Law-Report-part-13.pdf

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D I G E S T
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CIvIL PROCEDURE CODE – Section 6, 7, 8, 375, 393 – If the right to sue 349
on the cause of action survives to the surviving plaintiff/s or against
the surviving defendant/s upon the death of one out of several
plaintiffs or defendants, action to proceed at the instance of the
surviving plaintiff or plaintiffs or against the surviving defendant or
defendants – Summary – Regular Procedure. Companies Act 7 of 2007
– Section 224.
Jayawardene v. Obeysekere And 5 Others
SUPREME COURT RULES OF 1990 – Rule 7 – Every application for 337
special leave to appeal shall be made within six weeks of the
order, judgment, decree or sentence of the Court of Appeal in
respect of which special leave to appeal is sought – Rule 20(3) – where
the Court of Appeal does not grant or refuses to grant leave to appeal,
an application for special leave to appeal to the Supreme Court may be
made in terms of Rule 7.
Priyanthi Chandrika Jinadasa v. Pathma Hemamali And 4 Others
PENAL CODE- Section 300, Section 383 – Identifcation – Delay in hold- 364
ing – Unlawful detention in Police custody? – Evidence Ordinance
Section 27, Section 54, Section 114(d) – Dock statement – Evalua-
tion – Can a conviction be sustained under a section which does not
create an offence – Best Evidence Rule – Constitution Article 13 (3)
Roshan vs. The Attorney General

Priyanthi Chandrika Jinadasa V. Pathma Hemamali And 4 Others
SC 337
PRIYANTHI CHANDRIKA JINADASA v.
PATHMA HEMAMALI AND 4 OTHERS
SUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, C.J.,
RATNAYAKE, P.C., J. AND
EKANAYAKE, J.
S.C. (HC) CALA NO. 99/2008
WP/HCCA/GPH NO. 62/01 (F)
D.C.GAMPAHA NO. 33465/L
NOVEMBER 8TH , 2010
Supreme Court Rules of 1990 – Rule 7 – Every application for
special leave to appeal shall be made within six weeks of the
order, judgment, decree or sentence of the Court of Appeal in
respect of which special leave to appeal is sought – Rule 20(3)
– where the Court of Appeal does not grant or refuses to grant
leave to appeal, an application for special leave to appeal to the
Supreme Court may be made in terms of Rule 7.
The judgment of the High Court was delivered on 15.07.2008. In terms
of the Supreme Court Rules, 1990, the time limit within which leave to
appeal applications are to be fled is six (06) weeks from the impugned
judgment and accordingly, the application for leave to appeal should
have been fled on or before 26.08.2008. However, the present applica-
tion had been fled only on 01.09.2008. The Defendents – Respondents
raised a preliminary objection that it had been fled out of time.
The Petitioner took up the position that since this was an application
for leave to appeal from a judgment of the High Court, the Supreme
Court Rules of 1990 would not be applicable to such an application.
Consequently, it was contended that in the absence of Rules for this
type of applications, the concept that applications must be fled within
‘a reasonable time’ should be applicable. It was also submitted that
attention should be given to the circumstances of this application.

338 Sri Lanka Law Reports [2011] 1 SRI L.R.
Held:
(1) An application for leave to appeal from the High Court (Civil
Appeal) of the Provinces to the Supreme Court should be fled
within 42 days from the date of the judgment.
(2) The language used in Rule 7 of the Supreme Court Rules of 1990
clearly shows that the provisions laid down in the said Rule are
mandatory and that an application for leave to appeal should be
made within six weeks of the order, judgment, decree or sentence
of the Court below of which leave is sought from the Supreme
Court. In such circumstances it is imperative that the application
should be fled within the specifed period of six weeks.
(3) It is not possible to consider the contended circumstances as
mitigating factors when the Petitioner had failed to take all steps
to ensure that the leave to appeal application is preferred within
the stipulated time limit.
Per Dr. Shirani A. Bandaranayake, C.J.,–
“…I hold that the petitioner had not complied with the Supreme
Court Rules of 1990. A long line of cases of this Court had decided
that non compliance with Rule 8(3) as well as Rule 28(3) would
result in the dismissal of an application for leave from this
Court.”
Cases referred to:
1. George Stuart and Co. Ltd. V. Lankem Tea and Rubber Plantations
(Pvt.) Ltd. – –(2004) 1 Sri L.R. 246
2. Nirmala de Mel V. Seneviratne — (1982) 2 Sri L.R. 569
3. Jafferjee V. Perera – C.L.W. Vol. 79 pg. 81
4. L.A. Sudath Rohana V. Mohamed Zeena & others – S.C. H.C. C.A.L.A.
No. 111/2010 – S.C. Minutes of 17.3.2011
5. K. Reaindran V. K. Velusomasundram – S.C. (Spl.) L.A. Application
No. 298/99 – S.C. Minutes of 07.02.2000
6. N.A. Premadasa V. The Peoples’ Bank – S.C. (Spl.) L.A. Application
No. 212/99 – S.C. Minutes of 24.02.2000
7. Hameed V. Majibdeen and others – S.C. (Spl.) L.A. Application
No. 38/2001 – S.C. Minutes of 23.07. 2001

