UNION CULLING KNIT GARMENTS (PVT) LTD AND OTHERS v. HABIB BANK LTD

019-SLLR-SLLR-2004-V-3-UNION-CULLING-KNIT-GARMENTS-PVT-LTD-AND-OTHERS-v.-HABIB-BANK-LTD.pdf


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UNION CULLING KNIT GARMENTS (PVT) LTD AND OTHERSV
HABIB BANK LTDSUPREME COURT
AMERASINGHE, J.BANDARANAYAKE, J. ANDYAPA, J.
SC APPEAL 64/2000.
SC SPL LA 217/2000.
CA (REV,) 827/97.
D.C. COLOMBO 16588/MB.JULY 3, 2001.
Civil Procedure Code, sections 755(1) and 759(2) – Petition of Appealrejected on the ground that the registered attorney had not signed the notice
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of appeal – Application under section 759(2) to set aside the rejection of thenotice of appeal-Application rejected – Special leave to appeal refused by theSupreme Court – Application in revision in the Court of Appeal to reviewjudgment – Could the Court of Appeal act in revision? – Exceptionalcircumstances.
The District Court action instituted by the respondent Bank was dismissed. Theappeal lodged was rejected on the basis that the notice of appeal has not beensigned by the registered attorney of the appellant. The application made undersection 759(2) was rejected by the Court of Appeal. The Supreme Courtrefused special leave to appeal to the Supreme Court.
The plaintiff-appellant thereafter moved in revision against the judgment. Thedefendant-petitioner raised a preliminary objection that the Court of Appeal isbound by the previous decisions of the Court of Appeal and the SupremeCourt.
The Court of Appeal overruled the preliminary objection. The defendant-petitioner moved the Supreme Court and contended that the Court of Appealought to have upheld the objection raised.
Held:
Revision is an extraordinary remedy and has to be exercisedonly in exceptional circumstances.
Per Shirani Bandaranayake, J:
‘The affidavit of the registered attorney clearly establishes that there wasonly a mistake or an omission in the notice that was filed in Court. Thefact that in dismissing the appeal the court did not warrant the applicationof section 759(2) amounts to a denial of justice.
That is certainly an exceptional circumstance which warrants dueadministration of justice."
There was no mention that the appellant was in any wayprejudiced by the mistake or omission made by the registeredattorney of the respondent.
The failure of the Court of Appeal to grant relief to therespondent in terms of section 759(2) in itself amounts to adenial of justice which could be regarded as an exceptionalcircumstance which warrants the exercise of revisionaryjurisdiction.
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APPEAL from an order of the Court of Appeal.
Cases referred to:
In the matter of the Insolvency of Harryman Thornhill (1895)2NLRat 105-106
Rasheed All v Mohamed AH and others 1981 1 Sri LR 262
Thilagaratnam v Edirisinghe 1982 1 Sri LR 56
Hotel Galaxy (Pvt) Ltd and others v Mercantile AddsManagement Ltd 1987 Sri LR 56
Attorney General v Gunawardene 1996 2 Sri LR 149
Wijesinghe v Tharmaratnam Sri Kantha’s LR VOL IV 47 at 49
Nanayakkara v Wamakulasuriya 1993 2 Sri LR 289
Sameed v Abeywickrama 1963 64 NLR 553
Martin v Suduhamy 1991 2 Sri LR 279
Kithsiriv Weerasena 1997 1 Sri LR 70
Romesh de Silva, PC with G.G.Arulpragasam and Palitha Kumarasinghe forappellants.
R.K.W. Goonesekera with Prasanna Jayawardene for respondent.
Cur.adv.vult.
November 15, 2001.
SHIRANI BANDARANAYAKE, J.The plaintiff-petitioner-respondent (hereinafter referred to as 01the respondent) instituted action against the defendants-respondents-appellants (hereinafter referred to as the appellants)for the recovery of a sum of Rs. 39,685,757/96 upon the MortgageBonds Nos. 2161 and 2162 dated 06.10.1987 attested by K.Kandiah, Notary Public. The respondent also filed another action,bearing No. 16587/MB on the identical grounds claiming a differentsum of money on a different Mortgage Bond over the sameproperty in question.
