004-SLLR-SLLR-1983-2-WIJESOORIYA-V.-PUSSEDENIYA-COMMISSIONER-OF-NATIONAL-HOUSING-AND-ANOTHER.pdf
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Sri Lanka Law Reports
[1983] 2 Sri L. R.
WIJESOORIYA
V.
PUSSEDENIYA, COMMISSIONER OF NATIONAL HOUSINGAND ANOTHER
SUPREME COURT
N. D. M. SAMARAKOON, C.J., VICTOR PERERA. J.
AND COLIN THOME. J.
S.C. APPEAL NO. 4/83 : S.C. APL. L.A. NO. 115/82 :
C. A. APPLICATION NO. 963/81.
MARCH 1. 1983.
Rules of the Supreme Court — Special Leave to Appeal — Failure to lodgewritten submissions within fourteen days of the granting of Special Leave toAppeal — Whether rule 12(2) of the Supreme Court Rules absolved thepetitioner from complying with the mandatory provision of Rule 35(a) orwhether an application for Special Leave was for all purposes to be regarded as"the petition of appeal" — Rules 12(1) and (2) and 35(a) and (e) of the SupremeCourt Rules of 1978.
The Petitioner's application for a writ of Prohibition and Mandamus wasdismissed by the Court of Appeal. Subsequently he was granted Special Leave toAppeal. However, he had failed to lodge his written submissions in Court withinfourteen days of such granting of Special Leave to Appeal, which was amandatory requirement under the Supreme Court Rules of 1978. The 2ndrespondent, thereupon filed a motion on this ground for an order for disposal ofthe case.
Held —
That this is a non-compliance with a mandatory requirement of the SupremeCourt Rules of 1978.
APPEAL from an order of the Court of Appeal.
Nimal Senanayake, Senior Attorney-at-Law with Miss S. M. Senaratne and TilakBalasuriya for the Appellant.
H. L. de Silva. Senior Attorney-at-Law with L C. Seneviratne for 2nd Respondent.
Cur. adv. vult
March 16. 1983VICTOR PERERA. J.
The Petitioner had made an application to the Court of Appealfor a Writ of Prohibition and Mandamus. The Court of Appeal byits order dated 4th November 1982 dismissed the application.
Wijesooriya v. Pussedentya. Commissioner of National Housing and Another
(Victor Perera. J.)43
The Petitioner on the 24th November 1982 lodged a petition inthis Court for the grant of Special Leave to Appeal under Article1 28(2) of the Constitution. After notice on the respondents wasserved and caveats lodged in terms of the Supreme Court Rulesof 1 978. the Petitioner was heard and order was made on 18thJanuary 1 983 granting Special Leave to Appeal.
The Petitioner had failed to lodge his written submissions inCourt within 14 days of the granting of Special Leave to Appealby this Court. The 2nd Respondent thereupon, on the 3rdFebruary 1983. after the expiry of the said 14 days, filed amotion that this matter be put up for an order of Court and thiscame up before us on the 1 st March 1983. after notice to thePetitioner, for disposal.
The Petitioner, however, had after this motion was filed on
by the 2nd Respondent, lodged a fresh petition of appealin terms of Rules 12(2) on 8.2.83 and tendered writtensubmissions on 11.2.83. The fresh petition of appeal and thewritten submissions were thus filed after 14 days had expiredafter leave was granted. It was contended on behalf of thePetitioner that Rule 1 2(2) enabled him to lodge a fresh petition ofappeal after his earlier petition for Special Leave to Appeal hadbeen allowed and that therefore he was entitled to file his writtensubmissions within 14 days of the lodging of the fresh petition ofappeal. On behalf of the 2nd Respondent, it was contended thatthe Rule 12(2) which enabled the lodging of a fresh petition ofappeal did not absolve the Petitioner from complying with themandatory provision of Rule 35(e) requiring him to file hiswritten submissions within 14 days of the granting of leave asthe application for leave was for all purposes now a " petition ofappeal".
Rule 1 2 reads as follows
"12(1) Where an application for Special leave to appeal hasbeen allowed, it shall not be necessary for the appellantto give notice of appeal or to lodge a fresh petition ofappeal, but the application for leave to appeal shall insuch case be deemed to be the petition of appeal, but in
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Sri Lanka Law Reports
[1983] 2 Sri L.R.
all other matters he shall comply with the rules relating toappeals.
(2) Nothing contained in Sub-rule (1) shall be deemed topreclude such appellant from lodging a fresh petition ofappeal, in which case, he shall comply with the provisionsof the Rules relating to appeals
It is clear from an examination of this Rule that the originalapplication for Special Leave dated 24th November 1982 was tobe regarded as " the petition of appeal " although the Petitionerwas permitted to lodge a fresh petition of appeal. In all othermatters the petitioner was obliged to comply with the Rulesrelating to appeals.
Rules relating to applications for Special Leave to Appeal arecontained in Part I — Rules 2 to 18. Therefore this Rule 12 doesnot apply to appeals filed in the Supreme Court for whichprovision is made in Part II — Rules 27 to 43. However, in regardto the steps to be taken after an application for Special Leave toAppeal " which becomes for ail purposes " a petition of appeal "filed in the Supreme Court, the Rules in Part II apply.
Rule 35(e) provides as follows
"35(e) The appellant shall, as soon as may be. and in any case,within fourteen days of the grant of special leave toappeal or the filing of an appeal lodge his submissions,and forthwith give notice thereof to each respondentserving on him a copy of such submissions ".
The first limb of Rule 35(e) applies, but the second limb of Rule35(e) cannot apply as the date of the " filing of the appeal " willrelate back to the date of the application for Special Leave toAppeal and not to the date the fresh petition of appeal waslodged in terms of Rule 1 2. the latter date not being the date ofthe filing of the appeal.
Wijesooriya v. Pussedeniya. Commissioner of National Housing and Another
(Victor Perera. J.j45
The Petitioner in this case had thus failed to lodge his writtensubmissions within 14 days of the grant of Special Leave toAppeal. As this is a non-compliance with a mandatoryrequirement of the Supreme Court Rules of 1978, the appealstands dismissed with costs fixed at Rs. 525/- payable by thepetitioner to the 2nd respondent.
SAMARAKOON. C.J. — I agree.COUN THOME. J. – I agree.
Appeal dismissed.