026-SLLR-SLLR-2003-1-SHANMUGAVADIVU-v.-KULATHILAKE.pdf
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Shanmugavadivu v. Kulathilake – (Bandaranayake, J.)
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SHANMUGAVADIVU
v
KULATHILAKE
SUPREME COURTBANDARANAYAKE, J,
EDUSSURIYA, J. ANDDE SILVA, J.
SC.APPEAL NO. 50/2002C.A. NO. 1545/2000DC BANDARAWELA NO. 676/L25th OCTOBER, 2002
Revision – Supreme Court Rules, 1990, Rule 3 – Requirement to producematerial documents or to seek leave of court to produce the same latter -Consequence of default of Rule 3.
The appellant (“the plaintiff”) instituted action against the respondent (“thedefendant”) and another person for a declaration that the plaintiff is the tenantof the premises in sujt and for an injunction against the 1st defendant fromdemolishing the said premises. The 1st defendant pleaded that the plaintiffwas in illegal occupation of the premises as the same were burnt during the1983 riots and were currently vested in the REPIA. The District Judge gavejudgment for the 1st defendant. The plaintiff filed a revision application in theCourt of Appeal on 12.12.2000; supported it on 15.12.2000 and obtained astay order and notice on the 1st defendant for 15.01.2001.
The plaintiff filed with his application 4 documents including the judgment ofthe District Judge but failed to file all the material documents or to explain thereason for the failure and seek leave of court to furnish the necessary docu-ments later, as required by Rule 3 (1)(b) read with Rule 3 (1) (a) of the Courtof Appeal (Appellate Procedure) Rules, 1990. Instead the plaintiff amendedher petition without notice to the 1st defendant and without leave of court. Shefiled one additional document with the amended petition and the balance doc-uments with her counter objections.
Held:
The requirements of Rules 3 (1)(a) and 3 (1) (b) are imperative. In the circum-stances of the case the Court of Appeal had no discretion to excuse the failureof the plaintiff to comply with the Rules.
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APPEAL from the judgment of the Court Appeal.
Case referred to:
(1) Kiriwanthe and Another v Navaratne and Another (1990) 2 Sri LR 393distinguished.
K.M.P. Rajaratne with B. Wickremasinghe for appellant.
Navin Marapana with Nishanthi Mendis for 1 st defendant-respondent.
March 12, 2003BANDARANAYAKE, J.
This is an appeal from the judgment of the Court of Appealdated 20.02.2002. By that judgment, the Court of Appeal upheld thepreliminary objections taken by the^lst defendant-respondent-respondent (hereinafter referred to as the respondent) that theplainfiff-appellant-appellant (hereinafter referred to as the appel-lant) failed to file all the necessary documents along with the peti-tion dated 12.02.2000, as required by Rule 3(1 )(b) of the Court ofAppeal (Appellate Procedure) Rules of 1990 and that the appellanthad amended her petition dated 12.02.2002, without notice to therespondent and without seeking the permission of Court, and dis-missed the case.
Special leave to appeal was granted by this Court on the fol-lowing questions:
Did the Court of Appeal err in law in holding that Rule 3(1 )aand 3(1 )b of the Court of Appeal (Appellate Procedure)Rules were applicable?
Did the Court of Appeal err in law by failing to considerwhether it should exercise its discretion under Rule 3(1 )aand 3(1 )b of the Court of Appeal (Appellate Procedure)Rules?
The facts of this case, albeit brief, are as follows:
The appellant instituted action against the respondent andanother person for a declaration that the appellant is the tenant of
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the premises referred to in the plaint and for. an injunction againstthe respondent from demolishing the said premises.The respon-dent took up the position that the appellant was in illegal occupa-tion as the premises in suit were burnt during the July 1983 riotsand that it was currently vested with the REPIA. The District Courtdelivered its judgment in favour of the respondent and the appellantcame before the Court of Appeal with an application for revisionfiled on 12.12.2000. This was supported on 15.12.2000. On thatday, the respondent was noticed to appear on 15.01.2001 and astay order was granted.
