Sri Lanka Law Reports
(1982) 2 S.L.R.
STATE GRAPHITE CORPORATIONV.
SAMARAKOON, C.J., WANASUNDERA, J , AND WIMALARATNE, J.SC. 87/81; CA (LA) 75/81; CA 1182/80AUGUST 5, 1982
Appeal – Leave to appeal – Supreme Court Rules 1978 – Rules 4,8,18,20 &24- Leavegranted without other side being heard – Civil Procedure Code, Section 763.
The Court of Appeal can dispense with a hearing in granting leave ex meromotu. In other cases where a party wishes to be heard or the issues involvedare such that the Court ought not to make an order without hearing a partyaffected, a proper hearing and determination of the application would generallyrequire a hearing however summary or brief that hearing may be.
The Bench which gave leave being the same Bench that gave the judgment wasfully conversant with the facts. It cannot be said that the exercise of the jurisdictionof the Court was arbitrary.
Cases referred to:
Edward v. de Silva (1945) 46 N.L.R. 342.
Wimalasekera v. Parakrama Samudra Co-operative Agricultural Productionand Sales Society Ltd. (1955) 58 N.L.R. 298.'
PRELIMINARY OBJECTION against order granting leave to appeal.
N.Sinnatamby with A. Cooray for petitioner-appellant.
H.W. Jayewardene, Q.C., with H.L.de Silva, S.A., and L.C. Seneviratne for 2ndrespondent.
August 16, 1982
Counsel for the 2nd respondent has taken a preliminary objectionto the hearing of this appeal, which purports to come before us withthe leave of the Court of-Appeal. He contends that the Court ofAppeal lacked the necessary jurisdiction to grant leave to appeal inthis matter as the court made its decision without hearing the 2ndrespondent and this was a violation of a mandatory requirementunder the rules.
The application for leave to appeal was made in respect of ajudgment of the Court of Appeal in a petition filed by the present
SCStale Graphite Cooperation r. Fernando (Wanasandera. J.). 591
appellant for a mandate in the nature of a Writ of Certiorari, thatpetition was refused by the Court of Appeal on the 8th of October1981. Thereafter; on the 19th of October 1981, the appellant filedthe application for leave to appeal. The two respondents before uswere named as respondents in that application. This application forleave to appeal had been listed for hearing on 28th October 1981and was supported by counsel on that date. Counsel for appellantstated that on a direction given by court, the matter was postponedfor the 30th of October 1981 to* enable counsel to formulate thegrounds of appeal on which leave was being sought. When the matterthereafter-came up on the 30th of October 1981, the Court grantedleave to appeal. It would be seen from what had transpired that therespondents were neither noticed to appear in court nor given ahearing before the court granted leave to appeal.
Mr. H:L. de- Silva, who appeared for the 2nd respondent, invitedour attention to' the provisions of rule 20 of the Supreme CourtRules 1978 and submitted that the rule required the grant of ahearing to the respondent and this was the condition precedent tothe court acquiring jurisdiction to make a valid order. He submittedthat this failure to comply with this requirement rendered the order,made by the Court of Appeal granting leave, null and voids
■» Mr. de Silva relied on two decisions, namely Edward v. De Silva,(1), and Wimalasekera v. Parakrama Samudra Co-operative AgriculturalProduction and Sales Society, Ltd., (2), in support of his proposition.These decisions relate to the interpretation of section 763 of-theCivil Procedure Code which allows the execution of a decree by thelower court even when the judgment-debtor has filed an appeal.
The decisions are to the effect that the failure to make thejudgment-debtor a party respondent in such execution proceedingsrenders a judgment or order made by the court a nullity.
These decisions appear to be based on the principle that once, anappeal is filed in-an action, which has been concluded in a lowercourt, the lower court ceases to have any further jurisdiction overthe case and the lower court must maintain the case in statu quountil a decision is made by the appellate tribunal. But a provisionlike section 763 allows the lower court to execute the decreenotwithstanding the appeal, and this may tend to impinge on< thepowers of the appellate tribunal. However, such a provision has been
Sri Lanka Law Reports
(1982) 2 S.L.R.
narrowly interpreted, so as not to derogate from the powers of theappellate tribunal, and has been regarded as vesting only a limitedjurisdiction. Section 763 has therefore been interpreted strictly confiningthe lower court to the exact provisions of the section. In Edward v.De Silva (1), Soertsz, J., observed:
“ …. the Legislature continued the jurisdiction, that is to say,the competency of the Court as the Court appointed to tryand determine the case, beyond its ordinary limits, but it tookcare to see, as it almost invariably does, that its jurisdiction,in the sense of its power to act, and of its correct action aremade dependent on the observance of rules of procedure.Some of these rules are so vital, being of the spirit of thelaw, of the very essence of judicial action, that a failure tocomply with them would result in a failure of jurisdiction orpower to act, and that would render anything done or anyorder made thereafter devoid of legal consequence.”
The matter before us deals with a different situation. It relates tothe process of filing an appeal and deals with that preliminary stagebefore an appeal is actually lodged in the Supreme Court. Articles127 and 128 of the Constitution, which provide for the right ofappeal to the Supreme Court, reposes a portion of that power inthe Court of Appeal itself. The exercise of that power by the Courtof Appeal does not impinge on the jurisdiction of the Supreme Courtand the issues , that arose in the cases relied on by Mr. de Silva donot arise for consideration here.