Priyanthi Chandrika Jinadasa V. Pathma Hemamali And 4 Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 339
8. K.M. Samarasinghe V. R.M.D. Ratnayake and others – S.C. (Spl.)
L.A. Application No. 51/2001 – S.C. Minutes of 27.07.2001
9. Soong Che Foo V. Harosha K. De Silva and others – S.C. (Spl.) L.A.
Application No. 184/2003 – S.C. Minutes of 25.11.2003
10. C.A. Haroon V. S.K. Muzoor and others – S.C. (Spl.) L.A. Application
No. 158/2006 – S.C. Minutes of 24.11.2006
11. Samantha Niroshana V. Senerath Abeyruwan – S.C. (Spl.) L.A.
Application No. 145/2006 – S.C. Minutes of 02.08.2007
12. A.H.M. Fowzie and two others V. Vehicles Lanka (Pvt.) Ltd. – 2008
B.L.R. 127
13. Woodman Exports (Pvt.) Ltd. V. Commissioner-General of Labour –
S.C. (Spl.) L.A. Application No. 335/2008 – S.C. Minutes of
13.12.2010
AppliCAtion for leave to appeal to the Supreme Court from judgment
of the High Court of the Western Province (Civil Appeals)
Hemasiri Withanachchi for the Petitioner
Manohara de Silva, P.C., with Pubudini Wickramaratne for the
Defendants – Respondents – Respondents
Cur-adv.vult
July 07th 2011
Dr. SHirAni A. BAnDArAnAyAke, CJ.
This is an application for leave to appeal from the
judgment of the High Court of the Western Province (Civil
Appeals) holden at Gampaha dated 15.07.2008. By that
judgment the learned Judges of the High Court had
dismissed the appeal of the plaintiff-appellant, now deceased.
Thereafter the widow of the said plaintiff-appellant (herein-
after referred to as the petitioner), preferred an application
before this Court for leave to appeal.
When this application for leave to appeal was taken for
support, learned President’s Counsel for the defendants-

340 Sri Lanka Law Reports [2011] 1 SRI L.R.
respondents-respondents (hereinafter referred to as the
respondents) raised a preliminary objection stating that the
application for leave to appeal is out of time.
Since a preliminary objection was raised, both parties
were heard on the said objection.
Learned President’s Counsel for the respondents submit-
ted that the judgment of the High Court was delivered on
15.07.2008 and in terms of the Supreme Court Rules, 1990,
the time limit within which leave to appeal applications are
to be fled is six (06) weeks from the impugned judgment and
therefore the said application for leave to appeal should have
been fled on or before 26.08.2008. Since the present applica-
tion had been fled only on 01.09.2008, learned President’s
Counsel contended that it had been fled out of time.
Learned Counsel for the petitioner took up the position
that since this is an application for leave to appeal from the
judgment of the High Court, the Supreme Court Rules of
1990 would not be applicable to such an application. Accord-
ingly, it was contended that since there are no Rules for this
type of applications, the concept that applications must be
fled within ‘a reasonable time’ should be applicable. It was
also submitted that attention should be given to the circum-
stances of this application which warrants the indulgence of
this Court.
Having stated the submissions made by the learned
President’s Counsel for the respondents and the learned
Counsel for the petitioner, let me now turn to consider the
said submissions on the basis of the preliminary objection
raised by the learned President’s Counsel for the respon-
dents.

Priyanthi Chandrika Jinadasa V. Pathma Hemamali And 4 Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 341
The Supreme Court Rules of 1990, deal with many mat-
ters pertaining to appeals, applications, stay of proceedings
and applications under Article 126 of the Constitution.
Part 1 of the said Rules, refers to three types of appli-
cations dealing with leave, which includes special leave to
appeal, leave to appeal and other appeals. Rule 7 which is
under the category of applications for special leave to appeal
from the judgments of the Court of Appeal clearly states that
such an application should be made within six seeks (6) of
the impugned judgment. The said rule is as follows:
“Every such application shall be made within six weeks
of the order, judgment, decree of sentence of the Court
of Appeal in respect of which special leave to appeal is
sought.”
In terms of Rule 7, it is quite clear that any application
for special leave to appeal should be made within six weeks
from the order, judgment, decree or sentence of the Court of
Appeal on which such leave is sought.
It is however to be borne in mind that the said Rule 7
deals only with applications for special leave to appeal from
the judgments of the Court of Appeal and the present applica-
tion for leave to appeal is from a judgment of the Civil Appel-
late High Court of the Western Province holden at Gampaha.
As stated earlier categories B and C of Part I of the
Supreme Court Rules, 1990 deal with leave to appeal and
other appeals, respectively. Whilst the category of leave to
appeal deals with instances, where Court of Appeal had
granted leave to appeal to the Supreme Court, other
appeals refer to all other appeals to the Supreme Court

