VYAPURI vs. ABUTHAHIR

042-SLLR-SLLR-2006-V-1-VYAPURI-vs.-ABUTHAHIR.pdf


CA
Vyapuri vs. Abuthahir (Somawansa, J. (P/CA))
331
VYAPURI
vs.
ABUTHAHIR
COURT OF APPEALSOMAWANSA, J(P/CA) ANDWIMALACHANDRA, J.
CA 390/2004 (REV.)
D. C. KANDY 2437/RE
Civil Procedure Code, section 639, 753(2), 763(1), 763 and 763(2) – JudicatureAct, section 23 – Writ pending appeal – Dismissed on a technical ground -Second application for writ pending appeal – Dismissed not on merits – Inquiryunder section 763 – Burden is on whom – Can the judgement creditor make asecond application for writ?
On the eighth day of writ pending inquiry the case was kept down when it wasfirst called as both parties indicated to court that they are ready. However, whenit was called for the second time, the plaintiff petitioner moved for a date statingthat he is not ready for inquiry. The District Judge dismissed the plaintiffpetitioner’s application for writ on the basis that the petitioner has misled courtby stating that he was ready for inquiry, when in fact he had not been ready.
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After the dismissal the plaintiff filed another application, and the court dismissedthe application on the basis that, the conduct of the petitioner in the earlierapplication showed a lackadaisical approach.
HELD:
It is settled law that a court cannot dismiss an applicaiton without goinginto the merits unless either party has agreed to a dismissal in theevent of non-compliance with an undertaking.
Section 763 of the Civil Procedure Code and section 23 of the JudicatureAct place the burden of satisfying court as to why writ should be stayedfairly and squarely on the respondent.
Once an application is made for the issue of a writ pending appeal, andthe respondent judgment/debtor is present in court there is no burdenon the part of the plaintiff petitioner to prove anything. He can be silent- the court would have to call upon the judgment debtor respondent toshow cause or satisfy court why writ should be stayed. The DistrictJudge has no power to dismiss an application on the basis the plaintiff-petitioner is not ready for trial or that he had moved for apostponement on numerous of occasions – for the burden is on therespondent.
There is no express bar in the Code preventing a judgment creditorfrom making a second application for writ pending appeal, if the firstapplication is dismissed on technical grounds and not on merit.
HELD FURTHER :
The object of the power of revision is the due administration of justice;the court will not hesitate to use its revisionery powers to give reliefwhere a miscarriage of justice has occurred and indeed the facts ofthis case cry aloud for intervention of this court to prevent what otherwisewould be a miscarriage of justice.
APPLICATION for leave to appeal and revision from order of the District Court ofKandy.
CA
Vyapuri vs. Abuthahir (Somawansa, J. (P/CA))
333
Cases Referred to:
Don Piyasena v. Mayawathie Jayasuriya (1986) 1 Sri LR 6
Grindlays Bank v. Mackinnon Mackenzie & Co. (Ceylon) Ltd. (1990) 1Sri LR 19
Esquire (Garments) Industries Ltd. v. Bank of India (1993) 1 Sri LR 130
Mamnoor v. Mohamed 23 NLR 493
Mariam Bee v. Seyed Mohamed 68 NLR at 38
Somawathie v. Madawala (1983) 2 Sri LR 15 at 30, 31
Reza Muzni for plaintiff respondent.
Rohan Sahabandu with Gamini Hettiarachchi for defendant – respondent.
January 01,2006
ANDREW SOMAWANSA, J. (P/CA)
This is a revisionary application seeking to revise and set aside order ofthe learned District Judge of Kandy dated 28.05.2002 and 14.10.2003rejecting the two applications of the plaintiff-petitioner (hereinafter calledthe petitioner) for execution of decree pending appeal without going intothe merits of the applications. Petitioner also prayed for an order for thiscase to be sent back to the learned District Judge with directions to hodan inquiry and adjudicate on the merits of the application dated 28.06.2002.
