SENANAYAKE AND OTHERS v. KOEHN AND OTHERS

053-SLLR-SLLR-2002-3-SENANAYAKE-AND-OTHERS-v.-KOEHN-AND-OTHERS.pdf


CA
Senanayake and Others v. Koehn and Others
381
SENANAYAKE AND OTHERS
v.KOEHN AND OTHERS
COURT OF APPEALAMARATUNGA, J. ANDBALAPATABENDI, J.
CA NO. 2083/02HC CIVIL NO. 12/2001 (2)
DECEMBER 04, 09 AND 10, 2002
High Court of the Provinces (Special Provisions) (Amendment) Act, No. 10 of1996, section 5 – Companies Act, No. 17 of 1982, sections 210 and 211 – HighCourt granted relief – Appeal to Supreme Court – Application in revision – Prayeronly for stay order – Maintainability – Constitution, Article 138 – Civil ProcedureCode, section 753.
The petitioner-respondent instituted action under sections 210 and 211 of theCompanies Act in the Commercial High Court seeking certain relief. The HighCourt granted the relief prayed for. An appeal was lodged against that order inthe Supreme Court.
The respondent-petitioner moved the Court of Appeal to make order staying theoperation of the judgment; there was no prayer to revise the judgment.
Held :
It is not proper for the Court of Appeal to examine the legality of thejudgment of the Commercial High Court even for the limited purpose ofsafeguarding itself that the petitioner is entitled to the relief prayed for.
If the Court of Appeal ventures into such an exercise it is an indirectusurpation of the exclusive jurisdiction conferred on the Supreme Courtby the legislature.
APPLICATION in revision from the order of the Commercial High Court.
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S. L. Gunasekera with Denzil Guneratne, Aritha Wickremanayake and Dilan daSilva for petitioner.
Gamini Marapana, PC with S. Srikantha, Murshid Maharoof and Navin Marapanafor petitioner-respondent.
Cur. adv. vult.
December 18, 2002GAMINI AMARATUNGA, J.
The caption of this application states that it is an application forrevision. The subject-matter of this revision application is an ordermade by the High Court of the Western Province holden at Colombowhich is vested with power to exercise civil jurisdiction conferredon that court by the provisions of the High Court of the Provinces(Special Provisions) (Amendment) Act, No. 10 of 1996. Forconvenience of reference the High Court which exercises civiljurisdiction given to it by the said Act is called the Commercial HighCourt, although a court by such name is not known to the law. Forthe sake of brevity the High Court of the Western Province situatedin Colombo exercising civil jurisdiction will be referred to in this orderas the 'Commercial High Court’.
The petitioner-respondent has instituted action bearing No. HC Civil12/2001(2) in the Commercial High Court under sections 210 and 211of the Companies Act, No. 17 of 1982, seeking the reliefs set outin paragraph one of the amended petition. For the purposes of thisorder it is not necessary to set out in detail the relief sought in thataction. On 24. 10. 2002 the learned High Court Judge has given hisjudgment for the petitioner-respondent granting him all the reliefprayed for in the plaint.
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CA
Senanayake and Others v. Koehn and Others
(Amaratunga, J.)
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In terms of section 5 of Act, No. 10 of 1996 an appeal from anorder or judgment of the Commercial High Court shall be made tothe Supreme Court. The Court of Appeal has no appellate jurisdictionin respect of orders or judgments of the Commercial High Court. Thepresent petitioner has filed an appeal against the said judgment inthe Supreme Court. Having done that the petitioner has filed thisrevision application in this court.
When the learned senior counsel for the petitioner sought to supportthis revision application for notice, the learned President’s Counselappeared on behalf of the petitioner-respondent to oppose theapplication of the petitioner.
At that stage this court posed the following questions to both partiesand sought their assistance for the court to answer those questions:
Whether this court has revisionary jurisdiction in respect oforders and judgments of the Commercial High Court?
Assuming that the revisionary jurisdiction of this court is wideenough to bring orders and judgments of the CommercialHigh Court within the purview of that jurisdiction, is it correctfor this court, to exercise its powers in a situation where thelaw states that the appellate powers in respect of the ordersand judgments of the Commercial High Court are with theSupreme Court?
It appears from section 5 of the High Court of the Provinces(Amendment) Act, No. 10 of 1996 that the intention of thelegislature was to allow only one chance of appeal againstan order or a judgment of the Commercial High Court. Ifthis court decides to exercise revisionary jurisdiction in respectof an order or a judgment of the Commercial High Court,isn’t it going to result in giving two opportunities to anaggrieved party to appeal against such order or judgmentinstead of the single appeal contemplated by the legislature?
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If we decide to exercise our revisionary powers in respectof the orders and the judgments of the Commercial HighCourt isn’t it an indirect way of usurping the exclusive appellatejurisdiction conferred on the Supreme Court by law?
On the questions I have set out above the learned senior counselfor the petitioner and the learned President’s Counsel for the petitioner-respondent made submissions – orally and in writing – for which Iand my brother take this opportunity to express our deep sense ofgratitude for the assistance rendered to court by both of them.