342 Sri Lanka Law Reports [2011] 1 SRI L.R.
from an order, judgment, decree or sentence of the Court of
Appeal or any other Court or tribunal. Thus, it is evident that
the present application for leave to appeal from the judgment
of the High Court of the Western Province (Civil Appeal) holden
at Gampaha would come under the said category C. The said
section 28(1), which refers to such appeals is as follows:
“28(1) Save as otherwise specifcally provided by or under
any law passed by Parliament, the provisions of this
rule shall apply to all other appeals to the Supreme
Court from an order, judgment, decree or sentence of
the Court of Appeal or any other Court or tribunal”
(emphasis is added).
It is therefore not correct to state that there are no rules
made by the Supreme Court that would be applicable to
applications for leave to appeal from the High Court of the
Province to the Supreme Court.
Considering the preliminary objection raised by the
learned President’s Counsel for the respondent, it is also
necessary to be borne in mind the nature of this applica-
tion. It is not disputed that in this case the petitioner had
fled action in the District Court of Gampaha seeking, Inter
alia, a declaration that the petitioner is entitled to the land
described in the schedule to the plaint and a decree evicting
the respondents from the land in question and placing the
petitioner in vacant possession.
Direct applications for leave to appeal from the High
Court to the Supreme Court came into being only after the
establishment of High Courts of the Provinces. Until such
time, according to the procedure that prevailed, such appli-
cations were preferred from the order, judgment, decree or

Priyanthi Chandrika Jinadasa V. Pathma Hemamali And 4 Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 343
sentence of the Court of Appeal. In such circumstances, if the
Court of Appeal had not granted leave to appeal, an applica-
tion could be made to the Supreme Court for special leave to
appeal. Rules 19 and 20 of the Supreme Court Rules refer to
this position and Rule 20(3) in particular, deals with the time
frame in such applications. The said Rule 20(3) is as follows:
“Where the Court of Appeal does not grant or refuses to
grant leave to appeal, an application for special leave to
appeal to the Supreme Court may be made in terms of
Rule 7.”
Rule 7 clearly states that every such application shall
be made within six weeks of the order, judgment, decree or
sentence of the Court of Appeal in respect of which special
leave to appeal is sought.
Accordingly it is quite clear that a litigant, who is dissat-
isfed with the decree of a criminal matter, which had come
before the High Courts (Civil Appellate) of the Provinces
would have to prefer an application before the Supreme Court
within six (6) weeks of the order, judgment, decree or sen-
tence in question.
This position was considered by the Supreme Court in
the light of the situation regarding an application made on
the basis of an Arbitral Award in George Stuart and Co. Ltd. V
Lankem Tea and Rubber Plantations (Pvt.) Ltd.(1), where it was
stated that,
“When no provision is made in the relevant Act, specify-
ing the time frame in which an application for leave to
appeal be made to the Supreme Court and simultane-
ously when there are Rules providing for such situations,

344 Sri Lanka Law Reports [2011] 1 SRI L.R.
the appropriate procedure would be to follow the current
Rules which govern the leave to appeal application to
the Supreme Court. Consequently such an application
would have to be fled within 42 days from the date of
the Award” (emphasis added).
Accordingly, it is evident that an application for leave to
appeal from the High Court (Civil Appeal) of the Provinces to
the Supreme Court should be fled within 42 days from the
date of the judgment.
It is not disputed that the judgment of the High Court
was delivered on 15.07.2008. It is also not disputed that
the petitioner had fled this leave to appeal application on
01.09.2008. It is therefore quite apparent that the petition-
er had fled her application for leave to appeal well after 42
days and therefore the petitioner had not complied with the
Supreme Court Rules 1990.
Learned Counsel for the petitioner contended that
although there is a delay in fling the leave to appeal
application, it was not intentional and was due to circum-
stances which prevailed at that time. His position was that the
original plaintiff-appellant had passed away on 15.08.2008
and that considering the social and cultural background of
our society it is common knowledge that during a period,
where there had been a bereavement of a close relative,
the matters connected therein would take precedence over
litigation.
Learned Counsel for the petitioner contended that even
though the Supreme Court Rules may specify a time limit in
preferring an application to the Supreme Court for leave to

Priyanthi Chandrika Jinadasa V. Pathma Hemamali And 4 Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 345
appeal, there could be a waiver with regard to the said time
frame based on the discretion of the Court. Learned Counsel
for the petitioner relied on the decisions in Nirmala de Mel v
Seneviratne(2), and Jafferjee v Perera(3).
In Nirmala de Mel v Seneviratne (supra), the preliminary
objection raised by the respondent was on the basis that the
petitioner in that case had no status to fle the appeal before
the order of Court to substitute her and the appeal was out of
time. The Court whilst holding that it was within time since
it was fled on a Monday, which was the next working day
and therefore had been within time had also held that the
petitioner could fle the petition of appeal prior to being
ordered to be substituted for the reason that there was a
lacuna in the Supreme Court Rules and therefore the said
steps taken could be regarded as regular.
It is to be noted that Nirmala de Mel v Seneviratne
(supra) is a case decided well before the present Supreme
Court Rules came into being. In the present application
as clearly stated earlier, the facts are totally different to
Seneviratne’s (supra) case. As has been stated clearly, there
is no lacuna in the Supreme Court Rules and the said
Rules are quite clear on the time limit permitted for such
application.
In Jafferjee and others (supra) it was apparent that
there had been compliance with the conditions on which
conditional leave was obtained long before the time limit
imposed by Court for such compliance was over.
The question that arises in the context of the aforemen-
tioned decisions is that, in terms of the provisions laid down