After the pleadings weres completed and when the matter was takenup for argument both counsel agreed to resolve the matter by way ofwritten submissions and both parties have tendered their writtensubmissions.
The relevant facts are pending the appeal lodged by the defendent-respondent (hereinafter called the respondent) the petitioner applied tohave the decree executed pending appeal. The respondent filed hisobjections to the aforesaid applicationand the matter was fixed for inquiryand as the counsel for the petitioner Mr. S. Mahenthiran, PC was not wella postponement was sought. Thereafter this matter had’been postponed 7times at the instance of the petitioner in view of the ill health of his counseland on the 8th occasion on 28.05.2002 the learned District Judge inquired
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from parties if they were ready and the petitioner informed Court that hewas ready and the matter was kept down to be taken up later. When itwas taken up for the second time an attorney-at-law had appeared onbehalf of the petitioner and sought a postponement on the basis that thepetitioner was not ready for inquiry. The learned District Judge then by hisorder dated 28.05.2002 dismissed the petitioner’s application for writpending appeal on the basis that the petitioner has misled Court by statingthat he was ready for inquiry when in fact he had not been ready. This isthe order that the petitioner is canvassing in the leave to appeal applicationbearing No. 405/2003.
After the dismissal of his application for execution of writ pending appealthe petitioner filed another replication seeking the same relief to which therespondent objected to and also took up a preliminary objection to themaintainability of this second application for writ pending appeal on thebasis that the second application cannot be maintained in view of theprevious order dated 14.10.2003. Again the parties agreed to tender writtensubmissions and at the conclusion of the inquiry the learned District Judgeby his order dated 14.10.2003 dismissed the application of the petitionerfor execution of writ on the basis that the conduct of the petitioner in theearlier application shows the lackadaisical approach of the petitioner. Thepetitioner thereafter filed the instant revision application seeking to reviseand set aside the aforesaid two orders.
When an application is made to have the writ executed pending appealthe relevant provisions that would be applicable is Section 763(2) of theCivil Procedure Code which reads as follows.
‘The Court may order execution to be stayed upon such terms andconditions as it may deem fit, where –
the judgement-debtor satisfies the court that substantial loss mayresult to the judgement-debtor unless an order for stay of executionis made, and
security is given by the judgement-debtor for the performance ofsuch decree or order as may ultimately be binding upon him”
CA
Vyapuri vs. Abuthahir (Somawansa, J. (P/CA))
335
Section 23 of the Judicature Act reads as follows:
“ Any party who shall be dissatisfied with any judgment, decree, ororder pronounced by a District Court may (excepting where such right isexpressly disallowed) appeal to the Court of Appeal against any suchjudgement, decree, or order from any error in law or in fact committed bysuch court, but no such appeal shall have the effect of staying the executionof such judgement, decree or order unless the District Judge shall see fitto make an order to that effect, in which case the party appellant shallenter into a bond, with or without sureties as the District Judge shallconsider necessary, to appear when required and abide the judgement ofthe Court of Appeal upon the appeal.”
Therefore in such a situation the Court is empowered to make an orderstaying the execution of the decree pending the disposal of the appealwhere –
the judgement-debtor satisfies Court that substantial loss mayresult to him unless execution is stayed and security is given bythe judgement-debtor.
there is a substantial question of law to be decided in appeal.
In the case of Don Piyasena vs. Mayawathie Jayasuriya(1) it was held:
The provisions of section 23 of the Judicature Act and section 763(2) ofthe Civil Procedure Code make it clear that unless there is proof ofsubstantial loss that may otherwise result, execution of decree will not bestayed merely on the grount that an appeal has been filed.”
Again, in Grind lays Bank vs. Mackinnon Mackenzie & Co. Ceylon Ltd.(2)it was held :
“If the judgement-debtor desires stay of execution pending appeal heshould establish substantial loss. The usual course is to stay proceedingspending an appeal when execution would cause irreparable injury. Mereinconvenience and annoyance is not enough. The damage must besubstantial and the defendant must prove it.”