There are also other differences between the rules of the SupremeCourt and section 763.. As Mr. Sinnatamby rightly pointed out, section763 not only prescribes that the judgment-debtor should be made aparty to the execution proceedings, but goes on to indicate, in nouncertain terms, that the respondent should also be given the opportunityof being heard. The words “on sufficient cause being shown by the -appellant” is indicative of this. Incidentally, in the two reported casesthe applications did not even name the execution-debtor as a partyunlike the present application.
A closer scrutiny of the rules reveals further differences. It seemsto me that the scheme formulated in the rules intended to leave anarea of discretion to the Court of Appeal in regard to the procedurethat should be followed in granting leave. The Court of Appeal is
SCStale Graphite Cooperation Fernando (Wanasundera, J.)593
empowered to grant leave ex mero motu and this could be done atany time within a period of 14 days from the date of the judgmentor order. It was conceded by counsel that the Court of Appeal neednot give a hearing to the parties if it chooses to exercise this power.
Rule 22 allows the court to entertain an oral motion for leave toappeal, though this could be done only at the time the court deliversthe final order or judgment. If a party is not present on that occasion,it would still be within the powers of the court to grant Ipave,although a necessary party may not have been heard. Mr. de Silvahowever submitted that a party who is absent on the date thejudgment is delivered would not have a right to complain, becausehe had denied himself the opportunity of being heard, owing to hisown default. But if the scheme of the rules required that an adverseor interested party must be heard before the court could make alegally effective order, then it is somewhat surprising to see that amatter of such significance and importance does not find a place inthe 'rules and has to be gathered by implication, as Mr. de Silvasought to do. In this connection Mr. Sinnatamby drew our attentionto. the parallel provisions dealing with the grant of Special Leave bythe Supreme Court contained in rules 4 and 8. Rule 4 is identicalwith rule 20 relied on by Mr. de Silva. Rule 4, however, issupplemented by rule 8 and this rule expressly enjoins the Registrar,Supreme Court, to “forthwith give to the respondent notice of themaking of such application." Why is there a deliberate omission ofa corresponding provision in respect of applications for leave in theCourt of Appeal? The answer is to be found in rule 24.
This rule is peculiar to these provisions and somewhat unique inits operation. It is worded as follows:-
“24. Upon an application for leave to appeal being filed,the Court of Appeal may give such directions and direct suchsteps to be taken, as to it may seem meet for a proper hearingand determination of such application."
This provision was clearly intended to free the Court of Appeal fromtechnicalities and to give it a certain amount of flexibility and.discretion in dealing with applications for leave to appeal. I needhardly emphasise that such a discretion must be exercised justly andfairly and within the perspective within which it was intended to operate.
Sri Lanka Law Reports
(!9tt2) 2 S.l .R
In the present case the judgment in the writ application wasdelivered after argument lasting nine days. The judgment was writtentby Soza, J. with whom H.A.G. de Silva, J. agreed. It was notpronounced and delivered by the same- bench. It was pronouncedon 8th October 1981 by another bench. Counsel for the appellantstated that, in those circumstances, the appellant could not havema'de an oral application for leave to appeal. A written applicationfor leave to appeal had been filed on the 19th -of October .1981. Itcontained the names of the present- respondents as respondents tothe application. It was supported in court by counsel on the 28th ofOctober 1981 before Soza, J. and 'H.A.G. de Silva, J. The Courthad then directed that the'matter be fixed for the 30th of October1981 before the same bench,” as the court desired counsel for- theapplicant to fdrhitilate the grounds of appeal. When the matter cameup on the 30th : of October 1981, the court granted the appellantleave to appeal!’The order of Soza, J. with H.A.G. de Silva, J.agreeing, embodies eleven points of law which the Court of Appeal
9onsidered “substantial enough to justifygranting leave to appeal
to the1 Supreme Court”. The bench'which gave leave was the same.behch that gave the judgment and was fully conversant with the' ca'se.- It would be- observed that the matter had proceeded according; to the directions’given by the court, and as far as the appellant wasbbiiderned he had complied with express requirements of the law.
As far as the record goes, the non-issue of notice on the respondents&en1s Consistent with the view that the court had formed the opinionthat such notice was unnecessary. There is a presumption as regardsthe regularity of official, acts.
The Court of Appeal can dispense with a hearing on grantingleave ex mero motu. In other cases it seems to me where a partywishes to be heard, or the issues involved are such that the courtought not to make an order without hearing and determination ofthe application would, generally require a hearing however summaryor brief that hearing may be. Considering the large discretion vestedin the court, it is doubtful whether an omission in this respect willaffect the jurisdiction of the court rather than constitute a wrongfulexercise of a discretion. I am unable to say that the exercise ofdiscretion in this case has been arbitrary.
I also find that the 2nd respondent may not be shut out fromraising any issue of a decisive nature, which he may have intended
SCStale Graphite Cooperation r. h'erna/uio (Wnnaswulera. J.)595
to raise before the Court of Appeal even at this stage, but ifsubstantial prejudice has been caused to the respondent, this courtwould have given him relief.
On the facts of this case, therefore, I see no useful purpose insending this matter back to the Court of Appeal to enable the 2ndrespondent to be given a hearing. In these circumstances the preliminaryobjection is overruled and 1 leave the question of costs of thisproceeding to which the appellant is entitled to be taken intoconsideration when the court gives it final judgment in this appeal.
SAMARAKOON, C.J. – I agree.
WIMALARATNE, J. – I agree.
Preliminary objection overruled.
STATE GRAPHITE CORPORATION v. FERNANO