346 Sri Lanka Law Reports [2011] 1 SRI L.R.
in Rule 7 of the Supreme Court Rues, 1990 as to wheth-
er there is a discretion for the Court to ignore or vary the
stipulated time period of 42 days.
As clearly stated in L.A. Sudath Rohana v Mohamed
Zeena and others(4) Rules of the Supreme Court are made in
terms of Article 136 of the Constitution, for the purpose of
regulating the practice and procedure of this Court. Similar
to the Civil Procedure Code, which is the principal source of
procedure, which guides the Courts of civil jurisdiction, the
Supreme Court Rules regulates the practice and procedure of
the Supreme Court.
The language used in Rule 7, clearly shows that the
provisions laid down in the said Rule are mandatory and that
an application for leave for this Court should be made within
six weeks of the order, judgment, decree or sentence of the
Court below of which leave is sought from the Supreme Court.
In such circumstances it is apparent that it is imperative that
the application should be fled within the specifed period of
six (6) weeks.
The position taken up by the petitioner was that the
original plaintiff had obtained a copy of the judgment of the
High Court with a view to lodge an application for leave to
appeal in this Court, but had been seriously taken ill and
died on 15.08.2008. The petitioner submitted that she had
to attend to the funeral of the original plaintiff, being her
husband and the religious ceremonies and due to that she
could not prefer this application within the stipulated time
period.
It is to be noted that the judgment of the High Court was
delivered on 15.07.2008 and the original plaintiff had died

Priyanthi Chandrika Jinadasa V. Pathma Hemamali And 4 Others
SC (Dr. Shirani A. Bandaranayake, CJ.) 347
one month later on 05.08.2008. The present petitioner, who
is the widow of the original plaintiff, had stated in her petition
that by the time she sought legal advice from her Attorney-
at-Law, she was informed that the appealable period of time
had lapsed.
It is therefore quite clear that the petitioner was fully
aware that by the time she took steps to prefer an application
for leave to appeal before this Court, that appealable period of
time had lapsed. Further it is to be borne in mind that in any
event the original plaintiff-appellant had not fled an applica-
tion for leave to appeal from the judgment of the High Court
before his demise.
Considering all the circumstances it is apparent that it
is not possible to consider those as mitigating factors when
the petitioner had failed to take all steps to ensure that the
leave to appeal application is preferred within the stipulated
time limit.
For the reasons aforesaid, I hold that the petitioner had
not complied with the Supreme Court Rules of 1990. A long
line of cases of this Court had decided that non compli-
ance with Rule 8(3) as well as Rule 28(3) would result in the
dismissal of an application for leave from this Court
(K. Reaindran v. K. Velusomasundram(5), N.A. Prema-
dasa v. The People’s Bank(6), Hameed v Majibdeen and
others(7), K.M. Samarasinghe v R.M.D. Ratnayake and
others(8), Soong Che Foo v. Harosha K. De Silva and others (9)
C.A. Haroon v S.K. Muzoor and others(10), Samantha Niroshana
v Senarath Abeyruwan(11), A.H.M. Fowzie and two others v
Vehicles Lanka (Pvt.) Ltd.(12), Woodman Exports (Pvt.) Ltd. v
Commissioner-General of Labour(13), L.A. Sudath Rohana v

348 Sri Lanka Law Reports [2011] 1 SRI L.R.
Mohamed Zeena and others (supra). It is also to be noted that
in George Stuart and Co. Ltd. (supra), the application for leave
to appeal was rejected since it was fled out of time.
In the circumstances, for the reasons aforesaid, I uphold
the preliminary objection raised by the learned President’s
Counsel for the respondents and dismiss the petitioner’s
application for leave to appeal.
I make no order as to costs.
rAtnAyAke, p.C., J. – I agree.
CHAnDrA ekAnAyAke, J.- I agree.
Preliminary objection upheld. Application for Leave to Appeal
dismissed.

Jayawardene V. Obeysekere And 5 Others
SC 349
JAYAWARDENE v. OBEYSEKERE AND 5 OTHERS
SUPREME COURT
J.A.N. DE SILVA, C.J.,
AMARATUNGA, J. AND
MARSOOF, J.
S.C. (CHC) APPEAL NO. 21/2009
H.C. (CIVIL) NO. 28/2008
S.C. (CHC) APPEAL NO. 22/2009
H.C. (CIVIL) NO. 30/2008
S.C. (CHC) APPEAL NO. 23/2009
H.C. (CIVIL) NO. 28/2008
AUGUST 31ST, 2010
Civil Procedure Code – Section 6, 7, 8, 375, 393 – If the right to sue
on the cause of action survives to the surviving plaintiff/s or against
the surviving defendant/s upon the death of one out of several
plaintiffs or defendants, action to proceed at the instance of the
surviving plaintiff or plaintiffs or against the surviving defendant
or defendants – Summary – Regular Procedure. Companies Act 7 of
2007 – Section 224.
The 1st, 2nd and 3rd Petitioner-Respondents instituted two actions before
the Commercial High Court of Colombo in terms of Section 226 of the
Companies Act, No. 7 of 2007. Whilst the two cases were pending, the
3rd Petitioner – Respondent died. The learned President’s Counsel for
the Petitioner-Respondents took up the position that the case could
proceed without effecting any substitution in place of the deceased
3rd Petitioner-Respondent. Accordingly no substitution was made in
place of the deceased party. The learned President’s Counsel appearing
for the Appellant and the Respondent- Respondents submitted that
substitution in place of the deceased party was mandatory and that
the action could not proceed any further without effecting such
substitution.
The learned High Court Judge permitted the Petitioner-Respondents to
proceed with the action. This appeal is preferred against the said order
made on 11th May 2009 by the learned High Court Judge.