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In Esquire (Garments) Industries Ltd.,, vs. Bank of India (3) it washeld:
“When an application for execution of a decree pending appeal is madein the exercise of rights conferred under section 763(1) of the Civil ProcedureCode the District Judge may make any of the following orders
Order execution or stay it, if he sees fit to order a stay, subjecthowever, to the appellant furnishing a bond to abide the judgementof the Court of Appeal upon the appeal (Section 29 JudicatureAct.)
Order execution and if sufficient cause is shown by the appellantrequire security to be given for the restitution of the property whichmay be taken in execution of the payment of the value of suchproperty and for the due performance of the decree or order of theCourt of Appeal (Section 763(1) of the (C. P. C.)
Order stay of execution upon such conditions as it may deem fit,where –
the judgement-debtor satisfies the court that substantialloss may result to him unless an order for stay of executionis made;
the judgement-debtor gives security for the due performanceof the decree or order as may be ultimately binding on him(Section 763(2) of the C. P. C.)
Thus it could be seen that it is settled law that on an inquiry underSection 763 the burden is entirely on the judgement-debtor to satisfy theCourt as to whether he has met the aforesaid requirements. The plaintiffjudgement-creditor need not even actively participate. The only limitedmatter the Court is called upon to adjudicate here is whether the judgement-debtor has satisfied the Court that substantial loss may be caused to himand /or that there is a substaintial question of law to be argued in appeal,in which event the Court has the discretion to stay execution of decreeuntil the conclusion of the appeal.
CA
Vyapuri vs. Abuthahir (Somawansa, J. (P/CA)
337
The learned District Judge on 28.05.2002, without calling upon thedefendent to show cause why the writ should be stayed pending theconclusion of the appeal, dismissed the plaintiff’s application merely onthe basis that the plaintiff had informed the Court that he was ready andthereafter when the matter was taken up for the second time counsel hadappeared and moved for a postponement and also on the basis that theplaintiff had not been ready for inquiry.
The question that arises for determination in„these proceedings iswhether the learned District Judge could dismiss the application withoutgoing into the merits of the application when there was no burden cast onthe plaintiff. It is settled law that a Court cannot dismiss an applicationwithout going into the merits unless either party has agreed to a dismissalin the event of non-compliance with an undertaking.
In Mamnoorvs. Mohamedw De Sampayo J. observed that the governingprinciple was that for “ a judge to dismiss an action without hearing it, heshould act under some specific power given to him by the code.”
As stated above in the instant action the learned District Judge haddismissed the petitioner’s application for writ pending appeal on the basisthat the petitioner had misled the court by stating that he was ready forinquiry when in actual fact he had not been ready. I am unable to comeacross any rule of law or procedure prescribed by law giving a discretion tothe District Judge to dismiss an application on such a ground as aforesaid.My considered view is that the aforesaid application for a postponementdoes not warrant the dismissal of the petitioner’s application whether it isthe 8th day of inquiry even though all the previous postponements were atthe instance of the petitioner or the petitioner stating that he is ready andthereafter moving for a postponement. If the Court had made order earlierthat the day on which the petitioner moved for a postponement was thefinal date for inquiry and no further postponements would be given, it couldbe argued that the order dismissing the application on the final date ofinquiry was correct. In the instant action no such order was made makingthe 8th date of inquiry as the final date of inquiry. In the circumstances,when the petitioner requested for a postponement of the inquiry, the learnedDistrict Judge should have inquired from the respondent whether heconsented to such a postponement or not and if the respondent objected
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'SCC6. 1 Sr. i. R
to a postponement Court shouid have 'sfused the postponement andproceeded with the inquiiy. Instead the learned District Judge dismissedthe the application of the petitioner without calling upon the respondent toshow cause why the writ should be stayed. Moreso, in accordance withthe principle laid down in the aforesaid decision the burden was with therespondent and not with the petitioner. It is clear that the learned DistrictJudge had erred by considering whether the petitioner would suffer prejudiceby not obtaining possession. It must be said that such a consideration isalien to the. provisions of Section 763 of the Civil Procedure Code andSection 23 of the Judicature Act places the burden of satisfying Court asto why writ should be stayed fairly and squarely on the respondent. Henceonce the application for issue of writ pending appeal is made and therespondent is present in Court there is no burden on the part of the petitionerto prove anything. He can be silent. However the Court would still have tocall upon the respondent to show cause or satisfy Court that writ shouldbe stayed pending the determination of the appeal. The District Judge hasno power to dismiss an application on the basis that the petitioner is notready or that he had moved for a postponement on a number of occasionsfor the burden is with the respondent.
