v.HATTON NATIONAL BANK AND OTHERS
COURT OF APPEAL.
EDUSSURIYA, J. (P/CA)
A./L.A. NO. 143/99.
C. COLOMBO 5295/99 Spl13™ OCTOBER 1999.
19™ NOVEMBER 1999.
Enjoining Order – Disobeyed – Civil Procedure Code – S. 793, S. 797 (1)(2) and S. 798 – Before pleading takes legal objection -Is it a direct Appealor an Interlocutory Appeal.
The District Court enjoined the Ceylon Bank Employees Union (CBEU),its members, servants, agents and all those holding under and throughit from any manner engaging in any strike,
The Plaintiff Respondents had filed Petition and Affidavit and moved thatsummons be issued under S. 793 CPC on the Petitioner, who is theGeneral Secretary of the CBEU for disobeying the enjoining order.
The Petitioner on appearing in Court in answer to summons stated thathe is not prepared to plead to the charge, as he has not been enjoined andalso not a party to the action. This objection was over-ruled by CourtThePetitioner thereafter sought leave to appeal from the said order.
It was contended by the Plaintiff Respondent, that a direct appeal liesagainst the said order.
A reading of S. 797(1), 797(2) and S. 797(3) implies that the word"order” in S. 798 refers to an order of acquittal.
Words 'every order' do not contemplate an order of the typecanvassed by the application for Leave to Appeal or an interim ordermade in the course of an inquiry with the charge of contempt after theaccused has pleaded to the charge.
Sri Lanka Law Reports
 2 Sri L.R.
Per Edussuriya J.,
"there is a lacuna in the law with regard to the mode of appeal in respectof such interim orders. In the circumstances recourse must necessarilybe had to provisions relating to interlocutory appeals as laid down in S.754(2).
AN APPLICATION for Leave to AppealCase referred to :
Thuraisingham vs. Karthikesu – 50 NLR 570 at 574.
Faiz Musthapha, PC with Faizer Musthapha for the Petitioner.
Y.J.W. Wyetilake DSG for 1st Respondent.
Romesh de Silva, PC with Palttha Kumarasinghe for the Respondent.
Cur. adv. vult.
March 07, 2000.
EDUSSURIYA, J. (P/CA)On 24th March 1999 the District Judge of Colomboenjoined the Ceylon Bank Employees’ Union, its members,servants, agents and all those holding under and through it,from in any way or manner engaging in any strike and/orother form of trade union action including go-slow, boycott,picketing and/or any form of collective action against any ofthe Plaintiffs.
On 1st April 1999 the Plaintiffs-Respondents had filedPetition moving that summons be issued in terms of theprovisions of Section 793 of the Civil Procedure Code on thePetitioner who is the General Secretary of the Ceylon BankEmployees’ Union for disobeying the enjoining order whichenjoined the Bank Employees Union, its members, servants,agents etc. from doing certain acts.
The first part of the charge is to the effect that thePetitioner (Accused) struck work and “picketed” etc. Thesecond part of the charge is that the Petitioner (Accused) failed
Shah v. Hatton National Bank & Others
(Edussuriya, J. P/CA)
to take steps to prevent the strike etc. whereas the third partof the charge is that the Petitioner is responsible for the strike,“Picketing” etc.
The Petitioner on appearing in Court in answer to sum-mons stated that he is not prepared to plead to the charge inas much as it is the Ceylon Bank Employees’ that had beenenjoined and further that he the Petitioner is not a party to theaction.
After inquiry the learned District Judge overuled theobjection. This application for leave to appeal has been filedfrom that order.
Counsel for the Plaintiff-Respondent has raised theobjection that the Petitioner is not entitled to come by way ofleave to appeal in view of the provisions of Section 798 of theCivil Procedure Code which sets out the mode and manner ofappeal and contended that firstly any appeal must be by wayof direct appeal and secondly, as set out in the CriminalProcedure Code.
These contentions were based solely on the language usedin Section 798 of the Civil Procedure Code which sets out that“An Appeal shall lie to the Supreme Court from every order,sentence, or conviction made by any Court in the exercise ofits special jurisdiction to take cognizance of, and to punish byway of summary procedure the offence of contempt of Court,and of offences by this Ordinance made punishable ascontempt of Court; and the procedure on any such appealshall follow the procedure laid down in the Criminal ProcedureCode regulating appeals from orders made in the ordinarycriminal jurisdiction of District and Magistrates Courts”.
The question which arises for answer first, is whether anorder such as the one which is appealed from, namely, anorder made overuling the preliminary objection prior to thePetitioner pleading to the charge of contempt is one which iscontemplated in Section 798.
Sri Lanka Law Reports
 2 Sri L.R.
Areading of Section 797 (1), 797 (2) and especially 797 (3)implies that the word “order” in Section 798 refers to an orderof acquittal.
In interpreting the words “An appeal shall lie to theSupreme Court from every order, sentence, or conviction madeby any Court in Section 798 Dias J With Gratiaen, J agreeingin Thuraisingham Vs. Karthikesu at 574 stated “The trueintention underlying Section 798 is that while a right of appealexists in every case against an order, sentence or convictionin a contempt proceeding, the general rules of procedurecontained in Chapter XXX of the Criminal Procedure Code, sofar as they are applicable must be followed in order to bringthe case before the Supreme Court.” So that clearly, thewords “every order” do not contemplate an order of the typecanvassed by the application for leave to appeal or an interimorder made in the course of an inquiry with the charge ofcontempt after the accused has pleaded to the charge.
Thus it is my view that there is a lacuna in the law withregard to the mode of appeal in respect of such interim orders.In the circumstances recourse must necessarily be had to theprovisions relating to interlocutory appeals laid down inSection 754 (2).
This Court therefore holds that the Petitioner is correctlybefore this Court.
Preliminary objections over-ruled