Sri Lanka Law Reports
 2 Sri L R.
THE CEYLON CERAMICS CORPORATION
COURT OF APPEAL.
L H. OE ALWIS. J. AND ABEYWARDENA. J.
C. A No 12/80 ; L T. No. 1/7742/75.
AUGUST 7, 1984.
Application to re-list appeal – Listing of appeal on wrong date by advertence of theRegistry of the Court of Appeal – Application for re-listing listed on date not asked for byAttorney at-Law for appellant – Inherent powers of Court – Natural Justice.
The appellant-Corporation had lodged an appeal against an Order made by thePresident of the Labour Tribunal.
The appeal came on for hearing on 29.9.83 on which day Order was made fixing thehearing for 21.11.83. The Registry of the Court of Appeal inadvertently listed thehearing on 25 11.83 and not on 21.11.83. On 25.11.83 when the case came up forhearing the appellant was absent and unrepresented but the Court considered theappeal and dismissed it subject to a variation of the Order appealed from. On 18.5.84the appellant made an application to reinstate the appeal as it had come up for hearingon the wrong date and moved that the matter be listed for support on 27.6.84. Again,by an oversight the Court fixed the application for support on 19.6.84 at 10.00 a.m.and not on 27.6.84 as requested.
On 19.6.84 the petitioner being absent and unrepresented the application to re-list wasrejected. The petitioner then made a second application for re-listing and this was dulylisted and counsel for the petitioner supported it.
Although the Court has no power to reinstate a criminal appeal dismissed in theabsence of the appellant unless the Order has been made per incuriam yet the Court isnot powerless to rectify a wrong committed by its own act. The Court has inherentpower to repair the injury done to a party by its own act. Further the appeal had beenheard in breach of the principle of natural justice which requires that appellant beafforded an opportunity of presenting his case.
Cases referred to :
Flo Singho v. Joseph (1948) 49 NLR 312.
Nanhamy v Ranawana (19611 62 NLR 573.
Salim v Santhiya (1965) 69 NLR 490
Sirmivasa Thero v. Sudassi Them (1960) 63 NLR 31, 34.
Albert v Veeriahpillai  1 S.L.R.110Chula de Silva for Petitioner.
Respondent present in person.
Cur. adv. vult.
Ceramics Corporation v. Premadasa (L. H. De Alwis, J.)
August 31, 1984.
L. H. DE ALWIS, J.
This appeal came on for hearing on 25.11.83. The appellant wasabsent and unrepresented. After hearing learned Counsel for therespondent, this court, on a consideration of the appeal, affirmed theorder of the learned President of the Labour Tribunal entered in favourof the respondent subject to variation, and dismissed the appeal.
The appeal first came on for hearing on 29.9.83 and the appellantwas absent and unrepresented. The docket showed that theappellant’s brief had been despatched by registered post on 5.6.83,nevertheless, as it was the first date of hearing, order was made to listthe appeal for hearing on 21.11.83. By inadvertence on the part ofthe Court Registry the appeal was listed for hearing on 25.11.83 andnot on 21.11.83. On 25.11.83 when the matter came on for hearingthe appellant and its counsel were absent and the appeal wasdismissed.
An application was then made on 18.5.84. by the Attorney-at-Lawfor the appellant-Corporation to reinstate the appeal as it had come upfor hearing on a wrong date, which was not a free date of theappellant's counsel. The Attorney-at-Law for the appellant-petitioneralso filed a motion that the re-listing application be listed on 27.6.84for support. Again, by an oversight, the court fixed the application forsupport on 19.6.84 at 10.00 a.m. and not on 27.6.84 as requested.
When the application came up for support on 19.6.84, thepetitioner was absent and unrepresented and the application wasrejected.