For the foregoing reasons, it is very clear that the learned District Judgeerred when he made order on 28.05.2002 dismissing the application of thepetitioner for execution of writ pending appeal. The order is erroneous andcannot be permitted to stand. Accordingly, I would grant leave to appealagainst the impugned order dated 28.05.2002 and set aside the same anddirect the learned District Judge to hold an inquiry in respect of thepetitioner’s application for writ pending appeal.
In view of my finding with regard to the leave to appeal application bearingNo. CALA 405/2003 I do not think it necessary for me to consider therevision application bearing No. CALA Revision 390/2004 for the ordercanvassed in the revision application dated 14.10.2003 flows from theearlier order dated 28.05.2002 when the first order is set aside and thelearned District Judge is directed to hold and inquiry into the petitioner’sapplication for writ pending appeal, the second order dated 14.10.2003dismissing Jhe second application for a writ pending appeal becomesredudant.
CA
Vyapuri vs. Abuthahir (Somawansa, J. (P/CA)
339
Counsel for the respondent has taken several objections to themaintainability of the application for revision of the order dated 14.10.2003.He submits that as the impungned order is an interlocutory order thepetitioner should have come by way of leave to appeal which is the statutoryright granted to him, that in any event there is a delay of 4 months inmaking this application, that the petitioner has glossed over his own conductas to how any why the first application was refused, that the petitionershould have been more vigilant and moved Court in terms of Section 639to have the first order vacated and should have sought an order to continuewith the application, that the dismissal of the first application is a bar tomaking a second application. The aforesaid submissions are without anymerit for the order of the learned District Judge dated 14.10.2003 is solelybased on the conduct of the petitioner with reference to the first order andlike in the first order did not to into the merits of the application and did notfollow the procedure laid down in Section 763(2). The order appears to beperverse and not in accordance with the provisions as prescribed by Section763(2) but arbitrary. There is no express bar in the Civil Procedure Codepreventing a judgment creditor from making a second application for writpending appeal if the first application had been dismissed on a techinicalground and not on its merits. There are exceptional circumstances whichwarrant this Court to intervene and revise the order of the learned DistrictJudge. In the circumstances objection taken by the repondent to theapplication of petitioner for revision of the impunged order appears to bewithout any merit. For on a consideration of the proceedings in the originalCourt, it is clear that there has been a miscarriage of justice. The object ofthe power of revision as stated by Sansoni, CJ in Mariam Beebee vs.Seyed Mohamed ,s “Is the due administration of Justice” and in thewords of Soza, J in Somawathievs. Madawala(6,at 30 and 31
“ The Court will not hesitate to use its revisionary powers to give relief
where a miscarriage of justice has occurredand indeed the facts of
this case cry aloud for intervention of this Court to prevent what otherwisewould be a miscarriage of justice”
I would say the aforesaid observations of Sansoni, CJ and Soza, J. areequally applicable to the instant application for revision.
For the foregoing reasons, I would set aside both the aforesaid ordersdated 28.05.2002 and 14.10.2003 and send the case back tothe District
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Court ot Kandy directing the learned District Judge to hold an inquiry andadjudicate on the merits of the application for writ pending appeal dated28.06.2002. The petitioner will be entitled to costs of these proceedings inboth applications viz: the leave to appeal application as well as the revisionapplication fixed at Rs. 15,000/-.
WIMALACHANDRA, J. • I agree
Application allowed.
District Judge directed to hold inquiry and adjudicate on the merits.