When I had to prepare the order whether this court should ‘formally’issue notice on the respondents accompanied by an order for interimrelief as prayed for I turned my attention to the prayer to the amendedpetition of the petitioners which reads as follows:
Wherefore, the respondent-petitioners pray that Your
Lordships’ Court be pleased –
to make order staying the operation of the aforesaid judgmentdated 24. 10. 2002 in the aforesaid action. . . until the finaldetermination of the aforesaid appeal filed by the 2nd to 5threspondent-petitioners above-named;
to make an interim order staying the operation of the afore-said judgment dated 24. 10. 2002 in the aforesaid actionuntil the final determination of this application;
to award costs; and
such other and further relief as to Your Lordships’ Courtshall seem meet to the 2nd, 3rd, 4th and 5th respondent-petitioners above-named.
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There is no prayer inviting this court to revise the judgment of thelearned Judge of the Commercial High Court. The only substantiverelief prayed for in the petition is a stay order, staying the operationof the order of the learned Judge of the Commercial High Court untilthe Supreme Court decides the appeal filed by the respondent-petitioners against the said judgment. The court then invited bothparties to assist court by way of further written submissions onthe question whether this court has the power to grant and if thiscourt has the power whether the court should grant the main reliefprayed for in a situation where the petitioners have not invited thiscourt to revise the judgment of the learned Judge of the CommercialHigh Court. Both parties readily responded to the request made bythis court and filed their further written submissions.
Article 138 of the Constitution in general terms confers revisionaryjurisdiction on this court ‘for the correction of any errors in fact orin law which shall be committed by any Court of First Instance . . .’Section 753 of the Civil Procedure Code, in particular sets out thiscourt’s revisionary powers in the following terms:
‘The Court of Appeal may … on any application made, callfor and examine the record of any case, whether already tried orpending in any court … for the purpose of satisfying itself'
as to the legality or propriety of any judgment or order passedtherein . . . and may upon revision of the case brought beforeit pass any judgment or make any order thereon as the interestsof justice may require.” [emphasis added].
In this instance the petitioners have invoked our revisionaryjurisdiction by their application made to thi^ court. The powers ofrevision conferred on us by the above quoted section 753 empowersus to call for and examine the record of any case for the purposeof satisfying ourselves as to the legality or the propriety of the judgmentor the order. When the court’s revisionary jurisdiction is invoked the
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court has the power to make orders necessary in the interests of
justice. If the court is satisfied that in the interests of justice it isnecessary to suspend the operation of any order made by a Courtof First Instance until this court examines the legality or the proprietyof such order, the court may make an interim order suspending theoperation or the effect of such order.
After the court examines the legality or the propriety of the judgmentor order complained of, the court can pass any judgment or makeany order as the interests of justice may require. This is the finalrelief in a revision application. In the first stage, interim relief isgranted until the court examines the legality or the propriety of theimpugned judgment or order. In the 2nd stage the court makes itsorder after examining the legality or the propriety of the impugnedjudgment or order. Thus, in both stages the court’s power to makean appropriate order depends on the application of the petitioner toexamine the legality or the propriety of the impugned judgment ororder by this court.
The petitioner has not invited this court to examine the legality orthe propriety of the judgment of the Commercial High Court. Eventhe petitioner concedes that it is a matter for the Supreme Court todecide in appeal. The petitioner’s contention is that there is noprovision to obtain a stay order from the Supreme Court in asituation where an appeal is made to the Supreme Court from ajudgment of the Commercial High Court and therefore this courtshould stay the operation of the judgment until the Supreme Courtdecides the appeal. It is not for this court to decide whether thereis any such provision or not.
In my opinion it is implicit in the provisions of section 753 of theCivil Procedure Code that this court’s power to make orders, includinginterim orders, depends upon the necessity to examine the legalityof the impugned order. In this case there is no such direct necessityas the petitioner has not invited this court to make a finding on the
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Senanayake and Others v. Koehn and Others
(Amaratunga, J.)
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legality of the judgment of the Commercial High Court. Then, is itthe function of this court to examine the legality of the judgmentof the Commercial High Court to satisfy itself that the petitioneris entitled to the relief prayed for? If this court ventures into suchan exercise it is an indirect usurpation of the exclusive jurisdictionconferred on the Supreme Court by the legislature. It is, therefore,my considered view that it is not proper for this court to examinethe legality of the judgment of the Commercial High Court even forthe limited purpose of satisfying itself that the petitioner is entitledto the relief prayed for.
No court shall stay the operation of any order made by any othercourt without examining the legality or the propriety of such order orat least without satisfying itself that there exists a necessity to examinesuch question. For the reasons I have set out above there is nonecessity for this court to examine the legality or the propriety of thejudgment of the Commercial High Court. In the circumstances thiscourt cannot and shall not grant the relief sought by the petitioners.In view of this it is not necessary to decide questions No. 1 to 4set out earlier in this order.
Accordingly, formal notice is refused and the application isdismissed without costs.
BALAPATABENDI, J. – I agree.
Notice refused.
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