002-SLLR-SLLR-2004-V-2-DHARMASIRI-AND-OTHERS-v.-JANATHA-FERTILISER-ENTERPRISE-LTD-AND-OTHERS.pdf
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Dharmasiri and others v Janatha Fertiliser Enterprise Ltd and
others (Imam J)
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DHARMASIRI AND OTHERSv
JANATHA FERTILISER ENTERPRISE LTD AND OTHERSCOURT OF APPEALIMAM, J.
C.A. 2211/02JULY 13,2004
Application for writ of certiorari – Failure of the respondents to comply withSupreme Court Rule 22(3) of 1990 – Right to appear deprived – Respondentssought leave to appeal to the Supreme Court against the said order – Is it afinal order? – Could the Court of Appeal grant leave? – Constitution, Art. 128(1) Civil Procedure Code – Section 575 (5).
The petitioners sought writs of certiorari and mandamus. The Court of Appealby its order of 24.06.2004, held that the respondents having failed to complywith the mandatory Appellate Rules cannot appear in the proceedings in oppo-sition to the petitioner and fixed the application of the petitioners for inquiry.
The respondents sought leave to appeal against the said order to the Supreme' Court.
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Held :
The Court of Appeal has the power to grant leave to appeal only froma final order.
The impugned order is an interim order and not a final order.
APPLICATION for leave to appeal to the Supreme Court from an order depriv-ing the respondents of their right to appear in opposition to the petitioners, withthe petitioners’ case' being fixed for inquiry.
Cases referred to:Siriwardena v Air Ceylon Ltd., – (1981) 1 SRI LR 286
Kulatilake v Karunawathie and others – (1989) 1 SRI LR 303
3.. Brooke Bond(Ce) Ltd., v Stassen Exports Ltd., – (1990) 1 SRI LR 61
4. Bank of Ceylon v Bank Employees Union – SC App. No. 30/2002decided on
Dr. Jayantha de Almeida Guneratne, P.C. with Viran Corea for petitioners.
Sathya Hettige, Additional Solicitor-General with Euresha de Silva, StateCounsel for 1st, 2nd, 4th and 5th respondents.
Cur.ad.vuit
OrderOn the 12th of July 2004, attorney-at-law for the 1st, 2nd, 4thand 5th respondents tendered a Leave to Appeal applicationagainst the order of this Court dated 24.6.2004 in terms of section22(3) of the Supreme Court Rules 1990. A statement containingthe questions of law were also annexed to this application.President’s Counsel for the petitioner made submissions that thisCourt has No Jurisdiction to entertain such an application as theorder made by this Court on 24.6.2004 was an Interim Order andnot a Final Order.
The learned ASG contended that the Order dated 24.6.2004was a Final Order, as the respondents were precluded from par-taking in the main case as a result of the aforesaid Order, and thusthe respondents-had been deprived of a right of audience.
Learned President’s Counsel submitted that the aforesaid orderis an Interim Order as the relief claimed by the petitioners in this
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Dharmasiri and others v Janatha Fertiliser Enterprise Ltd and
others (Imam J)
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case has not been inquired into and thus the proceedings in thiscase are not concluded. Learned ASG submitted that in view ofthe aforesaid order the 1st, 2nd, 4th and 5th respondents were pre-cluded from taking part in future proceedings.
Article 128(1) of the Constitution states that an appeal shall lieto the Supreme Court from any Final Order of the Court ofAppeal in any matter or proceedings if the Court of Appeal grantsLeave to Appeal to the Supreme Court ex mero motu. Hence thisCourt has to examine whether the order dated 24.6.2004 is a FinalOrder or an Interim Order.
Rule 22(1) of the Supreme Court Rules of 1990 refers to a partyaggrieved by a Final Order for Leave to Appeal to the SupremeCourt. In Siriwardene v Air Ceylon Limited1) the question as towhether an Order is a Final Order was determined by Chief JusticeSharvananda with Justice P. Colin-Thome and Justice P.Ranasinghe agreeing. The Judgment stated “The tests to beapplied to determine whether an Order has the effect of a FinalJudgment and so qualifies as a Judgment under section 754(5) ofthe Civil Procedure Code are as follows.
It must be an Order finally disposing of the rights of the par-ties.
The Order cannot be treated as a Final Order, if the suit orthe action is still left a live suit or action for the purpose of deter-mining the rights and liabilities of the parties in the Ordinary way.
The finality of the order must be determined in relation to thesuit.
Section 754(5) of the Civil Procedure Code defines a Judgmentand Order as follows.
“Judgment” means any Judgment or Order having the effect ofa Final Judgment made by any Civil Court and “Order” means thefinal expression of any decision in any civil action proceeding ormatter, which is not a Judgment.
In this instant case the Petitioners have sought for writs of cer-tiorari, Prohibition, and Mandamus. By the Order of this Court dated24.06.2004, I held that the aforesaid respondents having failed to
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comply with the mandatory appellate rules were deprived of theirright to appear in these proceedings in opposition to the petitioners.
The Order further stated that ‘The matter of the application of thepetitioners is to be .fixed for inquiry”. Thus this case is not con-cluded by Order dated 24.6.2004.
Hence I hold that the Order dated 24.06.2004 is an InterimOrder and not a Final Order. Furthermore the aforesaid respon-dents have other remedies available to them. With this regard inKulatileke v Karunaratne and others<2> Justice A.de Z.Gunawardene held “that the Court of Appeal only has the power to sogrant leave to appeal from a Final Order, Judgment, Decree orSentence of the Court of. Appeal. The circumstances under whichthe Supreme Court exercises its jurisdiction to grant special Leaveto Appeal is much wider."
Furthermore in Brooke Bond (Ceylon) Ltd v Stassen ExportsLtd. and another it was held that in law an Interlocutory Order isone which is made or given during the progress of the action, butwhich does not thereby dispose of the rights of parties. It is inci-dental to the principal object of the action, namely the Judgment.
The learned Additional Solicitor General referred to Bank of 70Ceylon v Ceylon Bank Employees Uniort4> where, it was held byJustice Gunasekera with Justice Ismail and Justice Yapa agreeingthat the failure of the respondent to file a caveat opposing the grantof Special Leave does not preclude the respondent from beingheard at the hearing of the appeal. However in the instant case,there has been no application for Special Leave to Appeal as yet.
The line of decisions in our superior courts have held that par-ties should comply with the Rules of Court.
For the aforesaid reasons, I disallow the application of the 1 st,
2nd, 4th and 5th respondents and dismiss the application for Leave soto Appeal to the Supreme Court. No costs.
Leave to appeal to the Supreme Court refused.