Learned counsel for the respondent submitted that the appel-lant obtained her stay order from the court of Appeal after support-ing her application ex parte on 15.12.2000. His position was thatthe appellant had not filed all the relevant documents along with herpetition, dated 12.12.2000 and for this reason, the appellant’s appli-cation should be dismissed in limine.
The Court of Appeayarief indicated that the appellant hadfiled only the documents marked P1 to P4 along with her petitionand affidavit dated 14.12.2001. These 4 documents included thejudgment of the District Court of Bandarawela (P1), order of thelearned District Judge dated 04.12.2002 (P2), answer of therespondent (P3) and the evidence of the appellant (P4).
The appellant in her petition to the Supreme Court stated thatafter filing the application for revision in the Court of Appeal on
and supporting on 15.12.2000 for a stay order she hadfiled an amended petition dated 10.01.2001 with 5 documentsmarked P1 to P5. The documents marked P1 to P4 were the doc-uments filed along with the initial application for revision, dated
and the document marked P5 was the order of the RentBoard dated 07.04.1984. Thereafter she had filed counter objec-tions on 26.02.2001 along with the documents marked P6.to P6(d).These included the documents in the case and inquiry (P6),amended plaint (P6(a)), answer of the respondents (P6(b)), repli-cation (P6(c)), the judgment (P6(d)) and several other documents.
According to Rule 3(1) (a) it is necessary for an application tobe made by way of petition together with an affidavit in support ofthe averments and these should be accompanied by the originals
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of documents material to such application. Rule 3(1 )(b) specificallyrefers to the application made by way of revision or restitutio inintegrum and states that those too should be made in like mannerreferred to in Rule 3(1 )a with copies of the relevant proceedingsincluding pleadings and documents produced in the Court of FirstInstance, tribunal or other institution to which such applicationrelates.
Admittedly, in the instant case, the original application madeby the appellant to the Court of Appeal on 14.12.2001, did notaccompany the originals or certified copies of documents materialto that application. Moreover, the appellant had not stated the rea-sons for such inability and sought leave of the Court to furnish suchdocuments later. What the appellant in effect did was to amend thepetition without obtaining the approval of the Court and file the restof the documents along with his counter objections on 26.02.2001.
The appellant came before the Court of Appeal on a revisionapplication to set aside and vacate th^irder of the learned DistrictJudge made on 04.12.2000 and to obtain a stay order to preventthe respondent from executing writ to remove the appellant fromthe premises in question. Rules 3(1 )(a) and 3(1 )(b) are in Part II ofthe Rules of the Court of Appeal (Appellate Procedure) which dealswith applications made under Articles 140,141 and 138 of theConstitution. Rule 3(1 )(b) specifically refers to applications by wayof revision or restitutio in integrum under Article 138 of theConstitution and reads as follows:
“Every application by way of revision or restitutio in integrumunder Article 138 of the Constitution shall be made in likemanner together with copies of the relevant proceedings(including pleadings and documents produced), in the Courtof First Instance, tribunal or other institution to which suchapplication relates.”
In such circumstances, it is my view that both the Rules3(1 )(a) and 3(1 )(b) of the Court of Appeal (Appellate Procedure)Rules were applicable in the instant case.
Learned counsel for the appellant strenuously argued thatthe Court of Appeal erred as they did not consider the decision inKiriwanthe and another v.Navaratne and another<1)- His position
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was that in Kiriwanthe's case, it was clearly held that, althoughrequirements of Rule 46 must be complied with normally at the timeof filing the application, strict or absolute compliance is not essen-tial. Learned counsel for the appellant drew our attention to the fol-lowing paragraph in the judgment of Kiriwanthe's case (supra, atpg. 401):
“….I am content to hold that the requirements of Rule 46must be complied with, but that strict or absolute complianceis not essential; it is sufficient if there is compliance which is“substantial” – this being judged in the light of the object andpurpose of the Rule. It is not to be mechanically applied, asin the case now before us; the Court should first have deter-mined whether the default had been satisfactorily explained,or cured subsequently without unreasonable delay, and thenhave exercised a judicial discretion either to excuse the non-compliance, or to impose a sanction….” ,
Rule 46 of the Supreme Court Rules of 1978, which was inPart IV and dealt with “Writs and Examination of Records,” was inthe following terms:
“Every application made to the Court of Appeal for the exer-cise of powers vested in the Court of Appeal by Articles 140and 141 of the Constitution shall be by way of petition andaffidavit in support of the averments set out in the petitionand shall be accompanied by originals of documents materi-al to the case or duly certified copies thereof, in the form ofexhibits. Application by way of revision or restitutio in, inte-grum under Article 138 of the Constitution shall be made inlike manner and be accompanied by two sets of copies ofproceedings in the Court of First Instance, tribunal or otherinstitution.”