Thereafter the present application for reinstatement of the appealwas made on 25.6.84 and the matter was fixed for support on
with notice to the respondent. On that day, the applicationfor re-listing was listed for hearing on 7.8.84 and was taken up on thatday. Counsel for the petitioner and the respondent who appeared inperson, were heard and order was reserved for 31.8.84.
The question that now arises for consideration is whether, in thesecircumstances, this court can grant relief by reinstating the appeal,even though section 325(2) of the Code of Criminal Procedure Actmakes no provision for reinstating an appeal under that chapter, wherethe judgment has been entered after consideration of the appeal,unless it has been made per incuriam. Under section 31D(5) of the
Sn Lanka Law Reports
 2 SnL.R.
Industrial Disputes Act the provisions of Chap. XXX of the CriminalProcedure Code (now Chap. XXVIII of the Code of Criminal ProcedureAct) shall apply mutatis mutandis in regard to all matters connectedwith the hearing and disposal of an appeal preferred under thissection.
In Elo Singho v. Joseph (1 ),Basnayake, J., as he then was, held thatthe Supreme Court had no power to reinstate a criminaLappeal whichhas been dismissed in the absence of the appellant. His Lordship went
on to say "except in the case of an order made per incuriam thereinstatement of an appeal in a criminal case decided by it is thereforepurposeless and cannot in my view be allowed."
This judgment was followed by Sansoni, J., in Nanhamy v.Ranawana (2).
However, this court is not powerless to rectify a wrong committedby its own act.
In Salim v. Santhiya (3) it was held that the court has inherentpowers to repair the injury done to a party by its own act. In thepresent case the appellant was absent and unrepresented due to thefault of the Registry in failing to list the appeal on the given date andfixing the re-listing application for a date other than that sought by theAttorney-at-Law for the petitioner. It is therefore the duty of this courtto repair the wrong suffered by the petitioner as a result of thedismissal of the appeal and the rejection of the re-listing application,due to its absence unrepresented. The petitioner had no notice of the .dates on which the matters were taken up for hearing.
In Salim's case, T. S. Fernando, J., referred to the case of SirinivasaThero v. Sudassi Thero (4), where the court pointed out that it is a rulethat a court of justice will not permit a suitor to suffer by reason of itsown wrongful act and that it is under a duty to use its inherent powersto repair the injury done to a party by its act.
In the present case the appeal was heard in breach of the principleof natural-justice which requires the appellant be afforded anopportunity of presenting its case. In Albert v. Veeriahpillai (5),Sharvananda, J , in a Labour Tribunal case, said :
"Breach of principles of natural justice goes to jurisdiction and
renders an order or determination made in proceedings of which the
person against whom the order or determination was made has had
Ceramics Corporation v Premadasa ft. H. DeAl.vis, J)
no notice, void. As the applicant had no notice of the hearing on the2nd October, 1966, the proceedings of that date are a nullity, andthe Tribunal had, in the circumstances, no jurisdiction to make anorder dismissing xhe application of the appellant. Hence the order ofdismissal dated 31st October 1966 was made without jurisdictionand the Labour Tribunal had the inherent jurisdiction to set asidethat order, on it being satisfied that the applicant has had no noticeof the hearing"
I am of the view that for the same reasons the judgment of this courtdismissing the appeal is a nullity, and further that this court has theinherent power to rectify the wrong that th peitioner suffered by theact of the court. Chap. XXVIII of the Code of Criminal Procedure Act,no doubt, makes no provision to meet such a situation. But theinherent power of this court is an aut'itrity possessed without itsbeing derived from another. It is a power reasonably necessary for theadministration of justice. Vide Black's Law Dictionary, 4th Ed..
I accordingly allow the application and set aside the judgment of thiscourt dated 25.11.83 dismissing the appeal and the order dated1 9.6.84 rejecting the re listing application.
I allow the present re listing application and order that the appeal bereinstated and listed for hearing very early on a date convenient tocounsel for the respective parties.
There will be no costs of this application.
ABEYWARDENA, J. – I agree.