350 Sri Lanka Law Reports [2011] 1 SRI L.R.
HelD:
(1) Unless the operation and the application of the Civil Procedure
Code is expressly prevented, the regular procedure of the civil
procedure must be applied. Section 8 of the Civil Procedure Code
should be understood as providing for the application of regular
procedure where-
(a) the Civil Procedure Code does not provide for summary
procedure
(b) any other law does not provide for summary procedure
(c) where a law does not provide for any other procedure
Per J.A.N. de Silva, C.J.-
“I am frmly of the view that the broad and inclusive defni-
tion given to the term cause of action in Section 5 as well as in
innumerable cases should not be limited… The wording in Section
7 cannot restrict Section 6 and the meaning attached to the term
cause of action …”
“Therefore in conclusion, I am of the opinion that the circumstances
of this case attract the provisions of the Civil Procedure Code, and
specifcally Section 393.”
(2) Per J.A.N. de Silva, C.J.,
“… I hold that the facts of the case attract Section 393 of the
Civil Procedure Code and that a cause of action survived to the
plaintiffs “alone”. But the plaintiffs failed to satisfy the second
requirement of making an application by way of summary
procedure and therefore the plaintiffs are prevented fatally from
proceeding any further”.
Cases referred to:
1. Duhilanomal and Others V. Mahakanda Housing Co. Ltd. 1982(2)
Sri. L.R. 504
2. Gajanand V. Sardarmal – AIR 1961 Raj. 223
AppeAl from an order of the Commercial High Court (Colombo)

Jayawardene V. Obeysekere And 5 Others
SC (J.A.N. de Silva CJ.) 351
S.A. Parathallingam, P.C., with Rajindra Jayasinghe and Ranil
Angunawela for the 3rd Respondent – Appellant
Romesh de Silva, P.C., with Aritha Wickramanayake, Chanaka de
Silva, Aruna Samarajeewa, Sugath Caldera, Shanaka Cooray and
Eraj de Silva for the 1st and 2nd Petitioners – Respondents
D.S. Wijesinghe, P.C., with K. Molligoda for the 2nd Respondent –
Petitioner in SC (CHC) Appeal 23/2009
Nihal Fernando, P.C., with Rajindra Jayasinghe for the 3rd Respondent –
Petitioner in SC (CHC) Appeal 23/2009
Shanaka Amarasinghe for the 4th Respondent–Respondent M.A. Suman-
thiran for the 1st Respondent Company
Cur.adv.vult
July 07th 2011
J.A.n. De SilvA CJ
This is an appeal from an order of the Commercial High
Court of Colombo. The 2nd Respondent – Appellant (hereinafter
referred to as the Appellant) seeks to set aside the order of the
learned High Court Judge dated 11th May 2009. This Order
was challenged in all three cases, this court decided to
amalgamate all three cases together to deliver judgment.
The facts of this case in so far as they are relevant to this
application are as follows.
The 1st, 2nd and 3rd Petitioner-Respondents instituted two
actions before the Commercial High Court on the same day
in terms of section 226 of the Companies Act No 7 of 2007.
Perusal of the trial record indicates that court was informed
of the death of the 3rd Petitioner-Respondent on the 15th
of October 2008, which was the date fxed for the fling of
objections by the Appellant and the Respondent-Respondents.

352 Sri Lanka Law Reports [2011] 1 SRI L.R.
It is at this point that controversy arose as to the
direction with which the action should proceed thence-
forth. The learned Counsel appearing for the 1st, 2nd and 3rd
Petitioner-Respondents submitted that the case could
proceed without any substitution in place of the 3rd Petitioner-
Respondent, and therefore did not seek to substitute any
person. The learned Counsel appearing for the Appellant and
the Respondent-Respondents submitted that an application
for substitution was mandatory and that the action could
not proceed any further without such an application having
being made.
Parties made extensive oral submissions and also
tendered written submissions on the said question. By order
dated 11th May 2009 the learned High Court Judge held with
the Petitioner-Respondents and permitted the Petitioner-
Respondents to proceed with the action. This appeal was
preferred against the said order.
The Appellant contends that section 393 of the Civil
Procedure Code applies to the aforesaid circumstances. The
Petitioner-Respondents contend that the procedure to be
followed in respect of disputes arising under the Companies
Act 7 of 2007 is sui generic and therefore submit that the Civil
Procedure Code has limited application to the circumstances
of this case.
The Petitioner-Respondents advanced several arguments
in this connection which deserve full and careful consider-
ation.
The learned President’s counsel for the Petitioner-
Respondents drew our attention to section 520 of the Com-
panies Act No. 7 of 2007. The said section reproduced in its
entirely is as follows:

