012-SLLR-SLLR-2004-V-1-URBAN-DEVELOPMENT-AUTHORITY-v.-CEYLON-ENTERTAINMENT-LIMITED-AND-OTHERS.pdf
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Urban Development Authority v Ceylon Entertainments Limited
and Others (Edussuriva. J.)
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URBAN DEVELOPMENT AUTHORITYvCEYLON ENTERTAINMENTS LIMITED AND OTHERSSUPREME COURTBANDARANAYAKE, J.
EDUSSURIYA, J. ANDDE SILVA, J.
SC APPEAL 41/2002
A. REV.APPLICATION NO 1319/2001
C. COLOMBO NO 4795/SPL13 AND 30 MAY 2003
Revision – Failure to file material documents – Rule 3 of the Supreme Court
Rules.
The appellant who was a defendant in an action filed in the District Court of
Colombo failed to answer interrogatories whereupon the District Court reject-ed the answer filed by the appellant.
The appellant's application to the Court of Appeal was dismissed on two
grounds:
failure to set out exceptional circumstances which attracted revision;and
failure to annex to his application originals or certified copies of docu-ments relied upon by the appellant.
Held:
The appellant failed to file in the Court of Appeal duly certified copiesof material documents as required by Rules 3(b) read with Rule 3(a) ofthe Supreme Court Rules.
It is settled law that Rule 3 of the Supreme Court Rules must beadhered to.
In view of the above finding it is not necessary to consider the questionwhether it is necessary to plead specifically special circumstanceswhich warrant the exercise of revisionary jurisdiction of the Court ofAppeal.
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Case referred to:
1 Shanmugavadivu Kulathilake (2003) 1 Sri LR 215
APPEAL from the judgment of the Court.of Appeal.
Milinda Gunatilake State Counsel for appellant.
A.R.Surendran with Arul Selvaratnam for respondent.
Cur.adv.vult.
October 22, 2003EDUSSURIYA, J.
This appeal has been filed from the judgment of the Court of 1Appeal in an application to revise an order of the District Court ofColombo rejecting the answer filed by the appellant for its failure toanswer the interrogatories served on the appellant.
After oral submissions were made on 13th May 2003 bothcounsel were given two weeks to file written submissions. Althoughthe respondent filed written submissions on 30th May 2003, theappellant has failed to file written submissions upto date.
The Court of Appeal had rejected the application to revise thesaid order of the District Court on the ground (1) that the petitioner 10(appellant) before the Court of Appeal had failed to set out anyexceptional circumstances which warranted the exercise of therevisionary jurisdiction of the Court of Appeal and (2) that the peti-tioner had not annexed to his application for revision either the orig-inals or certified copies of the documents relied on by the petition-er, as required by the Rules of Court.
Special leave to appeal from the said judgment of the Court ofAppeal had been granted on the following grounds.
the said judgment is contrary to law;
the Court of Appeal has erred in law in holding that the pres- 20ence of exceptional circumstances in the pleadings is byitself insufficient for the exercise of the revisionary jurisdiction
of the Court of Appeal;
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Urban Development Authority v Ceylon Entertainments Limited
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the Court of Appeal erred in law in holding that notwithstand-ing the presence of exceptional circumstances in the plead-ings the application of the petitioner should fail due to thelack of an express averment that exceptional grounds exist-ed;
the Court of Appeal erred in law in holding that the failure onthe part of the petitioner to annex certified copies to the peti- 30
" tion would inevitably result in the dismissal of the petitioner'sapplication;
the Court of Appeal has failed to consider that the order of thelearned District Judge dated 27th July 2001 was contrary tolaw and that exceptional circumstances existed which war-ranted the exercise of the revisionary power of the Court ofAppeal;
the Court of Appeal failed to consider the grave prejudice andmiscarriage of justice caused to the petitioner who would bedeprived of appearing and defending the action even after fil- 40ing answer.
It is settled law that Rule 3 of the Rules of Court must beadhered to. Since the petitioner had filed an application in revision,
Rule 3 (1) (a) read with Rule 3(1 )(b) would apply.
Rule 3(1) (a) sets out that in every application made to theCourt of Appeal for the exercise of the powers vested in the Courtof Appeal by Articles 140 and 141 of the Constitution the petitionshall be accompanied by the originals of the documents material tosuch application (or duly certified copies thereof) in the form ofexhibits, and where a petitioner is unable to tender any such docu- soment, he shall state the reason for such inability and seek the leaveof Court to furnish such document later; where a petitioner fails tocomply with the provisions of the rule the Court may, ex mero motuor at the instance of any party, dismiss such application.
Rule 3(1) (b) sets out that every application by way of revi-sion or restitutio in intergrum under Article 138 of the Constitutionshall be made in like manner together with copies of the relevantproceedings (including pleadings and documents produced), in thecourt of first instance, tribunal or other institution to which such
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application relates.
Although Rule 3(1) (b) does not speak of originals or dulycertified copies of the pleadings and documents to be annexed tothe application in revision there can be no doubt that the words“copies of the relevant proceedings (including pleadings and docu-ments produced)” refer to duly certified copies of the same. It mustalso be borne in mind that the relevant Rule requires the petitionerto file an application in revision in “like manner”.
However, where an objection is taken on the ground thateither the originals or duly certified copies of material documents
have not been filed with the petition then the Court of Appeal mustbefore making a ruling on such objection consider the questionwhether such documents are material in deciding the questionsurged by the petitioner in the application for revision.
It has been urged that the order of the District Court whichthe petitioner sought to have revised by the Court of Appeal result-ed in a miscarriage of justice. In order to decide that question,namely whether the answers to the interrogatories were filed with-in the time stipulated by the District Court, it is necessary to con-sider the journal entries in the original record maintained by theDistrict Court. However I find that the petitioner has failed to file inthe Court of Appeal duly certified copies (as required by the Rules)of such journal entries and the order of the District Court which arematerial to the revision application.
In any event, in order to decide whether the Court of Appealhad considered the question whether the documents (certifiedcopies) which the petitioner had failed to file in the Court of Appealwere material to the application, this Court must necessarily perusethe application for revision filed in the Court of Appeal.
Although, item No.5 in the index filed by the petitioner-appel-
lant in this Court refers to the petition and affidavit of the 1st defen-dant-petitioner filed in C.A. Application No.1319/2000 (Revision)being at pages 108 to 123, no copies of the said petition and affi-davit filed in the revision application before the Court of Appeal
have been filed along with the application for special leave toappeal as the papers filed in this Court do not go beyond page 88.The appellant has therefore failed to file duly certified copies of
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and Ohers (Edussuriva, J.)
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material documents, even in this instance (present appeal).
In the circumstances this Court is not in a position to ascer-tain whether the documents of which neither the originals nor dulycertified copies were filed were documents which were material to 100the application in revision.
For the above mentioned reasons this Court is compelled todismiss this appeal for failure to comply with Rule 3(1) (a) read withRule 3 (1)(b). Vide the judgment in Kanagasabapathy Shanmuga-vadivuv J.M.Kulathilake.W
In view of the above finding it is not necessary to look into theother question whether it is necessary to plead specifically specialcircumstances which warrant the exercise of the extraordinary revi-sionary jurisdiction of the Court of Appeal. There will be no costs.
BANDARANAYAKE, J.- I agree.
DE SILVA, J.- I agree.
Appeal dismissed.