By judgment dated 07.10.1996 the learned Additional District 10Judge dismissed the first case. The 2nd connected case too wasdismissed by the learned District Judge, Colombo. The respondentappealed against the said judgment dated 07.10.1996 and theCourt of Appeal by its order dated 13.02.1997 rejected the appealstating that the notice of appeal had not been signed by therespondent’s registered attorney (K). Thereafter the respondent
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v Habib Bank Ltd (Shirani Bandaranayake, J.)
made an application under section 759(2) of the Civil ProcedureCode to set aside the said rejection of the notice of appeal and torestore the said appeal to the appeal roll (L). On 30.05.1997, theCourt of Appeal rejected the said application for special leave toappeal against the said order to the Supreme Court. On 11.09.1997the Supreme Court refused to grant special leave to appeal.Thereupon on 24.10.1997, the respondent made an application tothe Court of Appeal to review the judgment dated 07.10.1996 madeby the Additional District Judge of Colombo. The Court of Appealissued notice on the appellants. When the matter was taken up forhearing before the Court of Appeal, the appellants raised severalpreliminary objections and moved that the application of therespondent for revision be rejected, in limine. By judgment dated
the Court of Appeal overruled the preliminaryobjections of the appellants. The appellants thereafter soughtspecial leave to appeal against the said order of the Court ofAppeal, from the Supreme Court. This Court granted special leaveto appeal on the question whether the “Court of Appeal erred inholding that it was entitled to exercise the jurisdiction inrevision.”
At the hearing learned President’s Counsel for the appellantstook up several grounds in support of his argument that the Courtof Appeal has erred in the decision in rejecting the preliminaryobjections raised on behalf of the appellants. Learned President’sCounsel for the appellants submitted that the Court of Appeal isbound by the previous decisions of the Court of Appeal and theSupreme Court and that there are no exceptional circumstances inthis case which would permit the appellate court to exercise itsrevisionary jurisdiction.
The central point that has to be decided in this matter, relatesto the requirements regarding the notice of appeal. Section 755(1)of the Civil Procedure Code deals with the notice of appeal andreads as follows:
“Every notice of appeal shall be distinctly written on goodand suitable paper and shall be signed by the appellantor his registered attorney and shall be duly stamped.
Such notice shall also contain the following particulars:-
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the name of the court from which the appeal ispreferred;
the number of the action;
the names and addresses of the parties to theaction;
the names of the appellant and respondent;
the nature of the relief claimed.60
As submitted by the learned counsel for the respondent, in asituation as presented in this case, namely when there has been afailure to sign the notice of appeal, court could grant relief undersection 759(2) of the Code. Section 759(2) of the Civil ProcedureCode reads as follows:
“In the case of any mistake, omission or defect
on the part of any appellant in complying with
the provisions of the foregoing sections, (other
than a provision specifying the period within
which any act or thing is to be done) the Court70
of Appeal may, if it should be of opinion that the
respondent has not been materially prejudiced,
grant relief on such terms as it may deem just.”
The first order by the Court of Appeal was made on 13.02.1997 andwas in the following terms:
“The notice of appeal has not been signed bythe attorney-at-law of the appellant. Theappeal is rejected. The Registrar is directedto return the Record to the DC.”
The respondent made an application against this order to restore sothis appeal to the appeal roll of the Court of Appeal. On 30.05.1997learned Judge of the Court of Appeal dismissed the said applicationfor relisting.
It would appear that the Court of Appeal, by its order dated
had rejected the respondent’s appeal withoutconsidering the provisions in section 759(2) of the Code. When therespondent made an application to the Court of Appeal to exercise
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v Habib Bank Ltd (Shirani Bandaranayake, J.)
the powers enumerated under section 759(2) of the Code and torestore the application to the appeal roll, the Court of Appeal
dismissed the application which was considered as an application for“re-listing”. The Supreme Court had to consider the grant of specialleave to appeal on the dismissal of a re-listing application and notagainst the order rejecting the appeal by the Court of Appeal.
Paragraph C of the prayer to the petition dated 04.07.1997, of therespondent is to "set aside the order dated 30.05.1997" and thatwas the order which rejected the application of the respondent forre-listing.
When the Supreme Court on 11.09.1997, refused to grant specialleave to appeal, against the order of the Court of Appeal dated30.05.1997, the respondent made an application on 24.10.1997,invoking the revisionary jurisdiction of the Court of Appeal which isa separate application from the aborted appeal.
Guiding principles relating to the revisionary jurisdiction of theappellate court have been discussed in several judgments of theSupreme Court and the Court of Appeal, Bonser, C.J. In The matterof the Insolvency of Harryman Thornhill(1) at pp 105-106 referred tothe revisionary powers of the appellate court and stated that,
“the object at which this court aims inexercising its powers of revision, is the dueadministration of justice”
In Rasheed Ali v Mohamed AH and Others ®, it was held that thepowers of revision vested in the Court of Appeal are very wide andthe Court can in a fit case exercise that power whether or not anappeal lies.