Jayawardene V. Obeysekere And 5 Others
SC (J.A.N. de Silva CJ.) 353
(1) Every application or reference to court under the pro-
visions of this Act shall, unless otherwise expressly
provided or unless the court otherwise directs, be by
way of petition and affdavit, and every person against
whom such application or reference is made, shall be
named a respondent in the petition and be entitled
to be given notice of the same and to object to such
application or reference.
(2) Every application or reference made to the court in the
course of any proceeding under this Act or incidental
thereto, shall be made by motion in writing.
(3) The Registrar shall be entitled to be heard or repre-
sented in any application or reference made to the
court under this Act at any stage of such application or
reference.
(4) In all proceedings before court by way of application
or reference under this Act, no order for costs shall be
made against the Registrar.
The learned President’s counsel for the Petitioner-
Respondents also drew our attention to section 6 and 7 of the
Civil Procedure Code. Section 6 defnes as to what constitutes
an action. It reads,
Every application to a court for relief or remedy obtainable
through the exercise of the court’s power or authority, or
otherwise to invite its interference, constitutes an action.
Section 7 states that
The procedure of an action may be either “regular” or
“summary”

354 Sri Lanka Law Reports [2011] 1 SRI L.R.
It was then submitted that the procedure found in
section 520 of the Companies Act No. 7 of 2007 did not fall
into either category and therefore the procedure laid down in
the Civil Procedure Code should not apply in respect of dis-
putes arising out of the Companies Act.
Section 8 which was inserted into the Civil Procedure
Code as an amendment in 1980 states that unless specif-
ically provided, proceedings should be by way of “regular”
procedure.
The Civil Procedure Code itself, despite the wording
in section 7 paves the way for another type of proceedings
i.e. found in chapter VIII to be followed in respect of liquid
claims. The procedure set out therein is distinctly different to
the “regular” procedure as well as the “summary” procedure
already referred to.
Therefore I think it would be unwise to contend that a
procedure found in a statute alien to the forms found in the
Civil Procedure Code would not attract the provisions relating
to the regular procedure of the Civil Procedure Code.
The legislature may have in its wisdom adopted various
procedures to be followed in relation to the diverse actions
which it deems appropriate.
Yet unless the operation and the application of the Civil
Procedure Code is expressly prevented, I am of the opinion
that the regular procedure of the civil procedure must be
applied in terms of section 8.
Section 8 states,
Save and except actions in which it is by this Ordinance
or any other law specially provided that proceedings may

Jayawardene V. Obeysekere And 5 Others
SC (J.A.N. de Silva CJ.) 355
be taken by way of summary procedure, every action shall
commence and proceed by a course of regular procedure,
as hereinafter prescribed.
In other words section 8 of the Civil Procedure Code
should be understood as providing for the application of
regular procedure where,
(a) the Civil Procedure Code does not provide for
summary procedure
(b) any other law does not provide for summary
procedure
(c) where a law does not provide for any other
procedure
I am therefore convinced that the proceedings under
scrutiny was found to be an action in which, in addition to
the application to the general procedure found in the compa-
nies Act, the regular procedure found in the Civil Procedure
Code must fll any procedural lacuna.
The learned counsel for the Respondent-Respondent
submitted that in any event section 393 applied only to
regular procedure adverting to the words found in the
section, which are “plaintiff” and “defendant”.
I fnd this submission by the learned president’s counsel
untenable. Section 375 of the Civil Procedure Code is clear,
in that an application by way of summary procedure can be
made in the course of an ongoing action whether such action
be conducted by way of summary or regular procedure.
Chapter LV of the Civil Procedure Code refers to incidental
proceedings. The chapter deals with circumstances ranging

356 Sri Lanka Law Reports [2011] 1 SRI L.R.
from the death of a party, the assignment of interest of a
party, marriage and bankruptcy. These are circumstances
that affect any action irrespective of the procedure followed.
Whilst I concede that the words “plaintiff” and
“defendant” are suggestive, I do not think that the wording
itself should be considered as a compelling reason suffcient
to deprive the effect of the statutory provision in respect of
actions conducted under “non-regular” procedure.
The learned President’s Counsel then attempted to
advance the argument that the proceedings in question did
not fall within the defnition of an action, thereby attempting
to take away the specifc application of section 393 as well as
the pervasive application of the Civil Procedure Code referred
to previously.
The learned President’s Counsel noted that the term
“cause of action” is one which is foreign to the Companies Act,
and that its inclusion in section 393 prevents the application
of the said section in this instance.
The learned President’s Counsel defned the term “cause
of action” broadly as a wrong which may result in an action
without referring to the defnition given to the same in sec-
tion 5 of the Civil Procedure Code. Thereafter he sought to
limit the ambit of that defnition with the use of section 7. It
was his submission that since the procedure set out in the
Companies Act did not fall into either regular or summary
procedure, that this “application” would not constitute an
action.
I fnd little merit in this submission. Section 5 defnes a
cause of actions as

