) of the Ordinance. DeedNo. 8247 was revocable.”
For the foregoing reasons, the application for leave to appealnotwithstanding lapse of time will stand dismissed with costs fixed atRs.7500.
Application dismissed.