016-SLLR-SLLR-2010-V-1-KULATILAKE-vs.-ATTORNEY-GENERAL.pdf
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KULATILAKE VS. ATTORNEY GENERALCOURT OF APPEALRANJITH SILVA J.
CHITRASIRI J.
CA 500/2004DC COLOMBO 21178/MRJUNE 19, 2009SEPTEMBER 17, 2009
Appeal against judgment – Revision application on same grounds – DoesRevision lie? – Exceptional circumstances – Does delay in deciding theappeal amount to an exceptional ground?
The petitioner appealed against the judgment of the District Courts, inaddition the petitioner also filed a revision application seeking similarreliefs that had been prayed for in the final appeal. It was contendedthat the delay in deciding the appeal would amount to an exceptionalground.
Held:
It is trite law that the revisionary jurisdiction would be exercised ifand only if exceptional circumstances are in existence to file suchapplication.
Court would exercise the revisionary jurisdiction, it being an extraordinary power vested in Court especially to prevent miscarriage ofjustice being done to a person and or for the due administration ofjustice.
Delay in deciding the appeal would not amount to an exceptionalground. Delay in hearing appeals, would not be a ground to take upan appeal filed subsequently to the appeals that are being heard,unless proper papers are filed to accelerate the same.
APPLICATION in revision from the judgment of the District Court ofColombo.
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Cases referred to:-
Caderamanpulle vs. Ceylon Paper Sacks Ltd 2001 3 Sri LR 112
Dharmaratne and another vs. Palm Paradise Cabanas Ltd andothers 2003 3 Sri LR 25
Revision 1695/2006 DC Kurunegala 8295/Spl
Karotis vs. Dharmaratne Thero and others 2006 2 Sri LR 322
Kumarasiri and another vs. Rajapakse 2006 1 Sri LR 322
Selliah Marimuttu vs. Siva Pakkiam 1986 1 CALR 264
Halwan and others vs. Kaleelul Rahuman 2000 3 NLR 50
Rustom vs. Hapangama -1978 – 79 – 80 1 Sri LR 352
Hotel Galaxy (Pvt.) Ltd. 19871 Sri LR 5
Vanik Incorporation Ltd vs. Jayasekera 1997 2 Sri LR 365
AG. vs. Podi Singho 51 NLR 381
RasheedAli vs. MohamedAli 1981 1 Sri LR 262
Thilagaratnam vs. Edirisinghe 1982 1 Sri LR 56
Iynool Careesa vs. Jayasinghe 1986 2 CALR 147
Janitha vs. Abeykone Sri Skantha Law Reports Vol IV – 22
Samadh vs. Moosage 1988 2 CAR 147
Gnanapandithan vs. Balanayagam 1998 1 Sri LR 391
Navaroch vs. Shri Kanthan 1991 1 Sri LR 286
Cl Goonetilake with R. R. S. Thangarajah for plaintiff-petitioner.
Milinda Gunetilaka SSC for defendant-respondent.
Cur.adv.vult.
May 05th 2010CHITRASIRI, J.
The Plaintiff-Petitioner (hereinafter referred to as thePetitioner) sought to set aside the judgment dated 23rdJanuary 2001 delivered by the learned Additional DistrictJudge of Colombo by which, the plaint filed by the petitionerin the District Court was dismissed. Against the saidjudgment the petitioner filed an appeal exercising hisstatutory right referred to in the Civil Procedure Code. In
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addition to the said appeal, the petitioner has filed thisrevision application as well seeking similar reliefs that hadbeen prayed for in the final appeal. With that introduction.I will set out the facts briefly pertaining to the issue in thiscase.
The petitioner was appointed as a Primary Court Judgein June 1979. Subsequently, he was designated as a LabourTribunal President in June 1981. Both these appointmentswere made by the Judicial Service Commission. By the let-ter dated 27th September 1993 (marked P5), the JudicialService Commission terminated his services by sending him oncompulsory retirement on the ground of inefficiency. Petitioner,challenging this decision of the Judicial Service Commis-sion filed plaint (Case No. 21178/MR) in the District Court ofColombo, making the Hon. Attorney General as thedefendant. The trial in this case was taken up by differentjudges and the judgment was delivered on the 23rd October2001 by the Judge who presided over that Court then,answering the issues 9 to 23 as preliminary issues of Law.Those preliminary issues of law were answered by the learnedAdditional District Judge in favour of the defendant and thenhe dismissed the plaint filed by the petitioner with costs.
Consequently, as mentioned herein before, the petitionerexercising his statutory right, filed an appeal against the saidjudgment. The petitioner relying upon the same grounds filedthis application also invoking the revisionary jurisdiction ofthis Court.
Since there are two applications filed by the petitionerin this same forum, it is necessary to examine the maintain-ability of a revision application under those circumstances.It is trite Law that the revisionary jurisdiction of thisCourt would be exercised if and only if exceptional
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circumstances are in existence to file such an application.Moreover, it must be noted that the Courts wouldexercise the revisionary jurisdiction, it being an extraordinary power vested in Court, especially to preventmiscarriage of justice being done to a person and/or forthe due administration of justice. The following authoritieswould amply demonstrate this proposition in Law.
In the case of Caderamanpulle vs. Ceylon Paper SacksLtd.ll), it was held that –
“The existence of exceptional circumstances is aprecondition for the exercise of the powers of revision”.
Per Nanayakkara, J. at 116.