Jayawardene V. Obeysekere And 5 Others
SC (J.A.N. de Silva CJ.) 357
“cause of action” is the wrong for the prevention or redress
of which an action may be brought, and includes the denial
of a right, the refusal to fulfll an obligation, the neglect to
perform a duty and the infiction of an affrmative injury”
The same section defnes an action as
“action” is a proceeding for the prevention or redress of a
wrong
Section 6 of the Civil Procedure Code states as to what
constitutes an action
Every application to a court for relief or remedy obtainable
through the exercise of the court’s power or authority, or
otherwise to invite its interference, constitutes an action
Therefore simply put a cause of action is a wrong, for
which a relief or redress is obtainable through the exercise of
the courts power or authority. The words used in section 5
are inclusive so as to capture varied circumstances in to the
fold of a cause of action.
I am frmly of the view that the broad and inclusive
defnition given to the term cause of action in section 5
as well as in innumerable cases should not be limited as
suggested by the learned President’s Counsel. The wording in
section 7 cannot restrict section 6 and the meaning attached
to the term cause of action. Clearly, the tail cannot be seen
to wag the dog.
Therefore in conclusion, I am of the opinion that the
circumstances of this case attract the provisions of the Civil
Procedure Code, and specifcally section 393.

358 Sri Lanka Law Reports [2011] 1 SRI L.R.
I now turn to the application of section 393 of the Civil
Procedure Code to the circumstances of this case.
Section 393 in its entirety is as follows.
If there be more plaintiffs or defendants than one and
any of them dies, and if the right to sue on the cause of
action survives to the surviving plaintiff of plaintiffs alone,
or against the surviving defendant or defendants alone,
the court shall, on application in the way of summary
procedure, make an order to the effect that the action do
proceed at the instance of the surviving plaintiff of plain-
tiffs, or against the surviving defendant or defendants
It appears that section 393 introduces two requirements
to be fulflled before court can issue an order for the action to
proceed. Namely,
(a) the right to sue on the cause of action must survive
to the surviving plaintiff or plaintiffs alone
(b) an application must be made by way of summary
procedure
The Appellant contends that in the instant case nei-
ther of the requirements have been fulflled. The learned
President’s Counsel for the Appellant drew our attention to
section 373 which requires every application by summary
procedure to be made upon a duly stamped petition.
It is common ground that no such written application
was made. The language of section 373 makes it clear that
the requirement is one which is imperative.
I shall frst consider as to whether the right to sue on the
cause of action survives to the plaintiffs.

Jayawardene V. Obeysekere And 5 Others
SC (J.A.N. de Silva CJ.) 359
The learned President’s Counsel for the Appellant took
great pains to demonstrate that section 393 had no applica-
tion to the instant case and that the right to sue survived the
death of the 3rd Respondent, to his heirs and therefore the
Respondents should have substituted such heirs in place of
the 3rd Respondent.
The Action of the 1st to 3rd Respondents have been
instituted in terms of section 224 read with section 226 of the
Companies Act No 7 of 2007. The petition fled by the respon-
dents before the Commercial High Court states that they are
jointly entitled to make the said application. The Appellants
refer to certain other paragraphs which also lend credence to
the assertion that the application was joint in nature.
The Appellant also draws our attention to the reliefs
sought, specifcally to prayers (D) and (E) which seek an
order seeking the purchase of the collective shares of the
petitioners etc.
I am inclined, in considering the said observations made
by the learned President’s Counsel for the Appellant, to agree
with him that the Respondents instituted this action as a
joint action.
The learned President’s Counsel for the Appellant also
sought to demonstrate that the action found in section 224 of
the Companies Act No 7 of 2007 is inherently joint in nature
and that it was not a personal action in nature.
Section 224 is as follows.
Subject to the provisions of section 226, any shareholder or
shareholders of a company who has a complaint against

360 Sri Lanka Law Reports [2011] 1 SRI L.R.
the company that the affairs of such company are being
conducted in a manner oppressive to any shareholder or
shareholders (including the shareholder or shareholders
with such complaint) may make an application to court, for
an order under the provisions of this section.
The language of the section clearly suggests that the
right to institute this action is attached to the shareholding.
Where a shareholder is of the view that the affairs of the com-
pany are conducted in a manner oppressive to him or other
shareholders, he may make a complaint.
When such a single complainant dies, a question arises
as to whether the right to sue survives and devolves on his/
her heirs. Clearly the shares will devolve on the heirs. Any
prospective rights attached to the shares must devolve on the
heirs as well.
In such circumstances I am of the opinion that the right
to sue does not survive to the heirs on the basis that the
action requires a shareholder to form an opinion that the af-
fairs are conducted in a manner oppressive to shareholders.
With the demise of the complainant, his complaint loses
sanctity. Clearly it is available to the heir or any other share-
holder to make a fresh complaint. But as far as the original
complaint is concerned, it ceases to be of effect with the death
of the complainant.
What then is the application of the above principle to a
joint complaint? Does it necessarily follow that the surviving
complainants may continue with their action so long as they
continue to hold the threshold shareholding requirement?
The learned President’s Counsel for the Appellant sub-
mitted that section 393 has no application in the instant case