A series of cases which considered the powers of the appellatecourts to act in revision, had emphasised the fact that therevisionary power could be exercised only in exceptionalcircumstances. In Thilagaratnam v Edirisinghe ®, it was held thatthough the appellate courts’ powers to act in revision were wideand would be exercised whether an appeal has been taken againstthe order of the original court or not, such powers would beexercised only in exceptional circumstances. In Hotel Galaxy (Pvt)Ltd., and Others v Mercantile Hotels Management, it was held that
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it is settled law that the exercise of the revisionary powers of theappellate court is confined to cases in which exceptionalcircumstances exist warranting its intervention.
Revision no doubt is an extra ordinary remedy and has to beexercised" only in exceptional circumstances. What suchexceptional circumstances are, would have to be decided by theappellate court in exercising its powers of revision, on the facts and 130circumstances of each case. In Attorney General v Gunawardena® the court was of the view that revision, like an appeal is directedtowards the correction of errors, but it is supervisory in nature andits object is the due administration of justice and not primarily orsolely the relieving of grievances of a party. Jameel, J. inWijesinghe v Tharmaratnam ® was of the view that,
“Revision is a discretionary remedy and willnot be available unless the applicationdiscloses circumstances which ‘shocks theconscience of the court".140
It is not disputed that in the case before us the only defect of theappeal was that the notice of appeal was not signed by theregistered attorney of the respondent. However, the notice ofappeal was in conformity with the provisions of sections 754 and755 of the Civil Procedure Code. The registered attorney for therespondent had sworn in an affidavit, dated 02.07.1997, in whichshe has averred:
“It now appears that on 10th October 1996,
the plaintiff Bank’s attorneys-at-law having
prepared several copies of the Notice of150
Appeal for the purposes of filing in court and
for dispatching to the parties and for record
purposes, an unsigned Notice of Appeal has
been inadvertently filed in court by mistake or
omission on the part of the plaintiff’s
Attorneys-at-law.”
The applicability of section 759(2) of the Civil Procedure Code wasextensively discussed in Nanayakkara v Warnakulasuriya <7).Referring to the decisions in Sameen v Abeywickrema m, andMartin v Suduhamy (B Kulatunga, J., stated that:160
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‘The powers of the Court to grant relief undersection 759(2) of the Code is wide anddiscretionary and is subject to such terms asthe court may deem just. Relief may begranted even if no excuse for non-complianceis forthcoming.”
It was held in Nanayakkara’s case (supra at 293) that,
“In an application for relief under section759(2), the rule that the negligence £>f theattorney-at-law is the negligence of the client170
does not apply as in the cases of defaultcurable under sections 86(2), 87(3) and 771.
Such negligence may be relevant, but it doesnot fetter the discretion of the court to grantrelief where it is just and fair to do so.”
In Kithsiri v Weerasena ('° the plaintiff.presented the noticeof appeal to the District Court within the period of 14 days set outin section 754(4) of the Code, but failed to duly stamp the Notice ofAppeal as required by section 755(1) of the Civil Procedure Code.The deficiency in stamp was supplied by the plaintiff shortly after isothe expiry of the 14 days contemplated by section 754(4) of theCode. G.P.S. de Silva, C.J., held that ‘the provisions in section755(1) of the Civil Procedure Code which requires the Notice ofAppeal to be “duly stamped” is imperative’. It was further held that‘the Court of Appeal however, has the jurisdiction to grant relief tothe appellant in terms of section 759(2) of the Code in respect ofthe “mistake” or “omission” in supplying the required stamp fee.”
In Kithsiri v Weerasena (supra), G.P.S.de Silva, C.J., was ofthe view that, the objection of a technical nature should not beallowed to thwart the course of Justice. The basis on which the 190appeal was rejected was purely of a technical nature. The affidavitof the registered attorney clearly establishes that there was only amistake or an omission in the notice that was filed in court. The factthat in dismissing the appeal the court did not warrant theapplication of section 759(2) of the Code amounts to a denial ofjustice. That is certainly an exceptional circumstance whichwarrants due administration of justice. I am of the view, that the
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facts of this case should have been considered more carefully bythe Court of Appeal at the time it first came up on appeal. The factsno doubt warranted the exercise of jurisdiction of the Court of 200Appeal in terms of section 759(2) of the Code and granting relief tothe respondent by entertaining the appeal. There was no mentionthat the appellant was in any way prejudiced by the mistake oromission made by the registered attorney of the respondent. Thefailure of the Court of Appeal to grant relief to the respondent interms of section 759(2) in itself amounts to a denial of justice whichin my view could be regarded as an exceptional circumstancewhich warrants the exercise of revisionary jurisdiction.
For the aforementioned reasons, the appeal is dismissedand the judgment of the Court of Appeal, dated 08.09.2000 which 210rejected the preliminary objections raised and directed the case tobe fixed for inquiry is affirmed.
There will be no costs.
AMERASINGHE, J.- I agree.
YAPA, J.,- I agree.
Appeal dismissed.