It will be seen that Rule 46 laid down the procedure in thestrictest sense without giving a right or.an opportunity for an appli-cant to purge his default. The decision in Kiriwanthe's case nullifiedthe severity in Rule 46 by bringing in the judicial discretion either toexercise the non-compliance or to impose a sanction. Kiriwanthe'scase was decided on 18.07.1990 and it was only a few months lateron 13.11.1990, the new Rule 3 of the Court of Appeal (Appellate
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Procedure) Rules 1990 came into effect. The contents of Rules3(1 )(a) and 3(1) (b), referred to above, clearly show that they aredifferent to Rule 46. The new Rules indicate that the objectivity ofexercising judicial discretion, as intended in Kiriwanthe's case hasbeen incorporated as it enables an applicant to submit to Court therelevant documents at a later stage.
According to Rule 3(1 )(a),
“…. where a petitioner is unable to tender any such docu-ment, he shall state the reason for such inability and seek theleave of the Court to furnish such document later.”
Kiriwanthe's case was decided on the basis of Rule 46 of theSupreme Court Rules 1978 and therefore admittedly has no appli-cation to the instant case. As referred to earlier, in the instant case,the question in issue is with regard to Rules 3(1 )(a) and 3(1 )(b) ofthe Court of Appeal (Appellate Procedure) Rules 1990. Rules3(1 )(a) and 3(1 )(b) unlike Rule 46 make provision for an applicantto purge his default and cure the deflfct. As pointed out clearly inKiriwanthe's case, in terms of Rule 46, there was no provision forpurging an applicant's default and the Court was of the view that itshould ‘first determine whether the default has been satisfactorilyexplained or cured subsequently without unreasonable delay.’ Thenew Rules permit an applicant to file documents later, if he has stat-ed his inability in filing the relevant documents along with his appli-cation, and had taken steps to seek the leave of the Court to fur-nish such documents. In such circumstances, the only kind of dis-cretion that could be exercised by Court is to see whether and howmuch time could be permitted for the filing of papers in due course.
The appellant had made no such statements in her petitionand the Court of Appeal had rightly decided that in the absence ofthe relevant documents, the Court is “unable to exercise its revi-sionary powers in respect of the order sought to be revised” by theappellant.
On numerous occasions the Supreme Court as well as theCourt of Appeal have held that the compliance of the SupremeCourt Rules and the Court of Appeal Rules is imperative. In a situ-ation where an application was made to the Court of Appeal with-out the relevant documents being annexed to the petition and the
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affidavit, but has stated the reason for such inability and sought theleave of the Court to furnish such documents on a later date, theCourt could have exercisd its discretion and allowed the petitionerto file the relevant documents on a later date. However on thisoccasion, as pointed out earlier, no such leave was sought by theappellant and in the circumstances, the Court of Appeal could nothave exercised its discretion in terms of Rules 3(1) (a) and 3(1 )(b)of the Court of Appeal (Appellate Procedure) Rules.
For the foregoing reasons, the questions on which specialleave to appeal was granted by this Court, are answered in the fol-lowing terms:
the Court of Appeal did not err in law in holding that Rule3(1 )(a) and 3(1 )(b) of the Court of Appeal (AppellateProcedure) Rules were applicable; and
the Court of Appeal did not err in law by failing to considerwhether it should exercise its discretion under Rules 3(1 )(a)and 3(1 )(b) of the tfburt of Appeal (Appellate Procedure)Rules.
I accordingly dismiss the appeal and affirm the judgment ofthe Court of Appeal. In all the circumstances of this case there willbe no costs.
EDUSSURIYA, J.-I agree.
DE SILVA, J.-I agree.
Appeal dismissed.