Jayawardene V. Obeysekere And 5 Others
SC (J.A.N. de Silva CJ.) 361
on the basis that the cause of action does not survive to the
1st and 2nd Respondents alone.
The word “alone” in section 393 has been judicially inter-
preted in the case of
Duhilanomal and Others v. Mahakanda Housing Co.
ltd.(1)
“Alone”, in the context of section 393 of the Civil Procedure
Code, means in my view that the survivors are liable to
be sued independently without any others being, joined;
“alone”does not mean “none else other than the survivor”.
A similar view has been taken in India in Gajanand vs
Sarharmal (2), where the Indian Civil Procedure rules have the
identical provisions to our section 393. It was held in that
case that,
“The test whether a right to sue survives in the surviving
plaintiffs or against the surviving defendants is whether the
surviving plaintiffs can alone sue or the surviving defendants
could alone be sued in the absence of the deceased plaintiff or
defendant respectively.”
On the strength of the aforesaid authorities prima facie
it appears that the surviving complaints could continue the
action if each of them satisfy the shareholding threshold.
But the learned President’s Counsel for the Appellant
contends further that in any event it is section 394 that the
instant circumstances attract and not section 393.
Section 394 is as follows.
If there are more plaintiffs than one, and any of them dies,
and if the right to sue does not survive to the surviving

362 Sri Lanka Law Reports [2011] 1 SRI L.R.
plaintiff or plaintiffs alone, but survives to him or
them and the legal representative of the deceased
plaintiff jointly, the court may cause the legal representative,
if any, of the of deceased plaintiff to be made a party, and
shall thereupon cause an entry to that effect to be made on
the record and proceed with the action.
If the right to sue survives to the heirs as submitted
by the Appellant, this application would hinge on a single
issue. I.e. whether the right to sue survives to the remaining
complainants and the legal representatives of the deceased
complainant jointly?
The word “jointly” needs careful interpretation. Clearly it
is used in section 394 in a sense directly opposite to the word
“alone” found earlier in the same section and in section 393.
It is also relevant to note that section 393 precedes
section 394, and that the circumstances envisaged in the
said sections are necessarily mutually exclusive. This asser-
tion is given added credence by the use of the words “does
not” found in section 394.
Therefore I am of the view that section 394 attracts
circumstances where the right to sue survives to the heirs,
and where the surviving plaintiffs fail the test laid down in
Gajanand vs Sardarmal, (supra) making future prosecution
to be made jointly a necessity.
For reasons already stated, in the instant case, I am not
of the view that a joint prosecution of the case by the remain-
ing complainants and the heirs is necessary.
Therefore I hold that the facts of the case attract section
393 of the Civil Procedure Code and that a cause of action

Jayawardene V. Obeysekere And 5 Others
SC (J.A.N. de Silva CJ.) 363
survived to the plaintiffs “alone”. But the plaintiffs failed to
satisfy the second requirement of making an application by
way of summary procedure and therefore the plaintiffs are
prevented fatally from proceeding any further.
In the circumstances, we direct the learned High Court
Judge of the Commercial High Court to terminate the
proceedings in these two cases pending before him with an
order for appropriate costs.
AMArAtungA J.- I agree.
MArsOOf J.- I agree.
High Court Judge of the Commercial High Court directed to
terminate the proceedings in both cases pending before him
with an order for appropriate costs

364 Sri Lanka Law Reports [2011] 1 SRI L.R.
ROSHAN vS. THE ATTORNEY GENERAL
COURT OF APPEAL
ROHINI MARASINGHE.J
SARATH DE ABREW.J
CA 120/2004
HC GAMPAHA 46/2004
MARCH 2, 17, 2009
JULY 9, 17, 2009
Penal Code- Section 300, Section 383 – Identifcation – Delay in hold-
ing – Unlawful detention in Police custody? – Evidence Ordinance
Section 27, Section 54, Section 114(d) – Dock statement – Evalua-
tion – Can a conviction be sustained under a section which does not
create an offence – Best Evidence Rule – Constitution Article 13 (3)
The accused-appellant was indicted under Section 300, Section 383,
Penal Code – after trial without a jury was convicted on both grounds.
In appeal it was contended that there was an improper constitution of
the Identifcation Parade and long delay in holding the parade, that the
Doctor who attended on the injuries of the complainant was not called
that, the conviction cannot be sustained under a section which does
not create an offence and that there was improper evaluation of the
dock statement and the improper admission of inadmissible evidence
with regard to bad character.
Held:
(1) The parade has been held belatedly 50 days after the event. Court
has failed to consider the impact on the unreasonable delay on the
ability of the complainant to make a genuine identifcation. The
accused had not been afforded an opportunity to be represented
by Counsel at the parade and the parade has been improperly and
unfairly constituted.