“. . . . when the decided cases cited before us arecarefully examined, it becomes evident in almost all thecases cited, that powers of revision had been exercisedonly in a limited category of situations. The existenceof exceptional circumstances is a pre-condition for theexercise of the powers of revision and absence of excep-tional circumstances in any given situation results in re-fusal of remedies”.
In the case of Dharmaratne and another vs. PalmParadise Cabanas Ltd and othersf21. It was held by Amara-tunga J. that –
*Thus the existence of exceptional circumstances is theprocess by which the Court selects the cases in respect ofwhich this extra-ordinary method of rectification should beadopted. ”
In one of my judgments delivered in a RevisionApplication*3' I have referred to the following decision
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in which the same legal position had been accepted. In that Ihave quoted the case of Karolis vs. Dharamaratana Thero andothers where Justice Andrew Somawansa has stated thus:
“In the circumstances his remedy as laid down in Section754(2) was to file a leave to appeal application againstthe impugned order of the Learned District Judge refusinghis application. However, the Petitioner without havingrecourse to his statutory remedy available to him underSection 754(2) of the Civil Procedure Code has come byway of revision. In the circumstances the contention ofCounsel for the Petitioner that this objection taken bythe Respondent has no merit for revision as the mode ofrelief available as the Petitioner was never a party to theaction in the lower Court cannot be sustained and has to berejected”.
In the case of Kumarasiri and another vs. Rajapakse,S|referring to Selliah Marimuttur vs. Sivapakkiam(6) and Halwanand others vs. Kaleelul Rahuman{7), it was stated:
"In any event, the question of correctness of the LearnedDistrict Judge’s order in accepting the amended plaint isa matter that can be canvassed in the final appeal and noprejudice would be caused to the Defendants – Petitionersif this Court decides not to go into the merits of the applica-tion and I must say I do not intend to do so. ”
In Rustom vs. Hapangama & Company, it was held:
“the trend of authority clearly indicates that where therevisionary powers of the court of appeal are invoked thepractice has been that these powers will be exercisedonly if the existence of special circumstances are urgednecessitating the indulgence of this court to exercise itspowers in revision”
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In Hotel Galaxy (Pvt) Ltd. Vs. Mercantile Hotels LtdS9 itwas held that “It is settled law that the exercise of revision-ary powers of the appellate court is confined to cases in whichexceptional circumstances exist warranting its intervention.1’
In Vanik Incorporation Ltd. vs. Jayasekarall0), JusticeEdissuriya had reiterated the necessity to have exception-al circumstances when filing revision applications quotinga passage from the judgment of Justice Dias, in AttorneyGeneral vs. Podi Singhdll). In that decision, Dias J. hadheld that even though the revisionary powers should not beexercised in cases when there is an appeal and was nottaken, the revisionaiy powers should be exercised only inexceptional circumstances such as:
Miscarriage of justice;
Where a strong case for interference by the SupremeCourt is made out;
Where the applicant was unaware of the order.
In the following decisions also, it had been held thatthe presence of exceptional circumstances is needed wheninvoking revisionaiy jurisdiction of the appellate courts. Theyare namely:
Rasheed Ali vs. Mahamed Ali(12)
Thilagaratnam vs. Edirisinghe(13>
Iynool Careesa vs. Jayasinghe[l4)
Jonitha vs. Abeysekare(15)
Samadh vs. Moosajeem)
Gnanapandithan vs. Balanayagamtll7)
Navaroch vs. Shrikanthantl6i
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In the light of the aforementioned authorities, it isabundantly clear that the superior Courts in this countryhave always declined to entertain revision applications whenexceptional circumstances have not been averred in thoseapplications even though an aggrieved party had failed to filea final appeal. In this instance, the petitioner has filed a finalappeal as well. Therefore, he is not without a remedy.
However, in the petition to this Court, the petitioner hasstated (paragraph 27 of the petition) that the final appealfiled by the petitioner may not be taken up for hearing in thenear future. Therefore, it is clear that the contention of thepetitioner by filing this revision application is purely toexpedite the applications made against the decisions of thelearned District judge in the original court. Other than thedelay in deciding the final appeal, no other reason had beenadduced as exceptional circumstances in this petition, forthis Court to consider. In fact no separate averment is foundin the petition filed in this Court referring to any specialreasons as to the filing of this application invoking revisionaiyjurisdiction.
The delay in deciding the appeal would not amount to anexceptional ground. The appeals filed in this Court are beingheard according to a manner that had been decided uponafter due consideration. Delay in hearing appeals, would notbe a ground to take up an appeal filed subsequently to theappeals that are being heard, unless proper papers are filedto accelerate the same. Furthermore, such an attitude maylead to file revision applications by aggrieved parties withoutpursing the appeal filed, causing difficulties to the dueadministration in the court house.
For the aforesaid reasons, I do not see any special reasonto consider that there exist exceptional circumstances for this
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Court to look into this revision application. However at thesame time, it must be noted that this Court is aware of thefact that the filing of an appeal would not be a strict barrier tofile a revision application. In such a situation, the person whofiles a revision application should be in a position to stateadequate reasons or the circumstances that should necessi-tate looking at the merits of a revision application. As I havealready mentioned herein before, no such circumstanceshave been averred in this instance.
For the aforesaid reasons this revision application isdismissed. Defendant-Respondent is entitled to the costs ofthis application as well.
RAN JIT SILVA, J. -1 agreeApplication dismissed.